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[2019] ZASCA 143
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NW Civil Contractors CC v Anton Ramaano Inc & Another (1024/2018, 1076/2018) [2019] ZASCA 143; 2020 (3) SA 241 (SCA) (14 October 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1024/2018
In the matter between:
NW CIVIL CONTRACTORS CC
APPELLANT
and
ANTON RAMAANO INC
FIRST RESPONDENT
SHERIFF THOHOYANDOU
SECOND RESPONDENT
and
Case No: 1076/2018
and in the matter
between:
NW CIVIL CONTRACTORS CC
APPELLANT
and
ANTON RAMAANO INC
FIRST
RESPONDENT
SHERIFF THOHOYANDOU
SECOND RESPONDENT
Neutral
citation:
NW
Civil Contractors CC
v
Anton Ramaano Inc & another
(1076/2018 and
1024/2018)
[2019] ZASCA 143
(14 October 2019)
Coram:
Ponnan, Swain,
Zondi and Mocumie JJA and Dolamo AJA
Heard:
03 September 2019
Delivered:
14 October 2019
Summary
:
Section 41(1) of the Attorneys Act 53 of 1979 –
attorney not in possession of a valid fidelity fund certificate
–
whether proceedings are void ab initio.
ORDER
On
appeal from:
Limpopo
Division of the High Court, Thohoyandou (Phatudi J sitting as court
of first instance):
1. Both
appeals are upheld with costs.
2. The
order of the court a quo in each instance is set aside and
substituted with
the following:
2.1 Under case no
1024/2018 –
‘
The application is dismissed with costs.’
2.2 Under case no
1076/2018 –
‘
(a) The application
succeeds with costs.
(b) The judgment of
Mushasha AJ granted by default on 11 August 2016 is rescinded.’
JUDGMENT
Ponnan
JA (Swain, Zondi and Mocumie JJA and Dolamo AJA concurring):
[1]
Two
appeals serve before us. Both, involving the same parties, are
against judgments of the
Limpopo
Division of the High Court, Thohoyandou (per
Phatudi
J)
.
The
first, under case number 1024/2018, is an appeal against a judgment
which set aside three orders previously granted in that
division, on
the basis that the attorney acting for the appellant in those matters
was not possessed of a fidelity fund certificate.
The second, under
case number 1076/2018, is an appeal against the dismissal of an
application by the appellant for the rescission
of a judgment,
granted by default against it by Mushasha AJ on 11 August 2016. Both
appeals are with the leave of this court.
[2]
The
litigation stems from a dispute between the parties over legal fees
that Anton Ramaano, who practises as an attorney under the
name and
style of Anton Ramaano Inc (the first respondent), maintains is owed
to him by the appellant, NW Civil Contractors CC.
The first
respondent had represented the appellant in litigation against a
local municipality. That matter was eventually settled
on 7 March
2015, when the municipality agreed to pay the appellant the sum of
R14 million. When the first respondent’s fees
for the rendition
of those services remained unpaid, it issued summons against the
appellant for payment of its taxed costs in
the sum of R1 305 459.06.
After service of the summons, the appellant entered an appearance to
defend the action, but
failed to timeously file its plea, with the
result that it was subsequently
ipso
facto
barred from pleading. On 11 August 2016 default judgment was granted
against the appellant. On 30 August 2016 the appellant applied
to
have the judgment rescinded on the basis that it did not owe any
money to the first respondent and that the latter’s bill
of
costs had been erroneously taxed in the absence of the appellant (the
rescission application).
[3]
Whilst the rescission application was pending, the parties became
embroiled in further
litigation in respect of a number of
interlocutory matters. First, on 23 August 2016 the Sheriff,
Thohoyandou (the second respondent)
had attached and removed some of
the appellant’s goods, pursuant to a writ of attachment, which
had been obtained by the
first respondent some four days earlier. The
appellant accordingly sought urgent interim relief pending
finalisation of the rescission
application (the first application).
The first application succeeded before Kganyago AJ on 22 September
2016. It was thus ordered
that, pending finalisation of the
rescission application: the execution of the default judgment
is suspended; the warrant
of execution against the property of the
appellant is stayed; and the goods of the appellant that had been
attached and removed
are forthwith to be returned to the appellant
(the first order). Second, in the meanwhile and on 14 September 2016,
the first respondent
brought an application for the recusal of
Kganyago AJ (the second application). This application was dismissed
(the second order).
