Amler's Precedents of Pleadings

Foreword
This is a remarkable book. Its author, one of the brightest stars in South Africa's legal firmament, has mined the sea
of his encyclopaedic knowledge of our law to extract shining nuggets of precedents of pleadings covering a vast
area of civil law and very conveniently arranged them alphabetically for rapid and easy access. But he has done far
more than that, explaining, with abundant references to authority, the rationale, rules and requirements of the
different kinds of pleadings. And the notes accompanying the precedents contain concise and clear statements of
much of the relevant substantive law, supported by authority. Sound pleadings are, of course, essential weapons in
the armoury of every litigator, and the notes not only explain the rationale for the precedents but are valuable even
for the timeconstrained practitioner who is not working on a pleading but wishes to find quickly the law stated
briefly and simply.
Each edition of Amler's differs in many respects from the preceding one because law in a vibrant society like ours
remains in flux and changes and adapts itself continuously. From time to time sections are omitted because they
become irrelevant, or relatively unimportant, and new topics are added.
The present edition is not only an update but a detailed revision. In addition, it is now divided into two parts, the
first a new section deals with the principles of pleadings, and the second as before with precedents and
notes.
No civillaw practitioner should be without this invaluable resource.
Ezra Goldstein (Judge)
Johannesburg
July 2018
Preface
Pleadings and love letters have much in common: both are personal and reflect somewhat of the author's
personality. Precedents in either instance are dangerous because they tend to be inapplicable to the facts under
consideration. Each sets out and explains the position of the parties involved. If too much or too little is said,
problems arise. They provide embarrassing evidence of the original perceptions and intentions of the author and
never please successors in title.
The purpose of the present work is to provide a practical guide to the pleader. The emphasis is on essential
allegations for causes of action and defences and the incidence of the burden of proof. The precedents included are
illustrative only. Flesh is lacking. This is intentional: it is to prevent a pleader from succumbing to the temptation of
using them as they stand without any intellectual input.
Each edition of Amler's differs in many respects from the preceding one because law in a vibrant society remains
in flux and in South Africa it changes and adapts itself continuously. Some sections have been omitted because they
have become irrelevant or relatively unimportant and new topics have been added.
The notes have no jurisprudential pretensions. There are many who, like Garp's uncles, are of the opinion that
the practice of the law is vulgar but its study sublime. This work is not sublime. By their very nature the notes cannot
set out the underlying substantive law in detail. A selection of topics had to be made and the extent of the
discussion of each legal subject had similarly to be decided. The selection presented is not scientific or necessarily
logical but is based on what is illustrative and practical. Summaries of the law are basic, as found in the law reports,
and the notes largely uncritical. The references given are usually the more recent ones available and those the
author subjectively considers as having the greatest precedential value. Because Amler's remains a work of first
reference, references to articles and textbooks have been omitted.
References to All SA reports from before 1996 have been inserted for the benefit of readers who subscribe to the
electronic All South African Law Reports at www.mylexisnexis.co.za. This website enables readers to access the
references electronically and to interface with such works as LAWSA.
Many have contributed to this work, some wittingly, others unwittingly. Their contributions are appreciated. Mr
Luis Palminha deserves a special mention for his painstaking editing. The errors are the author's.
An attempt has been made to state the law as at December 2014.
LTC Harms
Pretoria
February 2015
[Page 1]
I. Introduction
Pleadings and love letters have much in common: both are personal and reflect somewhat of the author's
personality. Precedents in either instance are dangerous because they tend to be inapplicable to the facts under
consideration. Each sets out and explains the position of the parties involved. If too much or too little is said,
problems arise. They provide embarrassing evidence of the original perceptions and intentions of the author and
never please successors in title.
Purpose of pleadings: A party must define its cause of action and defence in the appropriate pleading in the court
of first instance, to inform the other parties to the matter of the case they must meet and of the relief sought
against them in that court. This is a fundamental principle of fairness in the conduct of litigation, which promotes the
parties' rights to a fair hearing guaranteed by section 34 of the Constitution.
South African Police Service v Solidarity obo Barnard 2014 (10) BCLR 1195 (CC), [2014] 11 BLLR 1025 (CC),
2014 (6) SA 123 (CC) para. 202
The purpose of pleadings is to define the issues for the other party and the trial court and for any court of appeal.
The duty of those courts is to adjudicate upon the disputes and those disputes alone.
Molusi and others v Voges NO and others 2016 (3) SA 370 (CC), 2016 (7) BCLR 839 (CC)
Fischer and another v Ramahlele and others [2014] 3 All SA 395 (SCA), 2014 (4) SA 614 (SCA) para. 13
Barkhuizen v Napier 2007 (7) BCLR 691 (CC), 2007 (5) SA 323 (CC) para. 39
The oftrepeated statement that 'pleadings are made for the court not the court for the pleadings' may be
misunderstood. As mentioned, pleadings are made primarily for the parties. They are also made for the court,
meaning that they circumscribe the function of the court in the matter. However, the court should not be hampered
in deciding a matter by pleading technicalities.
Clarity and conciseness: Every pleading must contain a clear and concise statement of the material facts upon
which the pleader relies for the claim, defence or answer, with sufficient particularity to enable the opposite party to
reply thereto.
Uniform rule 18
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (3) BCLR 219 (CC), 2012 (1) SA 256 (CC)
para. 52
Stead v Conradie en andere [1995] 1 All SA 472 (A), 1995 (2) SA 111 (AD)
See CONSTITUTIONAL ISSUES
Fact and law: Pleadings are accordingly about facts from which legal conclusions may be drawn and not about law.
Facts (the facta probanda), and not evidence (the facta probantia), must be pleaded.
Moaki v Reckitt & Colman (Africa) Ltd [1968] 3 All SA 242 (A), 1968 (3) SA 98 (A)
Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing [2001] 2 All SA 319 (T), 2001 (2) SA 790 (T)
Facts may be either primary or secondary. Primary facts are facts capable of being used for drawing inferences
about the existence or nonexistence of other (secondary) facts.
The facts relied on must be admissible in evidence.
Du Plessis v Nel 1952 (1) SA 513 (A)
Ferreira v SAPDC (Trading) Ltd [1983] 3 All SA 346 (A), 1983 (1) SA 235 (A)
[Page 2]
Legal conclusion: A conclusion, opinion or inference must be supported by facts to justify it. Without primary facts
on which they are based, secondary facts are nothing more than conclusions and do not constitute evidential
material capable of supporting a cause of action or defence.
Dros (Pty) Ltd v Telefon Beverages CC [2003] 1 All SA 164 (C), 2003 (4) SA 207 (C) para. 28
Radebe v Eastern Transvaal Development Board [1988] 2 All SA 271 (A), 1988 (2) SA 785 (A) p. 793
It is not the legal conclusion in the pleadings that determines the real issues between the parties but the facts
alleged. An incorrect label does not affect the merits of a pleading.
F v Minister of Safety and Security and others (Institute for Security Studies and others as amici curiae) 2012 (3)
BCLR 244 (CC), 2012 (1) SA 536 (CC), (2012) 33 ILJ 93 (CC), 2013 (2) SACR 20 (CC) para. 128
Presidency Property Investments (Pty) Ltd and others v Patel 2011 (5) SA 432 (SCA) para. 21
Deviation: Since the object of pleading is to define the issues between them, parties should, as a rule, be held to
their cases as pleaded. A court deciding a case may not have recourse to issues falling outside the pleadings.
Departure is permitted by agreement or at the court's discretion in the absence of prejudice.
EC Chenia and Sons CC v Lamé and Van Blerk [2006] ZASCA 10, 2006 (4) SA 574 (SCA) paras 1113
Trope v South African Reserve Bank [1993] 2 All SA 278 (A), 1993 (3) SA 264 (AD)
A court may, of its own accord, raise a question of law that emerges fully from the evidence and is necessary for the
decision of the case if its consideration at the trial or on appeal involves no unfairness to the party against whom
the question is directed.
A party may not plead one issue and then at the trial or on appeal attempt to canvass another which has not been
put in issue and fully investigated. It is not permissible to direct the attention of the other party to one issue and
then attempt to canvass another.
Imprefed (Pty) Ltd v National Transport Commission [1993] 2 All SA 179 (A), 1993 (3) SA 94 (A) pp. 107108
Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA)
2014 (6) SA 123 (CC) para. 202
Alternatives: Inconsistent allegations are permissible in claims or pleas, provided they are in the alternative, do not
cause the other party embarrassment or prejudice, and are legally tenable.
SAR&H v Lennon Ltd 1945 AD 157 p. 167
Custom Credit Corp (Pty) Ltd v Shembe [1972] 3 All SA 489 (A), 1972 (3) SA 462 (A)
Kragga Kamma Estates CC v Flanagan [1995] 1 All SA 486 (A), 1995 (2) SA 367 (A)
The problem with alternatives is that they indicate that the party does not know what its case or evidence is.
Another problem is that a litigant may plead in the alternative but the evidence cannot be presented in the
alternative.
McDonald v Young 2012 (3) SA 1 (SCA) paras 2325
II. Claims
General: The rules stated under the INTRODUCTION apply.
There are three types of claim document, namely (a) a simple summons, which may be used if the claim is for a 'debt
or liquidated demand'; (b) a declaration, which is [Page 3] required if a simple summons is defended; and (c) the
particulars of claim of a combined summons, which is necessary if the claim is an illiquid claim that is, if it is not a
'debt or liquidated demand'.
The requirements for a declaration and the particulars of claim forming part of a combined summons do not differ
and what follows applies to both. (For the sake of convenience, the term 'claim' will be used to refer to both.)
A plaintiff may use a combined summons for a debt or liquidated demand if it is expected that the claim will be
opposed or if the claim is complicated.
Uniform rule 20
Magistrates' court rule 15
Content: A claim must set out the following:
(a) the nature of the plaintiff's claim;
(b) a clear and concise statement of the material facts on which the plaintiff relies for the claim;
(c) the conclusions of law which the plaintiff is entitled to deduce from the facts stated; and
(d) a prayer for the relief claimed.
Minister van Wet en Orde v Jacobs 1999 (1) SA 944 (O)
Distinct claims founded upon separate and distinct facts must be separately and distinctly stated.
Uniform rule 18 has some specific pleading requirements relating to contracts, divorces and damages. These are
dealt with in Part B, under the appropriate headings.
III. Pleas
Content: The obligation of a defendant is to (a) admit, (b) deny, or (c) confess and avoid the material facts alleged
in the plaintiff's claim, or (d) to state which of them are not admitted and to what extent, and (e) to state clearly
and concisely all material facts on which the defendant relies. The duty of the pleader is to deal with all the
allegations made by the plaintiff.
Sterling Consumer Products (Pty) Ltd v Cohen [2000] 4 All SA 221 (W)
This does not mean that the formulaic answers 'the allegations contained in this paragraph are admitted' or 'each
and every allegation in this paragraph is denied as if specifically traversed' should be used. The American practice of
using 'admitted' or 'denied' may be considered.
It is not necessary to give a legal tag to the defence, but the facts as set out must place the defence clearly in one
or more specific legal niches.
The facts underlying different defences must be pleaded separately. In other words, rolledup defences are not
permissible.
Davies v Lombard [1966] 1 All SA 177 (W), 1966 (1) SA 585 (W)
Admission: It is not necessary for any party in any civil proceedings to prove and a party is not entitled to seek to
disprove any fact admitted on the record of the proceedings.
Civil Proceedings Evidence Act 25 of 1965s 15
Water Renovation (Pty) Ltd v Gold Fields of SA Ltd [1994] 2 All SA 33 (A), 1994 (2) SA 588 (A) p. 605
Dali v Government of the RSA [2000] 3 All SA 206 (A) para. 21
[Page 4]
The defendant may admit part of the plaintiff's claim and dispute the balance without making a tender for the
admitted part. The plaintiff is entitled to judgment on the admitted part.
Rumanal (Pty) Ltd v Hubner [1976] 1 All SA 102 (E), 1976 (1) SA 643 (E)
Withdrawal of admission: An admission in a plea cannot be withdrawn or otherwise amended by an ordinary
notice of intention to amend (or notice of amendment): a substantive application to court is required. It must be
shown that the admission was made in error and that the plaintiff would not suffer material prejudice if the
amendment were granted.
Bellairs v Hodnett 1978 (1) SA 1109 (A) p. 1150
Van Zyl and Maritz NNO v SA Special Risks Insurance Association [1995] 1 All SA 7 (SE), 1995 (2) SA 331 (SE)
p. 339
Denial: Denial of an allegation made by the plaintiff must be unambiguous.
FPS Ltd v Trident Construction (Pty) Ltd [1989] 2 All SA 295 (A), 1989 (3) SA 537 (A) p. 542
If a fact is not unambiguously denied, it is deemed to have been admitted.
Absa Bank Limited v IW Blumberg & Wilkinson [1997] 2 All SA 307 (A), 1997 (3) SA 669 (SCA) pp. 673674
A denial need not be particularised unless the onus on the denied allegation rests on the defendant, in which event
the denial must be explained. A denial does not allow a defendant to rely on another defence that is not specifically
pleaded.
Uniform rule 22(3)
Madyosi v SA Eagle Insurance Co Ltd [1990] 2 All SA 408 (A), 1990 (3) SA 442 (A)
A defendant may explain a denial by alleging that the defendant has no knowledge of the fact concerned and
consequently denies it.
Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd [1985] 2 All SA 116 (C), 1985 (3) SA 410 (C)
N Goodwin Design (Pty) Ltd v Moscak [1992] 3 All SA 270 (C), 1992 (1) SA 154 (C)
A statement that the defendant does not admit a fact does not amount to a denial.
Wilson v SAR&H 1981 (3) SA 1016 (C)
But see N Goodwin Design (Pty) Ltd v Moscak [1992] 3 All SA 270 (C), 1992 (1) SA 154 (C)
Bare denial: A bare denial of liability or a defence of general issues is not permitted. A plea in which the defendant
pleads, as a conclusion of law, a denial of liability or indebtedness to the plaintiff, without reference to the factual
basis from which the conclusion is drawn, amounts to a bare denial. This means that it does not suffice to plead a
legal conclusion without pleading a factual basis.
Lubbe v Bosman [1948] 3 All SA 497 (A), 1948 (3) SA 909 (A)
Williams v Williams [1971] 3 All SA 45 (O), 1971 (2) SA 620 (O)
Radebe v Eastern Transvaal Development Board [1988] 2 All SA 271 (A), 1988 (2) SA 785 (A) p. 793
Prayers: A plea must end with a prayer. The normal prayer is for the dismissal with costs of the plaintiff's claim. If
the plea is dilatory, the relief sought is a stay of the plaintiff's claim until the occurrence of the specified event.
Counterclaims: A plea may not be used to disguise a counterclaim, although this is indirectly allowed when a
defendant prays for an apportionment of damages, the reduction of a penalty, or rectification of a contract. In these
instances, the relief sought is not independent from that sought by the plaintiff but is in reduction or qualification of
it.
[Page 5]
IV. Special pleas
Definition: A special plea is a plea that raises some special defence that does not flow from allegations in the claim
and destroys or postpones the operation of the cause of action. In other words, it embodies a substantive, self
contained defence dehors (outside) the allegations made in respect of the plaintiff's cause of action.
Brown v Vlok 1925 AD 56
Viljoen v Federated Trust Ltd [1971] 2 All SA 107 (O), 1971 (1) SA 750 (O) p. 760
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W)
A special plea may be a plea in abatement or a dilatory plea, but its nature need not be stated in either the plea's
heading or its body.
Van der Westhuizen v Smit NO [1954] 2 All SA 169 (SWA), 1954 (3) SA 427 (SWA) p. 430
Special plea and exception compared: A defence apparent from the statement of claim should be raised by way of
exception but can be raised in a special plea, provided it is properly and timeously raised in an intelligible form.
However, in the case of an exception the excipient is limited to the allegations made in the pleading to which the
exception is raised, whereas additional facts may be alleged in a special plea.
Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ) para. 20
Pleading over: The issue is whether a defendant is entitled to file a special plea without addressing the other
allegations in the claim in other words, whether it is necessary to plead over or not. The rules do not provide
separately for special pleas and the defendant must plead to the whole case.
Pretorius v Fourie NO [1962] 2 All SA 300 (O), 1962 (2) SA 280 (O)
Du Plessis v Doubells Transport (Edms) Bpk 1979 (1) SA 1046 (O)
David Beckett Construction (Pty) Ltd v Bristow [1987] 3 All SA 25 (W), 1987 (3) SA 275 (W)
This may cause unnecessary costs in relation to pleading jurisdiction, lis pendens, res iudicata and an arbitration
agreement.
Meyerson v Health Beverages (Pty) Ltd [1989] 4 All SA 179 (C), 1989 (4) SA 667 (C)
Cf. Levy v Levy [1991] 2 All SA 407 (A), 1991 (3) SA 614 (A)
Special pleas usually precede the response in the plea to the claim. They are sometimes embodied in a separate
document, and there is no objection to pleading a special defence in the course of the plea, with or without a
special heading.
Onus: The onus rests on the defendant to prove the facts underlying the special plea.
Masuku v Mdlalose [1997] 3 All SA 339 (A), 1998 (1) SA 1 (SCA)
Relief: If a special plea fails, it is dismissed. If the special plea succeeds, the action is either dismissed or stayed,
depending on the nature of the special plea. Absolution from the instance cannot be granted.
Smit v Oosthuizen 1979 (3) SA 1079 (A)
Constantia Insurance Co Ltd v Nohamba [1986] 2 All SA 312 (A), 1986 (3) SA 27 (A)
Ndlovu v Santam Ltd 2006 (2) SA 239 (SCA)
Precedents for special pleas are to be found under the relevant headings for example, ARBITRATION and
JURISDICTION.
[Page 6]
V. Exception
Formal requirements: Uniform rule 23 and Magistrates' court rule 19 provide for exceptions when
(a) a pleading is vague and embarrassing; or
(b) a pleading lacks the averments necessary to sustain a cause of action or a defence (i.e. when it is bad in law).
Trope v SA Reserve Bank [1993] 2 All SA 278 (A), 1993 (3) SA 264 (A)
The grounds on which the exception is founded must be stated clearly and concisely.
Uniform rule 23(3)
An exception on ground (a) must be preceded by a notice affording the opponent the opportunity of removing the
cause of complaint.
A party who excepts does not have to file a further pleading until the exception has been disposed of.
Uniform rule 23(4)
An exception must end with a prayer for the deletion of the offending allegations or for the dismissal of the action or
defence.
Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163 pp. 174175
Barclays National Bank Ltd v Thompson [1989] 1 All SA 447 (A), 1989 (1) SA 547 (A)
The discussion below deals with exceptions that are bad in law.
Purpose: The purpose of an exception alleging that a pleading is bad in law is to dispose of the leading of evidence
at trial. The exception must go to the root of the claim or defence.
Vermeulen v Goose Valley Investments (Pty) Ltd [2001] 3 All SA 350 (A), 2001 (3) SA 986 (SCA)
Trustees for the time being of the Bus Industry Restructuring Fund v Break Through Investments CC [2008] 1 All
SA 23 (SCA), 2008 (1) SA 67 (SCA)
The point of law raised must dispose of the case in whole or in part. An exception may not be taken to sections of a
pleading unless they are selfcontained and amount to separate claims or defences.
Barclays National Bank Ltd v Thompson [1989] 1 All SA 447 (A), 1989 (1) SA 547 (A)
An exception cannot be taken to a claim because it does not support one of several prayers arising out of one
cause of action. The reason for this is that the unjustifiable prayer would amount to a plus petitio and its deletion
would accordingly not affect the amount of evidence to be led.
Dharumpal Transport (Pty) Ltd v Dharumpal [1956] 1 All SA 388 (A), 1956 (1) SA 700 (A)
On the other hand, when the same claim is based on alternative causes of action, an exception may be taken
against one or more of the alternatives.
Du Preez v Boetsap Stores (Pty) Ltd [1978] 2 All SA 460 (NC), 1978 (2) SA 177 (NC)
An exception cannot be used to solve a factual dispute and is decided on the allegations of the respondent only.
First National Bank of SA Ltd v Perry NO [2001] 3 All SA 331 (A), [2001] ZASCA 37, 2001 (3) SA 960 (SCA)
On exceptions in constitutional matters, see
H v Fetal Assessment Centre 2015 (2) BCLR 127 (CC), 2015 (2) SA 193 (CC)
Interpretation: An exception may not be the appropriate procedure to settle questions of interpretation when the
entire contract is not before the court, or when it appears [Page 7] from the contract or pleadings that there may
be admissible evidence which, if placed before the court, could influence the court's decision as to the meaning of
the contract, provided that this possibility is more than a notional or remote one.
Picbel Groep Voorsorgfonds (in liquidation) v Somerville and other related matters [2013] 2 All SA 692 (SCA),
2013 (5) SA 496 (SCA) para. 39
Similarly, whether a contract is void for vagueness does not readily fall to be decided by way of exception.
Lewis v Oneanate (Pty) Ltd [1992] 2 All SA 498 (A), 1992 (4) SA 811 (A) pp. 817818
Wrongfulness: It may be inappropriate to decide the issue of wrongfulness on exception because the issue is often
factbound. However, some publicpolicy considerations can be decided without a detailed factual matrix which, by
contrast, is essential for deciding negligence and causation.
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority of SA [2006] 1 All SA 6 (SCA),
2006 (1) SA 461 (SCA)
Ambiguous pleading: An exception on the basis that the pleading is ambiguous cannot succeed unless, on every
interpretation, no cause of action or defence is disclosed. (It has been said that the remedy in such instances would
be to except on the basis that the pleading is vague and embarrassing, but this remedy appears doubtful.)
SA National Parks v Ras [2001] 4 All SA 380 (C), 2002 (2) SA 537 (C)
Upholding of exception: If an exception claiming that the pleading is bad in law is upheld, the judgment disposes of
the pleading (or part thereof) finally but not of the respondent's action or defence. Accordingly, the proper order is
to uphold the exception and grant the respondent leave to amend the offending pleading within a specified period,
and not to dismiss the claim or grant judgment. The order is appealable.
Maize Board v Tiger Oats Ltd 2002 (5) SA 365 (SCA) paras 1214
Ocean Echo Properties 327 CC and another v Old Mutual Life Assurance Company (South Africa) Ltd
2018 (3) SA 405 (SCA)
Pretorius and another v Transport Pension Fund and another [2018] ZACC 10 paras 2122
Dismissal of exception: Dismissal of an exception that the pleading is bad in law does not bring an end to the legal
issue since the legal issue may be raised again in a subsequent pleading. The order is not subject to appeal.
Maize Board v Tiger Oats Ltd 2002 (5) SA 365 (SCA) paras 1214
Pretorius and another v Transport Pension Fund and another [2018] ZACC 10 paras 2122
Precedents: See Part B s.v. EXCEPTION.
VI. Counterclaims
Purpose: The proper course in adjudicating reciprocal claims between parties is to adjudicate the claims
simultaneously and to decide who, on balance, is the successful party and consequently the true creditor.
Uniform rule 18
Du Toit v De Beer [1955] 1 All SA 320 (T), 1955 (1) SA 469 (T)
Muller and others v Botswana Development Corporation Ltd [2002] 3 All SA 663 (SCA), 2003 (1) SA 651 (SCA)
The advantages for a defendant of proceeding by way of a counterclaim instead of an independent action are, first,
that the decision on the plaintiff's claim is kept in [Page 8] abeyance for decision with the counterclaim and, second,
that the plaintiff in convention is bound to recognise the jurisdiction of the court in respect of the counterclaim.
LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd [1974] 2 All SA 6 (A), 1974 (1) SA 747 (A) p. 764
Thompson v Scholtz [1998] 4 All SA 526 (A), 1999 (1) SA 232 (SCA)
The second point must be qualified for magistrates' courts. When the court finds that the claim in reconvention
exceeds its jurisdiction, the defendant may apply for a stay of the action. If no application for a stay is made or if
such an application is dismissed, the court may dismiss the counterclaim to the extent that it exceeds the court's
jurisdiction.
Magistrates' court rules 17(4) and 20
Esterhuizen v Holmes 1947 (2) SA 789 (T)
The action in convention and the action in reconvention remain separate and distinct actions, although they are
heard simultaneously. The plaintiff in reconvention has all the rights of a plaintiff and may, for instance, apply for
judgment by default on the counterclaim.
Acs v Acs [1981] 3 All SA 736 (W), 1981 (2) SA 795 (W)
Matyeka v Kaaber [1960] 4 All SA 335 (T), 1960 (4) SA 900 (T)
A counterclaim to a counterclaim is conceivable but not in magistrates' courts.
Levy v Levy [1991] 2 All SA 407 (A), 1991 (3) SA 614 (A)
Form: A counterclaim is in form the same as a claim in a declaration, save that it is not necessary to repeat the
names or descriptions of the parties to the proceedings in convention.
Uniform rule 24(1)
Naming of parties: It is customary to state in the counterclaim that the plaintiff in reconvention is the defendant in
convention and that the defendant in reconvention is the plaintiff in convention and that the parties are to be
referred to as in the plaintiff's pleadings.
Incorporation by reference: It is usual to incorporate, by way of reference, allegations in the pleadings of the
plaintiff in the main claim as well as allegations made in the plea.
Ribeiro v Santam Ltd [1996] 2 All SA 47 (W), 1996 (3) SA 1035 (W)
Time: A defendant who counterclaims must deliver the claim in reconvention together with the plea but may with
the permission of the plaintiff or the court deliver it at a later stage.
Sekhoto v Qwa Qwa Auto Industries CC Panel Beaters & Spray Painters 1998 (1) SA 164 (O)
Lethimvula Healthcare (Pty) Ltd v Private Label Promotion (Pty) Ltd 2012 (3) SA 143 (GSJ)
A counterclaim may be inappropriate if it depends on future and possibly uncertain contingencies. A declaration of
rights may be more appropriate.
Metje & Ziegler Ltd v Stauch, Vorster & Partners 1972 (4) SA 679 (SWA)
C f . Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd [ 1 9 7 0 ] 1 A l l S A 3 6 9 ( A ) ,
1970 (1) SA 228 (A)
Liquid and illiquid counterclaims: A defendant who wishes to set off a liquidated claim against the plaintiff's claim
need not file a counterclaim but may plead setoff. However, a defendant who wishes to set off an unliquidated
claim is obliged to proceed by way of a counterclaim.
Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd [1970] 1 All SA 369 (A), 1970 (1) SA 228
(A)
[Page 9]
The counterclaim will then serve to make the illiquid claim liquid, whereupon the claim can be set off against the
main claim. The defendant must rely in the plea on the existence of the counterclaim and request that judgment in
respect of the claim or a portion of it, which would be extinguished by the counterclaim, be postponed until
judgment on the counterclaim. Judgment on the claim, whether on the whole or part of it, must then be postponed
unless the court, on application, orders otherwise.
Uniform rule 22(4)
Magistrates' court rule 20(3)
Judgment may nevertheless be granted on the claim in convention, especially when the defendant is dilatory in
proceeding with the counterclaim.
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd [2002] 1 All SA 517 (C), 2002 (2) SA 580 (C)
Magistrates' court rule 20(7) provides that, when both the claim in convention and the claim in reconvention
proceed to trial, each action may be tried separately, but judgment must be given on both at the same time.
Unrelated claims: The relief claimed in the counterclaim may be unrelated to the relief claimed in the claim in
convention and not lead to the liquidation of an unliquidated claim and an eventual setoff. The court may, in the
exercise of its discretion, grant judgment on the claim in convention (if the claim is admitted), especially if the claim
in convention will be frustrated by a counterclaim which has no bearing on the main claim for instance, when the
plaintiff claims ejectment and the defendant counterclaims for the value of improvements to the leased property.
Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk [ 1 9 8 4 ] 2 A l l S A 3 3 8 ( N ) , 1 9 8 4 ( 3 ) S A 7 6 0 ( N ) ,
1986 (1) SA 448 (A)
Cf. DJay Corporation CC v Investor Management Services (Pty) Ltd [1996] 4 All SA 650 (W), 2000 (2) SA 755 (W)
Counterclaim for a lesser amount: The counterclaim may be for an amount smaller than that being claimed. In such
an event, judgment will normally be granted for the plaintiff on the admitted part of the claim and the action will
proceed on the disputed part.
Du Toit v De Beer [1955] 1 All SA 320 (T), 1955 (1) SA 469 (T)
Baking Investments (Pty) Ltd v Britz 1978 (3) SA 1067 (T)
Uniform rule 22(4)
Conditional counterclaim: The counterclaim may be conditional on the failure of the claim in convention or of the
defence of the defendant in convention.
Uniform rule 24(4)
SA Onderlinge Brand & Algemene Versekeringsmaatskappy Bpk v Van den Berg 1976 (1) SA 602 (A)
Precedents: See PART B s.v. COUNTERCLAIMS.
VII. Replication
Rules of court: See Uniform rule 25 and Magistrates' court rule 21.
When required: A replication must be filed when it is necessary. A replication is necessary when the plaintiff intends
(a) admitting allegations in the plea;
(b) admitting (confessing) but at the same time avoiding allegations in the plea; or
(c) responding to a special defence such as one based on prescription.
[Page 10]
A replication is not necessary when the plaintiff disputes the allegations in the plea because the absence of a
replication amounts to a denial of all the allegations in the plea.
Nature: A replication
(a) must be consistent with the allegations in the claim and may not increase the ambit of the claim;
(b) may not contain a new cause of action if it does, the defendant may ignore the new cause of action;
Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd [1998] 4 All SA 465 (A), 1999 (2) SA 719 (SCA)
(c) must be in answer to, or a result of, the allegations contained in the plea.
If the allegations in the plea cannot be dealt with in the replication, amendment of the claim may be required.
Legal admission: A legal admission in the replication is not binding unless it amounts to abandonment of a point on
which the defendant could have relied.
Symington v PretoriaOos Privaat Hospitaal Bedryfs (Pty) Ltd [2005] 4 All SA 403 (SCA), 2005 (5) SA 550 (SCA)
Joinder of issues: Plaintiffs who wish to replicate need not deal with all the allegations in the plea. However,
unless the replication contains a general joinder of issue (i.e. a general denial), allegations that have not been
traversed are deemed to have been admitted.
Further pleadings: Further pleadings must be referred to by the names by which they are customarily known,
namely rejoinder, surrejoinder, rebutter and surrebutter.
Precedent: See Part B s.v. REPLICATION AND FURTHER PLEADINGS.
VIII. Prayers
Requirement: Every pleading must end with a prayer for the relief sought. The prayer must be formulated with
precision and must be consistent with the preceding allegations of fact. A plus petitio should be ignored.
Dharumpal Transport (Pty) Ltd v Dharumpal [1956] 1 All SA 388 (A), 1956 (1) SA 700 (A)
Costs: Failure to include a prayer for costs does not prevent a court from granting a costs order, provided the
defendant appears and opposes the relief sought.
Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) pp. 632633
When a special costs order is sought, it is not necessary to set out that claim in the prayers, but the other party
must be apprised of the intention to seek special costs in good time to enable it to prepare argument.
Alternative relief: Although it is usual to insert a prayer for alternative relief, it is not necessary to do so. Even in
the absence of such a prayer, a court may grant relief similar to, or more limited than, that sought.
Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272
National Stadium South Africa (Pty) Ltd and others v Firstrand Bank Ltd [2011] 3 All SA 29 (SCA), 2011 (2) SA 157
(SCA) para. 45
On the other hand, the prayer does not entitle the court to grant relief that is inconsistent with the terms and
factual statements of the claim.
Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C)
City of Cape Town v Mgoqi 2006 (4) SA 355 (C) para. 12
[Page 11]
IX. Stated case
Leading case:
Minister of Police v Mboweni [2014] 4 All SA 452 (SCA), 2014 (6) SA 256 (SCA)
Formal requirements: Parties to a dispute may, after proceedings have been instituted, agree on a written
statement of facts in the form of a special case for adjudication. Proceedings must have been instituted: parties
cannot approach the court with a stated case before that stage.
The statement must contain (a) the facts agreed upon, (b) the questions of law in dispute between the parties, and
(c) the parties' contentions regarding those questions.
Uniform rule 33(1)(3)
The statement must be divided into consecutively numbered paragraphs. Copies of all documents necessary to
decide the questions must be annexed.
Issues: The procedure is in the hands of the parties and depends on their agreement. The questions posed may
relate to preliminary issues. Depending on the finding, the proceedings may either be terminated or continue in
respect of the outstanding matters. The parties may base the case on assumed facts, which are assumed for the
purposes of deciding the stated case only.
Montsisi v Minister van Polisie [1984] 1 All SA 478 (A), 1984 (1) SA 619 (A)
Sibeko v Minister of Police [1985] 3 All SA 71 (W), 1985 (1) SA 151 (W)
Proceedings: The procedure does not change or dispose of the incidence of proof.
Moni v Mutual & Federal Versekeringsmaatskappy Bpk [1992] 1 All SA 135 (T), 1992 (2) SA 600 (T)
The court may draw inferences from the agreed facts and attached documents and may base its decision on the
questions of law in dispute on the facts and inferences. As part of its order the court may give such directions as
are necessary for the final disposal of the outstanding issues between the parties.
Seven Eleven Corporation SA (Pty) Ltd v Georgiou [2002] 4 All SA 612 (SE) p. 619
PRECEDENT
1. It is common cause between the parties that on or about 10 June 1977 plaintiff was detained in terms of section 6 of the
Terrorism Act 83 of 1967 by members of the South African Police and held in such detention until 18 July 1978.
2. It is alleged by plaintiff that, whilst so detained, plaintiff was assaulted by members of the South African Police who were
employed by defendant and were acting within the course and scope of their employment; and that he suffered injuries
as a result of the assault and consequently suffered damages as a result of the assaults and consequent injuries.
3. Plaintiff alleges that he has given defendant due notice in terms of section 32 of Act 7 of 1958, as amended.
4. Accordingly, plaintiff claims damages from defendant.
5. It is common cause that plaintiff purportedly complied with section 32 of Act 7 of 1958 on 23 November 1978 by way of
a letter.
6. It is also common cause that the summons in this action was issued on 15 January 1979.
7. In a special plea defendant pleaded that plaintiff's action is barred by virtue of the provisions of section 32 of Act 7 of
1958, as amended.
8. In addition to defendant's special plea, defendant pleaded over on the merits, but the honourable court is not asked to
adjudicate on such plea at this stage.
9. To defendant's special plea, plaintiff replied inter alia by averring that because of his detention, plaintiff was unable to
obtain legal advice or to institute the action and that, [Page 12] accordingly, plaintiff was prevented by superior force
from taking steps including the giving of notice to institute his action whilst so detained.
10. In the premises, the honourable court is requested to adjudicate on the question whether defendant's special plea is good
in law or not and to make such an order as to costs as seems just under the circumstances.
[Taken from Montsisi v Minister van Polisie [1984] 1 All SA 478 (A), 1984 (1) SA 619 (A). The statutes referred to have been
repealed.]
[Page 13]
Account and its debate
Related subjects: AGENCY; PARTNERSHIPS
Leading cases:
Doyle v Fleet Motors PE (Pty) Ltd [1971] 3 All SA 550 (A), 1971 (3) SA 760 (A)
Grancy Property Ltd and another v Seena Marena Investment (Pty) Ltd and others [2014] 3 All SA 123 (SCA)
Nature of claim: The object of a claim for an account and debate is to enable a claimant to establish the
indebtedness of the other party to the claimant. A typical claim is for delivery of an account, a debate, and payment
of the amount found to be due. A final order cannot issue before debatement.
Brown v Yebba CC t/a Remax Tricolor 2009 (1) SA 521 (D)
Duty to account: The duty to render an account may arise from
(a) a fiduciary relationship between the parties which obliges the person who is in a fiduciary position to provide
an account (typical examples are partners, agents and trustees, but not banks);
(b) a contractual obligation to render an account; or
(c) a statutory duty to render an account (such as that contained in the National Credit Act 34 of 2005).
Rousseau NO v Cloete [1952] 3 All SA 407 (C), 1952 (3) SA 703 (C)
Rectifier & Communication Systems (Pty) Ltd v Harrison [1981] 1 All SA 444 (C), 1981 (2) SA 283 (C)
Doyle v Board of Executors [1999] 1 All SA 309 (C), 1999 (2) SA 805 (C)
ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA)
Essential allegations: The claimant must allege and prove the following:
(a) The basis of the right to receive an account.
(b) The defendant's failure to render an account or, if an incomplete account was rendered, failure to render a
proper account.
Doyle v Fleet Motors PE (Pty) Ltd [1971] 3 All SA 550 (A), 1971 (3) SA 760 (A)
Nusca v Nusca [1995] 3 All SA 104 (T), 1995 (4) SA 813 (T)
If the right relied upon is contractual, the terms of the contract must be stated; if it is based on a fiduciary
relationship, the circumstances having a bearing on the right to the account sought must be set out; and, if it is
based on statute, the provisions of the Act must be referred to.
Fiduciary relationships: 'There is no magic in the term "fiduciary duty". The existence of such a duty and its nature
and extent are questions of fact to be adduced from a thorough consideration of the substance of the relationship
[which may be contractual] and any relevant circumstances which affect the operation of that relationship'.
Phillips v Fieldstone Africa (Pty) Ltd [2004] 1 All SA 150 (SCA), 2004 (3) SA 465 (SCA) para. 27
These relationships are marked by three essential features:
(a) Scope for the exercise of some discretion or power.
[Page 14]
(b) A power or discretion that may be used unilaterally to affect the beneficiary's legal or practical interests.
(c) A peculiar vulnerability to the exercise of that discretion or power.
Phillips v Fieldstone Africa (Pty) Ltd [2004] 1 All SA 150 (SCA), 2004 (3) SA 465 (SCA) para. 33
Hughes v Ridley and others 2010 (1) SA 381 (KZP)
Procedure: If these elements have been proved, a court will usually order the rendering of an account within a time
specified. It will also prescribe the time of and procedure for the debate which must follow. The parties should first
debate the account between themselves. If they are unable to reach agreement, they should formulate a list of the
disputed items. The formulation can be done by means of an amendment to the pleadings or in a pretrial minute.
This procedure is not obligatory, and a plaintiff is entitled, in an appropriate case, to continue with the action for an
account and simultaneously for its debate.
A plaintiff who receives an allegedly inadequate account may proceed with a claim for a due and proper account.
Doyle v Fleet Motors PE (Pty) Ltd [1971] 3 All SA 550 (A), 1971 (3) SA 760 (A) pp. 762763 and 767
Grancy Property Ltd and another v Seena Marena Investment (Pty) Ltd and others [2014] 3 All SA 123 (SCA)
PRECEDENTS
Claim for delivery and debate of account
1. At all material times and in terms of an oral agreement entered into between the parties personally at [place] on [date]:
(a) the parties were partners in a general dealer's business t/a ABC at [address];
(b) the defendant was in full control of the conduct of the business;
(c) [any other relevant details].
2. It was an express [tacit or implied] term of the partnership agreement that the defendant would monthly render to the
plaintiff a full account of all the affairs of the aforesaid business which account would, where necessary, be supported by
vouchers.
3. Despite demand, the defendant has failed to render any account at all for the period [state period].
4. Alternatively, such accounts as the defendant has rendered are defective and inadequate in the following respects:
[detail].
The plaintiff claims:
(a) A full account, supported by vouchers, of the business ABC for the period [state period].
(b) Debate of the account.
(c) Payment to the plaintiff of whatever amount appears to be due to the plaintiff upon debate of the account.
Claim for delivery and debate of account based on breach of fiduciary duty flowing from employment contract
1. On or about [date] plaintiff and defendant entered into a written employment agreement [detail].
2. Defendant impliedly, alternatively tacitly, undertook a duty of loyalty to the plaintiff.
3. During and pursuant to the defendant's assignment to manage the S contract, the defendant became aware that S
required an urgent raising of capital and that it was prepared to place shares for the purposes of raising such capital.
4. On or about [date] S offered a ten per cent shareholding in S in exchange for such capital.
[Page 15]
5. The offer of shares
(a) represented a material financial benefit to the offeree;
(b) became available to the defendant in his capacity as agent and representative of the plaintiff;
(c) was an opportunity which properly belonged to the plaintiff;
(d) was an opportunity which the plaintiff was able to take up;
(e) was one which the defendant was obliged to have secured for the benefit of the plaintiff.
6. In breach of his obligations to the plaintiff, the defendant unlawfully and intentionally
(a) acquired the offer of S shares and failed to acquire such shares for the plaintiff;
(b) has failed and/or refused to account to the plaintiff in respect of the benefit derived by him because of the
foregoing.
[Based on Phillips v Fieldstone Africa (Pty) Ltd [2004] 1 All SA 150 (SCA), 2004 (3) SA 465 (SCA).]
Prayer account in an estate
(a) That defendant be ordered to render to the plaintiff (the executor) within [period] from the date of the order a true and
proper statement of account together with substantiating documents reflecting the correct income, assets, expenditure
and liabilities of the deceased's estate.
(b) That the defendant be ordered to debate the account with the plaintiff within [period] from the time such account was
rendered in terms of paragraph (a) above.
Order
1. The defendants are ordered to render to the plaintiff within two months from date of this judgment a true and proper
statement of account together with substantiating documents reflecting the correct income, assets, expenditure and
liabilities of the deceased's estate.
2. The defendants are ordered to debate the account with the plaintiff within one month from the date it was rendered in
terms of paragraph 1 above.
[Cf. Nusca v Nusca [1995] 3 All SA 104 (T), 1995 (4) SA 813 (T) pp. 820J821C.]
Accountants and auditors
Related subjects: ARCHITECTS; ATTORNEYS; CHOICE OF ACTION; CONSTRUCTION CONTRACTS; MEDICAL AND
DENTAL PRACTITIONERS
Leading cases:
International Shipping Co (Pty) Ltd v Bentley [1990] 1 All SA 498 (SCA), 1990 (1) SA 680 (A)
Thoroughbred Breeders' Association of South Africa v Price Waterhouse [2001] 4 All SA 161 (A), 2001 (4) SA 551
(SCA)
Cape Empowerment Trust Limited v Fisher Hoffman Sithole [2013] 2 All SA 629 (SCA), 2013 (5) SA 183 (SCA)
PriceWaterhouseCoopers Inc and others v National Potato Cooperative Ltd and another [2015] 2 All SA 403 (SCA)
General: Only a registered auditor may engage in public practice, hold herself or himself out as a registered auditor
in public practice, or use the description 'public accountant', 'certified public accountant', 'registered accountant and
auditor' or 'accountant and auditor in public practice' or any other designation or description likely to create the
impression that he or she is a registered auditor in public practice.
Auditing Profession Act 26 of 2005s 41(1)
[Page 16]
Statutory duties: An auditor, in carrying out the statutory functions of an auditor, is not a functionary of the client
(usually a legal entity such as a company) and does not act on its behalf or in its name. Although appointed and
remunerated by the client, the auditor carries out the independent function of reporting the financial statements of
the company to shareholders. The directors are required to see to the preparation and presentation of the financial
statements.
Botha v Coopers & Lybrand [2002] ZASCA 47, 2002 (5) SA 347 (SCA)
Scope of mandate: The scope of the mandate depends on the terms of the contract with the client. Terms may be
express, implied or tacit.
Botha v Coopers & Lybrand [2002] ZASCA 47, 2002 (5) SA 347 (SCA)
See also Companies Act 71 of 2008 ss 9093
Extended liability: Registered accountants and auditors may form a company to engage in public practice. The
memorandum of association of the company must provide that the company's directors and past directors are liable
jointly and severally, together with the company, for the company's debts and liabilities contracted during their
period of office.
Since liability for delictual debts is not covered by this statutory provision, directors and past directors are not
automatically liable for the delictual debts of the company.
Cf. Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A), 1997 (1) SA 710 (A)
Remuneration: A public accountant seeking to claim remuneration must allege and prove
(a) that it is duly registered in terms of the Act and entitled to practise;
(b) the terms of the mandate;
(c) performance of the mandate; and
(d) the remuneration (agreed, customary or reasonable) to which the plaintiff is entitled.
Liability of an auditor (contractual): It is a tacit term of the agreement with the client that the accountant will
exercise reasonable skill and care in the performance of the mandate. This usually means that accountants must
conduct their audits in accordance with generally accepted auditing standards and with the professional care
required of an auditor in public practice. Failure to do so amounts to a breach of contract.
The generally accepted auditing are gathered from the relevant legislation, the auditing profession's codification of
an auditor's duties, authoritative publications and legal decisions, and from expert evidence.
(SCA) paras 1921 of the main judgment
Each annual appointment of an auditor gives rise to a separate contract.
para. 62
Registered auditors do not incur any liability to a client or any third party in respect of any opinion expressed, or
report or statement made, in the ordinary course of their duties, unless such opinion, report or statement is
malicious, fraudulent or pursuant to negligent performance of the auditor's duties.
[Page 17]
Liability requires causation.
Contributory negligence of the client: In a claim for damages based on a negligent breach of contract, an auditor
is entitled to rely on the contributory negligence of the client.
(The judgment in Thoroughbred Breeders' Association of South Africa v Price Waterhouse [2001] 4 All SA 161 (A),
2001 (4) SA 551 (SCA) is no longer applicable on this specific point.)
Liability to third parties (not contractual): A registered auditor may incur liability for financial loss suffered by a
third party (a) who relied on an opinion, report or statement of the auditor; (b) which loss was due to negligent
performance of the auditor's duties; (c) if the auditor knew or should have known (i) that the opinion, report or
statement would be used by a client to induce the third party to act or refrain from acting, or (ii) that the third party
would rely on the opinion, report or statement to act or refraining from acting; or (d) if the auditor represented that
the opinion, report or statement was correct when he or she knew or should have known that the third party would
rely on that representation.
International Shipping Co (Pty) Ltd v Bentley [1990] 1 All SA 498 (SCA), 1990 (1) SA 680 (A) (although this case
deals with facts that arose before the Auditing Profession Act came into effect it remains germane)
[A]uditors ought not to bear liability simply because it might be foreseen in general terms that audit reports and
financial statements are frequently used in commercial transactions involving the party for whom the audit was
conducted (and audit reports completed) and third parties. In general, auditors have no duty to third parties . . .
Axiam Holdings Ltd v Deloitte & Touche [2005] 4 All SA 157 (SCA), 2006 (1) SA 237 (SCA) para. 18
A policybased determination of whether legal liability should be imposed on an auditor for loss resulting from a
negligent statement must therefore be made with reference to the facts and circumstances of the case.
paras 2122
Valuer: An auditor who is required to value shares in terms of a company's articles does not act as an arbitrator but
as a valuer. The function is not quasijudicial, and the audi alteram partem rule does not necessarily apply.
Estate Milne v Donohoe Investments (Pty) Ltd [1967] 2 All SA 345 (A), 1967 (2) SA 359 (A)
See ARBITRATION
PRECEDENTS
Claim for remuneration
1. The plaintiff is a duly registered public accountant and auditor entitled to practise as such in terms of the Auditing
Profession Act 26 of 2005.
2. Pursuant to and in accordance with an oral/written agreement entered into between the parties on [date] at [place], the
plaintiff conducted an audit of the defendant's books for [state period].
3. It was an express term of the agreement that the defendant would remunerate the plaintiff at the rate of [amount] in
respect of such auditing.
[Page 18]
4. In the alternative to paragraph 3, it was a tacit or an implied term of the agreement that the defendant would pay to the
plaintiff a reasonable remuneration for such auditing.
5. The agreed and/or fair and reasonable remuneration for the said auditing is a sum of [Rx].
6. In the premises, the defendant is indebted to the plaintiff for payment of the sum of [Rx].
Claim for damages by client
1. On [date], the plaintiff engaged the services of the defendant, a public accountant and auditor as defined in the Auditing
Profession Act 26 of 2005, to investigate and report on the financial standing of [name].
2. The defendant knew that the plaintiff intended purchasing all the issued shares in [name], and that the plaintiff required
the investigation and consequent report for the purpose of determining a fair market value for the shares.
3. It was a tacit term of the contract that the defendant would perform the agreed duties competently, without negligence,
in accordance with generally accepted auditing standards and with the due professional care required of an auditor in
public practice.
4. On [date], defendant reported that the net asset value of [name] was [amount] and that the purchase price of the shares
could be based thereon.
5. In preparing this report, the defendant performed these duties incompetently and negligently in the following respects:
[detail].
6. Had the defendant not been negligent, he would have established that the net asset value of [name] was only [Rx].
7. Acting on the defendant's aforesaid report, the plaintiff purchased the shares for [Ry].
8. Had the plaintiff known the true financial position of [name], he would not have paid [Ry] for the shares but would have
paid only their true value of [Rx].
9. In consequence of the defendant's breach of contract, the plaintiff suffered a loss of [Ry Rx].
Claim for damages
1. On [date], the defendant, a public accountant as defined in the Auditing Profession Act 26 of 2005, signed a financial
report in respect of [name] ('the company') in which the following figures appear: [detail].
2. Whilst preparing the report, the defendant knew that the directors of the company intended to use the report to induce
the plaintiff to purchase all the issued shares in the company at a price based on the report and that the plaintiff would
rely on the report for that purpose.
3. The figures in the report were false and incorrect in the following respects: [detail].
4. In preparing the report, the defendant was negligent in the performance of its duties in that it failed to [detail].
5. Relying on the report, the plaintiff was induced to buy the shares in the company for [Ry], whereas, had the true figures
been given, the plaintiff would have paid only [Rx], being the true value of the shares.
6. In consequence of the defendant's actions, the plaintiff has suffered a loss of [Ry Rx].
Claim for damages
1. For the financial year ending on 31 March 2017 T Company appointed D, a partnership which conducts business as public
accountants and auditors, to act as its auditor within the meaning of sections 90 to 93 of the Companies Act 71 of 2008.
2. D conducted an audit and prepared and completed T's annual financial statements for that financial year and on 1 July
2017 issued an auditor's report that included the following certificate:
'In our opinion, these annual financial statements fairly present, in all material respects, the financial position of
the company at 31 March 2017 and the results of its [Page 19] operations and cash flow for the period then ended
in accordance with generally accepted accounting practice and in the manner required by the Companies Act.'
3. The 2017 statements failed to present fairly the financial position of T. They misrepresented T's net worth by reflecting a
net profit before tax of R29 266 176, whereas, in fact, T suffered a net loss of R77 899 201.
4. This inaccurate information resulted from what is set out hereafter. D failed to include a bad debt of R68 888 000 in the
income statement.
5. D, in conducting the audit and completing the financial statements, did not do so with the requisite professional and
reasonable skill and care and failed to comply with Generally Accepted Accounting Practice (GAAP).
6. Had D done so, the 2017 statements would have represented T's financial position accurately, alternatively would have
contained a qualified audit opinion. Thus, D, in conducting the audit and certifying the 2017 statements, was negligent.
7. During February 2018, P concluded an agreement with T in terms of which shares in T were purchased.
8. At that time D was aware of the negotiations and that the 2017 statements and audit opinion would be relied on by P in
that process.
9. In the premises, D owed P a duty, prior to 22 February 2018, to warn it that the 2017 statements and the audit opinion
were incorrect, alternatively to warn it that it had not conducted the audit properly and that P should not rely on the 2017
statements and the audit opinion. D failed to issue the warnings. Such failure was negligent and constituted a
representation within the meaning of the Auditing Profession Act 26 of 2005 that the financial statements were accurate
and fairly presented the financial position of T at the end of March 2017.
10. In consequence of D's breach of the aforesaid duty, P bank paid T an amount of R241 069 222,34 in terms of the
agreement referred to earlier, none of which it has been able to recover.
[See Axiam Holdings Ltd v Deloitte & Touche [2005] 4 All SA 157 (SCA), 2006 (1) SA 237 (SCA).]
Acquiescence and delay
See WAIVER
Actio ad exhibendum
Related subjects: CONDICTIO FURTIVA; VINDICATION
Leading cases:
Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd [1975] 2 All SA 633 (A), 1975 (2) SA 420 (A)
Rossouw NO and another v Land and Agricultural Development Bank of South Africa [2013] 4 All SA 318 (SCA)
Cause of action: The actio ad exhibendum is a delictual action which is normally instituted as an alternative to the rei
vindicatio (see VINDICATION). It enables a plaintiff to claim damages from an erstwhile possessor of the plaintiff's
property.
Frankel Pollak Vinderine Inc v Stanton [1996] 2 All SA 582 (W), 2000 (1) SA 425 (W)
[Page 20]
The action has also been mentioned in a procedural sense in claims for access to documents, as in socalled Anton
Piller orders, but has nothing to do with them.
Cerebos Food Corp Ltd v Diverse Foods SA (Pty) Ltd 1984 (4) SA 149 (T)
Essentials: The plaintiff must allege and prove that
(a) the plaintiff is or was the owner of the property concerned when it was alienated by the defendant;
RMS Transport v Psicon Holdings (Pty) Ltd 1996 (2) SA 176 (T) p. 181
(b) the defendant had been in possession (in the sense of civil possession) of this property;
(c) the defendant alienated or destroyed the property.
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) pp. 10111012; on appeal:
2003 (1) SA 204 (T) p. 212
(d) the defendant's loss of possession was mala fide. This will be the case if, at the time of the loss of possession
or destruction, the defendant knew of the plaintiff's ownership or claim to ownership.
Vulcan Rubber Works (Pty) Ltd v SAR & H [1958] 3 All SA 241 (A), 1958 (3) SA 285 (A)
Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T) p. 48
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) pp. 10111012; on appeal:
2003 (1) SA 204 (T) p. 212
A defendant who disposes of a plaintiff's property after the institution of proceedings in which the plaintiff relies on
ownership is mala fide.
Dolus eventualis (i.e. when 'red or amber lights flash', or 'a supine attitude amounting to concurrence') is sufficient to
constitute knowledge, but constructive knowledge is not enough. Consequently, an allegation or evidence that the
defendant should have known of the plaintiff's ownership is insufficient.
Hall & Sons Ltd v Kleinsmith [1963] 4 All SA 418 (T), 1963 (4) SA 320 (T)
Frankel Pollak Vinderine Inc v Stanton [1996] 2 All SA 582 (W) p. 601ef, 2000 (1) SA 425 (W) p. 425
Simon NO v Mitsui & Co Ltd [1996] 3 All SA 353 (W), 1997 (2) SA 475 (W)
Relief: The plaintiff is entitled to claim damages resulting from the defendant's wrongful act. Such damages are
normally the market value of the property at the date of disposal or destruction by the defendant.
Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A)
Damages have been granted to a plaintiff claiming vindication when the defendant alienated the property after
institution of the action, even though the plaintiff did not claim damages, but when there was sufficient evidence of
the value of the property.
Aspeling NO v Joubert 1919 AD 167
The better practice would be to amend the claim and to introduce the damages claim as an alternative.
Conversion: The Englishlaw doctrine of conversion does not form part of South African law. This doctrine holds that
a defendant who obtains and disposes of the goods of [Page 21] a plaintiff (who has been fraudulently deprived of
them) is liable in tort (delict) to the owner, even in the absence of negligence.
Atkinson Oates Motors Ltd v Trust Bank of Africa Ltd [1977] 3 All SA 411 (W), 1977 (3) SA 188 (W)
PRECEDENTS
Claim for payment of value
1. Plaintiff is the owner of a [year] model motor vehicle with [engine number].
2. Defendant was in possession of the vehicle during [period].
3. Defendant knew that the plaintiff was the owner of the vehicle during this period.
4. Notwithstanding this knowledge and without the plaintiff's consent, the defendant on or about [date] disposed of the
vehicle to a person unknown to the plaintiff.
5. At the time of the said disposal, the value of the vehicle was [amount].
The plaintiff claims payment of [amount].
Claim for damages
1. Plaintiff is the owner of a [year] model motor vehicle with [engine number].
2. Defendant was in possession of the vehicle during [period].
3. While the defendant was in possession of the vehicle, he knew that the plaintiff was its owner.
4. The vehicle was damaged in a collision that took place at [place] on [date].
5. The damage was caused by the defendant's negligence [detail].
6. Prior to the collision, the value of the vehicle was [Rx].
7. The postcollision value of the vehicle is [Ry].
8. Plaintiff is in possession of the damaged vehicle.
The plaintiff claims payment of [Rx Ry].
Actio Pauliana
Related subjects: FRAUD; INSOLVENCY
General: Alienation of assets by a debtor in fraud of creditors may be set aside at common law under the actio
Pauliana. This action is available even if the estate of the debtor has not been sequestrated.
Kommissaris van Binnelandse Inkomste v Willers [1999] 2 All SA 342 (A), 1999 (3) SA 19 (SCA)
Alternative remedies: Similar remedies are to be found in section 64 of the Close Corporations Act 69 of 1984,*
section 424 of the Companies Act 61 of 1973 (which is still in force to the extent described in schedule 5 to the
Companies Act 71 of 2008), and the many provisions in the Insolvency Act 24 of 1936 that deal with questionable
dispositions.
Burley Appliances Ltd v Grobbelaar NO [2003] 3 All SA 505 (C), 2004 (1) SA 602 (C)
[Page 22]
Essentials: The plaintiff must allege and prove
(a) that the plaintiff is a creditor of the debtor;
(b) alienation of assets by the debtor;
(c) that the alienation diminished the debtor's estate;
(d) that the assets did not belong to the person who received the property from the debtor;
(e) the debtor's intention to defraud creditors, which involves a disposition with knowledge of insolvency;
(f) causation.
Fenhalls v Ebrahim [1956] 4 All SA 355 (D), 1956 (4) SA 723 (D)
Sackstein & Venter NNO v Greyling [1990] 3 All SA 48 (O), 1990 (2) SA 323 (O)
Extension of action: The action also lies in the hands of a creditor for the recovery of property from a person who
has acquired the property gratuitously or without proper consideration from someone who alienated it in fraud of
the creditor, even though the person who acquired the property was not a party to the fraud. The debtor's
fraudulent intent with the alienation is an essential element of the cause of action.
Commissioner of Customs & Excise v Bank of Lisbon International Ltd 1994 (1) SA 205 (N) p. 210CD
Kommissaris van Binnelandse Inkomste v Willers [1999] 2 All SA 342 (A), 1999 (3) SA 19 (SCA)
Commissioner, SA Revenue Service v Absa Bank Ltd 2003 (2) SA 96 (W)
When a bank's debtor pays money obtained by fraud into his or her bank account, the victim may reclaim the money
from the bank even though, when it was deposited, the money became the property of the bank to the extent that
the account is in credit. Although this claim is akin to the actio Pauliana the cause of action is not the same.
Nissan SA (Pty) Ltd v Marnitz NO (Stand 186 Aeroport (Pty) Ltd intervening) [2006] 4 All SA 120 (SCA),
2005 (1) SA 441 (SCA)
Cf. NMB Bank Limited v Capsopoulos and another [2017] 3 All SA 765 (SCA)
Assets transferred to the third party and other benefits obtained because of the fraud may be recovered.
Kerbyn 178 (Pty) Ltd v Van den Heever NO 2000 (4) SA 804 (W) pp. 817819
The action is not a remedy for recovery by a claimant of property lost as result of fraud.
Nedcor Bank Ltd v ABSA Bank [1995] 3 All SA 291 (W), 1995 (4) SA 727 (W)
Parties: As a general rule, the debtor and the third party (the receiver of the property) must be joined as co
defendants. In the course of sequestration or liquidation, the trustee or liquidator will be the plaintiff.
Wolpe v Gale [1980] 2 All SA 19 (W), 1980 (3) SA 259 (W)
PRECEDENTS
Claim setting aside fraudulent disposition
1. First defendant is indebted to the plaintiff in the sum of [amount] by virtue of [set out cause of action].
2. On [date] at [place], the first and second defendants, by way of a written agreement, created a trust. A copy of the deed
of trust is annexed.
3. In terms of the deed of trust:
(a) the second defendant was appointed trustee;
(b) the first defendant's children were appointed the trust beneficiaries;
(c) the trust was to be a discretionary trust;
(d) first defendant was to transfer his farm [name] to the trust by way of a donation.
[Page 23]
4. First defendant subsequently transferred the farm to the second defendant as trustee on [date].
5. When the deed of trust was concluded and when the farm was transferred, the first defendant was insolvent and indebted
to the plaintiff as set out above.
6. The deed of trust was entered into and the transfer of property took place with the intention of defrauding the plaintiff
and the other creditors of the first defendant.
7. Because of this fraud, the plaintiff is unable to recover his claim from the first defendant.
The plaintiff claims for an order:
(a) Setting aside the deed of trust.
(b) Declaring that the farm is the property of the first defendant.
(c) Declaring that the plaintiff is entitled to attach the farm in execution in satisfaction of his claim against the first defendant.
Footnotes
* The Companies Act, 2008 prohibits the registration of any new close corporation after 1 May 2011. Close corporations
can be converted to companies, but companies can no longer be converted to close corporations. Existing close
corporations are administered under the Close Corporations Act, 1984 indefinitely.
Admiralty claims
By Mr Justice Graham Lopes
General: Admiralty claims are governed by the provisions of the Admiralty Jurisdiction Regulation Act 105 of 1983
and the Admiralty Proceedings Rules.
'Maritime claim': Any cause of action in admiralty must fall within the definition of a 'maritime claim' as defined in
section 1 of the Act.
Admiralty Jurisdiction Regulation Act 105 of 1983s 7
The Wave Dancer: Nel v Toron Screen Corporation (Pty) Ltd and another 1996 (4) SA 1167 (A)
Types of claim: Admiralty claims include the following:
(a) Actions
(i) Actions in rem against various categories of property.
Admiralty Jurisdiction Regulation Act 105 of 1983s 3(4) and (5)
Admiralty Proceedings Rules rules 2 and 3
(ii) Actions in personam against various categories of persons.
Admiralty Jurisdiction Regulation Act 105 of 1983s 3(2)
(b) Applications
(i) The attachment of property to found or confirm jurisdiction. Proceedings in personam against persons
whose property has been arrested or attached to found jurisdiction are to be determined in accordance
with modern RomanDutch law.
Admiralty Jurisdiction Regulation Act 105 of 1983s 3(2)(b)
Admiralty Proceedings Rules rule 5
The Shipping Corporation of India Ltd v Evdomon Corporation and another 1994 (1) SA 550 (A)
(ii) The arrest of property to compel the provision of security.
Admiralty Jurisdiction Regulation Act 105 of 1983s 5(3)(a)
The requirements for a security arrest and the general approach of the courts are set out in
Cargo laden and lately laden on board the MV Thalassini Avgi v MV Dimitris 1989 (3) SA 820 (A)
Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A)
MV Orient Stride: Asiatic Shipping Services Inc v Elgina Marine Co Ltd 2009 (1) SA 246 (SCA)
[Page 24]
(iii) Security for costs.
Admiralty Jurisdiction Regulation Act 105 of 1983s 5(2)(b)
The owner of an arrested ship may apply for countersecurity.
MV Nyk Isabel: Northern Endeavour Shipping Pte Ltd v Owners of MV Nyk Isabel and another 2017 (1) SA 25
(SCA)
(iv) The sale of property in terms of the Act.
(v) The acceptance of a referee's report and recommendations.
(vi) The joinder of parties in terms of the Act.
Admiralty Jurisdiction Regulation Act 105 of 1983s 5(1)
The Act envisages the joinder of alternative defendants, even if an alternative defendant may become
the only defendant, over whom the court would otherwise not have jurisdiction.
MY Summit One: Farocean Marine (Pty) Ltd v Malacca Holdings Ltd and another 2005 (1) SA 428 (SCA)
(vii) Orders for the examination, testing or inspection of ships, cargo, etc.
Admiralty Jurisdiction Regulation Act 105 of 1983s 5(2)(d)
(viii) Orders for the extension of a time bar.
Admiralty Jurisdiction Regulation Act 105 of 1983s 5(2)(dA)
The 'Berny' [1977] 2 Lloyd's Rep. 533
The 'Salviscount' and 'Oltet' [1984] 1 Lloyd's Rep. 164
(ix) Orders for the rate of interest applicable.
Admiralty Jurisdiction Regulation Act 105 of 1983s 5(2)(f)
The court has a wide and unfettered discretion in determining the rate of interest applicable to a debt.
MT Argun v Master and Crew of the MT Argun and others 2004 (1) SA 1 (SCA)
(x) Orders for judgments in a foreign currency.
Admiralty Jurisdiction Regulation Act 105 of 1983s 5(2)(g)
The court has a wide discretion to order judgments in a foreign currency depending on the currency in
which the loss was suffered.
Scallop Petroleum Company v The Fund comprising the proceeds of the sale of the MV Jade Transporter and others
1987 (1) SA 935 (N)
Jurisdiction: Admiralty jurisdiction is extremely wide and is defined in the Admiralty Jurisdiction Regulation Act 105
of 1983.
Pleadings: Admiralty proceedings are governed by their own rules of procedure. The rules are read with the
Uniform Rules of the High Court, although some of the Uniform Rules are excluded.
Admiralty Proceedings Rules rules 1, 913 and 24
The filing, delivery and preparation of papers are governed by the Admiralty Proceedings Rules.
[Page 25]
The law to be applied: There are three possibilities:
(a) If the Colonial Courts of Admiralty would have had jurisdiction before the commencement of the Admiralty
Jurisdiction Regulation Act (1 Nov. 1983), then the English law as at that date will be applicable.
(b) If the Colonial Courts of Admiralty would not have had jurisdiction, and subject to (c) below, RomanDutch law
will apply.
(c) If the parties have agreed on a system of law to be applied in the event of a dispute between them, that
system of law will be applicable.
Associated ships: This is an important aspect of admiralty procedure, which allows for the arrest in rem of ships
other than the ship in respect of which the claim arose. The associatedship provisions provide an unusual
opportunity for creditors to pierce the corporate veil.
Admiralty Jurisdiction Regulation Act 105 of 1983s 3(6) and (7)
Associated ships must have had a common owner who was the owner of the guilty ship when the claim arose and
who is the owner of the associated ship when it is arrested.
MV Heavy Metal; Belfry Marine Ltd v Palm Base Maritime SDN BHD 1999 (3) SA 1083 (SCA)
International Arbitration Act 15 of 2017: When a contract provides that disputes between the parties will be
referred to international arbitration, the ability to litigate in the Republic of South Africa may be precluded.
UNCITRAL Model Law on International Commercial Arbitration art. 7, contained in International Arbitration Act 15
of 2017 sched. 1
See ARBITRATION
Related legislation:
Constitution of the Republic of South Africa, 1996
Carriage of Goods by Sea Act 1 of 1986
Wreck and Salvage Act 94 of 1996
Merchant Shipping Act 57 of 1951
Sea Transport Documents Act 65 of 2000
Agency
Related subjects: ACCOUNT AND ITS DEBATE; AGENCY: ESTATE AGENTS; ESTOPPEL; FIDUCIARY RELATIONSHIPS
Leading cases:
Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koop Bpk [1972] 2 All SA 1 (A), 1972 (1) SA 761 (A)
Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA)
General: The natural incidents of a contract of mandate oblige the agent to fulfil the agreed functions faithfully,
honestly and with care and diligence and to account to the principal for the actions taken.
David Trust v Aegis Insurance Co Ltd [2000] 2 All SA 297 (A), 2000 (3) SA 289 (SCA)
[Page 26]
A person can contract in more than one capacity by, for instance, contracting personally with herself or himself in a
representative capacity as an agent for a company.
Vaal Reefs Exploration & Mining Co Ltd v Burger [1999] 4 All SA 253 (A), 1999 (4) SA 1161 (SCA)
Mandate: A plaintiff or defendant who wishes to rely on an agency must allege and prove the existence and scope
of the authority of the alleged agent, whether express, tacit or implied.
Absa Bank Ltd v Arif and another [2014] 2 All SA 1 (SCA), 2014 (2) SA 466 (SCA)
An allegation that a contract was entered into between two parties implies that they were not represented but
acted personally.
Erasmus v Venter 1953 (3) SA 828 (O)
If the contract was entered into on behalf of a party, the representative must be identified.
Uniform rule 18(6)
An allegation that a certain person 'acted on behalf of' a party is an allegation of agency.
Lind v Spicer Bros (Africa) Ltd 1917 AD 147
The fact that the alleged agent purported to act as an agent does not prove agency.
Van Niekerk v Van den Berg [1965] 2 All SA 367 (A), 1965 (2) SA 525 (A) p. 537
But see Makate v Vodacom (Pty) Ltd 2016 (6) BCLR 709 (CC), 2016 (4) SA 121 (CC)
A denial of authority must be clearly pleaded.
Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR)
Tuckers Land and Development Corporation (Pty) Ltd v Perpellief [1978] 1 All SA 629 (T), 1978 (2) SA 11 (T) p. 16
The authority of an agent must be established as a matter of fact. Authority may be evidenced by proof of an
express authorisation or by inference.
InterContinental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd 1979 (3) SA 740 (W)
Actual authority is either in express terms or implied (tacit).
Coetzer v Mosenthals Ltd [1963] 3 All SA 484 (A), 1963 (4) SA 22 (A)
NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (A), 2002 (1) SA 396 (SCA)
Ostensible authority: The traditional approach to ostensible authority was to require proof of estoppel.
NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (A), 2002 (1) SA 396 (SCA) para. 26
That is no longer the case. A distinction is drawn between ostensible authority ('an appearance that the agent has
the power to act on behalf of the principal') and estoppel ('which is not authority at all'). Both are based on a
misrepresentation by the principal that the agent has the power to act on behalf of the principal but the presence
of (ostensible) authority is established if it is shown that a principal created an appearance that the agent had the
power to act on the principal's behalf. Nothing more is required.
Makate v Vodacom (Pty) Ltd 2016 (6) BCLR 709 (CC), 2016 (4) SA 121 (CC) paras 4647
This, in practical terms, means that once 'agency' is alleged, the claimant may without more rely on such a
misrepresentation. (It is not believed that estoppel can still play a role.)
[Page 27]
Formalities: A donor's agent must be authorised in writing in the presence of two witnesses.
General Law Amendment Act 50 of 1956s 5
No formalities are prescribed for a surety's agent.
An agent to a deed of alienation of land must be appointed in writing.
Alienation of Land Act 68 of 1981s 2(1)
See ALIENATION OF LAND
The agent as a party: An agent has no locus standi to sue or be sued on the principal obligation between the
principal and the other party.
SWA Amalgameerde Afslaers (Edms) Bpk v Louw [1956] 1 All SA 293 (A), 1956 (1) SA 346 (A)
Springfield Omnibus Service Durban CC v Peter Maskell Auction CC [2006] 4 All SA 483 (N)
A plaintiff may not sue in his or her own name on behalf of another.
Gravett NO v Van Der Merwe 1996 (1) SA 531 (D)
An agent may maintain an action on a contract in respect of which the agent acquired rights in its own name.
Continental Illinois National Bank & Trust Co of Chicago v Greek Seamen's Pension Fund 1989 (2) SA 515 (D) p.
538
Undisclosed principal: A contract entered into on behalf of an undisclosed principal may bind the third party to that
principal. The scope of application of the doctrine is not clear or logical.
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koop Bpk [1972] 2 All SA 1 (A), 1972 (1) SA 761 (A)
Karstein v Moribe [1982] 1 All SA 324 (T), 1982 (2) SA 282 (T)
In circumstances in which the principal is undisclosed, the intermediary and the third person create rights and
obligations between themselves through the contract concluded in their own names. In terms of the contract the
third person is liable to the intermediary and cannot avoid this liability because of the liability to the undisclosed
principal, unless and until the undisclosed principal elects to hold the third person liable.
Sentrakoop Handelaars Bpk v Lourens [1991] 4 All SA 693 (W), 1991 (3) SA 540 (W)
Botha v Giyose t/a Paragon Fisheries [2007] ZASCA 73
The mandate must have existed at the time. An undisclosed 'principal' cannot ratify a nonexistent agency.
Durity Alpha (Pty) Ltd v Vagg [1991] 2 All SA 146 (A), 1991 (2) SA 840 (A) p. 843A
An agent who acts for an undisclosed principal may be sued personally.
Ncqula v Muller's Book Shop [1960] 4 All SA 218 (E), 1960 (4) SA 300 (E)
The third party must elect whom to sue: either the nowdisclosed principal who wishes to enforce the contract or
the agent. This election is final.
Absa Brokers (Pty) Ltd v Stoltz [2002] 4 All SA 476 (NC)
SA Metal & Machinery Co (Pty) Ltd v Klerck NO [2005] 1 All SA 44 (E)
This principle does not apply to auctioneers.
An agent who contracts as an agent for an unnamed principal does not undertake personal liability. The intention of
the other party, who knows that there is an unnamed principal, can only be to contract with the principal and not
with the agent.
[Page 28]
Commission: To recover remuneration or commission for the performance of a mandate, an agent must allege and
prove the following:
(a) the contract of mandate;
Da Silva v Janowski [1982] 1 All SA 43 (A), 1982 (3) SA 205 (A)
(b) an undertaking to pay remuneration. This involves interpretation of the agreement according to the ordinary
rules of interpretation.
Gardner v Margo [2006] 3 All SA 229 (SCA), 2006 (6) SA 33 (SCA)
In the absence of any specific agreement, an agreement to pay customary or reasonable remuneration may
be implied;
Middleton v Carr [1949] 2 All SA 400 (A), 1949 (2) SA 374 (A)
(c) due performance of the mandate.
See AGENCY: ESTATE AGENTS
Ratification: A party can ratify an unauthorised act, provided
(a) the 'agent' professed to act on that party's behalf;
Durity Alpha (Pty) Ltd v Vagg [1991] 2 All SA 146 (A), 1991 (2) SA 840 (A)
(b) the matter is still res integra that is, performance can still take place;
(c) vested rights are not affected.
Smith v KwaNonqubela Town Council [1999] 4 All SA 331 (A), 1999 (4) SA 947 (SCA)
See, in general, Mort NO v Chiat [2000] 2 All SA 515 (C), 2001 (1) SA 464 (C)
Termination of agency: Generally, a principal may freely at will terminate the authority conferred upon an agent.
This applies even if the mandate purports to be irrevocable, but the principal may be liable for damages for breach
of contract.
Pretorius v Erasmus [1975] 2 All SA 117 (T), 1975 (2) SA 765 (T)
The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd [1984] 2 All SA 211 (A), 1984 (2) SA 881 (A)
Consolidated Frame Cotton Corp Ltd v Sithole [1985] 1 All SA 183 (N), 1985 (2) SA 18 (N) p. 22
A principal may not at will terminate the authority conferred upon an agent if the authority is coupled with an
interest.
Ward v Barrett NO [1962] 4 All SA 557 (N), 1962 (4) SA 732 (N) p. 737
Lusizi v Transnet Ltd t/a Spoornet [2002] 3 All SA 635 (C)
A mandate automatically terminates with any change of status, such as death or insolvency.
Goodricke & Son v Auto Protection Insurance Co Ltd (in liquidation) [1968] 1 All SA 269 (A), 1968 (1) SA 717 (A)
p. 722
Mort NO v Chiat [2000] 2 All SA 515 (C), 2001 (1) SA 464 (C)
Secret commission and profit: See FIDUCIARY RELATIONSHIPS.
Accounting: A claim for an account against an agent is permissible.
See ACCOUNT AND ITS DEBATE
Calculation of damages:
SDR Investment Holdings Co (Pty) Ltd v Nedcor Bank Ltd 2007 (4) SA 190 (C)
Sandlundlu (Pty) Ltd v Shepstone and Wylie Incorporated [2011] 3 All SA 183 (SCA)
Bribery: Bribery occurs when someone gives or promises the agent of another a gift or remuneration, without the
knowledge of the principal, to influence the agent and thus gain an advantage.
Plaaslike Boeredienste (Edms) Bpk v Chemfos Bpk [1986] 2 All SA 42 (A), 1986 (1) SA 819 (A) p. 845
A contract concluded by a bribed agent is unenforceable against the will of the innocent principal.
[Page 29]
The elements of commercial bribery are
(a) a reward paid or promised
(b) by one party, the briber,
(c) to another, the agent (who may be an agent in the true sense or merely a gobetween or facilitator),
(d) who can exert influence over a third party, the principal,
(e) with the intention that the agent should induce the principal, without the principal's knowledge, and
(f) for the direct or indirect benefit of the briber,
(g) to enter into, maintain or alter a contractual relationship with the briber or her or his principal, associate or
subordinate.
Vicarious liability: A principal may be vicariously liable for the wrongful acts of the agent even if the agent
simultaneously committed fraud against the principal.
Randbank Bpk v Santam Versekeringsmaatskappy Bpk [1965] 4 All SA 337 (A), 1965 (4) SA 363 (A)
See VICARIOUS LIABILITY
Implied warranty of authority: A person who represents that he or she is authorised to act as an agent but is not
so authorised (or when the authorisation is limited to exclude the relevant act) is liable for damages to a third party
arising from the breach of an implied warranty of authority. The lack of authority does not make the agent a party to
the contract.
Blower v Van Noorden 1909 TS 890
Claude Neon Lights (SA) Ltd v Daniel [1976] 4 All SA 387 (A), 1976 (4) SA 403 (A)
Indrieri v Du Preez [1989] 2 All SA 254 (C), 1989 (2) SA 721 (C)
The implied warranty of authority does not impose on an agent liability for damages to the third party with whom he
or she contracts if the principal could not have entered into such a contract.
Road Accident Fund v Shabangu [2004] 2 All SA 356 (SCA)
The following must be alleged and proved by the plaintiff:
(a) a representation of authority;
(b) that the representation was false the principal's repudiation of liability may establish prima facie that the
representation was false;
CalderPotts v McMillan [1956] 2 All SA 202 (E), 1956 (3) SA 360 (E)
(c) the conclusion of a contract with the 'agent' qua agent;
(d) that the representation induced the conclusion of a contract. The representation of authority and the
conclusion of a contract give rise to an inference of such inducement;
(e) the damages suffered because of the conclusion of a futile contract.
PRECEDENTS
Claim for commission
1. On [date] at [place], the parties entered into a written agreement in terms of which the defendant engaged the plaintiff to
act as his agent to sell certain hardware goods for defendant, and the defendant undertook to pay to the plaintiff a
commission of [percentage] on all such sales. A copy of the agreement is attached hereto and marked 'A'.
2. During the period [date] to [date], the plaintiff, acting pursuant to the aforesaid agreement, concluded certain sales of
such hardware goods on the defendant's behalf amounting [Page 30] in all to the sum of [amount]. Details of these sales
appear more fully from Annexure 'B' hereto.
3. In the premises, the defendant owes the plaintiff [amount] as commission.
Claim to render account
1. On [date] at [place], the plaintiff orally instructed the defendant to collect and to receive from [name(s)] payment of
certain sums of money due to the plaintiff by them. Details of such persons and the sums that were to be collected are
contained in Annexure 'A' hereto.
2. Acting on the instructions and during the period [state period], the defendant collected and received from such persons
(or from some of them) various sums of money for and on behalf of the plaintiff. The amount thereof is unknown to the
plaintiff.
3. It was an express [implied] term of the agreement between the parties that the defendant would, from time to time,
render to the plaintiff accounts supported by vouchers in respect of the amounts collected by him and would pay such
amounts over to the plaintiff within a reasonable time of collection.
4. Despite demand, the defendant refused to render an account to the plaintiff of any of the moneys so collected and
refused to pay over to the plaintiff any such moneys.
(a) An order directing the defendant to render an account, duly supported by vouchers, of the amounts collected and
received by him on the plaintiff's behalf during [state period].
(b) A debate of the account.
(c) Payment to the plaintiff of any amount found to be due to him.
Claim for damages against agent
1. On [date] at [place], the parties entered into an oral agreement in terms of which the plaintiff appointed the defendant as
his agent to [state terms of mandate].
2. It was an implied term of the agreement that the defendant would perform this mandate with due care and without
negligence.
3. Despite the aforesaid term and during the course of the performance of his mandate, the defendant orally represented to
[A] that [state nature of representation].
4. The representation, which was not authorised by the plaintiff and of which the plaintiff had no knowledge, was material
and was made by the defendant with the intention of inducing [A] to act thereon, and [A], relying on the truth of such
representation, did act thereon by [detail].
5. The representation was, to the knowledge of the defendant, false. [Or: Defendant was negligent in making the
representation without ascertaining its truth and such representation was false.]
6. Because of the misrepresentation, [A] repudiated the sale and claimed damages from the plaintiff in the amount of
[amount].
7. On [date], the [court] awarded [A] an amount of damages against the plaintiff, arising from the aforesaid
misrepresentation, in the amount of [amount].
8. As a result, the plaintiff suffered damages in the amount of [amount].
Claim against a principal for breach of mandate
1. On [date] at [place], the defendant orally gave the plaintiff a mandate to sell the defendant's [describe object] at a sum
of not less than [amount] and the defendant undertook to pay commission to the plaintiff at the rate of [percentage] on
the selling price.
2. It was a term of the aforesaid mandate that the plaintiff would have the sole right to sell the [object] for a period of
[days], expiring on [date].
3. Thereafter, on [date] and prior to the expiration of the period, the defendant, through the instrumentality of another
agent, [name], appointed by him in breach of the term, sold the [object] for the sum of [amount] to [name].
4. Because of the defendant's breach of contract, the plaintiff was prevented from fulfilling his mandate and earning his
commission and sustained damages in the amount of [Rx].
[Page 31]
Claim on implied warranty of authority
1. On [date] at [place], the defendant orally represented himself to be the agent of one [AB] and thereby induced the
plaintiff, acting upon the truth of the representation, to enter into a written agreement with him as such agent for the sale
by the plaintiff to [AB] of [property] at the price of [amount].
2. Defendant, by such representation, impliedly warranted to the plaintiff that he was authorised by [AB] to enter into the
agreement as agent on behalf of [AB].
3. Defendant was in fact never authorised by [AB] to enter into such agreement as agent on his behalf and, on [date], [AB]
orally repudiated the agreement. Consequently, the plaintiff was not able to enforce the agreement and suffered
damages in the amount of [Rx] calculated as follows:
[detail].
Claim for forfeiture of commission
1. On [date] at [place], the parties entered into an oral agreement in terms of which the defendant was orally engaged by
the plaintiff as his agent on commission to purchase maize for and on behalf of the plaintiff.
2. During the subsistence of the agency, the defendant purchased 2 000 bags of maize from one [AB] and, in effecting such
purchase, secretly and corruptly received for himself from [AB] a commission of [amount], which amount the defendant
refuses to pay over to the plaintiff.
3. In consequence of the aforesaid, the defendant forfeited his right to receive commission from the plaintiff.
(a) Payment of the amount of [amount].
(b) An order declaring that the defendant forfeited his right to receive commission from the plaintiff.
Agency: Estate agents
Related subjects: AGENCY; ALIENATION OF LAND
General: An estate agent is not entitled to any remuneration in respect of or arising from the performance of any
act relating to the business of an estate agency (as defined in the definition of 'estate agent') unless a valid fidelity
fund certificate had been issued at the time of the performance of the act
(a) to the agent personally; and
(b) if the estate agent is a company, to every director or, if the estate agent is a close corporation, to every
member who is competent and entitled to take part in the running of the business and the management.
Estate Agency Affairs Act 112 of 1976s 34A
Brodsky Trading 224CC v Cronimet Chrome Mining SA (Pty) Ltd and others 2017 (4) SA 610 (SCA)
Section 34A does not invalidate the contract of mandate of an estate agent who acts in contravention of its terms;
it only prohibits a claim for commission. Accordingly, once an agent is paid, the commission cannot be recovered on
the basis that the agent did not have the necessary fidelity fund certificate.
Taljaard v TL Botha Properties [2008] 3 All SA 453 (SCA), 2008 (6) SA 207 (SCA)
Whether an auctioneer auctioning immovable property acts as an estate agent is a factual question.
Papenfus v Torre NO 2012 (5) SA 612 (GNP)
[Page 32]
Claim for commission: An estate agent who wishes to claim commission must allege and prove the following:
Tyrone Selmon Properties (Pty) Ltd v Phindana Properties 112 (Pty) Ltd [2006] 1 All SA 545 (C)
(a) Compliance with section 26 of the Act concerning the required fidelity fund certificate and fidelity insurance.
Taljaard v TL Botha Properties [2008] 3 All SA 453 (SCA), 2008 (6) SA 207 (SCA)
(b) A mandate to find a purchaser or seller.
Botha v Smit [1976] 4 All SA 587 (A), 1976 (4) SA 885 (A)
Baring Eiendomme BK v Roux [2001] 1 All SA 399 (SCA)
The mandate is normally but not necessarily given by the seller. A mandate may be express or tacit.
Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C), 2001 (1) SA 313 (C)
As a rule, a mandate to find a purchaser does not entitle the agent to conclude a contract or receive money
on the principal's behalf.
Bird v Sumerville [1961] 3 All SA 335 (A), 1961 (3) SA 194 (A)
(c) Due performance of the mandate. What constitutes due performance depends on the terms of the mandate.
Phillips v Aida Real Estate (Pty) Ltd [1975] 3 All SA 143 (A), 1975 (3) SA 198 (A)
In the absence of contrary terms, it requires
(i) an introduction by the agent of a purchaser to the seller;
Vanarthdoy (Edms) Bpk v Roos [1979] 2 All SA 315 (A), 1979 (4) SA 1 (A)
(ii) that the purchaser was, when the contract was signed, willing and able to purchase the property
(unless commission is claimed from the purchaser);
Beckwith v Foundation Investment Co [1961] 2 All SA 45 (A), 1961 (4) SA 510 (A)
Ronstan Investments (Pty) Ltd v Littlewood [2001] 3 All SA 127 (A), 2001 (3) SA 555 (SCA)
Aida Uitenhage CC v Singapi [1992] 4 All SA 865 (E), 1992 (4) SA 675 (E)
(iii) that a valid contract of sale was concluded;
Brayshaw v Schoeman [1960] 1 All SA 448 (A), 1960 (1) SA 625 (A)
(iv) that the introduction was the effective cause (causa causans) of the contract.
Van Aswegen v De Clercq [1960] 4 All SA 469 (A), 1960 (4) SA 875 (A)
Wakefields Real Estate (Pty) Ltd v Attree and others 2011 (6) SA 557 (SCA)
Mano et Mano v Nationwide Airlines (Pty) Ltd [2007] 2 All SA 227 (SCA), 2007 (2) SA 512 (SCA)
(d) The amount of commission payable in the terms of the mandate.
If nothing was said about commission, the plaintiff may rely on a tacit term to the effect that commission is
payable according to the generally accepted tariff.
Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C), 2001 (1) SA 313 (C)
Stipulatio alteri : The agent may base the claim for commission on a provision in the deed of sale which amounts to

