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[2013] ZAWCHC 99
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Comitis NO and Others v Fairbridge Mall (Pty) Ltd (A332/2012) [2013] ZAWCHC 99 (5 February 2013)
Republic of South Africa
In the Western Cape High Court of South Africa, Cape Town
Before: The Hon Mr Justice Fourie
The Hon Mr Justice Binns-Ward
The Hon Mrs Justice Fortuin
Case no: A332/2012
(Case no. in court a quo 4567/2011)
In the matter between:
JEAN MICHEL COMITIS N.O.
....................................................................
First
Appellant
GEORGE COMITIS N.O.
...............................................................................
Second
Appellant
LISA ANNE COMITIS N.O.
...........................................................................
Third
Appellant
[in their capacities as trustees of the MacoTrust Fund]
GEORGE COMITIS N.O.
...............................................................................
Fourth
Appellant
SALOMÉ COMITIS N.O.
...............................................................................
Fifth
Appellant
[in their capacities as trustees of the Gelomi Trust Fund]
and
FAIRBRIDGE MALL (PTY) LTD
................................................................
Respondent
JUDGMENT DELIVERED ON 5 FEBRUARY 2013
BINNS-WARD J:
With leave obtained from the Supreme Court of Appeal, the appellants
have appealed against the judgment of van Staden AJ at first
instance refusing their application for the winding up of the
respondent company on just and equitable grounds in terms of
s 344(h) of the Companies Act 61 of 1973. The application was
founded on the allegation that the respondent was a closely
held
company in which the relationship between the members was akin to a
partnership, that is a so-called ‘quasi-partnership’.
The appellants alleged that there had been an irretrievable
breakdown in trust and confidence between the members of a nature
that entitled them, on the basis of the deadlock principle, as
expressed in
In re Yenidje Tobacco Co Ltd
[1916] 2 Ch 426
(CA), to the winding up of the company. As observed in
Apco
Africa (Pty) Ltd and Another v Apco Worldwide Inc
[2008] ZASCA 64
;
2008 (5) SA
615
(SCA) ([2008]
4 All SA 1)
, at para. 19, the deadlock
principle ‘is founded on the analogy of partnership and is
strictly confined to those small
domestic companies in which,
because of some arrangement, express, tacit or implied, there exists
between the members in regard
to the company’s affairs a
particular personal relationship of confidence and trust similar to
that existing between partners
in regard to the partnership
business. If by conduct which is either wrongful or not as
contemplated by the arrangement, one
or more of the members destroys
that relationship, the other member or members are entitled to claim
that it is just and equitable
that the company should be wound up’.
1
During his argument on appeal counsel for the appellants readily
acknowledged that if it had not been established on the evidence
that the respondent company qualified as one that was amenable to
the application of the deadlock principle, the appeal did not
get
out of the starting blocks. The acknowledgement was correctly made.
The expression ‘quasi partnership’ is a well-worn one in
the relevant context, notwithstanding its description by
the
Appellate Division in
Hulett and Others v Hulett
[1992] ZASCA 111
;
1992 (4) SA
291
(A) at 307I-J as a loose description sufficing where a more
precise legal tag was not needed, and by the English Court of Appeal
as a not always helpful label (
Strahan v Wilcock
[2006] EWCA
Civ 13
at para. 18, per Arden LJ). The expression was most
famously adopted in the speech of Lord Wilberforce in
Ebrahimi v
Westbourne Galleries Ltd
[1973] AC 360
, at 379-380, in the
following oft-cited passage (which in itself contains a caveat that
the expression may be ‘confusing’):
My Lords, in my opinion these authorities
2
represent a sound and rational development of the law
which should be endorsed. The foundation of it all lies in the words
"just
and equitable" and, if there is any respect in which
some of the cases may be open to criticism, it is that the courts may
sometimes have been too timorous in giving them full force. The words
are a recognition of the fact that a limited company is more
than a
mere legal entity, with a personality in law of its own: that there
is room in company law for recognition of the fact that
behind it, or
amongst it, there are individuals, with rights, expectations and
obligations inter se which are not necessarily submerged
in the
company structure. That structure is defined by the Companies Act and
by the articles of association by which shareholders
agree to be
bound. In most companies and in most contexts, this definition is
sufficient and exhaustive, equally so whether the
company is large or
small. The “just and equitable” provision does not, as
the respondents suggest, entitle one party
to disregard the
obligation he assumes by entering a company, nor the court to
dispense him from it. It does, as equity always
does, enable the
court to subject the exercise of legal rights to equitable
considerations; considerations that is, of a personal
character
arising between one individual and another, which may make it unjust,
or inequitable, to insist on legal rights, or to
exercise them in a
particular way.
