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[2024] ZAECBHC 36
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Member of the Executive Council for Health, Eastern Cape Province and Another v Y.B obo S.B (428/2020) [2024] ZAECBHC 36 (19 November 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
Case
no.: 428/2020
In the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL FOR
1
st
Applicant
HEALTH,
EASTERN CAPE PROVINCE
HEAD
OF DEPARTMENT FOR THE DEPARTMENT
2
nd
Applicant
OF
HEALTH, EASTERN CAPE
And
Y[...]
B[...] OBO S[...]
B[...]
Respondent
In
re:
Y[...]
B[...] OBO S[...]
B[...]
Plaintiff
And
MEMBER OF THE
EXECUTIVE COUNCIL FOR
1
st
Defendant
HEALTH,
EASTERN CAPE PROVINCE
HEAD
OF DEPARTMENT FOR THE DEPARTMENT
2
nd
Defendant
OF
HEALTH, EASTERN CAPE PROVINCE
JUDGMENT
NKELE
AJ:
INTRODUCTION
[1]
This is an application for the rescission of an order issued by
Rugunanan J on 22
March 2022 in which the defendant was held liable
to pay the plaintiffs in her personal and representative capacities
for the damages
arising from the proven or agreed damages arising
from the sub-standard care and negligent conduct of the defendant’s
employees
at Cecilia Makiwane Hospital, which resulted in S[...]
B[...] being born on 15 November 2012 suffering from spastic
quadriplegia
cerebral palsy.
[2]
The order that is sought to be rescinded was issued by agreement
between the parties.
[3]
Effectively the applicant seeks a variation of the order dated 22
March 2022, in so
far as the applicant’s liability for the
respondent’s liability for respondent’s damages in her
personal capacity
is concerned.
[4]
In the main the applicants seek for an order reconsidering and
varying the order dated
22 March 2022, in so far as applicants’
liability for the respondent’s damages in her personal capacity
is concerned.
THE
APPLICANTS' CASE
[5]
In their founding affidavit, the applicants state that they are
allowed to bring this
application by virtue of the provisions of Rule
42(1)(b), of the Uniform Rules of this Court
[1]
.
[6]
They further contend that at common law a judgment can be set aside
on the ground
of justus error. They contend that in exceptional
circumstances, the court has an inherent power to rescind orders on
that ground.
In exercising its discretion, the applicants argue, the
court is influenced by considerations of fairness and justice and
will
not be inclined to do so where undesirable consequences will
follow.
[7]
The applicants submit that there was a patent error when the order
dated 22 March
2022 was granted in that it was only intended to
settle the merits in respect of the negligence claim of S[...], the
child, and
not that of the plaintiff, the mother, which is incidental
to that of the child.
[8]
Accordingly, the applicants’ contention is that at the time the
merits were
settled on 22 March 2022, the respondent's claim had
already been extinguished by prescription, and although Rule 42 does
not empower
the court to grant leave to amend after judgment, they
argue that it has a discretion to vary an order if such variation is
purely
procedural or incidental and does not affect the final
judgement. In substantiation of this argument, the applicants submit
that
there was a patent error or omission when the order sought to be
impugned was granted in that only the claim of the child was intended
to be settled, and not that of the respondent in her personal
capacity which had already prescribed.
[9]
The applicants submit that when the child's claim was settled, by
means of the court
order dated 22 March 2022, the right to plead
prescription was not waived in respect of the respondent's personal
claim and there
was no intention on the part of the applicants to
settle that part of the prescribed claim, as it had already been
extinguished
by prescription.
[10]
Lastly, the applicants argue that in terms of
section 17(2)
of the
Prescription Act No. 68 of 1969
a party to litigation is entitled to
raise prescription at any stage of the proceedings. To substantiate,
they further argue that
from the clear provisions of
section 10(1)
of
the Prescription Act it is abundantly clear that a debt shall be
extinguished on the expiry of the period prescribed for the
prescription of a debt. In this regard, the applicants submit that
the application of the provisions of
section 17(1)
is procedural in
effect and yield to the invocation of
section 10(1)
of the Act.
