THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1465/2024
In the matter between:
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES FIRST APPELLANT
NATIONAL COMMISSIONER OF
CORRECTIONAL SERVICES SECOND APPELLANT
REGIONAL COMMISSIONER OF
CORRECTIONAL SERVICES THIRD APPELLANT
and
NKOSANA THOMAS LESO RESPONDENT
Neutral citation: Minister of Justice and Correctional Services and Others v Leso
(1465/2024) [2026] ZASCA 64 (05 May 2026)
Coram: KGOELE and KEIGHTLEY JJA and NORMAN AJA
Heard: 06 March 2026
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Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website, and release to SAFLII. The date and time for hand down is deemed to be
05 May 2026 at 11h00.
Summary: Law of Delict – Correctional Services Act 111 of 1998 – s 70 (2)(b) –
damages claim arising out of unlawful detention – issue estoppel – whether the
principle was applied correctly – issue estoppel not justified – issues remained alive
for determination by trial court – no justification for remittal to the high court for
adjudication of the merits and quantum – claim prescribed.
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ORDER
On appeal from: Gauteng Division of the High Court, Pretoria (Janse van
Nieuwenhuizen J, sitting as court of first instance):
1 The appeal is upheld with costs. Such costs to include the costs occasioned by
the employment of two counsel where so applicable.
2 The order of the trial court is set aside and is substituted by the following
order:
‘The plaintiff’s claim is dismissed with costs.’
JUDGMENT
Kgoele JA (Keightley JA and Norman AJA concurring)
[1] Mr Nkosana Thomas Leso, the respondent, was convicted of attempted rape,
attempted murder, robbery with aggravating circumstances, and housebreaking by
the Regional Court in Pretoria. He was sentenced to 28 years’ imprisonment on
29 April 2002 . His sentence will expire in 2029. The respondent was one of the
parolees who participated in the Correctional Services Electronic Monitoring Pilot
Project, a form of monitoring of persons who are subject to community corrections
in terms of s 68 of the Correctional Services Act, 111 of 1998 (the CSA), as
amended, read with regulation 28 of the CSA Regulations.1
1 As published in Government Notice R914 in Government Gazette 26626 of 30 July 2004.
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[2] The appeal stems from a civil claim instituted by the respondent in the
Gauteng Division of the High Court, Pretoria (the high court) against the appellants.
In his claim, the respondent sought damages for his unlawful detention by employees
of the Minister of Justice and Correctional Services (the first appellant). The high
court ruled in his favour and awarded R1 million as compensation for the
aforementioned damages. The appeal is with leave of this Court.
[3] The facts underlying the claim can be briefly summari sed as follows: The
respondent commenced serving his sentence on 29 April 2002, the date of his
sentencing. He was subsequently granted parole by the Correctional Supervision and
Parole Board (the Parole Board) on 28 August 2013. His parole conditions required,
amongst others, that he be tagged with an electronic monitoring device, allowing the
Department of Correctional Services (the department) to track his movements. The
electronic monitoring device consisted of two components: an anklet permanently
attached to his ankle and a Global Positioning System (GPS) receiver.
[4] On 27 June 2014, he lost his GPS receiver and reported it to the department.
Mr Sefako Sydney Magaga, the head of Community Correction, immediately issued
a detention warrant under s 70 of the CSA and the respondent was arrested and
detained on the same day. The details of how the respondent lost the GPS receiver
are not necessary since the lawfulness of the arrest warrant was not challenged.
[5] After his arrest, the respondent was detained at Baviaanspoort Correctional
Centre while an investigation into the missing GPS receiver was conducted. He was
not brought before a court within 48 hours. In the meantime , the Correctional
Supervision Committee (the committee) recommended to the Parole Board that his
parole be revo ked, which recommendation was approved and implemented by the
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Parole Board on 6 October 2014 . The respondent’s continued detention after the
lapse of 48 hours from the time of his arrest on 27 June 2014 until his release,
because of the department’s failure to bring him before a court, are the bone of
contention in this appeal.
