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2024
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[2024] ZAECQBHC 69
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Sternwood Products (Pty) Ltd and Others v CNR Prop (Pty) Ltd and Others (608/2023) [2024] ZAECQBHC 69 (15 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Reportable
CASE
NO: 608/2023
Matters heard on: 19
September 2024
Judgment
delivered on: 15 October 2024
In
the matter between:
STERNWOOD
PRODUCTS (PTY)LTD
First Applicant
AND
15 OTHERS
and
CNR
PROP (PTY)
LTD
First Respondent
AND 16 OTHERS
JUDGMENT
BRODY
AJ:
The
alleged nuisance
[1]
On the 10
th
of February 2023, and at Gqeberha, Mr Andrew
Jackson Stern (“Mr Stern”) deposed to an affidavit on
behalf of Sternwood
Products (Pty) Ltd (“Sternwood”) and
15 other applicants that conduct various businesses in Markman
Township, Gqeberha.
[2]
The businesses vary from a tannery, trading in petroleum products,
sale of fuel, recycling
metals, logistics, trading in meat products,
manufacturing precast concrete products, fuel distribution,
manufacturing heavy equipment,
engineering, and manufacturing
products for the auto industry.
[3]
All the businesses conduct business operations in Markman Township
and their locations
are spread out throughout the township.
[4]
Mr Stern explained that Sternwood processed and sold raw wood-based
panels, (“chipboard”).
He further alleged that he had
spent most of his working time at Sternwood’s premises in
Markman Township (“Markman”)
and was able to give ongoing
personal observation since 2021, of the circumstances in Markman,
caused by the alleged activities
of various “operators”
in Markman.
[5]
I do not intend dealing with each allegation made by Mr Stern and
will only highlight
those that are a cause of concern. He described
an enormous volume of heavy traffic in the form of articulated trucks
(“trucks”)
conveying manganese into, and out of Markman,
which he alleged drove too fast and caused a nuisance to pedestrians
and other traffic.
[6]
He further alleged that the infrastructure in the area to the
stormwater drainage
system, the roads, and the vergers had become
severely damaged. Electrical poles were allegedly damaged, fences had
been erected,
and traffic lights in the main road had been “smashed”
several times.
[7]
According to him, a channel which had been constructed to convey
stormwater from Markman
to the Swartskops river had become polluted
with manganese, and associated heavy metals, which then carried waste
into the Swartkops
river. This river, in turn, enters the sea at
Bluewater Bay, Gqeberha.
[8]
His further complaint was that the roads had become dangerous as a
result of their
degradation and the manganese dust and chunks of
manganese had become a danger. Motorists, allegedly, have chunks of
manganese
falling on their motor vehicles, causing serious damage,
and certain chunks are picked up by the wheels of vehicles, which are
then flung onto oncoming traffic. A pavement vendor was allegedly,
recently, killed in a collision by one of the trucks.
[9]
Operators are allegedly stockpiling manganese in the open, on bare
ground, without
covering the manganese. He further alleges that the
leaching of manganese occurred during rain and that the run-off is
shown to
contain heavy metals that contaminate the soil, and
groundwater. The general complaint was that the manganese,
stockpiled, was
not properly contained on the operator’s
properties. When there is wind, manganese dust allegedly blows off
the heaps of
manganese and into the surrounding areas.
[10]
This has allegedly resulted in the devaluation of property prices as
the area has become less
attractive to investors.
[11]
He also alleged that manganese dust was “toxic” and that
prolonged exposure thereto
posed a health risk for humans and for the
environment. Evidently this state of affairs has existed in Markman
for a number of
years. Reference was made to an environmental report
in which it is alleged that the industrial limit for manganese dust
fallout
is five times higher than the acceptable norm.
[12]
On behalf of the businesses, he alleged that the pollution was
entering the atmosphere in Markman
and this in turn entered persons’
eyes and is an irritant, which lodges in nostrils. He further alleged
that exposure to
manganese can cause a condition known as “manganism”
with symptoms similar to those of Parkinsons disease. Evidently
the
manganese also causes irritation to the lungs and may lead to
pneumonia, and also allergic dermatitis. The effect of manganese
for
human beings is allegedly cumulative and symptoms may only appear
after a lengthy period of exposure.
[13]
The environmental impact problems were allegedly reported to the
local municipality, and the
authorities, which resulted in visits to
the area by various representatives. Matters came to a head when
Carte Blanche led a story
on the environmental impact, on national
television, on the 23
rd
of August 2022.
[14]
Attached to the founding affidavit was a report by the local
municipality arising out of a meeting
held by the Human Settlement
Committee on the 3
rd
of August 2021, which described the
manganese as “noxious” due to the potential dust
pollution and impact on air quality.
Reference was made in that
report to the Port Elizabeth Zoning Scheme, as was relevant to
Markmans.
[15]
A further difficulty that Mr Stern described was the impact that the
dust allegedly has on water
storage in Gqeberha. In order to
alleviate the problems caused by the dire water shortage, one of the
businesses harvests rainwater
and has fourteen 10 000 litre
tanks. According to Mr Stern, the effect of the settling of manganese
dust on the roofs of the
various business premises, from which
rainwater is harvested, allegedly contaminated the water and filled
the tanks with “sludge”,
with the final effect that the
water could not be utilised.
[16]
Mr Stern also explained that approximately 700 solar panels are also
affected, reducing their
efficiency, due to the settling of manganese
dust upon them, and which requires the panels to be cleaned
regularly. This allegedly
results in materially lower production of
electricity by the panels.
[17]
In the founding affidavit, Mr Stern described CNR Prop (Pty) Limited
(“CNR”) and
seven other businesses that operated from
Markman, including, the Nelson Mandela Bay Municipality (“the
municipality”),
the Minister of Forestry, Fisheries and
Environmental Affairs (“MFF”), the Minister of Water and
Sanitation, the Minister
of Employment and Labour and an additional
six other businesses. All the businesses conduct their activities in
Markmans and are
involved in one way, or another, in stockpiling of
manganese. Some of the businesses, referred to by Mr Stern, are
landlords, whilst
others, are operators, and presumably tenants, in
Markmans.
[18]
Attached to Mr Stern’s founding affidavit were two diagrams
indicating the exact position
of the various businesses, that he
represented, and the exact positions of the various businesses that
were allegedly causing a
nuisance and the environmental impact on
Markmans, and the surrounding area.
