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[2018] ZACC 32
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Morudi and Others v NC Housing Services and Development Co Limited and Others (CCT270/17) [2018] ZACC 32; 2019 (2) BCLR 261 (CC) (25 September 2018)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 270/17
In the matter
between:
MOSALASUPING
PHILLIP MORUDI
AND SEVENTY
OTHERS
1
st
to 71
st
Applicants
and
NC HOUSING
SERVICES AND
DEVELOPMENT
First
Respondent
CO LIMITED
SCHOLTZ JACOB
BABUSENG
Second
Respondent
SEODI JULIUS
MONGWAKETSI
Third
Respondent
Neutral citation:
Morudi and Others v NC Housing Services and Development Co Limited
and Others
[2018] ZACC 32
Coram:
Mogoeng CJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J,
Khampepe J, Madlanga J, Petse AJ, and Theron J
Judgment:
Madlanga J (unanimous)
Heard on:
08
May 2018
Decided on:
25 September 2018
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa, Northern Cape Division, Kimberley)
the following order
is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Supreme Court of Appeal and High Court of South
Africa, Northern Cape Division, Kimberley (High Court) are
set aside,
and replaced with the following:
“
(a)
The order of the High Court granted on 1 September 2014 in case
number 1557/2012 (main application) is rescinded.
(b) The fifth to 71
st
applicants are granted leave to
intervene in the main application.”
4. The respondents must pay the applicants’ costs, including
costs of two counsel, in the High Court, the Supreme Court of
Appeal
and in this Court.
JUDGMENT
MADLANGA J (Mogoeng
CJ, Dlodlo AJ, Froneman J, Goliath J, Jafta J, Khampepe J, Petse
AJ, and Theron J concurring):
Introduction
[1]
This is an application for leave to appeal against an order of
the Supreme Court of Appeal that upheld a refusal of rescission and
dismissal of an application for leave to intervene by the High Court
of South Africa, Northern Cape Division, Kimberley (High Court).
The question before us is whether rescission and leave to intervene
should have been granted.
Background
[2]
In 1997 a group of individuals in the Northern Cape acquired a
so-called shelf company to use as a vehicle to exploit commercial
opportunities in the province for the benefit of black people.
Many of those interested in participating in this venture
contributed
at least R100 towards the purchase of shares in the company.
The shelf company was converted into a public company
in order to
open up the shareholding to more than 50 persons. It was
renamed NC Housing Services and Development Co Limited
(company).
Although quite a long time has since elapsed, the company is yet to
compile a register of members and issue shares
and share
certificates.
[3]
In September 2007 the Registrar of Companies removed the
company from the Companies Register for failure to file annual
company
returns. Four years later the company wanted to sell
its major asset which was shares in NWC Manganese (Pty) Ltd (NWC
Manganese)
for R250 million. Those behind the company took the
view that in order for it to do that, it had to be re-registered.
An application to re-register the company was launched and
subsequently granted.
[4]
A dispute arose between Mr Mosalasuping Morudi, the first
applicant, and 70 others (the second to 71
st
applicants),
on the one hand, and Mr Scholtz Babuseng and Mr Seodi Mongwaketsi,
the second and third respondents respectively,
on the other.
[1]
The dispute was about who were entitled to shareholding in the
company and in what proportion. The second and third
respondents claimed that between the two of them their shareholding
was supposed to be 67.67%, the second respondent being entitled
to
17.67% and the third to 50%. According to these respondents,
the 71 applicants were entitled to the remaining 32.33%.
[5]
Briefly here is how the dispute arose. Long before its
deregistration, the company resolved to purchase an 8% shareholding
in Meriting Investments (Pty) Ltd (Meriting). Meriting is a
substantial shareholder in Teemane (Pty) Ltd. Teemane is
a
joint venture company between Meriting and Sun International.
It owns the Flamingo Casino in Kimberley. The company
did not
have funds to purchase the Meriting shares. There is a dispute
as to some crucial detail on how the purchase was
to be funded.
The first and second respondents claim that the company resolved to
sell 500 shares and to fund the purchase
from the proceeds of the
sale. The applicants aver that an investor that would help fund
the purchase was to acquire 50%
of the shares that the company was to
purchase from Meriting. They deny that the investor would get a
shareholding in the
company. What is not in dispute is that a
Mr Van Rensburg provided R191 000 for the purchase of the 8%
shareholding
in Meriting.