[6] Due to the respondent’s parole revocation, he was expected to serve the rest
of his sentence in prison. After serving two years, the respondent filed an urgent
application (the application) on 25 May 2016 seeking a declaration that his detention
from 27 June 2014 was unlawful and requesting his release. The application was
struck from the roll for want of urgency . On 31 October 2016, the respondent was
considered for parole placement for the second time and subsequently released.
[7] The merits of the application served before Mabuse J on 14 November 2016.
Mabuse J only delivered his judgment on 28 September 2017, declaring the
detention, which exceeded 48 hours after his initial arrest on 27 June 2014, unlawful.
Leave to appeal against the said judgment, including a petition to this Court were
unsuccessful. The res pondent then instituted a civil action in the high court for
damages arising from his detention which, he contended, was wrongful.
[8] The appellants opposed the action, denying that the detention was wrongful .
They also raised a preliminary issue of prescription. The respondent disputed the
prescription claim. He also invoked the defence of res judicata in the form of issue
estoppel, arguing that Mabuse J had already decided the unlawfulness of the
respondent’s detention. He contended that this finding was binding on the appellants,
and they could not deny that the respondent’s detention was unlawful. Consequently,
averred the respondent, the appellants had no defence to the merits of his claim.
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[9] The matter came before Janse van Nieuwenhuizen J (the trial court), who
upheld the issue estoppel defence and then directed that the proceedings continue
only for the purpose of quantifying the claim. However, the trial court upheld the
appellants’ prescription point and ruled that the claim for damages for the period
from 27 June 2014 to 1 November 2014 had become prescribed. It then granted
damages in favour of the respondent in the amount of R1 million for the remaining
period up until he was rel eased. I pause to note that the respondent’s claim was
initially made up of two parts. Claim 1 sought damages for his unlawful detention
from 48 hours after his arrest to his release. Claim 2 was for patrimonial damages in
the form of his loss of income arising from his arrest and detention. The respondent
abandoned the second claim during trial. Thus, only claim 1 is the subject of this
appeal.
[10] Aggrieved by th e order, the appellants launched this appeal. The appellants
contend that the trial court’s conclusion that Mabuse J determined the merits of the
civil claim was wrong, including the fact that the application before Mabuse J’s
judgment involved the same issues of law and fact that would arise in the main
action. Therefore, the argument continued, the trial court failed to sufficiently
interrogate the issues Mabuse J dealt with and, as a result, incorrectly applied the
principle of issue estoppel.
[11] The issues before this Court, therefore, are whether the trial court was correct
in applying the principle of issue estoppel in favour of the respondent and,
consequently, proceeding on the basis that the only issue remaining for consideration
in the civil action wa s that of quantum. If not, whether this Court should remit the
matter back to the high court to determine the merits of the matter.
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The law
[12] The matter before Mabuse J was an application for a declaration of
unlawfulness and a remedy. It was purely based on s 35(2)( d) of the Constitution.
Section 35(2)(d) of the Constitution provides that:
‘Everyone who is detained, including every sentenced prisoner, had the right-
. . . .
(d) to challenge the lawfulness of the detention in person before a court and, if the detention is
unlawful, to be released.’
[13] It is not in dispute that the respondent was still a sentenced parolee when he
was arrested on 2 7 June 2014, on the strength of a warrant of arrest and detention
issued by the first appellant’s employees. It is also common cause that the said
warrant of arrest and detention was issued in terms of s 70 of the CSA. Section
70(1)(a)(iii) provides as follows:
‘(1) If the National Commissioner is satisfied that a person subject to community corrections has
failed to comply with any aspect of the conditions imposed on him or her, or any duty placed upon
him or her in terms of any section of this Chapter, the National Commissioner-
(a) may, depending on the nature and seriousness of the non-compliance-
. . . .
(iii) issue a warrant for the arrest of such person.’
[14] Section 70(2)(b) of the CSA provides that:
‘A person detained in terms of paragraph (a) must be brought before a court within 48 hours after
arrest, which court must make an order as to the further detention and referral of the person to the
authority responsible to deal with the matter.’