[19]
A perusal of both diagrams clearly illustrates that the various
businesses are not concentrated
in one area and are spread out
throughout Markmans. The relevance of this will become apparent later
in this judgment.
[20]
Copies of reports were attached to the founding affidavit and I do
not intend dealing with all
the findings made by the experts. In the
test report of Enviro Quest, dated 15 May 2021, the allegation is
made that manganese
ore is transported from the Northern Cape to the
various businesses in Markmans, where it is stored in warehouses. It
is then collected
by local transport companies for export from
Markmans to the Port Elizabeth Port. The report also alleges the
following:
[20.1] Roads are
completely blocked due to trucks and haulers;
[20.2] Traffic
congestion in the roads make it difficult to access various premises;
[20.3] Trucks
speed, and are an accident risk;
[20.4] Trucks drive
across the edges of roads as they are too large;
[20.5] Trucks are
often overloaded, with no covers to prevent the manganese from
spilling over the sides onto the public road;
and
[20.6] There is
excessive manganese dust generation during the movement of trucks and
trailers.
[21]
A traffic count indicated that there were on average
800 manganese
carriers
that moved past the testing point per day. This is
allegedly a significant number of very heavy vehicles (40 tons)
utilising Chrysler
Street in Markman. This was not considered to be
normal industrial traffic.
[22]
In the same report the following is stated in regard to manganese
dust:
“
Manganese dust is
known to be toxic and prolonged exposure can cause health risk for
humans and threaten the environment.
[23]
Photographs were also utilised in the report and which illustrate
manganese air pollution by
the trucks. Other photos were taken of
open stormwater drains containing manganese rocks, and litter, and
which allegedly would
run to the Swartkops river and to the Algoa Bay
sea.
[24]
Another photograph was introduced which shows contaminated water from
the Motherwell canal into
the Swartkops river.
[25]
The risk to humans was summarised by Enviro Quest as follows:
·
“Excessive exposure to the dust can lead to manganism, also
known
as manganese poisoning, which has symptoms similar to
Parkinsons Disease, such as psychiatric and motor disturbances.
·
Exposure to high levels of manganese leads to hypermanganesaemia
(High
Mn levels in blood) and defect in its metabolism with its
accumulation in the liver and the basal ganglia is lethal.
·
Manganese intoxication has been described in children with liver and
nervous
system disorders.
·
In adults, with occasional oral intake and product contamination, the
element
can lead to brain accumulation and neuro toxicity.”
[26]
At the test site Enviro Quest stated the following:
“
Several workers at
ACI are working outside and less than 20m from the road.
·
Probability of exposure - high.
·
Consequence/severity of exposure – high (as seen from previous
slides)
·
Duration – vary according to the demand for Manganese, sporadic
can
be very high and very low
Overall risks of exposure
to Mn dust for outside workers are Significant – high”
[27]
Enviro Quest described the operational risk as follows:
“
Additional
expenses are incurred due to Mn dust settling onto the ACI premises:
·
Covering warm materials for the cover to prevent contamination from
Mn
dust.
·
Obtain a special cleaning chemical to clean the cement products –
this is an additional operations process specifically due to the Mn
dust settling onto products
·
Cleaning of offices, motorcars, equipment, etc. Everything get
covered
in dust and has to be cleaned on a regular basis just to be
covered again the following day.”
[28]
A further finding made by Enviro Quest is that the dust fall rate is
five times higher than the
industrial limit in Chrysler Street, and
in two other locations the dust fallout was more than twice the alert
level. According
to Enviro Quest this indicated that “immediate
action” was required.
[29]
Enviro quest also attached photographs indicating the visual impact
of the alleged nuisance from
building structures. These indicate
broken and damaged entrance walls, dilapidated fences, broken
electrical poles, dust accumulation,
litter, broken asbestos, and
contaminated soil and stormwater drains.
[30]
In Enviro Quest’s final conclusions and opinions, the opinion
was expressed that the area
was deteriorating rapidly and “the
picture is one of degradation and not repairing – not a
visually pleasing environment”.
[31]
Enviro Quest also gave an opinion in regard to the stormwater
pollution by stating
inter alia
the following:
·
“The stormwater runs along the
Markman channel and exits into
the Swartkops river, causing manganese and eye contamination with
long-term negative effects on
the eco system.
·
This is not a one-time occurrence, when
the road is being wetted or
when it rains. The Swartkops river is contaminated with manganese and
iron compounds.”
[32]
Armed with the expert opinions, Mr Stern, representing the various
businesses in Markman, initiated
motion proceedings against the
various respondents in case number 608/2023 seeking interchangeable
relief, which essentially relates
to activities taking place on the
premises. Certain of the respondents were cited as the owners of
properties at Markman whilst
others were cited as engaged in
procuring and trucking of manganese to and from various properties in
the area known as Wells Estate,
thereafter, stockpiling the manganese
on those properties.
[33]
In essence, the applicants’ main application is based on
nuisance and harm and in essence
allegedly constituting common law
nuisance, as well as an alleged breach of legislative and regulatory
provisions.
[34]
Before instituting the motion proceedings, the cited respondents were
put to terms by means of
unwritten demands in which the details of
their allegedly unlawful activities were set forth. The only response
received was on
behalf of one of the respondents, namely the seventh
respondent.
The
Motion Proceedings
[35]
The main application was brought in case number 608/2023 on the 10
th
of March 2023, and this was followed by various notices of opposition
and a notice to abide by the municipality.
[36]
Mr Willem Adrian Nel, (“Mr Nel”) deposed to an affidavit
on behalf of the first,
fifth and seventh respondents (“CNR”)
and confirmed that CNR operated on at least two of the properties
identified
by the applicants. Mr Nel made reference to the sixth
respondent, Blackmagic Logistics Solution (Pty) Ltd, (“BMLS”)
and alleged that the applicants were selective in seeking relief
against entities of equal standing in the matter.
[37]
Reference was also made to other respondents and the significant
amounts of manganese stockpiled
by them outdoors.
[38]
Mr Nel also queried why Tradekor was not cited as a respondent
“particularly in as much
as it is the largest operator, handles
the bulk of its manganese outdoors and as a matter of logic generates
dust as is complained
of and in respect of other operators handling
manganese are outdoors.”
[39]
Mr Nel also complained that no relief was sought against the Great
Adel Trust, despite its status
as an owner and that the choice of
respondents by the applicants was “random and inconsistent”
with the applicant’s
approach to the matter. He accused the
applicants of “favouritism”.