[11]
In this regard, the applicants strongly contend that the respondent's
claim in her personal capacity
had prescribed, and it had already
prescribed when the order dated 22 March 2022 was granted and they
are entitled to raise the
special plea of prescription once the
application to rescind has been granted.
RESPONDENT'S
CASE.
[12]
In opposing the rescission application, in a nutshell, the respondent
strenuously contends that
the applicants have dismally failed to meet
the jurisdictional requirements of
Rule 42(1)(b)
in that there is no
ambiguity or patent error or omission in the order sought to be
rescinded. Also there is there is nothing therefrom
that demonstrates
that it does not reflect the intention of the parties. In any event
such ambiguity or patent error or omission,
if any, is not
attributable to the court.
[13]
The respondent acknowledges that the common law allows a party to
seek an order rescinding a
judgment or order on the ground of justus
error in rare and exceptional circumstances. However, she argues that
the applicants
have failed to demonstrate exceptional circumstances
that warrant a variation of the impugned order in the manner
contended for
by the applicants. The respondent is adamant that there
was no justus error in the negotiations leading up to the conclusion
of
the settlement agreement, which settlement agreement culminated in
the granting of the order sought to be rescinded by the applicants.
[14]
In addition, the respondent submits that the applicants filed three
pleas and in all of them
no special plea of prescription was raised.
Even if such failure to raise the special plea of prescription were
to be regarded
as regrettable human error or that the attorney and
counsel did not follow instructions, such is not the applicant's
case. Furthermore,
the respondent contends that the applicants were
legally represented at all times material hereto, in particular when
the compromise
agreement was entered into and when an order of the
court was granted. Even during the pre-trial conference held on 28
February
2023 the applicants never took issue with the validity of
the respondent’s claim lodged in both her personal and
representative
capacities.
[15]
The respondent strongly argues that the matter became
res
judicata
when it the court granted the
order dated 22 March 2022. Accordingly, the respondent disputes that
section 17(2)
of the
Prescription Act grants
the court a discretion
to allow prescription to be raised on a matter that is res judicata.
To further substantiate that, the respondent
contends that the
interpretation that applicants seek to impute to
section 17(2)
of the
Act is absurd and will lead to undesirable results.
[16]
What the applicants seek to do, the respondent contends, is to resile
from the compromise they
voluntarily entered into and by which they
are bound. They do that when such a compromise has already been made
an order of the
court and in that way, the issue of liability was not
only settled but also rendered
res judicata
.
THE
APPLICATION OF RULE 42(1)(b) OF THE UNIFORM RULES OF COURT AND/OR THE
COMMON LAW.
[17]
As already adumbrated, the applicants rely on the
provisions of Rule 42(1)(b) of the Uniform Rules of Court or the
common law in
their endeavor to rescind the court order dated 22
March 2022.
[18]
Rule 42(1)(b) of the Uniform Rules of Court empowers a court, in
addition to other power it has,
to rescind or vary an order or
judgment in which there is an ambiguity or patent error omission, but
only to the extent of such
ambiguity error or omission.
[19]
It is a well-established rule in our jurisprudence that once the
court has pronounced itself
by issuing an order or judgment it
becomes
functus
officio
and its authority regarding that matter comes to an end
[2]
.
[20]
The principle of finality of litigation dictates that the power of
the court should come to an
end as it is in the public interest that
litigation be brought to finality
[3]
.