[15] Therefore, an important aspect of the unlawfulness of his detention lay in that
he was not brought before court within 48 hours of his arrest as enjoined by
s 70(2)(b) of the CSA. Accordingly, the main issue before Mabuse J was that having
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been lawfully arrested in terms of s 70(1) (a)(iii) of the CSA and properly detained
upon his arrest in terms of the said section, his further detention in excess of 48 hours
without being brought before the court was unlawful.
Issue estoppel
[16] As indicated earlier, the main issue in this appeal is whether the trial court
correctly applied the principle of issue estoppel. In support of the trial court’s order,
the respondent argued that he did not rely on the principles of issue estoppel as his
cause of action. Issue estoppel was raised only to bar or prevent the appellants from
denying that the respondent’s detention beyond 27 June 201 4 was unlawful.
According to the respondent, his claim was based on the actio iniuriarum, with the
result that once unlawful detention has been proved (or, as in this case, is the subject
of a final and binding finding in previous litigation), the appellants’ liability for
damages flowing from the deprivation of liberty is strict and arises a utomatically.
Thus, according to the respondent, the trial court was correct to direct the trial to
proceed only on the issue of quantum.
[17] In Prinsloo NO & Others v Goldex 15 (Pty) Ltd & Another,2 Brand JA
explained the principle as follows:
‘In our common law the requirements for res iudicata are threefold: (a) same parties, (b) same
cause of action, (c) same relief. The recognition of what has become known as issue estoppel did
not dispense with this threefold requirement. But o ur courts have come to realise that rigid
adherence to the requirements referred to in (b) and (c) may result in defeating the whole purpose
of res iudicata. That purpose, so it has been stated, is to prevent the repetition of law suits between
the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of
conflicting decisions by different courts on the same issue (see eg Evins v Shield Insurance Co Ltd
1980 (2) SA 815 (A) a t 835G). Issue estoppel therefore allows a court to dispense with the two
2 Prinsloo NO & Others v Goldex 15 (Pty) Ltd and Another [2012] ZASCA 28; 2014 (5) SA 297 (SCA) (Prinsloo).
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requirements of same cause of action and same relief, where the same issue has been finally
decided in previous litigation between the same parties.’3
[18] In Democratic Alliance v Brummer4 this Court, dealing with the principle of
issue estoppel, held:
‘The first question is to determine whether, as a matter of fact, the same issue of fact or law which
was determined by the judgment of the previous court is before another court for determination.
This is so because if the same issue ( eadem quaestio) was not determined by the earlier court, an
essential requirement for a plea of res judicata in the form of issue estoppel is not met. There is
then no scope for upholding the plea. It does not, however, necessarily follow, that once the inquiry
establishes that the same issue was determined, the plea must be upheld. That is so because the
court considering the plea of issue estoppel is, in every case, concerned with a relaxation of the
requirements of res j udicata. It must therefore, with reference to the facts of the case and
considerations of fairness and equity, decide whether in that case, the defence should be upheld.5
[19] The Court further held:
‘Where the judgment does not deal expressly with an issue of fact or law said to have been
determined by it, the judgment and order must be considered against the background of the case
as presented to the court and in the light of the import and effect of the order. Careful attention
must be paid to what the court was called upon to determine and what must necessarily have been
determined, in order to come to the result pronounced by the court. The exercise is not a mere
mechanical comparison of what the two cases were about and what the court stated as its reasons
for the order made. In Boshoff, for instance, the plaintiff had sued for damages arising from an
unlawful cancellation of a lease and ejectment. The defendant raised a plea of res judicata on the
basis that the defendant had, in a prior action, obtained a judgment for ejectment. The prior order
was obtained by default judgment. The court found that an order for ejectment could not have been
3 Ibid para 23. See also the comments made by Botha JA in Kommissaris van Binneladse Inkomste v Absa Bank Bpk
1995 (1) SA 653 (A) at 676B-E, referred to in para 22 of Prinsloo.
4Democratic Alliance v Brummer (793/2021) [2022] ZASCA 151 (3 November 2022).