[40]
Mr Nel also complained that various of the photos had no bearing to
certain of the respondents
and, in essence, that the photographs were
misleading. He also alleged that the manganese handled by CNR was not
“waste”
as defined in the National Environment
Management: Waste Act, Act No 59 of 2008, as it is a mineral of major
value, destined for
export.
[41]
He also denied that there was any heavy vehicular traffic at erf 431
since approximately October
2022.
[42]
He alleged that there was “not a shred of evidence” that
CNR was responsible for
the alleged damage to infrastructure, “be
it damage to the property of the municipality, or private property”.
[43]
He alleged that the actual culprit in the “sad tale” is
the municipality. According
to him, the municipality had simply
abandoned its public duty to maintain its property, such as roads,
stormwater, infrastructure,
and other amenities in Markman. He
alleged that the municipality was guilty of gross dereliction of its
duty to the public to not
only maintain its own property, but also
its duty to maintain law and order, and good governance in its
jurisdiction.
[44]
Attached to Mr Nel’s affidavit was a daily traffic volumes
report, (“A”) which
indicated that the daily volume of
trucks in the area, from all sources, was approximately 1 090
trucks.
[45]
Mr Nel also attached a report from Airshed Planning Professionals
(“Airshed”), which
concluded and recommended the
following:
“
Whilst the
reported dust-filled levels are very high when compared with the NDCR
and Sands 1929: 2005, and supports the photographic
evidence
submitted as part of the affidavit, there are some uncertainties
regarding the application of the standard method required
for its
measurement as well as the accreditation status of the company that
performed the measurements.
Whilst the toxicity of
manganese and high exposure concentration levels has been
established, the statements in the affidavit regarding
the degree of
human health risk as a result of inhaling manganese or particles can
only be validated through the quantification
of the actual manganese
air concentrations in the study area using internationally accepted
measurement methods.
Corrosion is a complex
process during which several chemical mechanisms may take place and a
potential for manganese to enhance
the corrosion process requires the
knowledge of a corrosion specialist. However, in general, particles
deposited on a surface can
absorb acidic gasses “(EG, Sulfur
dioxide), thus serving as nucleation sites for these acidic gasses,
which may accelerate
physical and chemical degradation of material
services that normally occur in material are exposed to environmental
factors such
as wind, sun, temperature fluctuations, and moisture.”
[46]
Airshed gave a further report, and the following opinion was given:
“
The dust-fill
results contained in annexure “C3” do not include
analysis of dust-fill collected other than in the three
dust-fill
buckets along the boundary of Algoa Cement Industries and Chrysler
Street. Statement 48.13 points out that “everything
in the area
is covered with a layer of manganese dust”. No reports or
laboratory certificates were provided to confirm the
composition of
the dust layer.”
[47]
Mr Nel also attached various photographs to his answering affidavit
to illustrate that certain
of the road infrastructure was in order
and that a large volume of the trucks was from other sources, such as
shipping container
plastics.
[48]
A photograph, in particular, showed a stockpile of cement dust that
was on erf 462, (Zikhona
bricks) in Ranger Street. Photographs were
also introduced to show that a sprinkler system was utilised to
contain dust and that
other operators had stockpiles of manganese,
out in the open, and which were not covered in any way.
[49]
CNR’s answering affidavit essentially contradicted most of the
facts deposed to by Mr Stern
and the experts also took issue with the
opinions expressed by the applicants’ experts.
[50]
Mr Shabeer Ahmed Ismail Adam (“Mr Adam”) deposed to an
affidavit on behalf of the
second, third and fourth respondents
(“MAA”) and confirmed that MAA owned three erven in
Markman and is essentially
the landlord of the sixth respondent
(“BMLS”).
[51]
Mr Adam alleged that Environmental Management Programs (“EMP”)
had been prepared
on behalf of BMLS for the storage and handling of
manganese ore on each of the warehouse properties owned by MAA.
[52]
According to Mr Adam, EMP identified several potential impacts on
BMLS’ operations which
included
inter alia
:
[52.1] air quality,
transportation, storage and handling of manganese;
[52.2] traffic
congestion and road safety impacts;
[52.3] damage to
infrastructure;
[52.4] noise
pollution; and
[52.5] pollution of
nearby stormwater drainage systems.
[53]
According to Mr Adam BMLS had implemented and given undertakings for
mitigation/management measures
as required by the EMPs and had
employed a contractor to conduct ambient air monitoring on a monthly
basis, focusing particularly
on dust on MAA’s sites.
[54]
Mr Adam
inter alia
challenged the traffic volume analysis
conducted by the applicants and pointed out that this analysis was
undertaken twenty-seven
months before the application and, according
to him, the surveys were considerably outdated and of no real utility
at the time
of the application.
[55]
He further confirmed that MAA and BMLS had sought the municipality’s
approval for noxious
use authorisations and that the authorisations
were imminent. He too alleged that the manganese ore stockpiled by
BMLS did not
fall within the definition of “waste”.
[56]
Ms Monique Venter deposed to an affidavit on behalf of the sixth
respondent, BMLS, and described
herself as a “prescribed
officer” of BMLS.
[57]
In her affidavit she indicated that manganese ore was transported by
rail and delivered by freight
train to erf 595 in Studebaker Street,
Markman and that BMLS currently leased this erf from the
municipality. She also confirmed
that BMLS rented from MAA and this
was described as “the warehouse properties”.
[58]
She further confirmed that it was not disputed by BMLS that there are
presently problems in Markman
with regard to the conditions of the
roads and levels of air pollution, as a result of manganese ore,
however, contended that this
could not collectively be attributable
to all of the respondents cited, and in particular, BMLS. She alleged
that the applicants
should have been aware that this difficulty was
present prior to the launching of their application.
[59]
In regard to this issue she stated the following:
“
The causes of the
problems in Markman are many and varied and we also differed
depending on the location. The omnibus challenge
brought by business
owners located in divergent parts of Markman against three of the
companies transporting and storing manganese
in Markman was thus
never susceptible to find a solution on affidavit (or consequently in
an application), and should therefore
be dismissed for this reason
alone. This is even apart from the fact that the applicants have
relied on a series of stale surveys
which they must surely have known
do not reflect the current position with regard to BMLS’
premises, at least.”
[60]
She also alleged that the applicants had failed to set out in
sufficient detail how the practices
of BMLS had contributed to the
nuisance and there very possibly were other potential causes of the
environmental impacts.
[61]
She emphasised that the testing by the applicants had occurred only
in one street, namely Chrysler
Street, and that even in this street
the main cause of the dust would seem to be the road, whose tar
surface had essentially disappeared.