[21]
Finality of judgments and orders is a fundamental principle of law
and our courts, recognizing
the importance of that principle, have
been consistent in upholding it. In this regard, the Supreme Court of
Appeal restated the
law in
Mraitis Investments (Pty) Ltd v
Montic Dairy (Pty) Ltd when Wallis JA
said:
“
A
judgment can be rescinded at the instance of an innocent party if it
were induced by fraud on the part of the successful litigant
or fraud
to which the successful party was party. As the cases show, it is
only where the fraud- usually in the form of perjured
evidence or
concealed documents- can be brought home to the successful party that
restitutio in integrum is granted and the judgment
is set aside. The
mere fact that a wrong judgment has be given based on perjured
evidence is not sufficient basis for setting the
judgment aside. That
is a clear indication that, once a judgment has been given, it is not
lightly set aside and De Villiers JA
said as much in Scheerhout,
namely that;
‘
Apart
from fraud the only other basis recognized in our case law as
empowering a court to set aside its own order is Justus error.
In
Childerley, where this was discussed in detail, De Villiers JP said
that ‘non-fraudulent misrepresentation is not a ground
for
setting aside a judgment' and that its relevance might be to explain
how an alleged error came about. Although a non-fraudulent
misrepresentation, if material, might provide a ground for avoiding a
contract, it does not provide a ground for rescission of
a judgment.
The scope for error as a ground for vitiating a contract is narrow
and the position is the same in regard to setting
aside a court
order. Cases of Justus error were said to be relatively rare and
exceptional'. Childerely was considered and discussed
by this court
in De Wet without any suggestion that the principles laid down there
were incorrect.
The
same issue arose indirectly before this court in Gollach &
Gomperts. I say indirectly because the case was not concerned
with a
judgment, but with avoidance of an agreement of compromise
(transactio) on the basis of non-disclosure. The judgment repays
careful consideration.
The
matter then before court was an action to set aside a judgment
delivered in a defended case. Concerning judgment entered by
consent,
the learned Judge-President accepted that they could, “under
certain circumstances" be set aside “on
ground of Justus
error". It appears to me that the transaction is most closely
equivalent to a consent judgment… Such
a judgment could be
successfully attacked on the very grounds which would justify
rescission of the agreement to consent judgment.
I am not aware of
any reason why Justus error should not be a good ground for setting
aside such a consent judgment, and therefore
also an agreement of
compromise, provided that such error vitiated true consent and did
not merely relate to motive or the merits
of a dispute which it was
the very purpose of the parties to compromise
[4]
'.
[22]
A rule of fundamental importance in our law is that a court order
must be effective and enforceable,
and it must be formulated in a
language that leaves no doubt as to what it requires to be done
[5]
.
The order must be in clear terms and also it must be readily
ascertainable from the language used
[6]
.
[23]
An ambiguity or patent error or omission , by definition, has been
described as an ambiguity
or an error or omission as a result of
which the judgment granted does not reflect the intention of the
judicial officer pronouncing
it
[7]
.
That means the ambiguous language or the patent error or the omission
must be attributable to the court itself
[8]
.
That means, in other words, the judgment or order must not reflect
the intention of the court, and that fact must be patent
[9]
.
[24]
The basic principles applicable to the interpretation of documents in
general are applicable
to construing a judgment or order
[10]
.
Those principles are applicable even to settlement orders
[11]
.
[25]
The court has, in general, a discretionary power to correct other
errors in its judgment or order,
but this should be done on rare and
exceptional circumstances
[12]
.
[26]
The sub-rule does not allow the court to revisit the whole of its
order or judgment and in this
regard its powers are limited only to
the removal of the ambiguity, error or omission concerned
[13]
.
[27]
It is trite that an order taken by agreement can be rescinded.
However, that can only be done
in a clear case where it is in the
interest of justice to do so, depending on the facts presented before
the court
[14]
.
[28]
Although the facts are distinguishable, Lowe J in
Mathimba v
Nonxuba
, in a matter where a legal practitioner had settled a
matter on behalf of a client and that order was sought to be
rescinded, said
the following:
“
I
can
think of no reason why it would be unconscionable for parties to
negotiate on the amount claimed, agree on the amount to be
paid, as
well as costs, and decide to exclude interest in the agreement. If,
during the negotiations, Mr. West had intended to
raise interest, he
would have done so and ensured that it formed part of the
agreement
[15]
”.