a stipulatio alteri in favour of the agent and on the agent's acceptance of the benefit.
Jurgens Eiendomsagente v Share [1990] 2 All SA 548 (A), 1990 (4) SA 664 (A)
Adenia Eiendomme (Edms) Bpk v LPD Ondernemings BK [1997] 3 All SA 85 (T)
See CONTRACT FOR THE BENEFIT OF THIRD PARTIES
Claim against the Board: A claim may be laid against the Estate Agency Board for pecuniary loss suffered as a
result of the theft of trust money by an estate agent or because [Page 33] of the failure of an estate agent to
deposit trust money in a trust account or to keep it until the agent is lawfully entitled to it or instructed to make
payment from the account.
Estate Agency Affairs Act 112 of 1976s 18
Cf. Estate Agents Board v Mahadeo [1991] 1 All SA 436 (N), 1991 (3) SA 49 (N)
To succeed against the Board, the plaintiff must prove that the agent concerned was an estate agent within the
definition in the Act.
Estate Agents Board v Swart [1998] 4 All SA 373 (T), 1999 (1) SA 1097 (T)
An action against the Board may be brought in the court within whose jurisdiction the cause of action arose.
No one has any claim against the Board in this respect, unless
(a) the claimant has, within three months after becoming aware of the facts, given notice in writing to the Board
of the claim; and
(b) the claimant has, within six months after a written demand, furnished to the Board such proof as the Board
may reasonably require.
An action against the Board may not be commenced without the Board's permission, unless and until the claimant
has exhausted all relevant rights of action and other legal remedies available against the estate agent and all other
persons liable for the loss suffered.
Estate Agency Affairs Act 112 of 1976s 19(1)
Interest is payable at the Board's discretion.
Estate Agency Affairs Act 112 of 1976s 19(3)
The Board may raise any defence that could have been raised by the person against whom the claim arose.
Estate Agency Affairs Act 112 of 1976s 20
Sole agency: If the agent's claim is based on a breach by the seller of a sole authority to sell, the claim is one for
damages for breach of contract. The agent must allege and prove the contract, its breach and the damages
suffered. This involves proving that the agent would have been able to bring a valid sale about.
The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd [1984] 2 All SA 211 (A), 1984 (2) SA 881 (A)
Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Pty) Ltd [1989] 2 All SA 290 ( A ) ,
1989 (3) SA 26 (A)
PRECEDENTS
Claim or commission
1. Plaintiff is an estate agent who, at all relevant times, was the holder of a valid fidelity fund certificate issued to him in
terms of section 26(a) of Act 112 of 1976 and who had fidelity insurance in terms of section 26(b) of Act 112 of 1976.
2. On [date] at [place], defendant orally gave plaintiff a mandate to find a purchaser for defendant's property, being
[describe], at a selling price of at least [amount].
3. Plaintiff accepted the mandate.
4. On [date], plaintiff introduced [X] to defendant and to the property.
5. As a direct result of this introduction, [X] purchased the property at a purchase price of [amount]. [A copy of the deed of
sale is annexed hereto.]
6. Plaintiff was the effective cause of the sale and duly performed his obligations in terms of the mandate given to him.
7. It was an express term of the mandate that, should plaintiff duly perform thereunder, he would be paid a commission
equal to [percentage] of the purchase price.
8. Alternatively, it was a tacit term of the mandate that, in such event, plaintiff would be paid the commission equal to the
generally accepted tariff for estate agents selling the type of property concerned in the [specify] area. The generally
accepted tariff payable to estate [Page 34] agents in the [specify] area for transactions of this nature is [percentage] of
the purchase price.
Claim for commission upon fulfilment of condition precedent
1. to 5. [As before.]
6. The sale was conditional on the plaintiff's obtaining, on behalf of [X], approval in principle of a first mortgage bond on
security of the property for the sum of [Ra] within [period].
7. The condition was fulfilled in due time by the approval of [Bank] of a bond as aforesaid.
8. [Para. 6 et seq. as before.]
[Cf. Jurgens Eiendomsagente v Share [1990] 2 All SA 548 (A), 1990 (4) SA 664 (A).]
Claim against Board
1. [As before.]
2. Defendant is the Estate Agents Board, a juristic person established by section 2 of the Estate Agency Affairs Act 112 of
1976.
3. Plaintiff purchased a property through the agency of [X] estate agents from [give full particulars].
4. In terms of the deed of sale, plaintiff was obliged to pay a deposit of [Rx] into the trust account of [X], pending transfer
of the property in the name of the plaintiff.
5. Plaintiff fulfilled this obligation on [date] by entrusting to [X], in his capacity as estate agent, the deposit.
6. [X] stole the deposit and plaintiff suffered pecuniary loss of [Rx] as a result thereof.
7. Plaintiff has given timeous notice as required by section 18(3) of Act 112 of 1976.
Claim for breach of sole agency
1. [As before.]
2. On [date] at [place], defendant, in writing, appointed plaintiff as the sole agent to find a purchaser for defendant's
property situate at [address] for the period [date] to [date]. A copy of the appointment is attached hereto and marked
'A'.
3. Plaintiff accepted this appointment. [Detail]
4. During the currency of the sole agency, defendant sold the property to [name] for a price of [amount] through the
agency of [X].
5. In so selling the property, defendant breached his agreement with plaintiff.
6. If plaintiff had not been prevented from performing in terms of his sole agency by the sale of the property, he would
have been able to find a willing and able purchaser for the property at a purchase price of [amount]. [Detail]
7. Had plaintiff been able to conclude the aforesaid sale, he would, in terms of the mandate, have been entitled to receive
commission of [amount].
8. In the premises, plaintiff has suffered damages in the sum of [amount] because of defendant's breach of contract.
Alienation of land
Related subjects: CREDIT AGREEMENTS; DONATION; EVICTION; PREEMPTION; RECTIFICATION; SALE: CONCLUSION
AND ENFORCEMENT; SALE: LATENT DEFECTS; SALE: WARRANTY AGAINST EVICTION
Legislation: Alienation of land is governed by the Alienation of Land Act 68 of 1981.* However, section 172(1) of
the National Credit Act 34 of 2005 provides that, when the [Page 35] provisions of that Act conflict with those of the
Alienation of Land Act, the provisions of the National Credit Act prevail to the extent of the conflict.
Definitions: The concept of 'alienation' as defined in the Alienation of Land Act includes sale, exchange or donation,
irrespective of whether the alienation is subject to a suspensive or resolutive condition.
Hoeksma v Hoeksma 1990 (2) SA 893 (A)
Leonard Light Industries (Pty) Ltd v Wright [1991] 4 All SA 250 (W), 1991 (4) SA 628 (W) p. 633
Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N)
'Land' is widely defined and includes a sectional title unit, a right to claim transfer of land, an undivided share in
land, and an interest in land. An 'interest' in this context includes the acquisition of a servitude.
Felix v Nortier NO [1996] 3 All SA 143 (SE)
As to the meaning of 'sale', see
Loggenberg and others v Maree [2018] ZASCA 24
Formalities: A contract for the alienation of land must be in writing and signed by all parties thereto or by their
agents acting on their written authority.
Thorpe NNO v Trittenwein [2006] 4 All SA 129 (SCA)
The only exception is a sale of land by public auction.
See AUCTIONS
A party relying on a contract of alienation of land must allege and prove a valid contract. The material terms of the
contract, including those prescribed by statute, must be in writing.
Sayers v Khan [2002] 1 All SA 57 (C), 2002 (5) SA 688 (C)
The following must appear ex facie the document:
(a) the parties to the contract;
Berman v Teiman [1975] 1 All SA 45 (W), 1975 (1) SA 756 (W)
Myflor Investments (Pty) Ltd v Everett NO [2000] 1 All SA 586 (C), 2001 (2) SA 1083 (C)
(b) a sufficient description of the property to enable one to identify it without reference to inadmissible evidence,
applying the ordinary rules of construction;
Clements v Simpson [1971] 3 All SA 196 (A), 1971 (3) SA 1 (A)
JR 209 Investments and another v Pine Villa Estates; Pine Villa Estates v JR 209 Investments [2009] 3 All SA 32
(SCA), 2009 (4) SA 302 (SCA)
(c) the price (payment);
Chretien and another v Bell [2010] 2 All SA 428 (SCA), 2011 (1) SA 54 (SCA)
For a qualification, see NBS Boland Bank v One Berg River Drive; Deeb v ABSA Bank Ltd; Friedman v Standard
Bank of SA Ltd [1999] 4 All SA 183 (A), 1999 (4) SA 928 (SCA)
(d) the right of the purchaser or prospective purchaser to revoke the offer or terminate the deed of alienation in
terms of section 29A. If this term is absent, the contract may be set aside at the instance of the purchaser.
Alienation of Land Act 68 of 1981s 2(2A)
Gowar Investments (Pty) Ltd v Section 3, Dolphin Coast Medical Centre CC 2007 (3) SA 100 (SCA)
A contract may provide for the purchaser's nomination of someone else as purchaser.
Noormohamed v Visser NNO 2006 (1) SA 290 (SCA)
Right of preemption: Section 2(1) of the Alienation of Land Act does not apply to a right of preemption.
Mokone v Tassos Properties CC and another 2017 (10) BCLR 1261 (CC), 2017 (5) SA 456 (CC) para. 47
[Page 36]
Ministerial consent: Under certain circumstances, the alienation (even a suspensive alienation) of a portion of
agricultural land is void unless the relevant national minister in writing consents to it. ('Portion' means a piece of
land that forms part of a property registered in the Deeds Registry.) This prohibition is aimed at preventing physical
fragmentation of property. There are also provincial laws that contain similar provisions.
Subdivision of Agricultural Land Act 70 of 1970ss 2 and 3. (This Act is due to be repealed when the Subdivision of
Agricultural Land Act Repeal Act 64 of 1998, which is already 20 years old, comes into force.)
Four Arrows Investments 68 v Abigail Construction 2016 (1) SA 257 (SCA) (ministerial consent is required for an
option)
Proof of noncompliance: Extrinsic evidence may be admissible to establish that a deed of alienation does not
comply with the provisions of the statute for instance, by showing that a material term agreed upon is not
reflected in the deed.
Philmatt (Pty) Ltd v Mosselbank Developments CC [1996] 1 All SA 296 (A), 1996 (2) SA 15 (SCA)
Additional terms: The Act includes a list of terms that must be contained in a contract of alienation of land.
Alienation of Land Act 68 of 1981s 6
If a contract does not comply substantially with this provision, a court within whose area of jurisdiction the land is
situated is, if appropriate proceedings are instituted by the purchaser within a period of two years from the date on
which the contract was concluded, competent to
(a) reduce the rate of interest payable by the purchaser in terms of the contract to a rate it may deem just and
equitable in the circumstances;
(b) grant an order for rectification of the contract;
(c) declare the contract void ab initio; or
(d) grant such alternative relief as it may deem fit.
Van Niekerk v Favel 2006 (4) SA 548 (W)
Invalid terms: The Act prohibits certain provisions such as one restricting or excluding the liability of a seller to
indemnify the purchaser against eviction.
Incorporation by reference: The terms of the deed of alienation may be supplemented by the incorporation by
reference of another document, to comply with statutory requirements.
Van Wyk v Rottcher's Mills (Pty) Ltd [1948] 2 All SA 45 (A), 1948 (1) SA 983 (A) p. 990
Industrial Development Corporation of SA (Pty) Ltd v Silver [2002] 4 All SA 316 (SCA), 2003 (1) SA 365 (SCA)
Counteroffer: The signatures of the parties must relate to the whole agreement. If one party signs an offer and
the other amends the document and then signs it, the document is not a contract but a counteroffer and requires
the signature of the first party.
Just Names Properties 11 CC v Fourie 2008 (1) SA 343 (SCA)
Rockbreakers and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd 2010 (2) SA 400 (SCA), [2010] 1 All SA 291
(SCA)
Variation: Variation of a material term of the deed of alienation must comply with the prescribed formalities to be
valid.
Sidali v Mpolongwana [1990] 4 All SA 825 (C), 1990 (4) SA 212 (C)
Bailes v Highveld 7 Properties (Pty) Ltd [1998] 3 All SA 205 (N), 1998 (4) SA 42 (N)
[Page 37]
Action by seller: A seller may not by reason of any breach of contract on the part of the purchaser
(a) enforce any provision of the contract for the acceleration of the payment of any instalment of the purchase
price or any other penalty stipulation in the contract,
(b) terminate the contract, or
(c) institute an action for damages,
unless the seller notified the purchaser of the breach of contract concerned and made demand to the purchaser to
rectify the breach of contract in question and the purchaser failed to comply with such demand.
The notice must be in writing and handed to the purchaser or sent to him or her by registered post to his or her
address. It must contain
(a) a description of the purchaser's alleged breach of contract;
(b) a demand that the purchaser rectify the alleged breach within a stated period, which may not be less than 30
days, calculated from the date on which the notice was handed to the purchaser or sent to him or her by
registered post; and
(c) an indication of the steps the seller intends to take if the alleged breach of contract is not rectified. As to the
nature of the 'indication', see these conflicting judgments:
Van Niekerk v Favel 2006 (4) SA 548 (W)
Engelbrecht v Merry Hill (Pty) Ltd 2006 (3) SA 238 (E)
Cancellation: No formalities are prescribed for cancellation, not even cancellation by agreement.
Neethling v Klopper [1967] 4 All SA 304 (A), 1967 (4) SA 459 (A)
Revival of cancelled contract: Whether an agreement to which the Act applies may be informally 'revived' by
means of a waiver depends on the intention of the parties. If their intention was to conclude a new contact on the
same terms, the formalities must again be complied with; but if the 'innocent' party waived the cancellation the
prescribed formalities need not be complied with again.
Neethling v Klopper [1967] 4 All SA 304 (A), 1967 (4) SA 459 (A)
Fairoaks Investment Holdings (Pty) Limited v Oliver [2008] 3 All SA 365 (SCA), 2008 (4) SA 302 (SCA)
Revocation by purchaser: A purchaser or prospective purchaser of land may, subject to exceptions, within five days
of signing an offer to purchase land or a deed of alienation, revoke the offer or terminate the deed by written notice
delivered to the seller or to the seller's agent within that period.
Alienation of Land Act 68 of 1981s 29A
Waiver: 'The waiver by any person who has purchased land in terms of a deed of alienation, of any right conferred
upon him by this Act, shall be null and void.'
Rectification: If the deed does not correctly reflect the intention of the parties, it may be rectified. If, however, the
document is on its face void for noncompliance with the statute, rectification is not possible.
Headermans (Vryburg) (Pty) Ltd v Ping Bai [1997] 2 All SA 371 (A), 1997 (3) SA 1004 (SCA)
Swanepoel v Nameng [2010] 1 All SA 345 (SCA), 2010 (3) SA 124 (SCA)
See RECTIFICATION
[Page 38]
Vulnerable purchasers: A vulnerable purchaser is one who runs the risk of being rendered homeless by a seller's
insolvency. Additional protection for such a person has been read into the Act by the judgment in
Sarrahwitz v Maritz NO and another 2015 (8) BCLR 925 (CC), 2015 (4) SA 491 (CC)
Providing guarantees: As a rule, the purchaser must provide guarantees for the purchase price. The guarantee is
issued, at the instance of the buyer, by a bank to the seller, undertaking to pay the purchase price on proof that
the immovable property sold has been registered in the name of the buyer. If no time was fixed within which the
guarantee was to be provided, the date on which the buyer is obliged to provide a banker's guarantee depends on
the date on which the seller will be able to lodge the documents required for transfer with the Registrar of Deeds.
The seller is not entitled to demand that the buyer provide a banker's guarantee on a date earlier than that on
which the seller proposes to lodge with the Registrar of Deeds the documents required for transfer.
Should the seller make such a demand, the buyer would be entitled to ignore it without running any risk of being
placed in mora. The buyer duly performs his or her obligation by tendering the banker's guarantee at any time
before the seller lodges with the Registrar of Deeds the documents required for transfer. A seller who demands a
banker's guarantee must inform the buyer of when the seller proposes lodging in order that the buyer may know
when to provide the banker's guarantee.
Hammer v Klein [1951] 1 All SA 50 (A), 1951 (2) SA 101 (A)
Chestnut Hill Investments 150 (Pty) Ltd v 169 Stamford Hill Road [2007] 2 All SA 71 (D)
Full or partial performance: If both parties to an invalid deed of alienation have performed in full, the alienation is
deemed to have been valid ab initio.
If both parties have performed fully under a deed that did not comply with the Act, neither party is entitled to
demand restitution. However, if the parties have not performed in full, either party is entitled to recover from the
other that which the former performed. In addition, the purchaser may claim interest at a prescribed rate and
reasonable compensation for certain expenses and improvements and the seller may recover reasonable
compensation for the occupation, use and enjoyment of the property and compensation for damage caused either
intentionally or negligently.
PRECEDENTS
Claim for payment
1. On [date] at [place], the parties entered into a written agreement in terms of which the plaintiff sold to the defendant a
dwelling house situate at [place] for the sum of [amount]. A copy of the agreement is attached hereto and marked 'A'.
2. In terms of Annexure 'A', the purchase price was payable in the following way: [detail].
3. Despite demand and despite tender by the plaintiff to cause registration of the property in the defendant's name, the
defendant has failed or refused to make payment of the purchase price on due date.
4. Plaintiff repeats the tender as aforesaid against payment of the purchase price.
The plaintiff claims payment of [amount] against transfer of the property in the name of the defendant.
Claim for damages
1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff sold to defendant a property
situate at [address] for the sum of [amount]. A copy of the agreement is attached hereto and marked 'A'.
[Page 39]
2. In terms of Annexure 'A', the purchase price was payable in the following way: [detail].
3. Defendant refused to make payment of the purchase price and on [date] at [place] denied that he is liable to do so.
4. Defendant has, therefore, repudiated the agreement between the parties and the plaintiff has elected to cancel the
agreement between the parties and hereby gives notice of cancellation.
5. As a result of defendant's repudiation, plaintiff suffered damages in the amount of [Rx] made up as follows: [detail].
Plea of invalidity
1. Defendant admits that the parties purported to enter into a written deed of sale as alleged.
2. Defendant pleads that the deed of sale is invalid in that it does not comply with the requirements of sections 2 and 3 of
Act 68 of 1981 in the following respects: [detail]
the description of the property is insufficient to identify it because [detail];
the right of the purchaser or prospective purchaser to revoke the offer or terminate the deed of alienation in terms of
section 29A is not contained therein as required by section 2(2A) of the Act;
the following suspensive condition, which is material to the agreement and was agreed to by the parties, is not contained
in the deed of alienation [detail].
3. In the premises, the defendant pleads that the deed of sale signed by the parties is void and of no force and effect and
therefore denies that any amount is due and owing to plaintiff.
Footnotes
* This Act was amended by the KwaZulu Land Affairs Act 11 of 1992, with effect from 11 Sept. 1998, in so far as it relates
to KwaZulu.
Animals: Actio de pastu
General: The actio de pastu is available to the owner of land who has suffered damages as the result of the grazing
of another's livestock and the concomitant trampling of fodder or crops.
Vermaak v Du Plessis [1974] 4 All SA 338 (O), 1974 (4) SA 353 (O)
Essentials: The plaintiff must allege and prove that
(a) the plaintiff is the owner of (or holder of some relevant real right to) the property damaged;
(b) the defendant is the owner of the animals;
(c) they grazed on the property;
(d) the plaintiff has suffered damages because of the grazing.
Van Zyl v Kotze [1961] 4 All SA 293 (T), 1961 (4) SA 214 (T)
Coetzee & Sons v Smit [1955] 3 All SA 108 (A), 1955 (2) SA 553 (A)
Damages must be properly quantified in terms of Uniform rule 18(10).
Negligence: Liability does not require negligence. As pointed out in the context of the actio de pauperie, it is
advisable to rely in the alternative on the lex Aquilia.
See ANIMALS: ACTIO DE PAUPERIE
Defence: If the plaintiff was at fault in relation to the damage for example, by leaving gates open that fault can
be raised as a complete defence.
Potgieter v Smit [1985] 1 All SA 154 (D), 1985 (2) SA 690 (D)
Pieters v Botha [1989] 3 All SA 667 (T), 1989 (3) SA 607 (T)
[Page 40]
PRECEDENTS
Claim based on actio de pastu
1. Plaintiff is the owner of [identify property].
2. Defendant was at all relevant times the owner of a [describe e.g. a herd of Friesland cattle].
3. On [date], the said [herd] entered the plaintiff's property, grazed thereon and damaged the plaintiff's crop of [e.g.
maize].
4. As a result, the plaintiff suffered damages in the sum of [amount] being the value of the damaged crop calculated as
follows:
[detail].
(a) Payment of [amount] being damages.
(b) Interest.
Animals: Actio de pauperie
Leading cases:
O'Callaghan NO v Chaplin 1927 AD 310
General: This action makes an owner of a domesticated animal liable for damage caused by that animal, without
requiring negligence.
Essentials: It is necessary for the plaintiff to allege and prove that
Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA)
(a) the ownership of the animal vested in the defendant at the time of the infliction of the damage;
Solomon NNO v De Waal [1972] 2 All SA 112 (A), 1972 (1) SA 575 (A)
(b) the animal was a domesticated animal;
(c) the animal acted contrary to the nature of domesticated animals generally (contra naturam sui generis) in
causing damage to the plaintiff. For example, for a dog to bite, an ox to gore or a horse to kick would be
contrary to the animal's domesticated nature.
Da Silva v Otto [1986] 3 All SA 448 (T), 1986 (3) SA 538 (T)
Fourie v Naranjo [2007] 4 All SA 1152 (C), 2008 (1) SA 192 (C)
Sheep or cattle grazing, an attacked animal defending itself, a horse kicking in pain and a ram jumping over a
fence to cover a neighbour's ewe all act according to their nature (secundam naturam sui generis) and not
contrary to it.
Jordaan v Krone Broers [1999] 3 All SA 57 (C)
In the absence of an express allegation, whether the animal acted contrary to the nature of its class may be
implied from other facts set out in the pleading.
Maree v Diedericks [1962] 1 All SA 321 (T), 1962 (1) SA 231 (T)
It is not necessary to prove that the animal acted out of perversity or that it was inherently vicious.
Van Niekerk v Jantjies [1996] 2 All SA 517 (E)
There is no onus on the plaintiff to explain the peculiar behaviour of the animal.
Da Silva v Coetzee [1970] 4 All SA 46 (T), 1970 (3) SA 603 (T)
[Page 41]
(d) causation in other words, that the conduct of the animal caused the plaintiff's damage.
Portwood v Svamvur [1970] 4 All SA 186 (RA), 1970 (4) SA 8 (RA)
The damage may be to property or person.
Cf. Solomon NNO v De Waal [1972] 2 All SA 112 (A), 1972 (1) SA 575 (A)
Damages must be quantified properly in terms of Uniform rule 18(10).
The actio de pauperie and negligence: The liability of the owner of the domesticated animal is independent of any
fault on that owner's part. It is advisable to claim in the alternative in delict. Thus, for example, should the plaintiff
be unable to prove the defendant's ownership or that the animal acted contra naturam suam, the plaintiff may
nevertheless be able to prove negligence on the part of the defendant in failing to control the animal.
Enslin v Nhlapo [2008] 4 All SA 156 (SCA), 2008 (5) SA 146 (SCA)
Defences: The onus is on the defendant to allege and prove the defences set out hereinafter.
Da Silva v Coetzee [1970] 4 All SA 46 (T), 1970 (3) SA 603 (T)
(a) The animal was provoked by the injured party (the plaintiff), a third party or another animal.
Minister van Polisie v Chetty [1976] 2 All SA 508 (A), 1977 (2) SA 885 (A)
Van der Westhuizen v Burger [2017] ZASCA 178, 2018 (2) SA 87 (SCA)
(b) A third party in charge or control of the animal negligently failed to prevent the animal from injuring the victim.
Lever v Purdy [1993] 2 All SA 265 (A), 1993 (3) SA 17 (A)
(c) The unlawful presence of the plaintiff on the premises opened the plaintiff to the risk of injury. To succeed, the
defendant must show that the plaintiff had neither 'a lawful purpose to be on the premises, [nor] a legal right
to be there'. Only persons who are on the premises by invitation or permission, express or implied, have a
legal right to be there.
Fourie v Naranjo [2007] 4 All SA 1152 (C), 2008 (1) SA 192 (C)
(d) Volenti non fit iniuria : The defendant must allege and prove that the plaintiff knew of the risk of sustaining

injury from the defendant's animal and voluntarily accepted that risk.
Maartens v Pope [1992] 2 All SA 524 (N), 1992 (4) SA 883 (N)
See VOLENTI NON FIT INIURIA
(e) Indemnity: Depending on the terms of an indemnity, the defendant may not be responsible for loss caused by
the defendant's animal.
Walker v Redhouse [2007] 4 All SA 1217 (SCA), 2007 (3) SA 514 (SCA)
PRECEDENTS
Claim based on the actio de pauperie and, in the alternative, on the actio legis Aquiliae
1. Defendant was at all material times the owner of a male Rottweiler dog.
2. On [date] at [place], the dog injured the plaintiff by [e.g. biting] and caused him damage by [e.g. tearing his trousers]
and [set out injuries].
3. The animal acted contrary to the nature of its class.
4. Alternatively, in the event of the court's holding that the defendant was not the owner of the animal or that the animal did
not act contrary to the nature of its class, the plaintiff alleges that the defendant was negligent in that [e.g.]
(a) the defendant knew or should have known that the dog was at times vicious and likely to bite strangers lawfully
visiting;
[Page 42]
(b) the defendant failed to take any steps to safeguard persons lawfully on his premises from any possible attack on
them by the dog.
5. Because of the foregoing, plaintiff suffered the following damages:
(a) pain and suffering [amount];
(b) medical expenses [amount];
(c) loss of [e.g. trousers] [amount].
(a) Payment of [amount] being damages.
(b) Interest.
Plea to an actio de pauperie based on trespass by plaintiff
1. Defendant pleads that, at the time the plaintiff was bitten by the defendant's dog, the plaintiff had entered upon the
defendant's premises without any legal right to be thereon and that the dog, a watchdog guarding the defendant's house,
thereupon bit the plaintiff.
2. Defendant accordingly denies that the dog acted contrary to the nature of its class.
Plea to an actio de pauperie based on volenti non fit iniuria, alternatively negligence
1. Defendant pleads that the plaintiff was at all material times aware that the defendant kept a fierce dog on his property
and that such dog was liable to bite and injure persons who entered upon such property, but the plaintiff nevertheless
entered the property and freely and voluntarily assumed the risk of injury.
2. The defendant pleads in the alternative that the plaintiff, having this knowledge, was negligent in entering the defendant's
property and that any injuries sustained were occasioned by this negligence [detail].
Animals: Wild animals
Game Theft Act 105 of 1991
Ownership: See
Mathenjwa NO and others v Magudu Game Company (Pty) Ltd [2009] 4 All SA 15 (SCA), 2010 (2) SA 26 (SCA)
Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari 2018 (4) SA 206 (SCA)
Liability for damage: The edictum de feris provides for compensation for damage caused by wild animals kept in
captivity by a defendant.
Zietsman v Van Tonder [1989] 3 All SA 124 (T), 1989 (2) SA 484 (T)
Hanger v Regal and another 2015 (3) SA 115 (FB)
An owner of ground who introduces a danger in the shape of wild or destructive animals may be liable to others for
damage should the animals stray and cause damage. However, no duty rests on the owner of ground on which
there are wild animals to prevent them from leaving that ground.
Mbhele v Natal Parks, Game & Fish Preservation Board [1980] 2 All SA 469 (D), 1980 (4) SA 303 (D)
As to nuisance caused by wild animals, see
PGB Boerdery Beleggings (Edms) Bpk v Somerville 62 (Edms) Bpk 2008 (2) SA 428 (SCA)
A defendant can escape liability by proving that the plaintiff was a trespasser or provoked the animal, or that the
damage was caused by the unlawful act of a third party, by casus fortuitus or by vis maior.
Van der Westhuizen v Burger [2017] ZASCA 178, 2018 (2) SA 87 (SCA)
[Page 43]
PRECEDENTS
Claim for damages
1. Defendant is the owner of the farm [name] situated at [location].
2. On this farm, defendant has introduced certain wild ostriches which do not naturally occur there.
3. On [date], one of the ostriches escaped from defendant's farm and attacked plaintiff causing him the following injuries:
[detail].
4. Because of his injuries, plaintiff suffered damages in the amount of [amount] calculated as follows:
[detail].
Arbitration
Related subjects: ARCHITECTS; CONSTRUCTION CONTRACTS
Leading cases:
Telcordia Technologies Inc v Telkom SA Ltd [2007] 2 All SA 243 (SCA), 2007 (3) SA 266 (SCA)
Hos+Med Medical Aid Scheme v Thebe ya Pelo Healthcare and others [2008] 2 All SA 132 (SCA), 2008 (2) SA 608
(SCA)
Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews 2009 (6) BCLR 527 (CC), 2009 (4) SA 529 (CC)
Radon Projects (Pty) Ltd v NV Properties (Pty) Ltd [2013] 3 All SA 615 (SCA), 2013 (6) SA 345 (SCA)
General: Arbitration is a procedure whereby a dispute between parties is determined extracurially, pursuant to a
consensual agreement that provides for the reference to arbitration of a dispute of matters specified in it.
Statutes occasionally provide for compulsory arbitration, but this work is not concerned with such arbitrations.
The phrase 'legal proceeding' in legislation may mean court proceedings or include proceedings before arbitral
tribunals.
Chetty v Hart [2015] 4 All SA 401 (SCA), 2015 (6) SA 424 (SCA) para. 35
Arbitration legislation: It is necessary to distinguish between
(a) domestic arbitrations provided for by the Arbitration Act 42 of 1965;
(b) international commercial arbitrations regulated by chapter 2 of the International Arbitration Act of 2017; and
(c) the recognition and enforcement of arbitration agreements and foreign arbitration awards dealt with in
chapter 3 of the International Arbitration Act 15 of 2017 (replacing the Recognition and Enforcement of
Foreign Arbitral Awards Act 40 of 1977).
This title is basically concerned with domestic arbitrations, although the other two issues are dealt with below.
Jurisdiction: The functions of an arbitrator are judicial and not administrative.
Total Support Management (Pty) Ltd v Diversified Health Systems (SA) (Pty) Ltd 2002 (4) SA 661 (SCA)
[Page 44]
The jurisdiction of an arbitrator is described and delimited by the terms of the arbitration agreement. Depending on
the terms of reference, an arbitrator has no power (jurisdiction) to decide any issue not so circumscribed. To be
binding, the award must fall within the arbitrator's area of competence as defined in the agreement.
Gutsche Family Investments (Pty) Ltd v Mettle Equity Group (Pty) Ltd [2007] 3 All SA 223 (SCA), 2007 (5) SA 491
(SCA)
Hos+Med Medical Aid Scheme v Thebe ya Pelo Healthcare and others [2008] 2 All SA 132 (SCA), 2008 (2) SA 608
(SCA)
Holford v Carleo Enterprises (Pty) Ltd and others [2014] ZASCA 195
When business people choose to arbitrate their disputes, they generally intend that all their disputes will be
determined by the same tribunal.
Riversdale Mining Limited v Du Plessis and another [2017] ZASCA 7
An arbitrator whose jurisdiction is challenged is not obliged to withdraw from the matter. The arbitrator ought to
consider and rule on the scope of jurisdiction when the objection is raised. However, such a ruling does not amount
to a final arbitral award but may be challenged in a subsequent review of the whole proceedings.
Radon Projects (Pty) Ltd v NV Properties (Pty) Ltd [2013] 3 All SA 615 (SCA), 2013 (6) SA 345 (SCA) paras 2829
Onus: A party wishing to rely on an arbitration clause must allege and prove the underlying jurisdictional facts:
Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C) p. 567, 1998 (4) SA 606 (C) p. 615
(a) the existence of the arbitration clause or agreement, which must be in writing (but not necessarily signed);
Mervis Brothers v Interior Acoustics 1999 (3) SA 607 (W)
(b) that the arbitration clause or agreement is applicable to the dispute between the parties;
Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd [1970] 2 All SA 570 (A), 1970 (2) SA 498 (A)
Universiteit van Stellenbosch v JA Louw (Edms) Bpk [1983] 2 All SA 415 (A), 1983 (4) SA 321 (A)
Stocks Construction (OFS) (Pty) Ltd v MetterPingon (Pty) Ltd [1980] 1 All SA 326 (A), 1980 (1) SA 507 (A)
(c) that there is an existing dispute between the parties, which dispute must be defined;
Withinshaw Properties (Pty) Ltd v Dura Construction Co (SA) (Pty) Ltd 1989 (4) SA 1073 (A)
(d) that all the preconditions contained in the agreement for commencing arbitration have been complied with.
Santam Insurance Ltd v Cave t/a The Entertainers & The Record Box [1986] 1 All SA 513 (A), 1986 (2) SA 48 (A)
Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T)
It is not necessary for the defendant to allege a readiness or willingness to arbitrate.
Stanhope v Combined Holdings & Industries Ltd 1950 (3) SA 52 (E)
Effect of arbitration clause: An agreement to arbitrate does not deprive a court of its jurisdiction over the dispute
covered by the agreement. Accordingly, an arbitration agreement is not an automatic bar to court proceedings and
a party cannot file an exception to a claim brought in a court of law on the ground that the issue must be tried by
an arbitrator.
Parekh v Shah Jehan Cinemas (Pty) Ltd [1980] 1 All SA 239 (D), 1980 (1) SA 301 (D)
[Page 45]
When a party institutes court proceedings despite the arbitration agreement, the defendant may
(a) apply for a stay of the proceedings brought before the delivery of any pleadings by the defendant or the
taking of any other step in the proceedings; or
Arbitration Act 42 of 1965 s 6
Conress (Pty) Ltd v Gallic Construction (Pty) Ltd [1981] 3 All SA 337 (W), 1981 (3) SA 73 (W)
(b) ask in a special plea (a dilatory plea) for the stay of proceedings, pending final determination of the dispute by
the arbitrator.
Yorigami Maritime Construction Co Ltd v NisshoIwai Co Ltd [1977] 4 All SA 733 (C), 1977 (4) SA 682 (C)
GK Breed (Bethlehem) (Edms) Bpk v Martin Harris & Seuns (OVS) (Edms) Bpk 1984 (2) SA 66 (O)
The party resisting the stay of court proceedings bears the onus (which is not easily discharged) of convincing the
court that, owing to exceptional circumstances, the stay should be refused. In other words, courts will enforce an
agreement to arbitrate unless there are compelling reasons to order otherwise.
Delfante v Delta Electrical Industries Ltd [1992] 3 All SA 968 (C), 1992 (2) SA 221 (C)
BDE Construction v Basfour 3581 (Pty) Ltd 2013 (5) SA 160 (KZP)
Stieler Properties CC v Shaik Prop Holdings (Pty) Ltd [2015] 1 All SA 513 (GJ)
Termination: Cancellation of a contract (such as a building contract) pursuant to its breach does not terminate the
operation of the arbitration clause. The arbitration provision may be terminated only with the consent of all the
parties, unless the contract provides otherwise.
Arbitration Act 42 of 1965 s 3(1)
Atteridgeville Town Council v Livanos t/a Livanos Brothers Electrical [1992] 1 All SA 274 (A), 1992 (1) SA 296 (A)
Invalidity of the agreement: An arbitrator has no jurisdiction to consider the invalidity of the arbitration agreement
itself if his or her alleged jurisdiction is based on the impugned agreement.
An arbitration agreement that arose from an invalid agreement (e.g. a fraudtainted agreement which the
defrauded party chose to rescind) cannot be enforced.
Van Heerden v Sentrale Kunsmis Korp (Edms) Bpk [1973] 1 All SA 150 (A), 1973 (1) SA 17 (A)
Northwest Provincial Government v Tswaing Consulting CC [2007] 2 All SA 365 (SCA), 2007 (4) SA 452 (SCA)
North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd [2013] 3 All SA 291 (SCA), 2013 (5) SA 1 (SCA)
Pleadings in arbitration proceedings: The Arbitration Act does not prescribe pleadings and, unless there is an
agreement to the contrary, arbitration is not regulated by the rules of court.
Wilton v Gatonby [1994] 4 All SA 292 (W), 1994 (4) SA 160 (W)
Arbitration proceedings may be held with pleadings (parties normally agree on the exchange of pleadings in the
form of court pleadings), by an informal formulation of the issues or witness statements or in terms of a stated
case. If the procedure is regulated by the rules of, for instance, the Arbitration Federation of Southern Africa or the
Association of Arbitrators (Southern Africa), those rules must be followed.
Gutsche Family Investments (Pty) Ltd v Mettle Equity Group (Pty) Ltd [2007] 3 All SA 223 (SCA), 2007 (5) SA 491
(SCA)
[Page 46]
Statement of case: On the application of any party to the reference, an arbitration tribunal may at any stage before
making a final award state any question of law, 'arising in the course of the reference', in the form of a special case
for the opinion of the court or of counsel. This does not apply to international arbitrations.
Road Accident Fund v Cloete NO [2010] 2 All SA 161 (SCA), 2010 (6) SA 120 (SCA)
The award: The award of an arbitrator or arbitral appeal tribunal is a final adjudication of the dispute between the
parties and gives rise to res iudicata.
Arbitrators are entitled to issue an award in terms of a settlement.
Bidoli v Bidoli and another 2011 (5) SA 247 (SCA)
The rules applicable to the interpretation of a court judgment also apply to the interpretation of an arbitrator's
award.
F r a n k e l M a x P o l l a k V i n d e r i n e I n c v M e n e l l J a c k H y m a n R o s e n b e r g & C o I n c [ 1 9 9 6 ] 2 A l l S A 4 9 5 ( A ) ,
1996 (3) SA 355 (SCA)
Delivery of award: Although section 25(1) of the Arbitration Act provides for the method of delivery of an award,
the parties may agree on another method.
Buildcure CC v Brews and others [2017] 3 All SA 843 (GJ), 2017 (6) SA 562 (GJ)
Remittal of award: The parties to a reference may within six weeks after the publication of the award remit any
matter to the tribunal for reconsideration and for the making of a further or fresh award or for such other purpose
as the parties may specify.
The court may, on the application of any party to the reference after due notice to the other party made within six
weeks after the publication of the award, on good cause shown remit any matter which was referred to arbitration
to the tribunal for reconsideration or for such other purpose as the court may direct.
Leadtrain Assessments (Pty) Ltd and others v Leadtrain (Pty) Ltd and others [2013] ZASCA 33, 2013 (5) SA 84
(SCA)
Future Rustic Construction (Pty) Ltd v Spillers Waterfront (Pty) Ltd 2011 (5) SA 506 (KZD)
Making an award an order of court: Any award may on application to a high court of competent jurisdiction be
made an order of court. Upon so becoming an order of court an award becomes enforceable as such.
Arbitration Act 42 of 1965 s 31(1)
Stocks & Stocks (Cape) (Pty) Ltd v Gordon NO [1993] 1 All SA 39 (T), 1993 (1) SA 156 (T)
Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T)
Seton Co v Silveroak Industries Ltd 2000 (2) SA 215 (T)
Prime Fund Managers (Pty) Ltd v Rowan Angel (Pty) Ltd and another [2014] 2 All SA 227 (GNP)
An arbitral award in conflict with a statutory prohibition may not be made an order of court since it would sanction
an illegality.
Cool Ideas 1186 CC v Hubbard and another 2014 (8) BCLR 869 (CC), 2014 (4) SA 474 (CC)
An arbitration award generally does not create a new debt for the purposes of the Prescription Act 68 of 1969, and
a claim to make an arbitration award an order of court is not a 'debt' for the purposes of that Act.
Brompton Court Body Corporate v Khumalo 2018 (3) SA 347 (SCA)
[Page 47]
Setting aside of award: A court may, in a commonlaw review application of any party to the reference, after due
notice to the other parties, set aside the award if
(a) any member of the tribunal was guilty of misconduct in relation to his or her duties as arbitrator or umpire; or
(b) the tribunal committed any gross irregularity in the conduct of the arbitration proceedings or exceeded its
powers; or
(c) the award was obtained improperly.
Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and others [2014] 1 All SA 375 (SCA), 2013 (6) SA 520
(SCA)
The grounds for the setting aside of international awards differ from those in the Arbitration Act.
An arbitration that has been properly conducted on certain issues, and properly determined those issues, will not
be set aside in its entirety, because of an irregularity in relation to a wholly separate issue.
Palabora Copper (Pty) Ltd v Motlokwa Transport and Construction (Pty) Ltd [2018] ZASCA 23 para. 48
International commercial arbitration: T h e s e a r b i t r a t i o n s a r e r e g u l a t e d b y t h e U N C I T R A L M o d e l L a w o n
International Commercial Arbitration, which was made part of South African law in terms of the International
Arbitration Act 15 of 2017.
Any international commercial dispute which the parties have agreed to submit to arbitration under an arbitration
agreement and which relates to a matter the parties are entitled to dispose of by agreement may be determined by
arbitration, unless it is not capable of determination by arbitration under any law of the Republic or the arbitration
agreement is contrary to the public policy of the Republic.
An arbitration is international if
(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of
business in different states; or
(b) one of the following places is situated outside the state in which the parties have their places of business:
(i) the place of arbitration, if determined in, or pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed
or the place with which the subject matter of the dispute is most closely connected; or
(c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than
one country.
It is not possible or appropriate to deal in any detail with the provisions of the Model Law in this work, but it should
be noted that courts have very limited jurisdiction to control international commercial arbitrations.
Recognition and enforcement of arbitration agreements and foreign arbitration awards: T h i s i s s u e w a s
previously dealt with in the Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977.
Ex parte Balkan Energy Limited and another; In re: Balkan Energy Limited and another v Government of the
Republic of Ghana 2017 (5) SA 428 (GJ)
[Page 48]
Chapter 3 of the International Arbitration Act 15 of 2017 replicates most of the earlier Act's provisions. An
arbitration agreement and a foreign arbitral award (an arbitral award made in the territory of a state other than the
Republic) must (subject to s 18 of the International Arbitration Act) be recognised and enforced in the Republic. The
award binds the parties to a foreign arbitral award and may be relied upon by them by way of defence, setoff or
otherwise in any legal proceedings. A foreign arbitral award must, on application, be made an order of court and
may then be enforced as any judgment or order of court would be.
International Arbitration Act 15 of 2017 s 1618
Expert determination (valuer): Not every clause in a contract that provides for the decision of a dispute by a third
party rather than a court is an arbitration clause. The third party may be a valuer, mediator or referee.
Hoffman v Meyer [1956] 3 All SA 134 (C), 1956 (2) SA 752 (C)
Schuldes v Compressor Valves Pension Fund [1980] 2 All SA 416 (W), 1980 (4) SA 576 (W)
A valuer does not act in a judicial capacity but decides the issues submitted, through the exercise of judgement and
skill.
Perdikis v Jamieson [2002] 4 All SA 560 (W), 2002 (6) SA 356 (W)
An expert determination under a contractual provision providing for one (e.g. determination of the price of shares) is
binding on the parties unless the determination falls beyond the jurisdiction of the expert or is the result of a
manifest error (an error that is plain and indisputable and that amounts to a complete disregard of the controlling
law or the credible evidence on record).
Media24 (Pty) Ltd t/a Media Sun v Estate of late Deon Jean Du Plessis and another [2017] ZASCA 168
The expert determination must resolve all issues submitted, in a manner that achieves finality and certainty. The
determination, therefore, may not reserve a decision for another determination. It must also be capable of
implementation. In addition, only the matters submitted must be determined and nothing more. Depending on the
questions, therefore, the determination may not necessarily result in a final resolution of a dispute between the
parties.
A court will be slow to find noncompliance with substantive requirements and an award or determination will be
construed liberally and in accordance with the dictates of common sense.
SA Breweries Ltd v Shoprite Holdings Ltd [2008] 1 All SA 337 (SCA), 2008 (1) SA 203 (SCA)
PRECEDENTS
Special plea of arbitration clause
1. Plaintiff's claim arises from a written contract between the parties.
2. Clause 34 of that agreement provides that any dispute between the parties must be referred to arbitration conducted by
a nominated arbitrator.
3. Since the defendant disputes the plaintiff's claim and, prior to the institution of action, informed the plaintiff of such
dispute, the plaintiff's claim is in dispute as envisaged in this clause.
4. Plaintiff has not referred the dispute to arbitration.
5. Defendant prays that the plaintiff's action be stayed, pending the final determination of the dispute by the arbitrator in
terms of the agreement.
[See PART A s.v. IV. SPECIAL PLEAS.]
[Page 49]
Architects
Related subjects: AGENCY; ARBITRATION; CONSTRUCTION CONTRACTS
General: The Architectural Profession Act 44 of 2000 applies to several categories of persons involved in the
architectural profession and requires that they be registered to perform any kind of work falling within any such
category.
Architectural Profession Act 44 of 2000s 18
Nunes v Crawford and others [2010] 4 All SA 304 (WCC)
Since it is an offence to practise if one is not registered, an unregistered person is unable to claim remuneration for
work done.
Meredith Woods Johnson & Associates Trust v Deep Blue See Properties (Pty) Ltd 2005 JDR 0476 (SE)
Cf. Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC), 2014 (8) BCLR 869 (CC)
The Act provides for regulations containing guideline professional fees. An architect is not entitled, in the absence of
an agreement with a client, to prescribed fees.
Architectural Profession Act 44 of 2000s 34
The nature of the relationship between an architect and the employer is not one of employment but of work (locatio
conductio operis).
Marais v Bezuidenhout 1999 (3) SA 988 (W)
Fees: To recover fees for professional services rendered, an architectural professional must allege and prove
(a) registration as an architectural professional;
Meredith Woods Johnson & Associates Trust v Deep Blue See Properties (Pty) Ltd 2005 JDR 0476 (SE)
(b) the mandate and its terms;
Esbach v Steyn 1975 (4) SA 503 (A)
Holm Jordaan v City of Tshwane Metropolitan Municipality [2014] ZASCA 105
(c) the completion of the mandate according to its terms and in a proper and workmanlike manner;
Maw v KeithReed [1975] 4 All SA 540 (C), 1975 (4) SA 603 (C)
Du Plessis v Strydom 1985 (2) SA 142 (T)
Wilkens Nel Argitekte v Stephenson 1987 (2) SA 628 (O)
(d) an undertaking by the employer (client) to pay for the work. If nothing was said about remuneration, the
implication may be that fees would be payable in terms of the guidelines. If the undertaking to pay is in issue,
the onus rests upon the plaintiff to prove that nothing was said about fees.
Eaton & Louw v Arcade Properties (Pty) Ltd 1962 (3) SA 255 (A)
The plaintiff need not tender the drawings.
Shenfield v Murgatroyd 1954 (2) SA 241 (N)
Agency: The architectural professional is usually the employer's agent in respect of the issuing of certificates and
instructions under the building contract. The architect does not act as a quasiarbitrator.
Universiteit van Stellenbosch v JA Louw (Edms) Bpk [1983] 2 All SA 415 (A), 1983 (4) SA 321 (A)
In addition to any express authority, the professional has implied authority to do whatever is normally and
reasonably incidental to the performance of what the architect has been employed to do during the contract.
Smith v Mouton [1977] 1 All SA 43 (W), 1977 (3) SA 9 (W) p. 18
[Page 50]
The professional may not, in the absence of a specific authority, enter into a contract on behalf of the employer or
amend the contract with the builder.
O'Connell, Manthe, Cragg & Partners v Charles [1970] 1 All SA 196 (E), 1970 (1) SA 7 (E)
Repudiation by employer: The architectural professional remains entitled to remuneration for work done even if the
employer decides not to proceed with the project, provided that the work was done properly and in accordance
with the employer's instructions.
De Zwaan v Nourse 1903 TS 814
Certificates: An architect's certificate duly issued in terms of the building contract binds the employer to pay the
amount stated therein within the time limit provided for in the contract. This also applies to an interim certificate.
The contractor is entitled to sue for payment upon the expiry of the time limit, without any further steps.
Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens; Qwa Qwa Regeringsdiens v Martin Harris &
Seuns OVS (Edms) Bpk [2000] 2 All SA 72 (A), 2000 (3) SA 339 (SCA) para. 37
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture [2009] 3 All SA 407 (SCA), 2009 (5) SA 1
(SCA)
This does not mean that the employer cannot raise one of a limited number of relevant defences such as a term of
the contract which provides for payment on other conditions, and cancellation or fraud.
Thomas Construction (Pty) Ltd (in liq) v Grafton Furniture Manufacturers (Pty) Ltd [1988] 2 All SA 228 ( A ) ,
1988 (2) SA 546 (A) p. 562
It is apparently not a defence that the work was defective or that the employer has an unliquidated counterclaim
for damages. A liquidated counterclaim may be set off against the amount of the certificate.
Aliwal North Municipality v Crawford [1964] 1 All SA 551 (A), 1964 (1) SA 344 (A)
Shelagatha Property Investments CC v Kellywood Homes (Pty) Ltd; Shelfaerie Property Holdings CC v Midrand
Shopping Centre (Pty) Ltd [1995] 2 All SA 135 (A), 1995 (3) SA 187 (A)
As a rule, an employer may not dispute the correctness of a final certificate.
Ocean Diners (Pty) Ltd v Golden Hill Construction CC [1993] 2 All SA 260 (A), 1993 (3) SA 331 (A)
A negligent or innocent misrepresentation by the contractor relating to the issuing of a certificate is not a defence.
Ocean Diners (Pty) Ltd v Golden Hill Construction CC [1993] 2 All SA 260 (A), 1993 (3) SA 331 (A) pp. 340EG and
344BG
Provisional sentence can be granted on a payment certificate because the certificate represents an
acknowledgement of debt signed by the employer's duly authorised agent.
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture [2009] 3 All SA 407 (SCA), 2009 (5) SA 1
(SCA)
The building contract, which authorises the architect to issue the certificate, need not be attached to the
provisionalsentence summons.
LTA Construction Ltd v KwaZuluNatal Provincial Administration [1997] 1 All SA 503 (N), 1997 (1) SA 633 (N)
The certificate is often a condition precedent to payment by the employer. Should the architect refuse or fail to issue
a certificate, the contractor's remedy is to obtain an arbitration award in terms of the contract.
Provincial Building Society of SA v PR Wade & Co (Pty) Ltd (in liq) [1967] 1 All SA 60 (N), 1967 (1) SA 121 (N)
[Page 51]
The architect is not entitled to bind the contractor by issuing a certificate reflecting an amount due by the contractor
to a subcontractor, because the architect is not the contractor's agent.
Cone Textiles (Pvt) Ltd v Mather & Platt (SA) (Pty) Ltd [1981] 4 All SA 346 (ZA), 1981 (3) SA 565 (ZA)
Negligence: An architectural professional is liable to the employer for damages suffered because of a failure by the
professional to adhere to the general level of skill and diligence possessed and exercised at the time by the
members of the branch of the profession to which the professional belongs.
The architectural professional has a special duty to advise the employer of any potential risks. If damage is suffered
because of the failure to provide for such eventualities, the architectural professional may escape liability by proving
that adequate warnings were given to the employer and that the employer rejected them.
Randaree NNO v WH Dixon & Associates [1983] 1 All SA 354 (A), 1983 (2) SA 1 (A)
Negligent breach of a term of the contract on the part of the architectural professional gives rise to a claim for
breach of contract, not to a delictual claim.
See CHOICE OF ACTION
In an action for damages, the employer must allege and prove
(a) the mandate;
(b) breach of the mandate;
(c) the professional's negligence (details of the negligence must be set out);
Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C)
(d) damages, which must be detailed.
The architect as agent is liable to the employer for damages resulting from the architect's negligence in issuing a
certificate.
Randcon (Natal) (Pty) Ltd v Florida Twin Estates (Pty) Ltd [1973] 4 All SA 315 (D), 1973 (4) SA 181 (D)
Extended liability: In terms of professional regulations, architects and quantity surveyors may be members and
directors of private companies or close corporations that act as architects or quantity surveyors. They must,
however, be directors and the memorandum of association must contain a provision to the effect that the directors
and former directors of the company shall be liable jointly and severally, together with the company, for such debts
and liabilities of the company as are or were contracted during their periods of office. This extension of liability does
not extend to delictual debts.
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A), 1997 (1) SA 710 (A)
PRECEDENTS
Claim for remuneration
1. Plaintiff is a duly registered professional architect in terms of the provisions of the Architectural Profession Act 44 of
2000.
2. On or about [date] at [place], the defendant orally engaged the services of the plaintiff to act as architect in the planning
and erection of a dwelling house at [address].
3. In particular, the defendant instructed the plaintiff to perform the following services:
(a) to prepare sketchplans for defendant's approval;
(b) upon approval by the defendant, to lodge the plans with and secure their approval by the local authority;
(c) to call for and evaluate tenders for the erection of the building;
(d) to prepare the necessary contract documents and specifications;
(e) to supervise the erection of the building.
[Page 52]
4. Plaintiff duly acted as the defendant's architect and performed all the services as set out above.
5. It was an express term [tacit/implied] of the agreement between the parties that the defendant would remunerate
plaintiff for these services at the prescribed guideline rate.
6. The remuneration according to the guidelines for the services rendered by the plaintiff amounts to [Rx] [detail].
Claim for damages against architect
1. Defendant is a duly registered professional architect in terms of the provisions of the Architectural Profession Act 44 of
2000.
2. On or about [date] at [place], the plaintiff engaged the services of the defendant to act as professional architect and to
supervise the erection of a dwelling to be built for the plaintiff at [address].
3. It was a [an implied] term of the agreement that the defendant would exercise reasonable professional skill and diligence
in the performance of the mandate.
4. In breach of the agreement, the defendant failed to exercise the required skill and diligence by failing to ensure that the
contractor build the roof of the dwelling according to specifications or sound building practice. [Detail]
5. In consequence of the defendant's breach of contract, the roof leaks and must be replaced.
6. When the defendant's services were engaged, it was known to both parties that the plaintiff intended to place various
valuable carpets in the house and that a leaking roof could severely damage them.
7. As a result of the leaking roof, three oriental carpets belonging to the plaintiff became wet and were damaged.
8. In the light of the defendant's breach of contract, the plaintiff suffered damages calculated as follows:
(a) [amount] being the reasonable costs for replacing the roof;
(b) [amount] being the damages sustained to the plaintiff's three oriental carpets. [Detail]
Claim for damages due to negligent issue of a certificate
1. On or about [date] at [place], the plaintiff entered into a written building contract with [name] in terms of which the latter
undertook to erect a [block of flats] for the plaintiff at [address].
2. Defendant was appointed by the plaintiff to act as professional architect in respect of the block of flats and, inter alia, to
issue, from time to time, certificates reflecting the amounts due to [name of contractor] by the plaintiff and, on the
satisfactory completion of the block of flats, to issue a final certificate reflecting the balance then due by the plaintiff to
[the contractor].
3. Defendant accepted this appointment on [date] at [place].
4. It was a [an implied] term of the appointment that the defendant would exercise reasonable professional skill and care in
the issue of the certificates.
5. On [date], the defendant issued a final certificate to the effect that the balance owing by the plaintiff to [name] was
[amount].
6. When the final certificate was issued as aforesaid, the building was not satisfactorily completed in the following respects:
[detail].
7. Defendant, by exercising reasonable professional skill and care, would have been aware of the respects in which the
building was not satisfactorily completed and should not have issued a final certificate.
8. In the premises, the defendant was negligent in issuing the final certificate and this negligence constituted a breach of
contract.
9. In terms of the agreement between the plaintiff and [name], the plaintiff became obliged to pay to [name] the sum of
[amount] upon issue of the certificate and on [date] the plaintiff paid the sum of [amount] to [name].
[Page 53]
10. Plaintiff is unable to recover the aforesaid sum from [name] and has, therefore, suffered damages in the amount of [Rx]
[detail] which damages were caused by the defendant's breach of contract.
Arrest and detention
Related subjects: ASSAULT; DELICT: LEX AQUILIA; MALICIOUS AND WRONGFUL LEGAL PROCEEDINGS; POLICE;
STATE LIABILITY; VICARIOUS LIABILITY
Leading cases:
Minister of Law and Order v Hurley [1986] 2 All SA 428 (A), 1986 (3) SA 568 (A)
Minister of Justice v Hofmeyr [1993] 2 All SA 232 (A), 1993 (3) SA 131 (A)
Raduvha v Minister of Safety and Security and another 2016 (10) BCLR 1326 (CC), 2016 (2) SACR 540 (CC)
General: Arrest and detention are separate legal processes. While the one may be lawful, the other one may be
unlawful.
Raduvha v Minister of Safety and Security and another 2016 (10) BCLR 1326 (CC), 2016 (2) SACR 540 (CC) para.
39
For the liability of the state for unlawful arrest and/or detention, see
Minister van Polisie v Gamble 1979 (4) SA 759 (A)
Arrest and/or detention must be constitutionally and statutorily justified.
1996 Constitution s 35(1) and (2)
Jurisdiction: The jurisdiction of a court is determined according to the principles applicable to delictual claims.
Cause of action: The cause of action in respect of unlawful arrest and/or detention is the actio iniuriarum. It has in
the present context certain special features which will be dealt with below. The wrongfulness of arrest and/or
detention consists in the wrongful deprivation of a person's liberty. Liability is strict and neither fault nor awareness
of the wrongfulness of the arrestor's conduct is required.
Wrongful arrest and/or detention have implications not only for a person's liberty but also for other aspects of
personality such as dignity.
Whittaker v Roos & Bateman 1912 AD 92
Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA)
Wrongful arrest and/or detention must be distinguished from malicious arrest and/or detention. An arrest or
detention is malicious when the defendant makes improper use of the legal process to deprive the plaintiff of his or
her liberty. Liability then depends on 'malice' and the principles set out under MALICIOUS AND WRONGFUL LEGAL
PROCEEDINGS apply.
Wrongfulness: Any arrest or detention is prima facie wrongful. It is accordingly not necessary to allege or prove
wrongfulness: the defendant must allege and prove the lawfulness of the arrest or detention.
Minister of Law and Order v Hurley [1986] 2 All SA 428 (A), 1986 (3) SA 568 (A) pp. 587589
Lombo v African National Congress [2002] 3 All SA 517 (SCA), 2002 (5) SA 668 (SCA) para. 32
[Page 54]
Consequently, when police have arrested and detained a person and the arrest and detention are admitted or
established, the onus of proving lawfulness rests on the state.
Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk)
Cf. Cele v Minister of Safety and Security [2007] 3 All SA 365 (D)
Arrest without a warrant: An arrest without a warrant is lawful if, inter alia, at the time of the arrest the arresting
officer had a reasonable belief that the plaintiff had committed a schedule 1 offence. The defendant has to show
that (a) the arresting officer suspected the plaintiff of having committed an offence; (b) the suspected offence was a
schedule 1 offence; (c) the suspicion was reasonable; and (d) the arresting officer exercised the discretion to arrest
properly.
Suspicion is a state of conjecture or surmise where proof is lacking and arises at or near the starting point of an
investigation of which the obtaining of prima facie proof is the end.
Minister of Safety and Security v Magagula [2017] ZASCA 103 para. 9
De Klerk v Minister of Police [2018] ZASCA 45
The officer must exercise the discretion properly, in the light of the circumstances, to decide whether an arrest is
necessary.
Criminal Procedure Act 51 of 1977s 40
Arrest with a warrant: An arrest pursuant to a warrant is prima facie lawful. The onus of proving the wrongfulness
of the arrest by showing that the warrant was irregular rests on the plaintiff.
Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie NoordTransvaal 1972 (1) SA 376 (A) p. 394
Minister van Polisie v Goldschagg [1981] 3 All SA 321 (A), 1981 (1) SA 37 (A)
A warrant in the proper form and issued by a duly authorised official provides the arresting officer with a defence.
Divisional Commissioner of SA Police Witwatersrand Area v SA Associated Newspapers Ltd [1966] 3 All SA 1 (A),
1966 (2) SA 503 (A)
Prinsloo v Newman [1975] 2 All SA 89 (A), 1975 (1) SA 481 (A)
There is no onus on the authorised official who issued a warrant to show that reasonable grounds existed for the
warrant.
Divisional Commissioner of SA Police Witwatersrand Area v SA Associated Newspapers Ltd [1966] 3 All SA 1 (A),
1966 (2) SA 503 (A) pp. 883884
The fact that a magistrate is not called upon to consider a prosecutor's conclusions regarding reasonable grounds
for suspicion does not mean that the magistrate should not exercise discretion in deciding to issue a warrant of
arrest. The magistrate must be satisfied that the alleged offence is an offence in law and that it is of such a nature
and gravity as to justify a warrant.
The bona fide exercise of this discretion by the authorised official is not objectively justifiable.
Groenewald v Minister van Justisie [1973] 4 All SA 149 (A), 1973 (3) SA 877 (A) pp. 883884
If the subsequent detention is in terms of a court order, the circumstances of the arrest leading to such detention
cannot make the detention unlawful, but the unlawful arrest remains a cause of action.
Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A), 1996 (1) SACR 314 (SCA)
But see the differing views expressed in De Klerk v Minister of Police [2018] ZASCA 45.
Irregular warrant: A member of the SA Police Service who acts under a warrant or process which is bad in law
because of a substantive or formal defect, not knowing of the [Page 55] defect, regardless of whether it is apparent
on the face of the warrant or process, is exempt from liability.
South African Police Service Act 68 of 1995s 55(1)
Animus iniuriandi : Despite the fact that the cause of action is the actio iniuriarum, a plaintiff need not allege and

prove an intention to injure or an awareness of unlawfulness. Furthermore, a defendant cannot escape liability
because of the absence of an intention to injure or an awareness of unlawfulness. The intention to arrest or detain
suffices.
Minister of Justice v Hofmeyr [1993] 2 All SA 232 (A), 1993 (3) SA 131 (A) pp. 154157
Tödt v Ipser [1993] 2 All SA 296 (A), 1993 (3) SA 577 (A) p. 586GI
An honest belief in the legality of the arrest or detention is also no defence.
Tsose v Minister of Justice [1951] 3 All SA 158 (A), 1951 (3) SA 10 (A) p. 18
Ramsay v Minister van Polisie [1981] 4 All SA 692 (A), 1981 (4) SA 802 (A) p. 818
Defences: Apart from placing the plaintiff's factual allegations in issue, the only defence available is justification
that is, proving that the arrest was lawful.
Use of force: See ASSAULT.
Arrest of wrong person: Any member of the SA Police Service who is authorised in terms of a warrant of arrest to
arrest a person and who, in the reasonable belief that he or she is arresting that person, arrests another is exempt
from liability.
South African Police Service Act 68 of 1995s 55(2)
Alternative claims: Wrongful arrest and/or detention can be relied on as an alternative to malicious arrest or
detention. The different causes of action should, as a matter of pleading, be kept separate and distinct.
Tödt v Ipser [1993] 2 All SA 296 (A), 1993 (3) SA 577 (A) p. 587AC
See MALICIOUS AND WRONGFUL LEGAL PROCEEDINGS
Damages: Special damages as well as general damages for the loss of the plaintiff's freedom can be claimed. If
special damages are claimed, the requisites for a delictual claim apply.
Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N), 1998 (2) SA 319 (N)
Minister of Correctional Services v Thobani 2003 (5) SA 126 (E)
Breach of a constitutional duty does not give rise to a claim for additional damages.
Fose v Min of Safety & Security 1997 (7) BCLR 851 (CC), 1997 (3) SA 786 (CC)
As to quantum, see
Minister of Safety and Security v Seymour [2007] 1 All SA 558 (SCA), 2006 (6) SA 320 (SCA)
Mathe v Minister of Police [2017] 4 All SA 130 (GJ), 2017 (2) SACR 211 (GJ)
PRECEDENTS
Claim for damages due to wrongful arrest and detention
1. On [date] at [place], the plaintiff was arrested without a warrant by [name], a member of the South African Police
Service [second defendant].
2. Thereafter, the plaintiff was detained at [place] for [days] at the instance of the aforesaid policeman and various other
policemen whose names and ranks are unknown to the plaintiff.
3. The policemen were acting within the course and scope of their employment as policemen of the South African Police
Service.
[Page 56]
4. Because of the foregoing, the plaintiff suffered loss in the amount of [Rx] made up as follows: [detail].
5. Proper notice of the proceedings was given to the defendants in terms of [see POLICE]
Claim unlawful civil detention
[From Tödt v Ipser [1993] 2 All SA 296 (A), 1993 (3) SA 577 (A) pp. 585586.]
1. At all material times, the plaintiff was subject to an administration order issued by the additional magistrate, Bellville, and
such order was of full force and effect.
2. In terms of section 74P(1) of the Magistrates' Courts Act 32 of 1944, as amended, no creditor has any remedy against a
debtor under administration or against his property (save for debts secured by way of mortgage bond or referred to in
terms of section 74P(3) of Act 32 of 1944) without the leave of the court and on such conditions as the court may impose.
3. On 10 March 1986, the defendant applied to the additional magistrate, Bellville, for leave to institute action against the
plaintiff in terms of section 74P(1) of Act 32 of 1944 'for no other purpose than to qualify for interest' on an amount of
R296,34 alleged by the defendant at the time to have been owed to him by the plaintiff.
4. Defendant moreover accepted that, should such leave to institute action (and in due course obtain judgment) be granted,
the defendant would 'not be free to execute (upon) the judgment while the administration order (was) in existence'.
5. Leave was duly granted to the defendant to institute action (and to obtain judgment), the defendant having restricted
himself to obtaining such judgment for the aforesaid purposes and subject to the aforesaid restriction, pursuant to which
the defendant obtained judgment against plaintiff in the Bellville magistrates' court.
6. Notwithstanding the foregoing, the defendant wrongfully, wilfully and with the intention to injure, obtained a judgment in
the Cape Town magistrates' court (based on the aforesaid judgment in the Bellville magistrates' court), instituted
proceedings against the plaintiff in terms of section 65 of Act 32 of 1944 (of which plaintiff was at all material times
unaware) and caused a warrant of arrest to be issued for the plaintiff's incarceration, pursuant to which the plaintiff was
arrested by the deputy messenger, Cape Town, on 1 August 1988 and detained in prison on 2 August 1988.
7. The plaintiff suffered grave distress and inconvenience, was severely humiliated and was gravely injured in her dignity.
Plea lawful arrest
Defendant denies that the arrest and detention were unlawful and pleads that both the arrest and detention were lawful in terms
of section 40(1)(a) of the Criminal Procedure Act 51 of 1977 in that:
(a) the arresting officer, [name], was a peace officer as defined in Act 51 of 1977;
(b) plaintiff committed the offence of assault, which is a Schedule 1 crime, on [date] at [place] by [name] in the presence of
the arresting officer;
(c) the arresting officer exercised his discretion to arrest properly in the circumstances.
Assault
Related subjects: ARREST AND DETENTION; INIURIA; MEDICAL AND DENTAL PRACTITIONERS; VICARIOUS LIABILITY
Leading cases:
Mabaso v Felix [1981] 2 All SA 306 (A), 1981 (3) SA 865 (A)
Carmichele v Minister of Safety and Security 2001 (10) BCLR 995 (CC), 2001 (4) SA 938 (CC)
[Page 57]
Constitutional principles: The state has a constitutional obligation to protect individuals against criminal acts of
violence of third parties. Failure to do so may give rise to delictual liability.
Minister of Safety and Security v Van Duivenboden [2002] 3 All SA 741 (SCA), 2002 (6) SA 431 (SCA)
Minister of Safety and Security v Carmichele [2003] 4 All SA 565 (SCA), 2004 (3) SA 305 (SCA)
Minister of Safety and Security v Mohofe [2007] 4 All SA 697 (SCA), 2007 (4) SA 215 (SCA)
Cause of action: An assault violates a person's bodily integrity. The cause of action is the actio iniuriarum.
For a noncontumelious infringement of a person's physical integrity (as in the case of e.g. an unauthorised surgical
operation) the only available cause of action is the actio legis Aquiliae for the recovery of actual damages.
Sentimental damages cannot be claimed.
Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N), 1998 (2) SA 319 (N)
Parties: A defendant may be vicariously liable for an assault committed by another. A typical example of such
liability is that of the state for an assault committed by a policeman or policewoman in the course of his or her
employment. In such a case, the relevant minister is the nominal defendant representing the state and the
policeman or policewoman involved is often cited as the second defendant.
See STATE LIABILITY; VICARIOUS LIABILITY
Minister of Law and Order v Ngobo [1992] 2 All SA 492 (A), 1992 (4) SA 822 (A)
Wrongfulness: Every infringement of the bodily integrity of another is prima facie unlawful. Accordingly, an allegation
of 'assault' implies wrongfulness.
Bennett v Minister of Police [1980] 3 All SA 817 (C), 1980 (3) SA 24 (C) pp. 3435
The plaintiff must allege and prove the fact of physical interference. Accordingly, the plaintiff must allege and prove
facts which prima facie and objectively indicate an assault.
Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A)
Mabaso v Felix [1981] 2 All SA 306 (A), 1981 (3) SA 865 (A) p. 874
Medical treatment: See MEDICAL AND DENTAL PRACTITIONERS.
Animus iniuriandi : There can be no assault without an intention to injure.