She alleged that another
significant contributor was the operations of Algoa Cement.
[62]
Attached to her affidavit was a report by Dr Kornelius, an expert in
chemical engineering, and
she emphasised the following parts of his
report:
·
Exceedances of the NDCR limit values for dust fallout occurring in
the Markman Industrial
township are largely the result of vehicle
movements rather than manganese loading in unloading operations. It
is unlikely that
the nuisance will be alleviated or resolved without
concerted efforts on traffic management, road cleaning and road
maintenance
and/or reconstruction, at least on the Markman roads that
carry transport traffic.
·
No inference can be drawn from the deposition values on the health
impact
of either the road dust or the dust from manganese operations.
Specific human exposure measurements will be required to resolve
this.”
[63]
She also made reference to Tradekor, which apparently has sizable
warehouses in Chevrolet Street,
and suggested that much of the
nuisance emanated from that company.
[64]
She too made reference to the EMPs and the approval that had been
sought from the municipality.
She further confirmed that BMLS was
undertaking the mitigation measures recommended in the EMPs. This
was, as summarised, by Mr
Adams.
[65]
Her criticism was also that Mr Stern, on behalf of the applicants,
also sought to give “expert”
evidence, which was
allegedly second-hand and thus hearsay.
[66]
She alleged that the traffic volume analysis was considerably
outdated, by twenty-seven months,
and of no use.
[67]
She also stated the following in regard to the applicants’
expert reports:
“
Not only are the
above reports appended as “C2” to “C7” out of
date, but they are also limited to one area
(Chrysler Street and,
more particularly, Algoa Cement properties on Chrysler Street, which
themselves contribute significantly
to dust in the area). They
therefore fail to demonstrate the current state of affairs alleged by
the applicants in respect of the
entirety of the Markman area.”
[68]
She also attached the EMPs to her affidavit which were extensive and
will not be traversed in
this judgment.
[69]
Mr Gerhard Roedolf Moolman (“Mr Moolman”) deposed to an
affidavit on behalf of the
eighth respondent (“MPG”).
[70]
His complaint was that the applicants’ reports made no
reference to MPG and that they were
“no more than a snapshot in
a defined area along Chrysler Street”. According to him, all
the tests were conducted and
observations were made near the premises
of Algoa Cement in Chrysler Street, Markman.
[71]
Mr Moolman too made reference to Tradekor and questioned why this
company had not been cited
as a party to the proceedings given their
activities in Markman. He attached a photograph of the Tradekor
premises to illustrate
that there were also difficulties with
stockpiling by Tradekor.
[72]
Mr Moolman queried why MPG was cited in the first place as no factual
information was given by
the applicants as to why MPG was the cause
of the nuisance. He admitted that MPG was engaged in the stockpiling
of manganese at
Wells Estate, however, alleged that the transport of
the manganese was undertaken by third parties.
[73]
Reference to Government Notice No 248 of 31 March 2010, was made,
where the Minister established
the list of activities as contemplated
in section 21(1) of NEMA: Air Quality Act 2004 where a maximum
storage weight of 100 000
tons was permitted, and allegedly,
that MPG held no more than 70 000 metric tons, and accordingly
did not conduct a listed
activity.
[74]
Mr Lucian Burger (“Mr Burger”) deposed to an affidavit
and attached a report by Airshed,
which was a repetition of the
earlier report finalised by Airshed.
[75]
Mr Jean Pierre du Preez deposed to an affidavit on behalf of MPG and
indicated
inter alia
that various measures had been taken by
MPG to reduce the level of dust from the manganese. An example given
was that Road Dust
Control 20, a bitumen-based product, was sprayed
on the manganese to prevent dust as this product “encapsulates
all loose
dust particles”, and prevents the dust from being
spread in Markman.
[76]
The municipality too had its turn in filing an affidavit, however,
this was done
in
the face of a Notice to Abide.
[77]
Dr Noxolo Nqwazi (“Dr Nqwazi”) stated
inter alia
the following:
“
I should further
point out that the municipality is considering instituting separate
proceedings against some or all of the relevant
respondents in this
application to ensure compliance by such relevant respondent with the
municipality’s by-laws and other
control measures. If
appropriate, and if such application is instituted, consideration
will be given to the consolidation of such
application with the
present proceedings.”
[78]
Dr Mzoxolo Patrick Nodwele (“Dr Nodwele”) on behalf of
the municipality also deposed
to an affidavit and the relevant
portions of his affidavit state the following:
“
5.
The further respondents cited in this application all operate with
less than 100 000
tons capacity. Their operations are dealt with
in terms of a different legislation being Regulation 39561 of 2015.
That Regulation
is promulgated in terms of the National Health Act. …
11.
Inevitably, and not long thereafter complaints were received from
members of the public
and businesses, particularly those businesses
operating in the Markman Industrial area…
19.
Certain of the entities are operating storage and handling facilities
and have applied for
appropriate licences. Such licences have not
been approved since the Public Health Directorate is of the view that
there is existing
non-compliance. I should also point out in this
regard that air sampling in the applicable areas has been undertaken
on numerous
occasions. Very often these samples reflect results which
succeed reasonable and appropriate levels. …
23.
Accordingly, and unless there is a significant improvement in the
present situation relating
to the transportation handling and storage
of manganese ore, it may well become necessary for the Municipality,
to the Public Health
Directorate, to institute separate legal
proceedings, in the High Court, to enforce the relevant regulatory
and statutory provisions
and to curb what is otherwise seen as a
serious, at least potentially, health risk.”
[79]
Mr Owetuita Pantshwa (“Mr Pantshwa”) on behalf of the
municipality also deposed to
an affidavit and the relevant portion of
his affidavit reads as follows:
“
14.
In this regard a number of firms of attorneys were instructed who, in
turn, instructed counsel to prepare
appropriate papers for interdict
proceedings. This occurred during or about 2022.”
[80]
There can be no doubt after perusal of the municipal affidavits that
the nuisance issue at Markman
has been a long outstanding issue that
has required intervention by legal practitioners, and which has not
been resolved.
[81]
On the 29
th
of October 2023 Mr Stern deposed to a replying
affidavit to MAA’s answering affidavit and in this affidavit he
stated
inter alia
that the reason Tradekor was not cited was
as a direct result of Dr Ndwele indicating in his affidavit that
Tradekor was lawfully
operating, and the clear implication of this
was that all the other operators, including BMLS, were conducting
various unlawful
activities.