Third, aggrieved at the failure of the recusal
application, the first respondent applied for leave to appeal the
dismissal of the
recusal application (the third application). This
application was also refused on 22 September 2016 (the third order).
[4]
On 28 September 2016 the first
respondent filed what was described as a
‘
Notice
of application for rescission and/or setting aside of
judgments/rulings in terms of the common law and/or appropriate
relief
in terms of section 38 and/or 173 of the Constitution of the
Republic of South Africa Act 108 of 1996’.
The
application read:
‘
Kindly
take notice that the 1
st
Respondent intends to make an application to the above Honourable
Court on a date and time to be allocated by the registrar for
an
order in the following terms:
1.1
That the following Court orders
granted by the Honourable Judge, Judge M.F Kganyago be rescinded
and/or set aside:
1.1.1
Court order granted on the 14
th
day of
September 2016 by Judge M.F Kganyago on the issue of recusal.
1.1.2
Court order granted on the 22
nd
day of
September 2016 on the 1
st
Respondent’s application
for leave to appeal and
1.1.3
Court order granted on the 22
nd
day of
September 2016 on the main application.
1.2
Alternatively, that the 1
st
Respondent be granted appropriately relief in terms of Section 38
and/or 173 of the Constitution of the Republic of South Africa
Act,
108 of 1996
1.3
That the costs of this application be
paid by any party which/who opposes same.’
[5]
The basis of the application was that, unbeknown to the parties and
the court, the
appellant’s attorney of record in all three
applications, Mr Vhutshilo Nange, was not possessed of a valid
fidelity fund
certificate. The first respondent thus contended that,
because Mr Nange did not have a valid certificate, the three orders
granted
were void ab initio or invalid. It was further contended that
each of the orders granted fell to be rescinded on the basis that,
inasmuch as Mr Nange had represented the appellant without being in
possession of such a certificate, they were obtained by fraud
or
misrepresentation.
[6]
It is difficult to discern precisely what case the appellant was
being called upon
to answer. It seems to me that what passed for the
notice of motion in the matter was so
vague
as to render any relief sought thereunder incompetent.
Insofar
as prayers 1.1.1 and 1.1.2 are concerned, it is unclear how the mere
setting aside of the second and third orders could
possibly advantage
the first respondent or advance its case. If those orders were simply
to be set aside, without more, would it
mean that Kganyago AJ was
obliged to re-adjudicate the second and third applications and rule
on them afresh? In the ordinary course,
what avails a litigant,
aggrieved by a dismissal of an application for leave to appeal by the
high court, is a petition to this
court in terms of
s 17(2)
(b)
of the
Superior Courts Act 10 of 2013
, not an application such as
this, the novelty of which appears to be surpassed only by its lack
of substance.
[7]
None of this, however, occasioned Phatudi J any difficulty. He did
not content himself
with merely setting aside the three orders
granted by Kganyago AJ. He went much further and granted an order in
these terms:
‘
20.1
The first respondent’s application is upheld
20.2 The
proceedings initiated and executed by Vhutshilo Licollin Nange who
practised or purported to have
practiced as such under the name and
style Vhutshilo Nange Attorney are declared null and void ab initio
and are set aside.
20.3 All
rulings and judgments handed down occasioned by the proceedings set
aside in the order 20.2 above
are declared null and void and set
aside.
20.4 The
applicant is ordered to pay the costs of this application including
all reserved costs.
20.5 The
applicant’s legal representatives of record including Counsel
are precluded from levying
and claiming any fees including Counsel
Fees incurred from 24 April 2018 from the applicant.’
[8]
Self-evidently, the relief granted by Phatudi J was never sought by
the first respondent.
Nor was it foreshadowed in the papers. What is
more, paragraph 20.2, facially at least, purports to extend to all
‘the proceedings
initiated and executed’ by Mr Nange, not
just those that served before Kganyago AJ. Precisely what those
proceedings are,
one does not know. The same holds true for paragraph
20.3. The declaratory orders granted by Phatudi J are far-reaching.
They purport
to put a red line, not just through all proceedings
‘initiated or executed’ by Mr Nange, but also, and more
importantly,
all ‘rulings and judgments’. Leaving aside
the terminological and conceptual difficulties that the employment of
words
‘initiated’ or ‘executed’ engender,
there remains the scope and extent of the order, namely when Mr Nange
‘practised’ or ‘purported to’ do so. Assuming
that the absence of a fidelity fund certificate, could legitimately
ground such far-reaching relief, the orders granted are in no ways
defined or limited by the absence of such a certificate.