Brown v Hoffman [1977] 2 All SA 517 (NC), 1977 (2) SA 556 (NC)
An allegation of assault implies such an intention (animus iniuriandi).
Groenewald v Groenewald [1998] 2 All SA 335 (A), 1998 (2) SA 1106 (SCA) pp. 11111112
Lack of knowledge of wrongfulness is not a defence.
Bennett v Minister of Police [1980] 3 All SA 817 (C), 1980 (3) SA 24 (C)
Defences: The onus of alleging and proving an excuse or justification for the assault rests on the defendant.
Moghamat v Centre Guards CC [2004] 1 All SA 221 (C)
[Page 58]
If the defence is justification, it is inadvisable for the defendant to admit to an 'assault' on the plaintiff. The
defendant should rather use a neutral word such as 'striking', which does not carry with it an implication of
wrongfulness.
Selfdefence: The defendant must plead and prove
(a) a real or threatened attack by the plaintiff;
(b) reasonable grounds for believing that the defendant was in physical danger;
(c) that the force used was necessary in the circumstances to repel the attack and commensurate with the
plaintiff's aggression.
Mabaso v Felix [1981] 2 All SA 306 (A), 1981 (3) SA 865 (A) p. 874
S v Makwanyane 1995 (6) BCLR 665 (CC), 1995 (3) SA 391 (CC) para. 138
Necessity: A person, acting out of necessity may lawfully inflict harm on another. The danger must exist or be
imminent, and there must be no reasonable means of averting the danger except by inflicting harm. The means and
measures must not be excessive, having regard to all the circumstances of the case.
Whether a situation of necessity existed is a factual question which must be determined objectively.
Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA)
The defence of necessity may be relied on when force is necessary to effect a lawful arrest or prevent an escape
from arrest.
Ex parte Minister of Safety and Security: In re: S v Walters 2002 (7) BCLR 663 (CC), 2002 (4) SA 613 (CC) paras
53 and 54
Govender v Minister of Safety and Security 2001 (4) SA 273 (SCA), 2001 (2) SACR 197 (SCA)
The onus lies on a defendant who admits the 'assault' to prove the lawfulness of the 'assault' and arrest.
Macu v Du Toit [1983] 2 All SA 464 (A), 1983 (4) SA 629 (A)
Malahe v Minister of Safety and Security [1998] 4 All SA 246 (A), 1999 (1) SA 528 (SCA)
The Criminal Procedure Act 51 of 1977 (as amended) provides that, if any person authorised under the Act to arrest
or assist in arresting another person attempts to arrest such person and the latter
(a) resists the attempt and cannot be arrested without the use of force; or
(b) flees when it is clear that an attempt to arrest her or him is being made, or resists such attempt and flees,
the person so authorised may, to effect the arrest, use such force as may in the circumstances be reasonably
necessary to overcome the resistance or prevent the person concerned from fleeing.
Criminal Procedure Act 51 of 1977s 49(2)
The defendant must allege and prove that
(a) the defendant acted lawfully; or
(b) the defendant had reasonable grounds for suspecting the commission of an offence by the plaintiff and was
accordingly entitled to arrest the plaintiff;
(c) the defendant attempted to arrest in a manner prescribed by law;
(d) the plaintiff attempted to prevent or escape arrest; and
(e) the force employed by the defendant was reasonably necessary to bring about the arrest.
The arrestor may use deadly force only if
(a) the suspect poses a threat of serious violence to the arrestor or any other person; or
[Page 59]
(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or
threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest,
whether at that time or later.
Ex parte Minister of Safety and Security: In re: S v Walters 2002 (7) BCLR 663 (CC), 2002 (4) SA 613 (CC)
Minister of Safety and Security v Mohofe [2007] 4 All SA 697 (SCA), 2007 (4) SA 215 (SCA)
Consent: The plaintiff's consent as a defence falls to be decided according to the principles of volenti non fit iniuria.
Damages: General damages need not be particularised.
Prinsloo v Du Plooy 1952 (4) SA 219 (O)
Patrimonial damages may be claimed (even in the absence of contumelia) but must be particularised.
Brown v Hoffman [1977] 2 All SA 517 (NC), 1977 (2) SA 556 (NC)
Uniform rule 18(10)
Breach of a constitutional duty does not give rise to a claim for additional damages.
Provocation may mitigate damages but cannot justify assault.
Winterbach v Masters [1989] 1 All SA 286 (E), 1989 (1) SA 922 (E)
PRECEDENTS
Claim for damages
1. On [date] at [place], the first defendant unlawfully assaulted the plaintiff by [e.g. hitting him with a stick].
2. At all material times, the first defendant was acting within the course and scope of his employment with the second
defendant.
3. [The assault took place in public and within sight of members of the public.]
4. Because of the assault, the plaintiff:
(a) had to undergo medical treatment [detail];
(b) was unable to work for [period] and consequently suffered a loss of income;
(c) suffered contumelia.
5. Because of the foregoing, the plaintiff suffered damages in the amount of [amount] made up as follows:
[detail].
Plea of justification
Defendant admits that he hit the plaintiff as alleged but pleads that he was justified in so doing since the plaintiff had attacked
him with a stick and the defendant's actions were necessary for his own protection.
Claim
[From Minister of Law and Order v Monti 1995 (1) SA 35 (A) p. 36.]
1. On or about 10 November 1984 and at or near Wood Street, Grahamstown, the plaintiff was wrongfully and unlawfully
assaulted by a member or members of the South African Police Services whose identity or identities are to the plaintiff
unknown, in that:
(i) he/they took hold of the plaintiff's clothing and forced him into a partially burntdown beer hall;
(ii) he/they shot the plaintiff from behind and in the back;
[Page 60]
(iii) he/they thereafter slapped the plaintiff with a flat hand in the face;
(iv) he/they thereafter poured the contents of a bottle of wine onto the plaintiff's head.
1. The defendant admits only:
(i) that at approximately 11h00 on 10 November 1984, and near a beer hall at Wood Street, Grahamstown, a
policeman shot the plaintiff with birdshot;
(ii) that after being shot he was lawfully arrested and detained;
(iii) that at all relevant times the members of the South African Police Services who shot, arrested and detained the
plaintiff were servants of the defendant acting within the course and scope of their employment;
(iv) that the events set out above took place within the area of jurisdiction of this honourable Court.
2. The defendant, however, denies that the said policeman, in shooting the plaintiff as aforesaid, acted wrongfully and
unlawfully and pleads that he acted lawfully and reasonably in that:
(i) the plaintiff was a member of a group of approximately 20 persons who had committed the offence of breaking
and entering certain premises with the intention to steal and of theft and public violence;
(ii) the said policeman, in shooting the plaintiff, did so:
(aa) to maintain law and order;
(bb) to protect life and property;
(cc) to identify and arrest the culprits who had committed the offences set out above.
(iii) The defendant denies further that the arrest of the plaintiff was wrongful and unlawful and pleads that it was
necessary due to the plaintiff having taken part in the offences as set out above.
(iv) Subject to the foregoing, the defendant denies that the plaintiff was assaulted whether as alleged or at all and puts
the plaintiff to the proof thereof.
(v) The plaintiff's allegations, in so far as they are inconsistent with the foregoing, are denied.
Claim based on omission
[From Moses v Min for Safety & Security [2000] 1 All SA 89 (C), 2000 (3) SA 106 (C).]
1. At the cells of the police services Atlantis, on or about 21 April 1996, the deceased because of the negligence of
unknown servants of the defendant, whilst acting in the course and scope of their employment as policemen was
unlawfully and intentionally assaulted and sodomised by codetainees whilst in lawful custody and, as a result of his
injuries, died on 29 August 1997.
2. The defendant's servants were negligent in one or more of the following respects:
(a) they failed to protect the deceased from being assaulted and sodomised whilst he was being held in custody;
(b) they placed the deceased in a cell with 'gangsters' whom they knew or ought to have foreseen would assault him;
(c) they failed to exercise reasonable care to prevent the deceased from being assaulted and sodomised when there
was a legal duty on them to do so; and
(d) they failed to take reasonable or adequate steps to prevent the assault when by exercising reasonable care they
could have done so.
Attachment and execution
See MALICIOUS AND WRONGFUL LEGAL PROCEEDINGS
[Page 61]
Attorneys
See LEGAL PRACTITIONERS
Auctions
Related subjects: AGENCY; AGENCY: ESTATE AGENTS; ALIENATION OF LAND
General: An auction sale is regulated by the conditions of the auction. A party who bids is deemed to agree to
those conditions.
Dreyer NO v AXZS Industries (Pty) Ltd [2006] 3 All SA 219 (SCA), 2006 (5) SA 548 (SCA)
Hansa Silver (Pty) Ltd and others v Obifon (Pty) Ltd t/a The High Street Auction Company 2015 (4) SA 17 (SCA)
The auctioneer may act as either principal or agent. When acting as a principal, the auctioneer may enforce the
contract in the auctioneer's name. It would be for the seller to enforce the contract when the auctioneer acts as an
agent.
SWA Amalgameerde Afslaers (Edms) Bpk v Louw [1956] 1 All SA 293 (A), 1956 (1) SA 346 (A)
Certain of the terms and conditions of an auction may relate to the auctioneer, others may apply to the principal
only.
Faure v Joubert NO 1979 (4) SA 939 (A)
The liability of an auctioneer depends on whether the auctioneer acted as principal or as agent. Unless there are
special circumstances, an auctioneer cannot be held liable as an 'undisclosed principal', because the bidder is aware
that the auctioneer is selling as an agent.
Consumer Protection Act 68 of 2008: The Act contains special provisions in section 45 relating to auctions covered
by it but does not say anything new.
Alienation of land: In general, an alienation of land must be contained in a deed of alienation which must be signed
by the parties or by their agents acting on their written authority. The only exception is a sale of land by public
auction.
Alienation of Land Act 68 of 1981ss 2 and 3
Noormohamed v Visser NNO 2006 (1) SA 290 (SCA)
Depending on the circumstances, an auctioneer selling immovable property may be acting as an estate agent.
Papenfus v Torre NO 2012 (5) SA 612 (GNP)
PRECEDENTS
Claim for payment of commission
1. On [date] at [place], the parties orally agreed that the plaintiff would act as the defendant's auctioneer to sell a certain
house situate at [detail].
2. It was an express term of the agreement that, in the event of the house's being sold, the defendant would pay to the
plaintiff the usual commission payable to auctioneers for such services, being [percentage] of the purchase price, as well
as all expenses necessarily incurred by the plaintiff in accomplishing the sale.
3. On [date], the plaintiff sold the house by public auction for the sum of [amount] and, in effecting the sale, incurred
necessary expenses amounting to [Rx] calculated as follows:
[detail].
4. In the premises, the defendant is liable to pay to the plaintiff the sum of [amount].
[Page 62]
Claim against auctioneer for breach of contract
1. On [date] at [place], the plaintiff orally instructed the defendant to sell the plaintiff's [motor car] on a public auction for
not less than [amount] in cash.
2. Defendant accepted this mandate.
3. Acting on such instructions, the defendant sold the [motor car] for the sum of [amount] but, in breach of his mandate to
accept cash only, accepted from the purchaser a cheque for that amount, which cheque was drawn in favour of the
plaintiff.
4. The cheque was, thereafter, dishonoured by nonpayment.
5. Plaintiff has been unable to obtain payment of any portion of the amount from the purchaser.
6. Because of the defendant's breach, the plaintiff sustained damage in the amount of [Rx] calculated as follows:
[detail].
Banks
Related subject: CHEQUES
Leading cases:
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd [1992] 1 All SA 421 (A), 1992 (1) SA 783 (A)
Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation) [ 1 9 9 8 ] 1 A l l S A 4 1 3 ( A ) ,
1998 (1) SA 811 (SCA)
Bredenkamp and others v Standard Bank of SA Ltd 2010 (9) BCLR 892 (SCA), [2010] 4 All SA 113 (SCA),
2010 (4) SA 468 (SCA)
ABSA Bank Ltd v Intensive Air (Pty) Ltd (in liquidation) [2011] 3 All SA 2 (SCA), 2011 (2) SA 275 (SCA)
General: The relationship between a client and a bank is either one of mandate or one of debtor and creditor. It is
not a fiduciary relationship, although some of the duties of a bank may be of a fiduciary nature.
ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA)
Louw NO v Coetzee [2003] 1 All SA 34 (SCA), 2003 (3) SA 329 (SCA)
First National Bank of SA Ltd v Duvenhage [2006] 4 All SA 541 (SCA), 2006 (5) SA 319 (SCA)
When a client issues a cheque, the bank must pay according to its tenor (provided the client has sufficient funds in
the relevant account) and is entitled to debit the client's account.
Big Dutchman (SA) (Pty) Ltd v Barclays National Bank Ltd [1979] 1 All SA 89 (W), 1979 (3) SA 267 (W) p. 280
Volkskas Bpk v Johnson [1979] 4 All SA 872 (C), 1979 (4) SA 775 (C)
Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C)
Should the bank fail to pay, it may be liable for damages resulting from the breach of contract. The claim is not
delictual.
Volkskas Bpk v Van Aswegen [1961] 1 All SA 581 (A), 1961 (1) SA 493 (A)
Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C)
The extent of damages depends on what was contemplated by the parties when the contract was concluded.
[Page 63]
Clients have limited obligations towards their banks to assist the latter in performing their mandate.
Holzman v Standard Bank Ltd [1985] 3 All SA 22 (W), 1985 (1) SA 360 (W)
On a bank's right to terminate its contract with a client, see
2010 (4) SA 468 (SCA)
Annex Distribution (Pty) Ltd and others v Bank of Baroda 2018 (1) SA 562 (GP) para. 22
Overdraft: A claim by a bank on an overdraft is a claim for money lent and advanced that is repayable on demand.
See INTEREST; LOAN FOR CONSUMPTION
The bank must normally rely on terms tacitly implied by banking practice, such as that interest at a certain rate
(usually determined with reference to the prime rate of interest) and banking fees are payable and may be debited
against the overdraft account, and that compound interest is payable.
Absa Bank Limited v IW Blumberg & Wilkinson [1997] 2 All SA 307 (A), 1997 (3) SA 669 (SCA)
A court is entitled to take judicial notice of the fact that retail banks charge interest on overdrawn accounts.
Absa Bank Bpk h/a Volkskas Bank v Retief [1999] 1 All SA 68 (NC), 1999 (3) SA 322 (NC)
Certificate of indebtedness: Banks often use certificates issued by managers or accountants to prove the extent of
the debtor's liability. The effect of a certificate on the burden of proof or the liquidity of the claim depends on the
terms of the agreement with the client permitting the use of a certificate.
Senekal v Trust Bank of Africa Ltd [1978] 4 All SA 43 (A), 1978 (3) SA 375 (A)
Durr v Absa Bank Ltd [1997] 3 All SA 1 (A), 1997 (3) SA 448 (SCA)
As to proof in summary judgment proceedings, see
Rees and another v Investec Bank Limited 2014 (4) SA 220 (SCA)
Effect of crediting an account: Funds deposited in a bank account become the property of the bank.
Trustees, Estate Whitehead v Dumas and another 2013 (3) SA 331 (SCA)
The act of crediting a customer in a bank's books does not in itself create a liability, because the credit may have
been wrongly entered and be subject to reversal.
A party is entitled to recover stolen money directly from a bank which received that money to the credit of the thief's
account, if the amount stands to the credit of the thief.
ABSA Bank Ltd v Lombard Insurance Company Limited; FirstRand Bank Limited v Lombard Insurance Company
Limited [2012] 4 All SA 485 (SCA), 2012 (6) SA 569 (SCA)
However, once an amount is validly transferred by A to the credit of B's bank account, the credit belongs to B and
the bank cannot on the instructions of A retransfer it without the consent of B.
Burg Trailers SA (Pty) Ltd v ABSA Bank Ltd [2003] ZASCA 55, 2004 (1) SA 284 (SCA)
Take and Save Trading CC v Standard Bank of SA Ltd [2004] 1 All SA 597 (SCA), 2004 (4) SA 1 (SCA)
2005 (1) SA 441 (SCA)
Nedbank Ltd v Pestana [2009] 2 All SA 58 (SCA), 2009 (2) SA 189 (SCA)
Reclaiming payment: A bank that wrongly pays a third party may reclaim the payment with the condictio sine causa;
the condictio indebiti is inappropriate. It is said to be essential [Page 64] to establish that the third party was
enriched, but enrichment usually follows from the payment. An enrichment claim may also lie against the drawer,
provided the drawer was enriched.
B & H Engineering v First National Bank of SA Ltd [1995] 1 All SA 545 (A), 1995 (2) SA 279 (A)
Cf. Absa Bank Limited v Standard Bank of SA Limited [1997] 4 All SA 673 (A), 1998 (1) SA 242 (SCA)
A bank may permit its client to draw against uncleared effects. Should such a cheque be dishonoured, the bank may
reverse the credit or reclaim from the client by means of the condictio indebiti.
Leeuw v First National Bank [2010] 2 All SA 329 (SCA), 2010 (3) SA 410 (SCA)
Appropriation of payments: In the absence of an agreement to the contrary, a bank may appropriate payments
received according to the general appropriation rules.
1998 (1) SA 811 (SCA)
See PAYMENT
A bank may also appropriate a credit balance in a client's account to set off another indebtedness of the client to
the bank.
Standard Bank of South Africa Ltd v Echo Petroleum CC 2012 (5) SA 283 (SCA)
Delictual liability: A bank may be liable for fraudulent or negligent misrepresentations or other negligent acts that
cause someone loss. The ordinary principles underlying these causes of action apply.
Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A)
Siman & Co (Pty) Ltd v Barclays National Bank Ltd [1984] 1 All SA 87 (A), 1984 (2) SA 888 (A)
ABSA Bank Limited v Hanley [2014] 1 All SA 249 (SCA), 2014 (2) SA 448 (SCA)
DA Ungaro & Sons (Pty) Ltd v ABSA Bank Ltd [2015] 4 All SA 783 (GJ)
Spar Group Ltd v Firstrand Bank Ltd and another [2016] 4 All SA 646 (GP), 2017 (1) SA 449 (GP)
See CHOICE OF ACTION; FRAUD; MISREPRESENTATION: NEGLIGENT MISREPRESENTATION
A prime example of a legal duty is the duty of a collecting banker to the owner of a lost or stolen cheque to avoid
causing that owner pure economic loss by dealing negligently with the cheque when the collecting banker receives
payment of a cheque from the paying banker on behalf of someone who is not entitled to the payment. A typical
case is when a cheque has been marked 'not transferable' but is nevertheless credited by the collecting bank to the
account of someone other than the payee.
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd [1992] 1 All SA 421 (A), 1992 (1) SA 783 (A) p. 801
Standard Bank of SA Ltd v Harris [2002] 4 All SA 164 (A), 2003 (2) SA 23 (SCA)
See CHEQUES
The same bank can be both the collecting and paying bank.
Eskom v First National Bank of Southern Africa Ltd [1995] 2 All SA 65 (A), 1995 (2) SA 386 (A)
McCarthy Ltd v ABSA Bank Ltd [2010] 1 All SA 435 (SCA), 2010 (2) SA 321 (SCA)
The duty is owed to the 'true' owner of the cheque and not to another party, such as the drawer or payee (who
may not be the owner). The owner of a cheque need not be [Page 65] its holder. For someone to become an
owner, delivery with the intention of transferring ownership must be established.
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd [1995] 2 All SA 616 (A), 1995 (3) SA 556 (A) pp.
568570
The onus rests on the plaintiff to allege and prove the elements of its claim.
APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) p. 1164BE
This includes proof of damages, which usually amount to the face value of the cheque but not necessarily so.
ABSA Bank Bpk v ONS Beleggings BK [2000] 3 All SA 199 (A), 2000 (4) SA 27 (SCA)
In assessing negligence, it must be borne in mind that banks render professional services.
Powell v ABSA Bank Ltd t/a Volkskas Bank [1997] 4 All SA 231 (SE) p. 241, 1998 (2) SA 807 (SE) p. 818
Columbus Joint Venture v ABSA Bank Ltd [2002] 1 All SA 105 (SCA), 2002 (1) SA 90 (SCA)
PRECEDENTS
Claim based on overdraft
1. Plaintiff and the defendant entered into an oral agreement on [date] at [place] in terms of which the plaintiff undertook to
lend and advance moneys to the defendant on a bank overdraft account.
2. Plaintiff was represented by [name] and the defendant acted personally.
3. The agreement had the following express [tacit] terms:
(a) the plaintiff would honour the defendant's cheques and other instructions up to [amount];
(b) the plaintiff would be entitled to charge the defendant with interest, compounded monthly on the daily balance
owing by the defendant from time to time, at the current bank overdraft interest rates prevailing from time to
time, which, for the relevant period of the class of overdraft, was [percentage] per annum [or, at the agreed rate
of interest calculated at 2% above the plaintiff's prime rate of interest prevailing from time to time];
(c) the plaintiff would be entitled to debit the defendant's overdraft account with advances, bank charges, interest and
other charges in accordance with ordinary banking practice;
(d) the balance on the overdraft account would be payable on demand.
4. The balance on the bank overdraft was, on [date], the sum of [amount].
5. Despite demand, the defendant has failed to pay the said balance.
Claim or damages against banker
1. Plaintiff is a general dealer [specify].
2. In terms of an oral agreement entered into between the plaintiff and the defendant on [date] at [place], the plaintiff has
at all material times kept a current banking account at the [specify] branch of the defendant's bank for purposes of his
business.
3. It was a [tacit] term of the contract that the defendant would honour cheques properly drawn on the account provided
there were sufficient funds available in that account to meet the cheques presented for payment.
4. On [date], the plaintiff drew a cheque for [amount] on the defendant in favour of [name]. The cheque was duly
presented for payment but was dishonoured by nonpayment and returned, marked 'Refer to Drawer'.
5. At all material times, there were sufficient funds to the credit of the plaintiff's banking account to meet the cheque.
6. Defendant knew that the plaintiff is a trader who receives credit from and who is dependent upon wholesale dealers. The
[name] is a wholesale supplier of goods to the plaintiff.
[Page 66]
7. In the premises, the defendant breached its contract with the plaintiff by dishonouring the cheque in the circumstances
set out above.
8. By reason of the defendant's breach of contract, the plaintiff suffered damages in the sum of [amount] for which the
defendant is liable.
Claim based on failure to pay cheque according to its tenor
1. Defendant is a bank.
2. In terms of an oral agreement entered into between the plaintiff and the defendant [particularise], the plaintiff was a
customer of the defendant and kept a current banking account at the B branch of the defendant for purposes of its
business.
3. It was a tacit term of the contract that the defendant would honour cheques properly drawn on it according to their tenor.
4. On [date], the plaintiff drew a cheque on defendant for [Rx] payable to C.
5. The cheque was crossed and marked 'not negotiable/not transferable/account payee only'.
6. Defendant paid the cheque contrary to its tenor to D and debited the plaintiff's account with [Rx].
(a) payment of [Rx]; or
(b) an order declaring that the defendant was not entitled to debit the plaintiff's account with [Rx] and further ordering the
defendant to credit the plaintiff's account with [Rx].
[Cf. Hollandia Reinsurance Co Ltd v Nedcor Bank Ltd [1993] 4 All SA 545 (A), 1993 (3) SA 574 (W).]
Claim against collecting banker
1. Plaintiff is the true owner of a cheque [dated] for [amount] drawn by A on the defendant bank.
2. Plaintiff was the payee of the cheque, which was crossed and marked 'not negotiable'.
3. The cheque was not endorsed by or on behalf of the plaintiff.
4. Defendant received the cheque from one B, a customer of the defendant, for collection on behalf of B.
5. Defendant paid the proceeds of the cheque to B despite the fact that B had no right to receive such payment.
6. Defendant knew or ought to have known that B was not entitled to the proceeds of the cheque because the plaintiff did
not endorse it.
7. In the circumstances, as collecting bank, the defendant owed a duty of care towards the plaintiff as true owner of the
cheque, which duty the defendant breached.
8. As a result, the defendant caused a loss to plaintiff in the amount of the cheque.
Claim against collecting banker
[From Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank [1996] 4 All SA 278 (W),
1997 (2) SA 591 (W) pp. 602603. Similar precedents can be found in Powell v ABSA Bank Ltd t/a Volkskas Bank [1997]
4 All SA 231 (SE), 1998 (2) SA 807 (SE); African Life Assurance Co Ltd v NBS Bank Ltd [2000] 1 All SA 545 (W),
2001 (1) SA 432 (W) pp. 441442; and Energy Measurements (Pty) Ltd v First National Bank of SA Ltd [2002] 2 All SA
396 (W), 2001 (3) SA 132 (W) p. 136. There is a stated case in Nedcor Bank Ltd t/a Nedbank v LloydGray Lithographers
(Pty) Ltd [2000] 4 All SA 393 (A), 2000 (4) SA 915 (SCA).]
1. The plaintiff is S.
2. The defendant is A Bank Ltd, a registered commercial bank with its principal place of business at [address].
3. Claim A
3.1 At all times material hereto, the plaintiff was the payee and in possession of a cheque dated 7 January 1991 drawn
by R on the T Bank ('the drawer's bank') on 7 January 1991 for the sum of [Rx].
[Page 67]
3.2 The cheque was marked 'not transferable'.
3.3 The plaintiff is unable to annex a copy of the cheque as it is no longer in possession of such cheque.
3.4 The cheque was stolen by an employee of the plaintiff, one G.
4. 4.1 Subsequent to the theft as aforementioned, the V branch of the defendant accepted the cheque for collection on
behalf of G, who conducted current accounts at the branch, notwithstanding that the cheque did not bear the
endorsement of the plaintiff.
4.2 Thereafter, the branch of the defendant caused the cheque to be presented for payment at the drawer's bank and
was paid the proceeds thereof with which it credited the account of G, notwithstanding that the persons as
aforementioned had no right to receive or be credited with such proceeds.
4.3 In effecting payment to the defendant, the drawer's bank acted in good faith and without negligence.
4.4 The drawer's bank credited the account of the defendant with the amount of the cheque, which, in the premises, it
was entitled to do.
4.5 Thereafter, the branch of the defendant permitted the money to the full amount of the cheque to be withdrawn by
G, by reason of the credit of the face value of the cheque consequent upon the deposit thereof.
5. 5.1 At all times material hereto, the defendant as the collecting banker was aware, alternatively should have been
aware, that G was not entitled to payment of the proceeds of the cheque and that it did not deal with the cheque in
a manner not likely to cause the plaintiff loss or damage.
5.2 In the premises, the defendant as collecting banker owed a duty of care to the plaintiff as the payee and the true
owner of the cheque to avoid causing loss to the plaintiff through dealing negligently with the cheque.
5.3 In acting as aforesaid, the defendant, in breach of the duty, caused the plaintiff to sustain loss in the amount of
[Rx].
6. In the premises, the defendant is liable to the plaintiff in the sum of [Rx].
Alternative claim
1. The plaintiff is S.
2. The defendant is A Bank Ltd, trading under the name and style of V Bank, a registered commercial bank with its principal
place of business at [address].
3. 3.1 At all times material hereto, the plaintiff was the payee of a cheque dated 7 January 1991 drawn by R on the T
Bank ('the drawer bank') on 7 January 1991 for the sum of [Rx] which was issued to the plaintiff; alternatively, the
plaintiff was at all material times the true owner of the cheque.
3.2 The cheque was marked 'not transferable'.
3.3 The plaintiff is unable to annex a copy of the cheque as it is no longer in possession of such cheque.
3.4 The cheque was stolen by an employee of the plaintiff, one G.
4. 4.1 At all times material hereto, Mrs G, the wife of G, was a controller employed by the defendant.
4.2 Acting in the course or scope of her employment with the defendant, Mrs G:
4.2.1 received the cheque at the V branch of the defendant trading as aforesaid with the intention of cashing it
for herself and/or her husband in circumstances where she knew that she was not entitled to the cheque
or the proceeds thereof;
4.2.2 caused the cheque to be transmitted to the defendant's central administrative processing centre for
onward transmission to and collection by the defendant through the automated clearing bureau from the
drawer's bankers.
4.3 As a result of the wrongful and unlawful conduct of Mrs G, for which defendant is responsible, plaintiff has suffered
damages in the sum of [Rx], for which damages the defendant is liable.
5. 5.1 At all material times, R was truly and lawfully indebted to the plaintiff for projects in respect of which R was obliged
to pay, the extent of such indebtedness being represented [Page 68] and effected on each occasion by the amount
reflected on the face of each cheque forming the subject matter of each cheque.
5.2 In discharge of such obligation, R drew each of the cheques referred to as aforesaid and made payable to the
plaintiff.
5.3 The cheques were duly presented for payment and met.
5.4 In consequence thereof, R has been discharged from its obligation to the plaintiff and the drawee bank upon whom
each such cheque was drawn has paid in circumstances where it is not liable to the plaintiff.
6. In the premises, the defendant is liable to the plaintiff in the sum of [Rx].
Claim based on implied term to reverse credit
The agreement contains the additional following implied or tacit terms:
(a) in the event of a cheque being deposited into the defendant's account not being honoured within a reasonable time, the
plaintiff would be entitled to debit the defendant's account retrospectively to the date of the credit with the amount so
credited;
(b) in the event of withdrawals' being made from the account against a credit, which credit is subsequently reversed as
aforesaid thereby causing the account to show a debit balance, the defendant is obliged to repay the amount of such
debit balance on demand to the plaintiff;
(c) the plaintiff will always act in good faith and exercise reasonable care but is not responsible for ensuring that depositors
or accountholders have lawful title to cheques collected.
Breach of contract
See CONTRACT: BREACH
Bribery
See AGENCY; FIDUCIARY RELATIONSHIPS
Carriers
Related subjects: ADMIRALTY CLAIMS; DEPOSIT
General: A carrier's liability for damage to or loss of the goods carried depends on the terms of the contract
between the carrier and the principal. In the absence of a term dealing with the matter, it is assumed that the
carrier has a duty to exercise reasonable care.
The provisions of the praetor's edict de nautis, cauponibus et stabularis apply to carriage on water only and not to
carriage by land or air.
Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A)
Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd [1995] 2 All SA 463 (A), 1995 (3) SA 42 (A)
The liability of an air carrier is determined by international conventions.
Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd [2001] 2 All SA 506 (W), 2001 (4) SA 211 (W)
KLM Royal Dutch Airlines v Hamman [2002] 3 All SA 484 (W), 2002 (3) SA 818 (W)
[Page 69]
Should the carrier in defence allege that the contract contains a term limiting its liability, the plaintiff would bear the
onus of disproving the defence.
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) p. 767
Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers [2001] 2 All SA 646 (NC), 2001 (3) SA 110 (NC)
If the edict does not apply, the carrier is in the position of a depository who is under a duty to exercise reasonable
care. The carrier then bears the onus of showing that any loss or damage occurred without its fault.
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) p. 762
The plaintiff must prove that the goods were damaged and the extent of its loss.
Alex Carriers (Pty) Ltd v Kempston Investments (Pty) Ltd 1998 (1) SA 662 (E) p. 674
Praetor's edict: If the edict applies, the carrier is liable even in the absence of fault, unless it can establish that the
loss or damage was the result of (a) damnum fatale; (b) vis maior; (c) the sole negligence of the consignor; or (d) an
inherent vice or latent defect in the goods.
Gabriel v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C) p. 600
Remuneration: A carrier claiming remuneration must allege and prove due performance of the contract. If the
defendant alleges that the goods were damaged or lost, the carrier must establish the contrary.
Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd [1984] 3 All SA 13 (SWA), 1984 (2) SA 24
(SWA)
Exemption clauses: If there is an exemption clause stipulating, for instance, that carriage takes place at the
owner's risk, the owner must, to be able to claim damages, allege and prove facts that place the owner's conduct
outside the terms of the limitation.
Essa v Divaris [1947] 2 All SA 111 (A), 1947 (1) SA 753 (A)
PRECEDENTS
Claim for payment
1. On [date] at [place], the parties entered into an oral agreement in terms of which plaintiff undertook to remove and
convey defendant's household effects from [address] to [address].
2. It was agreed that plaintiff would be paid [amount] for such removal and conveyance.
3. Plaintiff duly performed his obligations in terms of the agreement, but defendant has failed to pay to plaintiff the agreed
sum or any other sum.
Claim for damages against carrier
1. On [date] at [place], the parties entered into an oral agreement in terms of which defendant undertook to convey certain
cattle belonging to plaintiff from [place] to [place] for [amount].
2. It was an implied term of the agreement that the cattle would be delivered at their destination in a sound and healthy
condition.
3. Despite this, the cattle did not arrive in a sound and healthy condition, but [number] died en route and [number] were so
badly injured that they had to be put down. [Number] were so injured as to require veterinary treatment: [detail].
4. Because of defendant's breach of the term, plaintiff has suffered damages of [amount] calculated as follows:
[detail].
[Page 70]
Plea to claim for damages against carrier
1. Defendant admits that the contract was entered into as alleged.
2. Defendant further admits that the cattle died or were injured as alleged.
3. Defendant pleads that the death and injuries sustained by the cattle were caused by the weakened and diseased
condition in which the cattle were delivered to defendant for carriage and that, therefore, defendant is not liable for any
loss sustained by plaintiff. Alternatively, defendant pleads that the damage to plaintiff's property was caused by vis
maior, based on the following facts:
(a) on [date] and while defendant's vehicle was en route, major flooding took place on the road between [place] and
[place];
(b) because of this flooding, defendant's vehicle became bogged down and was unable to proceed on its journey;
(c) the driver of the vehicle was unable to leave the vehicle to obtain assistance;
(d) defendant was obliged to keep the cattle on the lorry for [days] during which time it was impossible to obtain food
or water for the cattle.
Cession
Leading cases:
Van Zyl v Credit Corp of SA Ltd [1960] 4 All SA 314 (A), 1960 (4) SA 582 (A)
Lief NO v Dettmann [1964] 2 All SA 448 (A), 1964 (2) SA 252 (A)
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöperasie Bpk [1972] 2 All SA 1 (A), 1972 (1) SA 761
(A)
Grobler v Oosthuizen [2009] 3 All SA 508 (SCA), 2009 (5) SA 500 (SCA)
Sechold Financial Services (Edms) Bpk v Gazankulu Ontwikkelingskorporasie Bpk [1997] 2 All SA 489 ( A ) ,
1997 (3) SA 391 (SCA)
Citation: When a plaintiff sues as cessionary in a magistrates' court, the summons must state the name, address
and description of the cedent at the date of the cession as well as the date of the cession.
There is not a similar rule in the High Court rules, but the summons should be used in a similar fashion as it is
sensible.
Contract of cession: It is necessary to distinguish between the agreement to cede and the cession itself (the real
agreement whereby rights are bilaterally transferred). Although the undertaking to cede and the actual cession will
often coincide and be consolidated in a single document, they remain discrete juristic acts. They are distinct in
function and can be so in time: by the former a duty to cede is created, by the latter it is discharged.
Brayton Carlswald (Pty) Ltd and another v Brews 2017 (5) SA 498 (SCA) paras 1315
Persons cannot cede something that does not belong to them and to which they have no right. This is in accordance
with the commonlaw adage that nobody can transfer more rights to another than he has (nemo plus iuris ad alium
transferre potest quam ipse haberet).
Brayton Carlswald (Pty) Ltd and another v Brews 2017 (5) SA 498 (SCA) para. 12
A party relying on a cession must allege and prove the contract of cession that is, a contract in terms of which a
personal (and not a real) right against a debtor is transferred from the creditor (cedent) to a new creditor
(cessionary).
Lief NO v Dettmann [1964] 2 All SA 448 (A), 1964 (2) SA 252 (A)
Johnson v Inc General Insurances Ltd [1983] 3 All SA 255 (A), 1983 (1) SA 318 (A)
[Page 71]
The purpose of a cession agreement is to divest the cedent of the cedent's rights against the debtor and to subject
the debtor to another creditor.
Skjelbreds Rederi AS v Hartless (Pty) Ltd [1982] 1 All SA 15 (A), 1982 (2) SA 710 (A)
Densam (Pty) Ltd v Cywilnat (Pty) Ltd [1991] 1 All SA 275 (A), 1991 (1) SA 100 (A)
Production in evidence of an apparently regular and valid cession provides prima facie proof, and the evidentiary
burden then shifts to the party disputing the cession.
Hippo Quarries (Tvl) (Pty) Ltd v Eardley [1992] 1 All SA 398 (A), 1992 (1) SA 867 (A) p. 873
Limitations on cession: A claim arising from an infringement of personality rights is not capable of cession before
the close of pleadings (litis contestatio).
Government of RSA v Ngubane [1972] 2 All SA 489 (A), 1972 (2) SA 601 (A)
Contractual rights cannot be ceded
(a) if the rights, by their nature, are personal to the creditor in other words, if the creditor is a delectus personae,
or
(b) if the contract itself prohibits cession and the debtor has an interest in the prohibition (pactum de non
cedendo).
Trust Bank of Africa Ltd v Standard Bank of SA Ltd [1968] 3 All SA 265 (A), 1968 (3) SA 166 (A)
Dettmann v Goldfain [1975] 3 All SA 430 (A), 1975 (3) SA 385 (A)
Smuts v Booyens; Markplaas (Edms) Bpk v Booyens [2001] 3 All SA 536 (A), 2001 (4) SA 15 (SCA)
Capespan (Pty) Ltd v Any Name 451 (Pty) Ltd 2008 (4) SA 513 (C)
Such a pactum remains effective despite supervening liquidation or sequestration.
Born Free Investments 364 (Pty) Ltd v Firstrand Bank Ltd [2014] 2 All SA 127 (SCA)
Cession of the principal debt does not substitute the cessionary for the cedent by burdening the surety with liability
for a future debt owed by the principal debtor to the cessionary.
SA Breweries Ltd v Van Zyl 2006 (1) SA 197 (SCA)
Delivery: If the existence of the ceded right depends on that right's incorporation in a document (as in the case of
negotiable instruments), the cession is incomplete without delivery of the document that evidences the right to be
ceded. In other cases, delivery of the underlying document provides proof of cession, but lack of delivery does not
affect the validity of the cession.
Botha v Fick [1995] 2 All SA 78 (A), 1995 (2) SA 750 (A)
Cf. Standard General Insurance Co Ltd v SA Brake CC [1995] ZASCA 46, 1995 (3) SA 806 (A)
Effect on locus standi : Cession of the interest in a claim destroys the cedent's locus standi, but cession of an

interest in the result of the litigation does not.
Portion 1 of 46 Wadeville (Pty) Ltd v Unity Cutlery (Pty) Ltd [1984] 1 All SA 260 (A), 1984 (1) SA 61 (A)
African Consolidated Agencies (Pty) Ltd v Siemens Nixdorf Information Systems (Pty) Ltd [1992] 3 All SA 611 (C),
1992 (2) SA 739 (C)
A cessionary in an outandout cession cannot sue in the name of the cedent.
Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C), 1998 (4) SA 606 (C)
A cession after litis contestatio does not affect locus standi. The cessionary may take the place of the cedent by
means of a formal substitution under the rules of court. However, the cedent may continue with the claim in its own
name.
Waikiwi Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd [1978] 2 All SA 241 (A), 1978 (1) SA 671 (A)
Brummer v Gorfil Brothers Investments (Pty) Ltd [1999] 2 All SA 127 (SCA), 1999 (3) SA 389 (SCA)
[Page 72]
Fisher v Natal Rubber Compounders (Pty) Ltd 2016 (5) SA 477 (SCA) paras 912
Sentrachem Limited v Terreblanche [2017] ZASCA 16
Cession in security of a debt: A cession in security of a debt amounts to a pledge of an incorporeal. Unless
otherwise agreed, such a cession deprives the cedent of the right to recover the ceded debt. While the cession is
current and the cedent indebted to the cessionary, the cedent has no enforceable right against the debtor.
The terms of the cession may be such that the cedent retains legal standing to sue the debtor. This is usually the
position when debts have been ceded to a bank to secure an overdraft: unless the overdraft has been called up,
the debtor remains entitled to claim from its debtors in its own name.
The cession leaves the cedent with a reversionary right. Should the cedent pay the cessionary in full, the ceded
debt (or what is left of it) would revert to the cedent.
Leyds NO v NoordWestelike Koöperatiewe Landboumaatskappy Bpk [1985] 2 All SA 97 (A), 1985 (2) SA 769 (A)
PG Bison Ltd v Master of the High Court [2000] 1 All SA 363 (A), 2000 (1) SA 859 (A)
Aussenkehr Farms (Pty) Ltd v Trio Transport CC [2002] 3 All SA 309 (A), 2002 (4) SA 483 (SCA)
Picardi Hotels Ltd v Thekweni Properties (Pty) Ltd [2009] 1 All SA 471 (SCA), 2009 (1) SA 493 (SCA)
Grobler v Oosthuizen [2009] 3 All SA 508 (SCA), 2009 (5) SA 500 (SCA)
Sechold Financial Services (Edms) Bpk v Gazankulu Ontwikkelingskorporasie Bpk [1997] 2 All SA 489 ( A ) ,
1997 (3) SA 391 (SCA)
Defences: The following defences are available to a debtor sued by a cessionary:
(a) The debt was ceded in part without the debtor's consent.
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöperasie Bpk [1972] 2 All SA 1 (A), 1972 (1) SA 761
(A)
(b) The debt could not have been ceded for one of the reasons given above.
(c) The debtor has performed in terms of its obligation to the cedent prior to or without knowledge of the
cession. The debtor bears the onus.
Momentum Group Ltd v Van Staden NO and another [2009] 4 All SA 218 (SCA), 2010 (2) SA 135 (SCA)
Northern Estate and Trust Administrators (Pty) Ltd v Agricultural and Rural Development Corporation [2014] 1 All
SA 655 (SCA)
(d) Any defence (except defences of a personal nature) the debtor would have had against the cedent.
(e) The cession was entered into with the object of depriving the debtor of the opportunity to assert a
counterclaim against the cedent. In such a case it must be shown that the cessionary was a party to this
fraud. This defence amounts to a dilatory plea in which a stay of the action is claimed, pending the finalisation
of an action against the cedent claiming setoff.
LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd [1974] 2 All SA 6 (A), 1974 (1) SA 747 (A)
Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C), 1998 (4) SA 606 (C)
Counterclaims: As stated, a cession does not make the cessionary a party to the contract between the debtor and
the cedent. Therefore, the debtor is not entitled to counterclaim against the cessionary to enforce rights the debtor
has against the cedent.
Van Zyl v Credit Corp of SA Ltd [1960] 4 All SA 314 (A), 1960 (4) SA 582 (A)
Beukes v Claassen [1986] 2 All SA 90 (O), 1986 (4) SA 495 (O)
[Page 73]
PRECEDENTS
Claim on ceded debt
1. [Set out in full the indebtedness to the cedent].
2. On [date], the cedent in writing ceded the cedent's right to the cedent's claim against the defendant to the plaintiff. A
copy of the deed of cession is annexed hereto.
3. Despite demand, the defendant failed to pay the plaintiff the amount of [amount].
4. The plaintiff claims payment of [amount].
Plea for payment to cedent
1. Defendant admits that he owed the alleged cedent the sum of [amount] arising from the sale to him by the alleged
cedent of goods on [date].
2. Defendant has no knowledge of the alleged cession by the cedent to the plaintiff, does not admit it and puts plaintiff to
the proof thereof.
3. Defendant avers that he was at no time notified of the alleged cession and that he, without knowledge of the alleged
cession, on [date] duly paid the alleged cedent the sum of [amount] in discharge of the defendant's indebtedness to the
cedent.
Cheques
Related subject: BANKS
Procedure: A cheque is a liquid document and provisionalsentence procedure is available.
Uniform rule 8
Magistrates' court rule 14A
Cheque: Payment by cheque is usually considered conditional payment it is conditional upon the cheque's being
honoured unless the risk in the method of payment is for the creditor's account. Until then, payment is conditional
and the risk is borne by the debtor.
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton [1973] 4 All SA 116 (A), 1973 (3) SA 685 (A)
Barclays National Bank Ltd v Wall [1983] 1 All SA 231 (A), 1983 (1) SA 149 (A)
Burg Trailers SA (Pty) Ltd v ABSA Bank Ltd [2003] ZASCA 55, 2004 (1) SA 284 (SCA)
The mode of payment (e.g. the posting of a cheque) may follow from the agreement creating the debt. If it does
not, and the creditor requests a particular mode and the debtor accedes to the request, the creditor by implication
usually assumes the risks of any inadequacies in the method so stipulated (e.g. if the cheque is lost in the post or
stolen).
Mannesmann Demag (Pty) Ltd v Romatex 1988 (4) SA 383 (D) pp. 389F390D
Stabilpave (Pty) Ltd v South African Revenue Services 2014 (1) SA 350 (SCA) para. 9
Claim on a dishonoured cheque against the drawer: A plaintiff claiming on a dishonoured cheque must allege and
prove the following facts:
(a) that plaintiff is the legal holder of the cheque.
Trust Bank van Afrika Bpk v Bendor Properties Ltd [1977] 2 All SA 129 (T), 1977 (2) SA 632 (T)
This requires that the plaintiff be in lawful possession of the cheque in one of the following capacities:
Ganie v Parekh [1962] 4 All SA 504 (N), 1962 (4) SA 618 (N)
[Page 74]
(i) as payee. A plaintiff whose name differs from that indicated on the cheque may make an appropriate
allegation to link itself to that name by, for example, alleging and proving that the name on the cheque
is the plaintiff's trade name;
Navidas (Pty) Ltd v Essop; Metha v Essop [1994] 2 All SA 426 (A), 1994 (4) SA 141 (A) p. 154
(ii) as endorsee;
Nedbank Ltd v Aldick 1981 (3) SA 1007 (D)
Ewing, McDonald & Co (Pty) Ltd v Heyns 1973 (3) SA 747 (NC)
(iii) as its bearer;
Pienaar v Maritz t/a JJ Coal Suppliers [1985] 2 All SA 612 (T), 1985 (1) SA 547 (T)
(b) that the document is a cheque in other words, that it complies with the statutory requirements for a valid
cheque.
H & F Spares Centre (Pty) Ltd v Grand Prix Spares [1986] 2 All SA 575 (N), 1986 (4) SA 974 (N)
Whether it is a cheque should appear from the document itself;
(c) that the cheque was drawn by the defendant;
Marshall v Bull Quip (Pty) Ltd [1983] 1 All SA 96 (A), 1983 (1) SA 23 (A)
Jachris (Pty) Ltd v Fourie [1984] 2 All SA 359 (T), 1984 (4) SA 501 (T)
(d) that the cheque was duly presented for payment
Bills of Exchange Act 34 of 1964s 54
Abraham v Du Plessis [1962] 3 All SA 135 (T), 1962 (3) SA 162 (T)
Nampak Products Ltd t/a Nampak Flexible Packaging v Sweetcor (Pty) Ltd 1981 (4) SA 919 (T)
or that presentment was dispensed with;
Commercial Union Trade Finance v Republic Bottlers of SA (Pty) Ltd t/a Booth's Bottle Store 1992 (4) SA 728 (D)
(e) that the cheque was dishonoured;
Moraitis v De Canha [1984] 3 All SA 206 (W), 1984 (1) SA 420 (W)
(f) that notice of dishonour was given in terms of section 46 or was dispensed with for a reason set out in
section 48 (which is usually the position when the bank dishonours the cheques).
Braz v Afonso [1997] 4 All SA 428 (SCA), 1998 (1) SA 573 (SCA)
Clearinghouse system: The normal procedure, according to recognised banking practice, is to credit immediately
the amount of the deposit to the customer's account before the effects are cleared. The cheque is then sent to a
clearing house. If the cheque is met the credit stands; if the cheque is not met, the credit is reversed. It is possible
through the ACB and the MICR system to debit cheques on the day on which they are drawn without any
fundamental change in the chequecollection procedure.
The ACB acts as mandatory and not as a representative of the participating banks or their customers. Cheques
deposited in areas in which the ACB operates are sent in batches by the collecting bank to the ACB centres. There
the cheques are read electronically and the encoded information is transferred to magnetic tape. The cheques are
then sorted according to the collecting bank's specifications. Processing of a cheque usually takes place on the day
on which the cheque is deposited for collection. The banks settle with each other the next day but under the
previous day's date.
Each branch of a drawee bank must, when it receives cheques drawn on it, decide within the agreed time limit
whether to dishonour any of them. Until the expiry of the time limit, the relevant debit and credit entries made in
favour of the collecting bank and its [Page 75] customer and against the drawee bank and its customer are purely
provisional. The moment of payment occurs when the time limit lapses without notice of dishonour.
Navidas (Pty) Ltd v Essop; Metha v Essop [1994] 2 All SA 426 (A), 1994 (4) SA 141 (A)
Absa Bank Ltd v De Klerk [1998] 4 All SA 674 (W), 1999 (1) SA 861 (W)
TransAtlantic Equipment (Pty) Ltd v Minister of Transport of the Republic of South Africa [2002] 1 All SA 298 (T),
2002 (2) SA 167 (T)
Claim against an endorser: A claim against an endorser must allege the identity of the drawer of a cheque and
that the cheque was endorsed by the defendant.
Sappi Manufacturing (Pty) Ltd v Standard Bank of South Africa Ltd [1996] 4 All SA 487 (A), 1997 (1) SA 457 (A)
Absolute defences: The following defences may be raised against any holder, including a holder in due course:
(a) The defendant did not sign the document in the capacity in which the defendant is being sued.
(b) The document was forged. The onus is on the plaintiff to disprove the defence, because the defendant is
simply denying its signature.
Lansdown NO v Wajar [1973] 4 All SA 401 (T), 1973 (4) SA 329 (T)
Defences between immediate parties: The drawer of a cheque is entitled to raise against the payee of the cheque
any defence that could have been raised in respect of the underlying transaction. For instance, if the cheque was
given in payment pursuant to a contractual obligation but the contract was cancelled, the drawer may rely on these
facts but must allege and prove them.
Froman v Robertson [1971] 1 All SA 232 (A), 1971 (1) SA 115 (A)
A defendant may also rely on rectification of the cheque for instance, in relation to the capacity in which the
defendant signed the cheque, namely personally or in a representative capacity.
Dickinson v SA General Electric Co (Pty) Ltd [1973] 2 All SA 487 (A), 1973 (2) SA 620 (A)
Marshall v Bull Quip (Pty) Ltd [1983] 1 All SA 96 (A), 1983 (1) SA 23 (A)
See RECTIFICATION
The liability under a cheque prescribes after six years. This is not affected by the period of prescription of the
underlying debt.
Lutzkie NO v Zenith Concessions Ltd 2003 (6) SA 643 (SCA)
Revocation of mandate: The authority of a bank to pay a cheque drawn on it by its customer is terminated by
receipt of
(a) a countermand of payment;
(b) notice of the customer's death or incapacity;
(c) notice of the customer's sequestration, liquidation or placement under judicial management.
Standard Bank of SA Ltd v Peens [2006] 3 All SA 427 (SCA), 2005 (1) SA 315 (SCA)
Holder in due course: Only absolute defences are available against a holder in due course.
Bills of Exchange Act 34 of 1964s 36 read with s 37
Ramsukh v DieselElectric (Natal) (Pty) Ltd [1997] 3 All SA 209 (A), 1997 (4) SA 242 (SCA)
There is a presumption that a holder is holder in due course.
[Page 76]
When a defendant proves, or it is admitted, that the issuing or subsequent negotiation of a cheque was tainted
with fraud or illegality, the plaintiff bears the onus of proving that the plaintiff gave value in good faith for the
cheque after the fraud or illegality.
Bills of Exchange Act 34 of 1964s 28(2)
Van Rooyen v Du Plooy 1985 (1) SA 812 (T)
Statutory liability and defences: Sections 78, 79 and 81 of the Act create several liabilities and defences relating to
cheques.
Section 78(4): This provision principally makes the bank on which a cheque is drawn liable
(a) to the cheque's 'true owner';
(b) for any loss sustained by the owner:
(i) should the bank pay the cheque, if it is crossed generally, to someone than a bank; or
(ii) should the bank pay the cheque, if it is crossed especially, to someone other than the bank to which it
is crossed.
The plaintiff has to establish all these elements.
There are exceptions (which will not be dealt with in detail) contained in the proviso to the subsection that apply
when the cheque was altered and the bank acted in good faith and without negligence.
Section 79: If the bank
(a) on which a crossed cheque is drawn,
(b) in good faith and
(c) without negligence
(d) pays the cheque according to the tenor of the crossing,
(e) the bank has no further liability under the cheque to the true owner.
If the cheque came into the hands of the payee and the bank paid, the drawer also has no further liability to the
true owner of the cheque.
The onus of proving that payment was made in good faith and without negligence rests on the bank.
Eskom v First National Bank of Southern Africa Ltd [1995] 2 All SA 65 (A), 1995 (2) SA 386 (A) p. 394DE
Standard Bank of SA Ltd v Nair (Bissessur, third parties) 2001 (1) SA 998 (D)
TransAtlantic Equipment (Pty) Ltd v Minister of Transport of the Republic of South Africa [2002] 1 All SA 298 (T),
2002 (2) SA 167 (T)
A bank acting as both collecting and paying banker is entitled to the protection of section 79.
Eskom v First National Bank of Southern Africa Ltd [1995] 2 All SA 65 (A), 1995 (2) SA 386 (A) p. 397DE
Section 81(1): If a cheque
(a) was stolen or lost, and
(b) was crossed 'not negotiable', and
(c) was paid by the drawee bank under circumstances that do not render the bank liable to the true owner under
section 78 or 79,
(d) the true owner is, if the owner suffered any loss as a result of the theft or loss of the cheque,
(e) entitled to recover from any possessor of the cheque after the theft or loss
(f) the true owner's loss or the amount of the cheque, whichever is the lesser.
[Page 77]
The plaintiff bears the onus of alleging and proving these elements.
APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) pp. 1163J1164B
Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd [1999] 1 All SA 285 (A), 1999 (1) SA 831 (SCA)
Negligence is not an element of the claim, and the negligence of the plaintiff is not a defence.
Tedco Management Services (Pvt) Ltd v Grain Marketing Board 1997 (1) SA 196 (ZSC) p. 202
The defendant must have been in possession of the cheque. A bank holding a cheque for collection does not
'possess' it, whereas the customer on whose behalf the cheque is being held does.
Van Hulsteyns Attorneys v Government of the RSA [2002] 3 All SA 64 (A), 2002 (2) SA 295 (SCA)
Obtaining a cheque by false pretences is theft.
True owner: There is a difference between the owner of a cheque and the 'true owner' as the term is used in these
provisions.
ABSA Bank Bpk v Coetzee [1997] ZASCA 78, [1998] 1 All SA 1 (SCA)
Standard Bank of SA Ltd v Harris [2002] 4 All SA 164 (A), 2003 (2) SA 23 (SCA)
ABSA Bank v Mutual & Federal Ins Co Ltd 2003 (1) SA 635 (W)
The duty of care is owed to the true owner and not to some other party such as the drawer or payee (who may not
be the owner). The owner of a cheque need not be its holder. For the cheque's holder to become its owner, delivery
with the intention of transferring ownership must be established.
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd [1995] 2 All SA 616 (A), 1995 (3) SA 556 (A) pp.
568570
Absa Bank Ltd v Greyvenstein 2003 (4) SA 537 (SCA)
Section 81(3): There is a duty on a person who obtains possession of a stolen cheque to furnish its true owner
with relevant information concerning the cheque. A person who fails to do so is liable to the owner of the cheque
under section 81(1).
Optimprops 1030 CC v First National Bank of SA [2002] 4 All SA 582 (N)
PRECEDENTS
Claim based on dishonoured cheque
1. Plaintiff is the holder of a cheque dated [date] for the sum of [amount] drawn by the defendant in favour of 'cash' upon
the [specify] branch of the [specify] bank.
2. Plaintiff duly presented the cheque for payment on [date] and the cheque was dishonoured by nonpayment, the
defendant having countermanded payment thereof.
3. Notice of dishonour is dispensed with in terms of section 48(2)(c) of the Bills of Exchange Act 34 of 1964, since the
defendant has countermanded payment of the cheque.
4. Notwithstanding due demand, the defendant has failed to pay to the plaintiff the sum of [amount].
5. A copy of the face and reverse side of the cheque is annexed hereto and marked 'A'.
Claim based on section 81 of Act 34 of 1964
1. Plaintiff is the true owner of a cheque [number] drawn by A upon B Bank for the sum of [Rx].
2. The cheque was crossed as authorised by Act 34 of 1964 and bore the words 'not negotiable'.
[Page 78]
3. The cheque was stolen by C and possession passed thereafter to the defendant, who gave consideration for the cheque.
4. The cheque was thereafter paid by B Bank under circumstances that did not render B Bank liable, in terms of the Act, to
the plaintiff as true owner of the cheque.
5. Plaintiff suffered a loss equal to the value of the cheque by virtue of the theft of the cheque.
[Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd [1999] 1 All SA 285 (A), 1999 (1) SA 831 (SCA).]
Plea in terms of section 79 of Act 34 of 1964
Defendant denies its indebtedness to the plaintiff because:
1. the cheque was crossed generally;
2. defendant effected payment to a banker, viz. B Bank;
3. it had no reason to suspect that the cheque had been stolen;
4. it had no way of ascertaining that payment was not in fact effected to the identified payee;
5. it consequently effected payment in good faith and without negligence.
[Cf. Hollandia Reinsurance Co Ltd v Nedcor Bank Ltd [1993] 4 All SA 545 (A), 1993 (3) SA 574 (W).]
Choice of action
Principle: An action is maintainable in delict for a wrong (such as a negligent misstatement causing pure pecuniary
loss) even if a concurrent action is available in contract. The action is not maintainable if the negligence alleged
consists in the breach of a term of a contract (such as negligently building a house).
Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd [1985] 1 All SA 347 (A), 1985 (1) SA 475 (A)
Holtzhausen v Absa Bank Ltd [2005] 2 All SA 560 (SCA), 2008 (5) SA 630 (SCA)
Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd [2011] 3 All SA 362 (SCA), 2011 (4) SA 276 (SCA)
Steyn NO v Ronald Bobroff & Partners [2013] 1 All SA 471 (SCA), 2013 (2) SA 311 (SCA)
Citation of parties
Related subject: LEGAL STANDING
General: Initiating processes must, in terms of the court rules, describe the parties to the litigation properly. Legal
standing must appear from the description of the parties or must otherwise be dealt with. It must also appear ex
facie the initiating documents.
Magistrates' courts: Every summons must set forth
(a) the surname and first names or initials of the defendant by which the defendant is known to the plaintiff, the
defendant's residence or place of business and, where known, the defendant's occupation and employment
address and, if the defendant is sued in any representative capacity, such capacity; and
(b) the full names, gender (if the plaintiff is a natural person) and occupation and the residence or place of business of
the plaintiff, and if the plaintiff sues in a representative capacity, such capacity.
[Page 79]
High Court: Uniform rule 17(4) requires that every summons must set forth
(a) the surname and first names or initials of the defendant by which the defendant is known to the plaintiff, the
defendant's residence or place of business and, where known, the defendant's occupation and employment
address and, if the defendant is sued in any representative capacity, such capacity; and
(b) the full names, gender (if the plaintiff is a natural person) and occupation and the residence or place of business of
the plaintiff, and if the plaintiff sues in a representative capacity, such capacity.
Close corporations: A close corporation is a juristic person with full legal capacity.
Close Corporations Act 69 of 1984s 2
It must be sued in its own name, and full particulars of its registered address or principal place of business within
the jurisdiction of the court concerned must be stated.
Companies: A company is a legal entity separate and distinct from its members and directors. It must sue and be
sued in its corporate name. Full particulars of the nature of the company must be stated as must the country of the
company's incorporation and the company's registered address or (in the case of a defendant) principal place of
business within the jurisdiction of the court.
Companies in liquidation: A liquidator of a company in liquidation may institute or defend legal proceedings on
behalf of that company if authorised to do so. In addition, the master of the high court or the high court itself may
grant the liquidator the necessary powers. In the absence of any such authority, liquidators have no power to bring
proceedings in name of, or on behalf of, the company.
Ex parte Venter & Spain NNO: Fordom Factoring Ltd intervening; Venter & Spain v Povey 1982 (2) SA 94 (D)
The liquidator ought to bring the action in the name of the company. However, a practice has developed according
to which such actions are brought in the name of the liquidator in a representative capacity.
Shepstone & Wylie v Geyser NO [1998] 3 All SA 349 (A), 1998 (3) SA 1036 (SCA)
Gainsford NO and others v Tanzer Transport (Pty) Ltd; Gainsford NO and others v Tanzer Transport (Pty) Ltd and
others [2014] 3 All SA 21 (SCA), 2014 (3) SA 468 (SCA)
Insolvent estates: Legal proceedings by or against an insolvent estate are to be in the name of the trustee as
trustee. The trustee requires the authority of the master or of the creditors to litigate. If the trustee is not properly
authorised, the proceedings will not be invalid, but the trustee runs the risk of having to pay the costs personally.
Insolvency Act 24 of 1936s 73(1)
Patel v Paruk's Trustee 1944 AD 469
Smith NO v Hattingh [1984] 1 All SA 40 (C), 1984 (2) SA 660 (C)
Trusts: A trust is not a legal persona but a legal institution sui generis. Its assets and liabilities vest in its trustees.
Trustees ought therefore to be cited eo nomine in their capacity as trustees, since the trust itself cannot be either a
plaintiff or defendant. Unless one of the trustees is authorised by the others, all the trustees must be joined in
instituting or defending proceedings by or against a trust.
Land and Agricultural Development Bank of SA v Parker [2004] 4 All SA 261 (SCA), 2005 (2) SA 77 (SCA)
Cuba NO and others v Holoquin Global (Pty) Ltd and others [2016] 4 All SA 77 (GJ)
Any person having an interest in a trust, whether as trustee or beneficiary or otherwise, is entitled to apply for
declaratory relief when the status of the trustees is at issue.
Ras NO and others v Van der Meulen and another 2011 (4) SA 17 (SCA)
Theron NO and another v Loubser NO and others; Theron NO and another v Loubser and others [2014] 1 All SA
460 (SCA), 2014 (3) SA 323 (SCA)
[Page 80]
Executors and trustees of estates: See DECEASED ESTATES.
Government and state officials: The citation of ministers of state and public officials in their official capacity is
regulated by statute. They must be cited by their official title and not by name.
Proceedings against the state: In any action or other proceedings instituted against a national or provincial
department, the executive authority of the department concerned must be cited as nominal defendant or
respondent.
The term 'executive authority', 'in relation to (a) a national department, means the Cabinet member who is
accountable to Parliament for that department; and (b) a provincial department, means the member of the
Executive Council of a province who is accountable to the provincial legislature for that department'.
State Liability Act 20 of 1957s 2 (as amended by Act 8 of 2017) read with s 4A
Jayiya v MEC for Welfare, EC Government [2003] 2 All SA 223 (SCA), 2004 (2) SA 611 (SCA) para. 5
There are prescribed procedures relating to service and so on.
See STATE LIABILITY
Proceedings by the state: The executive authority of the department concerned may sue as a nominal plaintiff on
behalf of the state or province. In addition, both the Minister, as political head of department, and the Director
General (albeit with ministerial authorisation) are empowered to sue on behalf of the state or province.
The state may also be cited as the Government of the Republic of South Africa.
Department of Public Works v MS Moos Construction CC [2006] 4 All SA 535 (SCA) para. 11
Judges: Consent to institute legal proceedings against a judge may be required.
Superior Courts Act 10 of 2013s 47(1)
Partners, firms and unincorporated bodies: Persons claiming or being sued as partners may sue or be sued in the
name of the firm of which they were partners when the cause of action arose. Any person carrying on business in a
name or style other than her or his own name may sue or be sued in that name or style as if it were the name of a
firm. The provisions of the rule apply mutatis mutandis to an unincorporated company, syndicate or association.
Scott v Golden Valley Supermarket [2002] 3 All SA 1 (A), 2002 (6) SA 297 (SCA)
Burger v Rand Water Board 2007 (1) SA 30 (SCA)
A partnership, firm or an association may sue or be sued in its name. A plaintiff suing a partnership or firm need not
state the names of the partners.
PRECEDENTS
Natural persons
The plaintiff [defendant] is Mary Smith, an adult female bookkeeper, residing at [address] OR having her business at [address]
OR employed at [address].
The plaintiff [defendant] is Mary Smith, an adult female bookkeeper, residing at [address] OR having her business at [address]
OR employed at [address], who institutes this action [who is sued] in her capacity as mother and sole guardian of her minor
son, John Smith.
The defendant is M Smith, an adult female whose particulars are not known to the plaintiff of [address].
[Page 81]
Companies
The plaintiff [defendant] is J Smith & Co (Pty) Ltd, a company with limited liability, incorporated in terms of the Companies Act
71 of 2008, with its registered office at [address] OR with its principal place of business within the jurisdiction of this court at
[address].
Companies in liquidation
The plaintiff [defendant] is J Smith & Co (Pty) Ltd, a company in liquidation by order of court [detail], herein represented by its
duly appointed liquidator [name, address and detail of appointment].
The plaintiff [defendant] is [name of liquidator], herein cited in his capacity as duly appointed liquidator of J Smith & Co (Pty)
Ltd, a company in liquidation by order of court [detail].
Government and state officials
The plaintiff [defendant] is the President of South Africa/Minister of [department]/Premier of the Province of [name]/Director
General of [department], acting in her/his official capacity.
Partnerships, firms and associations
The plaintiff [defendant] is Omega Trading, a partnership [firm] trading as retailers and having its place of business at
[address].
The plaintiff [defendant] is Gauteng Tennis Club, a voluntary association and tennis club, of [address].
Close corporations
Related subject: COMPANIES
Effect of the Companies Act 71 of 2008: It is no longer possible to register a close corporation and the Close
Corporations Act 69 of 1984 will be phased out. The provisions dealt with below have not yet been affected by the
Companies Act.
Position of members: Every member of a close corporation assumes a relationship of trust with regard to the
corporation. Each member is comanager of the corporation and entitled to participate in the control of the
corporation's business. A member who conducts a transaction relating to the ordinary business of the close
corporation acts as comanager of the corporation.
Amalgamated Banks of South Africa Beperk v De Goede [1997] 2 All SA 427 (A), 1997 (4) SA 66 (SCA)
Citation: A close corporation is a juristic person with full legal capacity.
Muller v CocaCola Sabco (SA) (Pty) Ltd 1998 (2) SA 824 (SE)
It must sue and be sued in its own name.
See CITATION OF PARTIES
Jurisdiction: Any high court or magistrates' court within whose area of jurisdiction the registered office or the main
place of business of the close corporation is situated has jurisdiction for purposes of the Act.
In other respects, the ordinary rules relating to jurisdiction apply.
Deregistration: A deregistered corporation that has been restored to the register is deemed to have continued in
existence from the date of deregistration as if it had not [Page 82] been deregistered. Contracts entered into
during the period of deregistration are accordingly valid.
Kadoma Trading (Pty) Ltd v Noble Crest CC [2013] 3 All SA 126 (SCA), 2013 (3) SA 338 (SCA)
Derivative action: A derivative action on behalf of the corporation is permitted in the sense that any member may
institute proceedings, on behalf of the corporation, against any other member or former member who is liable to the
corporation
(a) to make an initial contribution or any additional contribution; or
(b) on account of
(i) the breach of a duty arising from his or her fiduciary relationship to the corporation in terms of section
42; or
(ii) negligence in terms of section 43;
after notifying all other members of the corporation of his or her intention to do so.
De Franca v Exhaust Pro CC (De Franca intervening) [1996] 4 All SA 503 (SE), 1997 (3) SA 878 (SE)
Personal liability: The Close Corporations Act provides for the personal liability of members and, in certain
circumstances, for that of other persons. The relevant sections are dealt with hereafter.
Ebrahim v Airports Cold Storage (Pty) Ltd [2009] 1 All SA 330 (SCA), 2008 (6) SA 585 (SCA)
Section 23 read with section 32 of the Companies Act: In terms of this section, any member of, or any other
person on behalf of, a close corporation who issues or authorises the issue of listed documents without the name
and registration number of the corporation is personally liable to the third party.
G & C Construction v De Beer [2000] 1 All SA 540 (T), 2000 (2) SA 378 (T)
Section 42(3)(a): A member of a close corporation whose act or omission has breached any duty arising from her
or his fiduciary relationship is liable to the corporation for
(a) any loss suffered by the corporation as a result of that act or omission; or
(b) any economic benefit derived by her or him by reason of the act or omission.
Section 42(3)(b): When a member fails to give due notice of an interest in a contract of the corporation and it
becomes known to the corporation that the member has such an interest, the contract is voidable at the option of
the corporation.
Section 64: This provision is similar to section 424 of the Companies Act 61 of 1973 (see COMPANIES) and creates
liability for reckless or grossly negligent trading.
Cf. Tsung and another v Industrial Development Corporation of South Africa Ltd and another [2013] 2 All SA 556
(SCA), 2013 (3) SA 468 (SCA)
A member's liability does not fall away upon deregistration of the close corporation.
Mouton v Boland Bank Ltd [2001] 3 All SA 485 (SCA), 2001 (3) SA 877 (SCA)
Section 65: This section creates a liability for the gross abuse of the juristic personality of the corporation as a
separate entity.
HülseReutter v Gödde [2002] 2 All SA 211 (A), 2001 (4) SA 1336 (SCA)
Section 43: Every member of a corporation is liable to the corporation for loss caused by his or her failure in
carrying on the business of the corporation to act with the degree of care and skill that may reasonably be
expected from a person of his or her knowledge and experience.
[Page 83]
This liability is not incurred if the relevant conduct was preceded or followed by the written approval of all the
corporation's members, provided they were or are cognizant of all the material facts.
PRECEDENTS
Claim based on sections 64 and 65 of Act 69 of 1984, alternatively section 34 of the Insolvency Act 24 of 1936
[From Burley Appliances Ltd v Grobbelaar NO [2003] 3 All SA 505 (C), 2004 (1) SA 602 (C).]
1. At all relevant times M was the sole member of F CC and the managing member of S.
2. The disposition of its business by F CC was not made for value.
3. Immediately after the disposition was made, the liabilities of F CC exceeded its assets.
4. The payment of Rx to M took place at a time when the liabilities of F CC exceeded its assets.
5. The payment to M was made with the intention of preferring one of its creditors (M) above its other creditors, in particular
B, the plaintiff.
6. By disposing of the business of F CC and by paying M, F CC and M carried on the business of F CC recklessly, with gross
negligence or with the intent to defraud the creditors of F CC and in particular B.
7. At all relevant times F CC, S and M were knowingly parties to the disposition and the payment and acted in collusion to
avoid payment of F CC's creditors, and in particular B.
8. The disposal of the business constituted a gross abuse by M of the juristic personality of F CC as a separate entity in that
it took place to avoid payment of B's claims and to permit S to continue to conduct the business but without the liability to
B.
9. At the time of the transfer of the business to it, S knew that B had instituted the action against F.
Claim based on section 64 of Act 69 of 1984 with alternatives against member
[From Johnson v Blaikie & Co (Pty) Ltd t/a FT Building Supplies [1998] 2 All SA 38 (N), 1998 (3) SA 251 (N).]
1. The plaintiff is AB [particulars].
2. The defendant is CJ [particulars].
3. At all relevant times the defendant was a member of Roofking CC (the 'CC').
4. On 15 December 1992 the plaintiff obtained judgment against the CC in the [court] for payment of Rx plus interest and
costs as appears from annexure 'A'.
5. On 17 March 1993 the CC was finally liquidated.
6. During [date] the defendant ordered building materials from the plaintiff in the name of the CC. The materials were
delivered.
7. At the time of the order, the CC was unable to pay its debts.
8. An unpaid balance of Rx in respect of the materials remained after the liquidation of the CC. The judgment mentioned
was in respect of this unpaid balance.
9. The defendant was at all material times aware of the CC's inability to pay its debts.
10. In so acting, the defendant grossly abused the juristic personality of the CC to obtain building materials from the plaintiff
without paying for them.
11. In the premises and by virtue of section 64 and/or section 65 of the Close Corporations Act 69 of 1984, the plaintiff is
entitled to orders in terms whereof:
11.1 the CC is to be regarded as a venture of the defendant personally; and/or
11.2 the defendant is declared to be personally liable for payment of Rx.
12. After liquidation, an enquiry was held into the affairs of the CC in terms of the Act, as read with the Insolvency Act 24 of
1936.
13. Because of admissions made by the defendant, the defendant is liable personally to repay to the plaintiff Rx on the basis
that the defendant has received a payment from the close corporation in contravention of the provisions of section 70 as
read with section 51 of the Act.
14. Notwithstanding demand, defendant fails to pay.
[Page 84]
The plaintiff claims
1. Orders in terms whereof:
1.1 Roofking CC (in liquidation) is in respect of the obligations arising out of the order of Court to be regarded a
venture of the defendant personally; and/or
1.2 the defendant is declared to be personally liable for payment of Rx.
2. Payment of Rx.
Codebtors
Nature of liability: The liability of codebtors may depend on a question of law (e.g. the liability of expartners) or a
question of fact (e.g. the terms of a contract). Accordingly, a claim against codebtors must state whether their
liability is (a) joint or (b) joint and several.
If the liability is joint, all the debtors must be joined, but are liable for their respective aliquot shares only.
Henri Viljoen (Pty) Ltd v Awerbuch Bros [1953] 2 All SA 40 (O), 1953 (2) SA 151 (O) p. 158
Boyce NO v Bloem [1960] 3 All SA 574 (T), 1960 (3) SA 855 (T)
If the liability is joint and several, the plaintiff may either join all the debtors or choose one or more as a target. A
plaintiff may also choose the target at a later stage (e.g. when applying for judgment). A judgment against one
such debtor must state that it is joint and several with any judgment that may thereafter be granted against any of
the other debtors.
Parekh v Shah Jehan Cinemas [1982] 3 All SA 697 (D), 1982 (3) SA 618 (D) p. 623
When several creditors become jointly entitled to rights, it is presumed that each creditor may sue the debtor for
that creditor's pro rata share.
Chrysafis v Katsapas [1988] 2 All SA 605 (A), 1988 (4) SA 818 (A)
Claim for contribution: The right of a codebtor who has paid the debt to claim a contribution from another co
debtor and the extent of the claim depend on the relationship between the codebtors inter se.
Koornklip Beleggings (Edms) Bpk v Allied Minerals Ltd [1970] 2 All SA 333 (C), 1970 (1) SA 674 (C) p. 677F
See SURETYSHIP
PRECEDENTS
Prayers
1. The plaintiff claims against both defendants, jointly and severally, the one paying the other to be absolved, payment of
[amount].
2. The plaintiff claims against the defendant payment of [amount], such judgment to be joint and several with any judgment
which may hereafter be obtained against [the defendant's expartner].
3. The plaintiff claims against the defendants, jointly, delivery of [detail].
Companies
Related subjects: AGENCY; FIDUCIARY RELATIONSHIPS; CLOSE CORPORATIONS
Legislation: The Companies Act 61 of 1973 was replaced with the Companies Act 71 of 2008 which came into on 1
May 2011. The 2008 Act contains some transitional provisions.
[Page 85]
Citation: See CITATION OF PARTIES.
Legal representation: Only an attorney and an advocate duly instructed by an attorney may represent a company
in the high court. A director may not enter appearance on its behalf or appear on its behalf.
Yates Investments (Pty) Ltd v Commissioner for Inland Revenue [1956] 1 All SA 285 (A), 1956 (1) SA 364 (A)
Contra California Spice and Marinade (Pty) Ltd in re: Bankorp v California Spice and Marinade (Pty) Ltd; Fair
O'Rama Property Investments CC; Tsaperas; and Tsaperas [1997] 4 All SA 317 (W)
Mandate: To hold a company liable in contract it is necessary to prove that the person who purported to bind the
company had the necessary authority. When the exercise of the authority depends on some internal act a bona fide
third party may assume that the company has complied with the internal act (the Turquand rule).
Tuckers Land and Development Corporation (Pty) Ltd v Perpellief [1978] 1 All SA 629 (T), 1978 (2) SA 11 (T)
See AGENCY on ostensible authority
Personal liability in terms of section 424(1) of the Companies Act 61 of 1973: This provision has not been
replaced by the 2008 Act. If it is shown on application that the business of a company was or is being carried on
recklessly or with the intent to defraud creditors of that company or any other person, or for any fraudulent
purpose, the court may declare any person personally responsible, without any limitation of liability, for all or any of
the debts or other liabilities of the company.
Ozinsky NO v Lloyd 1992 (3) SA 396 (C); 1995 (2) SA 915 (A)
Philotex (Pty) Ltd v Snyman; Braitex (Pty) Ltd v Snyman 1998 (2) SA 138 (SCA)
Strut Ahead Natal (Pty) Ltd v Burns [2007] 3 All SA 190 (D), 2007 (4) SA 600 (D)
For someone to be held liable under section 424(1), the following must be established:
(1) The business of the company was carried on
(a) recklessly;
(b) with the intent to defraud creditors (of the company or any other person); or
(c) for any fraudulent purpose.
(2) The person concerned must have
(a) been a party to the carrying on of the business; and
(b) had knowledge of the facts from which the conclusion is properly to be drawn that the business of the
company was or is being carried on
(i) recklessly;
(ii) with the intent to defraud creditors (of the company or any other person); or
(iii) for any fraudulent purpose.
Cooper NO v South African Mutual Life Assurance Society [2001] 1 All SA 355 (A), 2001 (1) SA 967 (SCA)
Engelbrecht NO and others v Zuma and others [2015] 3 All SA 590 (GP)
De Sousa and another v Technology Corporate Management (Pty) Ltd and others [2017] 3 All SA 47 (GJ)
The plaintiffcreditor must prove the existence and quantity of the claim.
Retail Management Services (Edms) Bpk v Schwartz [1992] 3 All SA 104 (W), 1992 (2) SA 22 (W)
The action may be brought by the liquidator of a company in liquidation.
Fundstrust (Edms) Bpk (in likwidasie) v Marais [1996] 3 All SA 574 (C), 1997 (3) SA 470 (C)
[Page 86]
The application for the declaration may and, if factual disputes are anticipated, should be by way of action.
Food & Nutritional Products (Pty) Ltd v Neumann [1986] 3 All SA 96 (W), 1986 (3) SA 464 (W)
A causal link between the fraud and the plaintiff's loss is not required for potential liability but is a factor to be
considered in the exercise of the court's discretion.
Fourie v First Rand Bank Ltd [2013] 1 All SA 291 (SCA), 2013 (1) SA 204 (SCA)
Piercing the corporate veil: Directors and officers of a company may incur personal liability for the debts of the
company. The corporate veil may be pierced if they made fraudulent use of the company's legal personality,
especially in the establishment or use of the company or in the conduct of its affairs.
Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd [1995] 2 All SA 543 (A), 1995 (4) SA 790 (A) pp. 802
804
(The pleadings are quoted in the judgment of first instance: 1993 (2) SA 784 (C).)
There is now a statutory basis for this relief.
Companies Act 71 of 2008 s 20(9)
Ex parte Gore NO and others NNO (in their capacities as the liquidators of 41 companies comprising King Financial
Holdings Ltd (in liquidation) and its subsidiaries) [2013] 2 All SA 437 (WCC)
There must at least be some misuse or abuse of the distinction between the corporate entity and those who control
it, which misuse or abuse results in an unfair advantage for the latter.
HülseReutter v Gödde [2002] 2 All SA 211 (A), 2001 (4) SA 1336 (SCA)
Nel v Metequity Ltd [2007] 2 All SA 602 (SCA), 2007 (3) SA 34 (SCA)
It is necessary to show that the defendant was a party to the fraud.
Howard v Herrigel NO [1991] 2 All SA 113 (A), 1991 (2) SA 660 (A) p. 674
Oppressive conduct: In terms of section 163, a shareholder or a director of a company may apply to a court for
relief if
(a) any act or omission of the company, or a related person, has had a result that is oppressive or unfairly prejudicial
to, or that unfairly disregards the interests of, the applicant;
(b) the business of the company, or a related person, is being or has been carried on or conducted in a manner that is
oppressive or unfairly prejudicial to, or that unfairly disregards the interests of, the applicant; or
(c) the powers of a director or prescribed officer of the company, or a person related to the company, are being or
have been exercised in a manner that is oppressive or unfairly prejudicial to, or that unfairly disregards the
interests of, the applicant.
Grancy Property Limited v Manala and others [2013] 3 All SA 111 (SCA)
Derivative action: The commonlaw right of persons to bring or prosecute any legal proceedings on behalf of a
company (a derivative action) has been abolished. Instead,
A person may serve a demand upon a company to commence or continue legal proceedings, or take related steps, to protect
the legal interests of the company if the person
(a) is a shareholder or a person entitled to be registered as a shareholder, of the company or of a related company;
(b) is a director or prescribed officer of the company or of a related company;
(c) is a registered trade union that represents employees of the company, or another representative of employees of
the company; or
(d) has been granted leave of the court to do so, which may be granted only if the court is satisfied that it is
necessary or expedient to do so to protect a legal right of that other person.
Companies Act 71 of 2008 s 165
[Page 87]
A court may, in terms of section 165(5)(b), grant leave only if it is satisfied on a balance of probabilities that
the applicant is acting in good faith;
(i)
tinuing proceedings involve the trial of a
(ii)
serious question of material
consequence to the company;
and
sts of the company that the applicant be
(iii)
granted leave to commence
. . . or continue the
proceedings.
Gihwala and others v Grancy Property Ltd and others [2016] 2 All SA 649 (SCA), 2017 (2) SA 337 (SCA)
Mbethe v United Manganese of Kalahari (Pty) Limited 2017 (6) SA 409 (SCA)
Ultra vires : At common law, a company could not function beyond its objects as set out in the memorandum of

