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[2026] ZAGPJHC 1017
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Clear Access (Pty) Ltd v Lasernet (Pty) Ltd (Leave to Appeal) (2023/132900) [2026] ZAGPJHC 1017 (4 September 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
CASE
NO: 2023/132900
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
In
the matter between:-
CLEAR
ACCESS (PTY)
LTD
Applicant
and
LASERNET
(PTY)
LTD
Respondent
LEAVE
TO APPEAL (JUDGMENT)
ALLEN
AJ
INTRODUCTION
[1]
This is an application for leave to appeal against the whole of my
judgment and order dated 20 July 2026.
[2]
The applicant applies for leave to appeal in terms of section
17(1)(a)(i) and
section 17(1)(a)(ii)
of the
Superior Courts Act 10 of
2013
to the Supreme Court of Appeal, alternatively, the full court of
this Division.
BACKGROUND
[3]
Applicant alleges numerous grounds for the set application and raised
19 grounds and 38 points wherein I erred and/or
misdirected myself.
The bulk of these grounds are directed at the court's findings of
fact.
[4]
Nothing new has been raised by the applicant. In my original written
judgment, I have dealt with most, if not all, of
the issues raised by
the applicant and it is not necessary for me to repeat those in full.
[5]
For the sake of completeness, I will deal briefly with some of the
points raised.
DISCUSSION
[6]
In the
matter of
Caratco
(Pty) Ltd v Independent Advisory (Pty) Ltd
[1]
it
was held:”
[2]
In order to be granted leave to appeal in terms of
s 17(1)
(a)
(i)
and
s 17(1)
(a)
(ii)
of the
Superior Courts Act an
applicant for leave must satisfy the
court that the appeal would have a reasonable prospect of success or
that there is some other
compelling reason why the appeal should be
heard. If the court is unpersuaded of the prospects of success, it
must still enquire
into whether there is a compelling reason to
entertain the appeal. A compelling reason includes an important
question of law or
a discrete issue of public importance that will
have an effect on future disputes. But here too, the merits remain
vitally important
and are often decisive.
[2]
“
[7]
Applicant must satisfy this court that it has met this threshold.
[8]
In paragraph 1 to 3 of the application for leave to appeal, the
applicant avers that where an agreement contains an “in
perpetuity clause and contains a non-variation clause”:
“
[8.1] Does an oral
termination of the agreement constitute a variation of the “in
perpetuity clause”?
[8.2] Can the
agreement be orally terminated by consent, or is it prohibited by the
non-variation clause? “
[9]
The applicant contends that there is a reasonable prospect of success
on appeal on the non-variation clause and/or that
this issue
constitutes a compelling reason to grant leave to appeal.
[10]
Applicant
avers that this raises an important question of law not previously
determined. In my judgement I have dealt extensively
with the
consensual termination and that a party may not unilaterally give
notice of termination and consensual cancellation is
a separate
agreement whereby another agreement is terminated.
[3]
[11] Consensual
termination is not prohibited by the non-variation clause and
applicant is not at variance with the non-variation
clause (clause
16.3) of the Joint Venture agreement (“JV”). This clause
is only a non-variation clause and not a non-termination
clause.
[12]
Unilateral cancellation is, however, prohibited. In the instant
matter consensual cancellation is at hand and not unilateral
cancellation. It is also common cause that the current state of the
law is that a non-variation clause in itself does not prohibit
consensual cancellation.
[13]
The common cause facts are:
1.
Clause 4 of the JV reads:
“
4
DURATION
4.1
The Joint Venture shall commence on the Effective Date of and shall
continue
in perpetuity.
4.2
The parties agree that
4.2.1
no Party shall be entitled to renounce the Joint Venture or give
notice
to
dissolve it save as expressly provided for in this Agreement and a
repudiation
shall not dissolve the Joint Venture.”
2.
The joint venture would endure into perpetuity in terms of this
clause.
3.
An agreement that provides an agreement is of unspecified duration or
in perpetuity
is valid
[4]
.
4.
A notice to dissolve the JV in terms of clause 4.2.1 shall be as
provided for in the
agreement.
5.
Clause 16.3 is the non-variation clause and reads:
”
This
Agreement constitutes the entire Agreement, and no other agreement,
provision, document or determination shall form part of
this
Agreement unless such other Agreement, provision, document or
determination is in writing and has been signed by both Parties.”