It would be impossible, and wholly undesirable, to
define the circumstances in which these considerations may arise.
Certainly the
fact that a company is a small one, or a private
company, is not enough. There are very many of these where the
association is
a purely commercial one, of which it can safely be
said that the basis of association is adequately and exhaustively
laid down
in the articles. The superimposition of equitable
considerations requires something more, which typically may include
one, or probably
more, of the following elements: (i) an association
formed or continued on the basis of a personal relationship,
involving mutual
confidence – this element will often be found
where a pre-existing partnership has been converted into a limited
company;
(ii) an agreement, or understanding, that all, or some (for
there may be "sleeping" members), of the shareholders shall
participate in the conduct of the business; (iii) restriction upon
the transfer of the members' interest in the company –
so that
if confidence is lost, or one member is removed from management, he
cannot take out his stake and go elsewhere.
It is these, and analogous, factors which may bring into
play the just and equitable clause, and they do so directly, through
the
force of the words themselves. To refer, as so many of the cases
do, to “quasi-partnerships” or “in substance
partnerships” may be convenient but may also be confusing. It
may be convenient because it is the law of partnership which
has
developed the conceptions of probity, good faith and mutual
confidence, and the remedies where these are absent, which become
relevant once such factors as I have mentioned are found to exist:
the words “just and equitable” sum these up in the
law of
partnership itself. And in many, but not necessarily all, cases there
has been a pre-existing partnership the obligations
of which it is
reasonable to suppose continue to underlie the new company structure.
But the expressions may be confusing if they
obscure, or deny, the
fact that the parties (possibly former partners) are now co-members
in a company, who have accepted, in law,
new obligations. A company,
however small, however domestic, is a company not a partnership or
even a quasi-partnership and it
is through the just and equitable
clause that obligations, common to partnership relations, may come
in.
The court
a quo
held that it had not been established by the
appellants that the respondent company was the manifestation of a
quasi-partnership.
In this connection, van Staden AJ held (at
para. 19 of the judgment of first instance):
‘…
the Applicants’
allegations in the affidavits lack averments or proof of the
following:
A mutual understanding as to the partner-like
obligations owed by each alleged member of the quasi-partnership.
An indication that the special personal relationship
between the participants of the quasi-partnership relates to the
conduct
and management of the company’s affairs….
The existence of a breach of the agreement or
understanding between the participants in the form of a lack of
probity, wrongful
conduct or conduct in conflict with the terms of
the arrangement.
…
..’
The respondent’s counsel argued that the considerations that
would justify a court in winding up a company on just and
equitable
grounds on the basis that its members would be entitled on
partnership law principles to a dissolution of the company
are
limited to exclusion cases.
Ebrahimi
was indeed an exclusion
case; that is one in which the petitioning member had in terms of
the arrangement with his co-founding
member when they had
established the company been entitled to participate in its
management and had subsequently, in contradiction
of such
arrangement, been excluded. The vast majority of cases involving the
deadlock principle do involve exclusion matters.
However, the
current matter was not an exclusion case. On my reading of the
passage from Lord Wilberforce’s speechthere
is no indication
that the affording of just and equitable relief in terms of the
English statutory equivalent to s 344(h)
of the Companies Act
on the basis of an approach analogous to that applicable in the
involuntary winding up of partnerships would
be that limited. On the
contrary it is evident that the learned Law Lord was at pains not to
be misunderstood todefine the circumstances
in which considerations
of a personal character between shareholders might make it unjust or
inequitable for their mutual relationship
as such to be determined
strictly in terms of company law. Lord Wilberforce indeed referred
to ‘a considerable body of
authority in favour of the use of
the just and equitable provision in a wide variety of situations,
including
those of expulsion from office’;
3
see also
Apco
at para. 16, where the impossibility of
stating any general rule as to the nature of the circumstances that
have to be borne
in mind in considering whether a case comes within
the phrase ‘just and equitable’ in s 344(h) was
noted.