association. Section 35 of the 2008 Act amended the position materially: once a contract is entered into by a
company, no reliance may be placed by the company or by the party with whom it contracted on the fact that the
contract was beyond the powers and objects of the company as set out in its memorandum. The contract remains
as valid and enforceable by or against the company as if it had been an act within the company's capacity. As
between the members or as between the members and directors who entered into the contract on behalf of the
company, reliance may still be placed on the fact that the contract was ultra vires the agreed objects of the
company.
PRECEDENTS
Claim based on section 422(1) of Act 61 of 1973
1. Plaintiff was at all relevant times a creditor of [X] company in the amount of [Rx] on the following grounds: [set out
cause of action against [X]].
2. The company was liquidated on [date] by this court.
3. Plaintiff proved his claim against [X] for [amount] and the claim was admitted by the liquidator.
4. In spite thereof, plaintiff received no liquidation dividend since [X] had no assets.
5. Defendant was the managing director of [X] during all relevant times.
6. During the period [state period], the business of [X] was carried on:
(a) with the intent to defraud creditors of [X]; or
(b) recklessly;
in that
(i) funds of [X] were diverted from [X] to defendant for defendant's personal purposes;
(ii) no books of account were kept;
(iii) funds of [X] were used for gambling purposes.
7. Defendant was knowingly a party to these acts.
8. Because of this, plaintiff suffered damages [detail].
The plaintiff claims an order declaring that defendant is liable to plaintiff in terms of section 424(1) of the Companies Act 61 of
1973 for the debts incurred by [X] to plaintiff for [amount].
[Cf. Fourie v Braude 1996 (1) SA 610 (T).]
Exception derivative action
1. The plaintiff sues in its capacity as shareholder in [X] (Pty) Ltd.
2. The plaintiff's damages allegedly arise from losses caused to the company, and, therefore, indirectly to the plaintiff, in
the form of a loss of value in respect of its shareholding.
3. The plaintiff, as a shareholder in [X], being a company with limited liability and a separate legal personality, has no right
of action against the curators with respect to the alleged losses.
[Page 88]
4. Accordingly, the claim discloses no cause of action against the curators.
[See Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C).]
Claim based on section 424(1) of Act 61 of 1973
[From Kalinko v Nisbet [2002] 3 All SA 294 (W), 2002 (5) SA 766 (W).]
1. The retailer agreement between C and M, being the primary source of the business and income of C, was cancelled by M
during or about December 1999. The defendants failed to take sufficient steps to enter into a new retailer agreement with
M.
2. A false claim of [Rx] was reflected in the books of C in favour of M.
3. Valid and enforceable claims of C against M of approximately R1 million were abandoned without any benefit being
received in respect thereof or without any due and proper authorisation being given in respect thereof.
4. C traded in insolvent circumstances during [period] whilst the defendants knew of such insolvency.
5. C failed to appoint competent and able staff to manage and direct the daytoday running of its affairs.
6. No stocktaking of the stock of C took place during [period].
7. No accounts were kept for the business of C during [period].
8. C operated without sufficient stock on hand.
9. Without due and proper authorisation, C abandoned its business.
Condictio furtiva
Related subjects: CONDICTIO INDEBITI; VINDICATION
Nature of action: Although it is by name an enrichment action, the condictio furtiva is a delictual claim because it is a
claim for damages. It may serve as an alternative to the rei vindicatio (if the defendant remained in possession and
the plaintiff was the owner). It may also be used to vindicate money (e.g. the proceeds of a stolen cheque).
Requirements: The requirements are that
(a) the claimant must at all relevant times have had a legal interest in the thing (e.g. as owner or as the person
who bore the risk of loss); and
(b) the defendant must have stolen the thing or received it mala fide, knowing that it had been stolen.
Dolus eventualis suffices.
Crots v Pretorius 2010 (6) SA 512 (SCA), [2011] 3 All SA 10 (SCA)
Theft as defined at common law is required. Theft includes furtum usus.
Chetty v Italtile Ceramics Ltd 2013 (3) SA 374 (SCA)
Christelis NO v Meyer NO [2014] ZASCA 53
Nonenrichment: Nonenrichment is not a defence. Liability is strict, and a defendant bears the risk of the loss of
the thing even if the loss is not attributable to the defendant's fault. In other words, once theft is proved, the
plaintiff does not need to prove fault on the part of the defendant in respect of damage caused to or loss of the
stolen thing.
John Bell and Co Ltd v Esselen 1954 (1) SA 147 (A)
Clifford v Farinha [1988] 4 All SA 673 (W), 1988 (4) SA 315 (W)
First National Bank of SA Ltd v East Coast Design CC [2000] 3 All SA 1 (D), 2000 (4) SA 137 (D)
[Page 89]
PRECEDENTS
Claim claim by lessee
1. The plaintiff is the lessee of a BMW motor vehicle, [identify], by virtue of a written contract of lease concluded between
the plaintiff as lessee and B bank as lessor.
2. In terms of the agreement the plaintiff bears the risk of loss of and/or damage to or destruction of the vehicle.
3. On or about [date] and whilst the vehicle was parked at the plaintiff's premises the defendant unlawfully removed the
vehicle from the premises.
4. As at the said date the value of the vehicle was the sum of Rx.
5. The defendant has failed to return the vehicle to the plaintiff.
6. In the circumstances the defendant is obliged to return the vehicle to the plaintiff, alternatively to pay to the plaintiff the
value of the vehicle, namely the sum of Rx.
The plaintiff claims an order that the defendant return the vehicle to him, alternatively payment of Rx plus interest thereon, and
costs.
Condictio indebiti
Related subjects: BANKS; CONDICTIO FURTIVA; CONDICTIO SINE CAUSA; CONTRACT: ILLEGAL CONTRACTS;
DECEASED ESTATES
Leading cases:
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue [1992] 4 All SA 62 (AD), 1992 (4) SA 202 (A)
McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (A), 2001 (3) SA 482 (SCA)
Legator McKenna Inc v Shea [2009] 2 All SA 45 (SCA), 2010 (1) SA 35 (SCA)
Definition: A party who, owing to an excusable error, made a payment (or delivered a thing) to another in the
mistaken belief that the payment or delivery was owing may claim repayment or redelivery from the recipient to the
extent that the latter was enriched at the claimant's expense. (For the purposes of brevity, the text will deal with
payment only but applies equally to delivery of things.)
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue [1992] 4 All SA 62 (AD), 1992 (4) SA 202 (A)
ABSA Bank Ltd v Leech [2001] 4 All SA 55 (A), 2001 (4) SA 132 (SCA)
Parties: The person entitled to sue is the one who is in law deemed to have paid.
Bowman NO and others v Fidelity Bank Ltd [1997] 1 All SA 317 (A), 1997 (2) SA 35 (A)
The money reclaimed must have been paid by the plaintiff or the plaintiff's agent.
Klein NO v SA Transport Services [1992] 4 All SA 384 (W), 1992 (3) SA 509 (W)
The money being reclaimed must in legal terms have been paid to the defendant. For example, when an agent
receives money indebite on behalf of a principal, the action lies against the principal and not against the agent even
though the latter might have been enriched by receiving it.
Minister van Justisie v Jaffer [1995] 1 All SA 366 (A), 1995 (1) SA 273 (A)
Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A),
Sine causa payment or transfer: The payment must have been made sine causa. It must have been indebite in the
widest sense that is, without any legal or natural obligation.
Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd [1996] 3 All SA 1 (A), 1996 (4) SA 19
(SCA)
[Page 90]
The error must have been reasonable: The mistake must be excusable in the circumstances of the case. The enquiry
into whether the conduct of the plaintiff is excusable is directed at the reasons for and the circumstances in which
the payment or transfer was made.
Rahim v Minister of Justice 1964 (4) SA 630 (A) p. 634
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue [1992] 4 All SA 62 (AD),
1992 (4) SA 202 (A)
Affirmative Portfolios CC v Transnet Ltd t/a Metrorail [2009] 1 All SA 303 (SCA), 2009 (1) SA 196 (SCA)
There are exceptions to this requirement for example, in relation to payments made on behalf of others.
Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme [2017] 4 All SA 705 (SCA), 2018 (1) SA 513
(SCA)
Enrichment and impoverishment: The defendant must have been enriched at the expense of the plaintiff and not
that of some third party.
(SCA)
Once a payment or transfer indebite has been established, the onus is on the defendant to prove that the payment
did not enrich the defendant.
African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A)
Absa Bank Ltd v Standard Bank of SA Limited [1997] 4 All SA 673 (A), 1998 (1) SA 242 (SCA)
The requirement of impoverishment is concerned with whether the plaintiff suffered a loss in making the payment
that gave rise to the condictio. Issues of nonimpoverishment typically arise in tripartite situations where the loss
was suffered by a third party or where the claimant was shielded from loss by an indemnity or the like.
Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme [2017] 4 All SA 705 (SCA), 2018 (1) SA 513
(SCA) para. 52
Onus: The burden of proof in respect of these elements is on the plaintiff.
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue [1992] 4 All SA 62 (AD), 1992 (4) SA 202 (A) p. 224
Senwes Ltd and others v Jan van Heerden and Sons CC and others [2007] 3 All SA 24 (SCA)
Nonenrichment as defence: A defendant may plead nonenrichment as a defence. Once a payment indebite has
been established, the onus is on the defendant to prove that the payment did not enrich the defendant.
African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A)
Absa Bank Limited v Standard Bank of SA Limited [1997] 4 All SA 673 (A), 1998 (1) SA 242 (SCA)
A defendant who disposed of the money may rely on the disposal as evidence of nonenrichment but must allege
and prove that the disposal was bona fide.
Le Riche v Hamman 1946 AD 648
Van Zyl v Serfontein [1992] 1 All SA 185 (C), 1992 (2) SA 450 (C)
A party who receives money knowing it to be indebite cannot deal with it as if he or she were the owner.
African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A) pp. 711712
Invalid contract: The condictio indebiti may be used to reclaim payment made in terms of an invalid contract if the
invalidity was due to failure to comply with prescribed [Page 91] formalities. This option does not apply if the
contract is void for unlawfulness, in which case the par delictum rule may apply.
Afrisure v Watson [2009] 1 All SA 1 (SCA), 2009 (2) SA 127 (SCA) para. 51
See CONDICTIO OB TURPEM VEL INIUSTAM CAUSAM; CONTRACT: ILLEGAL CONTRACTS
There is a material difference between this case and a claim for damages pursuant to cancellation for breach of
contract. The latter scenario gives rise to contractual remedies restitution and damages while the first gives rise
to an unjustenrichment claim only, and the contractual provisions are largely irrelevant to the enrichment claim.
Kudu Granite Operations (Pty) Ltd v Caterna Ltd [2003] 3 All SA 1 (SCA), 2003 (5) SA 193 (SCA)
The plaintiff must tender to restore all benefits received under the invalid contract and must allege that the
defendant is unwilling or unable to perform the defendant's part of the invalid bargain. This rule does not apply
when the plaintiff's claim is based on a rei vindicatio or when the contract is void for, say, vagueness.
Carlis v McCusker 1904 TS 917
Patel v Adam [1977] 3 All SA 31 (A), 1977 (2) SA 653 (A)
Botes v Toti Development Co (Pty) Ltd [1978] 1 All SA 465 (A), 1978 (1) SA 205 (T)
See Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme [2017] 4 All SA 705 (SCA), 2018 (1) SA 513
(SCA) para. 47
If both parties have performed fully under such an invalid agreement, the condictio indebiti will no longer be available
because the enrichment, if any, would not have been unjust.
Wilken v Kohler 1913 AD 135 p. 144
Payment under protest: Restitution may be claimed with the condictio if payment was made involuntarily. The
plaintiff must allege and prove that payment was made as the result of an unlawful threat and under protest. Error
does not have to be alleged or established.
Kruger v Sekretaris van Binnelandse Inkomste [1973] 1 All SA 357 (A), 1973 (1) SA 394 (A)
Commissioner for Inland Revenue v First National Industrial Bank Ltd [1990] 2 All SA 327 (A), 1990 (3) SA 641 (A)
Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A), [2000] ZASCA 30
PRECEDENTS
Claim based on a void contract
1. Plaintiff and defendant entered into a written contract of sale of land in terms of which plaintiff purchased from defendant
a half share of defendant's farm [name] for [amount]. The agreement was entered into at [place] on [date]. A copy is
annexed hereto.
2. The contract is void by virtue of the provisions of the Subdivision of Agricultural Land Act 70 of 1970 in that the minister
has refused to consent to the contract.
3. In anticipation of the grant of the consent, plaintiff made payment to defendant of the following instalments in the bona
fide and reasonable belief that the agreement was valid and that the minister would grant consent: [detail].
4. Plaintiff is not in possession of the land sold, but defendant is in possession thereof.
5. Defendant is unwilling or unable to perform in terms of the invalid contract.
The plaintiff claims repayment of [amount].
[The Subdivision of Agricultural Land Act 70 of 1970 is to be repealed and replaced with the Subdivision of Agricultural Land Act
Repeal Act 64 of 1998.]
[Page 92]
Claim based on payment wrongly made
1. On [date] at [place], plaintiff entered into a verbal contract with one [X]. In terms of that contract, plaintiff was indebted
to [X] in the sum of [amount].
2. In the bona fide and reasonable belief that defendant, who bears the same name as [X], is in fact [X], plaintiff on [date]
by post sent the sum to defendant.
3. The amount was not owing to defendant.
4. Defendant nevertheless appropriated the moneys.
The plaintiff claims repayment of [amount].
Condictio ob causam finitam
See CONDICTIO SINE CAUSA
Condictio ob turpem vel iniustam causam
See CONTRACT: ILLEGAL CONTRACTS
Condictio sine causa
Related subject: CONDICTIO INDEBITI
Relationship with condictio indebiti : The condictio sine causa may be brought when the condictio indebiti would be

inapplicable when, for example, an executor pays A a legacy belonging to B. B is entitled to recover from A,
irrespective of an excusable or other error by the executor.
Requirements: To succeed, the plaintiff must allege and prove
(a) receipt by the defendant of money or goods to which the plaintiff is entitled;
(b) the absence of a valid causa for such receipt in other words, the money or goods must not have come to the
defendant by way of gift, payment discharging a debt, or in terms of a promise or other obligation or lawful
ground justifying the enrichment;
(c) the defendant's enrichment at the expense of the plaintiff. In assessing whether the defendant has been
enriched, account must be taken of any performance rendered by the defendant that was causally connected
to the receipt of the money or goods;
(d) that the plaintiff was impoverished.
B & H Engineering v First National Bank of SA Ltd [1995] 1 All SA 545 (A), 1995 (2) SA 279 (A)
Joubert Scholtz Inc and others v Elandsfontein Beverage Marketing (Pty) Ltd [2012] 3 All SA 24 (SCA), [2012]
ZASCA 6
Cf. Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme [2017] 4 All SA 705 (SCA), 2018 (1) SA 513
(SCA)
[Page 93]
Condictio ob causam finitam : The condictio ob causam finitam is an offshoot of the condictio sine causa specialis. Its

purpose is to recover property transferred under a valid causa which subsequently fell away.
Nonenrichment as defence: See CONDICTIO INDEBITI.
PRECEDENT
Claim based on condictio sine causa
1. Plaintiff is the holder of a savings account at [X] Bank.
2. On [date] at [place], the bank in error paid the sum of [Ry] to the defendant from the account.
3. The sum was neither due nor owing by the plaintiff to the defendant.
4. The defendant was accordingly enriched unjustly by [Ry] at the expense of the plaintiff.
Confidential information
Related subject: DELICT: LEX AQUILIA; INIURIA; RESTRAINT OF TRADE; UNLAWFUL (UNFAIR) COMPETITION
Leading cases:
Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd [1968] 1 All SA 348 (C),
1968 (1) SA 209 (C)
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd [1977] 1 All SA 481 (T), 1977 (1) SA 316 (T)
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T)
IIR SA BV (inc in the Netherlands) t/a Institute for International Research v Hall (aka Baghas) [2004] 4 All SA 646
(W), 2004 (4) SA 174 (W)
Essentials: The duty to protect or not to use confidential information may arise from agreement (such as a restraint
of trade) or from a general legal duty. In the former instance, the claim is based on a breach of contract; in the
latter, it is based on delict.
Confidential information may be protected by an interdict and breach of confidential information may ground a claim
for damages.
Waste Products Utilisation (Pty) Ltd v Wilkes [2001] JOL 8923 (W), 2003 (2) SA 515 (W) p. 570
Automotive Tooling Systems (Pty) Ltd v Wilkens [2007] 4 All SA 1073 (SCA), 2007 (2) SA 271 (SCA)
Information is considered confidential for present purposes if it is (i) useful that is, if it involves and is capable of
application in trade or industry; (ii) (objectively determined) not public knowledge or public property but known to a
restricted number of persons; and (iii) objectively of economic value to the plaintiff.
AlumPhos (Pty) Ltd v Spatz [1997] 1 All SA 616 (W) p. 623
The essential allegations are these:
(a) The plaintiff must have a proprietary, quasiproprietary or other legal interest in the confidential information.
Gordon Lloyd Page & Associates v Rivera [2000] 4 All SA 241 (A), 2001 (1) SA 88 (SCA)
(b) The information must have had the necessary quality of confidentiality.
SA Historical Mint (Pty) Ltd v Sutcliffe [1983] 3 All SA 523 (C), 1983 (2) SA 84 (C)
Cambridge Plan AG v Moore [1987] 1 All SA 123 (D), 1987 (4) SA 821 (D)
[Page 94]
(c) A relationship, usually contractual, between the parties, which imposes a duty (expressly, impliedly or tacitly)
on the defendant to preserve the confidence of the information. An example of a contractual relationship is
that between employer and employee or between partners and business associates.
Knox D'Arcy Ltd v Jamieson [1992] 4 All SA 275 (W), 1992 (3) SA 520 (W)
International Executive Communications Ltd t/a Institute for International Research v Turnley [1996] 3 All SA 648
(W), 1996 (3) SA 1043 (W) p. 1052
Motion Transfer & Precision Roll Grinding CC v Carsten [1998] 4 All SA 168 (N)
Prism Holdings Ltd v Liversage 2004 (2) SA 478 (W)
A plaintiff in a delictual claim may, for example, rely on the fact that the defendant is a trade rival who
obtained information in an improper manner.
1968 (1) SA 209 (C)
(W), 2004 (4) SA 174 (W)
(d) The defendant must have had knowledge of the confidentiality of the information and its value. (Actual
knowledge is probably not required.)
Multi Tube Systems (Pty) Ltd v Ponting [1984] 3 All SA 578 (D), 1984 (3) SA 182 (D)
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) p. 191
(e) Improper possession or use of the information, whether as a springboard or otherwise, by the defendant.
Multi Tube Systems (Pty) Ltd v Ponting [1984] 3 All SA 578 (D), 1984 (3) SA 182 (D)
Valunet Solutions Inc t/a Dinkum USA v eTel Communications Solutions (Pty) Ltd 2005 (3) SA 494 (W)
(f) Damages suffered, if any.
PRECEDENTS
Claim for interdict
1. From about [date] at [place], plaintiff has been, and still is, manufacturing [item] according to a process that includes
[specify procedure].
2. Plaintiff's process and particularly the specification relating to [specify] constitute trade secrets and/or confidential
knowledge and knowhow and/or confidential information.
3. First defendant was employed by plaintiff during the period [state period] as production manager.
4. During the period of his employment with plaintiff, first defendant learned of the process and specification.
5. First defendant terminated his employment with plaintiff on [date].
6. (a) Prior to that date, first defendant had been instrumental in forming a company, [name] [second defendant].
(b) Defendant became the managing director of second defendant on [date].
7. Since [date], second defendant has been manufacturing and continues to manufacture [item] according to a process and
specification which are the same or substantially the same as plaintiff's process and specification.
8. Both defendants have used and are still using plaintiff's knowledge which they have wrongfully misappropriated from
plaintiff.
9. Despite demands that they desist, defendants continue to infringe the rights of plaintiff to its process and specification.
[Page 95]
(a) An order interdicting the defendants from using the following process and specification, namely [detail], for the purposes
of manufacturing [item].
(b) An order interdicting the defendants from selling or disposing of, in the course of trade or otherwise, all [items] still in
their possession made by means of the process.
Constitutional issues
Jurisdiction: Equality courts have some jurisdiction in constitutional matters and are the appropriate courts for
smaller matters falling within their jurisdiction.
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
General: The Bill of Rights permeates the whole body of South African law, and constitutional issues may arise in
any case. This does not mean that the general principles of pleading do not apply.
See PART A s.v. I. INTRODUCTION
However, the application of the principles does not appear to be consistent.
It is a principle of our law that a party must plead its cause of action in the court of first instance so as to warn
other parties of the case they have to meet, and the relief sought against them. This is a fundamental principle of
fairness in the conduct of litigation. It promotes the parties' rights to a fair hearing which is guaranteed by section
34 of the Constitution.
2014 (6) SA 123 (CC) para. 202
The principles of pleading a cause of action apply to at least
(a) challenges to the constitutional validity of a provision in a statute;
(b) attempts by parties to invoke the Constitution to adapt or change an existing precedent or a rule of the
common law or of customary law to promote the spirit, purport and objects of the Bill of Rights in terms of
section 39(2) of the Constitution; and
(c) direct reliance on a fundamental right.
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (3) BCLR 219 (CC), 2012 (1) SA 256 (CC)
para. 52
Fischer and another v Ramahlele and others [2014] 3 All SA 395 (SCA), 2014 (4) SA 614 (SCA) para. 13
Molusi and others v Voges NO and others 2016 (7) BCLR 839 (CC), 2016 (3) SA 370 (CC)
The principle is especially apposite in relation to (a) and (c). It is not always possible to comply with the principle in
relation to (b), the main reason being that one is not supposed to plead the law. In any event, the development of
the law under section 39(2) ought not to depend on the facts of the case before court.
Laws are of general application and it is difficult to see how the law may be developed to cater for the special facts
of a case. On the other hand, if a pleading is in terms of the law as it stands, and the party wishes to rely on a
developed rule, it will be necessary to plead the anticipated or required legal rule.
Cf. H v Fetal Assessment Centre 2015 (2) BCLR 127 (CC), 2015 (2) SA 193 (CC)
Constitutional damages: Not every breach of constitutional duty is equivalent to unlawfulness in the delictual
sense, and therefore not every breach of a constitutional obligation constitutes unlawful conduct in relation to
everyone affected by it. Nevertheless, breach of a constitutional right may conceivably give rise to 'constitutional
damages', but the remedy can arise only if a sufficient remedy is not available at public or private [Page 96] law and
the common law cannot be adapted or changed within the meaning of section 39(2).
Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal Resources
Centre, amici curiae); President of the RSA v Modderklip Boerdery (Pty) Ltd [2004] 3 All SA 169 (SCA),
2004 (6) SA 40 (SCA)
President of the Republic of South Africa and another v Modderklip Boerdery (Pty) Ltd 2005 (8) BCLR 786 (CC),
2005 (5) SA 3 (CC)
New point on appeal: A point of law may be raised for the first time on appeal if the point is covered by the
pleadings and if its consideration on appeal is not unfair to the other party.
Barkhuizen v Napier 2007 (7) BCLR 691 (CC), 2007 (5) SA 323 (CC) para. 39
PRECEDENTS
Special plea in respect of a claim based on breach of a promise to marry
[Upheld in Cloete v Maritz 2013 (5) SA 448 (WCC).]
1. Having regard for the Constitution of the Republic of South Africa, 1996 and the current mores as recognised by the
community at large, a claim based on breach of promise is contra bones mores and thus not a valid cause of action.
2. Breach of promise is moreover an unenforceable pactum de contrahendo which merely allows for a spatium deliberandi
and therefore does not constitute a valid cause of action.
The defendant claims that the claim for damages be dismissed with costs.
Construction contracts (letting and hiring of work)
Related subjects: ARCHITECTS; CONTRACT (all titles); EXCEPTIO NON ADIMPLETI CONTRACTUS; LIEN; VICARIOUS
LIABILITY
Leading case:
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk [1979] 3 All SA 166 (A), 1979 (1) SA 391 (A)
Definition: Construction contracts (e.g. building and engineering contracts and contracts for repairs to the property
of an employer) are typical examples of the commonlaw contract locatio conductio operis (letting and hiring of work).
In terms of such a contract the locator or contractor must produce a completed piece of work for the conductor or
employer.
Sifris NNO v Vermeulen Broers [1974] 1 All SA 414 (T), 1974 (2) SA 218 (T)
Toerien v Stellenbosch University 1996 (1) SA 197 (C) p. 201
The contract: The plaintiff must allege and prove the terms of the contract relied on, even if it involves the proof of
a negative: for example, if the defendant alleges that the contract contained clauses x + y while the plaintiff alleges
that it included x only, the plaintiff must prove that y was not a term of the contract.
Kriegler v Minitzer [1949] 4 All SA 498 (A), 1949 (4) SA 821 (A)
Imprefed (Pty) Ltd v National Transport Commission [1993] 2 All SA 179 (A), 1993 (3) SA 94 (A) p. 94
Pratt v FirstRand Bank [2009] 1 All SA 158 (SCA), 2009 (2) SA 119 (SCA) para. 12
The ordinary rules relating to the pleading of contracts apply.
[Page 97]
The contract has three basic terms, namely terms relating to
(a) the work to be performed;
(b) the remuneration payable; and
(c) time for performance.
Cf. Group Five Building Ltd v Minister of Community Development [1993] 4 All SA 678 (A), 1993 (3) SA 629 (A)
Housing Consumers Protection Act 95 of 1998: This Act contains provisions relating to building contracts in
respect of 'homes' which the Act defines in broad terms as (subject to some ministerial prescription) any dwelling
unit constructed or to be constructed by a home builder for residential purposes or partially for residential purposes.
The Act places an obligation on a home builder as defined to ensure that the building agreement is in writing and
signed by the parties; that the agreement sets out all material terms including the financial obligations of the
housing consumer; and that the homebuilder has attached certain annexures to the agreement.
Housing Consumers Protection Act 95 of 1998s 13(1)
Only registered builders may claim remuneration under such a building contract. Plaintiffs must allege and prove
that they are so registered.
Cool Ideas 1186 CC v Hubbard and another 2014 (8) BCLR 869 (CC), 2014 (4) SA 474 (CC)
Bekker v Schmidt Bou Ontwikkelings CC [2007] 4 All SA 1231 (C), 2007 (1) SA 600 (C)
The Act provides further that the agreement is deemed to include several warranties for the protection of the
owner, including that the home will be constructed in a workmanlike manner and will be fit for habitation.
Housing Consumers Protection Act 95 of 1998s 13(2)
The works: It is usually an implied (tacit) term of the contract that the contractor will use materials that are suitable
for the works and will perform the work in a proper and workmanlike fashion.
Colin v De Guisti [1975] 4 All SA 319 (NC), 1975 (4) SA 223 (NC)
An employer who supplies the material accepts the risk relating to the suitability of the material employed.
The level of skill and diligence to be employed is that possessed and exercised by other members of the trade to
which the contractor belongs.
Randaree NNO v WH Dixon & Associates [1983] 1 All SA 354 (A), 1983 (2) SA 1 (A)
Remuneration: The contractor must allege and prove
(a) that remuneration was payable in terms of the contract; and
(b) the amount of the remuneration payable.
With reference to (a), if nothing was said about remuneration, it is payable. It is implied that in such circumstances
remuneration will be reasonable. An allegation by the employer that the contractor undertook to do the work free of
charge does not place any onus on the owner. In the event of a dispute, the contractor must prove that nothing
was said concerning remuneration.
Dave v Birrell 1936 TPD 192
Chamotte (Pty) Ltd v Carl Coetzee (Pty) Ltd [1973] 1 All SA 636 (A), 1973 (1) SA 644 (A) p. 649
It may be prudent, in the alternative to an agreed rate, to rely on a tacit term of a fair and reasonable
remuneration. If this is not done and the issue is not fully canvassed, the court may not be able to fix the rate, and
the contractor may fail.
Middleton v Carr [1949] 2 All SA 400 (A), 1949 (2) SA 374 (A) pp. 385386
[Page 98]
The claim for a reasonable remuneration based on a tacit term should be distinguished from a claim based on unjust
enrichment. In the latter claim allegations of enrichment and acceptance of the benefits by the employer must be
made.
Inkin v Borehole Drillers [1949] 2 All SA 383 (A), 1949 (2) SA 366 (A)
A contract for performing work for a stipulated remuneration may be varied by the employer and carried out by the
contractor in such a manner that it may be said that the original contract was tacitly replaced with a new one in
terms of which the employee is entitled to reasonable remuneration.
A contractor who, while performing a contract for a fixed remuneration, receives and accepts instructions to carry
out work that does not form part of the agreement is entitled to reasonable remuneration based on a separate
tacit agreement. The applicable rate depending on the contract may be either the same as that applicable under
the main contract or a reasonable rate.
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration [1974] 3 All SA 497 (A), 1974 (3) SA 506 (A)
Performance: The contractor must allege and prove that everything was done that had to be done in terms of the
contract on which the contractor sues.
Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd [1979] 1 All SA 399 (A), 1979 (2) SA 56 (A)
Seuns OVS (Edms) Bpk [2000] 2 All SA 72 (A), 2000 (3) SA 339 (SCA)
The contractor is otherwise not entitled to recover the contract sum.
As a rule, a contractor's obligation to complete the work is an antecedent for the employer's obligation to pay the
contract sum. The contractor cannot, therefore, require payment against a tender of performance.
Building contracts normally provide for interim payments on certificates. Depending on the terms of the contract a
certificate may form a cause of action.
See ARCHITECTS
Late performance: A contractor who delivered the work and material in accordance with the contract is entitled to
recover the contract sum despite late performance. There is no onus in such a case on the contractor to prove that
the owner has not suffered damages because of the late performance. It is no defence to the contractor's claim
that the owner might suffer damages because of the late performance. The owner must quantify the damages
suffered and, by way of a counterclaim, set them off against the claim.
(A)
The onus rests on the owner to prove the extent of the damage. It follows that the contractor's claim is, under
these circumstances, not based on unjust enrichment.
Incomplete or defective performance: A contractor may, even if performance was incomplete or defective, recover
payment but not the contract sum. There are different possibilities, which are now discussed.
Incomplete or defective performance without cancellation by the employer: The court may in its discretion grant
the contractor a reduced contract price.
Terms such as quantum meruit and 'enrichment' should be avoided in this context.
Hauman v Nortjé 1914 AD 293
[Page 99]
As a rule, the reduced contract price is calculated by deducting the cost of remedying the defects from the stipulated
remuneration. The court exercises its discretion on considerations of equity. The decisive question is whether the
employer utilised the incomplete performance regardless of the extent of its deficiency, although factors such as the
bona fide belief of the contractor may still play a role. Consequently, although decisions that held that a contractor
who knowingly and wilfully, and without the employer's consent, departed from the terms of the contract or did not
believe that the work was complete was not entitled to a quantum meruit (e.g. Hauman v Nortjé 1914 AD 293) can
no longer be read as holding that the defaulting contractor is without remedy.
A contractor who wishes to rely on the court's discretion in this regard must allege and prove
(a) that the employer utilised the defective or incomplete performance;
(b) facts that would make it equitable for the court to exercise its discretion in the contractor's favour for
example, an honest belief that the performance was complete; and
(c) what the amount of the reduced contract price should be. This is done by proving the cost of remedying the
defect, which will then be deducted from the contract price.
pp. 434435
Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd [1984] 3 All SA 13 (SWA), 1984 (2) SA 24
(SWA)
Incomplete or defective performance with cancellation by the employer: When the employer cancels the
contract lawfully, the contractor may claim compensation on the grounds of unjust enrichment.
pp. 422425
The contractor must then make out a case based on enrichment.
If the issue of enrichment was fully canvassed, the court may award compensation despite the absence of the
necessary enrichment allegations.
MacFarlane v Crooke [1951] 3 All SA 103 (C), 1951 (3) SA 256 (C)
The obligation to compensate arises when the employer was enriched for example, when the employer derived an
advantage from a building and the outstanding contract price exceeds the cost of remedying the defects.
Van Rensburg v Straughan 1914 AD 317
The remuneration awarded to the contractor depends on the value of the advantage derived by the employer from
the work performed. It is generally calculated with reference to the contract price and to the portion of the work
that was left undone.
Incomplete or defective performance due to a breach by the employer: If, in the absence of lawful rescission of
the agreement by the employer, the contractor is prevented by the employer from completing the work the
contractor is entitled to the stipulated remuneration subject to a deduction in respect of saved costs.
[Page 100]
The plea: An employer cannot merely deny proper performance by the contractor. The employer must particularise
the defects and may not without amendment rely at the trial on any defect not so particularised.
Badenhorst v Prinsloo [1967] 1 All SA 234 (O), 1967 (1) SA 212 (O) p. 215
An employer wishing to dispute the amount required to rectify defects may do so in the plea, without the need for a
counterclaim. A defendant who proposes claiming damages for losses flowing from defective performance must
institute a counterclaim, in which event the onus of proving the damages rests on the defendant.
(A)
Performance guarantees: Performance guarantees are similar to irrevocable letters of credit issued by financial
institutions. Their essential feature is the establishment of a contractual obligation on the part of the guarantor, to
pay the beneficiary. The obligation is independent of the underlying contract. Any subsequent dispute between
employer and contractor is of no consequence in so far as the guarantor's obligation is concerned.
Lombard Insurance Company Ltd v Landmark Holding (Pty) Ltd and others [ 2 0 0 9 ] 4 A l l S A 3 2 2 ( S C A ) ,
2010 (2) SA 86 (SCA) para. 20
First Rand Bank Ltd v Brera Investments CC 2013 (5) SA 556 (SCA)
Coface South Africa Insurance Co Ltd v East London Own Haven t/a Own Haven Housing Association [2014] 1 All
SA 536 (SCA), 2014 (2) SA 382 (SCA)
Contractual defences: A defendant who is prima facie liable for damages because of a breach of the contract and
wishes to rely on an exemption clause is, in effect, confessing and avoiding. The defendant is saddled with the onus
of establishing the defence by bringing itself within the terms of the provision concerned.
Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd [1998] 4 All SA 117 (SCA) p. 126, 1998 (4) SA 844 (SCA)
PRECEDENT
Claim for payment
1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff undertook to erect a
warehouse for defendant. A copy of the agreement is attached hereto and marked 'A'. [In the case of a standard building
contract, the contract documents may be too voluminous for inclusion as a whole in the pleadings. In such case, only
those portions relied on should be attached.]
2. In terms of Annexure 'A', defendant undertook to pay the amount of [Rx] to plaintiff upon completion of the warehouse.
3. (a) During the course of construction on [date] and at [place], plaintiff and defendant orally agreed that plaintiff would
do the following work, additional to that contracted for in Annexure 'A', namely: [detail].
(b) Plaintiff duly performed the additional work.
(c) It was agreed that plaintiff would be paid [Ry] for performing the additional work.
(d) (i) Alternatively to paragraph (c), it was implied that plaintiff would be paid a fair and reasonable remuneration
for the additional work; and
(ii) the fair and reasonable remuneration for the work is [Ry].
4. On [date], plaintiff duly completed the warehouse and, in so doing, fulfilled all the plaintiff's contractual obligations in
terms of Annexure 'A'.
5. In the premises, plaintiff is entitled to payment of [Rx].
6. Alternatively to paragraphs 4 and 5, if it be found that plaintiff did not fulfil all the plaintiff's obligations in terms of the
agreement, plaintiff states that:
(a) plaintiff fulfilled the obligations materially;
(b) defendant is utilising the warehouse;
[Page 101]
(c) nonfulfilment of the obligations was unknown to plaintiff who honestly believed that the obligation was fulfilled;
(d) the cost of remedying any defects found to be present will not exceed [Rz];
(e) plaintiff is entitled to payment of [Rx Rz].
(a) Payment of the amount of [Rx]; alternatively, of [Rx Rz].
(b) Payment of [Ry].
(c) Interest [rate].
Consumer protection
Consumer protection is dealt with in detail in the Consumer Protection Act 68 of 2008. The Act is not of general
application but nevertheless affects many aspects of the law of contract and delict in relation to agreements
covered by it.
The Act tends to restate the common law and is of little importance for this work because of the other ports of call
available to dissatisfied clients, namely the National Consumer Tribunal established under the Act, an ombud (if the
supplier is subject to some or other ombud), a consumer court, an alternative dispute resolution agent or the
National Consumer Commission. A court may be approached only when all other remedies available in terms of
national legislation have been exhausted.
Consumer Protection Act 68 of 2008s 68
Eskom Holdings Limited v HalsteadCleak 2017 (1) SA 333 (SCA)
Four Wheel Drive Accessory Distribution CC v Rattan NO 2018 (3) SA 204 (KZD)
See SALE: LATENT DEFECTS
Contract: Breach
Related subjects: CONTRACT: CANCELLATION; CONTRACT: DAMAGES; CONTRACT: SPECIFIC PERFORMANCE;
CONVENTIONAL PENALTIES; MORA; REPUDIATION
Contract: Cancellation
Related subjects: CONVENTIONAL PENALTIES; MORA; REPUDIATION
Types of cancellation: A contract may be cancelled in the event of a breach, by agreement or (in appropriate
circumstances) by notice.
Breach of contract: A party wishing to rely on the cancellation of a contract because of a breach must allege and
prove
(a) a breach of the contract;
(b) an accrued right to cancel because of a material breach, for example,
Singh v McCarthy Retail Ltd t/a McIntosh Motors [2000] 4 All SA 487 (A), 2000 (4) SA 795 (SCA)
or that the contract has a cancellation clause (lex commissoria) and its provisions (such as prior notice) have
been complied with;
Kragga Kamma Estates CC v Flanagan [1995] 1 All SA 486 (A), 1995 (2) SA 367 (A)
[Page 102]
GPC Developments CC and others v Uys [2017] 4 All SA 14 (WCC) paras 2735 ('If the contract lays down a
procedure for cancellation, that procedure must be followed or a purported cancellation will be ineffective')
(c) clear and unequivocal notice of rescission, which notice was conveyed to the other party (unless the contract
dispenses with notice). The act of cancellation must be clear and unambiguous.
Swart v Vosloo [1965] 1 All SA 264 (A), 1965 (1) SA 100 (A)
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A), 2001 (2) SA 284 (SCA) para. 29
Nedcor Bank Ltd t/a Nedbank v Mooipan Voer & Graanverspreiders CC [2002] 3 All SA 477 (T)
Fault: Breach of contract does not depend on fault and the absence of fault cannot justify a breach.
Scoin Trading (Pty) Ltd v Bernstein NO [2011] 2 All SA 608 (SCA), 2011 (2) SA 118 (SCA)
Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014 (5) BCLR 511 (CC), 2014 (3) SA 394 (CC) para. 41
Advance notice: Prior notice of intention to cancel in the event of a future breach may be valid and takes effect only
when the breach is committed.
Lench v Cohen 2006 (2) SA 99 (W)
Relief: The innocent party is entitled
(a) to cancel the contract and claim for a declaratory order that the contract was cancelled properly;
(b) to claim judicial cancellation; or
(c) to claim damages.
Sonia (Pty) Ltd v Wheeler [1958] 2 All SA 38 (A), 1958 (1) SA 555 (A)
Joubert v Bester [1977] 1 All SA 185 (T), 1977 (4) SA 560 (T)
Cancellation by notice: The right to terminate a contract unilaterally without a breach depends on the terms of the
contract.
Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A)
If a contract requires a close working relationship between the parties, commercial reality would suggest an
intention not to be bound in perpetuity. In such cases a tacit term allowing for termination on reasonable notice
would be imported in the interests of commercial efficacy.
Amalgamated Beverage Industries Ltd v Rond Vista Wholesalers [2003] 4 All SA 95 (SCA), 2004 (1) SA 538 (SCA)
Cell C (Pty) Ltd v Zulu [2006] 4 All SA 417 (SCA), 2008 (1) SA 451 (SCA)
Plaaskem (Pty) Ltd v Nippon Africa Chemicals (Pty) Ltd [2014] 4 All SA 12 (SCA), 2014 (5) SA 287 (SCA)
Linked agreements: Whether cancellation of one agreement that is linked to another leads to cancellation of the
latter depends on their terms.
Cash Converters Southern Africa (Pty) Ltd v Rosebud Western Province Franchise (Pty) Ltd [2002] 3 All SA 435
(A), 2002 (5) SA 494 (SCA)
Restitution: A party need not tender restitution when claiming cancellation (with or without damages). However, a
party claiming restitution when the contract has been cancelled is obliged to tender restitution or to provide a valid
excuse for failing to do so.
Sackstein NO v Proudfoot SA (Pty) Ltd [2006] 2 All SA 577 (SCA), [2006] ZASCA 8, 2006 (6) SA 358 (SCA)
[Page 103]
Prefix Properties (Pty) Ltd v Golden Empire Trading 49 CC [2010] JOL 26535 (KZP), 2011 (2) SA 334 (KZP)
But see Botha v Rich 2014 (7) BCLR 741 (CC), 2014 (4) SA 124 (CC)
See TENDER BY A PLAINTIFF
Restitution in the form of repayment of the purchase price previously paid by the claimant is not a claim for damages
but a distinct contractual remedy. A creditor who relies on a forfeiture clause cannot in a later action claim damages.
National Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v International Liquor Distributors (Pty) Ltd [2001]
1 All SA 417 (A), 2001 (2) SA 232 (SCA)
Accrued rights: A contractual right may survive cancellation of the contract if, prior to cancellation, it had accrued
and was due and enforceable as a cause of action independent of any executory part of the contract. Examples of
accrued rights include accrued rental or payment certificates issued before the cancellation of the contract.
Crest Enterprises (Pty) Ltd v Rycklof Beleggings (Edms) Bpk [1972] 3 All SA 152 (A), 1972 (2) SA 863 (A)
Thomas Construction (Pty) Ltd (in liq) v Grafton Furniture Manufacturers (Pty) Ltd [1988] 2 All SA 228 ( A ) ,
1988 (2) SA 546 (A)
Shelagatha Property Investments CC v Kellywood Homes (Pty) Ltd; Shelfaerie Property Holdings CC v Midrand
Shopping Centre (Pty) Ltd [1995] 2 All SA 135 (A), 1995 (3) SA 187 (A)
Wrong reason: Cancellation for a wrong reason does not invalidate the cancellation, provided the innocent party is
subsequently able to plead and prove a valid ground even if it was not known to that party at the time of
cancellation.
Matador Buildings (Pty) Ltd v Harman [1971] 1 All SA 381 (C), 1971 (2) SA 21 (C)
Even if a defendant alleges that the cancellation relied on by the plaintiff was unlawful and instead pleads facts that
it had cancelled because the plaintiff had breached the contract, the plaintiff must still prove the defendant's breach
to succeed in its claim. This is because the plaintiff's claim is premised on the defendant's breach and the plaintiff's
valid cancellation.
Mobil Oil Southern Africa (Pty) Ltd v Mechin [1965] 2 All SA 533 (A), 1965 (2) SA 706 (A) p. 712
Reasonable time: The right to cancel must be exercised within a reasonable time, but mere delay does not result in
the loss of that right.
Mahabeer v Sharma NO [1985] 2 All SA 295 (A), 1985 (3) SA 739 (A)
See WAIVER
Election: Once a party has elected either to cancel or not to cancel, the election is final and may not be reversed. In
other words, a party may not approbate and reprobate. An election to cancel necessarily involves abandonment of
the right of enforcement. The onus rests on the party alleging an election to allege and prove it.
Thomas v Henry [1985] 2 All SA 416 (A), 1985 (3) SA 889 (A)
Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd [1996] 1 All SA 509 (C), 1996 (2) SA 537 (C)
Spheris v Flamingo Sweet (Pty) Ltd [2008] 1 All SA 304 (W)
See WAIVER
Whether an innocent party elected to cancel is a question of fact.
Peters NO v Schoeman [2001] 1 All SA 155 (A), 2001 (1) SA 872 (SCA) para. 12
Alternative claims: An innocent party who is uncertain of its rights in respect of the other party's breach may claim
in the alternative, provided that the alternatives are not inconsistent. The available claims are the following:
(a) Cancellation; alternatively, if the contract was not properly cancelled but breached, damages.
[Page 104]
(b) Cancellation, with damages and/or restitution; alternatively, if the contract was not properly cancelled but
breached, damages.
(c) Specific performance, with or without damages.
(d) Specific performance, with or without damages, and, failing compliance with the order within a prescribed
period, cancellation, with or without damages (the socalled 'doublebarrelled procedure').
Myers v Abramson [1952] 1 All SA 267 (C), 1952 (3) SA 121 (C)
Custom Credit Corp (Pty) Ltd v Shembe [1972] 3 All SA 489 (A), 1972 (3) SA 462 (A)
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd (2) [2005] 4 All SA 517 (C), 2005 (6) SA 23 (C)
It is not possible to claim performance and, in the alternative, rely on a prior cancellation of the contract. These
alternatives are inconsistent. As mentioned, the converse is possible.
Salzwedel v Raath 1956 (2) SA 160 (E)
PRECEDENTS
Claim for restitution, alternatively, damages
1. On [date] at [place], the parties concluded an oral agreement in terms of which plaintiff sold to defendant a [description]
motor vehicle [registration number] for a purchase price of [amount].
2. It was a term of the agreement that the purchase price was to be paid on [date] and, should defendant fail to do so,
plaintiff would be entitled to cancel the contract without any prior demand.
3. Defendant failed to pay the purchase price on due date and has not paid it since.
4. In consequence, defendant is in breach of the agreement and plaintiff is entitled to cancel the agreement.
5. On [date] at [place], plaintiff informed defendant that he terminated the agreement and demanded return of the motor
vehicle. Defendant refuses to comply with the demand.
6. The value of the motor vehicle is [amount].
The plaintiff claims an order for the return to plaintiff of motor vehicle [description]; alternatively, for an order for the payment
of [amount].
Claim for declaratory order
1. On [date], the parties concluded a written agreement of sale in terms of which plaintiff sold to defendant a dwelling house
situated at [address]. A copy of the agreement is attached hereto and marked 'A'.
2. In terms of [clause], plaintiff was entitled to cancel the agreement in the event of defendant's breach of any term of the
agreement.
3. Defendant breached the agreement in the following respects: [detail].
4. Plaintiff gave defendant due notice as required by [clause] but, even though [days] have elapsed since the notice,
defendant has failed to rectify defendant's breach.
5. In the premises, plaintiff was entitled to cancel the agreement, which he did by notice to defendant dated [date];
alternatively, plaintiff hereby cancels the agreement.
The plaintiff claims an order declaring the agreement, Annexure 'A', to have been validly cancelled.
Contract: Conclusion and terms
Parties: Any pleading must identify and cite the parties to the contract relied on.
[Page 105]
Representation: Pleadings must state whether the contract was concluded by the parties themselves or by agents
acting on their behalf. The identity of any agent or representative must be stated.
Uniform rule 18(6)
See AGENCY
Place: The place where the contract was concluded must be stated.
Uniform rule 18(6)
Date: The date when the contract was concluded is required.
Uniform rule 18(6)
Jurisdiction: An action on contract may be instituted within the jurisdiction where the defendant resides or is. It
may also be instituted where the contractual cause arose.
A contractual cause arises where (a) the contract was entered into; (b) the contract is or was to be performed,
wholly or in part; or (c) the breach of contract upon which the plaintiff relies was committed.
The plaintiff therefore has the choice of instituting action in any of these places.
Superior Courts Act 10 of 2013s 21
See JURISDICTION
Hugo v Wessels 1987 (3) SA 837 (A)
Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A)
Offer and acceptance: A contract is the result of the acceptance of an offer, but it is generally unnecessary to plead
the offer and its acceptance, and it may suffice to plead the conclusion of the contract. It may be necessary,
however, to plead the offer and its acceptance when they are contained in different documents or when they may
be a matter of dispute.
CGEE Alsthom Equipments et Enterprises Electriques v GKN Sankey (Pty) Ltd [ 1 9 8 7 ] 3 A l l S A 6 1 9 ( A ) ,
1987 (1) SA 81 (A) p. 90
If reliance is placed on a tacit acceptance of an offer, it is necessary to allege the acceptance and the facts on which
the party relies to substantiate that allegation.
Clegg v Groenewald 1970 (3) SA 90 (C)
Conditional acceptance amounts to rejection of the offer, and not to conclusion of a contract, but may be a counter
offer.
Command Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v South African Post Office Limited [2013] 1 All
SA 266 (SCA), 2013 (2) SA 133 (SCA)
Formalities: If the type of contract requires compliance with statutory formalities, it must appear ex facie the
pleadings that those formalities have been complied with.
[I]n the absence of a statute which prescribes writing signed by the parties or their authorised representatives as
an essential requisite for the creation of a contractual obligation . . . an agreement between parties which satisfies
all the other requirements for contractual validity will be held not to have given rise to contractual obligations only if
there is a preexisting contract between the parties which prescribes compliance with a formality or formalities
before a binding contract can come into existence.
Pillay and another v Shaik and others [2009] 2 All SA 435 (SCA), 2009 (4) SA 74 (SCA) para. 50
Parties may also provide for their own formalities for concluding their contract. If those formalities are not followed,
no contract is formed. A condition that the effectiveness of an agreement depends on the execution of a written
document must be alleged and proved by the party relying on it.
Woods v Walters 1921 AD 303
Lambons (Edms) Bpk v BMW (SuidAfrika) (Edms) Bpk [1997] 3 All SA 327 (A), 1997 (4) SA 141 (A)
[Page 106]
Premier, Free State v Firechem Free State (Pty) Ltd [2000] 3 All SA 247 (A), 2000 (4) SA 413 (SCA)
Bosch Munitech (Pty) Ltd v Govan Mbeki Municipality [2015] 4 All SA 674 (GP)
Express contracts: When reliance is placed on an expressly concluded contract, it is unnecessary to state that the
contract is an express contract; in the absence of another allegation, the contract is assumed to be express.
Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A)
Uniform rule 18(6) requires that the relevant pleading must allege whether the contract relied on was written or
oral. If the contract was written, a true copy of the part of it on which reliance is placed must be annexed.
Vorster v Herselman [1982] 4 All SA 650 (O), 1982 (4) SA 857 (O)
When a plaintiff bases the cause of action on a document and annexes part of a document, the defendant is
entitled to assume that the plaintiff will rely on the annexed portion only.
Stern NO v Standard Trading Co Ltd [1955] 4 All SA 77 (A), 1955 (3) SA 423 (A) p. 429
The inability to attach a copy is not fatal as a point of pleading or of proving the contract and its terms by secondary
evidence.
ABSA Bank Ltd v Zalvest Twenty (Pty) Ltd 2014 (2) SA 119 (WCC)
Failure to attach a copy is not fatal to the process, because the other party may ask for a copy if required or utilise
rule 30.
Dass v Lowewest Trading (Pty) Ltd 2011 (1) SA 48 (KZD)
Tacit contracts: A party who intends to rely on a tacit contract must plead that the contract is tacit. In the absence
of such allegation, it will be assumed that the contract was expressly concluded.
EC Chenia and Sons CC v Lamé and Van Blerk [2006] ZASCA 10, 2006 (4) SA 574 (SCA) para. 8
When an express contract is alleged, the pleader may not lead evidence to prove a tacit contract.
Roos v Engineering Fabricators (Edms) Bpk [1974] 3 All SA 136 (A), 1974 (3) SA 545 (A)
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd [1998] 3 All SA 175 (A), 1998 (3) SA 938 (SCA)
One may plead a tacit contract as an alternative to an express contract.
It is necessary to allege and prove unequivocal conduct that establishes on a balance of probabilities that the
parties intended to, and did in fact, tacitly contract on the terms alleged. It must be proved that there was
agreement. In deciding whether a tacit contract was concluded, the law considers the conduct of both parties
objectively and the circumstances of the case generally.
Standard Bank of SA Ltd v Ocean Commodities Inc [1983] 1 All SA 145 (A), 1983 (1) SA 276 (A) p. 292
Mühlmann v Mühlmann [1984] 1 All SA 340 (A), 1984 (3) SA 102 (A) pp. 123124
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A)
To avoid absolution, the plaintiff must produce evidence of the parties' conduct that justifies a reasonable inference
that the parties intended to and did indeed contract on the terms alleged in other words, that there was in fact
consensus ad idem amongst the parties.
Gordon Lloyd Page & Associates v Rivera [2000] 4 All SA 241 (A), 2001 (1) SA 88 (SCA)
Starways Trading 21 CC v Pearl Island Trading 714 (Pty) Ltd [2017] 4 All SA 568 (WCC) para. 61
[Page 107]
A tacit contract may be inferred from the failure of a party to respond in circumstances that call for a response.
Benefit Cycle Works v Atmore 1927 TPD 524
McWilliams v First Consolidated Holdings (Pty) Ltd [1982] 1 All SA 245 (A), 1982 (2) SA 1 (A) p. 10
Agreement and contract: An agreement is not necessarily a contract. If there is doubt, the party relying on the
agreement must prove that the agreement was intended to be a contract that is, that the intention was to give
rise to legal relations.
Dilokong Chrome Mines (Edms) Bpk v DirekteurGeneraal, Departement van Handel & Nywerheid [1992] 2 All SA
209 (A), 1992 (4) SA 1 (A)
Government of the SelfGoverning Territory of KwaZulu v Mahlangu 1994 (1) SA 626 (T) p. 635
Novartis v Maphil [2015] 4 All SA 417 (SCA), 2016 (1) SA 518 (SCA)
Quasimutual consent: The doctrine of quasimutual assent is an application of the reliance theory in cases of
dissent. It enables the 'contract asserter' to contend that the 'contract denier' misled the asserter into the
reasonable belief that the denier had assented to the contractual terms.
Van Huyssteen NO and another v Mila Investment and Holding Company (Pty) Ltd [2017] ZASCA 84 para. 23
See MISTAKE
Reliance by a plaintiff on quasimutual consent to meet a defendant's denial that it is a party to a contract amounts
to confession and avoidance: the plaintiff concedes that, although it is unable to rely upon the signature to the
agreement as proof of real consensus, other facts justify the conclusion that the parties had reached consensus.
Those facts must be raised in a replication to apprise the defendant of the defence and to plead further to it, if
necessary.
Constantia Graswerke BK v Snyman 1996 (4) SA 117 (W) p. 124IJ
Vincorp (Pty) Ltd v Trust Hungary ZRT [2018] ZASCA 35 para. 32
Terms onus: A party alleging a contract must allege and prove the terms (express or tacit) of the agreement on
which reliance is placed.
McWilliams v First Consolidated Holdings (Pty) Ltd [1982] 1 All SA 245 (A), 1982 (2) SA 1 (A)
Badenhorst v Van Rensburg [1986] 4 All SA 417 (T), 1985 (2) SA 321 (T) p. 335
Eskom Holdings Ltd v Grundy 2018 (4) SA 242 (KZP)
Proof of the terms of the contract includes proof of the anterior question of whether the parties had the requisite
animus contrahendi.
Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd [2002] 3 All SA 369 (A), 2002 (4) SA 681 (SCA) para. 33
In the case of a written contract, the plaintiff must prove that the defendant agreed to its final form, and, if the
plaintiff relies on the defendant's signature, the plaintiff must prove that both parties signed the document in its
completed form.
Da Silva v Janowski [1982] 1 All SA 43 (A), 1982 (3) SA 205 (A)
The onus of proving the terms of the agreement may involve the proof of a negative for example, that the parties
did not agree on an additional term alleged by the defendant.
Kriegler v Minitzer [1949] 4 All SA 498 (A), 1949 (4) SA 821 (A)
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk [1976] 4 All SA 58 (A), 1976 (3) SA 470 (A)
The rule applies when the defendant alleges that a naturalia of the type of contract concluded was varied by
agreement when the contract was entered into. The plaintiff must prove the negative.
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A)
[Page 108]
Robin v Guarantee Life Assurance Co Ltd [1984] 2 All SA 422 (A), 1984 (4) SA 558 (A) p. 567
Tacit terms: An implied term arises by operation of law, whilst a tacit term is an unexpressed provision of the
contract, derived from the common intention of the parties. This intention is inferred from the express terms of the
contract and from the surrounding circumstances.
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration [1974] 3 All SA 497 (A), 1974 (3) SA 506 (A)
Delfs v Kuehne & Nagel (Pty) Ltd [1990] 2 All SA 5 (A), 1990 (1) SA 822 (A)
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration [1977] 4 All SA 262 (T), 1977 (4) SA 310 (T)
p. 327
A tacit term may be actual or imputed. It is an actual term if both parties thought about a pertinent matter but did
not bother to express their agreement on the point. The term is imputed if the parties would have agreed on such a
matter if only they had thought about it 'which they did not do because they overlooked a present fact or failed to
anticipate a future one'.
Wilkins v Voges [1994] 2 All SA 349 (A), 1994 (3) SA 130 (A)
It is not competent for court to import a term based on ubuntu or bona fides but not intended by the parties.
Roazar CC v Falls Supermarket CC 2018 (3) SA 76 (SCA)
A party intending to rely on a tacit term may have to disprove the allegation that an express agreement was
reached on the aspect covered by the alleged tacit term.
Nel v Nelspruit Motors (Edms) Bpk [1961] 2 All SA 60 (A), 1961 (1) SA 582 (A)
HamiltonBrowning v Denis Barker Trust [2001] 1 All SA 618 (N), 2001 (4) SA 1131 (N)
A party seeking to place a construction on a document that differs from the document's prima facie meaning must
plead the admissible circumstances relied on for this construction.
Société Commerciale de Moteurs v Ackermann [1981] 2 All SA 230 (A), 1981 (3) SA 422 (A)
It is not necessary, however, to plead reliance on the matrix of the contract when the meaning of the document is
uncertain or ambiguous or when the other party contends that the document bears a meaning other than its prima
facie meaning. The court must be satisfied that there is uncertainty about or ambiguity in the proper construction of
the contract.
Dorman Long Swan Hunter (Pty) Ltd v Karibib Visserye Ltd [1984] 3 All SA 542 (C), 1984 (2) SA 462 (C) p. 476
These authorities did not refer to Uniform rule 18(7), which states that it is not necessary to state the
circumstances from which an implied term may be inferred. The rule relates presumably not to 'implied' but 'tacit'
terms.
But see Bezuidenhout v Otto 1996 (3) SA 339 (W) p. 343
At the exception stage the test is whether the tacit term could reasonably be implied.
Lanificio Varam SA v Masurel Fils (Pty) Ltd [1952] 4 All SA 329 (A), 1952 (4) SA 655 (A) p. 660
Pete's Warehousing and Sales CC v Bowsink Investments CC [2000] 2 All SA 266 (E), 2000 (3) SA 833 (E)
A tacit term may not be read into a unilateral document (such as an offer) unless surrounding circumstances are
pleaded and proved.
Multilateral Motor Vehicle Accidents Fund v Thabede [1994] 2 All SA 207 (N), 1994 (2) SA 610 (N)
If a contract required a close working relationship between the parties, commercial reality would suggest an
intention not to be bound in perpetuity. In such cases a tacit term allowing for termination on reasonable notice
would be imported in the interests of commercial efficacy.
[Page 109]
Cell C (Pty) Ltd v Zulu [2006] 4 All SA 417 (SCA), 2008 (1) SA 451 (SCA)
Plaaskem (Pty) Ltd v Nippon Africa Chemicals (Pty) Ltd [2014] 4 All SA 12 (SCA), 2014 (5) SA 287 (SCA)
Implied terms: A party who intends to rely on a term implied by law must plead the implied term since the relief
sought will depend on it. However, it is not necessary to allege facts giving rise to the term, because it is a question
of law whether the term is to be implied.
Sishen Hotel (Edms) Bpk v SA Yster & Staal Industriële Korp Bpk 1987 (2) SA 932 (A) pp. 948949
Exemption clauses: Exemption clauses are not construed in a manner different from that applied to other
provisions. However, courts are, or should be, wary of contractual exclusions because they deprive parties of rights
they would otherwise have had at common law. The fact that an exclusion clause limits or ousts commonlaw rights
should make a court consider with great care the meaning of the clause, especially if it is very general in its
application.
Durban's Water Wonderland (Pty) Ltd v Botha [1999] 1 All SA 411 (A), 1999 (1) SA 982 (SCA)
Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA), 2002 (6) SA 453 (SCA)
Parol evidence: Terms which in terms of the parol evidence rule cannot be proved may not be pleaded unless
rectification of the contract is sought.
Thiart v Kraukamp [1967] 3 All SA 236 (T), 1967 (3) SA 219 (T)
Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (A), 2000 (1) SA 268 (A)
Interpretation: If a document was intended to provide a complete memorial of a jural act, extrinsic evidence may
not contradict, add to or modify its meaning (the integration or parol evidence rule).
KPMG Chartered Accountants v Securefin Ltd [2009] 2 All SA 523 (SCA), 2009 (4) SA 399 (SCA)
Afgri Corporation Limited v Eloff and another [2016] ZASCA 141
Interpretation is a matter of law and not of fact; it is accordingly a matter for the court and not for witnesses.
The rules concerning admissibility of evidence are the same, irrespective of the nature of the document (whether
the document be a statute, contract, will or patent).
To the extent that evidence may be admissible to contextualise the document (since 'context is everything'), to
establish its factual matrix or purpose or for the purposes of identification, it must be used as conservatively as
possible. There is no merit in trying to distinguish between 'background circumstances' and 'surrounding
circumstances'.
Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] 2 All SA 262 (SCA), 2012 (4) SA 593 (SCA)
Novartis v Maphil [2015] 4 All SA 417 (SCA), 2016 (1) SA 518 (SCA)
Wood v Capita Insurance Services Ltd [2017] UKSC 24 paras 815
Unfair, unreasonable or unjust contract terms: Contracts and terms of a contract that are contra bonos mores
(contrary to public policy) are void.
Barkhuizen v Napier 2007 (7) BCLR 691 (CC), 2007 (5) SA 323 (CC)
2010 (4) SA 468 (SCA)
[Page 110]
The Consumer Protection Act deals extensively with this subject in relation to agreements covered by that Act.
See CONSUMER PROTECTION
The exceptio doli generalis cannot be used to regulate contractual relationships because one party drove a hard or
harsh bargain. Other contractual remedies should be used.
Bank of Lisbon & SA Ltd v De Ornelas [1988] 2 All SA 393 (A), 1988 (3) SA 580 (A)
2010 (4) SA 468 (SCA) paras 3235
Vagueness: Vagueness usually involves questions of interpretation and, as such, does not concern questions of
evidence or onus. For the approach to vagueness of contracts, see
Namibian Minerals Corporation v Benguela Concessions Ltd [1997] 1 All SA 191 (A), 1997 (2) SA 548 (A)
De Beer v Keyser [2002] 1 All SA 368 (A), 2002 (1) SA 827 (SCA)
Body Corporate of Fish Eagle v Group Twelve Investments (Pty) Ltd 2003 (5) SA 414 (W)
Loggenberg and others v Maree [2018] ZASCA 24 para. 23
PRECEDENTS
Claim based on an oral contract
1. At [place] on [date], plaintiff and defendant concluded an oral contract.
2. Plaintiff acted personally, and defendant was represented by his salesman [name].
3. In terms of the contract:
(a) defendant sold to plaintiff a motor vehicle [description];
(b) the price was [amount];
(c) delivery had to take place on [date].
4. It was an express, alternatively implied, term that the vehicle would be free from latent defects.
Plea to the claim
It was an express term of the contract that the motor vehicle is sold 'voetstoots'.
Claim based on a tacit term
1. Plaintiff is a garage owner.
2. On [date] at [place], plaintiff and defendant concluded an oral contract.
3. The parties acted personally.
4. In terms of the contract, plaintiff undertook to repair the exhaust system of defendant's motor vehicle [description].
5. It was a tacit term of the agreement that defendant would remunerate plaintiff for the work done at plaintiff's usual and
customary rate.
6. Plaintiff repaired the exhaust system in terms of the agreement.
7. Plaintiff's usual and customary rate is [amount].
Plea to the foregoing
Defendant pleads that it was an express term of the agreement that plaintiff would repair the exhaust system free of charge
[or] for a sum not exceeding [amount].
Claim alleging a tacit contract
1. On [date], plaintiff and defendant became the coowners of the farm [name] as a result of the bequest of the late
[name].
[Page 111]
2. Shortly thereafter plaintiff and defendant occupied the farm and began to utilise it jointly.
3. The parties shared the farming expenses and income equally during [state period].
4. Because of the foregoing, a tacit partnership agreement came into existence on or about [date] between plaintiff and
defendant with the following material terms:
(a) the parties were to be partners in the farming venture on [name of farm];
(b) each partner would contribute equally to the farming expenses;
(c) each party would be entitled to an equal share of the profits;
(d) the partnership could be terminated by reasonable notice.
Claim alleging a written contract
1. On [date] at [place], plaintiff and defendant concluded a written contract.
2. A copy of the contract is annexed.
3. Plaintiff was represented by [name] and defendant was represented by [name].
4. The terms of the contract material to this action are [set out].
Claim based on contract by correspondence
1. On [date] at [place], plaintiff addressed to defendant an offer to purchase from defendant [item] for [amount]. A copy of
the offer is annexed hereto and marked 'A'.
2. On [date] at [place], defendant accepted the offer in writing by sending by post to plaintiff the letter annexed hereto and
marked 'B'.
3. Therefore, a written contract was entered between the parties on [date] at [place] having the following material terms:
[detail].
Contract: Conditions
Related subjects: CONTRACT: CONCLUSION AND TERMS; INSURANCE
Leading cases:
Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd [1963] 2 All SA 45 (A), 1963 (1) SA 632 (A)
Design & Planning Service v Kruger [1974] 2 All SA 55 (T), 1974 (1) SA 689 (T)
Van Reenen Steel (Pty) Ltd v Smith NO [2002] JOL 9515 (A), [2002] ZASCA 12, 2002 (4) SA 264 (SCA)
Diggers Development (Pty) Ltd v City of Matlosana and another [2012] 1 All SA 428 (SCA)
Conditions and terms: A condition is an external fact on which the existence of an obligation or juristic act depends.
A term of a contract, on the other hand, does not relate to the existence of the obligation but to its nature.
Premier, Free State v Firechem Free State (Pty) Ltd [2000] 3 All SA 247 (A), 2000 (4) SA 413 (SCA)
Van Wyk v Botha [2005] 2 All SA 320 (C)
Parsons Transport (Pty) Ltd v Global Insurance Co Ltd [2005] ZASCA 95, 2006 (1) SA 488 (SCA)
The distinction between a condition and a term of a contract has important practical implications relating to the onus
of proof. The fulfilment of a condition must be alleged and proved by the party relying on the contract, whereas a
breach of a term in a contract must be alleged and proved by the person relying on the breach.
Kate's Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd [1997] 4 All SA 185 ( A ) ,
1998 (1) SA 235 (SCA)
[Page 112]
The fact that a 'term' is called a 'condition' does not mean that it is a true condition.
Webb v Davis NO [1998] 2 All SA 584 (SCA), 1998 (2) SA 975 (SCA)
Southern Era Resources Ltd v Farndell NO [2010] 2 All SA 350 (SCA), 2010 (4) SA 200 (SCA)
As to proof of a condition precedent as an exception to the parol evidence rule, see
Thiart v Kraukamp [1967] 3 All SA 236 (T), 1967 (3) SA 219 (T)
Conditions precedent: The term 'condition precedent' is used in different contexts to mean different things. It may
be a truly suspensive condition or a material term (i.e. a term the breach of which entitles a party to cancel the
contract).
The term is also used in the context of the exceptio non adimpleti contractus.
Suspensive conditions: The conclusion of a contract subject to a suspensive condition creates a real and definite
contractual relationship between the parties. The exigible content of the contract is suspended, pending fulfilment
of the suspensive condition. The contract comes into full force and effect and is enforceable in accordance with its
terms when the condition is fulfilled. A party cannot enforce any rights arising from the agreement until the condition
has been fulfilled.
Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd [1978] 3 All SA 406 (A), 1978 (2) SA 872 (A)
First National Bank of SA Ltd v Lynn NO [1996] 1 All SA 229 (A), 1996 (2) SA 339 (A)
Mia v Verimark Holdings (Pty) Ltd [2009] ZASCA 99, [2010] 1 All SA 280 (SCA)
Diggers Development (Pty) Ltd v City of Matlosana and another [2012] 1 All SA 428 (SCA)
A party may not be compelled to fulfil a suspensive condition. If the condition is not fulfilled, the intended contractual
consequences fall away and no claim for damages flows from the contract's failure.
As indicated, a party wishing to rely on the contract must allege and prove the fulfilment of the suspensive
condition.
Red Dunes of Africa v Masingita Property Investment Holdings [2015] ZASCA 99
Fulfilment of a suspensive condition after the passing of a reasonable time, or after the time limit imposed, does not
give rise to a binding obligation.
Dirk Fourie Trust v Gerber [1986] 2 All SA 77 (A), 1986 (1) SA 763 (A)
Melamed v BP Southern Africa (Pty) Ltd [2000] 1 All SA 342 (W), 2000 (2) SA 614 (W)
Abrinah 7804 (Pty) Ltd v Kapa Koni Investments CC 2018 (3) SA 108 (NCK)
Resolutive conditions: Fulfilment of a resolutive condition terminates an existing obligation. A party wishing to rely
on termination must allege and prove fulfilment of the condition.
Suppositions or assumptions: A condition relating to a past or present fact does not defer an obligation. The
obligation was either in existence or it never came into being.
Fourie v CDMO Homes (Pty) Ltd [1982] 1 All SA 81 (A), 1982 (1) SA 21 (A)
An incorrect unilateral assumption relating to a past or present fact amounts to a unilateral mistake, which does not
affect the validity of the contract. A common assumption, unless elevated to a term of the agreement, likewise does
not affect the validity of the contract.
Transnet Ltd v Rubenstein [2005] 3 All SA 425 (SCA), 2006 (1) SA 591 (SCA)
See MISTAKE
[Page 113]
Onus: A proper setting out of the cause of action requires an averment of the fulfilment of any conditions that are
prerequisites for the coming into existence of the obligation or for its enforceability. In other words, a litigant relying
on a contract which is subject to a such a condition must plead and prove fulfilment of the condition.
Kate's Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd [1997] 4 All SA 185 ( A ) ,
1998 (1) SA 235 (SCA)
A qualification which operates by way of a release or discharge must be alleged and proved by the party relying on
the release or discharge.
United Canners Ltd v Deepfreezing & Preserving (Pty) Ltd; Standard Canners & Packers Ltd v Deepfreezing &
Preserving (Pty) Ltd 1960 (1) SA 852 (C) p. 859
Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A), 1997 (2) SA 337 (SCA)
Fictional fulfilment: When a party to a contract prevents fulfilment of a condition, upon the fulfilment of which that
party would become bound, with the intention of frustrating such fulfilment, the unfulfilled condition will be deemed
to have been fulfilled.
Scott v Poupard [1971] 2 All SA 539 (A), 1971 (2) SA 373 (A)
Venter Agentskappe (Edms) Bpk v De Sousa 1990 (3) SA 103 (A)
A party relying on fictional fulfilment must allege and prove
(a) nonfulfilment of the condition; and
(b) that the breach of duty by the defendant was committed with the intention of frustrating fulfilment of the
condition.
The doctrine focuses on intention rather than motive, and negligence does not suffice.
Whyte v Da Costa Couto 1985 (4) SA 672 (A) p. 680
Lekup Prop Co No 4 (Pty) Ltd v Wright [2012] 4 All SA 136 (SCA), 2012 (5) SA 246 (SCA)
The defendant may, in defence, rely on the absence of a causal link between the breach of duty and the non
fulfilment of the condition. The onus rests apparently on the defendant.
Thanolda Estates (Pty) Ltd v Bouleigh 145 (Pty) Ltd [2001] 1 All SA 141 (W), 2001 (3) SA 196 (W)
Waiver: A party in whose exclusive favour a suspensive condition exists may waive the condition's fulfilment before
the agreed cutoff date in which case, the condition is deemed to be fulfilled. Once the agreement has lapsed, a
unilateral waiver cannot reinstate it.
Van Jaarsveld v Coetzee [1973] 3 All SA 285 (A), 1973 (3) SA 241 (A)
TransNatal Steenkoolkorporasie Bpk v Lombaard [1988] 2 All SA 475 (A), 1988 (3) SA 625 (A) p. 640
The ordinary rules relating to proof of a waiver apply.
See WAIVER
Demand as condition precedent: A demand is not a condition precedent to a right of action, unless there is a term
to the contrary or a demand is necessary to create a right of cancellation. The absence of a demand may affect
costs.
Standard Finance Corp of SA Ltd (in liq) v Langeberg Koöperasie Bpk [1967] 4 All SA 387 (A), 1967 (4) SA 686 (A)
PRECEDENTS
Claim alleging fulfilment of a suspensive condition
1. On [date] at [place], plaintiff and defendant concluded a written contract. A copy is annexed hereto.
[Page 114]
2. In terms of the contract, plaintiff purchased from defendant [detail].
3. The agreement was subject to the suspensive condition that the master of the high court would consent to the agreement
on or before [date].
4. The master consented to the agreement on [date]. A copy of the master's consent is annexed hereto.
5. Despite the foregoing, defendant refuses to deliver [specify] to plaintiff.
Claim alleging fictitious fulfilment
4. It was a tacit term of the agreement that defendant would apply within a reasonable time to the master for consent and
that defendant would endeavour to obtain the master's consent.
5. With the intention of frustrating fulfilment of the suspensive condition, defendant failed to make any application to the
master.
6. The suspensive condition is, therefore, deemed to be fulfilled on [date].
7. Despite demand, defendant refuses to comply with his obligations in terms of the agreement.
Plea relating to a resolutive condition
1. and 2. [As before.]
3. The agreement was subject to the resolutive condition that, should the master not consent to the agreement within the
period of [state period], the contract would lapse.
4. The master did not consent to the agreement within the agreed time.
5. The agreement has, therefore, lapsed and is of no further force and effect.
Plea based on a supposition
3. The agreement was subject to the condition that the property sold had rights to water [detail] from the [name] river.
4. The property did not have the supposed water rights.
5. Defendant therefore denies that the agreement created any valid obligations.
Contract: Damages
Related subjects: CONTRACT: CANCELLATION; CONVENTIONAL PENALTIES
Onus: A party wishing to claim damages resulting from a breach of contract must allege and prove
(a) the contract;
(b) breach of the contract;
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration [1977] 4 All SA 262 (T), 1977 (4) SA 310 (T)
p. 348
Birkenruth Estates (Pty) Ltd v Unitrans Motors (Pty) Ltd [2005] 3 All SA 128 (W), 2005 (3) SA 54 (W)
Novick v Benjamin [1972] 2 All SA 510 (A), 1972 (2) SA 842 (A)
(c) damages;
(A)
Combined Business Solutions CC v Courier and Freight Group (Pty) Ltd t/a XPS [2011] 1 All SA 10 (SCA)
[Page 115]
(d) a causal link between the breach and damages;
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A), 1977 (3) SA 670 (A) p. 687
Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards Inc [1998] 4 All SA 281 (A), 1998 (4) SA 1182 (SCA)
Sandlundlu (Pty) Ltd v Shepstone and Wylie Incorporated [2011] 3 All SA 183 (SCA)
(e) that the loss was not too remote (this depends on whether the damages are general (or intrinsic) or special
(or extrinsic)).
Cancellation and damages: Damages for breach of contract may be claimed without cancelling the contract.
Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC [1997] 3 All SA 451 (C), 1998 (2) SA 468 (C)
Date of calculation: Damages are usually, but not always, assessed as at the date of the breach.
Rens v Coltman 1996 (1) SA 452 (A)
Mostert NO v Old Mutual Life Assurance Co (SA) Ltd [2001] 4 All SA 250 (A), 2001 (4) SA 159 (SCA) para. 76
Types of damages: There are three broad categories of damages, namely compensatory (positive interesse),
restitutional (negative interesse), and complementary (supplementing incomplete or defective performance).
Compensatory damages (positive interesse) : The basic principle in the case of breach of contract is that the
sufferer should be placed in the position in which he or she would have been had the contract been performed
properly, so far as this can be done by the payment of money and without undue hardship to the defaulting party.
Van Immerzeel & Pohl v Samancor Ltd [2001] 2 All SA 235 (A), 2001 (2) SA 90 (SCA)
Combined Business Solutions CC v Courier and Freight Group (Pty) Ltd t/a XPS [2011] 1 All SA 10 (SCA)
Thus, in the case of a breach by a seller, the purchaser's damages are usually the difference between the contract
price and the market value at the time and place fixed for delivery.
Scheibert v Allen [2016] ZASCA 126
Restitutional damages (negative interesse): The general rule about positive damages does not necessarily apply
when restitutional damages are claimed as would the case be when the contract was cancelled. In such an event, a
negative interesse may be claimed that is, the plaintiff may claim to be placed in the position in which the plaintiff
would have been had no contract been concluded.
Probert v Baker [1983] 2 All SA 199 (D), 1983 (3) SA 229 (D)
Baker v Probert [1985] 2 All SA 263 (A), 1985 (3) SA 429 (A)
Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC [1997] 3 All SA 451 (C), 1998 (2) SA 468 (C)
Masters v Thalia Thain t/a Inhaca Safaris [1999] 4 All SA 618 (W), 2000 (1) SA 467 (W)
Erf 1026 Tygerberg CC T/A Aspen Promotions SA v Pick 'n Pay Retailers (Pty) Ltd 2005 (6) SA 527 (C)
Emadyl Industries CC t/a Raydon Industries v Formex Engineering 2012 (4) SA 29 (ECP)
Calculating damages: When there are several ways in which a defendant might have performed the contractual
obligation, damages for a breach are to be assessed on the [Page 116] assumption that the defendant would have
performed its obligation in the way least profitable to the plaintiff and most beneficial to the defendant.
Bellairs v Hodnett 1978 (1) SA 1109 (A) p. 1140
When a party seeks to employ a special method of calculating damages, the onus rests on that party to satisfy the
court that the chosen method is the appropriate one in the circumstances of the case.
Katzenellenbogen Ltd v Mullin [1977] 4 All SA 818 (A), 1977 (4) SA 855 (A)
If a contract provides for a method for determining damages, that method must be used, subject to the
Conventional Penalties Act 15 of 1962.
Mufamadi v Dorbyl Finance (Pty) Ltd 1996 (1) SA 799 (A)
Citibank NA, SA Branch v Paul NO [2003] 2 All SA 484 (T), 2003 (4) SA 180 (T)
Remoteness of damages: Damages that are too remote from the breach cannot be claimed. To determine
remoteness, a distinction is drawn between general (intrinsic) damages and special (extrinsic) damages.
Damages that flow naturally and generally from the kind of breach of contract in question are called general or
intrinsic damages. The law presumes that because these damages were contemplated by the parties as a probable
result of a breach they are not too remote.
If the damages are not general, they may still be recovered as special damages (i.e. as not being too remote) if, in
the special circumstances attending the conclusion of the contract, the parties presumptively contemplated that
such damages would probably result from a breach.
Shatz Investments (Pty) Ltd v Kalovyrnas [1976] 3 All SA 71 (A), 1976 (2) SA 545 (A)
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A), 1977 (3) SA 670 (A)
(SCA)
Apportionment: The Apportionment of Damages Act 34 of 1956 does not apply to an action based on breach of
contract except in the case of auditors.
Price Waterhouse Meyernel v Thoroughbred Breeders' Association of SA [ 2 0 0 2 ] 4 A l l S A 7 2 3 ( S C A ) ,
2003 (3) SA 54 (SCA)
See ACCOUNTANTS AND AUDITORS
Iniuria : Concerning damages for an injurious breach of contract, see

INIURIA
Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours [1998] 3 All SA 57 (W), 1998 (4) SA 802 (W)
Contractual defences: A defendant who is prima facie liable for damages resulting from a breach of the contract and
wishes to rely on a contractual provision exonerating the defendant from liability is, in effect, confessing and
avoiding and bears the onus of establishing the defence.
Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd [1998] 4 All SA 117 (SCA), 1998 (4) SA 844 (SCA)
Counterclaim: A defendant who wishes to claim damages resulting from a breach of contract must raise the claim in
a counterclaim and not as a defence in the plea.
(A)
Mitigation of damages: The onus rests on the defendant to allege and prove that the plaintiff neglected to do what
a reasonable person would have done to mitigate damages. This means that the plaintiff must prove the loss on
the basis of the normal measure of damages and show what the proper measure is. Once the plaintiff has
discharged this onus, the defendant must prove that in the special circumstances of the case the plaintiff could
reasonably have resorted to some type of conduct which would have reduced [Page 117] the damages to an
amount below that produced by the normal measure or the alternative measure, which was shown by the plaintiff
to be prima facie applicable.
Desmond Isaacs Agencies (Pty) Ltd v Contemporary Displays [1971] 3 All SA 60 (T), 1971 (3) SA 286 (T) p. 290
Soar h/a Rebuilds for Africa v JC Motors [1992] 2 All SA 302 (A), 1992 (4) SA 127 (A) p. 135
Tender: Unless the claim for damages is for restitution, a tender by the claimant is not necessary.
Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd [1951] 1 All SA 106 (C), 1951 (1) SA 312 (C)
Baker v Probert [1985] 2 All SA 263 (A), 1985 (3) SA 429 (A)
PRECEDENTS
Claim for special damages
1. On [date] at [place], plaintiff and defendant concluded a verbal contract.
2. The material terms of the contract were:
(a) defendant would repair plaintiff's tractor;
(b) the repairs were to be done before [date];
(c) the repairs were to be done in a workmanlike and efficient manner;
(d) plaintiff would pay defendant [Rx].
3. In terms of the agreement:
(a) plaintiff handed the tractor to defendant for repairs on [date];
(b) defendant returned the tractor to plaintiff on [date];
(c) plaintiff paid defendant the sum of [Rx] on [date].
4. Defendant breached the contract by failing to repair the tractor in a workmanlike and efficient manner in that [detail].
5. Because of defendant's breach, plaintiff could not plough the fields in time for the planting season and consequently
plaintiff had no summer crop.
6. When the agreement was concluded, plaintiff and defendant were aware of the following facts, and the agreement was
entered into on the basis of these facts:
(a) plaintiff possessed the one tractor only;
(b) plaintiff required the tractor for ploughing the fields before [date];
(c) should the tractor not be repaired properly, plaintiff would be unable to plough timeously, would consequently
have no summer crop and would therefore suffer a loss of income from the farming venture.
7. Plaintiff's loss of income because of the failure of the summer crop was [amount], calculated as follows:
(a) estimated value of crop [detail];
(b) less production costs [detail].
[Based on North & Son (Pty) Ltd v Albertyn [1962] 1 All SA 176 (A), 1962 (2) SA 212 (A).]
Claim for natural damages
1. and 2. [As before].
3. In terms of the agreement, plaintiff handed the tractor to defendant to effect the repairs on [date].
4. Defendant failed to effect the repairs in time or at all and returned the tractor to plaintiff on [date] in its original state.
[Page 118]
5. Plaintiff had the tractor repaired by [name] and the reasonable cost of repairs was [Ry].
6. Plaintiff therefore suffered damages in the sum of [Rx Ry].
Claim for damages coupled with cancellation
1. to 6. [As before].
7. Defendant's return of the tractor to plaintiff was a repudiation of the agreement.
8. Plaintiff elected to accept the repudiation and informed defendant of the election to terminate the contract on [date] at
[place] by [method of notification].
Claim for damages based on negative interest
[From Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC [1997] 3 All SA 451 (C), 1998 (2) SA 468 (C).]
1. Plaintiff sues as the cessionary of the damages claimed against the defendants which previously vested in L.
2. On 21 April 1994 and in Cape Town a written agreement was concluded by L and defendants in terms whereof first
defendant sold to L all the issued shares in plaintiff and in I Eiendomme (Pty) Ltd ('Eiendomme').
3. In terms of the agreement, the price payable by L for the shares was R8 568 494, which was duly paid by L on or about 3
May 1994 to and on behalf of first defendant.
4. Pursuant to the fulfilment of the conditions set out in the agreement, L made certain restraint payments totalling
R550 000 to or for the benefit of managers employed by plaintiff.
5. A profit forecast of the M Group was annexed to the agreement. The agreement incorporated a warranty by first
defendant that the profit forecast had been prepared in good faith by second defendant, considering all relevant factors
of which he was aware and stating that the said profit forecast contained no material inaccuracies or omissions.
6. First defendant breached the said warranty, because the said profit forecast was not prepared by the defendants in good
faith and/or omitted relevant factors of which the defendants were aware and/or contained material inaccuracies and
omissions.
7. If first defendant had not breached the said warranty, L would not have concluded the agreement.
8. In consequence of concluding the agreement, L made the payments referred to in paragraphs 3 and 4 above and
incurred legal and professional costs amounting to R167 340.
9. The shares sold to L in Eiendomme are worthless and the business which was owned and operated by plaintiff at the time
of the conclusion of the agreement has since the conclusion of the agreement operated at a substantial loss and would
have collapsed and gone into liquidation in consequence of such losses but for the financial support received by plaintiff
from L since the conclusion of the agreement.
10. The reason why L had provided the financial support to plaintiff was because it would have been extremely damaging to
L's reputation and goodwill if it were to have permitted plaintiff, as its wholly owned subsidiary, to have collapsed and to
have gone into liquidation.
11. An amount of at least R6,2 million of such financial support has become permanently irrecoverable from the business
owned and operated by plaintiff at the time of the conclusion of the agreement.
12. In the premises, L suffered damages amounting to R15 485 835 (being the total of the amounts referred to in paragraphs
8 and 11 above) in consequence of first defendant's breach of warranty.
Contract: Illegal contracts
General: A contract may be illegal if it is contra bonos mores or by common law or statute law. An illegal contract
must be distinguished from (a) a contract that is invalid because of noncompliance with statutory formalities and
(b) an unenforceable contract.
[Page 119]
If the cause of nullity is to be found in the transaction's form (i.e. failure to observe a legal requirement which must
be reflected in the document), the document itself is decisive of whether the requirement was met.
Spiller v Lawrence [1976] 1 All SA 553 (N), 1976 (1) SA 307 (N)
Intercontinental Exports (Pty) Ltd v Fowles [1999] 2 All SA 304 (A), 1999 (2) SA 1045 (SCA)
The fact that a contract may be performed in a manner contrary to law does not necessarily render it illegal. There is
a presumption that the parties intend to act lawfully. A contract that may be performed in two ways one lawful,
the other unlawful will not be void except on proof that it was intended to be performed in the illegal way.
Juglal NO v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division [2004] 2 All SA 268 (SCA), 2004 (5) SA 248
(SCA)
Wypkema v Lubbe [2007] 4 All SA 1224 (SCA), 2007 (5) SA 138 (SCA)
Contra bonos mores : A contract (or a term of a contract) is illegal if it is against public policy or good morals.