6.
This non-variation clause does not expressly refer to the termination
or cancellation
of the JV.
7.
The non-variation clause in itself does not prohibit consensual
termination and is
not a non-termination clause.
8.
The JV was not terminated in writing and this clause does not
expressly require it.
[14]
Clause 4 does not prohibit consensual termination and nothing needs
to be varied in the JV to terminate it. A variation
of the JV would
mean it continued to exist in a varied form. The termination thereof
consensually through a separate agreement
means the JV comes to an
end.
[15]
Applicant’s reliance is that clause 16.3 refers to “…no
other agreement” which has to be in
writing and that the
consensual cancellation agreement of 31 March 2021 was in oral and
does not fall within the ambit of clause
16.3. This “…such
other agreement” refers to an agreement that should be in
writing to form part of the JV.
The intention of the parties
was not that the cancellation agreement “shall form part”
of the JV. In the instant case
the JV was terminated.
[16]
The applicant raised a number of factual findings with which it
disagrees, but failed to show how the court’s assessment
was a
misdirection.
The
Test
[17]
The traditional test in deciding whether leave to appeal should be
granted was
whether
there is a reasonable prospect that another court may come to a
different
conclusion
to that reached by me, as averred by applicant. This approach has now
been codified in the
Superior Courts Act.
[18
]
In terms of
Section 17
of the
Superior
Courts Act, 10 of 2013
:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a)
(i) the appeal would have a reasonable
prospect success; or
(ii)
there is some other compelling reason why the appeal should be heard,
including conflicting judgments
on the matter under consideration;
(b)
….
“
[19]
The
word “would” in
Section 17(1)(a)(i)
of the
Superior
Courts Act was
discussed in the matter of
Mont
Chevaux Trust v Tina Goosen & 18 Others
[5]
as
per Bertelsman J,
held
as follows:
“
I
t
is clear that the threshold for granting leave to appeal against the
judgement of a high court has been raised in the new Act.
…The
use of the word “would” in the new statute indicates a
measure of certainty that another court will differ
from the court
whose judgment is sought to be appealed against
.”
[6]
[20]
T
he learned judge in the
Mont Chevaux
Trust
matter, supra, indicated that the
word
“would” should include and be interpreted as a "measure
of certainty” that another court could come
to another
conclusion. “Measure of certainty” should not be
interpreted that another court will come to a
different
conclusion
as a probability of success.
[7]
[21]
The courts as far back as 2013 in the
Mgezeni Gasbat Nxumalo v The
National
Bargaining
Council for the Chemical Industry (NBCCI) and Others
[8]
summarized the approach one should follow in determining whether to
allow an application for leave to appeal having due regard
to the
wording of
Section 17(1)(a)(i)
of the
Superior Courts Act: “[12
]…[3]
The traditional formulation of the test that is applicable in an
application such as the present requires the court
to determine
whether there is a reasonable prospect that another court may come to
a different conclusion to that reached in the
judgement that is
sought to be taken on appeal. As the respondents observe, the use of
the word “would” in
section 17(1)(a)(i)
are indicative of
a raising of the threshold since previously, all that was required
for the applicant to demonstrate was that
there was a reasonable
prospect that another court might come to a different conclusion.”
[22]
“
Reasonable
prospect of success
”
was discussed in the matter of
MEC
forHealth, Eastern Cape v Mkhitha and Another
[9]
at para
17: “An applicant for leave to appeal must convince the court
on proper grounds that there is a reasonable prospect
or realistic
chance of success on appeal. A mere possibility of success, an
arguable case or one that is not hopeless, is not enough.
There must
be a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal.”
[23]
The statutory prerequisite derived from
section 17(1)(a)(i)
of the
Superior
Courts
Act, is
the prompt resolution of disputes where there is a reasonable
prospect that the factual matrix could receive a different treatment
or where there is some legitimate dispute of law which would allow
another court to come to a different conclusion.
[24]
In
Ramakatsa
and Others v African National Congress and Another
[10]
at para
10 the court expressed itself as follows on “reasonable
prospects of success” as provided for in
Section 17(1)(a)
of
the
Superior Courts Act: “&hellip
;. The test of reasonable
prospects of success postulates a dispassionate decision based on the
facts and the law that a court of
appeal could reasonably arrive at a
conclusion different to that of the trial court. In other words, the
appellants in this matter
need to convince this court on proper
grounds that they have prospects of success on appeal. Those
prospects of success must not
be remote, but there must exist a
reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects
of success must be shown to
exist”
.