[6]
According to the second and third respondents Mr Van Rensburg
later sold his equity interest in the company to the third respondent
for R300 000. It is this purchase that – according
to the second and third respondents – caused the third
respondent’s claim to shareholding to shoot up to 50%.
Needless to say – and for the reasons set out in the preceding
paragraph – the applicants dispute this. They also say
from inception the idea behind the creation of the company was
broad-based black economic empowerment; it was never the intention of
those who formed the company, the applicants and second and
third
respondents included, to permit the disproportionate enrichment of
any one individual. The applicants also raise this
against the
second respondent’s claim of being entitled to a substantial
shareholding. The second respondent claims
that over time he
made payments totalling R50 000 into a banking account of the
company and that it is this amount that now
entitles him to the
17.67% shareholding in the company. In short, the applicants
aver that every contributor towards the
purchase of shares in the
company is entitled to roughly the same amount of shares.
[7]
Amongst all concerned there was lack of clarity on whether the
board of directors that was in place at the time the company was
deregistered had been revived with the re-registration of the
company.
[8]
The second and third respondents launched an application in
the High Court (main application). In the main, they sought an
order declaring that—
(a) persons entitled to shareholding in the company were as listed in
an annexure to the founding affidavit, annexure “M”;
and
(b) the respective shareholding of those people was to be as
reflected in this annexure.
[9]
In that application the company was the first respondent.
The founding affidavit referred to the first to third applicants
as
businessmen and directors of the company. They were cited as
the second to fourth respondents. The fourth applicant
was
referred to as a businessman and former director of the company.
The rest of the applicants were not cited as parties
at all.
Crucially, in the founding affidavit the second respondent averred
that it was his and the third respondent’s
intention to cite
these applicants as well, but that it was not practical to do so at
the time the proceedings were launched.
He made the point that
these applicants would be cited in due course. For reasons that
have not been explained, that was
never done.
[10]
The first applicant opposed the application. In doing
so, he purported to act on behalf of the company. The factual
contest in the application was as detailed above. The second to
fourth applicants filed confirmatory affidavits in which they
confirmed facts that related to them in the first applicant’s
opposition on behalf of the company.
[11]
By agreement Williams J referred the main application to trial
for the determination of the question whether annexure “M”
correctly reflected who was entitled to shares and in what
proportion. This was on the basis that there was a genuine
dispute
of fact. Pending the outcome of that trial, the Court
made an interim order. This too was by consent. First, it
authorised the issuing of one ordinary par value share to each person
whose name appeared in annexure “M”. This
was
necessitated by the fact that strictly speaking the company had no
shareholders as (a) it had no share register and (b)
no shares
had been issued. Second, the Court directed that a board of
directors comprising the first, second and third applicants
and the
second respondent convene a meeting of the shareholders to consider a
resolution to sell the company’s major asset
– its shares
in NWC Manganese. Third, the Court directed that should the NWC
Manganese shares be sold, the proceeds
of the sale should –
pending the determination of the trial – be deposited in equal
parts into the trust accounts of
the parties’ respective
attorneys.
[12]
Pursuant to the interim order, the shareholders resolved to
sell the NWC Manganese shares. At a later meeting held on 19
April
2013, a resolution to withdraw the company’s opposition
to the main application was taken (19 April 2013 resolution). One
week later the first applicant, purporting to act on behalf of the
company, instituted an urgent application to have the shareholders’
meeting of 19 April 2013 and all resolutions passed at it
declared unlawful. The urgent application was dismissed
by
Mamosebo AJ on the basis that the first applicant lacked authority to
bring the application.
[2]
[13]
Subsequently the issue referred to trial came before Kgomo
JP. A Mr Kgotlagomang, an attorney, appeared before him.
When placing himself on record, he announced that he was representing
the first to third applicants
[3]
in the main application in their capacity as potential shareholders
in the company. The Court asked what Mr Kgotlagomang’s
clients wished to do as there was no longer a dispute between the
second and third respondents, who were the first and second
applicants before that Court, and the company. He responded
that as the company had withdrawn its opposition, the trial could
go
on as between his clients and the second and third respondents.
Crucially, he explained that this was because in accordance
with
annexure “M” his clients, whom he was representing “as
individuals”, were potential shareholders.