Sasfin (Pty) Ltd v Beukes [1989] 1 All SA 347 (A), 1989 (1) SA 1 (A)
De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A), 2001 (3) SA 537 (SCA)
2010 (4) SA 468 (SCA)
In its modern guise, public policy is rooted in the Constitution and in the fundamental values enshrined therein.
Brisley v Drotsky [2002] 3 All SA 363 (SCA), 2002 (4) SA 1 (SCA)
Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA), 2002 (6) SA 21 (SCA) para. 18
Price Waterhouse Coopers Inc v National Potato Coop Ltd [2004] 3 All SA 20 (SCA), 2004 (6) SA 66 (SCA)
Barkhuizen v Napier 2007 (7) BCLR 691 (CC), 2007 (5) SA 323 (CC)
2010 (4) SA 468 (SCA)
Mohamed's Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd 2018 (2) SA 314 (SCA)
Contrary to law: A contract prohibited by common law or by statute (unless a contrary intention appears from the
statute) is illegal. The statutory prohibition may be express or implied.
Swart v Smuts [1971] 2 All SA 153 (A), 1971 (1) SA 819 (A)
Oilwell (Pty) Ltd v Protec International Ltd and others [2011] ZASCA 29, 2011 (4) SA 394 (SCA)
Cool Ideas 1186 CC v Hubbard and another [2014] ZACC 16, 2014 (4) SA 474 (CC).
Wierda Road West Properties (Pty) Ltd v SizweNtsalubaGobodo Inc 2018 (3) SA 95 (SCA)
For a case of supervening illegality, see
Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG [1997] 1 All SA 11 (A), 1996 (4) SA 1190 (A) p. 1205
Effect: An illegal contract is unenforceable (ex turpi causa non oritur actio). This rule is absolute and has no
exceptions, even when there has been part performance.
Jajbhay v Cassim 1939 AD 537
ABSA Insurance Brokers (Pty) Ltd v Luttig NO [1997] 3 All SA 267 (A), 1997 (4) SA 229 (SCA)
Klokow v Sullivan [2005] ZASCA 99, 2006 (1) SA 259 (SCA)
Chevron SA (Pty) Ltd v Wilson t/a Wilson's Transport and others 2015 (10) BCLR 1158 (CC) paras 2527
Panamo Properties (Pty) Ltd and another v Nel NO and others 2015 (5) SA 63 (SCA), [2015] 3 All SA 274 (SCA)
[Page 120]
Cool Ideas 1186 CC v Hubbard and another 2014 (4) SA 474 (CC), 2014 (8) BCLR 869 (CC)
Estoppel: A void agreement cannot be enforced indirectly, not even by estoppel.
See ESTOPPEL
Pleading: A party wishing to rely on illegality must plead it. However, a court may raise the question of illegality
mero motu if the illegality appears ex facie the transaction or the surrounding circumstances, provided the court is
satisfied that all the evidence relating to the illegality was led.
F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk [1998] 4 All SA 480 (SCA),
1999 (1) SA 515 (SCA)
Bekker v OosVrystaat Kaap Koöperasie Bpk [2000] ZASCA 175, [2000] 3 All SA 301 (A)
Pratt v FirstRand Bank [2009] 1 All SA 158 (SCA), 2009 (2) SA 119 (SCA)
If reliance is placed on an illegality flowing from a provision of a statute, reference to the provision must be made in
the relevant pleading, or the pleading must be so formulated that it is sufficiently clear on which statutory provision
reliance is placed.
When the illegality does not appear ex facie the transaction but arises from surrounding circumstances, the
circumstances must be pleaded and the party relying on the facts must prove them.
Yannakou v Apollo Club [1974] 2 All SA 129 (A), 1974 (1) SA 614 (A) pp. 623624
Likewise, to the extent that evidence is admissible the onus rests on the party alleging that the contract is illegal
because it is contra bonos mores.
Diners Club SA (Pty) Ltd v Singh [2004] 3 All SA 568 (D), 2004 (3) SA 630 (D)
Condictio ob turpem vel iniustam causam (restitution): A party who has performed whether in whole or in part
in terms of an illegal contract may reclaim performance with the condictio ob turpem vel iniustam causam. The
central requirement of the condictio is that the amount claimed must have been transferred pursuant to an
agreement which is void and unenforceable because it is illegal (i.e. prohibited by law).
Afrisure v Watson [2009] 1 All SA 1 (SCA), 2009 (2) SA 127 (SCA)
The condictio is an enrichment claim and the plaintiff must allege and prove
(a) a transfer of property or payment of money to the defendant;
(b) that the transaction or its performance was illegal;
(c) that the defendant was unjustly enriched. This requirement will normally be satisfied if the defendant failed to
perform.
Albertyn v Kumalo 1946 WLD 529 p. 535
ABSA Bank Ltd v Lombard Insurance Company Limited; FirstRand Bank v Lombard Insurance Company Limited
[2012] 4 All SA 485 (SCA), 2012 (6) SA 569 (SCA)
Trustees of the Insolvent Estate of Whitehead v Dumas and another [2013] ZASCA 19, 2013 (3) SA 331 (SCA)
If the contract is invalid (but not illegal), the cause of action is the condictio indebiti.
See CONDICTIO INDEBITI
Par delictum : A claim for restitution may be resisted by relying on the par delictum rule (in pari delicto potior est

conditio possidentis). The defendant must allege and prove that the plaintiff was also in delicto that is, that the
plaintiff was a party to the illegality.
MCC Bazaar v Harris & Jones (Pty) Ltd [1954] 3 All SA 107 (T), 1954 (3) SA 158 (T)
Bhyat's Departmental Store (Pty) Ltd v Dorklerk Investments (Pty) Ltd 1975 (4) SA 881 (A)
[Page 121]
It is then for the plaintiff to allege and prove facts that will enable the court to come to the plaintiff's assistance on
grounds of justice and public policy by not enforcing the rule. Whether the par delictum rule should be relaxed
cannot be decided on the pleadings and must be decided at the end of the trial.
Jajbhay v Cassim 1939 AD 537
Kelly v Wright; Kelly v Kok [1948] 3 All SA 363 (A), 1948 (3) SA 522 (A)
Visser v Rousseau NO [1990] 1 All SA 409 (A), 1990 (1) SA 139 (A)
Klokow v Sullivan [2005] ZASCA 99, 2006 (1) SA 259 (SCA)
PRECEDENTS
Claim based on enrichment
1. On [date], the parties entered into a written agreement in terms of which defendant sold to plaintiff a house situated at
[address] for a sum of [amount]. A copy of the agreement is attached hereto and marked 'A'.
2. On [date], plaintiff paid a deposit of [amount] to defendant and took occupation of the house.
3. The agreement between the parties is illegal and is thus null and void in terms of [set out statutory provision].
4. At the time of entering into the agreement, neither party was aware of its illegal nature; alternatively, plaintiff was
unaware thereof.
5. On [date], plaintiff was obliged to vacate the premises in terms of a court order.
6. In the premises, defendant was enriched at plaintiff's expense in the sum of [amount], which amount defendant failed to
pay to plaintiff.
Plea of illegality
1. Defendant admits that the parties purported to conclude the agreement as alleged.
2. Defendant pleads, however, that the agreement is illegal and null and void for the following reasons: [detail]
3. Plaintiff's cause of action is for the enforcement of the purported agreement.
4. Defendant, therefore, denies that plaintiff is entitled to enforce the agreement.
Replication relaxation of par delictum rule
In the event of this court's finding that the contract [detail] concluded between plaintiff and defendant or that performance in
terms thereof is unenforceable by reason of a contravention of [statute], plaintiff alleges that:
1. At the time of entering into the contract, plaintiff was unaware of [statute] and of the possible illegality of the contract or
its performance;
2. The defendant has been enriched at the plaintiff's expense in the sum of [Rx] due to the plaintiff's performance in terms
of the allegedly void contract;
3. The contravention is of a technical nature and does not harm the public good;
4. The retention by the defendant of the money would be contrary to the interests of public policy and amount to a grave
injustice to the plaintiff.
The plaintiff persists in the claim.
Claim relaxation of par delictum rule
[From Henry v Branfield 1996 (1) SA 244 (D) pp. 251252.]
1. In the event of this Court finding that the contract concluded between the plaintiff, the defendant and P is unenforceable
by reason of:
(a) a contravention of the regulations promulgated under section 9 of the Currency and Exchanges Act 9 of 1933 and
published in Government Notice R1111 of 1 December 1961 (as amended); or
(b) a contravention of the exchange control laws of Zimbabwe,
[Page 122]
the plaintiff pleads that at the time of entering into the contract, the plaintiff was unaware of:
(i) the regulations promulgated under section 9 of the Currency and Exchanges Act 9 of 1933;
(ii) the exchange control laws of Zimbabwe, and that
(aa) there was no danger of the economic interests of the Republic of South Africa being prejudiced by the
contract and its performance;
(bb) such contravention is merely technical in nature;
2. In the premises, the defendant has been enriched at the plaintiff's expense in the sum of [Rx], which amount the
defendant has failed to pay to the plaintiff.
3. In consequence of the payment to the defendant, it would be in the interests of public policy, and prevent injustice to the
plaintiff, if this honourable Court were to uphold the plaintiff's claims.
Contract: Impossibility of performance
Initial impossibility: If, objectively speaking, performance of a contract has been impossible since inception, the
contract is void. The only relief available is a claim for restitution, probably by means of a condictio indebiti.
Peters Flamman & Co v Kokstad Municipality 1919 AD 427
Wilson v Smith [1956] 1 All SA 114 (W), 1956 (1) SA 393 (W)
Merrill Lynch SA (Pty) Ltd v Moosa [2003] 2 All SA 431 (C)
Supervening impossibility: If performance of a contract becomes impossible through no fault of the debtor, the
obligation is extinguished unless the contract stipulates that the debtor bears the risk of impossibility.
Oerlikon SA (Pty) Ltd v Johannesburg City Council [1970] 3 All SA 563 (A), 1970 (3) SA 579 (A) p. 585
Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG [1997] 1 All SA 11 (A), 1996 (4) SA 1190 (A) p. 1205
A debtor cannot rely on a supervening impossibility of performance that arose after the debtor fell in mora.
Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours [1998] 3 All SA 57 (W), 1998 (4) SA 802 (W)
A debtor may also not rely on the impossibility of performance if it was selfcreated.
King Sabata Dalindyebo Municipality v Landmark Mthatha (Pty) Ltd and another [2013] 3 All SA 251 (SCA)
Performance may be reclaimed by means of the condictio causa data causa non secuta or the condictio ob causam
finitam.
See CONDICTIO SINE CAUSA
Partial impossibility: The creditor has a choice between accepting partial or defective performance and cancelling
the contract.
Bedford v Uys [1971] 2 All SA 246 (C), 1971 (1) SA 549 (C)
Joubert v Bester [1977] 1 All SA 185 (T), 1977 (4) SA 560 (T)
[Page 123]
Temporary impossibility: Temporary impossibility does not automatically bring the contract to an end. Such
termination depends on factors such as the materiality of the term involved and whether final impossibility is
inevitable.
World Leisure Holidays (Pty) Ltd v Georges 2002 (5) SA 531 (W)
Fault: A debtor relying on impossibility of performance presumably bears the onus of alleging and proving that the
impossibility is not the debtor's fault.
Algoa Milling Co Ltd v Arkell & Douglas 1918 AD 145
Grobbelaar NO v Bosch [1964] 1 All SA 191 (E), 1964 (3) SA 687 (E)
PRECEDENTS
Claim
1. On [date] at [place], the parties concluded a written agreement of sale, a copy of which is attached and marked 'A', in
terms of which plaintiff sold to defendant one half of the farm [name], being agricultural land as defined by the
Subdivision of Agricultural Land Act 70 of 1970.*
2. The sale involved a subdivision of agricultural land within the meaning of Act 70 of 1970.
3. In terms of section 3 of Act 70 of 1970, agricultural land cannot be subdivided without the consent of the minister.
4. Due to no fault of plaintiff and after due application to the minister, consent to the subdivision was refused.
5. Performance in terms of the agreement has therefore become impossible, and the agreement has been terminated.
6. Prior to termination of the agreement, plaintiff gave possession of the farm to defendant in terms of the agreement.
7. Because of termination of the agreement, defendant is now obliged to vacate the farm.
The plaintiff claims an order for the eviction of defendant from the farm [name].
[See the Subdivision of Agricultural Land Act Repeal Act 64 of 1998, which at the time of writing had not been proclaimed.]
Footnotes
* This Act was amended by the KwaZulu Land Affairs Act 11 of 1992, with effect from 11 Sept. 1998, in so far as it relates
to KwaZulu.
Contract: Specific performance
Related subjects: CONTRACT: CONCLUSION AND TERMS; EXCEPTIO NON ADIMPLETI CONTRACTUS
Jurisdiction: Magistrates' courts have no jurisdiction in any matter in which specific performance is sought without
an alternative claim for the payment of damages. There are three exceptions:
(a) rendering of an account in respect of which the claim does not exceed in value the amount determined by the
Minister from time to time by notice in the Gazette;
(b) delivery or transfer of property, whether movable or immovable, which does not exceed in value the amount
determined by the Minister from time to time by notice in the Gazette; and
(c) delivery or transfer of property, whether movable or immovable, exceeding in value the amount determined by
the Minister from time to time by notice in the Gazette when the consent of the parties has been obtained.
Magistrates' Courts Act 32 of 1944s 46(2)(c)
The maximum amount applicable to (a) to (c) above is presently R200 000.
GN 217, Government Gazette 37477, 27 Mar. 2014: 'Determination of monetary jurisdiction for causes of action in
respect of courts for districts'
[Page 124]
In all other cases a party may not claim specific performance unless there is a claim in the alternative for damages
for an amount within the jurisdiction of the court.
Weepner v Kriel [1977] 4 All SA 589 (C), 1977 (4) SA 212 (C)
Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C)
Morettino v Italian Design Experience CC [2000] 4 All SA 158 (W)
Onus: A party wishing to claim specific performance in terms of a contract must allege and prove (a) the terms of
the contract and (b) compliance with any antecedent or reciprocal obligation, or must tender compliance.
SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle [ 1 9 5 5 ] 3 A l l S A 2 5 7 ( D ) ,
1955 (3) SA 541 (D)
RM van de Ghinste & Co (Pty) Ltd v Van de Ghinste [1980] 3 All SA 105 (C), 1980 (1) SA 250 (C)
Nkengana and another v Schnetler and another [2011] 1 All SA 272 (SCA)
The plaintiff must also allege nonperformance by the defendant. It will be for the defendant to allege and prove
performance.
Cf. PAYMENT
Specific performance and mora : If no time for performance is stipulated in a contract, the claim for performance

arises upon conclusion of the contract. A debtor may be sued for specific performance without being placed in mora.
Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited 2017 (12) BCLR 1562 (CC),
2018 (1) SA 94 (CC) para. 159
Discretion: A court will as far as possible give effect to a plaintiff's choice to claim specific performance, but it has
discretion in a fitting case to refuse specific performance and to leave it to the plaintiff to claim damages. The
discretion is exercised with reference to the facts as they exist when performance is claimed and not as they were
when the contract was concluded.
Haynes v King Williams Town Municipality [1950] 3 All SA 434 (A), 1951 (2) SA 371 (A)
Benson v SA Mutual Life Assurance Society [1986] 2 All SA 30 (A), 1986 (1) SA 776 (A)
Basson and others v Hanna [2017] 1 All SA 669 (SCA), 2017 (3) SA 22 (SCA)
The defendant must allege and prove facts on which the court can exercise its discretion in the defendant's favour.
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd [1982] 1 All SA 191 (A), 1982 (1) SA 398 (A)
Alternative claims: The plaintiff may claim specific performance and at the same time claim in the alternative for
(a) an order directing the sheriff to perform all acts necessary on behalf of the defendant (this relief is usually
sought in cases relating to the transfer of immovable property); or
(b) cancellation and damages on the assumption that the court may refuse specific performance or on the further
assumption that the defendant may fail to comply with the court order.
Bedford v Uys [1971] 2 All SA 246 (C), 1971 (1) SA 549 (C)
Culverwell v Brown [1990] 1 All SA 253 (A), 1990 (1) SA 7 (A)
Basson and others v Hanna [2017] 1 All SA 669 (SCA), 2017 (3) SA 22 (SCA) para. 27
A plaintiff is not obliged to follow this course and may institute a separate action when the defendant does not
comply with the court order.
FHP Management (Pty) Ltd v Theron NO [2003] 2 All SA 516 (C), 2004 (3) SA 392 (C)
The plaintiff may be entitled to claim in lieu of specific performance the objective value of the defendant's
performance.
Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D)
[Page 125]
Specific performance as an alternative: A plaintiff who has cancelled a contract but is uncertain about the validity of
the cancellation may, as an alternative and on a finding that the contract was not properly cancelled, claim specific
performance.
Jardin v Agrela 1952 (1) SA 256 (T)
Election: The plaintiff's election to cancel or not to cancel is final and the plaintiff may not claim relief inconsistent
with this election. It is for the defendant to allege and prove an election.
See WAIVER
PRECEDENTS
Claim for specific performance
1. On [date] at [place], the parties concluded a written agreement in terms of which plaintiff purchased from the defendant
a house situate at [address] for a purchase price of [amount] payable against transfer. A copy of the agreement is
attached and marked 'A'.
2. Plaintiff provided a guarantee for the payment of the purchase price as required by clause [specify] of Annexure 'A'.
3. Despite demand, defendant refuses to pass transfer to plaintiff.
(a) An order that defendant take all the necessary steps to pass transfer of the property to plaintiff.
(b) An order that, if defendant fails within 14 days of the court's order to take the necessary steps, the sheriff be authorised
to take such steps on defendant's behalf.
Contract for the benefit of third parties (stipulatio alteri)
Nature: A stipulatio alteri is a contract between two parties (say, A and B) designed to enable a third party (say, C)
to enter into a contractual relationship with B (the promissor). The contract between A and B obliges B to make an
offer to C. If C accepts B's offer, A drops out of the arrangement. A and B may not thereafter amend the contract.
Crookes NO v Watson [1956] 1 All SA 227 (A), 1956 (1) SA 277 (A) p. 291
Pieterse v Shrosbree and others; Shrosbree v Love and others [2006] 3 All SA 343 (SCA) para. 9
Oshry NO and another v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA)
A typical example is an inter vivos trust in respect of which A would be the donor, B the trustee and C the trust
beneficiary.
Potgieter v Potgieter NO 2012 (1) SA 637 (SCA)
Enforcement by beneficiary: If C wishes to enforce such a contract, C must allege and prove
(a) the contract between A and B;
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO [2001] 1 All SA 627 (W), 2001 (2) SA 182 (W)
(b) that the contract displayed a common intention that C, by accepting the benefit of the contract, would become
a party to the contract and be entitled to claim from B.
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) p. 172
Total SA (Pty) Ltd v Bekker NO [1992] 4 All SA 98 (A), 1992 (1) SA 617 (A) p. 625
Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W)
[Page 126]
If parties, for their own convenience and without intending to create a right of action on behalf of C, agree
that B must render performance to C, the fact that C may gain an advantage does not create an enforceable
right for C against A or B;
Protea Holdings Ltd v Herzberg [1982] 4 All SA 614 (C), 1982 (4) SA 773 (C) p. 779
Barnett v Abe Swersky & Associates [1986] 2 All SA 450 (C), 1986 (4) SA 407 (C)
(c) acceptance by C of the benefit. Acceptance must be communicated to B and comply with the rules relating to
the acceptance of an offer and may be inferred from conduct.
Cowley v Hahn [1987] 1 All SA 23 (E), 1987 (1) SA 440 (E)
Defences: B may rely on any relevant contractual defence, for instance if the contract between A and B was
cancelled before acceptance by C
Ex parte Orchison [1952] 3 All SA 43 (T), 1952 (3) SA 66 (T)
or that the benefit was not accepted within a reasonable or the allotted time. After C's acceptance, A and B cannot
undo C's benefit.
Potgieter v Potgieter NO 2012 (1) SA 637 (SCA)
PRECEDENTS
Claim by beneficiary
1. On [date] at [place], defendant and one [B] agreed in writing that, in the event of defendant's purchasing from [B] the
immovable property known as [address], defendant would pay to plaintiff the sum of [amount]. A copy of the agreement
is annexed.
2. At the time of the agreement, it was the intention of the parties thereto to benefit plaintiff and that, on acceptance of such
benefit by plaintiff, defendant would be bound thereby.
3. On [date], plaintiff notified defendant in writing that he accepted the benefit. A copy of the notification is annexed hereto.
4. On [date], defendant purchased from [B] the immovable property but defendant refuses to pay plaintiff the sum of
[amount].
(a) Payment of [amount]; and
(b) Interest.
Claim by stipulator
1. On [date] at [place], plaintiff and defendant concluded a written agreement in terms whereof defendant undertook to
transfer to [C] on [date] the immovable property known as [address]. The parties acted personally. A copy of the
agreement is annexed.
2. It was a term of the agreement that [C] could, on [date] and not before, accept or reject the said benefit.
3. On [date] and prior to [C]'s exercising [C]'s right of election, defendant, in breach of the agreement, sold the property to
[name].
4. The property has not yet been transferred to [name].
The plaintiff claims an interdict restraining defendant from passing transfer of the property to [name], and costs.
[Note that the purchaser must be joined.]
Conventional penalties
Related subjects: CONTRACT: DAMAGES; CONSUMER PROTECTION; CREDIT AGREEMENTS
[Page 127]
General: The following analysis does not consider the possible effect of Botha v Rich 2014 (7) BCLR 741 (CC),
2014 (4) SA 124 (CC) on the application of the Conventional Penalties Act 15 of 1962.
Penalty clauses: An agreed penalty or preestimate of damages for breach of contract is enforceable.
Conventional Penalties Act 15 of 1962s 1
Fidelity Bank Ltd v Three Women (Pty) Ltd [1996] 4 All SA 368 (W)
A party wishing to enforce such a term need only allege and prove the term and a breach falling within the scope of
the term. The defendant may, in defence to the claim, plead for a reduction of the penalty.
Matthews v Pretorius [1984] 4 All SA 224 (W), 1984 (3) SA 547 (W)
Forfeiture clauses: A forfeiture clause has the same effect as a penalty clause. It is a stipulation which provides
that upon the withdrawal from the agreement of a party under circumstances specified in the agreement any other
party may forfeit the right to claim restitution of anything performed in terms of the agreement or will remain liable
for some performance. This means that the innocent party may enforce the forfeiture clause but that the guilty party
may claim restitution or resist a claim for additional performance.
The forfeiture referred to in section 4 is of a limited nature: it does not include forfeiture of a right to payment.
Classen v Ann Fenwick Eiendomme Bpk 1996 (2) SA 99 (O)
Reduction of penalty: Relief by way of a reduction is in a sense discretionary. The question is thus not what
damages were suffered but what prejudice the creditor suffered. In determining the extent of the prejudice, the
court must take into consideration not only the creditor's proprietary interest but also every other rightful interest
that might have been affected by the act or omission in question.
Murcia Lands CC v Erinvale Country Est Home Owners Association [2004] 4 All SA 656 (C)
A penalty stipulation does not relieve any party of the duty to mitigate damages.
Courtis Rutherford & Sons CC v Sasfin (Pty) Ltd [1999] 3 All SA 639 (C)
A reduction may be granted only if the term amounts to a penalty in the sense that the parties intended it to
operate 'in terrorem', or if it contains an agreed liquidation of damages.
Paddock Motors (Pty) Ltd v Igesund [1976] 3 All SA 332 (A), 1976 (3) SA 16 (A) p. 29
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd [1982] 1 All SA 191 (A), 1982 (1) SA 398 (A) p. 438
Bank of Lisbon International Ltd v Venter [1990] 2 All SA 14 (A), 1990 (4) SA 463 (A)
Cf. Holt v Brook [1960] 2 All SA 537 (A), 1960 (2) SA 590 (A)
A reduction is possible only if the payment or forfeiture is a consequence of a breach of the contract.
Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A)
Onus: A party claiming a reduction must allege and prove that the penalty is disproportionate to the prejudice
suffered by the creditor. This involves proving the actual prejudice. In addition, the debtor must prove the extent to
which the penalty should be reduced.
Chrysafis v Katsapas [1988] 2 All SA 605 (A), 1988 (4) SA 818 (A)
National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v International Liquor Distributors (Pty) Ltd
[2001] 1 All SA 417 (A), 2001 (2) SA 232 (SCA)
[Page 128]
The onus may be discharged without the debtor's evidence. The very nature of the case and those facts or
circumstances that are not in dispute or may safely be inferred may suffice to reveal a disproportion entitling a court
to refuse to award the full amount claimed. For instance, the onus may be discharged by the allegations contained
in the pleadings of the plaintiff. Courts have a duty to raise and decide the matter in an appropriate case, even in
the absence of the necessary pleadings.
Smit v Bester [1977] 4 All SA 767 (A), 1977 (4) SA 937 (A) p. 942
Fidelity Bank Ltd v Three Women (Pty) Ltd [1996] 4 All SA 368 (W)
It is inadvisable to rely on the possibility that the court may raise the matter mero motu.
Bank of Lisbon International Ltd v Venter [1990] 2 All SA 14 (A), 1990 (4) SA 463 (A) pp. 474475
Accumulation of remedies: The Act prevents a creditor from recovering both the agreed penalty and damages or
damages in lieu of the agreed penalty, unless the contract expressly (i.e. clearly) provides for such recovery.
Botha (now Griessel) v Finanscredit (Pty) Ltd [1989] 2 All SA 401 (A), 1989 (3) SA 773 (A) p. 795
Credit agreements: The provisions of the National Credit Act 34 of 2005 prevail to the extent of any conflict with
those of the Conventional Penalties Act.
National Credit Act 34 of 2005s 172(1)
See CREDIT AGREEMENTS
Rouwkoop provisions: Any rouwkoop stipulation in a contract of alienation of land, or any other stipulation of like
import, is subject to this Act as if that stipulation were a penalty stipulation as contemplated in this Act.
For similar provisions, see
Share Block Control Act 59 of 1980s 17(2)
Property TimeSharing Control Act 75 of 1983s 5(5)
Housing Development Schemes for Retired Persons Act 65 of 1988s 4(6)
PRECEDENTS
Claim for liquidated damages
1. [Set out the contract].
2. Under the contract plaintiff was entitled, on failure by defendant to pay the monthly rental within seven days of due date,
forthwith to cancel the lease, to claim arrear rental and the sum of [amount] as liquidated damages.
3. Defendant failed to pay the rental for [period] on due date.
4. In consequence, plaintiff on [date] cancelled the contract by written notice. A copy thereof is annexed hereto.
(a) Payment of [amount] being arrear rentals;
(b) Payment of [amount] being liquidated damages.
Plea to claim enforcing a penalty
1. Defendant pleads that the provisions of [clause] of the deed of lease to pay the sum of [amount] as liquidated damages
on default by defendant constitutes a penalty stipulation in terms of section 3 of the Conventional Penalties Act 15 of
1962.
2. Defendant pleads that the penalty stipulation represents rental for a period of one year and is out of proportion to the
prejudice suffered by plaintiff because of defendant's default, in that plaintiff did relet the premises immediately to a
suitable tenant at the same rental for a period exceeding the remaining period of the lease. [Detail].
[Page 129]
3. Defendant further pleads that plaintiff did not suffer any other damages because of defendant's default.
The defendant prays that plaintiff's claim be dismissed with costs; alternatively, that the sum claimed be reduced to an extent
deemed just and equitable by this court.
Claim for repayment
1. [Set out the contract terms].
2. The purchase price was to be paid by plaintiff as follows: [detail].
3. Pursuant to the contract, plaintiff paid defendant the deposit but failed to pay the balance of the purchase price on due
date.
4. Defendant cancelled the sale on [date] by [manner].
5. The contract provides that, should the purchaser fail to comply with any of the terms of the agreement, the seller would
be entitled to cancel the agreement forthwith and retain as a genuine preestimate of damages the monies paid by the
purchaser.
6. The provision in the contract is a penalty stipulation in terms of sections 3 and 4 of Act 15 of 1962.
7. Defendant did retain the deposit.
8. Plaintiff alleges that, after the cancellation of the sale, defendant sold the land to [name] for the sum of [amount],
thereby mitigating in full any damages he might have suffered because of the cancellation of the deed of sale and that,
therefore, the penalty is out of proportion to the prejudice suffered by defendant because of plaintiff's failure to pay the
balance of the purchase price.
9. In the premises, the amount of the penalty is subject to reduction by this court to the extent that the court may consider
equitable.
The plaintiff claims payment of the sum of [amount] or such lesser amount as this court considers equitable.
Copyright
Related subjects: DESIGNS; UNLAWFUL (UNFAIR) COMPETITION
Statute: Copyright is governed by the Copyright Act 98 of 1978. The Act applies to works made before its
commencement.
Copyright Act 98 of 1978s 43
Appleton v Harnischfeger Corporation [1995] 2 All SA 693 (A), 1995 (2) SA 247 (A)
Related legislation: See the Counterfeit Goods Act 37 of 1997 for piracy of copyright goods.
Jurisdiction: Provided that the plaintiff has copyright as recognised by the Act, the court's jurisdiction in respect of
copyright infringement is determined according to the principles applicable to claims in delict. In accordance with the
principle of territoriality, local courts do not have jurisdiction to hear claims for infringement of foreign copyright.
Gallo Africa v Sting Music [2011] 1 All SA 449 (SCA), 2010 (6) SA 329 (SCA)
The copyright tribunal has limited jurisdiction and deals only with disputes between licensing bodies, or other
persons from whom licences are required, and persons requiring licences.
National Association of Broadcasters v South African Music Performance Rights Association and another [2014] 2
All SA 263 (SCA), 2014 (3) SA 525 (SCA)
[Page 130]
Plaintiff: An action for infringement is actionable at the suit of
(a) the owner of the copyright (who is not necessarily the author); or
Copyright Act 98 of 1978s 24(1)
Biotech Laboratories (Pty) Ltd v Beecham Group PLC [2002] 3 All SA 652 (A), 2002 (4) SA 249 (SCA)
King v South Africa Weather Service [2009] 2 All SA 31 (SCA), 2009 (3) SA 13 (SCA)
(b) the exclusive licensee or sublicensee (after due notice to the owner).
Coauthors must be joined unless a case is made out that one of them may sue on behalf of all.
Feldman NO v EMI Music SA (Pty) Ltd [2009] 4 All SA 307 (SCA), 2010 (1) SA 1 (SCA)
Defendant: An action for infringement lies against any person who performs any of the acts described in section 23
of the Copyright Act.
Copyright: The plaintiff must allege and prove copyright in the work concerned.
Memory Institute SA CC t/a SA Memory Institute v Hansen [2003] ZASCA 44, 2004 (2) SA 630 (SCA)
This involves proving that
(a) the work is an 'original' work;
Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd [1998] 1 All SA 123 (A), 1998 (2) SA 968 (SCA)
(b) the work is of a type defined in the Act for example, a literary, musical, or artistic work;
Copyright Act 98 of 1978s 2(1), read with the definitions in s 1(1)
Golden China TV Game Centre v Nintendo Co Ltd [1996] 4 All SA 667 (A), 1997 (1) SA 405 (A)
(c) the work has been reduced to material form except in the case of a broadcast or a programmecarrying
signal;
(d) copyright has been conferred on the work either by virtue of the nationality, domicile or residence of the
author or by reference to the country of origin;
Copyright Act 98 of 1978s 3 and s 4 read with s 37
(e) the term of copyright has not expired.
Infringement of copyright: The plaintiff must allege and prove infringement of copyright. Infringement entails the
'copying' of the plaintiff's work.
To prove such copying, the plaintiff must show
(a) a sufficient degree of objective similarity between the original work and the alleged infringement; and
(b) a causal connection between the plaintiff's and the defendant's work in other words, the defendant's work
must have been derived from the plaintiff's work.
Galago Publishers (Pty) Ltd v Erasmus [1989] 1 All SA 431 (A), 1989 (1) SA 276 (A)
Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd [1998] 1 All SA 123 (A), 1998 (2) SA 968 (SCA)
Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd [2016] 4 All SA 311 (SCA),
2017 (2) SA 1 (SCA)
The exclusive right to perform certain acts in respect of a work vests in the owner (and not necessarily the author)
of the copyright.
Copyright Act 98 of 1978ss 511B
[Page 131]
Direct infringement: Direct infringement consists of an act
(a) done or caused to be done,
(b) in the Republic,
(c) without the licence of the copyright owner,
(d) which the copyright owner has the exclusive right to do or to authorise.
Knowledge is not an element of direct infringement.
Indirect infringement: Knowledge is an essential element of indirect infringement. Infringement consists in the
importation, sale or distribution of unauthorised copies of the work, if the defendant knew that the making of the
article
(a) constituted an infringement of copyright; or
(b) would have constituted an infringement had the article been made in the Republic.
Twentieth Century Fox Film Corp v Anthony Black Films (Pty) Ltd [1982] 3 All SA 679 (W), 1982 (3) SA 582 (W)
Presumptions: Section 26 creates presumptions that assist a plaintiff in establishing copyright. If copyright in a
cinematograph film is registered in terms of the Registration of Copyright in Cinematograph Films Act 62 of 1977, a
certificate of the registrar provides prima facie proof of copyright.
Relief: The owner of copyright is entitled to the following relief in the event of a breach of copyright:
(a) Damages, which may include exemplary or punitive damages.
Metro GoldwynMayer Incorporated v Ackerman [1996] 1 All SA 584 (SE)
(b) An interdict.
(c) Delivery of, for example, infringing copies or plates used or intended to be used for making infringing copies.
(d) In lieu of damages, the plaintiff may, at her or his option, be awarded an amount calculated on the basis of a
reasonable royalty which would have been payable by a licensee in respect of the work or type of work
concerned. The plaintiff need not have suffered damages to be entitled to this relief.
Cf. Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd [2010] 1 All SA 25 (SCA), 2010 (2) SA 600 (SCA)
Terespolsky and another v Morituri Restaurant (Lakeside) and others [2014] ZAWCHC 62
(e) Additional damages: A court may have regard to the flagrancy of the infringement and any benefit to the
defendant in assessing damages.
Copyright Act 98 of 1978s 24(1A)
Morris v Benson & Hedges [2000] JOL 6387 (W), 2000 (3) SA 1092 (W)
To determine the amount of damages or a reasonable royalty, a court may direct an enquiry and may prescribe
procedures for the conduct of the enquiry.
Copyright Act 98 of 1978s 24(1B)
Cf. Cadac (Pty) Ltd v WeberStephen Products Company and others [2011] 1 All SA 343 (SCA), 2011 (3) SA 570
(SCA)
An exclusive licensee and an exclusive sublicensee are entitled to the same remedies as those that would have
been available had the licence been an assignment. These rights and remedies are concurrent with those of the
owner of the copyright.
[Page 132]
Defences: A defendant who was unaware of the subsistence of the copyright claimed and had no reasonable
grounds for suspecting it may not be mulcted in damages.
The Act creates several exceptions to a claim for copyright infringement for example, copying that is reasonably
necessary for the purposes of research or private study and use of a work for the purposes of judicial proceedings.
Generally, the application of these exceptions must be alleged and proved by the defendant.
Copyright Act 98 of 1978ss 1219B
Cf. Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd [2002] 4 All SA 67 (SCA), 2003 (1) SA 31 (SCA)
PRECEDENTS
Claim copyright infringement (literary work)
1. First defendant is a publisher of, inter alia, books.
2. At all relevant times, second defendant was the managing director of first defendant and was in effective charge and
control of first defendant.
3. At all relevant times, valid copyright subsisted in the text of an original literary work entitled [name] (herein referred to
as 'the original work').
4. The author of the original work was one [name], a South African citizen or resident, at all material times, and
consequently a qualified person as defined in the Copyright Act 98 of 1978, at the time that the original work was made.
5. The original work was first published in the Republic of South Africa on [date].
6. At all relevant times, plaintiff was the proprietor of the copyright in the original work, pursuant to a written assignment
from the author, and remains the proprietor.
7. During or about [date], second defendant caused first defendant to publish a publication entitled [name] (hereinafter
referred to as 'the offending work'), and first defendant did so publish the offending work.
8. The offending work is a reproduction of the original work (or a substantial part thereof); alternatively, it is an adaptation
thereof.
9. Furthermore, second defendant has caused first defendant to sell or, by way of trade, offer or expose for sale or
distribute in the Republic copies of the offending work to such an extent that plaintiff is prejudicially affected.
10. This conduct of defendants was not authorised by plaintiff.
11. In the premises, the conduct of defendants constitutes infringement of the copyright in the original work.
12. Defendants knew that such conduct constituted infringement.
[Knowledge is not a prerequisite in the case of cinematograph films or in the case of direct copying.]
13. The unlawful conduct of defendants caused plaintiff damage in the sum of [amount].
14. Plaintiff apprehends upon reasonable grounds that defendants will not desist from their unlawful conduct unless they are
restrained by an order of the above court.
15. [Quantify damages].
(a) An order restraining defendants from infringing plaintiff's rights in the copyright in the original work by publishing or
printing or reproducing or adapting the original work, or by selling, distributing or offering for sale copies of the offending
work.
(b) Delivery up to plaintiff of all copies of the offending work in defendants' possession or under their control, and of all
plates used in the production of the offending work.
(c) Payment of [amount] being damages.
[Page 133]
Counterclaims (claims in reconvention)
See Part A s.v. VI. COUNTERCLAIMS for notes
PRECEDENTS
Claim in reconvention (standard form)
1. Plaintiff in reconvention is defendant in convention.
2. Defendant in reconvention is plaintiff in convention.
3. The parties are referred to herein as in the declaration.
4. [Set out cause of action of counterclaim.]
The defendant claims:
(a) Payment of [amount].
(b) Costs.
Plea relying on counterclaim as a defence
1. Defendant admits that he is indebted to plaintiff on the grounds and for the amount claimed.
2. Defendant pleads that he is excused from payment because plaintiff is indebted to him in the sum of [amount], being a
claim for damages which forms the subject matter of the claim in reconvention filed herewith.
The defendant prays that judgment in respect of plaintiff's claim be postponed until judgment on the claim in reconvention.
OR
1. Defendant denies [the relevant allegations].
2. Defendant pleads, in any event, that plaintiff is indebted to him in the sum of [amount] in respect of damages occasioned
by plaintiff, which damages form the subject matter of the claim in reconvention filed herewith.
The defendant prays that:
(a) Plaintiff's claim be dismissed with costs.
(b) Alternatively, that judgment in respect of plaintiff's claim be postponed until judgment on the claim in reconvention.
OR
1. Defendant admits his indebtedness to plaintiff in the sum of [amount] on the grounds stated in plaintiff's declaration.
2. Defendant pleads that he is excused from payment of [part of the amount] by virtue of plaintiff's indebtedness to
defendant in the sum of [amount], being damages occasioned by plaintiff and which form the subject matter of the
counterclaim filed herewith.
3. Defendant hereby tenders to pay to plaintiff the balance of [amount].
The defendant prays that judgment in respect of [amount], being a portion of plaintiff's claim, be postponed until judgment on
the claim in reconvention.
Plea conditional counterclaim
In the event of its being established that:
1. plaintiffs were, at all material times, married in community of property; and
2. first plaintiff and the said [G] were joint wrongdoers regarding the damages suffered by second plaintiff,
defendant prays for an order that, in the event of defendant's paying to second plaintiff the damages awarded to her, first
plaintiff be ordered to make a contribution to defendant in respect of the damages of such amount as this honourable court may
deem just and equitable.
[Page 134]
Credit agreements
Leading cases:
Sebola and another v Standard Bank of South Africa Ltd and another 2012 (8) BCLR 785 (CC), 2012 (5) SA 142
(CC)
National Credit Regulator v Opperman and others 2013 (2) BCLR 170 (CC), 2013 (2) SA 1 (CC)
Ferris and another v Firstrand Bank Limited and another 2014 (3) BCLR 321 (CC), 2014 (3) SA 39 (CC)
Kubyana v Standard Bank of South Africa Ltd 2014 (4) BCLR 400 (CC), 2014 (3) SA 56 (CC)
Introduction: The National Credit Act 34 of 2005 (as amended) contains wideranging provisions intended to
regulate all agreements that contain an element of credit provision. 'Credit' is defined as either (a) a deferral of
payment of money owed to a person, or a promise to defer payment, or (b) a promise to advance or pay money to
or at the direction of another person. The Act is complicated and creates several provisions and structures to
protect consumers. All its provisions have been in force since 1 June 2007.
Detailed treatment of the Act falls outside the scope of the present work.
Retroactivity: The Act is in part retrospective in the sense that it may apply to a preexisting contract.
National Credit Act 34 of 2005 sched. 3
This does not apply to the amending Acts.
Kaknis v Absa Bank Limited; Kaknis v Man Financial Services SA (Pty) Ltd [2017] 2 All SA 1 (SCA), 2017 (4) SA 17
(SCA)
Regulations: Regulations have been promulgated, providing important additions to the Act. They include, for
instance, the rates of recoverable interest (chap. 5).
GN R489 in GG 28864 of 31 May 2006
Jurisdiction: Although the Act states that proceedings may be instituted in the magistrates' court, the jurisdiction of
the High Court is not excluded.
Nedbank Ltd v Mateman; Nedbank Ltd v Stringer [2008] 1 All SA 593 (T), 2008 (4) SA 276 (T)
The Act limits the choice of jurisdiction. Consent to the jurisdiction of any court seated outside the area of
jurisdiction of a court having concurrent jurisdiction and in which the consumer resides or works, or where the
goods in question (if any) are ordinarily kept, is unlawful.
National Credit Act 34 of 2005s 90(2)(k)(vi)(bb)
Field of application: The Act applies to all credit agreements. An agreement is a credit agreement for the purposes
of the Act if
(a) a fee, charge or interest is imposed for a deferred payment, or
(b) discount is given when prepayments are made.
Asmal v Essa [2014] 3 All SA 115 (SCA), 2016 (1) SA 95 (SCA)
A credit agreement may be
(a) a credit facility;
(b) a credit transaction;
(c) a credit guarantee; or
(d) a combination of the above.
National Credit Act 34 of 2005s 8
Shaw and another v Mackintosh and another [2018] ZASCA 53
[Page 135]
Parties may agree that the provisions of the Act would apply to their agreement which otherwise would not have
been covered by the Act.
First National Bank v Clear Creek Trading 12 (Pty) Ltd 2014 (1) SA 23 (GNP)
Credit providers and consumers: The Act is concerned with credit agreements between 'credit providers'
(creditors) and 'consumers' (debtors). These terms have been defined in detail, which definitions need not be
repeated here.
Exclusions: The Act excludes an insurance policy or credit extended by an insurer solely to maintain payments of
premiums of that policy, a lease of immovable property and a transaction between a stokvel and a member of that
stokvel in terms of the rules of the stokvel. Also excluded from the ambit of the Act are payment by a subsequently
dishonoured cheque for goods sold or services rendered and the refusal of a third party to pay a charge on behalf
of a buyer.
Juristic persons: Certain 'juristic persons' (defined as including companies, close corporations, partnerships,
associations of persons and certain trusts) are, as consumers, excluded from certain provisions of the Act, as are
organs of state.
Content of credit agreement: Every credit agreement must include, inter alia, the following:
(a) the type of agreement;
(b) the credit provider's name, contact details and registration number;
(c) the cost of credit;
(d) the cost of an extended warranty agreement;
(e) the applicable charges;
(f) the maximum amount that may be claimed, if the amount deferred is not ascertainable.
Compliance requirements: The applicable compliance requirements depend on the nature of the credit agreement.
Paulsen and another v Slip Knot Investments 777 (Pty) Ltd [2014] 2 All SA 527 (SCA), 2014 (4) SA 253 (SCA)
Paulsen and another v Slip Knot Investments 777 (Pty) Limited 2015 (5) BCLR 509 (CC), 2015 (3) SA 479 (CC)
Small credit agreements: A credit agreement is small if it is
(a) a pawn transaction;
(b) a credit facility of less than R15 000; or
(c) any other credit transaction other than a mortgage agreement or a credit guarantee and the principal debt
under that transaction or guarantee does not exceed the threshold established in terms of section 7(1)(b),
namely R15 000.
The compliance requirements are set out in regulation 28.
Intermediate credit agreements: A credit agreement is an intermediate agreement if it is
(a) a credit facility the credit limit of which exceeds R15 000 but does not exceed R250 000; or
(b) any other credit transaction other than a pawn transaction, mortgage agreement or credit guarantee, and the
principal debt under that transaction or guarantee falls between R15 000 and R250 000.
The compliance requirements are set out in section 92.
[Page 136]
Large credit agreements: A credit agreement is large if it is
(a) a mortgage agreement; or
(b) any other credit transaction other than a pawn transaction or credit guarantee, and the principal debt under
that transaction or guarantee is equal to or greater than R250 000.
The compliance requirements are set out in section 92.
Ribeiro v Slip Knot Investments 777 (Pty) Ltd [2010] ZASCA 174, 2011 (1) SA 575 (SCA)
Incidental credit agreements: Only certain provisions of the Act apply to incidental credit agreements.
This type of credit agreement typically arises when the interest or charge is due only on default. In other words,
interest is charged only if the consumer fails to pay the account within a set period. Such credit is classified as
incidental because the purpose of the agreement was not to provide credit, but credit was given as a byproduct of
the rendering of a service. In such cases the cause of action is regarded as a credit agreement and the provisions
of the Act apply.
An incidental credit agreement is deemed to have been made 20 business days after the supplier of the goods or
services first charges a latepayment fee or charge in respect of that account. While incidental credit would be
included in a debtreview process it would not be subject to the recklesslending provisions.
Preagreement statement and disclosures: The credit provider must provide the consumer with a preagreement
statement and make certain disclosures.
GN R489 in GG 28864 of 31 May 2006 regs 28 and 29
Unlawful agreements: When a credit agreement is unlawful in terms of section 89, a court must make a just and
equitable order including but not limited to an order that
(a) the credit agreement is void as from the date the agreement was entered into;
(b) that all payments made by the consumer be refunded with interest; and
(c) that all purported rights of the credit provider under the credit agreement be cancelled or forfeited to the
state unless cancelling those rights would in the circumstances unjustly enrich the consumer.
Chevron SA (Pty) Ltd v Wilson t/a Wilson's Transport and others 2015 (10) BCLR 1158 (CC)
A credit agreement is unlawful if
(a) it is entered into with an unemancipated minor unassisted by a guardian;
(b) it is entered into with a person who has been declared mentally unfit;
(c) it is entered into with a person subject to an administration order and the administrator has withheld his
consent and the credit provider knew or could reasonably have ascertained these facts;
(d) it is concluded because of a prohibited marketing strategy adopted by the credit provider;
(e) it is a supplementary agreement or document prohibited by section 91(a);
(f) at the time that the agreement was concluded the credit provider was not registered, and the Act required
the credit provider to be registered; or
(g) the credit provider is subject to a prohibitory notice.
Unlawful provisions: Unlawful provisions must be distinguished from unlawful agreements. Section 90 deals with
agreements that are lawful but contain objectionable provisions. An unlawful provision is void from the date on
which it took effect.
[Page 137]
A (magistrates') court may sever the unlawful provision from the agreement if such removal is reasonable. The rest
of the credit agreement will be lawful and enforceable. If removal of the unlawful provision is not reasonable, the
court must declare the whole agreement unlawful from the date of its conclusion and that
(a) all payments made by the consumer be refunded with interest; and
(b) all purported rights of the credit provider under the credit agreement are either cancelled or forfeited to the
state if cancelling those rights in the circumstances would unjustly enrich the consumer.
The Act contains a lengthy list of unlawful provisions. Some of the more important prohibitions include those against
provisions
(a) that defeat the purposes the Act;
(b) designed to deceive consumers or subject them to fraudulent conduct;
(c) that state that the consumer waives or gives up any right bestowed by the Act;
(d) in which the consumer acknowledges that no representation or warranty was made in connection with the
credit agreement by the credit provider or the credit provider's agent;
(e) in terms of which the consumer will deposit an identity document, or credit or debit card, and so on; and
(f) that provide for a variable interest rate which is not fixed to a reference rate stipulated in the agreement.
Regulation 32 provides that certain commonlaw rights or remedies may not be waived, namely the exceptio errore
calculi, exceptio non numeratae pecuniae and exceptio non causa debiti.
Reckless credit agreement: Credit providers may not enter into reckless credit agreements with consumers.
Reckless credit agreements are defined in section 80.
Desert Star Trading 145 (Pty) Ltd and another v No 11 Flamboyant Edleen CC and another [2011] 2 All SA 471
(SCA), 2011 (2) SA 266 (SCA)
ABSA Bank Ltd v De Beer 2016 (3) SA 432 (GP)
Wiese and another v ABSA Bank Ltd [2017] 2 All SA 322 (WCC)
A court that declares an agreement reckless may make an order
(a) setting aside all or part of the consumer's rights and obligations under that agreement, as the court
determines just and reasonable in the circumstances; or
(b) suspending the force and effect of that credit agreement.
When a court declares a credit agreement reckless, it must further consider whether the consumer is overindebted
at the time of those court proceedings. If the consumer is so overindebted, the court may make an order
suspending the credit agreement and restructuring the consumer's obligations under any other credit agreements.
Overindebtedness: If it is alleged that the consumer under a credit agreement is overindebted, the court may
refer the matter directly to a debt counsellor for evaluation of the consumer's circumstances and a recommendation;
and the court may then declare that the consumer is overindebted, and make any order contemplated in section 87
to relieve the consumer's overindebtedness. The order is in the court's discretion.
Standard Bank SA Ltd v Hales [2009] 2 All SA 416 (SCA)
Cession: The cession of a debt does not absolve the cessionary of responsibility under the Act in that the
cessionary is regarded as the credit provider and is subject to the requirements and obligations imposed on credit
providers.
[Page 138]
Suspension or restructuring of obligations: A court that concludes that a consumer is overindebted may make an
order
(a) suspending the force and effect of that credit agreement until a date determined by the court; and
(b) restructuring the consumer's obligations under any other credit agreements, in accordance with the Act.
Cost of credit: A credit agreement may not require the consumer to pay any money other than that provided for in
the Act.
National Credit Act 34 of 2005ss 101 and 102
Interest: The amount of interest charged is limited by section 103 and regulation 42(1).
Disputing credits and debits: A consumer may by notice dispute all or part of any credit or debit. Until the matter is
resolved the creditor may not begin enforcement proceedings based on a default arising from that dispute.
National Credit Act 34 of 2005ss 111 and 115
If the consumer alleges that the cost of credit claimed by or made to the credit provider exceeds the maximum
permitted in terms of the Act and requests that the credit provider be called as a witness to prove the amount of
debt claimed to be owing, the court may not give judgment until it has given the consumer an opportunity to
examine the credit provider in relation to that debt, unless it appears to the court that the consumer's allegation is
prima facie without foundation or that examination of the credit provider is impracticable.
Adfin (Pty) Ltd t/a Rand Trust v Fashion Shoe Centre (Pty) Ltd [1990] 2 All SA 450 (C), 1990 (4) SA 371 (C)
1166 Roodekrans CC and others v Nedcor Bank Ltd [2001] 2 All SA 666 (W)
Termination of credit agreement by credit provider: Only in accordance with section 123 may a credit provider
terminate a credit agreement before the time provided. Termination in this manner requires compliance with the
provisions of section 129 that relate to notice.
Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 512 (D)
Sebola and another v Standard Bank of South Africa Ltd and another 2012 (8) BCLR 785 (CC), 2012 (5) SA 142
(CC)
Kubyana v Standard Bank of South Africa Ltd 2014 (4) BCLR 400 (CC), 2014 (3) SA 56 (CC)
A precondition for notice to enforce or cancel is that the consumer be in default under the agreement. The notice is
an essential element of a cause of action under the Act. It must be in writing and
(a) draw the default to the notice of the consumer; and
(b) propose that the consumer refer the credit agreement to a debt counsellor, alternative dispute resolution
agent, consumer court or ombud with jurisdiction, the intention being that the parties resolve any dispute
under the agreement or develop and agree on a plan to bring the payments under the agreement up to date.
The credit provider may approach the court for an order to enforce a credit agreement only if the consumer is in
default at the time of the application and has been in default under the credit agreement for at least 20 business
days and
(a) at least 10 business days have elapsed since the credit provider delivered a notice to the consumer as
contemplated in section 86(9) or 129(1), as the case may be;
[Page 139]
(b) in the case of a notice contemplated in section 129(1), the consumer has not responded to the notice or has
responded to it by rejecting the credit provider's proposals; and
(c) in the case of an instalment agreement, secured loan, or lease, the consumer has not surrendered the
relevant property to the credit provider as contemplated in section 127.
A summons issued otherwise than in compliance with section 129 is not void. When section 129 has not been
complied with, section 130(4)(b) requires a court to adjourn the matter and make an order setting out the steps to
be taken to ensure compliance by the credit provider.
Investec Bank Limited t/a Investec Private Bank v Ramurunzi [2014] 3 All SA 34 (SCA), 2014 (4) SA 394 (SCA)
Blue Chip 2 (Pty) Ltd t/a Blue Chip 49 v Ryneveldt (National Credit Regulator as amicus curiae) 2016 (6) SA 102
(SCA)
Notifications: Notice by registered post is not required, but the provider must establish that on the probabilities the
notice was sent and received.
Edwards v Firstrand Bank Limited t/a Wesbank [2016] 4 All SA 692 (SCA), 2017 (1) SA 316 (SCA)
Baliso v Firstrand Bank Limited t/a Wesbank 2016 (10) BCLR 1253 (CC), 2017 (1) SA 292 (CC)
A consumer may not unreasonably ignore the consequences of an election to receive notices by registered mail
when the notifications in question have been sent to the address duly nominated.
Kubyana v Standard Bank of South Africa Ltd 2014 (4) BCLR 400 (CC), 2014 (3) SA 56 (CC) para. 46
In the absence of a contrary indication,
it might be accepted that a notice sent by registered post by a credit provider in terms of section 129 had been
delivered if it appeared from a post office track and trace report that it had been received at the local post office of
the consumer and that notification had been given by the post office to the addressee that the item was available
for collection.
Amardien and others v Registrar of Deeds and others [2017] 2 All SA 431 (WCC) para. 17
Particulars of arrears is not an essential ingredient of a notice of default.
Enforcement: It would be prudent to make the following allegations when enforcing a credit agreement:
(a) that the plaintiff is a credit provider registered with the National Credit Regulator (it is not necessary to attach
a copy of the registration certificate);
(b) the usual allegations concerning the agreement (attaching a copy of the agreement);
(c) if the Act is not applicable, the reasons for its inapplicability (otherwise it will be assumed that Act applies);
Credit Corporation of SA Ltd v Swart [1959] 1 All SA 452 (O), 1959 (1) SA 555 (O)
Botha v Potch Motors (Edms) Bpk 1963 (1) SA 279 (T)
(d) that the agreement complies with the Act;
(e) that the consumer is in default and has been in default for at least 20 days;
(f) that section 130 has been complied with as indicated by attaching a copy of the section 86(9) o r section