That said, all of the examples postulated by Lord Wilberforce were
predicated on the existence of some form of prior relationship
or
arrangement between the members that had affected the original
membership in the company. That consideration also informed
the
description of the deadlock principle by the Supreme Court of Appeal
in
Apco
quoted at the outset of this judgment, and on which
the appellants rely. One can easily understand why that should be
so, because
how else is a court able to find a cogent basis to waive
or ameliorate the effect of the strict application of the legal
consequences
of company law as between the shareholders in a company
as being just and equitable?
Having rehearsed the content of the principle which the appellants
sought to invoke it is time to consider whether the evidence
on
which the appellants’ case was founded sustained the grant of
the relief sought by them.
The respondent company was established as a private company. Its
sole business is the ownership and operation of a shopping mall.
The
management of the mall is undertaken for the respondent by
Global
Assets and Investment Network (Pty) Ltd, a company in which one Ari
Efstathiou is the sole shareholder.
The shares in the respondent company are held between seven trusts.
The rights and obligations attaching to each shareholding
therefore
vest in the trustees of the respective trusts acting jointly and in
terms of the applicable trust instruments. The
trust deeds were not
put in evidence. It must be accepted, however, that the duties of
the trustees are defined by the various
trust instruments in terms
of which they have been appointed. There is nothing in the evidence
to suggest that these contain
any provisions directing the trustees
to act in relation to the proprietorship of the respective trust
property so as to accommodate
the interests of anyone but the
beneficiaries.Unless the beneficiaries were privy to the alleged
quasi-partnership they would
expect the trustees, as shareholders,
to adhere to the articles of association (to use the language
applicable prior to the commencement
of the 2008 Companies Act
4
)
of any company in which the trust held shares. The appellants sought
to dismiss the effect of the shares in the respondent being
held in
various trusts by averring that this was on the advice of lawyers
and that had it not been for such advice the shares
would have been
held by the founders of the trusts in their own names. That might be
so, but it still begs the question of what
arrangement was in place
to accommodate the creation of duties by the respective trustees
towards each other in a quasi-partnership
relationship as members of
the respondent company. This is especially so as the trustees
comprise of persons over and above the
founders. The papers do not
answer that question.
The applicants are trustees of the Maco Trust Fund and the Gelomi
Trust Fund, which are described as being the family trusts
of the
brothers Jean (known as John) and George Comitis respectively.
Between them these two trusts hold 40% of the shares in
the
respondent company. The other 60% of the shares are held as to 50%
by three trusts representing three members of the
Efstathiou
family, as to six percent by a trust established by one Scoliades,
who is married to a member of the Comitis family,
and as to four per
cent by one van der Merwe, who is not connected by consanguinity or
affinity to either the Comitis or Efstathiou
families. Ari
Efstathiou is married to the sister of John and George Comitis. The
trustees of the trusts that hold the 60% majority
holding used their
majority interest to get the respondent company to oppose the
winding up application.
In their founding papers the applicants founded their endeavour to
apply the deadlock principle on the familial connection between
the
Comitis and Efstathiou families. The allegation was that the
respondent company formed a component of an overarching business
relationship between the members of the two families which was akin
in substance to a partnership. The members of the two families
are
indeed involved in various combinations and in various ways in a
number of companies in what has loosely been called the
Cape
Franchising group. Outside parties (that is parties who are not part
of the families) are, however, also involved in some
of these
companies, as is the case in the respondent company. The
‘unbundling’ of the group has been the subject
of
discussion between the Comitis and the Efstathiou brothers in the
past. An attorney was instructed to give advice and draft
an
agreement in this respect. Nothing has come of these discussions.
Interest in pursuing the unbundling project seems to have
waxed and
waned depending on a variety of factors, including the state of
family relations. The history of discussion about an
agreed
unbundling does not support the concept of the existence of a
quasi-partnership relationship in the respondent company.