[82]
With reference to the traffic volume he stated the following:
“
Accordingly, in
one month, no less than 13 140 trucks were moved in and out of
Markman. Over a year, this extrapulates
to 157 680 trips
by manganese trucks, either laden or empty. It must be assumed that
MAA is, indeed, entirely ignorant of
what is actually taking place on
its property.”
[83]
And further:
“
One
does not have to be an expert to discern what is taking place in
Markman; one only has to be a reasonably observant human being
who
can see clouds of manganese dust in the air, who can see manganese
dust settling on everything, who can see the roads and infrastructure
being broken up and can see literally thousands of heavily laden
trucks travelling into and out of Markman. That manganese dust
is
dangerous to human beings is clearly stated in all the EMPs and next
to the opposing affidavit deposed to on behalf of Blackmagic,
and it
is made clear by the report of Dr Ndwele being annexure “MPN1”
to the affidavit deposed to on behalf of the
municipality and in the
reports of Mr Burger.”
[84]
In the replying affidavit of BMLS’s answering affidavit, Mr
Stern
inter alia
stated the following:
“
It is denied that
the BMLS have ever been fully compliant with respect of any of the
properties which it has been engaged. As appears
from paragraph 120
of its affidavit he does not …… it does not have the
necessary health certificates to entitle
it to do so… the fact
that BMLS may have made efforts to procure the relevant approvals,
takes the matter no further.”
[85]
He went further to state the following:
“
In any event, even
if the piles of manganese were sprayed with water, once the paths are
agitated by means of front-end loaders
or other machines the effect
of spraying the manganese on the surface of the pile is entirely
negated and, as I saw on the occasion
referred tp above, clouds of
dust are generated.”
[86]
With reference to the EMPs, Mr Stern emphasised the following portion
of the EMPs:
“
1.
During operations, manganese will be moved to and from the property
and this could
result in dust pollution not only from the manganese
but from other dust materials disturbed by vehicles operating at the
facility.
The transportation, storage and handling of manganese ore
will increase the number of dust particles present in the air. These
particles, depending on their size, can travel significant distances
and result in pollution not only at the site, but also in the
surrounding areas. The accumulation of high levels of manganese
particulars in the air can cause detrimental health concerns to
humans, animals and ecological systems. The effect of dust will be
exacerbated during high wind conditions and by the accumulative
impact of similar facilities located in the area. (I am bound to
remark that the applicants could not have stated this more clearly
themselves).
2.
Traffic congestion and road safety impact associated with the
transportation
of manganese.
3.
Damage to infrastructure as a result of operations as well as heavy
trucks and
traffic.
4.
Pollution of nearby stormwater drainage systems.
5.
Solid waste, effluent and waste water pollution.
6.
Manganese dust is known to be toxic and the prolonged exposure can
cause health
risk for humans. Chronic over-exposure to manganese dust
at high levels may result in manganese poisoning. “Manganism”
is a progressively disabling brain disease which in its latest stages
resembles Parkinsons disease. The movement of trucks and
other
machinery during operations poses a potential risk to the health and
safety of people working or near the facility. The risk
of other
accidents as well as fires must be mitigated effectively.”
[87]
He also suggested that whatever BMLS was doing to negate the dust,
this was not successful, and
the dust volumes was still present and
posed a nuisance.
[88]
In regard to the suggestion that the shipping containers were the
real problem, he stated the
following:
“
BMLS alone, on its
own papers, is responsible for moving some 34 000 tons of
manganese in and out of Markman per week. Half
of the trucks arrive
full and weigh 34 tons plus the weight of the empty skips and the
weight of the trucks themselves. These must
impose a huge loan on the
road surface. By comparison, Milltrans transports empty shipping
containers. It certainly does not store
manganese on its property.”
[89]
He also emphasised that the pollution was occurring in the Swartkops
river, and as a consequence,
to the sea.
[90]
Various photographs were attached as further proof of his
allegations, and one particular photograph
“ASBM4”
indicates severe dust pollution on that particular day.
[91]
Mr Stern also deposed to a replying affidavit in reply to MPG’s
answering affidavit. In
this affidavit he dealt with the fact that
Algoa Cement dust was a completely different colour to manganese dust
and “there
can be no confusion about whether the circumstances
complained of are created by dust from Algoa Cement operations, or
manganese
dust caused by operations of those of the respondents who
were engaged with the trucking, storage and transhipment of
manganese.”
He emphasised that Ms Friend’s observations
dealt exclusively with manganese and not cement dust. In regard to
the volume
of trucks he stated the following:
“…
it can be
assumed that the manganese stored on each of the abovementioned
properties will be turned over twelve times a year requiring
some
147,504 (12, 292 x 12) truck trips to and from the properties each
year. Clearly, this is the cause of the deterioration of
Chrysler
Street and of the manganese pollution in the relevant area…”
[92]
Mr Stern also emphasised that Dr Burger did not emphatically state
that Ms Friends’ conclusions
were incorrect. He also alleged
that it was common cause between the parties that there was an
enormous volume of trucks, both
empty and laden, and all with heavy
loads in Markman.
[93]
With reference to the photographs, he also alleged that MPG was
clearly dumping and stockpiling
and working with manganese “out
in the open”.
[94]
The day before the argument of the matter, a supplementary affidavit
was served and filed on
behalf of the municipality, and after hearing
argument I ruled that this affidavit would not be accepted as there
was no application
for condonation and was not filed in terms of the
Rules of Court. In any event, the municipality had filed a Notice to
Abide, and
no explanation was given why additional affidavits were
now served and filed on behalf of the municipality, and at such a
late
stage.
[95]
By the time that heads of argument were filed, and having regard to
the various affidavits, it
was clear that the applicants sought to
refer their main application to trial and the central issue in
dispute was whether the
main application should be referred to trial
in view of the material disputes of fact that were raised by the
respondents which,
it was contended by the respondents, were
foreseeable from inception.
The
application for referral to trial
[96]
The applicants had brought an application in terms of rule 6(5)(e)
and 6(5)(g) and in Mr Stern’s
founding affidavit, for referral
to trial, he stated the following in regard to the foreseeable
argument:
“
6.
The circumstances complained about by the applicants are so
notorious, the causes are
so obvious, that they have existed for so
long and are so plain to see that the applicants have been taken by
surprise by the disputes
of fact which have arisen. These disputes
were not foreseeable by the applicants. None of the operators
responded to the letters
of demand directed to them in August 2022…
The only landlord which responded to the demand directed to it was
the eighth
respondent, MPG Trade, which did not deny that allegation
set forth in the demand… Then, as will appear from the
applicant’s
replying affidavits, in certain instances the
applicants have been able to show that the allegations made by the
landlord and operators
are false.”