129(1) notice giving the consumer the required 10 days' notice;
First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd 1988 (4) SA 924 (W)
Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA) p. 68D
Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 512 (D)
[Page 140]
(g) that the defendant has either rejected or not responded to the notice;
(h) if applicable, that the defendant has not surrendered the relevant property as required by section 127;
(i) that, to the extent that sections 127, 129 a n d 131 apply, the plaintiff has complied with the required

procedures;
(j) that no matter arising out of the credit agreement is pending before the National Consumer Tribunal; and
(k) that the circumstances contemplated in section 130(3)(c) do not apply.
An original credit agreement is in terms of section 88(3) enforceable against a defaulting credit consumer without
further notice if the relevant debt rearrangement order is breached.
Jili v Firstrand Bank Ltd [2014] ZASCA 183
Sequestration applications: An application for the sequestration of a debtor's estate is not tantamount to debt
enforcement in terms of the Act.
Naidoo v ABSA Bank Ltd [2010] 4 All SA 496 (SCA), 2010 (4) SA 597 (SCA)
Orders: If the court determines that
(a) the credit agreement was reckless the court must make an order contemplated in section 83;
(b) the credit provider has not complied with the relevant provisions of the Act, the court must adjourn the matter
and make an appropriate order setting out the steps the credit provider must complete before the matter may
be resumed;
(c) the credit agreement is subject to a pending debt review, the court may adjourn the matter, order the debt
counsellor to report directly to the court or order the debt counsellor to discontinue the debtreview
proceedings;
(d) there is a matter pending before the Tribunal, the court may adjourn the matter, or order the Tribunal to
adjourn the proceedings before it and refer the matter to the court for determination; or
(e) the credit agreement is either suspended or subject to a debtrearrangement order or agreement, and the
consumer has complied with the debtrearrangement order or agreement, the court must dismiss the matter.
PRECEDENTS
Claim for payment
1. Plaintiff is a credit provider registered with the National Credit Regulator in terms of the National Credit Act 34 of 2005.
2. On [date] at [place], plaintiff and defendant concluded a written agreement of lease in terms of which plaintiff let to
defendant a certain motor vehicle. A copy of the agreement is attached.
3. The agreement complies with the Act.
4. The material terms of the agreement of lease are the following: [detail].
5. Plaintiff has performed its obligations in terms of the agreement of lease.
6. In breach of the agreement of lease, defendant has [state nature of breach].
7. Plaintiff has cancelled [not cancelled] the agreement.
8. Defendant is in default and has been in default for at least 20 days.
9. Plaintiff has complied with the provisions of section 130 of the Act. A copy of the section 129 notice is attached.
10. Defendant has not responded to the notice.
11. There is no matter arising out of the credit agreement pending before the National Consumer Tribunal.
[Page 141]
12. Plaintiff is entitled to payment of the full balance outstanding, being the sum of [Rx].
13. Defendant is entitled to a reduction of finance charges of [Ry].
14. In the premises, defendant is indebted to plaintiff in the sum of [Rx Ry].
15. Payment of the aforesaid amount of [Rx Ry] will not place plaintiff in a better financial position than that in which
plaintiff would have been had defendant carried out his obligations in terms of the agreement of lease.
The plaintiff claims [detail].
Special plea reckless credit
1. Defendant admits that she has entered into the agreement with the plaintiff and is in default.
2. Defendant pleads specially that the agreement was reckless in terms of section 80 of the National Credit Act 34 of 2005
in that, at the time the agreement was made, plaintiff (the credit provider) failed to conduct an assessment as required
by section 81(2).
3. Alternatively, if it is found that plaintiff had conducted an assessment as required by section 81(2), plaintiff entered into
the credit agreement with defendant, although the preponderance of information available to plaintiff indicated that
defendant did not generally understand or appreciate her risks, costs or obligations under the proposed credit
agreement.
The defendant claims that plaintiff's claim be dismissed and for
(a) The setting aside of all or part of defendant's rights and obligations under the agreement, as the court determines just
and reasonable in the circumstances;
(b) Alternatively, the suspension of the force and effect of the agreement for a period of one year.
Custom and customary law
Indigenous law: The Constitution recognises customary law and requires courts to promote the spirit, purport and
objects of the Bill of Rights in developing this part of the law.
Constitution s 39(2)
Cf. Traditional Leadership and Governance Framework Act 41 of 2003
Subject to the Constitution and any legislation that specifically deals with customary law, courts must apply
customary law when it is applicable.
Shilubana and others v Nwamitwa 2008 (9) BCLR 914 (CC), 2009 (2) SA 66 (CC)
Gongqose and others v Minister of Agriculture, Forestry and Fisheries and others; Gongqose and others v S [2018]
ZASCA 87
Any court may take judicial notice of the law of a foreign state and of indigenous law, in so far as that law can be
ascertained readily and with sufficient certainty.
Law of Evidence Amendment Act 45 of 1988s 1
Bhe and others v Khayelitsha Magistrate and others 2005 (1) BCLR 1 (CC), 2005 (1) SA 580 (CC) paras 150153
Otherwise, indigenous law must be proved as custom. In cases between black parties, a party may rely on
indigenous law but must allege and prove
(a) the tribal connection of the two litigants;
(b) the system of indigenous law applicable; and
(c) the applicable principles.
Maisela v Kgolane NO [2000] 1 All SA 658 (T), 2000 (2) SA 370 (T)
[Page 142]
It is incumbent on courts to take steps to satisfy themselves about the content of customary law and, when
necessary, to evaluate local custom to ascertain the content of the relevant rule, bearing in mind that customary
law is not uniform.
Mayelane v Ngwenyama 2013 (8) BCLR 918 (CC) (also reported as MM v MN 2013 (4) SA 415 (CC)) paras 4851
These rules must not conflict with the Constitution
Hlophe v Mahlalela 1998 (1) SA 449 (T)
or with public policy or natural justice.
Metiso v Padongelukfonds [2002] 1 All SA 291 (T), 2001 (3) SA 1142 (T)
Customary marriage: The issue is dealt with in detail by the Recognition of Customary Marriages Act 120 of 1998.
Murabi v Murabi [2014] 2 All SA 644 (SCA) (also reported as TM v NM 2014 (4) SA 575 (SCA))
Wormald NO v Kambule [2005] 4 All SA 629 (SCA), 2006 (3) SA 562 (SCA)
See DIVORCE
Custom as a rule of law: Customs observed within a community may harden into rules of law. The force of custom
has its origin in the convictions and tacit acceptance of the community concerned. To constitute law, a custom must
(a) have existed for a long time;
(b) have been uniformly observed by the community concerned;
(c) be reasonable;
(d) be certain; and
(e) not conflict with a rule of positive law which the parties may not by agreement or conduct alter or waive.
Van Breda v Jacobs 1921 AD 330
Richtersveld Community v Alexkor Ltd [2003] 2 All SA 27 (SCA), 2003 (6) SA 104 (SCA)
Trade usage: Trade usage may give rise to an implied or a tacit term in an agreement. The implication must be
necessary and not merely reasonable. The requirements set out under the heading 'Custom as a rule of law',
above, apply.
Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd [1973] 3 All SA 118 (C), 1973 (2) SA 642 (C)
Bertelsmann v Per 1996 (2) SA 375 (T) pp. 382383
Totalgaz Southern Africa v Solgas (Pty) Ltd and another; Easigas (Pty) Ltd v Solgas (Pty) Ltd and another
2009 (4) SA 37 (W)
Onus: The party wishing to rely on either custom or trade usage must plead and prove the custom or usage.
Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd [1973] 3 All SA 118 (C), 1973 (2) SA 642 (C) p. 464
PRECEDENTS
Claim
1. Plaintiff is an advocate.
2. Defendant is an attorney.
3. Defendant engaged the plaintiff's services on behalf of the defendant's client.
4. Defendant acted on the instructions of the client.
5. Plaintiff performed the mandate according to his instructions.
6. Plaintiff rendered accounts to the defendant in respect of the work.
[Page 143]
7. Plaintiff's fees are fair and reasonable.
8. As a matter of custom, once an attorney briefs an advocate, the attorney is responsible for payment of counsel's fees.
9. The custom has existed for a long time, is uniformly observed in the legal profession, and is reasonable and certain. It
consequently has the effect of a legal rule; alternatively, it is an implied term of the defendant's mandate to plaintiff.
Damages: Apportionment
See NEGLIGENCE: CONTRIBUTORY NEGLIGENCE
Damages: Delictual damages
Related subjects: CONTRACT: DAMAGES; DELICT: LEX AQUILIA; INIURIA; NEGLIGENCE; ROAD ACCIDENTS
General: The purpose of a claim for damages is to compensate the victim in money terms for the loss suffered.
Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2017 (12) BCLR 1528
(CC), 2018 (1) SA 335 (CC)
A plaintiff must allege and prove the quantum of damages suffered because of the defendant's wrongful act.
A defendant who in the plea admits liability for payment of damages, but for an amount lower than that claimed,
need not particularise the admission, nor does the admission attract any onus.
Turners Asbestos Products (Pvt) Ltd v G Straw & Son (Pvt) Ltd 1974 (3) SA 286 (R)
Allocation between codefendants: If it is not possible to establish how much of the damage sustained was
caused by each of a number of codefendants, and it is clear that all the available evidence has been led on the
point, it is the court's duty to do the best it can. This may lead to a finding that each defendant is liable to pay a
proportion of the loss suffered.
Minister of Safety and Security v Rudman [2004] 3 All SA 667 (SCA), 2005 (2) SA 16 (SCA)
Prospective loss: A plaintiff claiming prospective loss (damage or loss which has not yet materialised) need not
prove on a preponderance of probability that such a loss will occur or arise; instead, a contingency allowance for
the possibility of the loss is made.
Erasmus v Davis [1969] 1 All SA 91 (A), 1969 (2) SA 1 (A)
Jowell v BramwellJones [2000] 2 All SA 161 (A), 2000 (3) SA 274 (SCA) para. 22
See ROAD ACCIDENTS
Actuarial calculations: Actuarial calculations provide a guideline only and a court is not bound by them.
Lambrakis v Santam Ltd 2000 (3) SA 1098 (W), 2002 (3) SA 710 (SCA)
'Once and for all' rule: In general, a plaintiff must claim in one action all damages flowing from one cause of action,
whether already sustained or prospective.
Evins v Shield Insurance Co Ltd [1980] 2 All SA 40 (A), 1980 (2) SA 814 (A) p. 835
National Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v International Liquor Distributors (Pty) Ltd [2001]
1 All SA 417 (A), 2001 (2) SA 232 (SCA)
[Page 144]
Member of the Executive Council for Health and Social Development, Gauteng v DZ obo WZ 2017 (12) BCLR 1528
(CC), 2018 (1) SA 335 (CC)
Measure of damages to goods: A plaintiff is entitled to recover from the wrongdoer the amount by which the
wrongdoer's conduct diminished the plaintiff's patrimony.
Trotman v Edwick [1951] 1 All SA 441 (A), 1951 (1) SA 443 (A)
Ranger v Wykerd [1977] 3 All SA 245 (A), 1977 (2) SA 976 (A)
Dippenaar v Shield Insurance Co Ltd [1979] 4 All SA 92 (A), 1979 (2) SA 904 (A) p. 917
The measure of damages is the value of the article to the owner and is determined on the day of the commission of
the delict.
To prove that amount the plaintiff may, in respect of damage to an article, prove the reasonable cost of repairs to
the article to restore it to its original state
Ranger v Wykerd [1977] 3 All SA 245 (A), 1977 (2) SA 976 (A) p. 992
or the difference between the predelict value and the postdelict value.
Smit v Saipem [1974] 4 All SA 621 (A), 1974 (4) SA 918 (A)
De La Rey's Transport (Edms) Bpk v Lewis [1978] 2 All SA 258 (A), 1978 (1) SA 797 (A)
The plaintiff is entitled to the lesser of the two amounts and must show that the measure chosen is the correct one
under the circumstances.
Ngubane v SA Transport Services [1991] 4 All SA 22 (A), 1991 (1) SA 756 (A) pp. 784785
A plaintiff who relies on one of these methods in the pleadings is not necessarily disentitled thereby from using the
other method to prove the amount of damages.
Joubert v Santam Versekeringsmaatskappy Bpk [1978] 2 All SA 604 (T), 1978 (3) SA 328 (T)
(It is unlikely that the defendant would be taken by surprise in such a case because of the requirement for expert
summaries.)
In respect of the complete loss of an article, the plaintiff must establish its market value or replacement value at the
date of the delict.
In determining quantum, no regard is had to the detrimental consequences of the delict or to any advantageous
results arising from it.
Standard General Insurance Co Ltd v Dugmore NO [1996] 4 All SA 415 (A), 1997 (1) SA 33 (SCA)
Ongevallekommissaris v Santam Bpk [1998] 4 All SA 507 (A), 1999 (1) SA 251 (SCA)
Personal injury claims: For personal injuries, the plaintiff is entitled to claim for
(a) actual pecuniary loss, such as medical expenses and loss of earnings;
(b) pain and suffering;
(c) actual pecuniary prospective loss, such as future medical expenses and loss of future earnings;
(d) actual pecuniary loss of earnings capacity.
Actual loss implies a diminution of the plaintiff's estate.
Rudman v Road Accident Fund [2002] 4 All SA 422 (SCA), 2003 (2) SA 234 (SCA)
But see ROAD ACCIDENTS
[Page 145]
'Thin skull' rule: The predisposition of a claimant to injury does not affect causation or the scope of loss.
Prinsloo v Road Accident Fund 2015 (6) SA 91 (WCC)
Difficulty of proving damages: If damages are difficult to determine or cannot be assessed with certainty, the
plaintiff is entitled to judgment upon production of all the evidence that can reasonably be produced to enable the
court to assess the quantum of the loss.
Hersman v Shapiro & Co 1926 TPD 367 pp. 367379
De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA), [2003] 1 All SA 651 (SCA)
Bane and others v D'Ambrosi [2010] 1 All SA 101 (SCA), 2010 (2) SA 539 (SCA)
Assessment of general damages: Although a plaintiff is entitled to full compensation, the award must also be fair
to the defendant. If the loss cannot be quantified the court has to exercise its discretion, considering previous
awards and the trend towards conservatism.
De Jongh v Du Pisanie NO [2004] 2 All SA 565 (SCA), 2005 (5) SA 457 (SCA)
Particularity of damages: Uniform rule 18(10), (11) and (12), which must be complied with, reads as follows:
(10) A plaintiff suing for damages shall set them out in such a manner as will enable the defendant reasonably to
assess the quantum thereof: Provided that a plaintiff suing for damages for personal injury shall specify his date of
birth, the nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise
to such damages, and shall as far as practicable state separately what amount, if any, is claimed for:
(a) medical costs and hospital and other similar expenses and how these costs and expenses are made up;
(b) pain and suffering, stating whether temporary or permanent and which injuries caused it;
(c) disability in respect of:
(i) the earning of income (stating the earnings lost to date and how the amount is made up and the
estimated future loss and the nature of the work the plaintiff will in future be able to do);
(ii) the enjoyment of amenities of life (giving particulars);
and stating whether the disability concerned is temporary or permanent; and
(d) disfigurement, with a full description thereof and stating whether it is temporary or permanent.
(11) A plaintiff suing for damages resulting from the death of another shall state the date of birth of the deceased as
well as that of any person claiming damages as a result of the death.
(12) If a party fails to comply with any of the provisions of this rule, such pleading shall be deemed to be an irregular
step and the opposite party shall be entitled to act in accordance with rule 30.
The plaintiff is required to set out the claim in such a manner as to enable the defendant to estimate the quantum.
The rule 'enjoins any party claiming damages to provide sufficient information to enable the opposing party to know
why the particular amount being claimed as damages is in fact being claimed'. It does not matter whether the
damages claimed are special or general ('general' in this context does not refer to sentimental damages but to
damages that must be estimated).
Thompson v Barclays Bank, DCO [1965] 1 All SA 280 (W), 1965 (1) SA 365 (W)
For the purposes of making a tender, a defendant is entitled to know the true nature of the plaintiff's claim but may
not sit back and expect to be supplied with all the [Page 146] information required for an adequate tender. The
defendant is not entitled to an advance abridged edition of the plaintiff's evidence.
Simmonds v White [1980] 1 All SA 412 (C), 1980 (1) SA 755 (C)
Some of the information required may be obtained by means of a request for further particulars for the purposes of
the trial.
Uniform rule 21(4) and (5)
Mitigation of damages: A defendant may allege and prove that the plaintiff's loss was wholly or in part due to the
plaintiff's failure to prevent the accumulation of loss. Reliance on such failure requires a positive allegation and
attracts an onus.
Maja v SA Eagle Ins Co Ltd 1990 (2) SA 701 (A)
A defendant who proves the failure need not quantify the amount of damages. The plaintiff must still prove the
extent of the damages suffered.
Jayber (Pty) Ltd v Miller [1980] 2 All SA 346 (W), 1980 (4) SA 280 (W)
Van Almelo v Shield Insurance Co Ltd [1980] 3 All SA 770 (C), 1980 (2) SA 411 (C)
Krugell v Shield Versekeringsmaatskappy Bpk [1982] 4 All SA 505 (T), 1982 (4) SA 95 (T)
De Pinto v Rensea Investments (Pty) Ltd 1977 (2) SA 1000 (A), 1977 (4) SA 529 (A)
The test is one of reasonableness.
Smit v Abrahams [1994] 4 All SA 679 (A), 1994 (4) SA 1 (A) pp. 1112
Collateral benefits: Generally, compensation received from a collateral source which is wholly independent of the
wrongdoer does not reduce the damages recoverable.
Santam Versekeringsmaatskappy Bpk v Byleveldt [1973] 2 All SA 173 (A), 1973 (2) SA 146 (A) p. 168
The exact limits of this rule cannot be stated succinctly. For instance, in ascertaining a plaintiff's loss of earning
capacity, every benefit under the contract of employment and bestowed as compensation for loss of earnings or
earning capacity must be deducted. On the other hand, benefits paid as a form of solatium or out of generosity and
insurance payments generally are not deductible
General Accident Ins Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v Carstens NO; General
Accident Ins Co SA Ltd v Nhlumayo [1987] 2 All SA 345 (W), 1987 (3) SA 577 (A)
Standard General Insurance Co Ltd v Dugmore NO [1996] 4 All SA 415 (A), 1997 (1) SA 33 (SCA)
When damages are assessed for loss of support because of a person's death, no insurance money, pension or
benefit which has been, will or may be paid as a result of the death may be taken into account.
Assessment of Damages Act 9 of 1969s 1
MacDonald and others v Road Accident Fund [2012] ZASCA 69, [2012] 4 All SA 15 (SCA)
Inquiry into damages: A plaintiff who wishes to have the issue of liability decided before embarking on
quantification may claim a declaratory order to the effect that the defendant is liable and pray for an order that
quantification stand over for later adjudication. Accordingly, a plaintiff is entitled to claim an inquiry into damages
(applicants in motion proceedings are likewise entitled).
If the parties are unable to reach agreement about the future conduct of the case, any party may apply in terms of
Uniform rule 33(5) for direction.
Cadac (Pty) Ltd v WeberStephen Products Company and others [2011] 1 All SA 343 (SCA), 2011 (3) SA 570
(SCA)
Loss of support: See LOSS OF SUPPORT.
Interest: See INTEREST.
Precedents: See MEDICAL AND DENTAL PRACTITIONERS; ROAD ACCIDENTS.
[Page 147]
Deceased estates
Parties: The duly appointed executor is the legal representative of the deceased estate. Proceedings by or against
the estate must be in the name of the executor acting in an official capacity.
Du Toit v Vermeulen [1972] 3 All SA 573 (A), 1972 (3) SA 848 (A)
The rule does not apply when an heir seeks to recover damages on behalf of the estate from a delinquent executor.
Gross v Pentz [1996] 4 All SA 63 (A), 1996 (4) SA 617 (A)
If an executor fails or refuses to act on behalf of the estate, the proper procedure for an interested party is to have
the executor replaced or to cite the executor as a nominal defendant.
Cumes v Estate Cumes [1950] 1 All SA 77 (C), 1950 (2) SA 15 (C)
If a coexecutor refuses without reason to be joined in litigation the court may, on application, permit the other
executor to litigate alone.
Webster v Webster [1968] 3 All SA 392 (T), 1968 (3) SA 386 (T)
Creditor's claims: The Administration of Estates Act 66 of 1965 provides for the proof of claims against deceased
estates and for payment of accepted claims. The executor is obliged to pay only after the accounts have been
accepted by the master.
An action in respect of an undisputed claim instituted before the account is accepted by the master is premature.
McNicol v Delport NO 1980 (4) SA 287 (W)
The normal way of solving a disputed claim is by way of the procedure prescribed in section 35, but the procedure
does not preclude a plaintiff from instituting an action against the estate.
Nedbank Limited v Steyn and others [2015] 2 All SA 671 (SCA), 2016 (2) SA 416 (SCA)
Creditor's claim against an heir: The creditor may claim from an heir repayment of the creditor's claim against the
estate under the condictio indebiti (probably, more correctly, the condictio sine causa).
Kommissaris van Binnelandse Inkomste v Boedel du Toit 1985 (4) SA 594 (NC)
Van Zyl v Serfontein [1992] 1 All SA 185 (C), 1992 (2) SA 450 (C)
See CONDICTIO INDEBITI; CONDICTIO SINE CAUSA
The following matters require emphasis in this context:
(a) The heir must have been unjustly enriched at the expense of the creditor. This will be the case when the heir
was paid before the claim of the creditor was satisfied and nothing is left in the estate to pay the claim of the
creditor.
Mosam v De Kamper [1964] 4 All SA 176 (T), 1964 (3) SA 794 (T)
(b) The claim is not available against a legatee unless the amounts recoverable from heirs are insufficient to cover
the creditor's claim.
Prinsloo v Woolbrokers Federation Ltd [1955] 2 All SA 278 (N), 1955 (2) SA 298 (N)
(c) The indebtedness of the estate to the plaintiff must be alleged and proved.
Mosam v De Kamper [1964] 4 All SA 176 (T), 1964 (3) SA 794 (T)
Creditor's claim against an executor personally: An executor who makes a distribution otherwise than in
accordance with the provisions of the Administration of Estates Act and the accepted estate account is personally
liable to an underpaid creditor for loss caused by the incorrect distribution.
[Page 148]
Onus: The onus on a claimant against a deceased estate is the ordinary civil onus, but a court will scrutinise the
claim with care.
Borcherds v Estate Naidoo [1955] 2 All SA 359 (A), 1955 (3) SA 78 (A)
Low v Consortium Consol Corpn (Pty) Ltd 1999 (1) SA 445 (A)
Maintenance of Surviving Spouses Act 27 of 1990: If a marriage is dissolved by death, the survivor has a claim
against the estate of the deceased spouse for the provision of his or her reasonable maintenance until death or
remarriage in so far as he or she is not able to provide therefor from his or her own means and earnings. Proof and
disposal of the claim must be dealt with in accordance with the Administration of Estates Act 66 of 1965.
Kruger NO v Goss and another [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA)
Friedrich and others v Smit NO and others [2015] 4 All SA 805 (GP)
Freidrich and others v Smit NO and others 2017 (4) SA 144 (SCA)
See DIVORCE s.v. MAINTENANCE FOR A SPOUSE
Maladministration: Heirs have a claim against an executor for loss suffered by them as result of maladministration
of the deceased's estate. The duty of care of the executor flows from the fiduciary position held by the executor.
Lindsay v Stofberg NO [1988] 1 All SA 200 (C), 1988 (2) SA 462 (C)
PRECEDENTS
Claim against executor on contract of deceased
1. Defendant [name] is sued herein in his capacity as executor in the estate of the late [name] (who died at [place] on
[date]), appointed by letters of administration issued in his favour by the Master of the High Court [place] on [date].
2. On [date], the late [name] purchased from the plaintiff certain machinery, by way of an oral agreement, for the sum of
[amount] at [place].
3. The machinery was delivered to [name] during his lifetime on [date], but he failed to pay the purchase price.
4. Plaintiff duly lodged his claim with the defendant in terms of the Administration of Estates Act 66 of 1965.
5. Defendant thereafter lodged a first and final liquidation and distribution account in the estate and advertised it for
inspection.
6. In the said account, the defendant failed to admit and reflect the plaintiff's claim.
7. Plaintiff thereafter lodged an objection with the Master against the omission of the claim from the account. A copy of the
objection is attached and marked 'A'.
8. The Master overruled the plaintiff's objection on [date].
(b) Alternatively, an order directing the defendant to amend the final liquidation and distribution account in the estate of
[name] by including therein the plaintiff's claim as a creditor for [amount].
Claim of creditor against heirs
1. Defendants were appointed only heirs in equal shares in the estate of the late [name] ('the deceased'), who died at
[place] on [date], in terms of his last will, duly executed by him at [place] on [date]. A copy of the will is attached and
marked 'A'.
2. At the time of his death, the deceased was indebted to the plaintiff in the sum of [amount] being [detail].
3. On [date], the executor in the deceased estate, after having lodged and advertised a first and final liquidation and
distribution account in the estate, paid to the defendants the sum of [amount] each, being their share as heirs.
[Page 149]
4. Plaintiff, being at all material times ignorant of the death of the deceased, did not lodge his claim with the executor, and
the executor did not include the plaintiff's claim in the account. In consequence, the plaintiff received no payment in
respect of the claim.
5. There are no other funds or assets in the hands of the executor belonging to the deceased estate out of which the
plaintiff's claim can be satisfied.
6. In the premises, the defendants have been unjustly enriched at the plaintiff's expense in the amount of [amount] and are
accordingly liable to him in that amount.
Claim for damages against a dismissed executor
1. Plaintiff is the executor in the estate of the late [name].
2. First defendant was the executor in the estate from [date] until [date] when he was removed from his position and the
master of this court appointed the plaintiff in his stead.
3. First and second defendants, in partnership, conducted the business of accepting appointments as executors and the
administration of deceased estates for the benefit of the partnership.
4. First defendant, as partner, accepted and occupied the position of executor.
5. During [state period], the first defendant stole [specify] from the estate.
6. First defendant acted in the course and scope of the business of the partnership.
7. Therefore, the estate suffered damages in the sum of [amount].
8. The partnership was dissolved on [date].
The plaintiff claims against the defendants, jointly and severally, payment of [amount].
[Based on Lindsay v Stofberg NO [1988] 1 All SA 200 (C), 1988 (2) SA 462 (C).]
Claim for damages against executor
[Useful precedents are to be found in Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA 283 (A) pp. 311G315D;
Sasfin (Pty) Ltd v Jessop 1997 (1) SA 675 (W) p. 680D.]
Claim for damages by heir against executor
[A useful precedent is to be found in Gross v Pentz [1996] 4 All SA 63 (A), 1996 (4) SA 617 (A).]
Declaration of right
General: A high court may in its discretion and at the instance of any interested person inquire into and determine
any existing, future or contingent right or obligation. It does not matter that the person cannot claim relief
consequent upon the determination.
Superior Courts Act 10 of 2013s 21(1)(c)
Court: Only the High Court may grant a declaration of rights.
Johnson v A Blaikie & Co (Pty) Ltd t/a FT Building Supplies Manaba [1998] 2 All SA 38 (N), 1998 (3) SA 251 (N)
Procedure: If a dispute of fact is foreseeable, the declaration of right should be sought by way of action. If there
are no real factual disputes, application procedure may be used. Claimants must set out their contentions regarding
their alleged right and what interest they have in the right.
Electrical Contractors' Association SA v Building Industries Federation SA (2) [ 1 9 8 0 ] 3 A l l S A 7 6 ( T ) ,
1980 (2) SA 516 (T)
[Page 150]
Interested person: A declaration must be binding on an 'interested person', but an existing dispute is not a
requirement for a declaration.
Ex parte Nell [1963] 2 All SA 55 (A), 1963 (1) SA 754 (A)
Preston v Vredendal CoOperative Winery Ltd [2000] 4 All SA 492 (E), 2001 (1) SA 244 (E)
The interest of the claimant must be a real and not an abstract or intellectual one.
Durban City Council v Association of Building Societies 1942 AD 27
JT Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC)
It is not the function of a court to act in a consultative or advisory capacity although it may in appropriate
circumstances base a declaration of right on assumed facts.
Compagnie Interafricaine de Travaux v SA Transport Services [1991] 2 All SA 155 (A), 1991 (4) SA 217 (A) p. 230
All interested parties must be joined.
Stadsraad van Randburg v Ludorf NO [1984] 4 All SA 108 (W), 1984 (3) SA 469 (W)
'Right': A court cannot grant a declaration regarding a fact; the declaration must relate to a right. Persons who
have the right are those in whom the right inheres or against whom it avails.
Electrical Contractors' Association SA v Building Industries Federation SA (2) [ 1 9 8 0 ] 3 A l l S A 7 6 ( T ) ,
1980 (2) SA 516 (T)
The right or obligation may be in existence, in futuro or contingent. 'Contingent' means 'not vested' and the order
may be granted before the cause of action arises.
SuidAfrikaanse Onderlinge Brand en Algemene Versekeringsmaatskappy Bpk v Van den Berg 1976 (1) SA 602
(A)
Discretion: The court's discretion to issue a declaration arises when the court is satisfied that the claimant is an
interested person and that there is an existing, future or contingent right or obligation.
Reinecke v Incorporated General Insurances Ltd [1974] 2 All SA 80 (A), 1974 (2) SA 84 (A)
South African Mutual Life Assurance Society v AngloTransvaal Collieries Ltd [ 1 9 7 7 ] 4 A l l S A 2 0 3 ( A ) ,
1977 (3) SA 642 (A)
In considering whether to exercise this discretion, the court may have regard to
(a) whether there is an existing dispute;
(b) whether the order will be binding; and
(c) whether the claimant is entitled to claim consequential relief
Ex parte Nell [1963] 2 All SA 55 (A), 1963 (1) SA 754 (A)
Mahomed v Mahomed [1976] 1 All SA 144 (T), 1976 (3) SA 151 (T)
Safari Reservations (Pty) Ltd v Zululand Safaris (Pty) Ltd [1966] 3 All SA 546 (D), 1966 (4) SA 165 (D)
Even though declaratory relief may not have been specifically claimed, it may be granted as alternative relief.
Luzon Investments (Pty) Ltd v Strand Municipality [1990] 1 All SA 70 (C), 1990 (1) SA 215 (C)
PRECEDENTS
Claim in relation to a will
1. The last will of the late [name] provides that his children are to inherit in equal shares the remainder of his estate. A
copy of the will is annexed hereto.
2. Defendant alleges that he is the only child of the deceased and that he is, therefore, entitled to the whole of the
remainder of the estate.
3. Plaintiff alleges that he is the only child of the deceased and that he is entitled to the whole of the remainder of the
estate.
[Page 151]
4. Plaintiff alleges in the alternative that the deceased had two children namely plaintiff and defendant and that plaintiff and
defendant are entitled to inherit in equal shares.
(a) An order declaring that plaintiff is the only child of the deceased and is entitled to inherit the remainder of the estate.
(b) Alternatively, an order declaring that plaintiff and defendant are the only children of the deceased and are entitled to
inherit the remainder of his estate in equal shares.
Claim on a contract
1. On [date] at [place], plaintiff and defendant concluded a written contract. A copy is annexed as Annexure 'A'.
2. In terms of the contract, defendant gave plaintiff an option to purchase [item] at [place] before [date].
3. Defendant alleges that the option is void because of noncompliance with the provisions of section 2 of the Alienation of
Land Act 68 of 1981 because the document does not identify the property.
4. Plaintiff alleges that the option is not void for the reason stated or for any other reason.
The plaintiff claims an order declaring the option contained in Annexure 'A' to be valid and that plaintiff is entitled to exercise it
on or before [date].
Defamation: Claims
Cause of action: The actio iniuriarum protects, in this case, the dignity of the plaintiff. In relation to defamation, the
action has certain special characteristics which will be dealt with below.
Bill of rights: The Bill of Rights protects human dignity. Defamation violates a person's dignity (more correctly, a
person's reputation or fama). The adoption of the Bill of Rights gave rise to some uncertainty in that the Bill protects
conflicting rights, namely those of dignity and privacy, on the one hand, and freedom of expression (including
freedom of the press and other media) and political rights, on the other. To balance these rights and determine
their ranking in the field of defamation is difficult. Fortunately, many of the problems have been solved.
National Media Ltd v Bogoshi [1998] 4 All SA 347 (A), 1998 (4) SA 1196 (SCA)
Khumalo v Holomisa 2002 (8) BCLR 771 (CC), 2002 (5) SA 401 (CC)
A party wishing to claim for defamation must rely on the commonlaw rules and not directly on the Constitution. Only
when the common law does not provide adequate protection does the Constitution come into play.
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: Some of the provisions of the Act
overlap with the commonlaw remedy but provide for additional remedies.
Parties: A trading corporation is entitled to claim for general damages caused by defamatory statements injuring its
reputation as a business. In general, a nontrading corporation may similarly claim for defamation.
Caxton Ltd v Reeva Forman (Pty) Ltd [1990] 2 All SA 300 (A), 1990 (3) SA 547 (A)
Financial Mail (Pty) Ltd v Sage Holdings Ltd [1993] 2 All SA 109 (A), 1993 (2) SA 451 (A) p. 460
Media 24 Ltd and others v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd and others as amici curiae) [2011] 4
All SA 9 (SCA), 2011 (5) SA 329 (SCA) paras 8 and 9
[Page 152]
Both forms of damages can be claimed in the same action provided that the requirements of both are satisfied.
All SA 9 (SCA), 2011 (5) SA 329 (SCA) paras 8 and 9
Even judges may sue,
Argus Printing & Publishing Co Ltd v Esselen's Estate [1994] 2 All SA 160 (A), 1994 (2) SA 1 (A)
as may political bodies and trade unions.
Argus Printing & Publishing Co Ltd v Inkatha Freedom Party [1992] 2 All SA 185 (A), 1992 (3) SA 579 (A)
African National Congress v Inkatha Freedom Party [1999] 3 All SA 47 (W)
SA National Defence Union v Minister of Defence 2012 (4) SA 382 (GNP) paras 1419
On the other hand, the state and its organs including municipalities cannot claim,
Die Spoorbond v SA Railways; Van Heerden v SA Railways 1946 AD 999
Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd 1998 (3) SA 1114 (ZHC)
Bitou Municipality v Booysen 2011 (5) SA 31 (WCC)
although state officers (such as ministers) may claim in their personal capacity.
MthembiMahanyele v Mail & Guardian Ltd [2004] 3 All SA 511 (SCA), 2004 (6) SA 329 (SCA)
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C)
A peregrinus may sue for defamation published within the court's area of jurisdiction.
Simmonds v White [1980] 1 All SA 412 (C), 1980 (1) SA 755 (C) p. 759
Wrongfulness: A statement is defamatory if it has a 'tendency' or is calculated to undermine the status, good name
or reputation of the plaintiff. Publication of a defamatory statement is prima facie wrongful.
Le Roux v Dey [2010] 3 All SA 497 (SCA), 2010 (4) SA 210 (SCA) para. 8
Le Roux v Dey 2011 (6) BCLR 577 (CC), 2011 (3) SA 274 (CC)
The onus rests on the defendant to dispel this prima facie case. This is a full onus and requires the defendant to
allege and prove facts that dispel wrongfulness, such as truth and public interest.
Neethling v Du Preez; Neethling v The Weekly Mail [1994] 3 All SA 479 (A), 1994 (1) SA 708 (A) pp. 769780
It is a question of law whether the words complained of are reasonably capable of conveying to the reasonable
reader a meaning which defames the plaintiff.
Mohamed v Jassiem 1996 (1) SA 673 (A) pp. 703704
The matter may be decided on exception.
Johnson v Beckett [1992] 1 All SA 383 (A), 1992 (1) SA 762 (A)
Argus Printing & Publishing Co Ltd v Esselen's Estate [1994] 2 All SA 160 (A), 1994 (2) SA 1 (A) p. 20
If the words complained of can have a defamatory meaning in their ordinary sense, a cause of action is disclosed
which does not cease to be disclosed when the pleader, in paraphrasing the words, adds something more than
their ordinary meaning.
New Age Press Ltd v O'Keefe [1947] 1 All SA 251 (W), 1947 (1) SA 311 (W)
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) p. 1226
[Page 153]
If the plaintiff relies on the defamatory nature of the statement in its ordinary meaning, evidence of how a witness
understood the statement is inadmissible.
Hassen v Post Newspapers (Pty) Ltd [1965] 3 All SA 528 (W), 1965 (3) SA 562 (W)
Terms of the statement: The plaintiff must set out the words alleged to have been used by the defendant and
must prove them. It is not necessary to plead the actual words used. The plaintiff may allege that the words set out
were 'more or less' the words used. The effect and meaning of the words are for the court to decide, but the
plaintiff must prove the words used or words bearing a substantially similar meaning.
International Tobacco Co of SA Ltd v Wollheim [1953] 3 All SA 20 (A), 1953 (2) SA 603 (A) pp. 613614
Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C)
The whole document containing the alleged defamation may be included in or annexed to the claim, without
specifying the defamatory passages. The question is then whether the document as a whole was defamatory. This
is a matter of interpretation.
Sindani v Van der Merwe [2002] 1 All SA 311 (A), 2002 (2) SA 32 (SCA)
Times Media Ltd v Niselow [2005] 1 All SA 567 (SCA)
Kgothule v Majonga 2015 (6) SA 389 (FB)
Failure to specify the defamatory passages may render the pleading vague and embarrassing.
Deedat v Muslim Digest [1980] 2 All SA 80 (D), 1980 (2) SA 922 (D) p. 928
Kruger v Johnnic Publishing (Pty) Ltd 2004 (4) SA 306 (T)
If the words published are, according to the defendant, materially different from those alleged by the plaintiff, a
defence based on the defendant's version is not permitted. The defendant should deny publication of the words
alleged and, in the alternative, plead defences germane thereto.
Mahomed v Kassim [1973] 2 All SA 398 (RA), 1973 (2) SA 1 (RA)
De Villiers v Schutte 2001 (3) SA 834 (C)
Publication: The plaintiff must allege and prove publication of the defamatory statement.
Le Roux v Dey 2011 (6) BCLR 577 (CC), 2011 (3) SA 274 (CC) paras 86 and 104
Cele v Acusa Media Ltd [2013] 2 All SA 412 (GSJ) paras 2330
Publication must be to a person other than the plaintiff or the plaintiff's spouse. It is not necessary to state the
names of all the persons in whose presence the defamatory statement was made, but only those whose identities
have been pleaded may be called as witnesses to prove publication. The purpose of this rule is to prevent surprise.
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4) 1955 (2) SA 40 (W)
Crots v Pretorius 2010 (6) SA 512 (SCA), [2011] 3 All SA 10 (SCA) para. 15
If the name of the person to whom the publication was made is unknown, this fact must be stated.
Pillay v Naidoo 1916 WLD 151
If publication takes place in a publicly distributed document, publication is presumed.
There can be no publication unless or until the addressee understands the defamatory nature of the statement.
Vermaak v Van der Merwe [1981] 1 All SA 432 (N), 1981 (3) SA 78 (N)
Republication by the same person of a defamatory statement does not necessarily create a new cause of action but
may aggravate damages.
Mograbi v Miller [1956] 4 All SA 220 (T), 1956 (4) SA 239 (T)
Republication by a third person creates a separate cause of action against that person. It does not, however,
create vicarious liability.
Hassen v Post Newspapers (Pty) Ltd [1965] 3 All SA 528 (W), 1965 (3) SA 562 (W) p. 565
[Page 154]
National Education, Health & Allied Workers Union v Tsatsi [2006] 1 All SA 583 (SCA), 2006 (6) SA 327 (SCA)
It is preferable to state where the defamatory statement was published.
Rieseberg v Berry 1914 TPD 561
Reference to plaintiff: The plaintiff must allege and prove that the defamatory words were published 'of and
concerning' the plaintiff. In a case of class or group libel the plaintiff can succeed only if the matter complained of,
although said to be in respect of the class or group of which the plaintiff is a member, concerned the plaintiff
personally.
SA Associated Newspapers Ltd v Estate Pelser [1975] 4 All SA 683 (A), 1975 (4) SA 797 (A) p. 810
It is an objective question, capable of determination at the exception stage, 'whether the words (pleaded) are
reasonably capable of conveying to the reasonable reader, having average intelligence and knowledge', that the
defamatory article referred to the plaintiff.
SA Associated Newspapers Ltd v Estate Pelser [1975] 4 All SA 683 (A), 1975 (4) SA 797 (A) p. 811
If the plaintiff is not directly referred to in the defamatory statement, the circumstances which would have identified
the plaintiff to the addressees must be pleaded.
Argus Printing & Publishing Co Ltd v Weichardt 1940 CPD 453
Visse v Wallachs' Printing & Publishing Co Ltd 1946 TPD 441
The test is whether a reasonable person hearing or reading the utterance would be likely to apply it to the plaintiff.
Sauls v Hendrickse [1992] 2 All SA 205 (A), 1992 (3) SA 912 (A)
Innuendo: Innuendo must be distinguished from implied meaning. An implied meaning depends on an interpretation
of the words used.
Argus Printing & Publishing Co Ltd v Esselen's Estate [1994] 2 All SA 160 (A), 1994 (2) SA 1 (A) p. 21
If the words used are not defamatory per se but are on the face of them innocent, the plaintiff may rely on
innuendo. The plaintiff must then set out the defamatory sense attributed to them; allege that the defendant so
intended them; and allege that they were so understood by those to whom they were published.
Wallachs Ltd v Marsh 1928 TPD 531
HT Group (Pty) Ltd v Hazelhurst [2003] 2 All SA 262 (C)
A plaintiff is bound by the innuendo relied on in the pleadings.
Smalle and another v Southern Palace Investments 440 (Pty) Limited and another [2016] ZASCA 189
The plaintiff must allege and prove the facts and circumstances warranting the innuendo pleaded.
Unie Volkspers Bpk v Rossouw 1943 AD 519
Visse v Wallachs' Printing & Publishing Co Ltd 1946 TPD 441
A plaintiff who relies on a secondary meaning must prove the special circumstances by reason of which the
published matter would, to those aware of those circumstances, bear the alleged secondary meaning. The plaintiff
must also prove that there were persons among those to whom the publication was made who were indeed aware
of the special circumstances and to whom that publication was likely to have conveyed the imputation relied upon.
Sutter v Brown 1926 AD 155 p. 166
Unie Volkspers Bpk v Rossouw 1943 AD 519 p. 524
Hassen v Post Newspapers (Pty) Ltd [1965] 3 All SA 528 (W), 1965 (3) SA 562 (W)
[Page 155]
Falsity: Falsity is not a matter to be alleged or proved by the plaintiff because the defamatory nature of a statement
does not depend on its falsity.
Sutter v Brown 1926 AD 155 p. 172
A defendant may, however, justify the statement by alleging and proving its truthfulness and that its publication
was in the public interest. Alternatively, a publisher may rely on the reasonableness of the statement to dispel the
allegation of wrongfulness.
Khumalo v Holomisa 2002 (8) BCLR 771 (CC), 2002 (5) SA 401 (CC) para. 43
The truth of the statement may affect the quantum of damages.
Animus iniuriandi : Animus iniuriandi is said to have has two elements, namely the intent to defame and

knowledge of wrongfulness.
SAUK v O'Malley [1977] 3 All SA 631 (A), 1977 (3) SA 394 (A)
However, the second element is not part of the law of delict.
Le Roux v Dey [2010] 3 All SA 497 (SCA), 2010 (4) SA 210 (SCA)
Although a plaintiff must allege animus iniuriandi in the sense of intent to defame, it is presumed that the publication
of a defamatory statement was animo iniuriandi. The defendant bears the onus of alleging and proving the absence
of animo iniuriandi.
See DEFAMATION: DEFENCES
Interdicts: A party may obtain an interdict based on defamation, but courts should be slow in granting interim
interdicts.
Hix Networking Technologies CC v System Publishers (Pty) Ltd [1996] 4 All SA 675 (A), 1997 (1) SA 391 (SCA)
Herbal Zone (Pty) Limited and others v Infitech Technologies (Pty) Limited and others [2017] 2 All SA 347 (SCA)
Damages: The plaintiff need not particularise general damages or provide particulars about the plaintiff's
reputation, standing in the community, or character or the extent of the publication.
Simmonds v White [1980] 1 All SA 412 (C), 1980 (1) SA 755 (C) p. 758
Although not a rule of pleading, a defendant is obliged to give the plaintiff notice, prior to the trial, of the intention
to lead evidence in mitigation of damages because of the general character or reputation of the plaintiff.
Thole v Minister of Justice [1967] 4 All SA 7 (D), 1967 (3) SA 531 (D)
Naylor v Jansen [2005] 4 All SA 26 (SCA), 2006 (3) SA 546 (SCA)
For the factors relevant to determining the quantum of damages, see
SA Associated Newspapers Ltd v Samuels [1980] 3 All SA 227 (A), 1980 (1) SA 24 (A)
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd [2001] 1 All SA 425 (A), 2001 (2) SA 242 (SCA)
Tsedu and others v Lekota and another [2009] 3 All SA 46 (SCA), 2009 (4) SA 372 (SCA)
When the plaintiff claims damages in respect of different defamatory publications, damages ought to be
apportioned in the pleadings. This rule does not apply if the publications make the same statement.
Argus Printing & Publishing Co Ltd v Rutland [1953] 3 All SA 144 (C), 1953 (3) SA 446 (C)
Patrimonial loss: A plaintiff may claim for actual patrimonial loss suffered because of defamation. The cause of
action is then the lex Aquilia, being a claim for pure economic loss. This means that the plaintiff bears the onus in
respect of all issues. One of these is wrongfulness. As a matter of pleading, a plaintiff claiming for pure economic
loss must allege wrongfulness and plead the facts in support of that allegation. It does not follow that, because a
defamatory publication is wrongful for the purposes of a defamation action, policy considerations will automatically
indicate the imposition of liability for [Page 156] pure economic loss resulting from that publication. For instance, if
the case is that the defamatory statements were untrue, the plaintiff must allege and prove that fact.
All SA 9 (SCA), 2011 (5) SA 329 (SCA)
The ordinary principles applicable to proof of damages would then apply.
Caxton Ltd v Reeva Forman (Pty) Ltd [1990] 2 All SA 300 (A), 1990 (3) SA 547 (A)
PRECEDENTS
Claim against member of public media
1. (a) First defendant is the editor of the [name] newspaper.
(b) Second defendant is the owner and publisher of the said newspaper.
(c) Third defendant is the distributor of the said newspaper.
(d) Fourth defendant is the printer of the said newspaper.
2. On [date] at [place], an article entitled [name] was published in the said newspaper. A copy of the article is annexed
hereto.
3. The said newspaper is a paper widely distributed in South Africa and widely read by the public.
4. The said article stated of plaintiff that [detail].
5. The said words, in the context of the article, are wrongful and defamatory of plaintiff in that they were intended and were
understood by readers of the newspaper to mean that plaintiff is dishonest in the following respects: [detail].
6. Because of the defamation, plaintiff has been damaged in his reputation and has suffered damages in the amount of
[amount].
The plaintiff claims against defendants, jointly and severally, payment of [amount] being damages.
Claim for group defamation
4. (a) The said article is per se defamatory of a group of persons, namely [specify], in that it alleges [detail].
(b) Plaintiff is a member of the group and this fact is a matter of common knowledge because [specify].
(c) The reference to the group was intended to include a reference to plaintiff and would so be understood by the
ordinary reader.
Claim against an individual
1. On [date] at [place], defendant stated to [name] of and concerning plaintiff that [detail].
2. The statement by defendant is wrongful and defamatory of plaintiff.
3. The statement was made with the intention to defame plaintiff and to injure his reputation.
4. The statement was understood by the addressee and was intended by defendant to mean that plaintiff is dishonest in the
following respects: [detail].
5. Because of the defamation, plaintiff has been damaged in his reputation and has suffered damages in the sum of
[amount].
Claim alleging a sting
Apart from the defamatory meaning of the article as set out above, the article carries the additional sting that plaintiff is:
(a) not a lawabiding citizen;
(b) a coward; and
(c) without moral fibre.
[Page 157]
Claim alleging innuendo
1. Defendant distributed a pamphlet to plaintiff's employees on [date] at [place]. A copy of the pamphlet is annexed hereto.
2. The content of the pamphlet is false and defamatory of plaintiff in that it imputes, and was intended by defendant to
impute, and was understood by the persons to whom it was distributed to impute, that plaintiff, although in a financial
position to do so, had consistently over a period of years failed to pay a living wage to his employees and was thereby
guilty of unconscionable and oppressive conduct unworthy of a reputable businessman.
1. The said article stated, inter alia, of plaintiff that 'he is, oh, so honest'.
2. In the context of the article, defendant's intention was to convey the innuendo that plaintiff is, in fact, dishonest.
3. The article was so understood as to convey the meaning that plaintiff is dishonest.
4. The innuendo is wrongful and is defamatory of plaintiff.
The contents of the said news report were wrongful and defamatory of the plaintiff in that it was intended to mean, and was
understood by the persons to whom it was addressed to mean that the plaintiff:
(a) was guilty of criminal conduct in that he participated in or associated himself with the activities of murderers;
(b) was a criminal;
(c) acted with a common purpose with the perpetrators of the murders referred to in, in that he led the murderers to the
house where the murders were committed;
(d) threatened that should he be arrested in connection with the said murders, he would cause a civil war.
[From Buthelezi v South African Broadcasting Corporation [1998] 1 All SA 147 (D), 1997 (12) BCLR 1733 (D). For another
example, see Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA).]
Exception nondefamatory allegation
1. The statement alleged to be defamatory of plaintiff is that plaintiff's son was found guilty of rape.
2. Plaintiff does not rely on an innuendo or secondary meaning to be attached to the statement.
3. The statement is, in its ordinary significance, not defamatory of plaintiff.
4. Plaintiff's claim, therefore, do not disclose a cause of action.
Defamation: Defences
Related subject: DEFAMATION: CLAIMS
Denial of defamation: A defendant who sets up the defence that the words complained of, while prima facie
defamatory, were used in a nondefamatory sense must plead that meaning and the special circumstances
supporting it. The onus rests on the defendant to prove these circumstances.
National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984
Marais v Steyn [1975] 3 All SA 401 (T), 1975 (3) SA 479 (T) pp. 484485
[Page 158]
The defendant is not obliged to particularise a denial of the plaintiff's construction of the statement.
Brett v Schultz [1982] 4 All SA 195 (SE), 1982 (3) SA 286 (SE)
Similarly, the defendant in denying an innuendo is not obliged to provide the defendant's own interpretation of the
statement or any extrinsic facts relating to it.
National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984
Stereotyped defences (categories): Stereotyped defences exist to rebut the presumption of wrongfulness and
animus iniuriandi but are not technically necessary. The defence of absence of wrongfulness or animus iniuriandi may
be established without reference to them.
Hardaker v Phillips 2005 (4) SA 515 (SCA)
It remains advisable, however, to cast the defence in one or other of the traditional moulds. If a defence is
specifically pleaded, it falls to be dealt with according to established principles.
Denial of wrongfulness: The following defences go to wrongfulness: justification, including truth and public benefit;
fair comment; reasonable publication; and qualified privilege.
Modiri v Minister of Safety and Security and others [2012] 1 All SA 154 (SCA), 2011 (6) SA 370 (SCA)
The defendant must allege and prove that a prima facie defamatory statement was not wrongful. The real question
is whether making the statement was reasonable and therefore justifiable. Constitutional values serve to rebut
unlawfulness.
Le Roux v Dey 2011 (6) BCLR 577 (CC), 2011 (3) SA 274 (CC) para. 85
Lack of knowledge of wrongfulness (afwesigheid van wederregtelikheidsbewussyn) : Lack of knowledge of
wrongfulness is not a defence.
Le Roux v Dey [2010] 3 All SA 497 (SCA), 2010 (4) SA 210 (SCA)
Truth and public interest: The defendant must allege and prove that
(a) the statement was true; and
(b) its publication was to the benefit of the public.
Johnson v Rand Daily Mail 1928 AD 190
Modiri v Minister of Safety and Security and others [2012] 1 All SA 154 (SCA), 2011 (6) SA 370 (SCA)
Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA) para. 47
It is not necessary for the truth of every word used to be proved literally.
Smit v OVS Afrikaanse Pers Bpk [1956] 2 All SA 65 (O), 1956 (1) SA 768 (O)
It is sufficient for a statement to be substantially true in every material part.
Times Media Ltd v Niselow [2005] 1 All SA 567 (SCA)
'Anything that does not add to the sting need not be justified.'
Yusaf v Bailey [1964] 4 All SA 44 (W), 1964 (4) SA 117 (W) p. 126
Public benefit 'lies in telling the public of something of which they were ignorant, but something which it was in their
interest to know. If they already knew it, it hardly seems that mere repetition can be of value'. All the surrounding
circumstances must be considered.
Mahomed v Kassim [1973] 2 All SA 398 (RA), 1973 (2) SA 1 (RA)
Whether a statement was for the public benefit cannot be decided on exception.
Kemp v Republican Press (Pty) Ltd [1994] 4 All SA 392 (E), 1994 (4) SA 261 (E)
[Page 159]
Publicmedia privilege: A media defendant who cannot establish the truth of a defamatory statement may
nevertheless rely on the reasonableness of the publication of the statement as a defence.
The defendant must allege and prove that it had reason to believe in the truth of the statement and took
reasonable steps to verify its correctness and that publication of the statement was reasonable in all the
circumstances of the case.
Hardaker v Phillips 2005 (4) SA 515 (SCA)
Fair comment essentials: The defendant must allege and prove that
(a) the statement complained of was a comment (opinion) and not a statement of fact and that it was or would
have been understood as a comment by a reasonable hearer;
(b) the comment was fair. It need not necessarily have been impartial or well balanced. 'Fair' is used vaguely as
meaning 'that it does not exceed certain limits';
(c) the facts commented on were truly stated; and
(d) the matter was of public interest.
Johnson v Beckett [1992] 1 All SA 383 (A), 1992 (1) SA 762 (A)
The Citizen 1978 (Pty) Ltd and others v McBride 2011 (8) BCLR 816 (CC), 2011 (4) SA 191 (CC)
Cf. Democratic Alliance v African National Congress and another 2015 (3) BCLR 298 (CC), 2015 (2) SA 232 (CC)
The protection of the defence is forfeited if the publisher acted with malice or an improper motive. The plaintiff bears
the onus.
Crawford v Albu 1917 AD 102
Qualified privilege essentials: This defence is available if the defamatory words were published in the discharge
of a duty or exercise of a right to a person who had a duty or right to receive the statement. A typical case is a
statement made during litigation. The test is objective, and the court will apply the standard of the reasonable
person, having regard to the relationship between the parties and the surrounding circumstances.
Tuch and NNO v Myerson and others [2010] 2 All SA 48 (SCA), 2010 (2) SA 462 (SCA)
Naylor v Jansen [2005] 4 All SA 26 (SCA), 2006 (3) SA 546 (SCA) para. 11
The onus rests on the defendant.
The defendant must allege and prove (prima facie) that the statement was pertinent or germane to the issues.
Joubert v Venter [1985] 1 All SA 443 (A), 1985 (1) SA 654 (A)
Herselman NO v Botha [1994] 1 All SA 420 (A), 1994 (1) SA 28 (A) p. 35
Qualified privilege rebuttal: The plaintiff may rebut the defence by alleging (in the replication) and proving
(a) that the statement had no basis and was not germane; or
(b) malice that is, an indirect or improper motive.
May v Udwin 1981 (1) SA 1 (A)
Tuch and others NNO v Myerson and others [2010] 2 All SA 48 (SCA), 2010 (2) SA 462 (SCA)
Public media: A member of the public media may escape liability for a defamatory publication disseminated via the
media if the defamatory publication was reasonable. The general criterion of reasonableness determines whether a
defamatory publication was wrongful or not. Reasonableness in this context must not be conflated with negligence.
[Page 160] If publication is justifiable, the question of fault cannot arise and the defence is not one of lack of
animus iniuriandi.
Animus iniuriandi onus: Upon the plaintiff's proving that the defamatory words were used by the defendant and
that they referred to the plaintiff, a rebuttable presumption arises that they were used wilfully and knowingly with
the object of defaming the plaintiff. The onus is on the defendant to establish some lawful justification or excuse for
the publication or to establish the absence of an intention to injure the plaintiff.
Marais v Groenewald [2000] 2 All SA 578 (T), 2001 (1) SA 634 (T)
Animus iniuriandi denial: Because the onus is on the defendant a bare denial of animus iniuriandi cannot suffice.
It is not enough to allege that the publication was lawful.
SAUK v O'Malley [1977] 3 All SA 631 (A), 1977 (3) SA 394 (A) p. 403
Jest: The defendant must show that the defamatory statement was made in jest, was objectively and in the
circumstances so understood, and could not reasonably have been understood in a defamatory sense.
Le Roux v Dey 2011 (6) BCLR 577 (CC), 2011 (3) SA 274 (CC) paras 113115
Rixa: Defamatory words said in sudden anger and provoked by the plaintiff may constitute a defence.
Benson v Robinson & Co (Pty) Ltd [1967] 1 All SA 476 (A), 1967 (1) SA 420 (A) p. 426
This defence may be pleaded in the alternative to a denial of the words used or to a plea of justification.
Wood NO v Branson [1952] 3 All SA 414 (T), 1952 (3) SA 369 (T)
Lichtenburg Garage (Pty) Ltd v Gerber [1963] 2 All SA 404 (T), 1963 (4) SA 395 (T)
Alternatives: More than one defence may be pleaded, but it is normally necessary to plead the defences in the
alternative. Problems may arise in presenting evidence in that evidence in respect of one defence may be
inadmissible in respect of another.
Strydom v FennerSolomon [1953] 1 All SA 253 (E), 1953 (1) SA 519 (E) p. 527
A plea stating that the words, in so far as they are statements of fact, are true and, in so far as they are
expressions of opinion, constitute fair comment on a matter of public interest is not subject to exception.
Van der Hoven v Erasmus 1922 TPD 1
Rolledup defences: A plaintiff is entitled to know whether the defendant is setting up a defence of justification or
fair comment or both. A 'rolledup plea' a plea combining justification and fair comment with regard to the same
defamatory statement is objectionable. A defendant wishing to put forward alternative defences must state which
allegations are said to be true and which are said to be fair.
Davies v Lombard [1966] 1 All SA 177 (W), 1966 (1) SA 585 (W) p. 588
PRECEDENTS
Plea alleging secondary meaning
1. Defendant denies that he stated to the members of the welfare society that plaintiff stole R10 000,00 from the society.
2. In the alternative, and if it is found that defendant did make the statement alleged, or a similar statement, defendant
denies that the words used were understood as alleged and pleads that they were intended to mean and were
understood by the members to whom they were published as meaning that plaintiff had acted improperly in failing to pay
to the society the loan of R10 000,00 in accordance with his undertaking.
[Page 161]
3. Defendant further pleads that the meaning alleged in paragraph 2 of this plea was true and the publication was for the
public benefit.
Defendant denies that the statement was made wrongfully or with the intention to injure plaintiff's reputation because:
(a) the statement was essentially true;
(b) the publication of the statement to [name] was in the public interest; or
(c) the statement was made by defendant in his capacity as magistrate during a judgment and the statement was germane
to the issue in the case; or
(d) the statement was not a statement of fact but a comment concerning a matter of public interest, namely the finances of a
public body;
(e) the comment was fair in the circumstances;
(f) the facts on which the comment was based were true.
Plea public media privilege
The defendant pleads that the publication of the articles was not wrongful or animo iniuriandi, more particularly:
(a) the defendants were unaware of the falsity of any averment in any of the articles;
(b) the defendants did not publish any of the articles recklessly. The facts upon which the defendants will rely are [detail];
(c) the defendants were not negligent in publishing any of the articles. The facts upon which the defendants will rely are
[detail];
(d) in view of the facts alleged, the publications were objectively reasonable;
(e) the articles were consequently published without animus iniuriandi.
[See National Media Ltd v Bogoshi [1998] 4 All SA 347 (A), 1998 (4) SA 1196 (SCA).]
Replication to plea
1. It is admitted that the statement was made by defendant in his capacity as magistrate during his judgment.
2. It is denied that the statement was germane to any issue in the case because the issue was one of prescription and
plaintiff's character was irrelevant in deciding the issue.
3. It is denied that defendant acted lawfully or without the alleged intent, and plaintiff alleges that defendant made the
statement maliciously, having special regard to a personal dispute concerning [detail] between plaintiff and defendant,
which has no bearing on the matter heard by defendant.
Delict: Lex Aquilia
Related subjects: DAMAGES: DELICTUAL DAMAGES; NEGLIGENCE; NEGLIGENCE: CONTRIBUTORY NEGLIGENCE;
ROAD ACCIDENTS; STATUTORY DUTY OR AUTHORITY: BREACH; UNLAWFUL (UNFAIR) COMPETITION; VOLENTI NON FIT
INIURIA
Cause of action: The actio legis Aquiliae enables a plaintiff to recover patrimonial loss (including purely economic
loss) suffered through a wrongful and negligent act or omission of the defendant.
Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N)
[Page 162]
Its principles also apply to a claim for damages suffered because of bodily injuries to or the death of another person
(e.g. a breadwinner).
Evins v Shield Insurance Co Ltd [1980] 2 All SA 40 (A), 1980 (2) SA 814 (A)
See LOSS OF SUPPORT
Jurisdiction: The principal rule is that a cause in delict arises where the delict was committed or where it occurred.
Superior Courts Act 10 of 2013s 21
This does not mean that all the elements of the delict must have occurred in a court's area of jurisdiction: a court
has jurisdiction if the material and majority of the ingredients of the delict or the facta probanda of the ground of
negligence took place within the area of its jurisdiction.
Thomas v BMW South Africa (Pty) Ltd 1996 (2) SA 106 (C)
Vulindlela Furniture Manufacturers (Pty) Ltd v MEC, Department of Education and Culture, Eastern Cape
1998 (4) SA 908 (Tk) p. 921
Wrongful act or omission: Liability depends on the wrongfulness of the act or omission of the defendant. The
plaintiff must allege and prove the act or omission on which the cause of action is based.
The plaintiff must also allege and prove facts from which wrongfulness can be inferred. Wrongfulness may be
inferred from an allegation that the defendant negligently caused the plaintiff damage. If physical damage was
caused, wrongfulness is presumed.
If wrongfulness cannot be inferred from the nature of the loss suffered when the plaintiff claims for a loss resulting
from an omission or for pure economic loss, the defendant's legal duty to the plaintiff must be defined and the
breach alleged.
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) p. 378
pp. 496498
Phumelela Gaming and Leisure Limited v Gründlingh 2006 (8) BCLR 883 (CC), 2007 (6) SA 350 (CC)
D e l p h i s u r e G r o u p I n s u r a n c e B r o k e r s C a p e ( P t y ) L t d v K o t z é a n d o t h e r s [ 2 0 1 1 ] 1 A l l S A 1 0 9 ( S C A ) ,
2010 (5) SA 499 (SCA)
Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014 (5) BCLR 511 (CC), 2014 (3) SA 394 (CC)
Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2014 (12) BCLR 1397 (CC),
2015 (1) SA 1 (CC) para. 21
Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape 2015 (12) BCLR 1471 (CC),
2016 (1) SA 325 (CC)
Za v Smith and another [2015] 3 All SA 288 (SCA), 2015 (4) SA 574 (SCA)
Test for wrongfulness: The criterion of wrongfulness depends on a judicial determination of whether it would be
reasonable to impose liability on a defendant for damages flowing from specific conduct. This determination would in
turn depend on considerations of public and legal policy in accordance with constitutional norms.
It is potentially confusing to take foreseeability into account as a factor common to wrongfulness and negligence. To
do so, conflates the two, and wrongfulness may lose its important attribute as a measure of control over liability.
Accordingly, foreseeability of harm should not be considered in the determination of wrongfulness.
MTO Forestry (Pty) Ltd v Swart NO [2017] 3 All SA 502 (SCA), 2017 (5) SA 76 (SCA)
It may be different when intentional conduct determines wrongfulness, as in the case of intentional interference
with contractual relationships.
Le Roux v Dey 2011 (6) BCLR 577 (CC), 2011 (3) SA 274 (CC) para. 122
2015 (1) SA 1 (CC)
[Page 163]
Types of wrongfulness: Wrongfulness can manifest itself in different breaches:
(a) breach of a commonlaw right;
Osborne Panama SA v Shell & BP SA Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A) p. 900
Telematrix (Pty) Ltd v Advertising Standards Authority SA [2006] 1 All SA 6 (SCA), [2005] ZASCA 73
(b) breach of a statutory duty; or
Callinicos v Burman [1963] 1 All SA 580 (A), 1963 (1) SA 489 (A) pp. 497498
Da Silva v Coutinho [1971] 3 All SA 264 (A), 1971 (3) SA 123 (A)
(c) breach of a duty of care.
Administrateur, Natal v Trust Bank van Afrika Bpk [1979] 2 All SA 270 (A), 1979 (3) SA 824 (A)
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A)
Minister van Veiligheid en Sekuriteit v Geldenhuys [2003] 4 All SA 330 (SCA), 2004 (1) SA 515 (SCA)
Pro Tempo Akademie CC v Van der Merwe 2018 (1) SA 181 (SCA)
Abuse of right: A person either acts within the limitations of a right, in which event the act shall be lawful, or
beyond it bounds, in which event the action will be unlawful. However, an action purportedly performed in terms of
a right, but for an improper purpose, may be unlawful. The two elements are (a) the subjective requirement that
the act was done with the sole or predominant intention to harm another and (b) the objective requirement that
the act served no appreciable or legitimate interest of the defendant.
Koukoudis and another v Abrina and another [2016] 3 All SA 398 (SCA), 2016 (5) SA 352 (SCA)
Duty of care: The duty of care may arise from the provisions of the Bill of Rights. For instance, the state has a
positive duty to protect individuals from violence and its failure to do so may give rise to liability.
Minister of Safety and Security v Carmichele [2003] 4 All SA 565 (SCA), 2004 (3) SA 305 (SCA)
Lee v Minister of Correctional Services 2013 (2) BCLR 129 (CC), 2013 (2) SA 144 (CC), 2013 (1) SACR 213 (CC)
If the duty of care relied on is one owed the public (e.g. the duty on every driver not to drive a vehicle at excessive
speed), it need not be specifically pleaded. It is sufficient to allege that the driver was negligent in driving at
excessive speed.
A mere allegation that the defendant was under a duty of care is insufficient because the existence of a duty to
prevent loss is a conclusion of law which depends on the circumstances of the case.
Knop v Johannesburg City Council [1995] 1 All SA 673 (A), 1995 (2) SA 1 (A) p. 27
If a specific breach of duty (such as a banker's duty to a nonclient plaintiff or a public authority's duty) is relied on,
the nature of the duty must be stated.
SAR&H v Marais 1950 (4) SA 610 (A)
Hawker v Prudential Assurance Co of SA Ltd 1987 (4) SA 442 (C) p. 450
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A)
[Page 164]
The inquiry into the existence of the legal duty is separate from that into negligence.
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All SA 128 (A), 2000 (1) SA 827
(SCA)
Contracting parties who breach their contract are not liable in delict for damages strangers to the contract suffer
because of the breach.
2015 (1) SA 1 (CC)
Omissions: Conduct in the form of an omission is prima facie lawful unless the defendant had a legal duty to the
plaintiff to act in a certain manner.
ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA), 2003 (1) SA 176 (SCA)
Minister van Polisie v Ewels 1975 (3) SA 590 (A)
Liability for an omission does not depend on a prior positive conduct which created a potential risk of harm and on
subsequent failure to take reasonable steps to prevent the risk from materialising.
Cape Town Municipality v Bakkerud [2000] 3 All SA 171 (A), 2000 (3) SA 1049 (SCA)
Pure economic loss: The approach to liability for pure economic loss is like that in the case of omissions. The test is
whether considerations of public or legal policy dictate that liability should follow because of the loss which resulted
from the conduct at issue.
Odinfin (Pty) Ltd v Reynecke 2018 (1) SA 153 (SCA)
See STATUTORY DUTY OR AUTHORITY: BREACH
Negligence: The plaintiff must allege and prove that the defendant was negligent.
Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T)
See NEGLIGENCE
Causation: The plaintiff must allege and prove the causal connection between the negligent act and the damages
suffered.
Minister of Police v Skosana 1977 (1) SA 31 (A)
Minister of Safety and Security v Carmichele [2003] 4 All SA 565 (SCA), 2004 (3) SA 305 (SCA) para. 54
D e l p h i s u r e G r o u p I n s u r a n c e B r o k e r s C a p e ( P t y ) L t d v K o t z é a n d o t h e r s [ 2 0 1 1 ] 1 A l l S A 1 0 9 ( S C A ) ,
2010 (5) SA 499 (SCA)
2016 (1) SA 325 (CC)
Damages are not recoverable if they (and their extent or nature) were not foreseeable or were too remote. This
means that factual causation may not be enough to establish liability. Legal causation is also required.
Kruger v Van der Merwe 1966 (2) SA 266 (A)
International Shipping Co (Pty) Ltd v Bentley [1990] 1 All SA 498 (SCA), 1990 (1) SA 680 (A) pp. 700701
(SCA)
The course of the causal connection does not have to be foreseeable.
Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101 (A)
(SCA) para. 22
[Page 165]
When the unlawful and negligent act or omission in fact caused the plaintiff's damage, the defendant may allege
and prove that the damage would have occurred in any event. The defence amounts to a confession and
avoidance.
Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA 455 (A), 1997 (1) SA 157
(A) pp. 170171
Exemption clauses: A defendant may rely on a contractual exemption clause as a defence to a delictual claim. The
defendant bears the onus of proving the terms of the contract.
(SCA)
Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA), 2002 (6) SA 21 (SCA)
Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the United Kingdom [2003] 3 All SA
496 (SCA), 2003 (5) SA 182 (SCA)
Damages: The plaintiff must allege and prove the extent of the loss suffered.
See DAMAGES: DELICTUAL DAMAGES; NEGLIGENCE: CONTRIBUTORY NEGLIGENCE; ROAD ACCIDENTS
PRECEDENTS
See also MEDICAL AND DENTAL PRACTITIONERS
Claim for damages to motor vehicle
1. At all times relevant hereto, plaintiff was the owner of a certain [description] motor vehicle [registration number].
2. On [date] at [place], a collision occurred between plaintiff's aforesaid motor vehicle and a motor vehicle [registration
number] then and there driven by defendant.
3. The collision was caused by the negligent driving of defendant, who was negligent in one or more of the following
respects:
(a) he failed to keep a proper look out;
(b) he failed to apply his brakes timeously or at all;
(c) he drove his motor vehicle at excessive speed under the prevailing circumstances.
4. Because of the collision, plaintiff's aforesaid motor vehicle was damaged beyond economical repair and plaintiff suffered
damages in the sum of [amount], being the difference between the preaccident value of [amount] and the salvage value
of [amount] of the wreck.
Claim for loss of production
1. On [date] at [place], while defendant was in the process of building a road, a bulldozer driven by an employee of
defendant, acting within the course and scope of his employment, cut certain electrical cables.
2. The incident was caused by the negligence of the driver of the bulldozer, acting as aforesaid, who was negligent in one or
more of the following respects:
(a) he failed to keep a proper lookout;
(b) he drove the bulldozer without due care and attention;
(c) knowing that there were electrical cables in the vicinity, he failed to ensure that, in driving and operating the
bulldozer, he allowed sufficient clearance to ensure that he caused no damage to such cables.
3. Alternatively, the incident was caused by the negligence of defendant who was negligent in one or more of the following
respects:
(a) it failed to ascertain the precise whereabouts of the cables;
(b) it failed to take adequate precautions for the protection of the cables.
[Page 166]
4. When the incident occurred, defendant knew or ought to have known that:
(a) the electrical cables were used to supply electricity to industries in the vicinity, including plaintiff 's brickworks;

(b) if the said electrical cables were cut, the effect would be to interrupt the supply of electricity to plaintiff 's works;

(c) if the supply of electricity were cut, plaintiff would suffer a loss of production and, hence, income.
5. As a direct consequence of the incident and of the negligence:
(a) the electrical supply to plaintiff 's works was cut off for [state period];

(b) plaintiff suffered a loss of production and consequently suffered damages.
6. Plaintiff 's damages are calculated as follows:

Loss in production [detail].
[Based on Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D).]
Dependants' claims
See LOSS OF SUPPORT
Deposit (depositum)
Related subject: LOAN FOR USE
Contract of deposit: The rules that follow apply only if there is a contract of deposit between the parties.
Otherwise, the plaintiff must rely on a delictual or possessory claim.
United Building Society v DI Stone (Pty) Ltd [1988] 4 All SA 41 (A), 1988 (4) SA 795 (E) p. 800
See DELICT: LEX AQUILIA; VINDICATION
Depositor's claim: A depositor's claim against the depository for the return of the thing deposited or for its value
requires the allegation and proof of
(a) the contract of deposit;
(b) delivery of the thing to the depository;
(c) the value of the thing (if this is claimed).
Nonreturn must be alleged but need not be proved.
Cf. Pillay v Krishna 1946 AD 946
If the thing was returned in a damaged condition, that fact and the amount of damages claimed must be alleged
and proved. Ownership of the goods is not an element of the claim.
Joubert Street Investments (Pty) Ltd v Roberts 1943 TPD 141
Depository's defences: In defence, a depository may
(a) allege and prove the return of the thing;
(b) allege and prove that the thing was destroyed or damaged and,
(i) in the case of a gratuitous deposit, the absence of gross negligence;
Transitional Local Council of Randfontein v ABSA Bank [2000] 2 All SA 134 (W), 2000 (2) SA 1040 (W)
[Page 167]
(ii) in the case of a deposit for remuneration, that the destruction or damage occurred without fault; or
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A)
Padiachy v Motor Mecca JHB CC 2002 (4) SA 351 (W)
(c) allege an exemption or 'owner's risk' clause.
First National Bank of SA Ltd v Rosenblum [2001] 4 All SA 355 (A), 2001 (4) SA 189 (SCA)
In the case of a dispute about the existence of the clause as part of the contract of deposit, it will be for the
depositor to replicate and prove that the clause was not a term of the contract.
Mercurius Motors v Lopez [2008] 3 All SA 238 (SCA), 2008 (3) SA 572 (SCA)
The position is different when the claim is in delict and the defendant wishes to rely on an exemption clause.
In such cases it will be for the defendant to allege and prove the exemption clause.
The scope of protection given by such a clause depends on its interpretation.
Van Deventer v Louw [1980] 2 All SA 406 (O), 1980 (4) SA 105 (O)
Mercurius Motors v Lopez [2008] 3 All SA 238 (SCA), 2008 (3) SA 572 (SCA)
The depositor may plead that the clause did not protect the depository because of fraud, for example;
Essa v Divaris [1947] 2 All SA 111 (A), 1947 (1) SA 753 (A)
King's Car Hire (Pty) Ltd v Wakeling [1970] 4 All SA 485 (N), 1970 (4) SA 640 (N)
(d) allege and prove an amendment to the agreement by the insertion of an 'owner's risk' clause.
WJ Lineveldt (Edms) Bpk v Immelman [1980] 2 All SA 6 (O), 1980 (2) SA 964 (O)
Exemption clauses: If there is an exemption clause stipulating, for example, that the deposit takes place at the
owner's risk, the owner must allege and prove facts that place her or his conduct outside the terms of the limitation,
to claim damages.
Cf. Essa v Divaris [1947] 2 All SA 111 (A), 1947 (1) SA 753 (A)
PRECEDENTS
Claim for return of article deposited
1. On [date] at [place] and by virtue of an oral agreement between the parties, plaintiff deposited with defendant a motor
vehicle [registration number] to be kept by defendant pending plaintiff's return from abroad.
2. The value of plaintiff's vehicle at the time of deposit was [amount].
3. Upon plaintiff's return, defendant was unable to return the vehicle to plaintiff.
Return of motor vehicle [registration number]; alternatively, payment of the sum of [amount] [being the value of the vehicle].
Plea owner's risk
Defendant admits the agreement as alleged, but pleads that, in addition, the parties agreed that the vehicle would be stored by
defendant entirely at the owner's risk.
Plea absence of negligence
Plaintiff's motor vehicle was stolen by a person unknown to defendant and without negligence on defendant's part. [Particularise
steps taken to protect object.]
[Page 168]
Designs
Statute: The Designs Act 195 of 1993 provides for two categories of design, namely aesthetic and functional.
An aesthetic design is defined in section 1 as 'any design applied to any article, whether for the pattern or the
shape or the configuration or the ornamentation thereof, or for any two or more of such purposes, and by whatever
means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic
quality thereof'.
Clipsal Australia (Pty) Ltd v Trust Electrical Wholesalers [2007] 4 All SA 1082 (SCA), 2009 (3) SA 292 (SCA)
BMW AG v Grandmark International (Pty) Ltd 2014 (1) SA 323 (SCA)
A functional design is defined in section 1 as
any design applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof,
or for any two or more of such purposes, and by whatever means it is applied, having features which are necessitated by
the function which the article to which the design is applied, is to perform, and includes an integrated circuit topography,
a mask work and a series of mask works.
Design rights and copyright: Designs are often artistic works which are protected by the Copyright Act 98 of 1978.
There is, however, a limitation in the Copyright Act concerning the protection of artistic works of which three
dimensional reproductions were made available to the public, if the authorised reproductions primarily had a
utilitarian purpose and were made by an industrial process.
Copyright Act 98 of 1978s 15A
Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd [2002] 4 All SA 67 (SCA), 2003 (1) SA 31 (SCA)
The advantage of a registered design is not unlike that of a patent in that registration of the design creates a
(negative) monopoly. It is accordingly not necessary to allege or prove copying or knowledge of the registered
design. Infringement is established by the objective similarity between the allegedly infringing object and the
registered design.
Unregistered designs have limited commonlaw protection.
Schultz v Butt [1986] 2 All SA 403 (A), 1986 (3) SA 667 (A)
Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134 (A), 1997 (1) SA 416 (SCA)
See UNLAWFUL (UNFAIR) COMPETITION
Jurisdiction: Infringement of a registered design is justiciable according to the principles applicable to delictual
claims.
The plaintiff: The plaintiff would be the person registered as the proprietor of the design.
Designs Act 195 of 1993ss 20 and 35(1)
Infringement: A registered design is infringed by a person's 'making, importing, using or disposing of any article
included in the class in which the design is registered and embodying the registered design or a design not
substantially different from the registered design' without the consent of the owner.
Designs Act 195 of 1993s 20(1)
Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd 1984 (3) SA 681 (A)
[Page 169]
Onus: There is a presumption that a registered design is valid. It follows that the plaintiff must prove infringement
and the defendant the invalidity of the design.
The design: The plaintiff must allege and prove that the design registration was granted (not merely applied for)
and that the registration is in existence. A certificate from the registrar will suffice.
Designs Act 195 of 1993ss 39 and 40
Relief: The relief to which a plaintiff is entitled is an interdict, the surrender of infringing products and damages (or
in lieu of damages, at the option of the plaintiff, an amount calculated on the basis of a reasonable royalty which
would have been payable by a licensee or sublicensee in respect of the registered design concerned).
Cf. Morris v Benson & Hedges [2000] JOL 6387 (W), 2000 (3) SA 1092 (W)
Cf. COPYRIGHT
The measure of damages is delictual and the onus rests on the plaintiff to prove the damages suffered.
Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd 1978 (3) SA 465 (A)
Invalidity: A defendant may rely on the invalidity of the registration with or without counterclaiming for revocation
of the registration.
The onus rests on the defendant to allege and prove the statutory ground of invalidity relied upon.
Designs Act 195 of 1993s 31
Registrar: Despite Brudd Lines (Pty) Ltd v Badsey (1) [1973] 4 All SA 225 (T), 1973 (3) SA 972 (T), it is submitted that
it is not necessary to join the Registrar of Designs when the validity of the design registration is attacked in
infringement proceedings. The Registrar was, for instance, not joined in Schultz v Butt [1986] 2 All SA 403 (A),
1986 (3) SA 667 (A).
Cf. Designs Act 195 of 1993s 31(2)
PRECEDENTS
Claim infringement of design
1. Plaintiff is the registered proprietor of the registered design number [xx] in class [25] in respect of a [metal frame of a
trap door].
2. The design has, at all material times, been valid and subsisting. A copy of the design registration is annexed hereto in
Annexure 'A'.
3. From a date unknown to plaintiff, defendant has without the consent of the plaintiff been manufacturing [metal frames for
trap doors] the shape and configuration of which are depicted in Annexure 'B' hereto.
4. Defendant's said [metal frames] embody the registered design; alternatively, embody a design not different from the
registered design.
5. Because of defendant's foregoing infringement, plaintiff has suffered damages in the sum of [amount].
6. Plaintiff apprehends upon reasonable grounds that defendant will not desist with its aforesaid infringement unless
restrained by an order of court.
7. A reasonable royalty rate in the class concerned is 10% of a licensee's net sale price.
[Page 170]
(a) An interdict restraining defendant from infringing registered design [number].
(b) Surrender of any infringing products in the possession of the defendant or under its control.
(c) Payment of [amount] being damages; alternatively, payment of a reasonable royalty at the rate of 10% of the
defendant's net sale price.
[Based on the facts in Robinson v D Cooper Corp of SA (Pty) Ltd 1984 (3) SA 699 (A).]
Plea invalidity of aesthetic design
Defendant denies that the said design, registered as an aesthetic design, is valid on one or more of the following grounds:
1. The design is not capable of registration under section 14(1) and (5) of the Designs Act 195 of 1993 in that:
(a) the features of the [metal frame] do not appeal to and are not judged solely by the eye;
(b) the features are dictated solely by the function which the article is to perform;
(c) the article represents a method or principle of construction.
2. The design was not new or original in that it is not different from the state of the art on or before the application date
because [detail].
Plea invalidity of functional design
Defendant denies that the said design, registered as a functional design, is valid on one or more of the following grounds:
1. The design is not capable of registration under section 14(6) of the Designs Act 195 of 1993 in that it is a spare part for a
vehicle.
2. The design was neither new nor not commonplace in the art in question [detail].
Divorce
General: Not all marriages are treated in the same manner and it is, or may be, necessary to distinguish between
civil, customary and Muslim (Islamic) marriages.
Divorce proceedings must be instituted by way of action and not by way of application.
Ex parte Inkley & Inkley [1995] 2 All SA 101 (C), 1995 (3) SA 528 (C)
BR and another v TM; In re: LR [2015] 4 All SA 280 (GJ)
A degree of laxity, as far as divorce pleadings are concerned, is fairly common. For instance, it is not customary to
support a claim for primary care and residence of the children by any factual averments supporting the implied
conclusion that the interests of the children require that they be awarded to, say, the plaintiff.
Civil marriage: The plaintiff must allege and prove a valid and existing civil marriage.
Marriage Act 25 of 1961
The best evidence of the conclusion of a civil marriage is a marriage certificate issued by the relevant authorities.
Identification Act 68 of 1997s 13.
A certified copy of the antenuptial agreement is required if it is in issue. Although an antenuptial contract which has
not been registered in accordance with section 87 of the Deeds Registries Act 47 of 1937 is of no force or effect as
against third parties, it is valid and binding between the parties.
Schmitz v Schmitz [2015] 3 All SA 85 (KZD)
[Page 171]
Customary marriage: The following customary marriages are recognised as civil marriages for all purposes:
(a) marriages which are valid marriages at customary law and that existed at the commencement of the Act (15
Nov. 2000);
(b) customary marriages entered into after the commencement of the Act that comply with the Act's
requirements;
(c) if a person is a spouse in more than one customary marriage, all valid customary marriages entered into
before the commencement of the Act;
(d) if a person is a spouse in more than one customary marriage, all such marriages entered into after the
commencement of the Act that comply with the provisions of the Act.
Recognition of Customary Marriages Act 120 of 1998s 2
Mayelane v Ngwenyama and another 2013 (8) BCLR 918 (CC), 2013 (4) SA 415 (CC)
Courts: High courts and regional courts have the same jurisdiction in matrimonial matters.
Divorce Act 70 of 1979
Jurisdiction of Regional Courts Amendment Act 31 of 2008
Jurisdiction: The plaintiff in a divorce action must allege and prove that the court has jurisdiction on the basis of
either domicile or residence. These grounds confer jurisdiction in divorce proceedings and incidental matters but not
in other commercial disputes between parties that do not arise from the marriage relationship.
Rousalis v Rousalis [1980] 4 All SA 314 (C), 1980 (3) SA 446 (C)
(a) One of the parties to the marriage must have been domiciled within the area of jurisdiction of the high court
on the date on which the action was instituted.
Divorce Act 70 of 1979s 2(1)(a)
Magistrates' Courts Act 32 of 1944s 28(1A)
Domicile may be domicile of origin, of choice or of proximity.
Eilon v Eilon [1965] 2 All SA 72 (A), 1965 (1) SA 703 (A)
Grindal v Grindal 1997 (4) SA 137 (C)
Domicile Act 3 of 1992ss 1 and 2
(b) At least one of the parties to the action must have been ordinarily resident within the area of jurisdiction of
the high court on the date on which the action is instituted and must have been ordinarily resident in the
Republic for a period of one year immediately prior to that date.
Divorce Act 70 of 1979s 2(1)(b)
Magistrates' Courts Act 32 of 1944s 28(1A)
A court with jurisdiction in relation to a claim has jurisdiction in respect of a claim in reconvention or a counter
application in the divorce action.
Divorce Act 70 of 1979s 2(2)
Marital regime: The marital regime is determined by the lex domicilii at the time of the marriage.
Sperling v Sperling [1975] 4 All SA 41 (A), 1975 (3) SA 707 (A)
Children: The plaintiff must allege whether there are dependent and minor children born of the marriage. It is
proper to make allegations regarding the welfare of these children, since a decree of divorce may not be granted
until the court is satisfied that the provisions made for or contemplated in respect of the welfare of any minor or
dependent child of the marriage are satisfactory or are the best in the circumstances. Also, if an enquiry was
instituted by the Family Advocate, a decree of divorce may not be granted until the court has considered the report
and its recommendations.
[Page 172]
A party wishing to claim sole guardianship must make allegations supporting this claim.
Although it was not customary to make allegations relating to the amount of maintenance required, it has become
practice to incorporate allegations to support maintenance claims.
Family advocate: The regulations promulgated in terms of the Mediation in Certain Divorce Matters Act 24 of 1987
must be complied with. The regulations were published under Government Notice R2385 in Government Gazette
12781 of 3 October 1990 and have been amended from time to time.* The court may condone any noncompliance
with the regulations. It is not necessary to plead compliance, but the form is usually attached.
Divorce Act 70 of 1979s 5A
Grounds of divorce: The plaintiff must allege and prove the grounds on which a decree of divorce may be granted.
The grounds for civil and customary marriages differ.
When the time, date and place or any other person's identity is relevant or involved, details must be given in the
relevant pleading.
Uniform rule 18(8)
Ground of divorce irretrievable breakdown: A plaintiff who wishes to rely on this ground of divorce must allege
and prove facts to satisfy the court that the marriage relationship between the parties has reached such a state of
disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between
them.
The court may accept as proof, at least prima facie, of the irretrievable breakdown of the marriage evidence the fact
that
(a) the parties have not lived together as husband and wife for a continuous period of at least one year
immediately prior to the institution of the divorce action;
(b) the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage
relationship; or
(c) the defendant has been declared a habitual criminal and is undergoing imprisonment because of that
sentence.
This provision has little, if any, practical value or effect.
A customary marriage may be dissolved only by a decree of divorce on the ground of the irretrievable breakdown of
the marriage. A court may grant a decree of divorce if it is satisfied that the marriage relationship between the
parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the
restoration of a normal marriage between them.
Recognition of Customary Marriages Act 120 of 1998s 8(1)
Swarts v Swarts [2002] 3 All SA 35 (T), 2002 (3) SA 451 (T)
Hoal v Hoal 2002 (3) SA 209 (N)
Grounds of divorce mental illness and unconsciousness: A court may grant a decree of divorce on the grounds of
the mental illness or unconsciousness of the defendant, provided the requirements of section 5 of the Divorce Act
have been complied with.
Divorce Act 70 of 1979s 5
[Page 173]
Maintenance for a spouse: A claim for payment of maintenance normally has no antecedent in the body of the claim.
It is practice to plead the facts upon which a party relies to claim spousal maintenance, but it is not necessary to
give a breakdown of the amount claimed since the breakdown constitutes evidence.
The factors relevant in determining whether maintenance should be ordered and what the amount should be are
the following: the existing or prospective means of each of the parties; their respective earning capacities, financial
needs and obligations; the age of each of the parties; the duration of the marriage; the standard of living of the
parties prior to the divorce; their conduct in so far as it may be relevant to the breakdown of the marriage; the
terms of the redistribution order; and any other factor which in the opinion of the court should be taken into
account.
A clause in an antenuptial contract which waives the right to maintenance upon divorce is against public policy and
void.
ST v CT [2018] ZASCA 73
A lump sum of maintenance may be made in addition to periodic payments.
Zwiegelaar v Zwiegelaar [2001] 1 All SA 261 (A), 2001 (1) SA 1208 (SCA)
The court's power to grant maintenance is not confined to the duration of the life of the spouse liable to pay but to
the life of the beneficiary spouse. However, this power must be viewed in the proper context. In terms of the
common law, the duty of support which spouses owe each other, and consequently the liability for maintenance,
are incidents of the matrimonial relationship. Termination of the relationship by death brings that duty to an end.
But the Maintenance of Surviving Spouses Act 27 of 1990 allows widows and widowers, in specified circumstances,
to be maintained from the estates of their late partners. As rehabilitative maintenance is a species of maintenance,
it falls within the ambit of section 7(2) of the Divorce Act.
Kruger NO v Goss and another [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA)
Freidrich and others v Smit NO and others 2017 (4) SA 144 (SCA)
See DECEASED ESTATES
Settlement agreement: If a settlement was reached before the institution of the action it is proper to allege its
conclusion and to attach a copy to the particulars of claim. The agreement is usually incorporated in the decree of
divorce and forms part of the order.
Lebeloane v Lebeloane [2000] 4 All SA 525 (W), 2001 (1) SA 1079 (W)
When a court considers a request for judgment according to the terms of a settlement agreement, it must be
satisfied that the parties to the agreement have freely and voluntarily concluded the agreement, that they were ad
idem about its terms, and that the terms are not objectionable.
Ex parte PJLG and another; In re: PJLG and another [2013] 4 All SA 41 (ECG)
PL v YL 2013 (6) SA 28 (ECG)
Proprietary claims: A party claiming division, transfer or forfeiture of assets in respect of a marriage out of
community of property is obliged to give details of the grounds on which the claim to the division, transfer or
forfeiture is based.
Uniform rule 18(9)
(a) Division of the joint estate may be claimed without any allegations relating to the fact that the parties do, in
fact, have joint assets. Evidence is normally led in this regard. Since a division of the joint estate is a natural
consequence of the dissolution of a marriage in community of property, such a prayer or order is not required.
Motsetse v Motsetse [2015] 2 All SA 495 (FB)
WT and others v KT 2015 (3) SA 574 (SCA) (discretionary family trust)
[Page 174]
(b) A claim for specific performance of any outstanding obligation created by an antenuptial contract must be
based on the terms of the contract and on the defendant's failure to comply with them.
(c) Redistribution of assets may be claimed.
Divorce Act 70 of 1979s 7(3) to (6)
It is necessary to make allegations that support redistribution.
KM v TM 2018 (3) SA 225 (GP)
As to the approach of a court in exercising its discretion, see
Kirkland v Kirkland [2005] 3 All SA 353 (C), 2006 (6) SA 144 (C)
Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA)
(d) Forfeiture of patrimonial benefits derived from the marriage may be claimed.
The right to share in the accrual of the estate of a spouse is a patrimonial benefit which, on divorce, may be
declared either wholly or partly forfeit.
The court exercises discretion in granting forfeiture and may have regard to the duration of the marriage, the
circumstances which gave rise to its breakdown, and any substantial misconduct on the part of either of the
parties.
SS v VVS 2018 (6) BCLR 671 (CC)
KT v MR 2017 (1) SA 97 (GP)
Tlou v Ralebipi [2016] 4 All SA 251 (GP)
These factors must be particularised.
Matyila v Matyila [1987] 3 All SA 7 (W), 1987 (3) SA 230 (W), overruled by Wijker v Wijker [1993] 4 All SA 857
(AD), 1993 (4) SA 720 (A) on other aspects
A claim for forfeiture is not competent if the divorce is granted on the grounds of the mental illness or
continuous unconsciousness of the defendant.
See also Matrimonial Property Act 88 of 1984ss 9 and 10
(e) Division of any accrual, if applicable, may be claimed. Failure to claim division of accrual nullifies the right to
share in the accrual, since there is a fundamental difference between a redistribution order in terms of section
7(3) of the Divorce Act and an accrual claim in terms of section 3 of the Matrimonial Property Act.
Divorce Act 70 of 1979ss 3 and 8
Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W)
MGB v DEB [2013] 4 All SA 99 (KZD) (also reported as MB v DB 2013 (6) SA 86 (KZD))
M v M [2017] 2 All SA 364 (SCA), 2017 (3) SA 371 (SCA)
YB v SB 2016 (1) SA 47 (WCC) (trust assets)
KS v MS 2016 (1) SA 64 (KZD) (date of accrual is at litis contestatio)
(f) A portion of the other party's pension benefits may be claimed. The entitlement of a nonmember spouse to a
share of the member spouse's pension benefit does not require a declaration in terms of section 7(8) by the
court. It is accordingly unnecessary for the nonmember spouse to claim it in the divorce claim.
Divorce Act 70 of 1979s 7(7) and (8)
Eskom Pension and Provident Fund v Krugel and another [2011] 4 All SA 1 (SCA), 2012 (6) SA 143 (SCA)
GN v JN 2017 (1) SA 342 (SCA)
(g) Dissolution of a universal partnership between a husband and wife not married in community of property may
also be claimed. The plaintiff must allege and prove the existence of the partnership agreement. The ordinary
rules relating to partnerships and the conclusion of tacit contracts apply. A party married out of community of
property may not rely on a tacit or verbal universal partnership if the [Page 175] antenuptial contract
specifically provides that 'there shall be no community of profit and loss'.
Mühlmann v Mühlmann [1984] 1 All SA 340 (A), 1984 (3) SA 102 (A)
Katz v Katz [1989] 2 All SA 353 (A), 1989 (3) SA 1 (A)
JW v CW 2012 (2) SA 529 (NCK)
SB v RB [2015] 2 All SA 232 (ECLD)
Proprietary issues relating to customary marriages: At customary law, the rights of ownership and control of
marital property vest in the husband. While section 6 of the Recognition of Customary Marriages Act 120 of 1998
introduced equality in status in customary marriages, section 7(1) of that Act provides that the proprietary
consequences of customary marriages entered into before the commencement of the Act continue to be governed
by customary law. Pending legislative intervention, wives are afforded equal management, control and ownership in
respect of marital property.
Ramuhovhi v President of the Republic of South Africa and others 2018 (2) SA 1 (CC)
Gumede (born Shange) v President of the Republic of South Africa and others 2009 (3) BCLR 243 (CC),
2009 (3) SA 152 (CC)
When granting a decree for the dissolution of a customary marriage, the court
(a) has the powers contemplated in sections 7, 8, 9 a n d 10 of the Divorce Act and section 24(1) of the