Moreover,
interrogating the orders leads one ineluctably to the conclusion that
they are indeterminate, open ended and irredeemably
vague.
[1]
[9]
It seems to me that it would be well-nigh impossible for any litigant
to know with
any measure of confidence what the order obliges them to
do.
At
the risk of being in contempt of court, litigants are required to
comply with court orders and are thus obliged to know, with
clarity,
what is required of them.
[2]
It
follows that a litigant has to know where its obligations start and
end. It does seem to me to be difficult in the extreme for
anyone to
know with any measure of confidence precisely what steps are required
to be taken to comply with the order. How, it must
be asked, is the
order to be enforced and, by whom? Moreover, was it competent for a
single judge to appropriate to himself the
power to simply set aside
‘all rulings and judgments’ that had previously issued in
that court? What of other litigants
who may have been affected by
those orders? What of orders that may already have been
implemented? These questions are by
no means exhaustive. An array of
others spring to mind. In short, how does one in each instance
unscramble the egg?
[10]
An order or decision of a court binds all those to
whom it applies. All laws must be written in a clear
and
accessible manner.
Impermissibly
vague provisions violate the rule of law, which is a founding
principle of our Constitution. Orders of
court must comply with
this standard.
[3]
The orders of
Phatudi J fails this test and it
may
well be that for this reason alone they fall to be set aside.
[11]
The judgment of Phatudi J fails at yet a further leg. He reasoned:
‘
Seeing
that the attorney
in
casu
confirmed that he practiced as such without the fidelity fund
Certificate notwithstanding being barred as provided for in terms
of
section 41 (1) of the Attorneys’ Act, the attorney’s work
done in executing or purporting to execute the applicant’s
mandate, was rendered a nullity
ab
initio
.
Put differently, all that which was done or performed or executed or
purported to have been done or performed or executed by the
practitioner is in my view, a nullity. The notice of motion drawn and
signed by the attorney (Mr Nange) initiating the proceedings
forming
the subject matter including the ruling(s) and judgments handed down
must, in my view, be regarded as
pro
non scripto
.
In short, all that which the attorney did in the execution or
performance of the mandate in this matter must be regarded as not
having been done. This translates in the notice of motion, the
court’s ruling and judgments handed down pursuant thereto
being
set aside.’
[12]
It is not controversial in this case that in terms of s 41(1) of the
Attorneys Act 53 of 1979
(the Act):
‘
A
practitioner shall not practise or act as a practitioner on his [or
her] own account or in partnership unless he [or she] is in
possession of a fidelity fund certificate.’
What
is controversial is the consequence that flows from such
non-complaince. One of the earliest cases to consider the consequence
for the validity of an act in conflict with a statutory prohibition
was
Schierhout
v Minister of Justice
,
[4]
in
which Innes CJ said:
‘
It
is a fundamental principle of our law that a thing done contrary to
the direct prohibition of the law is void and of no effect.’
But
that will not always be so. Whether that is so, as later cases have
made clear, will depend upon a proper construction of the
legislation
in question.
[5]
[13]
As was explained by Solomon JA in
Standard
Bank v Estate Van Rhyn
:
[6]
'The
contention on behalf of the respondent is that when the Legislature
penalises an act it impliedly prohibits it, and that the
effect of
the prohibition is to render the [act] null and void, even if no
declaration of nullity is attached to the law. That,
as a general
proposition, may be accepted, but it is not a hard and fast rule
universally applicable. After all, what we have to
get at is the
intention of the Legislature, and, if we are satisfied in any case
that the Legislature did not intend to render
the [act] invalid, we
should not be justified in holding that it was.'
[7]
[14]
An
attorney is obliged to apply to the secretary of the relevant law
society for a fidelity fund certificate. If the secretary is
satisfied that the attorney has discharged his or her liabilities to
the society in respect of the contribution to be made, and
has
complied with any other lawful requirement of the society, a fidelity
fund certificate must be issued to the attorney concerned.
The
primary purpose of the fidelity fund is to reimburse clients of legal
practitioners who may suffer pecuniary loss due to the
theft of money
or property that they had entrusted to an attorney. That protection
encourages the public to use the services provided
by legal
practitioners with confidence.
Section
41(1) thus exists in the public interest. By prohibiting legal
practitioners from acting unless in possession of a valid
fidelity
fund certificate, the legislature seeks to ensure that an attorney is
not let loose on an unsuspecting member of the public.