THE
SPECIAL PLEA OF PRESCRIPTION.
[29]
In terms of section17(2) of the
Prescription Act No. 68 of 1969
a
party may raise prescription in the relevant pleadings. However, the
court has the discretion to allow such a plea to be raised
at any
stage of the proceedings.
[30]
It is a well-established and
consistent procedure that prescription should be
raised by way of a
special plea. Makgoka J in
Living Hands v Ditz
stated
the position to be as follows:
“
That
prescription should be raised by way of a special plea, is time
honoured and has been followed by our courts for many decades
[16]
".
[31]
In
Huisman
v Lakie
the Court held that a plea of res judicata may be used when a dispute
has been terminated by a court order. In that matter the
court was
satisfied that the issue of prescription had already been decided and
it was the same issue that was raised in the special
plea. The court
concluded that the requirements for res judicata in the form of
estoppel had been met and further that the plea
of prescription was
dismissed
[17]
.
[32]
It is an entrenched principle of our law that a court will not
exercise its discretion in favor
of allowing an amendment to
introduce prescription in circumstances where to do so would cause
irreparable prejudice to the plaintiff
[18]
.
[33]
It is indisputable that the parties reached an agreement, and that
agreement was made an order
of the court. That consent order is dated
22 March 2022, and the relevant part reads as follows:-
“
(a).
The defendant is held fully liable to pay the plaintiff, in her
personal representative capacities, all proven or agreed damages
arising from the substandard care and negligent conduct of the
defendant's employees at Cecilia Makhiwane Hospital which resulted
in
S[...] B[...] being born on the 15 November 2012 suffering from
spastic quadriplegic cerebral palsy
…
[19]
”.
[34]
In my considered view it is clear from a reading of the first
paragraph of the order that the
parties settled the merits of the
claim the plaintiff instituted against the defendant in her personal
and representative capacities.
[35]
What is also glaring and apparent from the court order is that the
defendant was represented
by counsel and also an attorney of record
when the agreement to settle the matter was concluded and when the
order by consent was
granted. In addition, there is also an Internal
departmental legal advisor. That legal advisor, Mr. Matiwane, wrote a
letter dated
16 March 2022, which letter gave the Legal
Representatives authority and mandate to settle the claim “
i
n
order to save unnecessary experts and trial costs”
.
The basis upon which the applicants’ case is premised seems to
be that the order dated 22 March 2022 was only intended to
settle the
merits in so far as the child's claim is concerned. There was no
intention to settle the mother's claim, which is incidental
to that
of her child, which had already prescribed.
[36]
There is no explanation as to how the error came about or occurred.
No explanatory affidavit
has been filed by the applicants explaining
the error relied upon here to rescind an order taken by agreement.
Such an explanation
would have helped shed more light perhaps on the
fact that the legal representatives failed to follow clear and
specific instructions
from the client department when they agreed to
the settlement of the merits in respect of the mother. In fact, in
the replying
affidavit a letter dated 16 March 2022 authorizing the
settlement of the merits was attached and that letter was from the
applicant's
legal advisor. As already alluded to above, the letter
from the legal administration Officer is to the following effect:
“
(i)
we refer to the above-mentioned matter of Y[...] B[...] obo S[...]
B[...] // MEC HEALTH.
(ii) kindly be advised
that the HOD for Health has approved and gave instructions to concede
merits in this matter. We therefore
instruct your office to proceed
to liaise with plaintiff attorneys and concede merits in this matter
to save unnecessary experts
and trial costs.
(iii) kindly be
advised that the Eastern Cape Department of Health and the Eastern
Cape Office of the Premier have through a Memorandum
of Agreement
authorized us to issue these instructions with the Department of
Health remaining the institution liable for covering
all litigation
cos.