Matrimonial Property Act;
(b) must, in the case of a husband who is a spouse in more than one customary marriage, take into consideration
all relevant factors, including any contract, agreement or order, and make any equitable order that it deems
just;
(c) may order that any person who in the court's opinion has a sufficient interest in the matter be joined in the
proceedings;
(d) may make an order regarding the custody or guardianship of any minor child of the marriage; and
(e) may, when making an order for the payment of maintenance, consider any provision or arrangement made in
accordance with customary law.
Recognition of Customary Marriages Act 120 of 1998s 8(4)
Piercing the veil: A spouse who seeks to advance a patrimonial claim may rely on the principles applicable to
piercing the veil of a trust or company. It is necessary for the claimant to prove that the other spouse transferred
personal assets to the trust or company and dealt with them as if they were assets of the trust or company, with
the fraudulent or dishonest purpose of avoiding the obligation to account properly to the claimant.
Mills v Mills [2017] 2 All SA 364 (SCA)
See COMPANIES
Separation of issues: See CC v MVC [2013] 4 All SA 327 (GSJ).
Religious constraints: If it appears that despite the decree of divorce the spouses, or either one of them, will,
because of religious prescripts, not be free to remarry unless the marriage is dissolved in accordance with those
prescripts also or unless a barrier to the remarriage is removed, the court may refuse to grant a decree of divorce
until it is satisfied that the spouse in whose power it is to have the marriage dissolved or the barrier removed has
taken all the necessary steps to have the marriage dissolved or the barrier removed, or the court may make any
other order that it finds just.
Divorce Act 70 of 1979s 5A
Amar v Amar [1999] 2 All SA 376 (W), 1999 (3) SA 604 (W)
Islamic marriages: Persons who marry according to Islamic law must, in addition, conclude a civil marriage or they
will not be entitled to the civil divorce remedies. Accordingly, religious divorces are not matters for civil courts but for
religious courts. The [Page 176] Muslim Marriages Bill was published in 2000 but at the time of writing had not yet
been passed.
However, the following principles have been developed in the meantime by the courts in respect of Islamic
marriages:
(a) Islamic marriages are putative marriages, marriages that are not in all respects 'invalid', and the fact that a
Muslim marriage is not a civil marriage does not affect the status of children born of the relationship.
Moola and others v Aulsebrook NO and others 1983 (1) SA 687 (N)
(The Children's Act 38 of 2005 does not distinguish between 'legitimate' and 'illegitimate' children.)
(b) Spouses owe each other the same duty of support as that owed by spouses in civil marriages and, therefore,
have the right to claim maintenance from one another in terms of the Maintenance Act 99 of 1998.
Khan v Kahn 2005 (2) SA 272 (T)
(c) A spouse may inherit from and claim maintenance from the deceased spouse in terms of the Intestate
Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990.
Daniels v Campbell NO and others 2004 (5) SA 331 (CC)
Hassam v Jacobs NO and others 2009 (5) SA 572 (CC)
Moosa NO and others v Minister of Justice and Correctional Services and others [2018] ZACC 19
(d) The right to maintenance includes the right to interim maintenance during religious dissolution proceedings, in
terms of High Court rule 43.
TM v ZJ 2016 (1) SA 71 (KZD)
(e) A spouse is entitled to a pension interest allocated in terms of a Muslim divorce order.
Tryon TY v Nedgroup Defined Contribution Pension and Provident Funds and another (Pension Funds Adjudicator,
unreported case, no. PFA/GA/8796/2011/TCM)
Rose v Rose [2015] 2 All SA 352 (WCC)
PRECEDENTS
Claim for divorce of marriage in community of property
1. The plaintiff is [full names], a [sex] [occupation] residing at [address].
2. The defendant is [full names], a [sex] [occupation] residing at [address].
3. The parties were married to each other on [date] at [place] in community of property and that marriage still subsists.
4. The parties are domiciled within the area of jurisdiction of this honourable court.
5. (a) From the marriage between the parties, [number] children were born. [Give their names and dates of birth,
preferably.] They are still minors and are presently in plaintiff's [defendant's] care.
(b) It would be in the best interests of the children if plaintiff [defendant] were awarded custody of the children.
(c) The report of the Family Advocate is annexed.
6. The marriage relationship between the parties has broken down irretrievably and there is no reasonable prospect of the
restoration of a normal marriage relationship between them for the following reasons:
(a) defendant has assaulted plaintiff repeatedly;
(b) defendant committed adultery with [name] on [date] at [place] and the plaintiff is not prepared to condone or
accept it;
(c) the parties have not lived together as husband and wife for a period of more than one year.
[Page 177]
(a) A decree of divorce.
(b) Custody of the minor children born of the marriage to be awarded to the plaintiff [the defendant].
(c) Maintenance for the children in the amount of [Rx] per month per child [if applicable].
(d) Maintenance for plaintiff in the amount of [Ry] per month [if applicable].
(e) A division of the joint estate [an order that defendant forfeits the benefits from the marriage in community of property].
(f) Costs of suit.
Divorce alternatives
[See CITATION OF PARTIES for detail.]
3. [Alternatives relating to the nature of the marriage]
Postnuptial contract
The parties were married to each other on [date] at [place] in community of property but, in terms of section 21 of Act
88 of 1984, the parties entered into a notarial contract in terms of which the marriage was deemed from its inception
[from the date of the contract] to be out of community of property and subject to the accrual system. The marriage still
subsists.
Out of community
The parties were married to each other on [date] at [place] out of community of property and the marriage still subsists.
Out of community plus accrual system
The parties were married to each other on [date] at [place] out of community of property and subject to the accrual
system as defined in Act 88 of 1984, and the marriage still subsists.
4. [Alternatives relating to jurisdiction]
One party's domicile
The plaintiff [the defendant] is domiciled within the area of jurisdiction of this honourable court.
One party's residence
The plaintiff [the defendant] is ordinarily resident in the area of jurisdiction of this honourable court and has been
ordinarily resident in the Republic of South Africa for a period of more than one year prior to the institution of this action.
restoration of a normal marriage relationship between them for the following reasons: [set out reasons].
Mental illness as grounds for divorce
(a) Defendant has, in terms of a reception order dated [date] issued in terms of the Mental Health Care Act 17 of
2002, been admitted to an institution, to wit [name]. A copy of the order is annexed hereto.
[or: Defendant has been detained as a President's patient since [date] in an institution, to wit [name], in terms of
an order of court dated [date].]
[or: Defendant is being detained as a mentally ill convicted prisoner [detail].]
[Page 178]
(b) Defendant has, for a continuous period of [at least two years] immediately prior to the institution of this action, not
been discharged unconditionally.
(c) Defendant is mentally ill and there is no prospect that he will be cured of his mental illness.
Unconsciousness as grounds for divorce
(a) The defendant is in a state of continuous unconsciousness by reason of a physical disorder [state ground].
(b) The defendant's unconsciousness has lasted for a continuous period of [at least six months] prior to the institution
of the divorce action.
(c) There is no reasonable prospect that the defendant will regain consciousness.
(b) Custody of the minor children born of the marriage.
(e) Costs of suit.
Claim divorce and specific performance of the provisions of the antenuptial contract
3. The parties were married to each other on [date] at [place] out of community of property and the marriage still subsists.
4. (Jurisdiction applicable as set out above.)
restoration of a normal marriage relationship between them for the following reasons: [set out reasons].
7. (a) In terms of the antenuptial contract entered into between the parties, defendant undertook to donate to plaintiff as
her sole and exclusive property [specify].
(b) A copy of the contract is annexed.
(c) Defendant has failed to comply with this undertaking.
(b) Custody of the minor children born of the marriage.
(e) An order that defendant comply with the antenuptial contract by [specify].
(f) Costs of suit.
Claim for redistribution alternative to para. 7
(a) In terms of the antenuptial contract entered into between the parties, the community of property, community of profit
and loss and accrual sharing were excluded.
(b) No agreement exists between the parties in respect of the division of their assets.
[Page 179]
(c) During the marriage, plaintiff contributed directly and indirectly to the maintenance and increase of the estate of
defendant by rendering the following services: [detail]; and by saving expenses that would otherwise have been
incurred: [detail].
(d) As a result of the foregoing, it would be just and equitable if [40%] of defendant's assets be transferred to plaintiff.
Alternative to prayer
(e) An order that [40%] of the assets of defendant be transferred to plaintiff.
Claim where issues settled add additional paragraph
The parties have entered into an agreement relating to the custody and control of the minor children, payment of maintenance
and the division of the assets. A copy of the agreement is annexed hereto.
Alternative prayer
The plaintiff claims a decree of divorce incorporating the provisions of the agreement annexed hereto.
Claim Islamic marriage
3. The parties were married to each other on [date] at [place] in terms of Islamic law and the marriage still subsists.
4. On or about [date], the parties, acting in their personal capacities, entered into a partly oral, partly tacit agreement, the
material express[ed], alternatively tacit, terms whereof were as follows:
4.1 The parties agreed to cohabit as man and wife;
4.2 The parties would have a joint estate; and
4.3 The parties agreed that any profits arising out of their cohabitation and relationship would be divided between
them equally.
(a) Maintenance for plaintiff in the amount of [Ry] per month [if applicable].
(b) A division of the joint estate [an order that defendant forfeit the benefits from the marriage in community of property].
(c) Costs of suit.
[S v S (GJ), unreported case, no. 2014/05928, 26092014.]
Footnotes
* By Government Notice R2513 in Government Gazette 14263 of 11 Sept. 1992, Government Notice R920 in Government
Gazette 14822 of 19 May 1993, Government Notice R1342 in Government Gazette 17371 of 12 Aug. 1996, Government
Notice R1123 in Government Gazette 22822 of 16 Nov. 2001 and by Government Notice R251 in Government Gazette
27406 of 22 Mar. 2005.
Donation
Types of donation agreement: A donation is an agreement whereby the donor, motivated by pure liberality,
undertakes to give a donee a gift without receiving, having received or expecting to receive any advantage in
return.
An executory donation is an agreement to give something in the future; an executed donation is one that has
already been completed by delivery.
Remunerative and reciprocal donations are not donations in the legal sense in that they are not inspired solely by a
disinterested benevolence and are, therefore, akin to an exchange or discharge of a moral obligation.
Avis v Verseput 1943 AD 331
Kay v Kay [1961] 1 All SA 132 (A), 1961 (4) SA 257 (A)
De Jager v Grunder [1964] 2 All SA 17 (A), 1964 (1) SA 446 (A)
[Page 180]
Onus: The onus is on the party alleging a donation to prove that the motive of the donor to the agreement was one
of pure liberality. Whether the onus is a true onus, an evidentiary onus, or merely a rule of logic was debated in
three judgments of the full court in Barkhuizen v Forbes 1998 (1) SA 140 (E).
Formalities: The material terms of an executory 'true' donation must be in writing and the deed must be signed by
the donor or by a person acting on the donor's written authority granted by the donor in the presence of two
witnesses. These formalities do not apply to executed donations or to remuneratory or reciprocal donations.
Scholtz v Scholtz 2012 (1) SA 382 (WCC)
Donations (presumably any type of donation) of 'land' as defined in the Alienation of Land Act 68 of 1981 must
comply with the formalities laid down in that Act.
Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N)
Revocation: A donation may be revoked because of gross ingratitude or because it was subject to a modus which
the donee breached.
Benoni Town Council v Minister of Agricultural Credit & Land Tenure [1978] 2 All SA 283 (T), 1978 (1) SA 978 (T)
(Regarding modus and an exception based thereon, see Coertzen v Gerrard NO 1997 (2) SA 836 (O).)
Spouses: Donations between spouses are not prohibited.
Matrimonial Property Act 88 of 1984s 22
Rens v Gutman NO [2002] 4 All SA 30 (C), 2003 (1) SA 93 (C)
A spouse married in community of property may recover a donation that was made by the other spouse to a third
party without the consent of the firstmentioned spouse.
Bopape v Moloto [1999] 4 All SA 277 (T), 2000 (1) SA 383 (T)
Broodie NO v Maposa and others 2018 (3) SA 129 (WCC)
Donations excluded from accrual: An inheritance, a legacy or a donation which accrues to a spouse during the
subsistence of a marriage, and any other asset acquired by inheritance, legacy or donation, does not form part of
the accrual of the spouse's estate, except in so far as the spouses agree otherwise in their antenuptial contract or
in so far as the testator or donor may stipulate otherwise.
In determining the accrual of the estate of a spouse, a donation between spouses is not considered part of the
estate of the donor or part of the estate of the donee.
Donatio mortis causa : A donatio mortis causa is a donation made in contemplation of death. Since it must be

executed with the same formalities as those of a testamentary disposition and can be revoked during the lifetime of
the donor, it is no more than a historical relic of no practical use.
PRECEDENTS
Claim for delivery
1. On [date] at [place], defendant signed a deed of donation in terms of which he donated to plaintiff the following items:
[specify]. A copy of the deed is attached hereto and marked 'A'.
2. Plaintiff orally accepted the donation on [date] at [place].
3. Despite demand, defendant refuses to deliver the donated items to plaintiff.
[Page 181]
Claim for delivery where donation revoked
1. On [date] at [place] and in terms of a written deed of donation signed by him, plaintiff donated to defendant the
immovable property [describe]. A copy of the deed is attached and marked 'A'.
2. The property was transferred to defendant on the [date].
3. Defendant has been guilty of gross ingratitude towards plaintiff in that he [detail].
[OR]
(a) It was a term of the deed of donation that defendant would apply the rental received for the property to the
maintenance and education of one [X].
(b) Defendant failed to apply the rental to the maintenance and education of [X].
4. In the premises, plaintiff was entitled to revoke the donation and did so on [date].
5. Despite the revocation, defendant has failed to retransfer the property to plaintiff.
(a) An order confirming the revocation of the donation.
(b) An order directing defendant to retransfer the property into plaintiff's name.
Duress
Related subject: CONDICTIO INDEBITI
General: A contract concluded because of duress may be voided by the innocent party. The party relying on duress
must allege and prove
(a) a threat of considerable evil;
(b) that the fear was reasonable;
(c) that the threat was of an imminent or inevitable evil and induced fear;
(d) that the threat was unlawful or contra bonos mores;
(e) that the contract was concluded because of the duress.
Arend v Astra Furnishers (Pty) Ltd [1974] 1 All SA 522 (C), 1974 (1) SA 298 (C) p. 306
Savvides v Savvides [1986] 1 All SA 128 (T), 1986 (2) SA 325 (T) p. 330
BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) para. 36
The difference between (c) and (d) is not apparent.
Unconscionable conduct: The Consumer Protection Act forbids suppliers (as defined in the Act) and their agents
from using physical force against consumers, coercion, undue influence, pressure, duress or harassment, unfair
tactics or any other similar conduct. It is also unconscionable for a supplier 'knowingly to take advantage of the fact
that a consumer was substantially unable to protect the consumer's own interests because of physical or mental
disability, illiteracy, ignorance, inability to understand the language of an agreement, or any other similar factor'.
Duress by third parties: A party relying on duress exerted by a third party must allege and prove that the other
party to the contract knew of the duress or procured it.
Malilang v MV Houda Pearl [1986] 2 All SA 177 (A), 1986 (2) SA 714 (A) p. 731
Contra bonos mores : Whether a juridical act concluded under threat of criminal prosecution is voidable on the

ground that this type of duress is contrary to good morals depends on the facts.
Hohne v Super Store Mining (Pty) Ltd [2017] 1 All SA 681 (SCA), 2017 (3) SA 45 (SCA)
Economic duress: Although the Englishlaw doctrine of economic duress does not appear to form part of South
African law (except in the context of admiralty law) there [Page 182] is no principled reason why the threat of
economic ruin should not in appropriate cases be recognised as duress. In commercial bargaining the exercise of
free will may be fettered to some degree by the expectation of gain or the fear of loss, but hard bargaining is not
duress, even if the bargain is the product of an imbalance.
Malilang v MV Houda Pearl [1986] 2 All SA 177 (A), 1986 (2) SA 714 (A)
Van den Berg & Kie Rekenkundige Beamptes v Boomprops 1028 BK 1999 (1) SA 780 (T)
Medscheme Holdings (Pty) Ltd v Bhamjee [2005] 4 All SA 16 (SCA), 2005 (5) SA 339 (SCA)
Another debatable point is the validity of the 'rule' that it is not generally unlawful to inflict economic harm or even
economic ruin on another, or that it is generally not unconscionable to do so in a competitive economy.
Duress of goods: When improper pressure was exerted through duress of goods that is, when someone was by
an unlawful detention of goods made to pay a sum not due it is necessary, to recover payment, to allege and
prove that payment was accompanied by an unequivocal protest.
Cf. Commissioner for Inland Revenue v First National Industrial Bank Ltd [1990] 2 All SA 327 (A), 1990 (3) SA 641
(A)
PRECEDENTS
Claim for recovery of money
1. On [date], plaintiff arrived at [place] from [place] together with certain luggage and personal effects.
2. No duty was payable in terms of the laws relating to customs and excise in South Africa.
3. Defendant (the Commissioner of Customs and Excise) demanded from plaintiff payment of duty of [Rx] in respect of the
articles set out in the annexure hereto and threatened to confiscate them unless the amount was paid.
4. To release the articles, plaintiff, having made express protest, paid the amount in the bona fide and reasonable fear that
failure to do so would result in the confiscation of the articles.
5. In the premises, plaintiff is entitled to a refund of the amount paid of [amount].
Plea for voidness due to duress
1. Defendant admits that he gave the undertaking to plaintiff as alleged by plaintiff but pleads that, by virtue of the facts
hereinafter, he is not liable.
2. At the time the undertaking was given, plaintiff was in possession of defendant's motor vehicle in terms of an agreement
of hire between the parties, and plaintiff unlawfully threatened that, should the defendant refuse to give the aforesaid
undertaking, plaintiff would destroy the vehicle.
3. Defendant, in the reasonable and bona fide belief that plaintiff would carry out his threat, and to recover possession of
his vehicle in an undamaged condition, gave the undertaking under protest expressly made to plaintiff at the time.
4. But for the said threat, defendant would not have given the undertaking.
5. The undertaking is, therefore, void.
Election
See WAIVER
[Page 183]
Electricity
Related subject: VELD FIRES
General liability of licensee: In civil proceedings against a licensee (as defined in the Electricity Regulation Act 4 of
2006) arising out of damage or injury caused by induction or electrolysis or in any other manner by means of
electricity generated, transmitted or distributed by the licensee, the damage or injury is deemed to have been due
to the negligence of the licensee unless there is credible evidence to the contrary.
Electricity Regulation Act 4 of 2006s 25
Grootboom v GraaffReinet Municipality 2001 (3) SA 373 (E)
Negligence: The effect of section 25 appears to be to make negligence part and parcel of the plaintiff's cause of
action. Although negligence must still be alleged and particularised the defendant bears the onus of alleging and
proving on a balance of probabilities that it was not negligent or, if it was, that there was no causal link between its
negligence and the loss.
Cf. Van Wyk v Hermanus Municipality [1963] 4 All SA 83 (C), 1963 (4) SA 285 (C) p. 295A
Eskom Holdings Ltd v H o.b.o. H [2005] 3 All SA 415 (SCA), 2005 (5) SA 503 (SCA)
The repealed Electricity Act 40 of 1958 provided for strict liability and older cases must be read in that light.
PRECEDENTS
Claim for damages caused by shock
1. Defendant is a licensee in terms of the Electricity Regulation Act 4 of 2006.
2. Defendant is the owner of an electrical power line traversing plaintiff's property [describe].
3. On [date], a giraffe belonging to plaintiff came into contact with the power line and was electrocuted and killed.
4. The value of the giraffe was [amount].
5. Plaintiff accordingly suffered damages to the sum of [amount] caused by electricity transmitted by defendant.
6. The damage was caused by the negligence of the defendant, who, by reason of its ownership and control of the electrical
installation, was under a duty to the public in general and to the plaintiff in particular to ensure that those parts of the
installation, which crosses a game farm and poses a danger to animals, were at a safe height above the ground.
Employment contracts
Related subject: VICARIOUS LIABILITY
General: Most employment contracts are regulated by statute and industrial agreements. They extend or limit the
rights of the parties to the agreements.
Labour Relations Act 66 of 1995
Basic Conditions of Employment Act 75 of 1997
Employment Equity Act 55 of 1998
Textbooks on labour law should be consulted since what follows is very basic.
Jurisdiction: The Labour Court has exclusive jurisdiction in respect of all matters under the Basic Conditions of
Employment Act and has concurrent jurisdiction with the civil [Page 184] courts to hear and determine any matter
concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term
of that contract.
See Basic Conditions of Employment Act 75 of 1997s 77 (as amended) for detail
Issues flowing from the Labour Relations Act fall under the exclusive jurisdiction of the Labour Court.
Tacit terms: A statutory basic condition of employment constitutes a term of any contract of employment, except to
the extent that
(a) any other law provides a term that is more favourable to the employee;
(b) the basic condition of employment has been replaced, varied or excluded in accordance with the Act; or
(c) a term of the contract is more favourable to the employee than the basic condition of employment.
Basic Conditions of Employment Act 75 of 1997s 4
Claim for wages: An employee claiming payment of arrear wages must allege the contract with the employer and
its pertinent terms.
Prins v Universiteit van Pretoria [1980] 3 All SA 573 (T), 1980 (2) SA 171 (T)
The employee must allege nonpayment of the wages claimed, and the employer must allege and prove payment.
See PAYMENT
Employees need not allege that they did in fact supply or tender their services during the relevant period. If failure
to do so is raised by the employer in the plea, the employees must prove that they did supply or tender their
services.
Prins v Universiteit van Pretoria [1980] 3 All SA 573 (T), 1980 (2) SA 171 (T)
Dismissal and repudiation: The repudiation of an employment contract by an employer usually takes the form of a
wrongful dismissal.
Stewart Wrightson (Pty) Ltd v Thorpe [1977] 3 All SA 267 (A), 1977 (2) SA 943 (A)
Every employee has the right not to be
(a) unfairly dismissed; or
(b) subjected to unfair labour practices.
Labour Relations Act 66 of 1995s 185
The purpose of the remedy against unfair dismissal provided by the Act is to supplement the commonlaw rights of
employees whose employment might be lawfully terminated at the will of the employer (whether on notice or
summarily for breach) and to give an additional right to employees whose employment might be terminated lawfully
but in circumstances that nevertheless render that termination unfair. The Act does not deprive employees of the
commonlaw right to enforce the terms of a fixedterm contract of employment.
Fedlife Assurance Ltd v Wolfaardt [2002] 2 All SA 295 (A), 2002 (1) SA 49 (SCA)
Theron v Premier of the Western Cape Province and another [2017] All SA 916 (WCC)
Termination of employment: A contract may be terminated on notice, provided the required period of notice is
given or, if the employer pays the employee, the prescribed wages for that period.
Basic Conditions of Employment Act 75 of 1997ss 37 and 38
Onus: In a claim based on wrongful dismissal, the employee must allege and prove the contract of employment and
the subsequent dismissal. The employer must allege and prove facts justifying the dismissal, such as the
employee's act of misconduct.
[Page 185]
When the dismissal is based on facts amounting to conduct justifying dismissal, the employee must, by way of
confession and avoidance, allege and prove further facts excusing the misconduct.
Masinga v Minister of Justice, KwaZulu Government [1995] 2 All SA 350 (A), 1995 (3) SA 214 (A) p. 221
If the employee wishes to claim damages, the employee bears the onus of proving causation and loss.
The South African Football Association v Mangope (2013) 34 ILJ 311 (LAC)
Theron v Premier of the Western Cape Province and another [2017] All SA 916 (WCC)
Pleadings in the Labour Court: The Labour Court has its own rules. It provides for the initiating of 'referrals' by
means of a statement of claim which in its substantive part must have the following information:
(a) the names, description and addresses of the parties;
(b) a clear and concise statement of the material facts, in chronological order, on which the party relies;
(c) a clear and concise statement of the legal issues that arise from the material facts; and
(d) the relief sought.
Any party on whom the statement of claim is served may file a response, which is in form a plea and must contain
information as set out in (a) to (d) above.
Labour Court rule 6
PRECEDENTS
Claim for wages or salary expressly or impliedly agreed upon
1. Plaintiff was employed by defendant to manage defendant's business at [address], under an oral agreement concluded
between the parties on [date] at [place], at an agreed monthly salary of [amount] commencing on [date].
Alternatively:
(a) it was an implied term of the agreement that defendant would pay to plaintiff a fair and reasonable remuneration
for services rendered;
(b) a fair and reasonable remuneration for the services is the amount of [Rx] per month.
2. On [date], defendant terminated plaintiff's employment by due notice but, despite demand, failed to pay plaintiff's salary
for the month of [specify], namely an amount of [amount].
[Approved in Prins v Universiteit van Pretoria [1980] 3 All SA 573 (T), 1980 (2) SA 171 (T).]
Claim for wages or salary expressly or impliedly agreed upon
[Taken from Perumal v Govender 1997 (3) SA 644 (N).]
1. The plaintiff was employed by the defendant under an oral employment contract from April 1993 at a monthly salary of
R10 000, together with a motor vehicle allowance of R2 000.
2. On or about 14 August 1993, the defendant unlawfully repudiated the agreement by purporting to terminate it
unilaterally.
3. The plaintiff refused and refuses to accept the repudiation.
4. The plaintiff has since 14 August 1993 tendered and hereby again tenders to work for the defendant as he undertook to
do.
5. The plaintiff demanded payment of the salary of R10 000 plus a motor vehicle allowance of R2 000 in respect of August
1993.
6. Despite demand, the defendant refused to pay to the plaintiff the R12 000.
7. The plaintiff's salary of R10 000 and motor vehicle allowance of R2 000 for September 1993 has now fallen due.
[Page 186]
Tendering to continue his employment with the defendant, the plaintiff claims:
(a) judgment for R24 000 (in respect of the months August and September 1993);
(b) judgment for R12 000 in respect of each month, in arrears, from October 1993 to date of judgment;
(c) costs of suit.
Encroachment
Related subject: TRESPASS
The claim: A plaintiff who wishes to claim relief consequent to an encroachment onto the plaintiff's property must
allege and prove that
(a) the plaintiff owns the property encroached upon; and
(b) the defendant has erected a structure or part of a structure on the plaintiff's property.
Smith v Basson [1979] 1 All SA 133 (W), 1979 (1) SA 559 (W)
Remedy: The plaintiff may claim removal of the encroachment or damages suffered because of the encroachment.
Trustees of the Brian Lackey Trust v Annandale [2003] 4 All SA 528 (C), 2004 (3) SA 281 (C)
The defendant may not claim transfer of the property encroached upon, but the court may, in exercising its
discretion to make a 'just order', order the plaintiff to transfer to the defendant the portion encroached upon,
against payment of damages.
Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust [2015] 3 All SA 523 (SCA),
2015 (5) SA 290 (SCA)
Defences: A defendant faced with a claim for removal may allege and prove that an order of removal would be
unjust, in which event the plaintiff may be left to a claim for damages. The material facts on which the allegation of
the injustice is based must be set out in the plea.
Trustees of the Brian Lackey Trust v Annandale [2003] 4 All SA 528 (C), 2004 (3) SA 281 (C)
The defendant may also oppose the removal of the encroachment if the plaintiff knowingly allowed the
encroachment. The rule that a plaintiff who does not protest within one year and one day of becoming aware of the
encroachment loses a claim for removal does not appear to form part of our law.
Rand Waterraad v Bothma 1997 (3) SA 120 (O)
PRECEDENTS
Claim for removal or payment
1. Plaintiff is the owner of stand [specify] situate in the town of [specify].
2. Defendant built a house on stand [specify] that adjoins plaintiff's said property. The house encroaches on plaintiff's
property as indicated on the annexed map.
3. The value of the land upon which the encroachment exists is [amount].
An order compelling defendant to remove the encroachment and make good the land upon which it stands; alternatively, an
order that defendant take transfer of the land upon which the encroachment exists, against payment to plaintiff of [amount].
[Page 187]
Plea
1. Defendant admits the encroachment but pleads that it would be inequitable to order the removal thereof for the reasons
hereinafter set out, namely: [give grounds].
2. Defendant tenders to pay to plaintiff [amount], being the value of the land encroached upon, against transfer to
defendant, at defendant's cost, of the land concerned.
Engineers
The legal position of consulting engineers is similar to that of architects. See ARCHITECTS and the Engineering
Profession Act 46 of 2000.
Hawkins Hawkins & Osborn (South) (Pty) Ltd v Enviroserve Waste Management [2009] 2 All SA 319 (SCA),
2009 (4) SA 425 (SCA)
Enrichment
S e e CONDICTIO FURTIVA; CONDICTIO INDEBITI; CONDICTIO SINE CAUSA; CONTRACT: ILLEGAL CONTRACTS;
NEGOTIORUM GESTIO
General enrichment action: Although there is authority that recognises a general enrichment action, the general
enrichment action has never found application. Pleaders would be well advised to formulate any enrichment claim in
terms of one or other of the various condictiones referred to above.
First National Bank of SA Ltd v Perry NO [2001] 3 All SA 331 (A), [2001] ZASCA 37
Estoppel
Related subjects: AGENCY; RES IUDICATA s.v. ISSUE ESTOPPEL; VINDICATION
General: The essence of the doctrine of estoppel by representation is that a person (A, the representor) is
precluded or estopped from denying the truth of a representation previously made to another person (B, the
representee) if B, believing in the truth of the representation, acted on the representation to B's detriment.
Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd [1981] 4 All SA 238 (A), 1981 (3) SA 274 (A) p. 291
SA Broadcasting Corp v Coop [2006] 1 All SA 333 (SCA), 2006 (2) SA 217 (SCA)
Onus: A party wishing to rely on estoppel must plead and prove its essentials.
Blackie Swart Argitekte v Van Heerden [1986] 1 All SA 373 (A), 1986 (1) SA 249 (A) p. 260
Estoppel raised by a plaintiff: Estoppel is not a cause of action. Therefore, a plaintiff may not rely on it in the claim,
nor may a defendant rely on it in a counterclaim.
Rosen v Barclays National Bank Ltd [1984] 1 All SA 1 (W), 1984 (3) SA 974 (W) p. 983
Sodo v Chairman, African National Congress, Umtata Region [1998] 1 All SA 45 (Tk)
[Page 188]
A plaintiff must base the case in the claim on the facts as represented to the plaintiff by the defendant. If the
defendant pleads the true facts, the plaintiff may rely on estoppel in the replication.
Mann v Sidney Hunt Motors (Pty) Ltd [1958] 1 All SA 328 (G), 1958 (2) SA 102 (G)
Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC [2011] 3 All SA 173 (SCA), 2011 (2) SA 508
(SCA) para. 31
Estoppel raised by a defendant: A defendant may raise estoppel in the plea.
De Klerk v Old Mutual Insurance Co Ltd [1990] 1 All SA 371 (E), 1990 (3) SA 34 (E) p. 41
Essentials: The essentials for estoppel are the following:
(a) Representation by words or conduct of a certain factual position.
Universal Stores Ltd v OK Bazaars (1929) Ltd [1973] 4 All SA 611 (A), 1973 (4) SA 747 (A) p. 761
Road Accident Fund v Mothupi [2000] 3 All SA 181 (A), 2000 (4) SA 38 (SCA)
Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and others [2012] 3 All SA 498 (SCA),
2012 (5) SA 323 (SCA)
A representee relying on a representation by words must show that the representation was clear and
unequivocal and reasonably understood in the sense alleged.
Southern Life Association Ltd v Beyleveld NO [1989] 1 All SA 390 (A), 1989 (1) SA 496 (A)
The test for a representation by conduct is whether the representor should reasonably have expected that
the representee might be misled by the conduct and the representee acted reasonably in construing the
representation in the sense in which the representee did.
Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter [2004] 4 All SA 589 (SCA), 2004 (6) SA 491 (SCA)
Leeuw v First National Bank [2010] 2 All SA 329 (SCA), 2010 (3) SA 410 (SCA)
(b) The representee acted on the correctness of the facts as represented. There must, therefore, be a causal
connection between the representation and the act. This entails proving that reliance was not actuated by an
external influence or factor other than the misrepresentation.
Standard Bank of SA Ltd v Stama (Pty) Ltd [1975] 2 All SA 206 (A), 1975 (1) SA 730 (A) p. 743
Stellenbosch Farmers' Winery Ltd v Vlachos t/a Liquor Den [2001] 3 All SA 577 (A), 2001 (3) SA 597 (SCA)
(c) The representee acted, or failed to act, to her or his detriment.
PeriUrban Areas Health Board v Breet NO [1955] 2 All SA 186 (T), 1958 (3) SA 783 (T) p. 790
Absa Bank Ltd v De Klerk [1998] 4 All SA 674 (W), 1999 (1) SA 861 (W)
(d) The representation was made negligently. The requirement of negligence is not always an element.
Info Plus v Scheelke [1998] 2 All SA 509 (A), 1998 (3) SA 184 (SCA)
Caldeira v Ruthenberg [1999] 1 All SA 519 (A), 1999 (4) SA 37 (SCA)
(e) The representor could bind the defendant by means of a representation. This means that a representation by
A that A is entitled to act on behalf of B cannot estop B from denying A's authority unless, for instance, B was
a party to the representation. The situation would be different had B represented that A could act on B's
behalf.
NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (SCA), 2002 (1) SA 396 (SCA)
Vindicatory claims: When, in answer to a vindicatory claim, reliance is sought to be placed on estoppel, it is
necessary to allege and prove that the representation relied [Page 189] upon was made by the owner and that the
person who disposed of the owner's property was its owner or was entitled to dispose of it.
Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd 1976 (1) SA 441 (A) p. 452
Absa Bank Ltd v Knysna Auto Services CC [2016] ZASCA 93
Ostensible authority: See AGENCY.
Invalid acts: Estoppel may not be used to make legal what would otherwise be illegal and cannot replace statutory
requirements for the validity of contracts.
Trust Bank van Afrika Bpk v Eksteen [1964] 3 All SA 507 (A), 1964 (3) SA 402 (A)
Strydom v Die Land & Landboubank van SA [1972] 2 All SA 22 (A), 1972 (1) SA 801 (A) p. 815
Provincial Government of the Eastern Cape and others v Contractprops 25 (Pty) Ltd [2001] 4 All SA 273 (A),
2001 (4) SA 142 (SCA)
PRECEDENTS
Plea to a claim based on plaintiff's ownership of a motor vehicle
1. Defendant denies that plaintiff is the owner of the motor vehicle concerned.
2. In the alternative, and in the event of the court's finding that plaintiff is the owner of the vehicle, defendant pleads that
plaintiff is estopped from relying on the plaintiff's ownership for the following reasons:
(a) on [date], plaintiff by words [set out] and by conduct [set out] negligently represented to defendant that [X] was
the owner of the motor vehicle;
(b) defendant accepted the correctness of this representation and acted thereon when [X] presented the vehicle to the
defendant as a tradein on a vehicle which [X] intended to purchase from defendant;
(c) the defendant acted to his detriment and accepted the vehicle as part payment for the purchase of a vehicle
[describe] by [X].
Plea similar
3. Plaintiff entrusted the vehicle to X Motors, a wellknown dealer in motor vehicles.
4. Plaintiff requested X Motors to find a buyer for the vehicle.
5. Plaintiff knew, or should have known, that X Motors would exhibit the vehicle at its business premises as part of its stock
intrade, which it in due course did.
6. Plaintiff thereby enabled X Motors to deal with the vehicle as owner.
7. By this conduct, plaintiff negligently represented to defendant that X Motors was the owner of the vehicle and had the
right to dispose of it.
8. Defendant accepted as correct the representation and, relying on it, to defendant's prejudice, purchased the vehicle from
X Motors and paid the purchase sum of [Rx] in full.
9. Plaintiff is consequently estopped from enforcing his alleged ownership against defendant.
[Cf. Info Plus v Scheelke [1998] 2 All SA 509 (A), 1998 (3) SA 184 (SCA).]
Replication to a plea denying that defendant's alleged agent was authorised
1. Plaintiff persists in the allegation that [X] was duly authorised by defendant to enter into the contract.
2. In the event, however, of the court's finding that [X] was not duly authorised, plaintiff replies that defendant is estopped
from denying the authority of [X] for the following reasons:
(a) For many years, plaintiff conducted business with defendant through the agency of [X].
(b) [X] is stated to be the agent of defendant on defendant's stationery.
(c) At no time did defendant inform plaintiff that [X] was no longer his agent.
[Page 190]
(d) Acting as aforesaid, defendant represented to plaintiff that [X] was still an authorised agent.
(e) Acting on the belief of the correctness of this representation, plaintiff was induced, to his detriment, to enter into a
contract with [X], ostensibly as the agent of defendant.
[Cf. the pleadings in CJ Mathebula t/a Nxolwane Bottle Store v University of the North [1998] 3 All SA 477 (T).]
Eviction
Related subjects: LEASE; SALE: WARRANTY AGAINST EVICTION; SPOLIATION; TRESPASS; VINDICATION
Statutory protection: The Constitution and several statutes affect the right to eject an occupier of land. They must
be considered before one proceeds against any given occupier.
Molusi and others v Voges NO and others 2016 (7) BCLR 839 (CC), 2016 (3) SA 370 (CC)
The statutes are dealt with below in a limited fashion.
Causes of action: Ejectment of an occupier of premises may be obtained by means of
(a) the rei vindicatio, where reliance is placed on the plaintiff's ownership and the defendant's possession of the
property; or
(b) a possessory claim.
This section must be read with VINDICATION.
Possessory claim: Under this cause of action the plaintiff need not allege and prove any title to the property from
which the defendant is to be evicted. For instance, a lessee is bound by the terms of the lease even if the lessor
has no title to the property and, when sued for ejectment at the termination of the lease, it does not avail the
lessee to show that the lessor has no right to occupy the property.
Ebrahim v Pretoria Stadsraad [1979] 2 All SA 341 (T), 1980 (4) SA 10 (T)
Boompret Investments (Pty) Ltd v Paardekraal Concession Store (Pty) Ltd 1990 (1) SA 347 (A) p. 351
Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and another 2016 (1) SA 621 (CC), 2016
(1) BCLR 28 (CC)
Zitonix (Pty) Limited v K201250042 (South Africa) (Pty) Limited [2018] ZASCA 63
The plaintiff must instead allege and prove
(a) the right of the defendant to possess, for example, the lease between the parties, with the plaintiff as lessor;
Boshoff v Union Government 1932 TPD 345
(b) a valid termination of the right to possess (e.g. a lease);
Schnehage v Bezuidenhout [1977] 1 All SA 408 (O), 1977 (1) SA 362 (O)
V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd [2002] 4 All SA 50 (Z)
(c) the continued occupation by the defendant or someone holding on behalf of or through the defendant;
(d) compliance with the provisions of the Extension of Security of Tenure Act 62 of 1997 or the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, if applicable (see below);
(e) damages (if any) suffered because of the holding over.
See LEASE
[Page 191]
If the cause of action is not related to a cancelled contract, reliance may be placed on a superior (usually statutory)
right.
Vumane v Mkize [1990] 3 All SA 509 (W), 1990 (1) SA 465 (W)
South African National Parks v Ras [2001] 4 All SA 380 (C), 2002 (2) SA 537 (C)
Relief: The relief available is
(a) an order ejecting the defendant from the premises;
(b) optionally, cancellation or confirmation of the cancellation of the underlying agreement;
(c) damages, if any have been suffered.
Discretion: Courts have a discretion to stay or suspend an eviction order to which the claimant is otherwise
entitled.
AJP Properties CC v Sello 2018 (1) SA 535 (GJ)
Extension of Security of Tenure Act 62 of 1997: The object of the Act is to protect a class of tenants ('occupiers')
on rural or semirural land who have acquired their tenancy with the consent of the landowner against eviction.
Baron and others v Claytile (Pty) Limited and another 2017 (10) BCLR 1225 (CC), 2017 (5) SA 329 (CC)
An 'occupier' is defined as a person residing on land which belongs to another person and who has or, on 4
February 1997 or thereafter, had consent or another right in law to do so, but excludes
(a) a person using or intending to use the land in question mainly for industrial, mining, commercial or commercial
farming purposes, but includes a person who works the land and does not employ any person who is not a
family member; or
(b) a person who has an income greater than the prescribed amount.
Klaase and another v Van der Merwe NO and others 2016 (9) BCLR 1187 (CC), 2016 (6) SA 131 (CC)
A plaintiff must allege and prove that the defendant falls within one of the two exceptions and did not occupy with
consent.
Extension of Security of Tenure Act 62 of 1997s 3(4)(5)
The Act applies to occupiers who are not employees of the landowner.
Van Zyl NO v Maarman [2000] 4 All SA 212 (LCC), 2001 (1) SA 957 (LCC)
The Act applies basically to all land other than land in a township established, approved, proclaimed or otherwise
recognised as a township. Since there is a presumption that the land occupied falls under the provisions of the Act,
a plaintiff must allege and prove that the Act does not apply.
Extension of Security of Tenure Act 62 of 1997s 2
Dlamini v Joosten [2006] 3 All SA 1 (SCA), 2006 (3) SA 342 (SCA)
The jurisdiction of the High Court to grant eviction orders under the Act is limited.
Khumalo v Potgieter [2001] 3 All SA 216 (A), 2001 (3) SA 63 (SCA)
Mkangeli v Joubert [2002] 2 All SA 473 (A), 2002 (4) SA 36 (SCA)
Margre Property Holdings CC v Jewula [2005] 2 All SA 119 (E)
Malelane (Edms) Bpk v Godfrey [2008] 2 All SA 97 (T)
A court may make an order for the eviction of an occupier if
(a) the occupier's right of residence was lawfully terminated in terms of section 8, which means that the eviction
will be just and equitable, having regard to the factors mentioned in that section;
Rashavha v Van Rensburg [2004] 1 All SA 168 (SCA), 2004 (2) SA 421 (SCA)
Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and others [2012] 3 All SA 655 (SCA), 2012 (5) SA 392
(SCA)
[Page 192]
Fischer and another v Ramahlele and others [2014] 3 All SA 395 (SCA), 2014 (4) SA 614 (SCA)
(b) the occupier has not vacated the land within the notice period;
(c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; and
(d) not less than two calendar months' written notice of the intention to obtain an order for eviction was given to
(i) the occupier;
(ii) the municipality in whose area of jurisdiction the land in question is situated; and
(iii) the head of the relevant provincial office of the Department of Land Affairs.
Snyders and others v De Jager and others 2017 (5) BCLR 614 (CC), 2017 (3) SA 545 (CC)
If the conditions have been met, the motive for the application for eviction is irrelevant.
Land & Landbouontwikkelingsbank van SA v Conradie [2005] 4 All SA 509 (SCA), 2005 (4) SA 506 (SCA)
The powers of the court in granting an eviction order are differently circumscribed, depending on whether the
occupier occupied before, or has occupied since, 4 February 1997.
Extension of Security of Tenure Act 62 of 1997ss 1013
Pitout v Mbolane [2000] 2 All SA 377 (LCC)
A court may grant an urgent order on application.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998: The Act applies to the
eviction of all unlawful occupiers, meaning persons who occupy land without the express or tacit consent of the
owner or person in charge, or without any other right in law to occupy that land.
Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA), 2003 (1) SA 113 (SCA)
Barnett v Minister of Land Affairs [2007] ZASCA 95, 2007 (6) SA 313 (SCA)
The Act does not apply to persons who are occupiers under the Extension of Security of Tenure Act or whose
informal right to land is protected by the Interim Protection of Informal Land Rights Act 31 of 1996.
The Act does not apply to eviction of juristic persons or persons not using the property as a form of dwelling or
shelter. The Act must be complied with before eviction of residential occupants can be ordered. Fourteen days
before the hearing of the eviction proceedings, the occupier and the local municipality must be given the prescribed
notice of the proceedings.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998s 4
MC Denneboom Service Station CC and another v Phayane 2015 (1) SA 54 (CC), 2014 (12) BCLR 1421 (CC)
This requirement may be dispensed with if a case of urgency can be made out.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998s 5
The court has discretion in ordering eviction. In the exercise of this discretion, various prescribed factors must be
considered.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998s 4(6)(8)
Pitje v Shibambo and others 2016 (4) BCLR 460 (CC)
[Page 193]
Provided the procedural requirements have been met, the owner is entitled to approach the court for an eviction
order relying on ownership and the respondent's unlawful occupation. Unless the occupier opposes and discloses
circumstances relevant to the eviction order, the owner is entitled to an order for eviction.
Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA), 2003 (1) SA 113 (SCA)
PRECEDENTS
Claim eviction after cancellation of lease
1. On [date] at [place], plaintiff and defendant entered into an oral agreement in terms of which plaintiff, as lessor, leased
to defendant, as lessee, a house at [address].
2. In terms of the agreement, defendant took occupation of the house on [date] and remains in occupation.
3. On [date], plaintiff, as he was entitled to do, cancelled the agreement. [Provide detail of cancellation]
4. Defendant's right to occupy the property, therefore, terminated on [date] but, despite demand, defendant has failed to
vacate the property.
5. Because of defendant's continued occupation of the property, plaintiff is suffering damages in [amount] per month,
calculated as follows:
[detail].
(a) An order confirming the cancellation of the agreement between the parties.
(b) An order ejecting defendant from the premises at [address].
(c) Payment of [amount] damages per month of unlawful occupation.
Exceptio non adimpleti contractus
Related subjects: CONSTRUCTION CONTRACTS; TENDER BY A PLAINTIFF
General: If the obligations of parties to a contract are reciprocal, the claim of the plaintiff who has not yet
performed or tendered to perform may be met by the defence that because of the plaintiff's failure to perform or
tender performance the defendant's obligation to perform has not yet arisen.
Grand Mines (Pty) Ltd v Giddey NO 1999 (1) SA 960 (A)
This defence can apply only when the plaintiff's performance has to precede the defendant's or when both must
perform at the same time.
Mörsner v Len [1992] 2 All SA 57 (A), 1992 (3) SA 626 (A)
Cradle City (Pty) Ltd v Lindley Farm 528 (Pty) Ltd 2018 (3) SA 65 (SCA)
The exceptio is usually a temporary remedy but may be permanent when performance by the plaintiff is no longer
possible.
Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd [1996] 4 All SA 601 (A), 1996 (4) SA 950
(A)
Defective performance may also be met by the exceptio.
Sequence of performance:
(a) When a contract imposes reciprocal obligations on the parties, performance and counterperformance should
generally take place at the same time.
RM van de Ghinste & Co (Pty) Ltd v Van de Ghinste [1980] 3 All SA 105 (C), 1980 (1) SA 250 (C)
[Page 194]
MAN Truck & Bus (Pty) Ltd v Dorbyl Ltd t/a Dorbyl Transport Products and Busaf [2004] 2 All SA 113 (SCA),
2004 (5) SA 226 (SCA)
This applies to all types of reciprocal contracts and not only to building contracts and the like.
In the case of a sale, delivery of the merx and payment of the purchase price are ordinarily reciprocal and
concurrent.
Andrews v Lidaks [1971] 2 All SA 29 (W), 1971 (1) SA 892 (W)
(b) There are exceptions: for instance, a lessor of property must usually perform before rental may be demanded
and a building contractor must, in principle, perform first.
(c) The agreement may vary the order of performance of obligations. For example, a lease could require pre
payment of rental.
(d) It is essentially a matter of interpretation whether obligations are so closely linked as to be mutually
dependent.
Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd [1996] 4 All SA 601 (A), 1996 (4) SA 950
(A)
Onus: A plaintiff claiming performance of contractual obligations must, if the obligations are dependent on each
other, allege and prove one of the following:
(a) that the plaintiff has properly performed its part of the bargain;
(b) that the plaintiff is excused from performance because of impossibility of performance, for example;
(c) a tender (a willingness and ability) by the plaintiff to perform the plaintiff's side of the bargain; or
(d) that the defendant has accepted defective performance.
International Executive Communications Ltd t/a Institute for International Research v Turnley [1996] 3 All SA 648
(W), 1996 (3) SA 1043 (W)
Ter Beek v United Resources CC 1997 (3) SA 315 (C)
Duty to plead nonperformance: It is for the defendant, however, to allege nonperformance and to provide
sufficient detail to enable the plaintiff to disprove the allegations. In a suitable case, the duty to begin may fall on
the defendant.
HA Millard & Son (Pty) Ltd v Enzenhofer [1968] 1 All SA 388 (T), 1968 (1) SA 330 (T)
Transfer: As to a tender of guarantees against transfer of immovable property, see
Rosen v Ekon [2000] 3 All SA 24 (W), 2001 (1) SA 199 (W)
PRECEDENTS
Claim with tender of delivery
1. On [date] at [place], the parties entered into an oral agreement in terms of which plaintiff sold to defendant a gold watch.
2. It was a term of the agreement that delivery of the watch would be made on [date], against payment to plaintiff of
[amount], being the full purchase price.
3. On due date, plaintiff tendered delivery of the watch, but defendant refused to pay the purchase price.
4. Plaintiff repeats the tender of delivery of the watch against payment of the purchase price.
Tendering as aforesaid, the plaintiff claims payment of [amount].
[Page 195]
Claim with tender of payment
1. On [date] at [place], the parties concluded a written agreement, a copy of which is attached and marked 'A', in terms of
which plaintiff purchased from defendant the fixed property [describe] for the purchase price of [amount].
2. Plaintiff hereby tenders to defendant the balance of the purchase price of [amount] in cash upon registration of transfer
of the land into plaintiff's name and, as will more fully appear from Annexure 'B' hereto, being a copy of a bank
guarantee by the [specify] bank, payment of the balance is secured by means of a bank guarantee.
3. Accordingly, defendant is obliged to pass transfer of the property to plaintiff but, despite demand, has failed or refused to
do so.
Plea of nonperformance
1. Defendant admits the agreement as alleged and his failure to perform in terms thereof but pleads that, in terms of the
agreement, plaintiff is obliged to make payment of [amount] before or simultaneously with defendant's performance.
2. Plaintiff has not paid, nor has he tendered to do so.
The defendant prays that plaintiff's claim be dismissed with costs.
Exception
See PART A s.v. V. EXCEPTION for notes
PRECEDENTS
Exception to a claim
Defendant excepts to plaintiff's particulars of claim because it does not disclose a cause of action on the grounds that:
(a) plaintiff claims delivery of immovable property pursuant to a deed of sale between the parties;
(b) it appears ex facie the deed relied upon by plaintiff that defendant did not sign it as seller;
(c) plaintiff does not allege that the person who signed as seller was acting as defendant's agent in terms of a written
authority signed by defendant.
Exception to part of a claim
Defendant hereby excepts to plaintiff's claim on the ground that the first alternative claim is bad in law and does not disclose a
cause of action on the following grounds:
(a) the alternative claim is a claim for damages based on defendant's alleged innocent misrepresentation;
(b) the claim is not based on the aedilitian actions or a dictum et promissum;
(c) there is in law no claim for damages suffered because of an innocent misrepresentation.
The defendant prays that this exception be upheld and plaintiff's first alternative claim be dismissed with costs.
Exception to a plea
Plaintiff excepts to defendant's plea on the ground that it does not disclose a defence because:
(a) plaintiff's claim is based upon a cession from [the cedent] to plaintiff;
(b) defendant admits the cession and does not deny that he had knowledge of the cession at all relevant times;
[Page 196]
(c) defendant's plea of payment to the cedent after the cession and with knowledge does not constitute a defence in law.
The plaintiff claims that the exception be upheld with costs and defendant's plea be dismissed with costs.
Exchange (barter or mutuum)
Exchange and sale distinguished: There are two differences between the law of sale and the law of exchange.
(a) Performance and counterperformance, in the case of an exchange of goods. In the case of a sale, one
performance must be in money.
(b) The property of another cannot be bartered while the sale of a third party's goods is possible.
Pennefather v Gokul [1960] 3 All SA 446 (N), 1960 (4) SA 42 (N)
Determining the nature of the transaction: In determining whether a contract to deliver an article and pay money
as partperformance in 'exchange' for goods is a contract of exchange or of sale, the primary consideration is the
intention of the parties.
Hoeksma v Hoeksma 1990 (2) SA 893 (A)
See CONTRACT: CONCLUSION AND TERMS
When the main consideration is payment of money, the transaction is normally a sale, otherwise it is an exchange.
Wastie v Security Motors (Pty) Ltd [1972] 2 All SA 255 (C), 1972 (2) SA 129 (C)
Terblanche v Archdeacon [1979] 4 All SA 314 (T), 1979 (3) SA 201 (T)
Mountbatten Investments (Pty) Ltd v Mahomed [1989] 1 All SA 94 (D), 1989 (1) SA 172 (D)
If the value of a tradein at an agreed price is the determining factor, the contract is one of sale.
Bouwer v Adelford Motors (Pty) Ltd [1970] 4 All SA 263 (E), 1970 (4) SA 286 (E)
Latent defects: The aedilitian actions for latent defects in goods sold are available to a party to an exchange.
Janse van Rensburg v Grieve Trust CC [1999] 3 All SA 597 (C), 2000 (1) SA 315 (C)
Exchange of land: Alienation of land pursuant to a contract of exchange must comply with the provisions of the
Alienation of Land Act 68 of 1981.
Leonard Light Industries (Pty) Ltd v Wright [1991] 4 All SA 250 (W), 1991 (4) SA 628 (W)
PRECEDENT
Claim for performance
1. On [date] at [place], the parties orally agreed that defendant would give to plaintiff a certain motor vehicle [registration
number] in exchange for a certain motorcycle [registration number] to be given by plaintiff to defendant.
2. Plaintiff has duly tendered delivery of the motorcycle to defendant, but defendant refused to accept the tender and failed
to deliver the motorcar to plaintiff.
Tendering as aforesaid, the plaintiff claims delivery of motor vehicle [registration number].
[Page 197]
Expropriation
The Bill of Rights: According to section 25 of the Bill of Rights no one may be deprived of property except in terms
of law of general application and no law may permit arbitrary deprivation of property. Property may be expropriated
only in terms of law of general application (a) for a public purpose or in the public interest and (b) subject to
compensation. The amount of compensation and the time and manner of payment must be either agreed to by
those affected or decided or approved by a court.
Statute: Various authorities and bodies are empowered to expropriate property and rights. They derive their
authority from specific statutory provisions. The basis on which the amount of compensation must be determined is
prescribed by the Expropriation Act 63 of 1975 (as amended) and the Bill of Rights.
Community Development Act 3 of 1966
Restitution of Land Rights Act 22 of 1994
Property Valuation Act 17 of 2014
Forum: If the parties cannot agree on the amount of compensation payable, it may be determined by arbitration or
by the High Court.
Expropriation Act 63 of 1975s 14
Invalid expropriation: A purported expropriation is void ab initio if the expropriating authority exceeded its powers
for example, when expropriation is not for a public purpose or in the public interest.
Offit Farming Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd [2010] 2 All SA 545 (SCA),
2010 (4) SA 242 (SCA)
Offit Enterprises (Pty) Ltd and another v Coega Development Corporation (Pty) Ltd and others 2011 (2) BCLR 189
(CC)
Expropriation may also be void if the description of the property is not sufficiently clear to identify it. Expropriation
may be voidable if, for instance, the expropriating authority expropriated with an ulterior motive.
Voorslag Ontwikkelingskorp (Edms) Bpk v Administrateur, Transvaal [1974] 3 All SA 576 (T), 1974 (3) SA 563 (T)
Provinsiale Administrasie, Kaap die Goeie Hoop v Swart [1988] 1 All SA 63 (C), 1988 (1) SA 375 (C)
A plaintiff may claim for the setting aside of the expropriation and, in the alternative, for a determination of
compensation.
Parties: The plaintiff is the person expropriated of a property or right who claims compensation and actual financial
loss due to the expropriation.
Expropriation Act 63 of 1975s 1 s.v. 'owner'
The defendant, who is the expropriator, may be one of several public authorities or bodies such as the central
government, usually represented by the relevant Minister, provincial governments, local authorities, and other
bodies established to promote matters of public importance.
Expropriation Act 63 of 1975s 3(2)
The officials of the Department of Community Development perform the administrative functions of the Community
Development Board.
Community Development Act 3 of 1966s 10
Therefore, a notice of expropriation in terms of which the Community Development Board expropriates property
emanates from the offices of the Department of [Page 198] Community Development. The correct defendant to cite
in such a case is the Community Development Board, a statutory body corporate.
Date of notice of expropriation: The market value of the expropriated property must be determined as at the 'date
of notice'.
Expropriation Act 63 of 1975s 12(1)(a)(i)
The date of notice is the date on which a notice of expropriation is delivered, tendered or posted, or published in
the Gazette.
Expropriation Act 63 of 1975ss 1 and 7(3) and (5)
Basis of compensation: In principle, an owner whose property is expropriated is entitled to the market value of the
property. However, the Bill of Rights introduced several unquantifiable considerations that have to be taken into
account in determining just and equitable compensation. Compensation must reflect an equitable balance between
the public interest and the interests of those affected, having regard to all relevant circumstances including
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the
property; and
(e) the purpose of the expropriation.
In practical terms it means that the market value must first be determined and that an upward or downward
adjustment, having regard to other relevant factors, may have to be made to determine whether the amount is fair
and equitable.
Du Toit v Minister of Transport 2005 (11) BCLR 1053 (CC), 2006 (1) SA 297 (CC) paras 2637
City of Cape Town v Helderberg Park Development (Pty) Ltd [2007] 1 All SA 517 (SCA), 2007 (1) SA 1 (SCA)
Compensation under the Expropriation Act: The amount of compensation to be paid to an owner depends on
whether 'property' or a 'right' was expropriated.
(a) In the case of property, compensation may not exceed the aggregate of
(i) the amount the property would have realised had it been sold on the date of notice in the open market
by a willing seller to a willing buyer; and
(ii) an amount to make good any actual financial loss caused by the expropriation.
(b) In the case of a right (including the right to use property temporarily), compensation may not exceed an
amount to make good any actual financial loss caused by the expropriation or the taking of the right.
Minister of Transport v Du Toit [2004] 4 All SA 603 (SCA), 2005 (1) SA 16 (SCA)
Restitution of Land Rights Act 22 of 1994: This Act has its own principles and they differ somewhat from those set
out thus far.
Hermanus v Department of Land Affairs [2000] 4 All SA 499 (LCC), 2001 (1) SA 1030 (LCC)
Market value: Property has at the date of expropriation a single market value which is to be determined by valuing
the property without reference to the owner.
Pienaar v Minister van Landbou [1972] 1 All SA 287 (T), 1972 (1) SA 14 (T) p. 20
To determine the market value, the court must ascertain what the notional willing purchaser would have paid to a
notional willing seller at the date of notice. The notional willing purchaser and seller are not the expropriatee and
the expropriator. They are deemed to be fully informed about all the attributes of the property, both positive and
[Page 199] negative. All the potentialities of the property must be ascertained as reasonable possibilities, not as
realised certainties.
Bestuursraad van Sebokeng v M&K Trust & Finansiële Maatskappy (Edms) Bpk 1973 (3) SA 376 (A) p. 384
In the event of the expropriation of part of a property, compensation may be determined by valuing the property
before expropriation and valuing the remainder after expropriation. The difference between the two amounts will be
the compensation payable as the market value.
Minister of Transport v Du Toit [2004] 4 All SA 603 (SCA), 2005 (1) SA 16 (SCA)
Another approach is to value the expropriated portion and to allow the plaintiff the depreciation in value of the
remainder, if any, as actual financial loss.
Expert evidence: See, in general,
Pentree Limited v Nelson Mandela Bay Municipality [2017] 2 All SA 260 (ECP), 2017 (4) SA 32 (ECP)
Bee v Road Accident Fund [2018] ZASCA 52
The 'disregards': When the market value of a property is determined by way of valuation, various factors have to
be disregarded.
(a) No allowance is to be made for the fact that the property had been taken without the consent of the owner.
(b) The special suitability of the property for the purpose for which it is required by the expropriator is to be
disregarded unless the property would have been sold in the open market for that purpose.
(c) Enhancement due to unlawful use is to be disregarded.
(d) Improvements after the date of notice are to be disregarded.
(e) No allowance is to be made for unregistered rights or indirect damage or for anything done with the object of
obtaining compensation.
(f) Any enhancement or depreciation before or after notice as a result of the purpose for which the property is
being expropriated or destined to be used is not to be taken into account.
The 'regards': Regard must be had to
(a) the fact that the expropriatee has benefited from works erected by the state;
(b) enhancement of the remainder of the expropriated property, because of the purpose of the expropriation (in
the case of a partial taking);
(c) compensation paid for unregistered rights pertaining to the property in question; and
(d) benefits or disadvantages resulting from the expropriation in terms of the Water Act 54 of 1956 (replaced by
the National Water Act 36 of 1998).
Onus: If there is no dispute about the potentialities of the property, the court as 'super' valuer must determine the
value of the property. There is no onus on the plaintiff to prove the value. When, however, the expropriatee alleges
that there is a special potential for which the notional purchaser would have paid, and that potential is in dispute,
[Page 200] the expropriatee bears the onus of alleging and proving that the purchaser would have taken it into
account in paying for the property.
Bonnet v Department of Agricultural Credit & Land Tenure [1974] 1 All SA 18 (T), 1974 (3) SA 737 (T) pp. 744745
Loubser v SA Spoorweë & Hawens [1976] 4 All SA 320 (T), 1976 (4) SA 589 (T) pp. 608613
An expropriatee claiming actual financial loss must prove a direct causal connection between the expropriation and
the loss.
Expropriation Act 63 of 1975s 12(1)(a)(ii)
Davis v Pietermaritzburg City Council [1989] 2 All SA 379 (A), 1989 (3) SA 765 (A)
Benede Sand Boerdery (Edms) Bpk v Virginia Munisipaliteit [1992] 2 All SA 264 (A), 1992 (4) SA 176 (A)
Kangra Holdings (Pty) Ltd v Minister of Water Affairs [1998] 3 All SA 227 (A), 1998 (4) SA 330 (A)
Solatium : When property or a right is expropriated, a solatium calculated on a sliding scale must be added.