[15]
Here,
the legislature expressly provides for two consequences for the
conduct complained of. First, s 41(2) provides that ‘[a]ny
practitioner who practices or acts in contravention of subsection 1
shall not be entitled to any fee, reward or disbursement in
respect
of anything done by him [or her] while so practicing or acting’.
And, second, s 83 (10) of the Act provides:
‘
Any
person who directly or indirectly purports to act as a practitioner
or to practice on his [or her] own account or in partnership
without
being in possession of a fidelity fund certificate, shall be guilty
of an offence and on conviction liable to a fine not
exceeding R2 000
or to imprisonment for a period not exceeding six months or to both
such fine and such imprisonment.’
[16]
It
is so that in
S
v Theledi
[8]
the court held that it was not an offence for a practitioner to
practice without a fidelity fund certificate. It concluded that
s
83(10) applies only to a non-practitioner. Roux J (Strydom
J
concurring)
reasoned:
‘
In
attempting to understand s 83(10) it is important to note the use
of the word “person” as opposed to
“practitioner” in one sentence. As I have pointed out
earlier “practitioner” is defined in s 1 of the Act.
A
“practitioner” is an “attorney”. An
“attorney” is “any person duly admitted to practise
as an attorney in any part of the Republic”. The “person”
referred to in s 83(10) is not a practitioner as defined
in the Act.
I hold this to be so because the following subsections of s
83, namely ss (1), (2), (3), (5), (6), (7) and (8),
all use the
word “person” to distinguish such a person from a
“practitioner” or an “attorney”.’
[9]
[17]
Theledi
has not escaped criticism. In
Law
Society of the Cape of Good Hope v Adams
,
[10]
Rogers J (Traverso DJP concurring) had this to say:
‘
This
conclusion appears to me, with the greatest of respect, to be
untenable. Section 83(10) plainly envisages that the persons
at whom
the prohibition is directed are persons who could notionally obtain a
fidelity fund certificate. Only an admitted practitioner
can obtain
such a certificate. The offence which the Act creates in respect of
non-practitioners who purport to practise as practitioners
(ie
without being an admitted attorney, notary or conveyancer) is
contained in s 83(1). If s 83(10) applied only to non-practitioners,
it would add nothing to section 83(1) and the reference therein to
the absence of a fidelity fund certificate would in addition
be
nonsensical. Roux J, with whom Strydom J concurred, acknowledged in
Theledi
that his interpretation was ‘absurd’. I see no reason to
adopt an interpretation which is both nugatory and absurd.
Although
it may have been more felicitous for s 83(10) to have referred to any
practitioner who acts as such, I see no particular
difficulty in
interpreting the words “any person who... purports to act as a
practitioner” as referring to a practitioner
practising without
a fidelity fund certificate, ie a practitioner who practices despite
the fact that in terms of s 41 he or she
may not lawfully do so. In a
number of subsequent cases, including cases decided by the Supreme
Court of Appeal, it has been taken
for granted that an attorney who
practices without a valid fidelity fund certificate contravenes
section 83 (10).’
[11]
[18]
Two of the cases referred to by Rogers J are
Summerley
v Law Society, Northern Provinces
[12]
and
Law
Society of the Northern Provinces v Mamatho
,
[13]
both of which are judgments of this court. In the former, Brand JA
stated:
‘
The appellant
was therefore practising for his own account without the required
certificate, which, in itself constituted a criminal
offence under s
83(10) of the Act
’
.
[14]
In the latter, Scott JA observed: ‘
An
audit certificate is a requirement for the issue of a fidelity fund
certificate. Practising without the latter is a criminal
offence and
a serious breach of an attorney’s duty’.
[15]
It follows that the correctness of
Theledi
cannot be endorsed.
[19]
The Act therefore prescribes two consequences for practicing without
a fidelity fund certificate,
namely, disentitlement to a fee for the
work done and a criminal conviction. It does not contemplate a
visitation of nullity. In
Oilwell
(Pty) Ltd v Protec International Ltd
,
[16]
Harms DP referred to J Voet
Commentarius
ad Pandectas
1.3.16
(Gane’s translation), who said this:
‘“
Things
done contrary to the laws are not
ipso
jure
null if the law is
content with enacting a penalty against transgressors.
.
. .
Nay indeed there is no lack of laws
which forbid, and yet do not invalidate things to the contrary, nor
impose any penalty upon
them. Hence came into vogue the famous maxim
‘Many things are forbidden in law to be done which yet when
done hold good.’”