On the
contrary it suggests that any partnership-like relationship that may
exist between the respective Comitis and Efstathiou
brothers is an
overarching one concerning all the entities in which they have a
common proprietary interest of some sort. This
is underscored by the
averment in the founding affidavit that the group is ‘a family
business [in which] one or more of
the Comitis and/or Efstathiou
brothers [will] actively [participate] in the conduct of such
business’. This overarching
family business relationship forms
what is described in the founding affidavit as a ‘pre-existing
partnership’. In
context it would appear that by this the
deponent meant not so much that the alleged partnership no longer
existed, but that
its existence was the basis upon which members of
the family came to hold shares together in various companies. The
appropriate
remedy in the context of a dissolution of that sort of
relationship would not be to selectively wind-up the companies in
which
the partners hold shares- particularly when that would, as in
the case of the respondent company,also affect the proprietary
interests of parties outside of the relationship – but rather
to deal with the consequences in the manner available in terms
of
the
actiones pro socio
or
communidividundo
; cf.
Robson
v Theron
1978 (1) SA 841
(A).
There is no reason to question that the commonality of propriety
interest, albeit in different ways, of the Comitis and Efstathiou
brothers in the companies comprising the Cape Franchising group came
about because of their family connections. It does not follow,
however, that the various investments made in the constituents of
the group evidenced an understanding or arrangement between
them
akin in substance to a partnership in respect of the companies
concerned. On the contrary one gains the impression on the
evidence
that the various companies represent manifestations of business
opportunities that arose and were made available by
one or other
member of the families to other members of the family to participate
in should they wish and to the extent that
they were able at the
time to invest.
There is also no reason to doubt that when
deciding to invest together in the various incorporated businesses
in which they participate
directly, or indirectly, as shareholders,
the family members were motivated by their family connections and
the considerations
of mutual trust and confidence that ordinarily
attend such relationships. That is not enough, however, by itself,
to establish
the existence of the sort of underlying agreement or
relationship necessary for the successful invocation of the deadlock
principle
in circumstances of a subsequent alienation of affection
or loss of trust or confidence. As Peter Gibson J (as he then
was)
is reported to have stated in
Re a Company ex p.
Schwarcz (No 2)
[1989] B.C.L.C. 427 at 440:
No doubt in almost every case of a small or private
company persons coming together to form a new company would not do so
without
placing trust and confidence in those who are to be the
directors and managers of the company. But the fact that the company
is
small is not enough and that mutual trust and confidence would not
in itself be sufficient to make the members’ association
in
substance a partnership with partner-like obligations owed by each
member to the other in absence of proof of a mutual understanding
as
to those obligations.
I agree with the submission advanced in the respondent’s heads
of argument that ‘…
if this were not
the case, then every company that happens to have … members
who like and trust one another or who have a
friendly relationship,
or even who are related, could be seen and treated as a
quasi-partnership, regardless of the corporate form
that they had
chosen to conduct their commercial activities, regardless of whether
they had in fact entered into some arrangement
to that effect, and
regardless of whether the content of any specific obligations had
been identified by the “partners”.
Such an approach would
have a significant impact on commercial activities and relationships.
It would undermine the general “
salutary
”
principle “
that
our Courts should not lightly disregard a company's separate
personality, but should strive to give effect to and uphold it.
To do
otherwise would negate or undermine the policy and principles that
underpin the concept of separate corporate personality
and the legal
consequences that attach to it
.”.
5
’
Apart from the broadbrush reliance on familial
connection already described, there is no evidence in the current
m
atter of the required arrangement or understanding. Those
allegations are insufficient to establish the existence or content
of
the required underpinning agreement or arrangement for a
‘quasi-partnership’.
A further difficulty with the notion of the application of the
deadlock principle in the current case would in any event be the
holding of shares in the company by a party which has no familial
connection with either the Comitis or the
Efstathiou
families. There is no evidence that the trustees of the
Fonteinskloof Trust, allegedly representing the proprietary
interest
of André van der Merwe, were privy to any understanding
between the
Comitis and the
Efstathiou
brothers. The appellants’ counsel sought to overcome this
obvious difficulty by reliance on the content of correspondence
annexed to the founding papers in which Ari Efstathiou, in emails
addressed to, or copied to, John and George Comitis, Scoliades
and
van der Merwe spoke of them as his ‘partners’. In the
absence of any convincing indication of a pertinent underlying
agreement or arrangement the explanation given in the answering
affidavit that this term was used loosely and colloquially is
quite
plausible. Indeed it is consistent with counsel’s emphasis in
another context of his address that there was in fact
no actual
partnership between the individuals concerned. It is also evident
from the content of the emails to which counsel referred
that the
‘partnership’ being written about is the overarching
business relationship described earlier and not a relationship
as
members in the respondent company.