The Court took
the position: that Mr Kgotlagomang was not properly before it as the
first to third applicants were cited as directors
of the company; and
that since the company had withdrawn its opposition, these applicants
could no longer advance the company’s
interest, nor could they
act in their personal capacities. The three applicants too were
thus not properly before Court.
[14]
A transcript of the exchanges between the Court and Mr
Kgotlagomang forms part of the record before us. In the
transcript
the Court repeats a number of times that Mr Kgotlagomang
and his clients are not before Court and that, therefore, the Court
will
not give them audience. The factual reality was that not
only Mr Kgotlagomang and his three clients were before Court, but
so
were many other potential shareholders listed on annexure “M”.
The Court went on to say that if the first
to third applicants wished
to oppose the application as shareholders, they would have to apply
for a postponement. The Court
added that if the postponement
were to be granted, the applicants would have to bear the costs
occasioned by the postponement and
that those costs might have to be
paid before the next hearing.
[15]
Mr Kgotlagomang requested that the matter be stood down for a
short while, to which the Court acceded. On his return, he
announced
that he was withdrawing as the first to third applicants’
attorney of record. However, he informed the Court that the
many other potential shareholders present in Court wished to address
it. The Court addressed these potential shareholders
first in
Setswana and said:
[4]
“You understand that you got your shares in the company.
Now, if you have shares you cannot speak for yourselves.
There
are decisions that have been taken and these decisions are binding.
You, each and every one of you has a share.
You cannot come by
yourself. It is not a court procedure. Furthermore, if a
decision has been taken [by a] majority
it binds you.”
[16]
It continued in English and said “[y]ou see, whether you
like it or not but if the resolution has been taken, it binds even
if
you are against the resolution of the company”. Without
giving this group of potential shareholders audience, the
Court
immediately granted an order in terms of a draft order agreed to by
counsel for the second and third respondents and the
company.
The effect of the order was that persons entitled to shareholding in
the company were as listed in annexure “M”
and that their
respective shareholding was as reflected in this annexure.
[17]
Citing as respondents the company
[5]
and the second and third respondents, all 71 applicants brought an
application for the rescission of this order. They invoked
the
common law and rule 42(1)(a) of the Uniform Rules of Court.
In addition, the fifth to 71
st
applicants sought to be
joined as respondents in the main application. They had not
been cited in that application.
[18]
Rule 42(1)(a) provides:
“The court may . . .
mero motu
[of its own accord] or
upon the application of any party affected, rescind or vary:
(a)
an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby . . .”
[19]
Lever AJ held that the applicants could not succeed under rule
42(1)(a) because they were present in Court when the order was
granted.
The Court reasoned that the rule envisaged the
physical
absence of a party affected by the order
concerned.
[6]
It also held that the applicants had to fail even under the common
law. This was so because they had failed to: show
the existence
of a
bona fide
defence; and provide a satisfactory explanation
for their default.
[7]
[20]
The applicants appealed to the Supreme Court of Appeal.
A majority judgment in that Court upheld the High Court’s order
and reasoning. This it did whilst holding – on
the facts – that the first to fourth applicants
were
cited in dual capacities; in addition to being cited in a
representative capacity, each was cited as a shareholder.
The
Court reasoned that – because the applicants had failed in
their quest to have the 19 April 2013 resolution set aside
–
the continued existence of that resolution had the effect of barring
the applicants from participating in the litigation
in their personal
capacities. This is how Tshiqi JA articulated the reasoning of
the majority:
“The fundamental flaw in the application for rescission is that
the urgent application, which sought to set aside the 19
April 2013
resolution was dismissed by Mamosebo AJ. Because there was
no appeal against this order, the resolution stands.
The
consequence is that the appellants have no bona fide defence to the
main application, which prima facie carries some prospects
of
success.
. . .
As is apparent from the debate between [Kgomo JP] and Mr
Kgotlagomang, the JP was at pains to enquire from Mr Kgotlagomang in
what capacity he and the group of appellants were appearing . . . as
the [company’s] opposition to the main application had
been
withdrawn. . . . Therefore even if the appellants had seized
the opportunity offered by the JP to apply for a postponement
in
order to ask for leave to intervene in the matter, it seems to me
that this would have been a fruitless exercise as they were
bound by
the resolution taken on 19 April 2013. In the premises I
conclude that the requirements for rescission were not
met.”