[25]
I
n
the case of
S
v Smith
[11]
Plasket
AJA (Cloete JA and Maya JA concurring) held as follows
at
para 7:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal”.
[26]
In
the judgment of
Notshokovu
v S
[12]
at para 2 the SCA remarked that an
appellant now faces a
higher and a more stringent threshold, in terms of the
Superior
Courts Act 10 of 2013
compared to that under the provisions of the
repealed Supreme Courts Act 59 of 1959.
[27]
I agree that there must be sound, rational,
and compelling reasons that there
are prospects of success
on appeal before leave to appeal can be granted.
[28]
In
Songono
v Minister of Law and Order
[13]
it was stated: “I am not aware of any judgment dealing
specifically with grounds of appeal as envisaged by Rule 49(1)(b);
however, Rule 49(3) is couched in similar terms and also requires the
filing of a notice of appeal which shall specify 'the grounds
upon
which the appeal is founded'. In regard to that subrule it is now
well established that the provisions thereof are peremptory
and that
the grounds of appeal are required, inter alia, to give the
respondent an opportunity of abandoning the judgment, to inform
the
respondent of the case he has to meet and to notify the Court of the
points to be raised. Accordingly, insofar as Rule 49 (3)
is
concerned,
it
has been held that grounds of appeal are bad if they are so widely
expressed that it leaves the appellant free to canvass every
finding
of fact and every ruling of the law made by the court a quo, or if
they specify the findings of fact or rulings of law
appealed against
so vaguely as to be of no value either to the Court or to the
respondent, or if they, in general, fail to specify
clearly and in
unambiguous terms exactly what case the respondent must be prepared
to meet
- see, for example,
Harvey
v Brown
1964
(3) SA 381
(E)
at 383;
Kilian
v Geregsbode, Uitenhage
1980
(1) SA 808
(A)
at 815 and Erasmus Superior Court Practice B1-356-357 and the various
authorities there cited.
“
It seems to me
that, by a parity of reasoning,
the
grounds of appeal required under Rule 49(1)(b) must similarly be
clearly and succinctly set out in clear and unambiguous terms
so as
to enable the Court and the respondent to be fully and properly
informed of the case which the applicant seeks to make out
and which
the respondent is to meet in opposing the application for leave to
appeal
.
Just as Rule 49(3) is peremptory in that regard, Rule 49(1)(b) must
also be regarded as being peremptory. In my view the lengthy
and
rambling notice of appeal filed in casu falls woefully short of what
was required. Mr Bursey suggested that grounds of appeal
could be
gleaned from the notice but that is not the point -
the
point is that the notice must clearly set out the grounds and it is
not
for
the Court to have to analyse a lengthy document in an attempt to
establish what grounds the applicant intended to rely upon
but did
not clearly set out. On this basis alone the application seems to me
to be fatally defective and must be dismissed.
”
[14]
(Emphasis added)
[29]
In the instant case the lengthy application
challenging every finding of fact and
every
ruling of law by the court
also fell short of what
was required. Furthermore,
Applicant’s heads did not
address all the points.
[30]
In
Doorewaard
and Another v S
[15]
,
prolixity in grounds of appeal was deprecated where Hendricks J (as
he then was) said:
“[3]
The
law governing a notice of appeal (and also notice of application for
leave to appeal) is trite. The grounds of appeal in a notice
of
application for leave to appeal must be clearly and succinctly set
out in unambiguous terms so as to enable the Court and the
respondent
to be fully and properly informed of the case which the applicant
seeks to make out and which the respondent is to meet
in opposing the
application for leave to appeal
.
The notice should not contain arguments. Therefore, heads of argument
must also be filed and served in which the points to be
argued will
be set out in much more detail.”
(Emphasis
added)
[31]
In
Hing
and Others v RAF
[16]
the
following was stated: “[4] The explanation is unacceptable.
The
application for leave to appeal had listed 65 grounds on which the
judge a quo was alleged to have 'erred and misdirected himself'
.