5 Ibid para 13.
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granted unless the court had found that the cancellation of the lease was lawful. The order that was
granted was read against the backdrop of the case as pleaded.’6
[20] The upshot of all the authorities quoted above, which is trite, is that, although
both the doctrine of res judicata and issue estoppel aim to promote finality and
judicial efficiency, res judicata in the form of issue estoppel has a broader
application or wider reach. It may prevent a party from re-litigating an issue in
subsequent proceedings even if the cause of action is different. Secondly, whilst res
judicata applies to the same cause of action, issue estoppel applies directly to a
particular issue within a claim , regardless of whether the cause of action differs.
Issue estoppel therefore prevents a party from asserting something contrary to what
was previously decided by a court on the same issue. It is therefore a defence derived
from the principle of res judicata that can be raised when some issue has al ready
been adjudicated.
[21] The difference between the two was aptly summarised in Gold Circle (Pty)
Ltd v Maharaj,7 as follows:
‘It is trite that the expression res judicata means that the dispute raised for adjudication has already
been finally decided. In terms of the common-law, the three requisites of res judicata are: that the
dispute to be adjudicated relates to the same parties, for the same relief and in relation to the same
cause. With time, the common law requirements were relaxed, giving rise to the expression issue
estoppel, which describes instances where a party can successfully plead that the matter at issue
has already been finally decided even though the common law requirements of res judicata have
not all been met. The crux of the matter is whether the plea of res judicata in the form of issue
estoppel was correctly upheld in relation to the 2016 claim. This requires a brief consideration of
the applicable principles. In Prinsloo NO & others v Goldex 15 (Pty) Ltd & another , Brand JA
6 Para 15.
7 Gold Circle (Pty) Ltd v Maharaj [2019] ZASCA 93 (3 June 2019) para 19.
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gave a detailed exposition of the development of our law pertaining to res judicata. Any attempt
to do more than that in this judgment would be supererogatory.’8 (Citations omitted.)
[22] It is important to note at the outset that the respondent did not plead res
judicata before the trial court, but rather, issue estoppel. Therefore, a careful
examination of Mabuse J’s judgment and the order is required.
[23] Mabuse J granted an order that ‘[t]he detention of the applicant for a period
exceeding 48 hours after his initial arrest and detention on [27 June 2014] is hereby
declared to have been unlawful ’. Mabuse J also reasoned that ‘[t]he fact of the
unlawfulness of his detention lay in that he was not brought before Court within
48 hours of his arrest as enjoined by s 70(2)(b) of the CSA.’ He also qualified the
order he issued by stating ‘having been properly detained upon his arrest… , his
further detention in excess of 48 hours without being brought before the Court was
unlawful’.
[24] It is important to pre face the analysis of Mabuse J’s judgment with the
disclaimer that the correctness of the order of Mabuse J is not what this Court should
consider. The question is whether that finding was dispositive of the merits of the
respondent’s claim for damages, based on the actio iniuriarum, for his wrongful
detention.
[25] An analysis of Mabuse J’s judgment reveals that all that was required to be
determined was whether s 70(2) (b) applied to the respondent at all. The inquiry
rested on whether the failure to bring the respondent , a parolee, before the court
within 48 hours as required by s 70(2)(b) after his lawful arrest was lawful. This was
8 Ibid para 19.
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the only issue and nothing more as the failure was common cause. It appears, without
saying so, that the respondent, in his heads of argument, also perceives this issue as
part of or one of the issues to be determined in the respondent’s claim. This is borne
out by the averment made by the respondent as a reply to the appellants’ argument,
stating that:
‘… It [Mabuse J’s finding ] simply, and correctly , estopped the State from denying Mr Leso’s
detention beyond 27 June 2014 was unlawful. That is a component of Mr Leso’s claim, which once
established, as set out above, gave rise to a form of liability without fault on the part of the State….
.’ (Emphasis added).
[26] In my view, the only issue in respect of which issue estoppel may apply is the
interpretation by Mabuse J of s 70(2)(b) as placing a legal obligation on the appellant
to have brought the respondent to court within 48 hours. This is why the other prayer
sought before Mabuse J was to release the respondent, which prayer was not granted.