(iv)
trust that you will find the above in order”.
[37]
That
letter is clear evidence of the fact that the legal representatives
acted on the instructions of the applicants when they settled
the
matter and made the settlement agreement an order of court on 22
March 2022
[20]
. Furthermore,
there is nothing in that letter which suggests that only part of the
claim was to be settled. In other words, that
only the respondent’s
claim in her representative capacity was to be settled, and not the
one in her personal capacity, as
the applicants would have this court
believe.
[38]
To further reinforce the fact that there was no mistake or Justus
error when rbt the order
was granted on 22 march 2022, the
parties’ legal representatives prepared a statement of agreed
facts in terms of
Rule 33(1).
At paragraph 11 of the statement of the
agreed facts the parties record that “
furthermore, on the
said date (22 March 2022), the defendants formally conceded liability
to pay the plaintiff, in her personal
and representative capacities,
all of the Plaintiff’s proven or agreed damages arising from
the substandard care and negligent
conduct of the defendants’
employees at Cecilia Makiwane Hopital which resulted in S[...] being
born on 15 November 2012
suffering from spastic quadriplegic cerebral
palsy”.
That statement of agreed facts was signed by Ms U.
Ntwanambi, on behalf of the respondent’s attorney and by Ms T.
Yoba on
behalf of the applicants’ attorney. It was signed as
recently as the 15 of April 2024 and was served upon the respondent
on the same day at Shared Legal Services in King Williams Town.
[39]
Without an explanation from the legal representatives as to what
transpired in court when the
order by agreement was taken, this court
is left in the dark. That explanation is of crucial importance,
especially because the
first applicant was represented by both an
attorney and an advocate. Therefore, in my view, there was very
little room for mistakes
or errors. If there was such an error, it
should have been properly explained in affidavit. That has not been
done.
[40]
There is no allegation in the founding affidavit that the legal
representatives had no mandate
to settle the merits of the
respondent's claim. In any event, the letter dated 16 March 2022
gives them a clear mandate to settle.
It is therefore not the
applicants’ case that the legal representatives had no
authority to settle.
[41]
All that the applicants rely on is that there was no intention on
their part to settle the prescribed
mother's claim and they did not
waive the right to plead prescription. That averment is made in the
face of the indisputable and
common cause fact that the applicants
has never, during the course of the litigation between the parties,
raised prescription as
a defence. The respondent even goes to the
extent of contending vehemently that the applicants have had three
occasions to amend
their plea and have moreover never utilized any of
those opportunities to raise the defence of prescription.
[42]
Very strangely, the applicants have failed make reference to the
statement of the agreed facts
signed on 15 April 2024 and explain, in
relation thereto, their case and in particular when they realised the
mistake in the order
sought to be rescinded.
[43]
What this court has to grapple with, and answer is whether, in the
circumstances, taking into
account the considerations of fairness and
justice, it has to exercise its discretion in favour of granting the
rescission application
sought by the applicants. In circumstances
where the legal representatives had failed to explain whether they
had the mandate to
settle the claim on behalf of their client,
Jolwana J had this to say: “
Were
it to be accepted, it would make a dangerous and slippery precedent
which would make all the court orders which are taken by
consent
daily in our courts across the country by the litigants’ legal
representatives vulnerable. Such orders would clearly
be subject to
the whims of litigants who could change their minds if they decide to
do so or even change their legal representatives
to achieve the
desired outcome. On the applicant's approach courts would just have
to accept that. I do not think that that proposition
is sound nor is
it the correct legal position. It is contrary to our jurisprudence on
consent orders as I understand it
[21]
”
.
[44]
As is apparent from the founding papers, the applicant's case is
premised on the provisions of
Rule 42(1)(b).