As the respondent's counsel justifiably observed,
a
number of those grounds were so vaguely formulated as to be of little
or no assistance in meaningfully defining the bases of the
intended
appeals.
In any event it should have been apparent to the appellants that the
learned acting judge could not possibly have intended his
words to be
taken literally. The effect of the notice of application for leave to
appeal was to suggest that he had misdirected
himself at every turn
in making any findings adverse to their claims. In the context of his
detailed and fully reasoned judgment,
it could not reasonably have
been assumed by the appellants or their legal representatives that by
granting leave to appeal in
the terms he did, the judge meant to be
understood to be acknowledging that such wide-ranging error and
misdirection on his part
might reasonably be established on appeal.
On the
contrary, the manifestly indiscriminate formulation of the grounds on
which the application for leave to appeal was brought
brings to mind
the observation of a US Appeals Court judge that when he sees 'an
appellant's brief containing seven to ten points
or more, a
presumption arises that there is no merit to any of them
”.(Emphasis
added)
[32]
In the instant case I failed to find, erred and/or misdirected myself
on 38 points
directed
at my findings of fact and every ruling of law.
[33]
In
the case of
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie and
Others
[17]
it was held:”
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions. So, too, on a number of peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving factual
disputes
of this nature may conveniently be summarised as follows.
To
come to a conclusion on the disputed issues a court must make
findings on
(a)
the
credibility of the various factual witnesses;
(b)
their
reliability; and
(c)
the
probabilities
.
As to
(a)
,
the court's finding on the credibility of a particular witness will
depend on its impression about the veracity of the witness.
That in
turn will depend on a variety of subsidiary factors, not
necessarily in order of importance, such as (i) the witness'
candour
and demeanour in the witness-box, (ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv)
external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements
or actions,
(v) the probability or improbability of particular aspects of his
version, (vi) the calibre and cogency of his
performance compared to
that of other witnesses testifying about the same incident or events.
As to
(b)
,
a witness' reliability will depend, apart from the factors mentioned
under
(a)
(ii),
(iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity
and
independence of his recall thereof. As to
(c)
,
this necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues.
In the light of its assessment of
(a)
,
(b)
and
(c)
the
court will then, as a final step, determine whether the party
burdened with the
onus
of
proof has succeeded in discharging it. The hard case, which will
doubtless be the rare one, occurs when a court's
credibility findings
compel it in one direction and its evaluation of the general
probabilities in another. The more convincing
the former, the less
convincing will be the latter. But
when
all factors are equipoised probabilities prevail
.”
[18]
[34]
This
holistic approach requires a conspectus of my findings on the
credibility of the various factual witnesses
[19]
,
their reliability, and the probabilities.
[20]
The applicant’s approach failed to appreciate the manner in
which credibility and probability interact.
[35]
In
the case of
Makate
v Vodacom Ltd
[21]
it was held:”
[37]
In these circumstances interference with the factual findings made by
the trial court is neither necessary nor justified. Ordinarily,
appeal courts in our law are reluctant to interfere with factual
findings made by trial courts, more particularly if the factual
findings depended upon the credibility of the witnesses who testified
at the trial.
[22]
In
Bitcon
Wessels
CJ said:
'(T)he
trial judge is not concerned with what is or is not probable
when dealing with abstract business men or normal men,
but is
concerned with what is probable and what is not probable as regards
the particular individuals situated in the particular
circumstances
in which they were.'
[23]
[38] In our system, as in
many similar systems of appeal, the cold record placed before
the appeal court does not capture all
that occurred at the trial. The
disadvantage is that the appeal court is denied the opportunity of
observing witnesses testify
and drawing its own inferences from their
demeanour and body language. On the contrary, this is the advantage
enjoyed by every
trial court. Hence an appeal court must defer to the
trial court when it comes to factual findings. In
Powell &
Wife
Lord Wright formulated the principle thus:
'Not
to have seen the witnesses puts appellate judges in a permanent
position of disadvantage as against the trial judge, and, unless
it
can be shown that he has failed to use or has palpably misused his
advantage, the higher court ought not to take the responsibility
of
reversing conclusions so arrived at, merely on the result of
their own comparisons and criticisms of the witnesses and
of their
own view of the probabilities of the case.'
[24]
”
[36]
The applicant elected to extract certain aspects from the conspectus
of the evidence to persuade the court whereas a
holistic approach
consequently will result in a different conclusion.