[97]
BMLS in its opposing affidavit emphasised that “it was plainly
inappropriate and misconceived
for the applicants to have initiated
application proceedings in light of those foreseeable disputes of
fact, which were clearly
not capable of being resolved in the
applicant’s favour on motion. …”
[98]
BMLS alleged that it would suffer significant prejudice if the
applicants were allowed to change
course by referring the matter to
trial and there was no real prejudice to the applicants (other than
costs) if the application
was dismissed, with costs.
[99]
Ms Venter, on behalf of BMLS stated the following:
“…
.the
problems in Markman are many and varied and could also differ
depending on the location. An omnibus challenge brought by business
owners located in divergent parts of Markman against three of the
companies transporting and storage manganese in Markman was never
susceptible to a final resolution on affidavit (or consequently in an
application), as the applicants should have appreciated from
the
outset. This is even apart from the fact that the applicants have
relied on a series of stale surveys, which they must indeed
have
known do not reflect the current position with regard to BMLS’
premises, at least.”
[100]
BMLS, once again, made reference to Tradekor’s involvement and
suggested that the blame lay with this company
as well.
[101]
In regard to the applicant’s allegation that the letters of
demand were a decisive step, which triggered
the application, BMLS
alleged that they in fact had never received the letter of demand. In
any event, BMLS alleged that it was
apparent from the letters of
demand that the applicants had already decided to proceed with an
application, whatever the response
would have been from BMLS.
[102]
BMLS also alleged the following:
“
BMLS and the other
respondents who oppose the application will be required to spend
considerable time, resources and money in the
preparation of
answering papers. In BMLS’ case, those efforts included
arranging and attending consultations with experts
and legal
representatives and conducting site visits around Markman township.”
[103]
BMLS emphasised that a costs order would be fair, in the
circumstances, and dismissal of the application was the
only outcome.
The appropriateness of the papers in the matter serving as
pleadings in an action was also queried.
[104]
Mr Beyleveld SC acted on behalf of the applicants whilst advocate de
Koning SC acting on behalf of CNR. Mr Farlam
SC, with Mr Dhladhla
acted on behalf of BMLS. I am grateful to all counsel for the
comprehensive and full heads of argument that
were filed on behalf of
the various parties. I am also grateful to Mr Farlam for the bundle
of authorities that was carefully prepared
to assist this court in
dealing with the legal issues that arise.
Argument
[105]
I do not intend repeating all the argument, however, wish to
highlight certain of the points made by various counsel
on behalf of
their clients.
[106]
Mr Beyleveld SC argued that the discretion exercised by this court is
a true discretion and a wide discretion.
[1]
The
importance of the matter and the public interest, he argued, was
paramount to a decision whether the matter should be referred
to
trial, or not.
[107]
His further argument was that none of the properties utilised for
manganese activities had the necessary authority
from the
municipality and for that reason, the operations were unlawful. In
essence, their activities constituted common law nuisance
as well as
a breach of legislative and regulatory provisions. Mr Beyleveld SC’s
further argument was that the failure on
the part of the respondents
to deal with the letters of demand was decisive in the decision
whether there was an anticipated dispute
of fact, or not. Had the
respondents answered the letters of demand this would clearly, at the
outset, have indicated to the applicants
that there would be a
dispute of fact, or not.
[108]
Mr Beyleveld SC confirmed that the applicants had chosen to request
this court to order the matter to proceed
to trial and not for the
hearing of evidence on a limited specific issue. He argued that the
costs of the application should be
reserved, or that the costs should
be costs in the cause. His further argument was that where there were
foreseeable disputes and
a portion of the costs should be payable by
the applicants only.
[109]
Mr de Koning SC argued that the entire application should be
dismissed with costs given the prejudice that was
clearly present and
the substantial costs that had been incurred by CNR, and other
respondents.
[110]
Mr de Koning SC’s heads clearly tabulated the disputes, and I
am in agreement with him that there are numerous
disputes of fact
between the applicants and the respondents, including the experts.
[111]
Mr de Koning SC argued that the applicants elected to reply to the
answering affidavits, thereafter failing to
reply to each allegation
made, and this resulted in various defences being “unchallenged”.
[112]
In his view, the defences raised by certain of the respondents had
been “conclusively proved”.
[113]
Mr de Koning SC’s further argument was that the doors were not
closed to the applicants as they could proceed
to issue action
proceedings against the respondents, if so advised.
[114]
In his view the application by the applicants was an attempt to “kill
the industry” and which was
unsustainable. He contended for an
order that the application be dismissed with costs, such costs to be
on the scale as between
attorney and client.
[115]
Mr Farlam SC argued that the replying affidavit was very sparse, and
most allegations made were sweeping allegations
which were devoid of
any specific facts. In his view, the costs incurred in the
application were wasted and that motion proceedings
were prejudicial
to BMLS, and other respondents.
[116]
In regard to the issue of dust, Mr Farlam SC argued that Mr Stern’s
allegations were very vague and most
of the allegations emanated from
one test point, namely Chrysler Street, and not other areas of
Markmans.
[117]
Reference was made by Mr Farlam SC to various photographs to indicate
that BMLS were compliant with environmental
legislation and protocols
and that the allegations made by the applicants were simply wrong.
[118]
In fact, his further argument was that the disputes of fact were
myriad and most of the allegations made by the
applicants were
sweeping generalisations.
[119]
He argued that the tests of foreseeability of disputes was an
objective test, and one that a reasonable person
would have foreseen.
[120]
In regard to the letter of demand argument, raised by Mr Beyleveld
SC, he emphasised that it was BMLS’ case
that this letter was
never received by them and that failure to respond to the letters was
not in any event a consent to motion
proceedings.
[121]
Mr Farlam SC argued further that a dismissal of the application would
not prejudice the applicants as prescription
was not an issue and he
also argued that the expert reports utilised by the applicants were
useless in that they were so outdated.
[122]
Mr Farlam SC’s alternative argument, with reference to the
authorities handed in to this court, was that
if this court was
inclined to refer the matter to trial, costs orders could be granted,
in the discretion of this court. His main
argument, however, was that
the application should be dismissed, with costs.