Harms DP added:
‘
This
approach has been adopted in many judgments, more particularly in the
leading case of
Standard
Bank v Estate van Rhyn
1925
AD 266
at 274, where Solomon JA also referred to a further statement
by Voet (not as translated by Gane), that an important consideration
is whether “greater inconveniences and impropriety would result
from the rescission of what was done, than would follow the
act
itself done contrary to the law”. Voet concluded this section
with a reference to H De Groot (Grotius to some)
Inleidinge
1.2.2,
where the author, dealing with the same subject, said that things
done contrary to law are only void if the law so expresses
itself
(“de wet sulcks uytdruckt”), or if someone’s
ability to perform the act has been curtailed, or if the
deed “heeft
een gestadigde onbehoorlickheid” (translated by Gane via Voet,
as “if the act performed suffers from
some obvious and
ingrained disgrace”, but more correctly from some
“unremitting impropriety”).’
These
comments are particularly apposite to the present case. I find it
difficult to conceive that the Legislature had any intention
in
enacting s 41 other than that of punishing the attorney who did not
comply therewith.
I
have already alluded to the ‘greater inconvenience and
impropriety’ that would follow if the setting aside of the
orders of Kganyago AJ were allowed to stand. It does not seem to me
that, in addition, the legislature also intended that nullity
should
follow.
[20] It follows that the
judgment and order issued by Phatudi J under case number 1024/2018
cannot
stand. To uphold the approach of Phatudi J would undermine the
primary purpose of the Act, which is to protect the public and would
have grave consequences for the administration of justice, the rule
of law and legal certainty. It remains to be said that in this
matter
the Legal Practitioners Indemnity Insurance Fund NPC sought and,
despite opposition from the first respondent, obtained
the leave of
this court to be admitted as an amicus curiae. The amicus provides
professional indemnity insurance cover to all attorneys
practicing in
South Africa. It filed heads of argument and instructed counsel to
address us from the bar. In supporting the upholding
of the appeal,
it contended that Phatudi J had erred in the interpretation placed on
s 41(1) of the Act. The arguments advanced
were of great value in
deciding the matter. As no costs were sought by the amicus, nothing
further need be said about them.
[21] As to the second
appeal: A day after issuing the orders, the subject of the first
appeal, Phatudi
J heard the appellant’s application for
rescission of the default judgment granted by Mushasha AJ on 11
August 2016 and summarily
dismissed it. In his reasons, which were
handed down later, he held that the appellant had failed to give a
reasonable explanation
for the delay, did not advance any bona fide
defence, and that the defences raised enjoyed no prospects of
success. In entering
into the substantive merits of
the
rescission application,
Phatudi J did not
consider himself bound by his reasoning
under
case number 1024/2018, that ‘the attorney’s work done in
executing or purporting to execute the applicant’s
mandate, was
rendered a nullity
ab
initio
’ or
that
‘
[t]he
notice of motion drawn and signed by the attorney (Mr Nange)
initiating the proceedings . . . must . . . be regarded
as
pro
non scripto
’.
In this instance, also, Mr Nange had acted without a valid fidelity
fund certificate. Consistency dictated that the rescission
application ought to have suffered the same fate as the other
applications under case number 1024/2018. As with the other
applications,
this application ought to have been ‘
declared
null and void ab initio’. That aside, the conclusion of Phatudi
J that the rescission application fell to be dismissed
cannot be
supported.
[22] It is common cause
that the appellant’s plea was filed a day late. According to
the appellant,
the notice of bar in the matter was received by Ms E
Munzhedzi, a legal secretary. She, however, did not bring it to the
attention
of the appellant’s attorney but filed it away. When
the notice of bar was fortuitously discovered later, on that very day
the appellant’s attorney hastily drafted, served and filed a
plea. Thereafter, despite the appellant’s attorney indicating
that an application would be launched to uplift the bar, the first
respondent proceeded, despite opposition, to obtain a judgment
by
default. There is simply nothing to gainsay the version advanced by
the appellant, which must be accepted. The appellant denied
being
indebted to the first respondent. It asserted that it had an
agreement with Mr Anton Ramaano that, in return for the legal
services rendered, it would undertake certain construction work at
the first respondent’s property. In substantiation of
this
defence the appellant pointed out that the first respondent had never
rendered an invoice for legal fees since first being
instructed in
2009. The appellant further asserted that what was owed to it
exceeded the amount now claimed by the first respondent
as legal
fees. It follows on the evidence that not only was there no wilful
delay, but also that a bona fide defence had been established.
The
application for rescission ought therefore to have succeeded.
[23]
In the result:
1. Both
appeals are upheld with costs.