[37]
Applicant, for instance, avers that I should have rejected Otto’s
version of what transpired on 31 March 2021 and
I did not scrutinize
Otto’s testimony during cross-examination at all. This is
misplaced as I did consider it holistically
and is contained in my
judgment.
[38]
Applicant avers that I erred by not finding Minnaar to be a good and
credible witness as to what transpired on 31 March
2021. Applicant
elected to call Minnaar as the only witness. De Noon of
applicant was also present at the meeting, but was
not called to
testify. His untested affidavit was considered and was not favourably
for the applicant’s case.
[39]
The court’s holistic approach towards the evidence, Otto’s
and Minnaar’s evidence, as well as what
transpired on 31 March
2021 was apposite the
SFW case.
[40]
Applicant avers that I erred in my findings regarding the Octotel
litigation. Applicant did not lay a basis on the probabilities
in
this regard. Octotel was considered in the context of the factual
framework before court. Applicant approached the issue in
isolation.
[41]
Applicant
avers that I erred by referring to the case of
Barkhuizen
v Napier
[25]
and what was required of the applicant. Applicant elected to
isolate a portion of a sentence, ”..to demonstrate that
in the
particular circumstances it would be unfair to insist on compliance
with the clause”, of the paragraph I quoted to
substantiate
this averment and raised it out of context. In my judgment, however,
the following was emphasized from the same paragraph:”
'that intruding on apparently voluntarily concluded arrangements is a
step that Judges should countenance with care, particularly
when
it requires them to impose their individual conceptions of
fairness and justice on parties' individual arrangements'”
and I dealt with clause 4 and 14 of the JV in the following
paragraphs. This ground is of no moment.
[42]
Applicant further avers that I erred in not finding that the
agreement of 31 March 2021 constituted a
pactum de contrahendo.
No
critical analysis was proffered. I have dealt with this at length in
my judgment whereas applicant’s propositions are not
borne out
by the facts or legal principles.
[43]
Applicant also avers that I erred in not finding that the respondent
breached the JV by not giving applicant access to
the books.
Applicant was invited to the CLAN JV system, which invite was
confirmed, but elected not to log in and no substance
was proffered
that applicant could not log in at the time or thereafter.
[44]
Applicant, lastly, avers that I erred in finding that the applicant
failed to proffer substance regarding the shared
profits. No basis
was laid why I erred.
[45]
Applicant’s application does not have a
reasonable prospect of success and no compelling reasons were
proffered.
I have not erred in my interpretation of the
non-variation and in perpetuity clauses and there is therefore no
reasonable prospect
that a court of appeal may find that the JV could
only have been terminated in writing.
CONCLUSION
[46]
I am not persuaded that the issues raised by the applicant in this
application for
leave
to appeal are issues in respect of which another court is likely to
reach conclusions different to those reached by me. I
am therefore of
the view that there are not reasonable prospects or compelling
reasons of another court making factual findings
and coming to legal
conclusions at variance with my factual findings and legal
conclusions and leave to appeal should not be granted.
Costs are to
follow the result.
ORDER
[47]
In the circumstances, the following order is made:
1. The
application for leave to appeal is dismissed.
2. The
applicant is to pay the costs of this application, Scale C, including
the costs of counsel.
ALLEN
AJ
ACTING
JUDGE OF THE HIGH COURT,
GAUTENG
DIVISION JOHANNESBURG
This judgment was
prepared by Acting Judge Allen. It is handed down electronically by
circulation to the parties or their legal
representatives by email,
by uploading to the electronic file of this matter on Caselines, and
by publication of the judgment to
the South African Legal Information
Institute. The date for hand-down is deemed to be 4 September 2026.
HEARD
ON:
28 August 2026
DECIDED ON:
4 September 2026
For the Applicant:
Adv. P. van der Berg SC
Instructed
by:
Di Sienna Attorneys
For
the Respondent: Adv. A. Bester SC
Instructed
by:
HJWA Attorneys
[1]
2020
(5) SA 35 (SCA)
[2]
Minister
of Justice and Constitutional Development and Others v Southern
Africa Litigation Centre and Others
2016
(3) SA 317 (SCA)
(2016
(4) BCLR 487
;
[2016] 2 All SA 365
;
[2016] ZASCA 17)
paras
23 and 24.