[123]
In reply, Mr Beyleveld SC persisted with his argument that the matter
should be referred to trial and further
argued that the expert
reports utilised by the applicants can clearly be utilised as
evidence in a subsequent trial.
[124]
Mr Beyleveld SC also properly conceded that if this court was
inclined to refer the matter to trial, that a costs
order could be
granted against the applicants, however, this should be of a limited
nature.
The
issue of a referral to trial
[125]
It was common cause in this matter that the main application for
interdictory relief against the respondents,
designed to halt their
transportation, loading and stockpiling of manganese in Markman,
could not continue by way of application.
[126]
The applicants, and wisely so, brought an application in terms of the
Uniform Rule 6(5)(g), as read with 6(5)(e),
in which they seek to
refer the main application to trial.
[127]
The central issue in dispute before this court is whether the main
application should be referred to trial, in
view of the material
disputes of fact and whether these disputes were foreseeable from
inception. The issue of costs is accordingly
also relevant, and what
costs order should follow.
[128]
The respondents have all joined issue in arguing that the disputes of
fact were plainly apparent, and readily
foreseeable from the outset
of the matter, and that the applicants should have initiated
proceedings by way of action, and not
by way of motion. All
respondents, save for the municipality, have requested that the
application be dismissed, with costs, such
costs to include the costs
of two counsel.
[129]
The applicants are all businesses that have varying interests and
expertise.
[130]
A thread throughout all the affidavits, expert reports, EMPs and
photographs, produced in the main application
indicates an enormous
volume of heavy traffic, in the form of trucks, conveying manganese
into, and out of Markman. Clear evidence
of damage to infrastructure,
which includes
inter alia
, stormwater drainage systems, roads,
and verges was produced. This also included damage to electrical
poles, fences, and traffic
lights.
[131]
A further thread throughout all the affidavits, including those of
the respondents is that manganese does pollute
the environment at
Markman and this in turn is washed into the Swartkops river, and
thereafter, Bluewater Bay.
[132]
A perusal of all the affidavits also suggest that there was no
challenge to the allegation that manganese dust
is “toxic”
and that prolonged exposure thereto poses a health risk for humans,
and for the environment. This manganese
can cause a condition known
as “manganism” with symptoms similar to those of
Parkinsons disease, complications occur
also with lungs and allergic
dermatitis. What also appears to be common cause is that the effect
of manganese for human beings
is cumulative and symptoms may only
appear after a lengthy period of exposure. Although the problems in
Markmans was aired on Carte
Blache on the 23
rd
of August
2022, this does not take the matter any further, other than
indicating a National interest in the nuisance.
[133]
The municipality itself has documented the nuisance over a number of
years and itself describes the state of affairs
at Markmans as being
of serious environmental concern, with significant risks to humans.
[134]
There can also be no doubt that all parties accept that a large
volume of trucks operate in and out of Markmans,
ranging from 800 per
day to 1 090 trucks per day. This is clear from the traffic
volume reports, the EMP reports, and what
is stated by deponents in
the various affidavits.
[135]
What is at issue in the matter is who is responsible for the nuisance
and whether the actions of the cited respondents
will eventually give
rise to a final interdict, as requested by the applicants?
[136]
There can be no doubt, and it appeared to be common cause in
argument, that there are numerous disputes of fact
by the laypersons
that deposed to the various affidavits and also by the experts
utilised by the parties. Most of these disputes
related to the extent
of the nuisance, and who was liable for the nuisance.
[137]
I am in agreement with the respondents’ argument that most of
the testing is confined to Chrysler Street
and that some of the
allegations made by Mr Stern were sweeping allegations that did not
take into account location, or the fact
that Markmans is a large area
with businesses that have differing practices.
[138]
It is trite that when proceedings are initiated by way of notice of
motion and it transpires that there are numerous
disputes of fact,
which cannot be resolved on affidavit, this court has a wide
discretion to refer the matter to trial with appropriate
directions
as to further pleadings and costs.
[2]
[139]
The parties were also common cause that the disputes are of such a
nature that it cannot be satisfactorily determined
without the
advantages of a trial, where the credibility of witnesses, and the
observation of their demeanour, can be considered
by a trial
judge.
[3]
[140]
It was also common cause in this matter that the disputes raised by
the respondents are not inherently implausible
and capable of being
rejected out of hand.
[4]
[141]
Given the serious allegations of pollution, and adverse environmental
impacts, which are allegedly serious health
risks to persons in the
area, there can be no doubt that the dispute is an important one,
which is in the public interest.
[142]
Exercising the discretion which this court has, it is in the public
interest and in the interests of justice that
the disputes between
the parties be referred to trial for determination by a trial judge
in due course.
[143]
I am therefore not persuaded that the entire application should be
dismissed, with costs, given the various allegations
made, including
the contents of the various expert reports, the various annexures
utilised, as read with the
limited
admissions made by the
respondents, (together with their experts).
Costs
[144]
Herbstein and Van Winsen (fifth edition) at page 460 states the
following:
“
It does not follow
that the application will always be dismissed with costs in such a
case. There may still be circumstances that
could persuade a court
not to dismiss the application but to order the parties to trial
together with a suitable order as to costs.
Also, in a proper case
and where the dispute between the parties can be determined speedily,
it may even be proper to invoke the
provisions of the Rules of Court
as to the hearing of oral evidence. The wide ambit of the court’s
discretion is evident
from Rule 6(5)(g), according to which the Court
may dismiss the application and make such order as it seems meet with
the view
to ensuring a just and expeditious decision.
Thus, even when the
application is not dismissed, it is open to the court, by means of an
appropriate order as to costs, to penalise
an applicant to
deliberately initiate proceedings by way of application, knowing that
there must necessarily arise fundamental
disputes of fact for the
resolution of which action is the appropriate procedure.”
[5]
[145]
Further in Herbstein and Van Winsen, the following commentary is
made:
“
If the court finds
it necessary to send the matter to trial, it will have to determine
what should be done about the costs. When
the court is satisfied that
the matter was not one in which it was clear that motion proceedings
would be abortive, it will generally
order that the costs of the
application should be costs in the cause, or else that the costs
stand over for the determination at
the trial.
The test is not a
subjective one, ie whether the applicant realises that a dispute was
inevitable; rather, the enquiry is whether
the applicant ought
reasonably to have foreseen or anticipated that a material dispute of
fact would arise should application proceedings
be instituted.