[8]
[21]
In a separate judgment Molemela AJA disagreed with the
majority. For a variety of reasons she would have upheld the
appeal.
Jurisdiction and
leave to appeal
[22]
This matter raises important questions implicating the
applicants’ right of access to court in terms of section 34 of
the
Constitution. We have jurisdiction. There are
reasonable prospects of success. Based on this and the fact
that
– as will appear later – there may well have been a
total failure of justice occasioned by what may prove to have been
a
denial of the applicants’ right of access to court, it is in
the interests of justice to grant leave to appeal.
The
appeal
[23]
Effectively the applicants contend
that the High Court should not have shut the door in their faces and
denied them justice.
On the other hand, the respondents contend
that – in the face of the 19 April 2013 resolution – the
applicants have
no business seeking to participate in the main
application in their personal capacities and that, therefore, the
order sought to
be rescinded was granted properly.
[24]
The applicants seek rescission in
their personal capacities. I will first address the question
whether, in that capacity,
they were each a “party affected”
by the order sought to be rescinded as envisaged in rule 42(1)(a).
On the facts,
the majority of the Supreme Court of Appeal held that
throughout the protracted litigation “the Morudi group acted as
either
directors or shareholders or in both capacities”.
[9]
The minority accepted that the first to fourth applicants were cited
as shareholders. It went further and held, correctly,
that this
meant they were cited in their personal capacities. The
majority disagreed on the latter. I do not understand
how –
as a matter of law – an individual potential shareholder cited
as a “shareholder” is not cited in
her or his personal
capacity.
[25]
On the authority of
Makate
[10]
we interfere with factual findings of a lower court only under
exceptional circumstances. I see no exceptional circumstances
here and the respondents did not suggest any. All that they did
was to make submissions why we should accept their view on
the
contested factual issue. That is, we must not accept that, in
addition to being cited in representative capacities, the
first to
fourth applicants were also cited in their personal capacities.
That is not enough for us to depart from the
Makate
principle.
[26]
Thus I must accept the factual
finding by the majority and minority of the Supreme Court of Appeal
that the first to fourth applicants
were also cited as shareholders.
They are thus parties in their personal capacities to the main
application. As such,
they are entitled to seek rescission
under rule 42(1)(a). As will become apparent later, it is not
necessary to decide this
question in relation to the fifth to
71
st
applicants.
[27]
I next consider the question whether
the order sought to be rescinded was granted erroneously as envisaged
in rule 42(1)(a).
Amongst others, an order is granted
erroneously if there was an irregularity in the proceedings.
[11]
Was there an irregularity when the High Court granted the order
sought to be rescinded?
[28]
What the 19 April 2013 resolution
did was to withdraw the company’s own opposition of the main
application. The core
issue for determination in the main
application was whether annexure “M” correctly reflected
the potential shareholders
in the company and the proportion of the
potential shareholding of each of them. Central to that was the
financial contribution
each potential shareholder had made.
By
its very nature, the dispute about the shareholding was between the
second and third respondents, as potential shareholders,
on the one
hand, and the applicants, on the other. The second and third
respondents may have purported not to cite the company
nominally, but
in reality it was not a true disputant.
It
is a determination of the true dispute – that is the dispute
between the potential shareholders – that
would then
have set the scene for the normal operation of the company in
accordance with the will of the majority.
[29]
Surely, that makes each potential
shareholder listed in annexure “M” to have a direct and
substantial interest in the
outcome of the dispute. More
specifically, a determination of who the shareholders were, and in
what proportion, would have
a direct impact on the individual rights
of each potential shareholder; it could even be prejudicial to those
rights. That
made them necessary parties and they were thus
entitled to joinder of necessity.
[12]
Brand JA writing for a unanimous Court in
Cape
Bar Council
said:
“
It has by now become settled law that the
joinder of a party is only required as a matter of necessity –
as opposed to a matter
of convenience – if that party has a
direct and substantial interest which may be affected prejudicially
by the judgment
of the court in the proceedings concerned. The
mere fact that a party may have an interest in the outcome of the
litigation
does not warrant a non-joinder plea. The right of a
party to validly raise the objection that other parties should have
been
joined to the proceedings, has thus been held to be a limited
one.
”
[13]
(References omitted.)