There are certain
jurisdictional requirements that a party has to meet if she, he or it
is relying on the provisions of that Rule
for relief. One such
important requirement is that there must be an ambiguity or patent
error or omission that must be shown to
exist in the court order
dated 22 March 2022. The ambiguity or patent error or omission must
be that of the court. This was clearly
stated in
Mostert
v Old Mutual Life Assurance Co (SA) Ltd
that an ambiguity or patent error or omission is one as result of
which the judgment granted does not reflect the real intention
of the
judicial officer pronouncing it; in other words, the ambiguous
language or patent error or omission must be attributable
to the
court itself
[22]
”. I am
in full agreement with the sentiments expressed by the learned Judge
in this regard.
[45]
No doubt, from a reading of the sub-rule and the authorities, a party
is entitled to relief under
Rule 42(1)(b)
only if the ambiguity or
patent error or omission is attributable to the court itself. In the
instant matter the applicants’
state in the replying affidavit
that the settlement of the merits was authorized by the applicant's
legal advisor by means of a
letter dated 16 March 2022. Following
that authorization an agreement settling the matter was reached by
the parties, which agreement
resulted in the consent order dated 22
March 2022. There is no ambiguity or patent error or omission that
has been demonstrated
to exist in the court order sought to be
rescinded, which is attributable to the court. For that reason, I am
not persuaded that
the jurisdictional factors provided for in
Rule
42(1(b)
have been met or shown to exist.
[46]
The applicants also seek to rely on the common law to rescind the
impugned order Mr. Mapoma has
strenuously urged the court to develop
the common law taking into consideration that the proviso to
section
17(2)
of the
Prescription Act. The
section does give the court a
discretion to allow an amendment to introduce the special plea of
prescription
at
any stage of the proceedings
(emphasis
provided)
.
In
MEC
for Health, Gauteng Provincial Government v PN
the
apex court reaffirmed the principle that the High Courts have the
power to develop the common law where the issue of damages
has not
been finalized, amend his/her pleas, in circumstances where a proper
factual foundation exists thereof.
[23]
In terms of the common law the applicants were required to
demonstrate that the order was obtained as a result of fraud or
mistake.
None of that has been shown in the papers. Instead, the
order was granted by consent, consequent upon an agreement by the
parties.
That therefore means, in my respectful opinion, that no
proper case has been made in terms of the common law.
CONCLUSION.
[47]
If the rescission application were to be granted, by allowing the
applicants to amend their plea
to introduce the special plea of
prescription, in circumstances where the order was obtained by
consent of the parties and there
is no ambiguity or patent error or
omission attributable to the court that granted it on 22 March 2022,
it would result into an
anomaly - or absurdity.
[48]
Moreover it is in the public interest that litigation should be
brought to finality and the inherent
jurisdiction that the court has
must be exercised with due regard to that principle
[24]
.
If the rescission were to be granted that would indeed create a wrong
precedent in allowing a party to re-open its case and introduce
a
special plea that it never pleaded until the merits were settled by
an order taken by consent.
[49]
Furthermore, to allow the rescission in the present factual matrix,
by giving the applicants
an opportunity to introduce the special plea
of prescription, that would be prejudicial to the respondent and such
prejudice cannot
be compensated by an order of court. It will
therefore not be in the interests of justice to grant the rescission
order and allow
the proposed amendment. In any event a proper case
has not been made for the rescission of the order taken by
agreement.
[49]
In the circumstances I grant the following order:
1.
The application is dismissed with costs.
T.A. NKELE
ACTING JUDGE OF THE
HIGH COURT
Appearances:
Counsel
for the applicants:
Adv. S X Mapoma SC
Instructed
by:
State Attorney,
East London
Counsel
for the respondent:
Adv. Nabela
Instructed
by:
Msitshana Incorporated,
East London
Dates
heard:
17 October 2024
Date
delivered:
19 November 2024
[1]
Rule
42(1)(b)
provides that the court may “
mero
motu or upon the application of any party affected, rescind or vary
an order or judgment in which there is an ambiguity,
or patent error
or omission, but only to the extent of such ambiguity, error or
omission
".