Obviously, the reason for that can be easily inferred from the common cause fact
that the respondent was already released on the second parole when Mabuse J’s order
was delivered. However, a claim for damages arising from an unlawful detention
has additional requirements that must be satisfied. A finding that the detention was
unlawful because it breached a statutory provision is not sufficient per se to invoke
liability.
[27] These additional requirements relevant to the respondent’s civil action for
damages that were never raised before, nor determined by, Mabuse J, stem from the
facts which are common cause in this matter. It is common cause that the respondent
launched his application on 25 May 2016, and Mabuse J’s order and judgment were
handed down on 18 September 2017. The respondent had by then already appeared
before the committee on 1 October 2014 , which recommended his parole, and the
Parole Board had by 6 October 2014 revoked the respondent’s parole placement.
13
What is clearly missing in Mabuse J’s judgment and order is a reference to this set
of facts. The question of whether they were considered remains unanswered before
us, and the record is not helpful in this regard, as it is conspicuously silent on this
aspect.
[28] The explanation for this must be that the scope of the inquiry before Mabuse
J was limited to the question only of whether s 70(2) (b) applied. The court in the
application was never called upon to , nor did it, consider whether the respondent’s
appearance before the parole board and its subsequent decision to revoke his parole
legitimised his continued detention . Nor did the court in the application consider
what effect these facts would have on any future claim for damages that the
respondent might institute. It did not do so because these were never issues that it
was required to consider and pronounce upon. What exacerbates the problem is that
Mabuse J’s ord er also notably lacks the specifics about the duration of the excess
period it declared unlawful – in particular, when it began and when it ended.
[29] In my view, the above are important issues relevant to the respondent’s claim
for damages. They remained live issues for consideration by the trial court. By this
assessment, this Court is not saying that Mabuse J’s order is wrong, but simply that
the appellant(s) are not debarred from disputing the merits of the respondent’s claim,
provided that it does not rely on the defence that s 70(2) (b) does not apply.
Consequently, the principle of issue estoppel, as correctly argued by the appellants,
was not correctly applied by the trial court.
[30] One further aspect pertains to the statement in the appellants’ argument
already referred to above, which describes the claimed damages as constitutional
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and grounded in strict liability. On this aspect, the Constitutional Court said the
following in De Klerk v Minister of Police:9
‘In cases like this, the liability of the police for detention post-court appearance should be
determined on an application of the principles of legal causation, having regard to the applicable
tests and policy considerations. This may include a consideration of whether the post-appearance
detention was lawful. It is these public policy considerations that will serve as a measure of control
to ensure that liability is not extended too far. The conduct of the police after an unlawful arrest,
especially if the police acted unlawfully after the unlawful arrest of the plaintiff, is to be evaluated
and considered in determining legal causation. In addition, every matter must be determined on
its own facts – there is no general rule that can be applied dogmatically in order to determine
liability.’10
[31] Taking a cue from the trite principles espo used above, it appears that the
public policy considerations relating to the evaluation of legal causation remained
an open issue that the trial court had to consider and determine before finding that a
case had been made out on the merits. This is another issue that was not raised
before, nor considered by Mabuse J. Once more, the question at this stage is not
whether the decision in De Kl erk is relevant or distinguishable. Instead, the
fundamental question is whether , in the application, Mabuse J was required to
address and did address all the issues that the trial court ordinarily would have to
determine before finding the appellant delictually liable. Further, whether there was
a final, definitive resolution regarding them. In other words, whether the same issues
before the trial court were finally disposed of in Mabuse J’s judgment.
[32] The conclusion I reach on the arguments regarding issue estoppel is that it
cannot be said that Mabuse J’s judgment disposed of all the issues relating to the
cannot be said that Mabuse J’s judgment disposed of all the issues relating to the
9 De Klerk v Minister of Police [2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA
585 (CC) (De Klerk).
10 Ibid para 63.
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merits of the respondent's claim for damages. Mabuse J’s declaration of
unlawfulness was limited in scope. For delictual liability to ensue, more was required
to be proved by the respondent . The elements of causation (factual and legal)
remained open, as did that of wrongfulness . Moreover , the period of unlawful
detention also remained open. In my view, the issue that Mabuse J dealt with was
inadequate to permit the trial court to apply the principles of issue estoppel to the
facts of this case and to proceed exclusively to the determination of the quantum of
damages.