2. The
order of the court a quo in each instance is set aside and
substituted with
the following:
2.1 Under case no
1024/2018 –
‘
The application is dismissed with costs.’
2.2 Under case no
1076/2018 –
‘
(a) The application
succeeds with costs.
(b) The judgment of
Mushasha AJ granted by default on 11 August 2016 is rescinded.’
V M Ponnan
Judge of Appeal
APPEARANCES:
For
Appellant:
N Ferreira (with him A Armstrong)
Instructed
by:
M & M Maiwashe Attorneys,
Polokwane
Matsepes Inc., Bloemfontein
For
Respondent:
KM Moketedi (with him L Pasha)
Instructed by:
VM Netshipale Inc., Thohoyandou
Webbers, Bloemfontein
For the amicus curiae:
E Botha (with him T Mogale)
Instructed by:
Gildenhuys Malatji Attorneys
Honey Attorneys, Bloemfontein
[1]
Minister of Water and Environmental Affairs v Kloof Conservancy
[2015] ZASCA 177
;
[2016] 1 All SA 676
(SCA) paras 13 and 14 and the
cases there cited.
[2]
Minister of Home Affairs & others v
Scalabrini Centre, Cape Town
&
others
[2013] ZASCA 134
;
2013
(6) SA 421
(SCA) para 77.
[3]
Minister of Water and Environmental Affairs v Kloof Conservancy
,
fn 1 above, para 14.
[4]
Schierhout v Minister of Justice
1926 AD 99
at 109.
[5]
As
Corbett AJA put it in
Swart
v Smuts
1971
(1) SA 819
(A)
at 829C-G
:
‘
Die
regsbeginsels wat van toepassing is by beoordeling van die
geldigheid of nietigheid van ‘n transaksie wat aangegaan
is,
of ‘n handeling wat verrig is, in stryd met ‘n statutêre
bepaling of met verontagsaming van ‘n statutêre
vereiste, is welbekend en is alreeds dikwels deur hierdie Hof
gekonstateer (sien
Standard
Bank v Estate Van Rhyn
1925
AD 266
;
Sutter
v Scheepers
1932
AD 165
;
Leibbrandt
v South African Railways
1941
AD 9
;
Messenger
of the Magistrate’s Court, Durban v Pillay
1952
(3) SA 678
(AD);
Pottie
v Kotze
1954
(3) SA 719
(AD),
Jefferies
v Komgha Divisional Council
1958
(1) SA 233
(AD);
Maharaj
and Others v Rampersad
1964
(4) SA 638
(AD)).
Dit blyk uit hierdie en ander tersaaklike gewysdes dat wanneer die
onderhawige wetsbepaling self nie uitdruklik verklaar
dat sodanige
transaksie of handeling van nul en gener waarde is nie, die
geldigheid daarvan uiteindelik van die bedoeling van
die Wetgewer
afhang. In die algemeen word ‘n handeling wat in stryd met ‘n
statutêre bepaling verrig is, as
‘n nietigheid beskou,
maar hierdie is nie ‘n vaste of onbuigsame reël nie.
Deeglike oorweging van die bewoording
van die statuut en van sy doel
en strekking kan tot die gevolgtrekking lei dat die Wetgewer geen
nietigheidsbedoeling gehad het
nie.’
[6]
Standard Bank v Estate Van Rhyn
1925 AD 266
at 274.
[7]
See also, for example,
Sutter
v Scheepers
1932 AD 165
at 173-174;
Swart v Smuts
1971 (1) SA 819
(A) 829C-830C;
Oosthuizen
& another v Standard Credit Corporation Ltd
[1993] ZASCA 59
;
1993 (3) SA 891
(A) 902H-903F and the authorities there cited.
[8]
S v Theledi
1993 (2) SA 403 (T).
[9]
At 403I-404B.
[10]
Law Society of the Cape of Good Hope v Adams
[2013] ZAWCHC 87
;
2013 (2) SACR 480
(WCC) para 19.
[11]
Citations omitted.
[12]
Summerley v Law Society, Northern Provinces
2006 (5) SA 613 (SCA).
[13]
Law Society of the Northern Provinces v
Mamatho
2003 (6) SA 467
(SCA) para 4.
[14]
Summerley
, fn 12 above, para 4.
[15]
Mamatho
, fn 13 above, para 1.
[16]
Oilwell (Pty) Ltd v Protec International Ltd & others
2011
ZASCA 29
;
2011 (4) SA 394
(SCA) para 19.