[2]
See
Van Loggerenberg, Erasmus Superior Court Practice Vol 2 service
issue 18-page D1-561,
De
Villiers and Another v Boe Bank
LTD
2004 (3) SA 459
(SCA) at 562H – 563F,
Tahilram
v Trustees, Lukamber Trust
2022 (2) SA 436
(SCA) at para 19
[3]
See
Zondi
v MEC, Traditional and Local Government Affairs
2006 (3) SA 1
(CC) at para 28, Erasmus Superior Court Practice
D1-562, service issue 18 2022,
Zuma
v Secretary of the Judicial Commission of Inquiry into the
Allegations of State Capture, Corruption and Fraud in the Public
Sector Including Organs of State
2021 (11) BCLR 1263
(CC) paras 88 and 97
[4]
2017
(5) SA 508
(SCA) at pages 514, 515 & 516, Mangqobe judgment para
39.
[5]
Von
ABO v President of the Republic of South Africa
2009
(50 SA 345
(CC0 at 364D, Erasmus D1-570D,
Monteiro
v Diedericks
2021 (3) SA 482
(SCA) at paras 23 -24, Service Issue 20, 2022.
[6]
Eke
v Parsons
2016
(3) SA 37
(CC) at 65E-G,
Proxi
Smart Services (Pty0 Ltd v Law Society of South Africa
2018
(1) SA 644
(GP) at 655E-F,
Monterio
v Diedericks
2021 (3) SA 482
(SCA) at para 23-24.
[7]
Erasmus
Superior Court Practice page D1-570D.
[8]
Adonis
v Additional Magistrate, Bellvile
2007
(2) SA 147
9 (C) at 153G-I,
Mostert
NO v Old Mutual Life Assurance Co (SA) ltd
2002 (1) SA 82
(SCA) at 86C-D, Harms Civil Practice in the Superior
Courts LexisNexis issue 51 B-402 para B42.5
[9]
Adonis
v Additional Magistrate
,
Bellville
2007 (2) SA 147
(C) at para17.
[10]
Erasmus
Superior Court Practice D1-570E.
[11]
Eke
v Parsons
ibid
para 50A-C,
Moraitis
Investment s (Pty)Ltd v Montic Dairy (Pty) Ltd
2017 (5) SA 508
(SCA) at para 20.
[12]
Firestone
South Africa (Pty) Ltd v Genticuro
AG
1977 (4) SA 298
(A) at 308, Erasmus page D1- 575.
[13]
Erasmus ibid D1-576.
[14]
Mangqobe
and Others v Mangqobe NO
case
no.3027/2021 23 January 2024 para 39.
[15]
Mathimba and Others v Nonxuba and Others (2946/2017) [2018] ZAECGHC
85;
[2018] 4 All SA 719
(ECG);
2019 (1) SA 550
(ECG) (18 September
2018
[16]
2013
(2) SA 368
(GSJ) at 392A.
[17]
[2014]
2 All SA 1175
(ECG) at para 31, J Saner SC Prescription in South
African Law Issue 34 page 3-380.
[18]
Saner
SC Prescription in SA Law page 3-387.
[19]
court
order dated 22 March 2022 page 15-16 of the record, para 18 founding
affidavit page 9-10, para 53 answering affidavit page
38-39.
[20]
P
ara
34 page 106 of the record.
[21]
Mangqobe
judgment para 34.
[22]
2002
(1) SA 82
(SCA) at 86 C-D.
[23]
[2021]
ZACC 6
at para 26.
[24]
Zondi
v MEC, Traditional and Local Government Affairs and Other
2006
(3) SA 1
(CC) at para 28, J.A.N v N.C.N (2283/2023) [2022] ZAEMKHC
14 (17 May 2022) at para 22.