[30]
In
Amalgamated
Engineering
, Fagan AJA states:
“Indeed it seems clear to me that the Court has consistently
refrained from dealing with issues in which a third party may
have a
direct and substantial interest without either having that party
joined in the suit or, if the circumstances of the case
admit of such
a course, taking other adequate steps to ensure that its judgment
will not prejudicially affect that party’s
interests.”
[14]
[31]
I have sought to demonstrate
that here there was a risk of the applicants’ rights being
prejudicially affected by an order
issued in the main application.
This and the authority of
Amalgamated
Engineering
notwithstanding, the High
Court determined the main application without any regard to possible
prejudice to the applicants’
rights. On the contrary, it
held that they were not entitled to be given audience as the company
– in withdrawing its
opposition – had spoken on their
behalf. On the authority of
Amalgamated
Engineering
and
Cape
Bar Council
, the High Court could not
validly grant an order in the main application without the applicants
having been joined or ensuring
that they would not be prejudiced.
It was incumbent upon that Court
mero
motu
to insist on their joinder.
[15]
[32]
The agreement between the representatives of the parties –
that is, the second and third respondents and the company –
did
not excuse the High Court from its duty to enquire whether the order
these parties were agreed on would prejudice potential
shareholders.
[16]
Again,
Amalgamated Engineering
instructs that—
“[t]he fact, however, that, when there are two parties before
the Court, both of them desire it to deal with an application
asking
it to make a certain order, cannot relieve the Court from inquiring
into the question whether the order it is asked to make
may affect a
third party not before the Court, and, if so, whether the Court
should make the order without having that third party
before it. . .
. The third party’s position cannot be prejudiced by the
consensus
of the two litigants that they do not wish that
party to be joined.”
[17]
[33]
It must follow that when the High Court granted the order
sought to be rescinded without being prepared to give audience to the
applicants, it committed a procedural irregularity. The Court
effectively gagged and prevented the attorney of
the first three applicants – and thus these applicants
themselves –
from participating in the proceedings. This
was no small matter. It was a serious irregularity as it denied
these applicants
their right of access to court.
In
Twee
Jonge Gezellen
Brand AJ explains
the gravity
of the right to a fair hearing
:
“There can be no doubt about the importance of the fundamental
right which is guaranteed by section 34. As stated
by this
Court in
De Beer N.O. v North-Central Local Council and
South-Central Local Council
:
‘This
section 34 fair hearing right affirms the rule of law, which is
a founding value of our Constitution. The
right to a fair
hearing before a court lies at the heart of the rule of law. A
fair hearing before a court as a prerequisite
to an order being made
against anyone is fundamental to a just and credible legal
order.’”
[18]
[34]
The irregularity committed by the
High Court satisfies the requirement of an error in rule 42(1)(a).
The second and third
respondents – with the support of the
company – pushed for the granting of the order and the High
Court granted it.
In the circumstances, the order was
erroneously sought and erroneously granted as envisaged in rule
42(1)(a).
[35]
If a party has plainly acquiesced to
the granting of an order without her or his participation, a court
may not insist on joinder
which is otherwise necessary.
[19]
Is there a basis for saying that the first to fourth applicants
acquiesced to the order and thus cannot now complain against
it?
The exchange between Mr Kgotlagomang and the Court on the date of
hearing plainly demonstrates that, rather than acquiesce
to the
granting of the order, at least the first three applicants whom
Mr Kgotlagomang said he was representing were desirous
of
contesting the proceedings. Mr Kgotlagomang’s
persistence in this regard puts this beyond question. He
said
he was representing the three applicants as “individuals”
and wanted the issue referred to trial to be heard on
that basis.
[36]
Coming to the fourth applicant, at best
what can be said is that there was no appearance on his behalf
on the date of hearing.
To me that does not – without
more – translate to acquiescence. At the very least the
Court should have enquired
as to why there was no representation or
appearance by him. That it never did.
[37]
Has the requirement of “absence”
in rule 42(1)(a) been satisfied? The respondents argue that the
applicants were
not “absent” since they were physically
present in the courtroom on the date of hearing. One difficulty
facing
the respondents in this regard is that they could not show
which applicants were, in fact, present in Court. On the
available
evidence it seems not to be contested that only some of
them were present. Even if I focus only on the first four
applicants,
it is so that before he was effectively sent packing by
the Court, Mr Kgotlagomang was present in Court on behalf of the
first
three. There is no evidence whatsoever on whether the
fourth applicant was in Court. So, the respondents’
argument
cannot stand as against him.