[3]
In
Northern Estate and
Trust Administrators (Pty) Ltd v Agricultural and
Rural Development Corporation
2013
JDR 2677 (SCA)
at paragraph 4 it was said:”
[4] Consensual
cancellation is simply '. . . a contract whereby another contract is
terminated'(as Per Corbett
JA in
Van
Streepen & Germs (Pty) Ltd v Transvaal Provincial
Administration
1987
(4) SA 569
(A)
at
588H-I. The express consensual cancellation of the sale
agreement is alleged to have been concluded expressly at a meeting
held on 5 November 2007 and, alternatively, by conduct during
September 2008 when the ARDC repaid the purchase consideration
to
Boyes and he accepted the repayment. The question for decision in
this appeal is whether the court a quo correctly endorsed
the
decision of the court of first instance that the ARDC discharged its
onus of proving a consensual cancellation of the sale
agreement.
Appellant's counsel also raised a further argument before us, raised
neither at the trial nor in the court below,
that Boyes had been
divested of his right to claim transfer of the shares by virtue of
the cession of that right to the appellant
on 1 April 2008 and that,
consequently, only the appellant could thereafter have agreed to
cancel the sale agreement.”
See also
Van
Streepen and Germs v Transvaal Provincial Administration
1987(4)
SA 569 (A)
at 588 G-J
[4]
In the cases of
Trident
Sales (Pty) Ltd v AH Pillman & Son (Pty) Ltd
1984
(1) SA 433
(W)
at
436B and
Trio
Engineered Products Inc. v Pilot Crushtec International (Pty) Ltd
2019
(3) SA 580
(GJ)
in para [8];
Transnet
Limited
v Rubenstein
2006 (1) SA 591
(SCA)
;
Vansa
Vanadium SA Ltd v The Registrar of Deeds
1997
(2)
SA 784
(D)
at 790G – 792A.
I
t was held where parties have agreed for an agreement to
continue in perpetuity, they will be held to that bargain, and
cannot
be unilaterally terminated.
[5]
Case
No LCC14R/2014, dated 3 November 2014 at para [6]
[6]
Daantjie
Community and Others v Crocodile Valley Citrus Company (Pty) Ltd and
Another
(75/2008)
2015 JDR 1534 (LCC)
at para 3.
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance In Re: Democratic Alliance v Acting National
Director of
Public Prosecutions and Others
(19577/09)
[2016] ZAGPPHC 489 (24 June 2016)
at para 25
[7]
Van Zyl
v Steyn
(83856/15)
[2022] ZAGPPHC 302 (3 May 2022)
at
para 11
[8]
JR1170/2013
[2016] ZALCJHB 212 (15 June 2016)
[9]
(1221/2015)
[2016] ZASCA 176
(25 November 2016)
[10]
[2021]
ZASCA 31
(31 March 2021)
[11]
2012
(1) SACR 567
(15 March 2011)
[12]
Notshokovu
v S
(157/2015)
[2016] ZASCA 112
(7 September 2016).
[13]
1996
(4) SA 384
(E)
at
385F-386B
[14]
The
decision in
Songono
was
approved by the Full Court in
Xayimpi
and Others v Chairman Judge White Commission (formerly known as
Browde Commission) and Others
[2006]
2 All SA 442
(E)
and has been consistently followed in various divisions of the High
Court.
[15]
(CC33/2017)
[2019]
ZANWHC 25
(23
May 2019)
[16]
2014
(3) SA 350
(WCC)
on
page 353
[17]
2003
(1) SA 11 (SCA)
[18]
See
also
Baring Eiendomme BK v Roux
2000
JDR 0795 (SCA)
at
para 7.
[19]
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd
2006
(5) SA 548
(SCA)
at
para 30.
[20]
See
also
Merryweather
v Scholtz and Another
2024
JDR 4801 (SCA) at para 36.
[21]
2016
(4) SA 121
(CC)
[22]
R
v Dhlumayo and Another
1948
(2) SA 677
(A)
and
the authorities referred to therein.
[23]
Bitcon
v Rosenberg
1936
AD 380
at 396 – 397.
[24]
Powell
& Wife v Streatham Nursing Home
1935
AC 243
(HL)
at 265.
[25]
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC)
at
para 70.