The reliance on the email correspondence in
argument to seek to establish that van der Merwe was party to the
alleged quasi-partnership
was in any event quite untenable in the
circumstances. The founding affidavit referred to the email
correspondence to support
the contention that the Comitis and
Efstathiou brothers regarded their interest in the respondent
company through their respective
family trusts as akin to a
partnership; it contained no allegation that the emails evidenced
that van der Merwe was party to
such an arrangement or
understanding. It is trite that a party’s case in motion
proceedings must be set out in the body
of its affidavits and, if
the content of any annexure thereto is to be relied on, the nature
of such reliance should be identified
in the affidavits. The other
parties to the litigation are not called upon to trawl through the
annexures to the affidavits they
are called upon to answer looking
for a possible case that is not made out in body of the affidavits
to which they are required
to respond.
6
In my judgment the learned judgeat first instance cannot be faulted
in concluding that that an underpinning agreement or arrangement
of
the nature required to invoke the operation of the deadlock
principle had not been established. The court
a quo
therefore
correctly dismissed the application, and the appeal consequently
must fail.
It should perhaps be mentioned that even had the
appellants succeeded in establishing a proper basis for the
application of the
deadlock principle, a winding-up order would not
follow automatically. The court would still have to have regard to
all the circumstances,
including the impact of a winding-up order on
those not directly party to the discord between John Comitis and Ari
Efstathiou,
and weigh up whether it was just and equitable in the
light thereof that the company should be liquidated. The value of
the company’s
asset far exceeds that of its liabilities.
Itsbusiness is being operated profitably. There is nothing in the
discord that evidently
exists between John Comitis and Ari
Efstathiou that adversely affects the operation of the company;
indeed much of the discord
appears to be founded in matters
unrelated to the affairs of the respondent, most particularly a
payment received by John Comitis
in his capacity as a director of
the Premier Football League – a position he had obtained by
virtue of his directorship
of Ajax Cape Town, a company in which the
Comitis and Efstathiou families held an indirect interest through
their holding in
Cape Town Stars. There is nothing to indicate that
if the appellants were to wish to dispose of their shares in the
company they
could not do so. A majority of the members of the
company are opposed to it being placed in liquidation. In view of
the finding
to which I have come it is unnecessary to go into these
questions to undertake the weighing up that would have been
necessary
to determine whether it would be just and equitable to
wind up the company had a basis for the application of the deadlock
principle
been established. It bears mention in this respect,
however, that on policy grounds there isconsiderable cogency in the
observationby
Patten LJ in
Fulham
Football Club (1987) Ltd v Richards &Anor [2011] EWCA Civ 855,
[2012] 1 All ER 414 (CA), at paras. 55-58, that intractable
dispute
between some of the shareholders in a solvent company
when
the majority of the members wish the company to continue in being
should usually be resolved by means of a buy out order
or other
alternative remedy so that a winding-up on just and equitable
grounds would be ‘a last resort’. Compulsory
liquidation
is a destroyer of wealth and frequently impacts adversely on wider
interests such as the job security of employees.
It is therefore
something in which there is a public interest that it be avoided
when possible; cf
Koen and Another v
Wedgewood Village Golf Country Estate (Pty) Ltd and Others
2012 (2) SA 378
(WCC), at paras. 13-14.
It remains only to deal with an application by the appellants to
introduce additional evidence at the appeal. The application
was
opposed by the respondent. We heard argument on the application
together with the argument on the appeal. The evidence which
it was
sought to introduce consisted of allegations of conduct by Ari
Efstathiou subsequent to the hearing in the court of first
instance
which it was contended supported the loss of confidence and trust in
him and his directorship of the respondent company
by the Comitis
brothers. We need to deal with the application only because of its
costs implications.