If, therefore, the
applicant ought to have known that there would be a material dispute
of fact and that the application would be
abortive, he will be
ordered to pay the costs and they will not be made costs in the cause
of an action to be brought, even though
the notice of motion is
allowed to stand as the summons in any action that may be
brought.”
[6]
[146]
In Pressma Services (Pty) Ltd vs Schuttler and another Van Schalkwyk
(AJ as he then was) indicated that the issue
of costs was a separate
and substantial point which had to be decided by the court. In that
matter the court ordered the applicants
to pay 20% of the costs of
the day and the respondent 80% of the costs of the day.
[147]
I am in agreement with Mr Farlam SC that an omnibus challenge was
brought by the applicants located in divergent
parts of Markman
against various respondents that were transporting and storing
manganese in Markmans. The differentiating factors
are numerous,
namely, location, premises, operations and practices, and various
other possible perpetrators of the clear nuisance.
[148]
I am further in agreement that these differentiating factors would
have been obvious from before the initiation
of the application,
given the wide area, and the dispersed premises and that the
applicants should have known at the outset that
there was likely to
be various disputes of fact. Although various allegations made by Mr
Stern were particular allegations, based
on expert evidence, some
allegations were “blanket”, and “generalised”.
[149]
I am also mindful of the caution in the Mamadi and another vs Premier
of Limpopo Province and others 2023(6) BCLR
733(CC) judgment where
the Constitutional Court stated the following:
“
The purpose of the
court’s discretion under this rule to dismiss an application is
to discourage a litigant from using motion
proceedings when the court
will not be able to decide the dispute on the papers. This is a waste
of scarce judicial resources and
prejudicial to the respondent. An
applicant should not be able to use motion proceedings when the worst
outcome is confirmed to
a referral to oral evidence or trial. Rule
6(5)(g) manifests a power in courts, where motion proceedings have
been inappropriately
used in this way, to penalise a litigant through
dismissal without rendering a final decision. In short, therefore, a
dismissal
in terms of Rule 6(5)(g) serves to punish litigants for the
improper use of motion proceedings.”
[150]
I am also in agreement with Mr de Koning SC that the respondents have
expended considerable time, resource and
money in preparation of
their answering papers in the main application.
[151]
This court has a discretion in awarding costs, which must be
exercised judicially where the circumstances of the
case, the
weighing of the issues in he case, the conduct of the parties, and
any other circumstances are relevant.
[7]
What is required is a fair and just order, as between the parties.
[8]
[152]
I am also mindful of two basic principles in deciding on the issue of
costs, namely, that the issue of costs is
in the discretion of the
presiding judicial officer, and the second, that a successful party
should, as a general principle, have
their costs.
[153]
In deciding on the issue of costs, I take into account that the
parties are not acting strictly in their own interests,
however, in
the public interest. I emphasise that this matter involves important
issues that are in the public interest and that
will have
far-reaching consequences when the relief is finally granted in the
matter. There can be no doubt that the issues raised
by the
applicants were not frivolous, or vexatious, or in any other way
manifestly inappropriate.
[154]
Once the application for referral to trial was brought it must have
become apparent to the respondents that there
was a distinct
likelihood that the matter would be referred to trial, given the
importance of the matter and public interest issues
that arose in the
main application. In fairness to all the parties it is, in my
view, just and equitable that the applicants
pay the costs of the
main application, and the application to refer, on an unopposed
basis. The remaining costs to be reserved.
As the expert
reports may well be determined as relevant by a trial judge, having
regard to the ongoing nuisance, and the extent
thereof during the
trial, I am of the view that it is fair and equitable that the
qualifying expenses of the experts be reserved.
[155]
I therefore make the following order:
[a]
This matter is referred to trial.
[b]
The Notice of Motion, answering affidavits, and replying affidavit
are to stand as
a combined summons, pleas and replications
respectively.
[c]
The matter proceeds thereafter according to the Rules of Court, as a
defended trial;
[d]
The applicants are ordered, jointly and severally, to pay the first,
fifth, sixth,
and seventh respondents’ costs of the main
application on scale C as contemplated by Rule 69(7,) including the
costs of two
counsel, (where so engaged);
[e]
The applicants are ordered, jointly and severally, to pay the first,
fifth, sixth,
and seventh respondents’ costs of the application
in terms of rule 6(5)(e) and 6(5)(g) on an unopposed basis on scale C
as
contemplated by Rule 69(7), including the costs of two counsel
(when so engaged);
[f]
The costs of the qualifying fees of the experts (if any) in the main
application,
and the costs of opposing the application in terms of
rule
6(5)(e)
and 6(5)(g) are hereby reserved for determination by the trial court.
B.B.
BRODY
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
: Adv.
Beyleveld SC
Instructed
by
: BLC
Attorneys
4 Cape Road
GQEBERHA
(Ref.: Mr LT
Schoeman/mc/K53908)
Counsel
for the 1
st
, 5
th
& 7
th
Respondents: Adv. De
Koning SC
Instructed
by
: Zander
Slabbert Attorneys
c/o
Heine Ungerer Attorneys
25
Cape Road
GQEBERHA
(Ref.:
Mrs C Eddy)
Counsel
for the Second Respondent:
Adv. Farlam SC with Ad Dhladhla
Instructed
by
: Edward
Nathan Sonnenbergs Inc.
c/o
Strauss Daly Attorneys
1
st
Floor Strauss Daly Place
35
Pickering Street
GQEBERHA
(Ref.:
Mr Vian Tee)
[1]
Trencon Construction (Pty) Ltd vs Industrial Development Corporation
of South Africa Limited and another
[2]
Mervyn Dendy and Cheryl Loots Herbstein and Van Winsen, The Civil
Practice of the Superior Courts of South Africa Sixth Edition,
Volume 1 at 9 – 26A
3
De Mata vs Otto N.O. 1972(3) SA 858(A) at 865G
4
Els vs Weideman and others 2011(2) SA 126 (SCA) at [54]
[5]
Pressma Services (Pty) Ltd vs Schuttler 1990(2) SA 411 (c) at 419 –
420A
[6]
Van Aswegen vs Drotskie 1964(2) SA 391(o) at 395 C – D;
Rieseberg vs Rieseberg 1926(WLD) 59; Remley vs Lupton
1946 WLD 353
;
Watch Tower Bible and Tracks Society vs Chief Control Officer
1942
CPD 253
at 259
[7]
34. Maluleko vs Total SA (Pty) Ltd (2019/16965) [2023] ZAGPJHC 161,
at para [5]
[8]
Fripp vs Gibbon and Co 1913AD 354 at 363