[33] The trial court accordingly erred in upholding the plea of issue estoppel and
directing tha t the trial proceed only on the issue of quantum. The non -
pronouncement of the duration of the unlawful detention is key, as it will become
clearer below when this Court analyses a further fundamental difficulty in the
respondent’s case: the issue of prescription.
Remittal to the trial court
[34] The upshot of the conclusion that issue estoppel was not correctly applied is
a material misdirection by the trial court, which vitiates the proceedings before it.
The conclusion prompts a further consideration of whether it is in the interest s of
justice for this Court to assume the role of a court of first instance to deal with the
merits, or to refer the matter back to the trial court for further determination of the
remaining issues. No evidence was led on the merits before the trial court.
Ordinarily, this would weigh in favour of this Court remitting the matter back for a
full trial on the merits. However, the preliminary point of prescription, raised by the
appellants, which was considered by the trial court, and determined in the appellants’
favour, significantly weighs, more than any other factor, against sending the matter
back to the high court. I proceed to deal with the issue.
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[35] First, it is important to note that the trial court did not deal with the merits of
the claim at all. Instead, it focused on hearing evidence regarding quantum, and the
appellants closed their case without calling witnesses . It is prudent to address the
prescription issue because, besides being raised as a preliminary issue, it summarily
disposes of the appeal before us.
[36] The parties do not dispute that the respondent’s claim was brought on
31 October 2017, nor is there any dispute currently between the parties that the
extant portion of the claim relates to the period between 1 November 2014 and 31
October 2016, with the period from 27 June 2014 to 1 November 2014 having
prescribed. The respondent did not cross -appeal against the trial court’s upholding
of the appellants’ prescription claim.
[37] Section 75(2)(b) of the CSA deals with the cancellation of parole. Counsel for
the respondent, conceded that the department has the statutory power to revoke a
parolee’s parole. It is common cause that the respondent’s parole was revoked on
6 October 2014. Once his parole was revoked, he had to serve the remaining portion
of his sentence in custody. The revocation of the respondent’s parole is not impugned
in these proceedings.
[38] The trial court found that the period 27 June 2014 to 1 November 2014 had
prescribed. The consequences of revocation are that, by operation of law, the
offender must serve the remaining period of his s entence in custody. That was the
position until the respondent was again considered for parole and released on
31 October 2016. It follows that from 6 October 2014, the respondent was lawfully
detained. However, the respondent included the period from 6 October to the date of
17
his release in his claim. Because the trial court did not engage with the merits of the
matter, and hence with the actual period of the respondent’s unlawful detention, it
simply assumed that the period from 6 October 2014 to 31 October 2016 ought to
be included.
[39] With that period having prescribed in terms of the law, no liability could arise.
Additionally, since the parole revocation was not challenged, the respondent’s
detention from 6 October 2014 until his release on parole on 31 October 2016 was
lawful. In considering the prescribed period accurately calculated herein and the
lawful detention consequent to the parole revocation, it seems to me that any possible
claim that the respondent might have against the appe llants has prescribed. A
remittal for adjudication to the high court in these circumstances would be futile .
The proper order to make i s to uphold the appeal and to substitute the order of the
high court with one dismissing the respondent’s claim.
[40] There is no reason why costs should not follow the result.
[41] In the result, the following order is made:
1 The appeal is upheld with costs. Such costs to include costs occasioned by the
employment of two counsel where so applicable.
2 The order of the trial court is set aside and is substituted by the following
order:
‘The plaintiff’s claim is dismissed with costs.’
_______________________
A M KGOELE
JUDGE OF APPEAL
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Appearances
For the appellant: M S Phaswane (with M V Magagane)
Instructed by: State Attorney, Pretoria
State Attorney, Bloemfontein
For the respondents: S W Burger (with S Mohammed)
Instructed by: Bowman Gilfillan Inc., Pretoria
Honey Attorneys, Bloemfontein.