Applications of this nature are rarely
successful; the court’s power under s 22 of the Supreme
Court Act 59 of 1959
is exercised sparingly. The proper approach is
summarised in the following dicta of E.M. Grosskopf JA in
Weber-Stephen Products Co v Alrite
Engineering (Pty) Ltd
[1992] ZASCA 2
;
1992 (2) SA 489
(A), at 507C-F:
It has often been laid down that, in general, this Court
in deciding an appeal decides whether the judgment appealed from is
right
or wrong according to the facts in existence at the time it was
given and not according to new circumstances which came into
existence
afterwards. See
Goodrich v Botha and
Others
1954 (2) SA 540
(A) at 546A;
S
v Immelman
1978 (3) SA 726
(A) at 730H;
S
v V en 'n Ander
1989 (1) SA 532
(A) at
544I-545C; and
S v Nofomela
[1991] ZASCA 180
;
[1992
(1) SA 740
(A)].
In principle, therefore, evidence of events subsequent
to the judgment under appeal should not be admitted in order to
decide the
appeal. Whether there may be exceptions to this rule (the
possibility of which was not excluded by Schreiner JA in
Goodrich
's
case supra at 546C) need not now be decided because there are in my
view no exceptional circumstances in the present case which
would
render it desirable to hear such evidence. The new evidence sought to
be adduced in effect amounts to instances of further
infringements of
the interdict allegedly committed after the judgment was given in the
present case. As such they might have formed
the subject of new
contempt proceedings before an appropriate Court of first instance.
There does not seem to me to be any ground
of principle or
convenience why we should, in effect, perform the functions of such a
Court.
In
Van Eeden v Van
Eeden
1999 (2) SA 448
(C), at 454D-E,
this Court (per Comrie J, Griesel J concurring) held that
evidence of events subsequent to the judgment under
appeal could well
be received in principle, but added the
caveat
that‘the circumstances in which a Court
would exercise its discretion in favour of such a re-opening would
have to be very
special’. In my judgment the requirements for
the introduction of the evidence were not satisfied. Apart from the
fact that
some of the evidence was contentious, there were, in my
assessment, no exceptional circumstances justifying its admission. If
subsequent
events justify an order on a case not made out before the
court of first instance, the proper course will, in general, be for
the
party placing reliance thereon to commence proceedings based on
the new facts afresh; not to expect the appellate court to deal
with
the case as if at first instance. The application therefore fell to
be dismissed with costs.
In the result the following orders are made:
The application to introduce further evidence on appeal is
dismissed with costs.
The appeal is dismissed with costs.
The costs in each instance shall include the costs of two counsel.
A.G BINNS-WARD
Judge of the High Court
We concur:
P.B. FOURIE
Judge of the High Court
C.M.J FORTUIN
Judge of the High Court
1
See
also See also
Moosa NO v MavjeeBhawan (Pty) Ltd and Another
1967 (3) SA 131
(T) at 137;
Emphy and Another v Pacer Properties
(Pty) Ltd
1979 (3) SA 363
(D) at 366H - 367B and
Cilliers NO
and Others v Duin& See (Pty) Ltd
2012 (4) SA 203
(WCC) at
para. 5, amongst others.
2
Reference
had been made in the preceding paragraphs of Lord Wilberforce’s
speech to
Re Davis and Collett Ltd
[1935] Ch 693
,
[1935 All
ER Rep 315
, Baird v Lees
1924 SC 83
, Elder v Elder &
Watson Ltd
1952 SC 49
, Re Swaledale Cleaners Ltd
[1968] 3
All ER 619
, Re Fildes Bros Ltd
[1970] 1 All ER 923
, Re
Leadenhall General Hardware Stores Ltd
(unreported)
, Re Straw
Products
[1942] VLR 222
at 223
, Re WondoflexTextiles Pty Ltd
[1951] VLR 458
, at 467
, Tench v Tench Brothers Ltd
[1930]
NZLR 403
, Re Modern Retreading Ltd
[1962] EA 657
, Re
Sydney and Whitney Pier Bus Service Ltd
[1944] 3 DLR 468
and
Re
Concrete Column Clamps Ltd
[1953] 4 DLR 60
(Quebec).
3
Underlining
supplied.
4
Act
71 of 2008, which came into operation on 1 May 2011.
5
Cape
Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Others
[1995] ZASCA 53
;
1995 (4) SA 790
(A) at 803H (dealing with the question of when it
might be appropriate to disregard the separate juristic personaility
of a company
and pierce or lift the corporate veil).
6
Cf.
e.g.
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2)
SA 277
(SCA), at para. 47 (per Harms DP) approving the
observation to that effect by Joffe J in
Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others
1999 (2) SA 279
(T) 324F – G.