[38]
All that aside,
Mr
Kgotlagomang
was repeatedly told that he, and
therefore his clients, were not before Court and that it would thus
not give him audience whatsoever.
For all intents and purposes
these applicants were in no better position than a litigant who was
physically not in court.
[39]
Section 39(2) of the Constitution
enjoins courts to interpret legislative provisions in a manner that
promotes the spirit, purport
and objects of the Bill of Rights.
The interpretation of “absence” that I adopt better
accords with
this injunction. The respondents’
interpretation, on the other hand, has the effect of denying the
applicants their
section 34 right and thus exposing them to a serious
injustice.
[40]
In sum, the first to fourth
applicants are entitled to rescission in terms of rule 42(1)(a).
It becomes unnecessary to
deal with rescission under the common law.
[41]
Thus far my focus has been on the
first four applicants. I do not find it necessary to decide
whether the rest of the applicants
are also entitled to rescission.
Once rescission is granted, the main application will be revived.
It suffices if the
fifth to 71
st
applicants are granted leave to intervene in that application.
I have already clarified why – as potential shareholders
–
they have a direct and substantial interest in the outcome of the
main application.
Conclusion
[42]
The appeal must succeed with costs.
Order
[43]
The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Supreme Court of Appeal and High Court of South
Africa, Northern Cape Division, Kimberley (High Court) are
set aside,
and replaced with the following:
“
(a)
The order of the High Court granted on 1 September 2014 in case
number 1557/2012 (main application) is rescinded.
(b) The fifth to 71
st
applicants are granted leave to
intervene in the main application.”
4. The respondents must pay the applicants’ costs, including
costs of two counsel, in the High Court, the Supreme Court of
Appeal
and in this Court.
For the Applicants:
M A Albertus SC and G G M Quixley instructed by
Towell & Groenwaldt Attorneys.
For the Respondents:
P Zietsman SC and P R Cronje instructed by Adrian B Horwitz &
Associates.
[1]
The first respondent is the company.
[2]
NC Housing Services and Development Company v Matshoba
[2014]
ZANCHC 26
at para 24.
[3]
Those were the second to fourth respondents before the High Court.
There is no clarity as to why there was no appearance for
the fourth
applicant (the fifth respondent before the High Court).
[4]
I am quoting what was translated in Court.
[5]
The company was cited as the first respondent.
[6]
Morudi v NC Housing Services and Development Co. Ltd
[2016]
ZANCHC 88
(High Court judgment) at para 88.
[7]
Id at para 61.
[8]
Morudi v NC Housing Services and Development Co Ltd
[2017]
ZASCA 121
; (2017) JDR 1614 (SCA) (Supreme Court of Appeal judgment)
at paras 16-7.
[9]
Id at para 18. The reference to “the Morudi group”
in the quotation is a reference to the applicants.
[10]
Makate v Vodacom (Pty) Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at paras 38-40.
[11]
Erasmus,
Superior Court Practice
RS 5, 2017, D1-569;
National
Pride Trading 452 (Pty) Ltd v Media 24 Ltd
2010 (6) SA 587
(ECP) at paras 26-7.
[12]
See
Judicial Service Commission v Cape Bar Council (Centre for
Constitutional Rights as amicus curiae)
[2012] ZASCA 115
;
2013
(1) SA 170
(SCA) (
Cape Bar Council
) at para 12.
[13]
Id.
[14]
Amalgamated Engineering Union v Minister of Labour
1949
(3) SA 637
(A) (
Amalgamated Engineering
) at 659.
[15]
Id.
[16]
Id at 649.
[17]
Id.
[18]
Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development
Bank of South Africa t/a The Land Bank
[2011] ZACC 2
;
2011 (3)
SA 1
(CC);
2011 (5) BCLR 505
(CC) at para 57 (
Twee Jonge
Gezellen
).
[19]
Amalgamated Engineering
above n 14 at p 652. See
Cilliers et al
Herbstein and Van Winsen
:
The Civil
Practice of the High Courts and Supreme Court of Appeal of South
Africa
5th ed (Juta & Co. Ltd, Cape Town 2009) volume 1 at
215-6.