Compensation for a right: Unregistered rights terminate on the date of expropriation, and there is no obligation on
the expropriator to pay compensation for them. The exceptions are certain leases, contracts of sale and rights of
retention.
Expropriation Act 63 of 1975s 22 read with s 9(1)
Interest: Interest in respect of the unpaid portion of the market value of the property must be paid from the date
on which the expropriator takes possession of the property. Interest is not payable on solatium.
Community Development Board v Mahomed NNO [1987] 1 All SA 228 (A), 1987 (2) SA 899 (A) p. 910
Davehill (Pty) Ltd v Community Development Board [1988] 1 All SA 388 (A), 1988 (1) SA 290 (A)
Costs: Under section 15, costs are awarded on a sliding scale.
PRECEDENTS
Claim for compensation payable because of the expropriation of a fixed property
1. Plaintiff is A.
2. Defendant is B.
3. Plaintiff was at all relevant times the registered owner of [give a deeds office description of the expropriated property].
4. By notice of expropriation, defendant expropriated the property. The notice of expropriation was served on plaintiff on
[date].
5. The openmarket value of the property at the date of notice of expropriation was [Rx].
6. Because of the expropriation, plaintiff suffered actual financial loss of [Ry].
7. Defendant is obliged to pay to plaintiff an amount of [Rz] as a solatium in terms of section 12(2) of Act 63 of 1975.
8. Defendant is further obliged, in terms of section 12(3), to pay interest to plaintiff on the appropriate scale as from [insert
the date on which the expropriator took possession of the property or is deemed to have taken possession thereof in
terms of s 8(3) o r 8(5)] on the portion of the market value determined in terms of section 12(1)(a) not yet paid to
plaintiff.
[Page 201]
9. The parties failed to reach agreement on the amount of compensation payable to plaintiff.
10. The amount claimed is fair and equitable compensation for the expropriation.
11. On [date], defendant paid [Rw] to plaintiff in terms of section 12(1)(a)(i).
The plaintiff claims an order in terms of which the compensation payable to plaintiff in terms of section 12 of Act 63 of 1975 be
determined as follows:
(a) the market value of the property, in terms of section 12(1)(a)(i), in an amount of not less than [Rx];
(b) the actual financial loss, in terms of section 12(1)(a)(ii), in the amount of [Ry];
(c) the solatium, in terms of section 12(2), in the amount of [Rz];
(d) interest on [Rx Rw], at the rate provided for in section 12(3), as from [the date mentioned in para. 8] until date of
payment.
Claim for compensation under section 12(1)(b) of Act 63 of 1975 where a right has been expropriated
1. Plaintiff is A.
2. Defendant is B.
3. Plaintiff was at all relevant times [set out the right which has been expropriated e.g. the registered holder of the
mineral rights in respect of the property known as X.].
4. By notice of expropriation, defendant expropriated plaintiff's mineral rights. The notice of expropriation was served on
plaintiff on [date].
5. Because of the expropriation, plaintiff suffered actual financial loss and was inconvenienced to an amount of [Rx].
6. The parties could not agree on the amount of compensation payable to plaintiff in terms of section 12 of Act 63 of 1975.
The plaintiff claims an order in terms of which the compensation payable to plaintiff in terms of section 12(1)(b) of Act 63 of
1975 of the Act be determined in an amount of not less than [Rx].
Claim for the setting aside of an invalid notice of expropriation
1. Plaintiff is A.
2. Defendant is B.
3. Plaintiff was at all relevant times the registered owner of [description of property].
4. By notice dated [date], defendant purported to expropriate plaintiff's aforesaid property [or right].
5. Defendant is empowered to expropriate the property at the request of the [minister]; or
Defendant is empowered in terms of [insert the section and number of the empowering statute or ordinance] to
expropriate property for the purposes provided for in [set out the relevant section of the empowering Act or ordinance].
6. The [minister] did not request defendant to expropriate the property; or
The purported expropriation was not done for any of the aforesaid purposes but for an ulterior motive. [Detail]
7. In the premises, the purported expropriation is void ab initio.
The plaintiff prays that the expropriation of the property [describe] be declared null and void.
Plea expropriation of property
1. Ad paragraphs 1, 2, 3, 4, 8, 9, 10. These allegations are admitted.
2. Ad paragraph 5. Defendant denies that the market value of the property at the date of expropriation was more than
[Rq].
3. Ad paragraph 6. Defendant denies the allegations in this paragraph and puts plaintiff to the proof thereof; or
Defendant denies that plaintiff suffered actual financial loss in an amount more than [Rv].
[Page 202]
4. Ad paragraph 7. Defendant admits the obligation to pay a solatium to plaintiff in terms of section 12(2) but denies that
the amount is [Rz].
The defendant prays:
(a) That the amount of compensation payable to plaintiff in terms of section 12(1)(a)(i) be determined in an amount not
more than [Rq].
(b) The market value as determined in (a) be taken as the basis for the payment of a solatium and of interest.
(c) Plaintiff's claim in terms of section 12(1)(a)(ii) be dismissed; or
The actual financial loss be determined in an amount not greater than [Rv].
(d) That an appropriate order as to costs be made in terms of section 15 of Act 63 of 1975.
Plea expropriation of right
1. Ad paragraphs 1, 2, 3, 4 and 6. Defendant admits these allegations.
2. Ad paragraph 5. Defendant denies that plaintiff suffered actual financial loss and was inconvenienced in an amount more
than [Rw].
The defendant prays that the amount of compensation payable to plaintiff in terms of section 12(1)(b) be determined in an
amount not greater than [Rw] and that an appropriate order as to costs be made in terms of section 15.
Plea validity of expropriation
1. Ad paragraphs 1, 2, 3 and 5. These allegations are admitted.
2. Ad paragraphs 4 and 6. Defendant denies the allegation that it only purported to expropriate the property. Defendant
puts plaintiff to the proof of the allegation that the expropriation was not done at the request of the [minister]; or
Defendant denies that the expropriation was done for a purpose not provided for in [Act]. [Detail]
3. Ad paragraph 7. Defendant denies the allegations.
WHEREFORE defendant prays that plaintiff's claim be dismissed with costs.
Fiduciary relationships
Related subjects: ACCOUNT AND ITS DEBATE; AGENCY
Leading cases:
Fiduciary relationships: Persons who stand in relation to another in a position of confidence involving a duty to
protect the interests of that other person are not allowed to place themselves in such a position that their interests
conflict with their fiduciary duty. The duty extends not only to actual conflicts of interest but also to conflicts that are
in a real sense possible.
Typical fiduciary relationships are those between a principal and agent, a guardian and a ward, a director and a
company, trustees and trust beneficiaries, and a legal practitioner and a client.
Some duties are implied (duties derived ex lege) and arise in the context of the relationship between the parties.
For instance, an agent may not conclude any transaction that would cause the agent's interests to clash with that
of the principal: agents employed to buy may not sell their own property; agents employed to sell may not buy their
own [Page 203] property; agents may not make any profit from their agency other than the agreed remuneration.
Secret commission: An agent who accepts, or agrees to accept, a secret commission forfeits the right to
remuneration and is liable in damages for any loss sustained by the principal and is, furthermore, liable to account
for any profits.
Mallinson v Tanner [1947] 4 All SA 250 (T), 1947 (4) SA 681 (T)
Breach of fiduciary duty: To establish a breach of a fiduciary duty, the plaintiff must
(a) allege facts from which the existence of the duty can be deduced;
(b) make the necessary allegations about the duties imposed by the relationship in other words, allegations
about the scope and ambit of the duties imposed on the defendant;
(c) plead facts concerning the breach of the duty from which accountability arises;
(d) identify the scope of the duty.
Phillips v Fieldstone Africa (Pty) Ltd [2004] 1 All SA 150 (SCA), 2004 (3) SA 465 (SCA)
Defences: A transaction tainted with a breach of fiduciary duties may be validated by the principal, following full
disclosure by the agent. Consent may even precede the conclusion of the transaction.
Hargreaves v Anderson 1915 AD 519
Once a breach of a fiduciary duty is established, it is irrelevant that
(a) the principal suffered no loss or damage;
(b) the principal could not have made use of the information or opportunity or probably would not have done so;
(c) the principal could have used the information or opportunity but refused to do so;
(d) there is no privity between the principal and the third party;
(e) it was not part of the fiduciary's duty to obtain the benefit for the principal; or
(f) that the fiduciary acted honestly and reasonably.
Bellairs v Hodnett 1978 (1) SA 1109 (A) p. 1130F
Phillips v Fieldstone Africa (Pty) Ltd [2004] 1 All SA 150 (SCA), 2004 (3) SA 465 (SCA)
Ganes v Telecom Namibia Ltd [2004] 2 All SA 609 (SCA), 2004 (3) SA 615 (SCA)
Remedies: If the breach is a breach of contract or amounts to a delict, damages may be claimed.
Daewoo Heavy Industries (SA) (Pty) Ltd v Banks [2004] 2 All SA 530 (C), 2004 (4) SA 458 (C)
Da Silva v CH Chemicals (Pty) Ltd [2009] 1 All SA 216 (SCA), 2008 (6) SA 620 (SCA)
See CHOICE OF ACTION
Making of a secret profit gives rise to a claim for an account and disgorgement of profit, which is not the same as
damages.
Bellairs v Hodnett 1978 (1) SA 1109 (A) p. 1130F
paras 2027
Fraud
Related subjects: ACTIO PAULIANA; ESTOPPEL; INJURIOUS FALSEHOOD; JUDGMENT: SETTING ASIDE;
MISREPRESENTATION: INNOCENT MISREPRESENTATION; MISREPRESENTATION: NEGLIGENT MISREPRESENTATION
[Page 204]
General: 'Fraud unravels all directly within its compass, but only between victim and perpetrator, at the instance of
the victim. Whether fraud unravels a contract depends on the victim, not the fraudster or third parties.'
Absa Bank Ltd v Moore and another 2017 (1) SA 255 (CC) para. 39
Absa Bank Ltd v Moore 2016 (3) SA 97 (SCA)
Bannister's Printer (Pty) Limited v D and A Calenders CC and another [2018] ZASCA 17
Onus: A party wishing to rely on fraud must not only plead it but also prove it clearly and distinctly.
CourtneyClarke v Bassingthwaighte [1991] 3 All SA 625 (Nm), 1991 (1) SA 684 (Nm) p. 689
The onus is the ordinary civil onus, bearing in mind that fraud is not easily inferred.
Gilbey Distillers & Vintners (Pty) Ltd v Morris NO 1990 (2) SA 217 (SE)
Essentials: The essential allegations for a claim or defence based on fraud are the following:
Geary & Son (Pty) Ltd v Gove [1964] 2 All SA 50 (A), 1964 (1) SA 434 (A)
Dantex Investment Holdings (Pty) Ltd v Brenner NNO [1989] 1 All SA 411 (A), 1989 (1) SA 390 (A)
Quartermark Investments (Pty) Ltd v Mkhwanazi and another [2014] 1 All SA 22 (SCA), 2014 (3) SA 96 (SCA)
(a) A representation by the representor to the representee. The representation usually concerns a fact but may
relate to the expression of an opinion said to be held but which is in fact not held.
Feinstein v Niggli [1981] 2 All SA 92 (A), 1981 (2) SA 684 (A)
Aldeia v Coutinho 1997 (4) SA 295 (O)
Nondisclosure can amount to a representation.
Stainer v PalmerPilgrim [1982] 4 All SA 590 (O), 1982 (4) SA 205 (O)
(b) Fraud (i.e. that the representor knew the representation to be false).
Ruto Flour Mills (Pty) Ltd v Moriates [1957] 3 All SA 28 (T), 1957 (3) SA 113 (T)
It is not sufficient to allege that the representation was 'false', because this word implies no more than that
the representation was untrue. The mental element must be alleged.
Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A)
The representor must intend that the representee will act on the representation.
(c) Causation (i.e. the representation must have induced the representee to act in response to it).
Hulett v Hulett [1992] 2 All SA 308 (A), 1992 (4) SA 291 (A) pp. 310311
Thompson v SA Broadcasting Corporation [2001] 1 All SA 329 (A), 2001 (3) SA 746 (SCA)
Seven Eleven Corp of SA (Pty) Ltd v Cancun Trading No 150 CC [2005] 2 All SA 256 (SCA), 2005 (5) SA 186 (SCA)
(d) If damages are claimed, it must be alleged that the representee suffered damages because of the fraud.
Truth & Reconciliation Commission v Mpumlwana [2001] 3 All SA 58 (Ck)
(e) If reliance is placed on fraudulent nondisclosure, facts giving rise to the duty to disclose must be set out. It is
also necessary to show that the breach of the duty to disclose was deliberate and intended to deceive.
Hoffman v Moni's Wineries Ltd [1948] 2 All SA 229 (C), 1948 (2) SA 163 (C) p. 168
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A) p. 924
[Page 205]
Ozinsky NO v Lloyd [1995] 2 All SA 373 (A), 1995 (2) SA 915 (A)
Movie Camera Co (Pty) Ltd v Van Wyk [2003] 2 All SA 291 (C)
Fraud by an agent: Both agent and principal are liable for damages caused by the agent's fraud. The agent's
liability is not joint and several with that of the principal. It may be necessary to excuss the principal before
proceeding against the agent.
Johnson v Jainodien [1982] 4 All SA 598 (C), 1982 (4) SA 599 (C)
An innocent principal may be liable for the fraud committed by the principal's agent because liability does not
depend on the principal's own fraudulent conduct or knowledge.
Randbank Bpk v Santam Versekeringsmaatskappy Bpk [1965] 4 All SA 337 (A), 1965 (4) SA 363 (A)
Certain Underwriters of Lloyds of London v Harrison 2004 (2) SA 446 (SCA) (also reported as Lloyds of London,
Certain Underwriters of v Harrison [2003] ZASCA 83)
Even though fraud committed solely for an agent's own interests and purposes may fall outside the ambit of
conduct that renders the principal liable, liability may nevertheless follow if, objectively seen, there was a sufficiently
close link between the selfdirected conduct and the principal's business.
Minister of Finance and others v Gore NO [2007] 1 All SA 309 (SCA), 2007 (1) SA 111 (SCA)
A representation by a party unrelated to the party to the litigation is irrelevant.
Fraud in contract: If fraud led to the conclusion of a contract, cancellation of the contract and damages may be
claimed.
Northwest Provincial Government v Tswaing Consulting CC [2007] 2 All SA 365 (SCA), 2007 (4) SA 452 (SCA)
If cancellation of the contract is claimed, restitution must be tendered.
However, the representee may elect to keep the contract alive and claim damages.
The representee's claim may be either on contract or in delict. The measure of damages differs.
Prima Toy Holdings (Pty) Ltd v Rosenberg [1974] 2 All SA 265 (C), 1974 (2) SA 477 (C)
Hunt v Van der Westhuizen [1990] 4 All SA 533 (C), 1990 (3) SA 357 (C)
See CONTRACT: DAMAGES; DAMAGES: DELICTUAL DAMAGES
As to the measure of damages, see
De Jager v Grunder [1964] 2 All SA 17 (A), 1964 (1) SA 446 (A)
Ranger v Wykerd [1977] 3 All SA 245 (A), 1977 (2) SA 976 (A)
Colt Motors (Edms) Bpk v Kenny [1987] 3 All SA 229 (T), 1987 (4) SA 378 (T)
It is not possible to contract out of liability for fraudulent misrepresentation.
Wells v SA Alumenite Co 1927 AD 69
Exceptio doli generalis: See CONTRACT: CONCLUSION AND TERMS.
Fraud and passing of ownership: Although the underlying transaction is voidable because of a fraudulent
misrepresentation, ownership will nevertheless pass through delivery or transfer. The property in the hands of an
innocent third party cannot then be vindicated.
Du Plessis v Prophitius and another [2009] 4 All SA 302 (SCA), 2010 (1) SA 49 (SCA)
Cf. OWNERSHIP; VINDICATION
Setting aside judgment on the ground of fraud: See JUDGMENT: SETTING ASIDE.
[Page 206]
PRECEDENTS
Claim for cancellation
1. On [date] at [place], defendant represented to plaintiff that a motor vehicle [registration number] was a 2012 model
[describe] motor car.
2. When making this representation, defendant knew it to be false and knew that the motor car was a 2010 model.
3. When defendant made the representation, he intended plaintiff to act thereon and to pay to him a purchase price of
[amount] which was substantially more than the value of the vehicle.
4. Plaintiff was induced by the representation to purchase the vehicle at the price of [amount], whereas, had he known the
true facts, he would not have purchased the vehicle at all.
5. Because of defendant's misrepresentation, plaintiff cancelled the agreement between the parties; alternatively, cancels it
herewith.
6. Plaintiff tenders return of the vehicle to defendant against payment by defendant of [amount].
Claim for damages
1. On [date] at [place], defendant, during negotiations between the parties, represented to plaintiff that [detail].
2. The representation was material and was made with the object of inducing plaintiff to enter into a contract with defendant
in respect of the sale of defendant's farm.
3. Following upon these negotiations, the parties entered into a written contract of sale on [date]. A copy of the agreement
is attached and marked 'A'.
4. At the time of the negotiations and at the time of contracting, the representation was, to the knowledge of defendant,
false in that the true facts were [detail].
5. In the alternative, plaintiff avers:
(a) After the negotiations and before the conclusion of the contract, defendant became aware of the falsity of the
representations;
alternatively, after the negotiations but before the conclusion of the contract, the circumstances changed to the
knowledge of defendant so that, at the time of contracting, the true facts were as set out above.
(b) Defendant was aware that plaintiff did not know of the falsity of the representations and did not know of the
changed circumstances.
(c) In the premises, defendant had a duty to inform plaintiff that the representations previously made by him were
false or that the circumstances had changed.
(d) Despite this duty, defendant intentionally failed so to inform plaintiff.
6. Because of defendant's misrepresentation, plaintiff suffered damages as follows: [detail].
Iniuria
Related subjects: ARREST AND DETENTION; ASSAULT; DEFAMATION; MALICIOUS AND WRONGFUL LEGAL
PROCEEDINGS
Bill of rights: The Bill of Rights protects fundamental rights such those to human dignity (s 10), freedom and
security (s 12), and privacy (s 14). These rights are also protected by the actio iniuriarum. A claim based on a
violation of any of them must not be based on the constitutional right but on the commonlaw right.
It is not possible to draw a sharp distinction between the causes of action for impairment of reputation and the
sense of selfworth under the Bill of Rights.
Khumalo v Holomisa 2002 (8) BCLR 771 (CC), 2002 (5) SA 401 (CC) para. 27
[Page 207]
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 and Protection from Harassment
Act 17 of 2011: Some of the provisions of these Acts overlap with the commonlaw remedy. The Acts also provide
additional remedies.
Cause of action: The actio iniuriarum grants relief for an impairment of the person, dignity or reputation of the
plaintiff.
Delange v Costa [1989] 2 All SA 267 (A), 1989 (2) SA 857 (A)
Dendy v University of the Witwatersrand [2007] 3 All SA 1 (SCA), 2007 (5) SA 382 (SCA)
A plaintiff must allege and prove impairment of the relevant aspect of personality relied on.
Bennett v Minister of Police [1980] 3 All SA 817 (C), 1980 (3) SA 24 (C) p. 37
Impairment of the reputation is defamation and is dealt with elsewhere.
See DEFAMATION
The action is not divisible which means that the same wrongful act cannot give rise to different claims. It is not
possible, for instance, to claim separately for general damages for iniuria and for defamation.
The cause of action terminates on the death of the injured party prior to litis contestatio. But see the development
of the common law to the opposite effect.
Nkala and others v Harmony Gold Mining Company Limited and others [2016] 3 All SA 233 (GJ), 2016 (7) BCLR
881 (GJ), 2016 (5) SA 240 (GJ)
Examples of the impairment of dignity: This section is mainly concerned with the infringement of dignity, for
example
(a) a bigamous marriage or an engagement by a married person;
Arendse v Roode [1989] 2 All SA 106 (C), 1989 (1) SA 763 (C)
(b) a degrading, humiliating or ignominious insult not amounting to defamation;
Brenner v Botha [1956] 3 All SA 407 (T), 1956 (3) SA 257 (T)
Tarloff v Olivier [2004] 1 All SA 563 (C)
(c) unauthorised use of a person's photograph in a humiliating manner;
La Grange v Schoeman [1980] 3 All SA 495 (E), 1980 (1) SA 885 (E)
(d) unauthorised disclosure of a person's medical state;
Jansen van Vuuren v Kruger [1993] 2 All SA 619 (A), 1993 (4) SA 842 (A)
NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 (5) SA 250 (CC)
(e) disclosure of the identity of an informer;
Swanepoel v Minister van Veiligheid en Sekuriteit [1999] 3 All SA 285 (T), 1999 (1) SA 549 (T)
(f) appropriation of someone's name or identity especially for commercial purposes.
Grütter v Lombard [2007] 3 All SA 311 (SCA), 2007 (4) SA 89 (SCA)
Invasion of privacy: An invasion of privacy may take place by way of either an unlawful intrusion upon the personal
privacy of another or the unlawful publication of private facts about a person.
Financial Mail (Pty) Ltd v Sage Holdings Ltd [1993] 2 All SA 109 (A), 1993 (2) SA 451 (A) p. 462
National Media Ltd v Jooste [1996] 2 All SA 510 (A), 1996 (3) SA 262 (A)
Transnet Ltd v SA Metal Machinery Co (Pty) Ltd [2006] 1 All SA 352 (SCA), 2006 (6) SA 285 (SCA)
Adultery and breach of promise: Adultery and breach of promise no longer give rise to claims for damages.
DE v RH 2015 (5) SA 83 (CC), 2015 (9) BCLR 1003 (CC)
Van Jaarsveld v Bridges [2010] 4 All SA 389 (SCA), 2010 (4) SA 558 (SCA)
[Page 208]
Bodily integrity: Another right protected is the right to bodily integrity, which includes the right to mental well
being.
Minister of Justice v Hofmeyr [1993] 2 All SA 232 (A), 1993 (3) SA 131 (A) pp. 145146
See ASSAULT
Parties: Although iniuria is generally the infringement of the right of personality of a natural person, a juristic
person is also entitled to protection of its privacy and good name.
Financial Mail (Pty) Ltd v Sage Holdings Ltd [1993] 2 All SA 109 (A), 1993 (2) SA 451 (A) pp. 460461
An employer may be liable for an iniuria committed by an employee if the requirements for vicarious liability are
present.
Minister of Police v Mbilini [1983] 2 All SA 282 (A), 1983 (3) SA 705 (A)
A cessionary has no right of action because the right cannot be ceded.
Government of RSA v Ngubane [1972] 2 All SA 489 (A), 1972 (2) SA 601 (A)
Wrongfulness: The plaintiff must allege facts which, objectively speaking, are sufficient to lead to a reasonable
inference of wrongfulness. It does not suffice to allege merely that the act was wrongful.
Cf. Allie v Foodworld Stores Distribution Centre (Pty) Ltd [2004] 1 All SA 369 (SCA), 2004 (2) SA 433 (SCA)
Therefore, if the words or acts complained of do not in their ordinary connotation have an injurious connotation, the
plaintiff is obliged to allege and prove special circumstances that make them wrongful.
Ciliza v Minister of Police [1976] 4 All SA 64 (N), 1976 (4) SA 243 (N) p. 248
When an act amounts prima facie to an infringement of a right of personality, the defendant must justify the
infringement. This means that the defendant must allege and prove facts that give rise to the justification.
Minister of Justice v Hofmeyr [1993] 2 All SA 232 (A), 1993 (3) SA 131 (A) p. 153
Animus iniuriandi : A plaintiff seeking damages based on the actio iniuriarum is in the normal course of events

required to allege and prove animus iniuriandi (the intention to injure the plaintiff). The averment of animus iniuriandi
may be implied from other allegations and need not be made expressly.
Thus, an allegation of an assault implies an allegation of a wrongful act with the necessary animus iniuriandi.
Bennett v Minister of Police [1980] 3 All SA 817 (C), 1980 (3) SA 24 (C)
The facts pleaded must be sufficient to lead to a reasonable inference of animus iniuriandi. The test is an objective
one.
Dolus eventualis is sufficient. It is not customary to allege the type of dolus relied on.
Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W)
Even though, in principle, the plaintiff bears the onus of proving animus iniuriandi, a defendant cannot place this
allegation in dispute by means of a mere denial unless the act complained of is also denied. The defendant must go
further and allege the factual basis for the absence of animus iniuriandi.
Jansen van Vuuren v Kruger [1993] 2 All SA 619 (A), 1993 (4) SA 842 (A) p. 856
[Page 209]
The absence of wederregtelikheidsbewussyn is not a defence.
Malice: Malice is not an element of the wrong. Malice concerns motive and the motive of the defendant is irrelevant.
All that is required is the legal intent to injure, even in the case of malicious prosecution.
Moaki v Reckitt & Colman (Africa) Ltd [1968] 3 All SA 242 (A), 1968 (3) SA 98 (A) p. 104
Breach of contract: A breach of contract is not an iniuria as such. However, it may be if it is accompanied by
contumelia.
National Media Ltd v Jooste [1996] 2 All SA 510 (A), 1996 (3) SA 262 (A)
Van Jaarsveld v Bridges [2010] 4 All SA 389 (SCA), 2010 (4) SA 558 (SCA)
It follows that a plaintiff must allege and prove additional facts that establish an iniuria.
Ndamse v University College of Fort Hare [1966] 4 All SA 292 (E), 1966 (4) SA 137 (E)
Edouard v Administrator, Natal [1990] 2 All SA 374 (D), 1989 (2) SA 368 (D) p. 391
Remedies: The main purpose of the actio iniuriarum is to recover sentimental damages. It is not necessary to
quantify them for the purposes of pleading. On quantification, see
Tarloff v Olivier [2004] 1 All SA 563 (C)
Patrimonial loss caused by an iniuria may be claimed even in the absence of animus iniuriandi. The cause of action is
then the actio legis Aquiliae.
Moaki v Reckitt & Colman (Africa) Ltd [1968] 2 All SA 141 (W), 1968 (1) SA 702 (W) p. 704
Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N) p. 487, 1998 (2) SA 319 (N)
An aggrieved party is also entitled to an interdict.
Heroldt v Wills 2013 (2) SA 530 (GSJ)
PRECEDENTS
Claim based on verbal abuse
1. On [date] at [place], defendant wrongfully and with the intent to injure the plaintiff, said the following words to and about
plaintiff, namely: 'You are a lazy and useless cow'.
2. Plaintiff was humiliated and degraded by these words and suffered damages as a result thereof in the sum of [amount] in
respect of [detail].
Injurious falsehood
Related subjects: DELICT: LEX AQUILIA; FRAUD; MISREPRESENTATION: NEGLIGENT MISREPRESENTATION;
UNLAWFUL (UNFAIR) COMPETITION
Cause of action: An intentionally false statement concerning the plaintiff which causes patrimonial loss grounds an
action for damages in delict.
Schultz v Butt [1986] 2 All SA 403 (A), 1986 (3) SA 667 (A) p. 678
Misrepresentation compared: The difference between this cause of action and one based on fraud is this: in the
case of fraud, a misrepresentation is made to the representee; in the case of an injurious falsehood the
misrepresentation made is of or about the plaintiff's business and amounts to unlawful competition.
[Page 210]
Defamation compared: The false statement does not have to be defamatory, but it must have been published to
others and concern the plaintiff.
The general rules of pleading defamation claims apply for example, the plaintiff must set out the words alleged to
have been used by the defendant and is not entitled to rely only on their effect.
International Tobacco Co of SA Ltd v Wollheim [1953] 3 All SA 20 (A), 1953 (2) SA 603 (A) p. 613
Allie v Foodworld Stores Distribution Centre (Pty) Ltd [2004] 1 All SA 369 (SCA), 2004 (2) SA 433 (SCA)
Essential allegations: The plaintiff must allege and prove that
(a) the defendant by word or conduct (or both) made a false representation to others concerning the plaintiff;
(b) the defendant knew that the representation was false;
(c) the plaintiff suffered damages because of the representation through, for example, a loss of business;
(d) the false representation was the cause of the loss; and
(e) the defendant intended to cause the plaintiff loss by the false representation.
Helios Ltd v Letraset Graphic Art Products (Pty) Ltd [1973] 1 All SA 68 (T), 1973 (4) SA 81 (T) p. 89
Abakor v Crafcor Farming t/a Riversdale Feedlot 2000 (1) SA 973 (N)
If the claim is for an interdict only, fault is not required.
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) [1988] 4 All SA 68 (W), 1988 (2) SA 350 (W)
Aetiology Today CC v Van Aswegen [1992] 3 All SA 400 (W), 1992 (1) SA 807 (W)
Falsity: An allegation of 'falsity' does not carry with it the implication that the defendant knew of the falsity.
Knowledge of falsity is required.
Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A)
A statement that the plaintiff's goods are inferior to those of the defendant's is not necessarily actionable even if it
is false. It may amount to puffery.
Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd [1970] 1 All SA 348 (T), 1970 (1) SA 454 (T)
Animus iniuriandi : The suggestion that animus iniuriandi must be established must be seen in the light of

requirements (a) and (b) under 'Essential allegations'.
GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1
PRECEDENTS
Claim injurious falsehoods
1. Plaintiff was the manufacturer of cigarettes extensively marketed in South Africa bearing the trade mark [MAX].
2. During the period 19511952, defendant, through its employees and agents, stated to diverse persons, including [name]
on [date] at [place], that [MAX] cigarettes cause cancer, whereas cigarettes manufactured by defendant do not.
3. Defendant thereby caused a rumour to spread amongst traders and the public generally that [MAX] cigarettes are more
deleterious than other cigarettes.
4. The statement was false to the knowledge of defendant.
5. By making the statement, defendant intended to spread a rumour and thereby to injure plaintiff in its trade and to benefit
that of the defendant.
6. Because of the statement and subsequent rumour, the public has desisted from purchasing [MAX] cigarettes and plaintiff
was consequently obliged to cease its marketing.
[Page 211]
7. Plaintiff suffered damages due to defendant's wrongful acts in the sum of [amount] calculated as follows:
[detail].
[Based on International Tobacco Co of SA Ltd v Wollheim [1953] 3 All SA 20 (A), 1953 (2) SA 603 (A).]
Claim injurious falsehoods
1. Plaintiff is a distributor of sparkling wines such as 5th Avenue Cold Duck.
2. Since [date], defendant has been selling a product known as Monte Carlo Baby Duck as a sparkling wine.
3. The product is a perlé wine and the representation that it is a sparkling wine is false.
4. By selling the product as a sparkling wine, defendant appropriated part of the sparkling wine market and diverted custom
from the plaintiff.
5. The misrepresentation by defendant diverts custom from plaintiff and plaintiff suffers damages as a result.
The plaintiff claims an order interdicting defendant from representing in the course of trade that Monte Carlo Baby Duck is a
sparkling wine.
[Based on Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C).]
Insolvency
Related subject: ACTIO PAULIANA
Parties: See CITATION OF PARTIES.
An insolvent may sue or be sued without reference to the trustee of the estate in any matter relating to status or
any right that does not affect the estate.
Insolvency Act 24 of 1936s 23
Marais v Engler Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais 1998 (2) SA 450 (E) pp. 453454
Van Niekerk v Bayer SA (Edms) Bpk [1998] 4 All SA 212 (NC)
Dispositions: Disposition may be set aside under section 26, 29, 30 or 31 of the Insolvency Act, and compensation
or a penalty may be recovered under section 31.
These provisions apply to companies under liquidation.
It is the duty of a trustee to take steps to set aside any disposition under section 26, 29, 30 or 31 of the Insolvency
Act, or to recover compensation or a penalty under section 31. If the trustee fails or is not authorised by the
creditors to proceed, proceedings may be taken by any creditor in the name of the trustee against an
indemnification given to the trustee for all costs of the proceedings.
Insolvency Act 24 of 1936s 32(1)
SA Board of Executors & Trust Co Ltd (in liq) v Gluckman [1967] 2 All SA 1 (A), 1967 (1) SA 534 (A)
Disposition defined: The Act defines 'disposition' as any transfer or abandonment of rights to property. The
definition includes a sale, lease, mortgage, pledge, delivery, payment, release, compromise, donation or any
contract therefor, but excludes a disposition in compliance with an order of court.
Langeberg Koöperasie Bpk v Inverdoorn Farming & Trading Co Ltd [1965] 2 All SA 463 (A), 1965 (2) SA 597 (A)
Dabelstein v Lane and Fey NNO [2001] 1 All SA 532 (SCA), 2001 (1) SA 1222 (SCA)
Janse van Rensburg NO and others v Steyn 2012 (3) SA 72 (SCA)
[Page 212]
Section 26 Disposition without value: A disposition of property not made for value may be set aside. The plaintiff
must allege and prove
(a) a disposition by the insolvent of property;
(b) that the disposition was not made for value;
Commissioner for Inland Revenue v Bowman NO [1990] ZASCA 28, 1990 (3) SA 311 (A)
(c) if the disposition was made more than two years before the sequestration of the estate, that immediately
after the disposition was made the liabilities of the insolvent exceeded her or his assets. If, on the other
hand, the disposition took place within two years of the sequestration, the trustee has no onus relating to
the effect of the disposition. It is for the plaintiff to prove the date of the disposition.
The only statutory defence available to the defendant, provided the disposition took place within two years of the
sequestration, is that immediately after the disposition was made the assets of the insolvent still exceeded the
liabilities.
Section 29 Voidable preferences: The court may set aside a disposition as a voidable preference.
Gore NO v Shell SA (Pty) Ltd [2003] 4 All SA 370 (C), 2004 (2) SA 521 (C)
The plaintiff must allege and prove
(a) a disposition by the insolvent;
(b) of her or his property;
Meyer NO v Transvaalse Lewendehawe Koöperasie Bpk [1982] 2 All SA 455 (A), 1982 (4) SA 746 (A)
(c) that the disposition took place not more than six months before the sequestration or, if the insolvent is
deceased, six months before her or his death;
(d) that the disposition had the effect of preferring one of the creditors over another;
Standard Finance Corp of SA Ltd (in liq) v Greenstein 1964 (3) SA 573 (A)
Ensor NO v Nedbank Ltd [1978] 3 All SA 303 (D), 1978 (3) SA 110 (D)
(e) that immediately after the disposition the liabilities of the debtor exceeded the value of her or his assets.
The only statutory defence available to a defendant is to allege and prove that
(i) the disposition was made in the ordinary course of business; and
Hendriks NO v Swanepoel [1962] 4 All SA 286 (A), 1962 (4) SA 338 (A)
Ensor NO v Rensco Motors (Pty) Ltd [1981] 1 All SA 301 (A), 1981 (1) SA 815 (A)
Gazit Properties (Pty) Ltd v Botha NO and others 2012 (2) SA 306 (SCA)
(ii) the disposition was not intended to prefer one creditor over another.
Pretorius NO v Stock Owners' Cooperative Co Ltd 1959 (4) SA 462 (A)
Gert de Jager (Edms) Bpk v Jones NO & McHardy NO [1964] 1 All SA 36 (A), 1964 (3) SA 325 (A) p. 331
Fourie NO v Edeling NO [2005] 4 All SA 393 (SCA)
Section 30 Undue preferences: The court may set aside a disposition as an undue preference. The essentials are
(a) a disposition by the insolvent;
(b) of her or his property;
(c) at a time when her or his liabilities exceeded her or his assets;
(d) with the intention of preferring any creditor over another.
Cooper NO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA)
Fourie NO v Edeling NO [2005] 4 All SA 393 (SCA)
[Page 213]
Section 31 Collusive disposition: The court may set aside a collusive transaction and disposition if
(a) the insolvent had entered into a collusive transaction with another;
Gert de Jager (Edms) Bpk v Jones NO & McHardy NO [1964] 1 All SA 36 (A), 1964 (3) SA 325 (A)
(b) whereby the insolvent disposed;
(c) property belonging to the insolvent;
(d) in a manner that had the effect of either prejudicing creditors or preferring one of them over another.
The following relief is available:
(i) payment of any loss caused to the estate by the disposition;
(ii) a penalty, which may be equal to the benefit the defendant could have derived from the disposition; or
(iii) forfeiture of the defendant's claim against the insolvent estate.
Section 34 Voidable sale of business: The relevant precedent below deals with the elements.
McCarthy Ltd v Gore NO [2007] 4 All SA 1212 (SCA), 2007 (6) SA 366 (SCA)
Discretion: While sections 26, 29, 30 and 31 are formulated in a way that creates the impression that a court has a
discretion, the court is dutybound to grant the relief if the relevant section applies to the facts of the case.
Gunn NNO v Barclays Bank, DCO 1962 (3) SA 678 (A)
Res iudicata: The fact that proceedings were taken without success under one of these provisions does not give
rise to a defence of res iudicata against proceedings under another section with other elements.
Janse van Rensburg NO and others v Steenkamp and another; Janse van Rensburg NO and others v Myburgh and
See RES IUDICATA
Lapsing of proceedings: Civil proceedings instituted against a debtor before the sequestration of the debtor's
estate lapse after three weeks from the date of the first meeting of the creditors unless the claimant gives notice of
intention to continue with the proceedings.
Proceedings do not lapse because of the vacation, removal, resignation or death of a trustee.
Prescription: Prescription of a claim by a curator or liquidator under the mentioned provisions begins to run no later
than the date of the curator's or liquidator's appointment.
Duet and Magnum Financial Services CC (in liquidation) v Koster [2010] 4 All SA 154 (SCA), 2010 (4) SA 499
(SCA)
PRECEDENTS
Claim setting aside disposition without value made within two years
1. On [date], the estate of [X] (the insolvent) was provisionally sequestrated by the high court of [province]. The order was
made final on [date].
2. On [date] [being not longer than two years before the date of sequestration], the insolvent paid to the defendant
[amount] by way of donation.
3. The payment constituted a disposition as intended in section 26 of Act 24 of 1936.
[Page 214]
4. This disposition was not made for value.
5. In the premises, the disposition is liable to be set aside in terms of section 26 of Act 24 of 1936.
6. The plaintiff claims an order that the disposition in terms of which the insolvent paid [amount] to defendant be set aside
and that defendant be ordered to pay to plaintiff the sum of [amount].
Claim setting aside disposition without value made after more than two years
1. On [date] and in the high court of [province], the estate of [X] was finally sequestrated.
2. On [date] [being more than two years before the date of the sequestration], the insolvent paid to the defendant [amount]
by way of donation.
3. The payment constituted a disposition in terms of section 26 of Act 24 of 1936.
4. This disposition was not made for value.
5. Immediately after the disposition, the liabilities of the insolvent exceeded his assets: [detail].
6. In the premises, the disposition is liable to be set aside in terms of section 26 of Act 24 of 1936.
Claim setting aside voidable preference
1. [As above.]
2. On [date] [being fewer than six months prior to the date of such sequestration], the insolvent paid to defendant the sum
of [amount] in reduction of a claim by defendant for money lent and advanced.
3. Immediately after the payment, the liabilities of the insolvent exceeded the value of the insolvent's assets [detail] and
the payment had the effect of preferring defendant above the other creditors of the insolvent.
4. In the premises, the payment to defendant is liable to be set aside in terms of section 29 of Act 24 of 1936.
Claim relating to undue preference
1. [As above.]
2. On [date], the liabilities of the insolvent exceeded his assets [detail].
3. On the aforesaid date, the insolvent paid to the defendant the sum of [amount] in respect of the insolvent's indebtedness
to defendant for moneys lent and advanced to him by defendant.
4. The payment was made by the insolvent with the intention of preferring defendant above other creditors, and the
payment had the effect of so preferring defendant.
5. In the premises, the payment to defendant is liable to be set aside in terms of section 30 of Act 24 of 1936.
Claim relating to collusive transaction
1. [As above.]
2. On [date], the insolvent and defendant entered a written agreement of sale in terms of which defendant purported to
purchase from the insolvent the latter's retail grocer's business situate at [address], together with the stock in trade and
fixtures and fittings, for [amount]. A copy of the agreement is attached.
3. In terms of the agreement, the purchase price was to be paid as follows:
(a) The sum of [amount] was to be set off against the alleged indebtedness of the insolvent to defendant arising out of
money lent and advanced;
(b) The sum of [amount] was to be paid on the signing of the agreement;
(c) The balance of [amount] was to be paid in equal monthly instalments of [amount] free of interest.
[Page 215]
4. As both the insolvent and defendant were aware, the insolvent was not indebted to defendant and the agreement was a
collusive agreement entered with the intention of defrauding and prejudicing the insolvent's creditors.
5. The business, stock, fixtures and fittings were, pursuant to the simulated agreement, delivered to defendant on [date],
and he paid the insolvent [amount] and two of the monthly instalments.
6. The disposition of the insolvent's business, stock, fixtures and fittings, had the effect of prejudicing the insolvent's
creditors.
7. If the disposition is not set aside, defendant will benefit in [amount] calculated as follows:
[detail].
(a) An order setting aside the aforesaid disposition in terms of section 31 of Act 24 of 1936.
(b) Ejectment from the business and the delivery to the plaintiff of the stock in trade, fixtures and fittings.
(c) An order declaring defendant to forfeit any claim against the insolvent estate.
(d) Payment of the sum of [amount] by way of penalty.
Claim relating to voidable sale of business
1. [As above.]
2. On [date], the insolvent sold his retail butcher's shop carried on by him at [address], including the fixtures and fittings, to
defendant for [amount] under a written agreement, Annexure 'A', and transferred it to defendant on [date].
3. The insolvent did not publish any notice of the transfer of the business in the Government Gazette or in a newspaper as
provided for in section 34(1) of Act 24 of 1936.
4. The transfer, having taken place within six months of the sequestration of the insolvent, is voidable by the plaintiff in his
capacity as trustee of the insolvent estate.
5. Plaintiff has elected to void the transfer.
6. Defendant refuses to vacate the business or to deliver to plaintiff the fixtures and fittings therein.
(a) An order declaring the transfer of the business and fixtures and fittings by the insolvent to the defendant to be void.
(b) An order directing the defendant to vacate the business and to hand the fixtures and fittings to the plaintiff.
Insurance
Prepared essentially by Mr Justice PM Nienaber and Prof. M Reinecke
Legislation: The Insurance Act 18 of 2017 replaced the prudential parts of the LongTerm Insurance Act 52 of 1998
and the ShortTerm Insurance Act 53 of 1998. The nonprudential parts of these Acts remain in force.
The insurer: Only a person registered as an insurer may conduct a longterm or shortterm insurance business as
defined in the respective Acts. (These Acts do not define or work with the concept of insurance contract. The
operative concept is that of insurance business which includes some contracts that are not proper insurance
contracts e.g. sinking fund policies and guarantee policies.)
An insurance contract concluded by a person not duly registered as an insurer is not void, however, but may, at the
option of the other party be enforced against that person.
[Page 216]
A claim against an insurer should accordingly allege whether the insurer is or, most exceptionally, is not duly
registered in terms of the relevant Act.
Insurable interest: It is sometimes said that unless the insured has an insurable interest in what is insured the
contract is unenforceable because it is a wagering contract and that the absence of an insurable interest is
therefore a good defence against a claim by an insured.
Phillips v General Accident Insurance Co (SA) Ltd [1983] 3 All SA 101 (W), 1983 (4) SA 652 (W)
Steyn v AA Onderlinge Assuransie Assosiasie Bpk 1985 (4) SA 7 (T)
But it has also been suggested that the distinction between a contract of insurance and a contract of wager does
not hinge on the presence of an insurable interest but rather on the need to prove a loss, patrimonial or non
patrimonial. The better approach, therefore, is to emphasise the distinction between indemnity and nonindemnity
insurance.
Insurable interest in indemnity insurance: In the case of indemnity insurance there is a correlation between the
pecuniary interest which is sought to be insured, such as an interest in property, and patrimonial loss suffered by
the insured because of the insured event (e.g. theft or fire).
Gutman NO v Standard General Insurance Co Ltd [1981] 4 All SA 496 (C), 1981 (4) SA 114 (C)
'An insurable interest must be shown to have existed at the time of the loss, for, if there is no interest then, no loss
will have been suffered by the insured and he will not be entitled to be indemnified.'
Pienaar v Guardian National Insurance Co Ltd [2002] 3 All SA 27 (C), 2002 (3) SA 640 (C)
There is no reason why an insured should allege and separately prove an insurable interest. If the insurance cover
is for damages suffered, the insured will merely have to allege and prove the loss suffered. This the insured can do
either by relying directly on the general principles of the law of damages or by proving an infringement of the
insurable interest in the event insured against. The extent of the insurable interest will be the extent of the loss
subject to the sum insured under the contract.
Refrigerated Trucking (Pty) Ltd v Zive NO (Aegis Insurance Co Ltd, third party) 1996 (2) SA 361 (T)
Manderson t/a Hillcrest Electrical v Standard General Insurance Co Ltd 1996 (3) SA 434 (D)
Lynco Plant Hire & Sales BK v Univem Versekeringsmakelaars BK 2002 (5) SA 85 (T)
Lorcom Thirteen (Pty) Ltd v Zurich Insurance Company South Africa Ltd 2013 (5) SA 42 (WCC)
Insurable interest in nonindemnity insurance: In the case of nonindemnity insurance, the insurable interest is of
an abstract or nonpecuniary nature which should exist at the time of occurrence of the insured event. An example
is the interest of an insured in the insured's own life or in the life of a spouse, parent or child.
An insurable interest can be pecuniary and/or nonpecuniary as is the case with an employer's interest in an
employee's performance, and vice versa, or that of a partner or business associate in the life of the other partner or
business associate.
An insured who claims on a nonindemnity contract of insurance should allege that, by virtue of the interest of the
insured in the life insured, the insured suffered prejudice. Such an allegation would introduce the element of
insurable interest without circumscribing it.
[Page 217]
Interpretation: The raft of rules and presumptions governing the interpretation of contracts also applies to the
interpretation of insurance contracts.
Lehmbecker's Earthmoving & Excavators (Pty) Ltd v IGI Ltd [1984] 2 All SA 352 (A), 1984 (3) SA 513 (A)
Van Zyl NO v Kiln NonMarine Syndicate No 510 of Lloyds of London [2002] 4 All SA 355 (SCA), 2003 (2) SA 440
(SCA)
As a last resort, when all the other rules of interpretation have failed, the contra proferentem rule may be invoked to
resolve an ambiguity against the party who formulated the contentious term. Moreover, the courts have formulated
a separate rule that ambiguity in a policy should be construed in favour of the insured.
Price v IGI Ltd [1983] 3 All SA 279 (A), 1983 (1) SA 311 (A)
Forfeiture clauses are restrictively interpreted.
Pereira v Marine & Trade Insurance Co Ltd [1975] 4 All SA 635 (A), 1975 (4) SA 745 (A)
Subrogation: An insurer who has indemnified an insured in full has the right to step into the insured's shoes
without cession and to bring an action against a third party (the wrongdoer) in the name of the insured without the
insured's knowledge or consent. The insurer may instead choose to sue in its own name. The insured may also
claim from the wrongdoer for the benefit of the insurer because the fact that the insured has been indemnified by
the insurer does not release the wrongdoer.
Rand Mutual Assurance Company Ltd v Road Accident Fund [2009] 1 All SA 265 (SCA), 2008 (6) SA 511 (SCA)
Smith v Banjo [2011] 2 All SA 577 (KZP), 2011 (2) SA 518 (KZP)
Duty to disclose: The insured and the insurer have a duty to disclose to each other before concluding the contract
every fact material to the risk and to the assessment of the premium. This duty relates to material facts of which the
parties have actual or constructive knowledge. A breach entitles the aggrieved party to avoid the contract. The duty
so formulated has replaced the jettisoned concept of uberrima fides.
Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality [1985] 1 All SA 324 (A), 1985 (1) SA 419 (A) p. 432
President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk [1989] 1 All SA 241 (A), 1989 (1) SA 208 (A)
Commercial Union Ins Co of SA Ltd v Wallace NO; Santam Ins Ltd v Afric Addressing (Pty) Ltd 2004 (1) SA 326
(SCA)
Certain Underwriters of Lloyds of London v Harrison 2004 (2) SA 446 (SCA)
A party relying on nondisclosure of a fact by the other contracting party must allege and prove that the fact
(a) was not disclosed;
Fransba Vervoer (Edms) Bpk v IGI Ltd 1975 (4) SA 968 (W), 1976 (4) SA 970 (W) p. 977
(b) was within the knowledge of the other party;
Pereira v Marine & Trade Insurance Co Ltd [1975] 4 All SA 635 (A), 1975 (4) SA 745 (A)
(c) was material that is, a reasonable person would on consideration of the relevant facts of the case have
considered the nondisclosed fact as being reasonably relevant to a proper assessment of the risk and of the
premium.
Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality [1985] 1 All SA 324 (A), 1985 (1) SA 419 (A) p. 435
Visser v 1 Life Direct Insurance Limited 2015 (3) SA 69 (SCA)
Errier v Outsurance Insurance Co Ltd 2015 (5) SA (KZP)
(d) caused the party either to enter into the contract at all or to do so on the agreed terms.
[Page 218]
Causation: The basic approach to questions of causation applies, subject possibly to the provisions of the policy.
Napier v Collett [1995] 2 All SA 457 (A), 1995 (3) SA 140 (A)
Conditions: 'Conditions' in South African insurance law differ from 'conditions' in English law. In English law a
condition is a term importing an obligation to perform. In South African law it is a term qualifying an obligation to
perform depending on the occurrence of a future uncertain event. If it is a suspensive condition the obligation to
perform is suspended until the condition is fulfilled. If it is a resolutive condition the obligation to perform comes to
an end should the condition be fulfilled.
See CONTRACT: CONDITIONS
Socalled conditions or conditions precedent that are so described in insurance policies are sometimes, following
English law, not suspensive conditions at all but merely ordinary terms of the policy. In such cases it is not for the
insured to allege compliance with or fulfilment of these 'conditions'; it is for the insurer to allege and prove non
compliance and, if the insurer wants to cancel the contract, that the breach justifies cancellation.
In the case of a true suspensive condition the insured must, to rely on the insurance contract, allege and prove
fulfilment of the condition. The same is true for a party relying on fulfilment of a resolutive condition.
Penderis & Gutman NNO v Liquidators, ShortTerm Business, AA Mutual Ins Association Ltd 1992 (4) SA 836 (A)
Lloyds of London Underwriting Syndicates 969, 48, 1183 & 2183 v Skilya Property Investments (Pty) Ltd [2004] 1
All SA 386 (SCA), 2004 (2) SA 276 (SCA)
Parsons Transport (Pty) Ltd v Global Insurance Co Ltd [2005] ZASCA 95, 2006 (1) SA 488 (SCA)
Warranties: When an insured party warrants the correctness of any reply to any question in the proposal form and
accepts the warranty as being the basis of the contract, the insurer may cancel the contract if the insured's reply
proves to be inaccurate even if the insured was completely innocent and sincere and even if the breach of the
warranty did not contribute to the loss.
Heslop v General Accident, Fire & Life Assurance Corp Ltd 1962 (3) SA 511 (A)
However, in terms of insurance legislation a longterm or shortterm policy is not invalidated, no obligation of the
insurer is excluded or limited and no obligation of the owner of the policy is increased merely because of any untrue
representation or failure to disclose information. That is so regardless of whether the representation or disclosure is
warranted to be true and correct unless that representation or nondisclosure is likely to have materially affected
the assessment of the risk under the policy at the time of issue or any reinstatement or renewal of the policy.
LongTerm Insurance Act 52 of 1998s 59(1)
ShortTerm Insurance Act 53 of 1998s 53(1)
Liberty Life Association of Africa Ltd v De Waal NO 1999 (4) SA 1177 (SCA)
Schoeman v Constantia Insurance Co Ltd [2003] 2 All SA 642 (SCA), 2003 (6) SA 313 (SCA)
Regent Insurance Company Ltd v King [2015] 2 All SA 137 (SCA), 2015 (3) SA 85 (SCA)
The test for materiality under these Acts is the same as that under the common law.
Mahadeo v Dial Direct Insurance Ltd [2008] 2 All SA 352 (W), 2008 (4) SA 80 (W)
Onus: The onus rests on the insured to allege and prove the facts necessary to bring her or him within the terms of
the insurance.
Eagle Star Insurance Co Ltd v Willey [1956] 1 All SA 349 (A), 1956 (1) SA 330 (A) p. 334
(SCA)
[Page 219]
If, for instance, the cover is against an accident and the insurer denies that the insured was killed in an accident but
alleges that he committed suicide, the onus is on the executor of the insured's estate to prove that the insured's
death was caused by an accident and to exclude the probability of suicide. There is no onus on the insurer to prove
suicide.
Aegis Insurance Co Ltd v Consani NO [1996] 3 All SA 547 (A), 1996 (4) SA 1 (A)
When the promise of insurance cover is qualified by exceptions, the question whether the plaintiff must prove facts
which negative the application of an exception depends on whether the exception qualifies the whole of the
promise or excludes from its operation particular classes of cases which, but for the exception, would fall within the
promise. When the promise is qualified by an exception which covers the whole scope of the promise, the plaintiff
cannot make out a prima facie case unless he or she brings himself or herself within the promise as qualified.
On the other hand, if the exception merely excludes certain classes, the onus rests on the insurer of proving facts
which negative the application of an exception. The nature of the exception is a question of interpretation.
Rabinowitz NNO v NedEquity Insurance Co Ltd [1980] 3 All SA 360 (W), 1980 (1) SA 403 (W)
(SCA)
Hollard Life Assurance Co Ltd v Van der Merwe NO [2006] 4 All SA 333 (SCA); [2007] 4 All SA 684 (SCA)
In the first case, that is when the promise is qualified by several exceptions the insured must plead facts to place
him or her within the exception and, in the latter case, that is when an exception covers the whole scope of the
promise, the insurer must plead facts excluding liability.
Mutual & Federal Insurance Company Ltd v SMD Telecommunications CC 2011 (1) SA 94 (SCA), [2011] 2 All SA 34
(SCA) para. [23]
The insurer must allege and prove breach of a warranty.
Rouwkoop Caterers (Pty) Ltd v IGI Ltd [1977] 4 All SA 347 (A), 1977 (3) SA 941 (A)
Insolvency of the insured: Whenever an insurer is obliged to indemnify an insured against any liability incurred by
the latter to a third party, the third party is entitled in terms of section 156 of the Insolvency Act on the
sequestration of the insured's estate to recover from the insurer the amount of the insured's liability to her or him.
The amount is limited to the amount for which the insurer has bound itself to indemnify the insured. The Act does
not require a contractual relationship between the wrongdoer and the insurer, only that the insurer be contractually
bound to indemnify the wrongdoer.
Le Roux v Standard General Versekeringsmaatskappy Bpk 2000 (4) SA 1035 (SCA)
Van Reenen v Santam Ltd 2013 (5) SA 595 (SCA)
Insurance brokers: Regarding the duties of an insurance broker, see
Ashton Ins Brokers CC v IMATU [2002] 3 All SA 175 (A)
Lappeman Diamond Cutting Works (Pty) Ltd v MIB Group (Pty) Ltd [2003] 4 All SA 317 (SCA), 2004 (2) SA 1
(SCA)
Oosthuizen v Castro [2017] 4 All SA 876 (FB), 2018 (2) SA 529 (FB)
Financial Advisory and Intermediary Services Act 37 of 2002
[Page 220]
Rejection (repudiation) of claims: It is for the insurer to allege and prove its right to repudiate the claim for the
reasons pleaded by it (e.g. that the claim was fraudulent).
Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk [1974] 3 All SA 1 (A), 1974 (2) SA 450 (A)
Commercial Union Assurance Company of South Africa Ltd v Kwazulu Finance and Investment Corporation and
another 1995 (3) SA 751 (A)
Forfeiture clause: A clause entitling the insurer to cancel the contract on the ground of a fraudulent claim is not
implied in a contract of insurance. This means that an insured may recover the actual loss in spite of the fact that
the insured has fraudulently exaggerated the claim.
Schoeman v Constantia Insurance Co Ltd [2003] 2 All SA 642 (SCA), 2003 (6) SA 313 (SCA)
Cancellation of the contract on the ground of a fraudulent claim does not affect accrued claims.
SA Eagle Insurance Co Ltd v KRS Investments CC [2007] 1 All SA 566 (SCA), 2005 (2) SA 502 (SCA)
PRECEDENTS
Claim by insurer for recovery of indemnity paid
1. Plaintiff is [name] Insurance Company Limited, a company duly registered and incorporated with limited liability
according to the company laws of the Republic of South Africa and having its principal place of business at [address].
Plaintiff is a registered insurer.
2. Defendant is [name].
3. (a) In terms of a written policy of insurance, plaintiff undertook to indemnify defendant for all damage or loss
sustained by defendant in respect of a certain [description] motor vehicle [registration number].
(b) The policy was of full force and effect during [state period].
4. (a) During [state period], the motor vehicle was stolen.
(b) On [date], defendant gave written notice of the loss to plaintiff.
5. (a) On or about [date], defendant represented to plaintiff that the motor vehicle had not been recovered.
(b) The representation was, to the knowledge of defendant, false in that the said motor vehicle had been recovered.
(c) The representation was material and was made with the intention of inducing plaintiff to act thereon and to pay
defendant a settlement figure of [amount].
(d) On [date], plaintiff paid defendant the agreed sum of [amount] being the loss sustained by defendant.
(e) But for the representation, plaintiff would not have paid defendant the sum of [amount].
6. Alternatively:
(a) I n t h e bona fide and reasonable but mistaken belief that defendant was entitled to payment of the sum of
[amount] in terms of the policy, plaintiff paid defendant the said sum.
(b) Notwithstanding demand, defendant fails to repay plaintiff the said sum of [amount].
Claim for compliance with terms of policy
1. Defendant is [name], a company incorporated in terms of the company laws of the Republic of South Africa with
registered office at [place] which carries on business as a registered insurance company in terms of the Insurance Act.
2. On [date] at [place], the parties entered a written agreement of insurance, in terms of which defendant undertook to
insure plaintiff's motor car, being [describe], against the [Page 221] risks mentioned in the contract, one of them being
the theft of the vehicle. A copy of the agreement of insurance is attached and marked 'A'.
3. On [date], plaintiff's said motor vehicle was stolen.
4. The value of the motor vehicle, calculated as provided for in the contract, is [amount].
5. Plaintiff has duly notified defendant of the theft and has, in all other respects, complied with his obligations under the
policy.
6. Despite this, defendant has refused to make any payments to plaintiff in respect of the theft of his motor vehicle.
Claim by executor under policy
1. Plaintiff institutes this action in her capacity as executrix in the estate of the late [X], duly appointed as such by the
Master of the High Court in terms of letters of appointment [number].
2. During or about [date] at [place], the late [X] and defendant entered a written agreement of insurance.
3. Plaintiff is not in possession of a copy of the agreement, but annexes hereto:
(a) as Annexure 'A', a copy of the relevant policy schedule;
(b) as Annexure 'B', a specimen copy of the policy wording.
4. The following terms of the agreement of insurance are particularly relevant to this action:
(a) Defendant undertook to provide cover to the insured person as follows:
'If during any period of insurance an insured person sustains bodily injury which, independently of any other
cause, results in the death, or permanent disablement, the company will pay to the insured person or his
estate the compensation stated below.'
(b) The schedule of benefits provided that an amount of [Rx] became payable as compensation to the estate of the
insured person [being the late X] should he sustain bodily injury which resulted in his death;
(c) 'bodily injury' was defined as follows:
'bodily injury shall mean injury which is caused by accidental means and which within twentyfour months
from the date of the accident results in the insured person's death, dismemberment or permanent
disablement.'
5. On [date] at [place], a collision occurred between a motor vehicle driven by the late [X] and a motor vehicle driven by
[Y].
6. As a direct consequence of the collision, the late [X] suffered a heart attack which caused his death on the same day.
7. During his lifetime, the late [X] complied with all his obligations in terms of the agreement of insurance and, at the time
of his death, the agreement was operative and effective.
8. Plaintiff duly gave defendant written notice, in terms of the provisions of the agreement of her claim for payment of [Rx].
9. In the premises, defendant is obliged to pay to the estate of the late [X] the amount of [Rx], but, despite demand
thereto, defendant refuses to do so.
[Based on Oelofsen NO v Cigna Insurance Co of SA Ltd [1992] 2 All SA 448 (T), 1991 (1) SA 74 (T).]
Plea breach of warranty
1. The statements and answers contained in the application for insurance constituted the basis of the contract of insurance
and were warranted by plaintiff to be true.
2. In answer to the question whether any other application for insurance was pending, plaintiff replied in the negative.
3. That answer was untrue because, on the same day, plaintiff applied for insurance with two other insurers and which
applications were pending.
4. The incorrectness of the answer was of such a nature as to affect materially the assessment of the risk assumed by
defendant under the said contract.
5. Defendant consequently repudiated the contract on [date] as it was entitled to do.
[Page 222]
Plea of material nondisclosure
1. Defendant admits the agreement as alleged.
2. At the time of entering into the agreement, plaintiff was aware of the following facts, namely: [detail].
3. Plaintiff failed to inform defendant of these facts.
4. The facts materially affected the risk and the value of the motor vehicle insured.
5. In the premises, defendant is entitled to avoid the contract which it hereby does.
Interest
General: It is necessary to distinguish between liquidated and unliquidated claims.
A. LIQUIDATED CLAIMS
Interest on liquidated claims: There is generally no obligation to pay interest until the debt becomes due and
payable.
Interest begins to run on the amount of the defendant's liability from the date of default (mora).
West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173
(SCA) paras 8086
Crookes Brothers Limited v Regional Land Claims Commission for the Province of Mpumalanga and others [2013] 2
All SA 1 (SCA), 2013 (2) SA 259 (SCA)
See MORA
It is necessary to allege when the interest claimed began to run.
Automatic default (mora ex re) : The obligation to pay interest flows from an express or tacit stipulation for
interest, and interest begins to run as soon as the debtor is in default.
Default due to a demand (mora ex persona): In the absence of a stipulation to pay interest, a debtor is in default
once a proper demand for payment has been made. Interest runs from the date of demand.
When reliance is placed on a demand, the fact of the demand and its date must be alleged. Service of the summons
may serve as a demand and, if no prior demand is alleged, service of the summons will serve as the demand and
interest will run from that date.
Standard Bank of SA Ltd v Lotze [1950] 3 All SA 56 (C), 1950 (2) SA 698 (C)
Interest on judgment debt: Every judgment debt bears interest from the day on which the judgment debt is due
and payable, unless the order states otherwise. This interest may be recovered as part of the judgment debt.
Prescribed Rate of Interest Act 55 of 1975s 2
Schenk v Schenk 1993 (2) SA 346 (E)
Administrateur, Transvaal v JD van Niekerk en Genote BK 1995 (2) SA 241 (A)
Agreed rate of interest: If parties agreed on a rate of interest or if the rate is regulated by trade custom, that fact
must be alleged and proved unless the court may take judicial notice thereof.
[Page 223]
The agreed rate is binding unless it is otherwise unlawful.
African Dawn Property Finance 2 (Pty) Ltd v Dreams Travel and Tours CC and others [2011] 3 All SA 345 (SCA),
2011 (3) SA 511 (SCA)
Maximum rate of interest: The interest claimed may not exceed that allowed by section 100 of the National Credit
Act 34 of 2005. The provision is not of general application.
See CREDIT AGREEMENT
C & T Products (Pty) Ltd v MH Goldschmidt (Pty) Ltd [1981] 4 All SA 324 (C), 1981 (3) SA 619 (C)
Statutory rate of interest: If a debt bears interest and the rate at which the interest is to be calculated is not
governed by any other law or by an agreement or a trade custom or in any other manner, the rate of interest is the
repurchase rate as determined from time to time by the South African Reserve Bank, plus 3,5 per cent per annum as
at the time when interest begins to run.
The court may in its discretion, on the ground of special circumstances relating to the particular debt, allow a
different rate.
Rates of interest for a debt owing to the state: The Minister of Finance, by notice in the national Government
Gazette, determines
(a) a uniform interest rate applicable to loans granted out of a Revenue Fund; and
(b) a uniform interest rate applicable to all other debts which must be paid into a Revenue Fund.
Public Finance Management Act 1 of 1999s 80.
Compound interest: Compound interest may be claimed if agreed. Interest may also be claimed on unpaid interest
that was due and payable.
Davehill (Pty) Ltd v Community Development Board [1988] 1 All SA 388 (A), 1988 (1) SA 290 (A)
Land and Agricultural Development Bank of South Africa v Ryton Estates (Pty) Ltd and others [2013] 4 All SA 385
(SCA), 2013 (6) SA 319 (SCA)
Euro Blitz 21 (Pty) Ltd and another v Secena Aircraft Investments CC [2015] ZASCA 21
B. UNLIQUIDATED CLAIMS
Rate of interest: The amount of every unliquidated debt as determined by a court, an arbitration tribunal or by
agreement bears interest at the statutory rate, namely the repurchase rate as determined from time to time by the
South African Reserve Bank, plus 3,5 per cent per annum as at the time when interest begins to run.
The MV Sea Joy: Owners of the Cargo lately laden on board the MV Sea Joy v The MV Sea Joy [1997] 4 All SA 191
(C), 1998 (1) SA 487 (C)
Inception date: Subject to agreement between the parties, interest runs from the date on which payment of the
debt is claimed by the service on the debtor of a demand or summons, whichever date is the earlier. In the case of
arbitration proceedings, interest usually runs from the date on which the creditor takes steps to commence the
proceedings.
'Demand' means a written demand setting out the creditor's claim in such a manner as to enable the debtor
reasonably to assess the quantum.
(SCA)
[Page 224]
Interest on that part of a debt that consists of the present value of a loss that may occur in the future does not
commence to run until the date on which the quantum of that part is determined.
Terminus Centre CC v Henry Mansell (Pty) Ltd [2007] 3 All SA 668 (C)
The effect of this is that interest runs not only in relation to damages claims but also in respect of enrichment claims.
Discretion: However, a court or an arbitration tribunal may make such an order as appears just in respect of the
payment of interest on an unliquidated debt, the rate at which interest shall accrue, and the date from which
interest shall run. In this regard the court exercises a discretion.
Adel Builders (Pty) Ltd v Thompson [2000] 4 All SA 341 (A), 2000 (4) SA 1027 (SCA)
Drake Flemmer and Orsmond Inc and another v Gajjar NO [2018] 1 All SA 344 (SCA), 2018 (3) SA 353 (SCA)
C. GENERAL
In duplum rule: Interest may not exceed the amount of the outstanding capital.
LTA Construction Bpk v Administrateur, Transvaal [1992] 3 All SA 1007 (A), 1992 (1) SA 473 (A)
Paulsen and another v Slip Knot Investments 777 (Pty) Limited 2015 (5) BCLR 509 (CC), 2015 (3) SA 479 (CC)
This applies also where interest has been capitalised by agreement.
Once judgment has been granted, additional interest may run from that date until it reaches twice the amount of
the capital outstanding in terms of the judgment.
1998 (1) SA 811 (SCA) p. 834
If the judgment is appealed, interest normally runs from the date of the original judgment. However, this is not
necessarily so.
Paulsen and another v Slip Knot Investments 777 (Pty) Limited 2015 (5) BCLR 509 (CC), 2015 (3) SA 479 ( C C )
paras 96102
It is not necessary to establish that the claim does not infringe the rule if the claim is based on a capitalised amount
of capital and interest. If the defendant raises the matter in the plea, the plaintiff must establish noninfringement.
F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk [1998] 4 All SA 480 (SCA),
1999 (1) SA 515 (SCA)
The in duplum rule applies to arrear interest only.
Sanlam Life Insurance Ltd v South African Breweries Ltd [2000] 1 All SA 563 (W), 2000 (2) SA 647 (W)
Ethekwini Municipality v Verulam Medicentre (Pty) Ltd [2006] 3 All SA 325 (SCA)
It does not apply to debt covered by the National Credit Act 34 of 2005.
Nedbank Ltd v National Credit Regulator 2011 (3) SA 581 (SCA)
Interest as damages: A party may not claim the loss of interest as a separate head of special damages over and
above the legal rate, unless, in a contractual case, the loss of a higher rate was contemplated by the parties at the
time of contracting or flowed naturally from the breach.
Standard Chartered Bank of Canada v Nedperm Bank Ltd [1994] 2 All SA 524 (A), 1994 (4) SA 747 (A) pp. 777G
779E
[Page 225]
C f . Thoroughbred Breeders' Association of South Africa v Price Waterhouse [ 2 0 0 1 ] 4 A l l S A 1 6 1 ( A ) ,
2001 (4) SA 551 (SCA)
Fault: Interest begins to run irrespective of fault because the cause is contractual and not delictual.
Scoin Trading (Pty) Ltd v Bernstein NO [2011] 2 All SA 608 (SCA), 2011 (2) SA 118 (SCA)
Suspension of interest: A pending appeal does not suspend the running of interest.
General Accident Versekeringsmaatskappy SA Bpk v Bailey NO [1988] 4 All SA 614 (A), 1988 (4) SA 353 (A)
Appropriation of payments: See PAYMENT.
Interest on appeal: A court of appeal is at large to order interest to run on the amount awarded, even if the issue
of interest was not dealt with in the court a quo, if the court of appeal is of the view that the plaintiff was entitled to
it.
Mutual & Federal Ltd v Rumdel Construction (Pty) Ltd [2005] 1 All SA 405 (SCA), 2005 (2) SA 179 (SCA)
Prayer for interest: A claim should contain a causa and a prayer for interest if an order for interest is sought.
Wedge Steel (Pty) Ltd v Wepener 1991 (3) SA 444 (W)
PRECEDENTS
Claim alternative prayers for interest
(a) Interest on the amount of [Rx] at the statutory rate of [percentage] per annum as from [date] to date of payment.
(b) Interest on the amount of [Rx] at the agreed rate of [percentage] per annum as from [date] to date of payment.
(c) Interest on the amount of [Rx] at the statutory rate of [percentage] per annum as from date of judgment to date of
payment.
Plea in duplum
1. The defendant pleads that the claim for the balance outstanding on the defendant's overdraft account consists of capital
and accrued interest.
2. The defendant further pleads that the interest component of the claim as at the date of institution of the action exceeded
the capital component.
3. The defendant is unaware of the extent of the excess and puts the plaintiff to the proof thereof and pleads that the
excess of the claim should be disallowed.
Interference with contractual relationships
An action in delict for damages (and, in appropriate cases, for an interdict) lies against any person (A) who
intentionally and without justification induced or procured another (B) to breach a contract between B and a third
person (C).
Although the claim is under the lex Aquilia, intention (dolus) determines wrongfulness.
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) p. 200
Masstores (Pty) Limited v Pick n Pay Retailers (Pty) Limited 2017 (2) BCLR 152 (CC), 2017 (1) SA 613 (CC)
2015 (1) SA 1 (CC)
See DELICT: LEX AQUILIA
[Page 226]
The same principles ought to apply in the case of an interference with character or other merchandising rights.
Federation Internationale de Football v Bartlett [1994] 2 All SA 62 (T), 1994 (4) SA 722 (T)
Cf. SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons [2003] 1 All SA 274 (SCA), 2003 (3) SA 313 (SCA)
Interpleader
General: The interpleader procedure enables a party (A) who is or may be the subject of adverse claims by two or
more other parties (the claimants, B and C) to have the competing claims decided between the claimants (B and C)
to protect the interpleader applicant (A) against costs. The matter is dealt with exhaustively in Uniform rule 58 and
Magistrates' court rule 44.
Parties: An interpleader applicant may be a defendant, a prospective defendant, or a sheriff who has attached
property in execution.
Van der Merwe v Karroo Vleisbeurs Bpk [1963] 4 All SA 40 (C), 1963 (3) SA 831 (C)
Barclays Western Bank Bpk v Upington Paneelkloppers (Edms) Bpk 1986 (2) SA 409 (NC)
The claimants must each deliver their own particulars of claim. The court may then order which claimant will be the
plaintiff and which the defendant.
Uniform rule 58(6)
Trust Bank van Afrika, Bpk v Geregsbode, Middelburg [1966] 3 All SA 488 (T), 1966 (3) SA 391 (T)
Interpleader notice: The interpleader notice must
(a) state the nature of the liability, property or claim that is the subject matter of the dispute;
(b) call upon the claimants to deliver particulars of their claims within the time stated in the notice being not less
than 14 days from the date of service; and
(c) state that on a further date, being not less than 14 days from the date specified in the notice for the delivery
of claims, the applicant will apply to court for a decision as to the applicant's liability or the validity of the
respective claims.
Uniform rule 58(3)
Affidavit: The applicant must deliver with the interpleader notice an affidavit stating that the applicant
(a) claims no interest in the subject matter in dispute other than for charges and costs;
(b) does not collude with any of the claimants; and
(c) is willing to deal with or act with the subject matter of the dispute as the court may direct.
Uniform rule 58(4)
Payment and delivery: The applicant must simultaneously
(a) pay money that is the subject of the conflicting claims to the registrar;
(b) tender delivery to the registrar the thing in question (if it is capable of delivery); or
(c) place the title deeds of the immovable property, if they are available, in the possession of the registrar and
file an undertaking to sign all documents necessary to effect transfer in accordance with any court order or
agreement between the claimants.
[Page 227]
Particulars of claim: Each claimant must file particulars of claim. The content will depend on the nature of the claim.
The purpose of the statement is to acquaint the opponent with the tenor of the case to enable him or her to
oppose the claim. A claimant is not expected to set out the claim with the precision required of a pleading.
Corlett Drive Estates v Boland Bank Bpk [1979] 1 All SA 346 (C), 1979 (1) SA 863 (C)
Free State Consolidated Gold Mines (Operations) Bpk v Sam Flanges Mining Supplies BK [1997] 3 All SA 356 (O),
1997 (4) SA 644 (O)
Uniform rule 58(5)
Court order: Depending on the circumstances of the case, the court may issue an order in terms of Uniform rule
58(6). For a form of order, see
Free State Consolidated Gold Mines (Operations) Bpk v Sam Flanges Mining Supplies BK [1997] 3 All SA 356 (O),
1997 (4) SA 644 (O) p. 656
PRECEDENTS
[See ACTIO AD EXHIBENDUM; VINDICATION.]
Interpleader notice
Since
(a) the first claimant has instituted action against the applicant in the [name court] in which the first claimant claims payment
of [Rx], being the amount due in terms of the building contract;
(b) the second claimant has informed the applicant that it lays claim to payment of the sum of [Rx] because the claim had
been ceded to the second claimant;
(c) the sum of [Rx] consists of the balance of the money due and owing by the applicant in respect of the above; and
(d) the claims of the first and second claimants are adverse and mutually exclusive claims.
Now, therefore, the applicant notifies the claimants as follows:
1. The applicant admits that it is liable for payment of [Rx] in respect of the building contract.
2. The applicant will pay the amount of [Rx] to the registrar of the above court on delivery of this notice.
3. Each claimant is herewith called upon to deliver particulars of its claim to the said amount in terms of Rule 58 on or
before [date].
4. On [date], the applicant will apply for:
(a) directions as to the proper forum for determining its liability to each claimant and the validity of the respective
claims; or
(b) a decision as to its liability to each claimant and the validity of the respective claims; and
(c) an order authorising the applicant to deduct from the amount paid in, the costs incurred after the date of this
notice.
[Based on Government of the Republic of South Africa v Midkon (Pty) Ltd 1984 (3) SA 552 (T) pp. 564565.]
Issue estoppel
See RES IUDICATA
Joint ownership
Related subject: PARTNERSHIPS
[Page 228]
General: When property is owned in joint ownership, each coowner has an undivided share in the property. The
various shares need not be equal. Every coowner is entitled to use the joint property reasonably and in proportion
to its share and to a proportionate share of profits derived from the property through, for example, letting. Each co
owner is obliged to account to the others or bears the onus of proving that it is released from the duty to account.
Pretorius v Botha [1961] 4 All SA 318 (T), 1961 (4) SA 722 (T)
Termination of joint ownership: As a general rule, every coowner is entitled to have coownership terminated.
Robson v Theron [1978] 2 All SA 264 (A), 1978 (1) SA 841 (A)
Trojan Exploration Co (Pty) Ltd v Rustenburg Platinum Mines Ltd [1996] 4 All SA 121 (A), 1996 (4) SA 499 (SCA)
Morar NO v Akoo and another [2011] 4 All SA 617 (SCA), 2011 (6) SA 311 (SCA) (also in general on the powers
of liquidators)
Coetzee v Coetzee [2016] 4 All SA 404 (WCC)
A party claiming termination of coownership must allege and prove
(a) the existence of joint ownership;
(b) a ground for termination of joint ownership such as a refusal of the other owners to agree to termination,
inability to agree on the method of termination, or an agreement to terminate and the other owners' refusal
to comply with it;
Ntuli v Ntuli 1946 TPD 181
(c) facts upon which the court can exercise its discretion as to the method of termination. The method must be
fair and equitable to all parties. Examples include
(i) division of the property if it can be done physically and legally;
Badenhorst v Marks 1911 TPD 144
(ii) sale by public auction and a division of the net amount;
Estate Rother v Estate Sandig 1943 AD 47
(iii) allocation of the property to one coowner subject to payment of compensation to the other; and
(iv) a private auction restricted to the coowners, and division of the net amount.
Kruger v Terblanche 1979 (4) SA 38 (T)
Ancillary relief: The action may also be used to claim ancillary relief such as expenses incurred by one of the
parties in connection with the joint property or an appropriate share of profits derived from the property.
Robson v Theron [1978] 2 All SA 264 (A), 1978 (1) SA 841 (A) p. 857
Defences: The defendant may rely on an agreement between the parties not to subdivide within a given period or
concerning the method of termination.
PRECEDENTS
Claim for termination
1. The parties are the joint owners in equal shares of a farm known as [name] in extent [size].
2. Despite demand, defendant refuses to consent to the termination of the joint ownership of the farm.
3. The value of the farm is [amount].
4. The farm is not subdivisible due to the provisions of the Subdivision of Agricultural Land Act 70 of 1970.
5. Plaintiff has with the consent of defendant, lived on and used the farm. Defendant has shown no interest therein.
[Page 229]
6. Plaintiff tenders to pay to defendant [amount], being half the value of the farm against registration of defendant's share
in plaintiff's name.
The plaintiff claims
(a) an order that the coownership in the farm [name] be terminated.
(b) that defendant's half share be transferred and registered in plaintiff's name against payment to defendant of [amount];
alternatively, that the honourable court determine a just and equitable method of terminating the joint ownership.
Joint wrongdoers
See DELICT: LEX AQUILIA; NEGLIGENCE: CONTRIBUTORY NEGLIGENCE
Judgment: Foreign judgments
Related subject: RES IUDICATA
Leading cases:
Jones v Krok [1995] 2 All SA 30 (A), 1995 (1) SA 677 (A)
Government of the Republic of Zimbabwe v Fick and others 2013 (10) BCLR 1103 (CC), 2013 (5) SA 325 (CC)
General: Although a foreign judgment is not directly enforceable in South Africa, it constitutes a cause of action. It
may be enforced by way of execution only if a competent local court makes an order based on the order of the
foreign court.
A local court may not investigate the merits of a case determined in a foreign court, even though the result of the
case may be vastly different from that which would have been achieved in South African courts or if the reasoning of
the foreign court is patently defective. 'Treble' damages awarded in an American judgment were held not to be
punitive.
Eden v Pienaar [2000] 3 All SA 632 (W), 2001 (1) SA 158 (W)
Danielson v Human 2017 (1) SA 141 (WCC)
A party aggrieved by a decision of a foreign court must resort to the appellate or review proceedings available in
the foreign country.
Section 1F of the Protection of Businesses Act 99 of 1978: A foreign judgment may amount to res iudicata and, in
terms of the Act, it is a defence to any action if it is proved to the satisfaction of the court that the cause of action
founding the action brought, was the subject of a judgment given by a court in a foreign country, if
(a) in terms of the laws of the foreign country the court which gave the judgment was competent to give that
judgment;
(b) in terms of such laws such judgment is final and conclusive; and
(c) the parties to the proceedings in which such judgment was given, or their successors in title, are the same as
the parties to the proceedings in the Republic.
Enforcement of Foreign Civil Judgments Act 32 of 1988: The Act provides that civil judgments given in designated
countries may be enforced in magistrates' courts in the Republic. It applies in respect of judgments given in any
country which the Minister has designated by notice in the Gazette. These judgments may be registered and, if
registered, have the same effect as a civil judgment of the court at which the judgment has been registered.
[Page 230]
Hague Convention on the Civil Aspects of International Child Abduction: The provisions of the Convention apply
to South Africa and deal with the recognition and enforcement of foreign orders affecting the custody of children.
The provisions of this Convention fall outside the scope of this work.
Children's Act 38 of 2005 chap. 17
Reciprocal Enforcement of Maintenance Orders Act 80 of 1963
Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989
Procedure to enforce: A party in whose favour a foreign court granted judgment may apply for judgment in a local
court having jurisdiction over the person of the defendant (the party against whom the order was made) for an
order in the same terms as that of the foreign judgment. The foreign judgment is irrefutable proof of the
indebtedness of the defendant.
Jones v Krok [1995] 2 All SA 30 (A), 1995 (1) SA 677 (A) p. 685
Wile v MEC, Department of Home Affairs, Gauteng 2017 (1) SA 125 (WCC)
Essential allegations: The plaintiff in an action for recognition must allege and prove that
(a) the local court in which the enforcement proceedings are brought has jurisdiction over the person of the
defendant;
(b) the foreign court had in terms of local law jurisdiction to decide the issue and had jurisdiction over the person
of the defendant;
Purser v Sales; Purser v Sales [2001] 1 All SA 25 (SCA), 2001 (3) SA 445 (SCA)
Society of Lloyd's v Price; In re Society of Lloyd's v Lee 2006 (5) SA 393 (SCA)
Richman v BenTovim [2007] 2 All SA 234 (SCA), 2007 (2) SA 283 (SCA)
(c) the foreign judgment was, in terms of the relevant foreign law, a final judgment and not an interlocutory or a
provisional judgment.
Jones v Krok [1995] 2 All SA 30 (A), 1995 (1) SA 677 (A) p. 689
It does not matter whether the merits of the case had been decided whether, for example, the judgment was
granted by default.
Gabelsberger v Babl [1994] 2 All SA 1 (T), 1994 (2) SA 677 (T)
The foreign judgment should be authenticated (although this requirement is not mandatory) and it is advisable to
annex a copy of it to the claim.
Maschinen Frommer GmbH & Co KG v Trisave Engineering & Machinery Supplies (Pty) Ltd [2003] 1 All SA 453 (C),
2003 (6) SA 69 (C)
Blanchard, Krasner & French v Evans 2004 (4) SA 427 (W)
A copy must be annexed to the summons in provisional sentence proceedings. The court must be satisfied that the
document before it is indeed a court order and not, for example, a recorded settlement.
Holz v Harksen [1995] 1 All SA 580 (C), 1995 (3) SA 521 (C)
Defences: A defendant is not entitled to reopen the merits of the foreign judgment and order but may dispute the
essential allegations that the plaintiff must prove.
(a) A substantial defence that may be raised is that the foreign judgment was granted contrary to the basic
principles of natural justice which are acceptable to a South African court. The onus is on the defendant to
establish that the judgment was obtained contrary to these principles.
A court will not easily criticise the procedural rules of foreign countries and will not measure their fairness by
reference to local equivalents but will at least require proper notification of the proceedings to the defendant
and compliance with the principles of the audi alteram partem rule.
Duarte v Lissack [1973] 4 All SA 86 (D), 1973 (3) SA 615 (D)
Lissack v Duarte [1974] 4 All SA 487 (N), 1974 (4) SA 560 (N)
Eden v Pienaar [2000] 3 All SA 632 (W), 2001 (1) SA 158 (W)
[Page 231]
(b) The fact that a judgment is subject to an appeal or that an appeal is pending does not affect its finality. The
respondent may, however, place facts before the court to enable it to exercise discretion in the respondent's
favour to stay the proceedings.
Jones v Krok 1996 (1) SA 504 (T) p. 692
(c) A foreign judgment given in relation to an act or transaction connected to the mining, production, importation,
exportation, refinement, possession, use or sale of or ownership of any matter or material, of whatever
nature, whether within, outside, into or from the Republic may not be enforced without the permission of the
Minister of Economic Affairs.
Protection of Businesses Act 99 of 1978s 1A (note the amendments made by the International Arbitration Act 15 of
2017)
PRECEDENTS
Claim based on a foreign judgment
1. On [date], plaintiff instituted an action against defendant based upon a contract between the parties entered on [date] at
[place] in the [identify court] in [identify country].
2. The court was a court of competent jurisdiction to hear and determine plaintiff's claim because the contract was entered
into and defendant was domiciled in that country when the proceedings were instituted.
3. The court granted a final judgment in favour of plaintiff in the sum of [amount] on [date]. A copy of the order is annexed.
4. Defendant is at present domiciled within the jurisdiction of this honourable court.
5. Defendant has failed to pay plaintiff the amount of the judgment.
Plea lack of jurisdiction
1. Defendant denies that the [identify the court] was a court of competent jurisdiction to hear and determine plaintiff's claim
because
(a) when the foreign proceedings were instituted, defendant was resident and domiciled in South Africa; and
(b) the contract relied on was entered in South Africa.
2. Alternatively, and in any event, defendant pleads that the judgment relied on was given pursuant to proceedings of which
defendant had no notice and that the judgment was, accordingly, obtained contrary to the principles of natural justice.
Judgment: Setting aside
A. FINALITY OF JUDGMENTS
General: A court (or any member of that court) that has duly pronounced a final judgment has no authority to
correct, alter or supplement the substance of its judgment. Upon pronouncement, the court becomes functus officio
because its jurisdiction has been fully and finally exercised, and its authority over the subject matter has ceased.
Firestone SA (Pty) Ltd v Gentiruco AG [1977] 4 All SA 600 (A), 1977 (4) SA 298 (A)
S v Wells [1990] 2 All SA 1 (A), 1990 (1) SA 816 (A)
MEC for Economic Affairs, Environment and Tourism v Kruizenga [2010] 4 All SA 23 (SCA), 2010 (4) SA 122 (SCA)
See RES IUDICATA
Correction, alteration or supplement is a matter for appeal to a higher court and not for a court of equal jurisdiction.
[Page 232]
This does not apply to an order that lacks finality such as an interlocutory order.
United Enterprises Corporation v STX Pan Ocean Company Ltd [2007] 3 All SA 87 (C); [2008] 3 All SA 111 (SCA)
Apart from the commonlaw exception of fraud, the rules of court make exceptions in relation to judgments by
default (Uniform rule 31(2)(b) and Magistrates' court rule 49) and other special circumstances (Uniform rule 42).
Mutebwa v Mutebwa [2001] 1 All SA 83 (Tk), 2001 (2) SA 193 (Tk)
Correction of an order: A court may correct, alter or supplement its judgment or order under certain special
circumstances, namely to
(a) supplement the order in respect of accessory or consequential matters such as costs and interest;
(b) clarify the order;
(c) correct a clerical, arithmetical or similar error to give effect to the true original intention; and
(d) reconsider a cost order which was made without argument.
Firestone SA (Pty) Ltd v Gentiruco AG [1977] 4 All SA 600 (A), 1977 (4) SA 298 (A)
Ex parte Minister of Social Development and others 2006 (5) BCLR 604 (CC), 2006 (4) SA 309 (CC) paras 3031
Judgment by default: The rules of court provide for the setting aside by way of application of a judgment granted
when the defendant was in default.
Uniform rule 31(2)(b)
Uniform rule 42: This rule provides for the setting aside under special circumstances of a final court order. The
prescribed procedure is by way of application and a discussion of the rule falls outside the scope of this work.
B. SETTING ASIDE UNDER THE COMMON LAW
Parties: A party claiming rescission of a judgment need not have been a party to the original matter but must
establish a direct and substantial interest in the matter which would have entitled that party to have intervened in
the matter in which the judgment was given.
United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd [1972] 4 All SA 493 (C), 1972 (4) SA 409 (C)
Mabuza v Nedbank Ltd 2015 (3) SA 369 (GP)
Grounds: The main ground under the common law for setting aside a final judgment is fraud by or on behalf of the
successful litigant.
Makings v Makings [1958] 1 All SA 510 (A), 1958 (1) SA 338 (A)
De Wet v Western Bank Ltd [1977] 4 All SA 721 (T), 1977 (4) SA 770 (T)
This applies also to a judgment by default, in which event the procedural limitations of the mentioned rules of court
do not apply.
De Wet v Western Bank Ltd 1979 (2) SA 1031 (A)
Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd 2007 (6) SA 87 (SCA)
Iustus error, even one induced by a nonfraudulent misrepresentation by the successful litigant, does not provide a
cause of action for setting aside of the judgment.
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163
See MISTAKE
Procedure: A party may apply to set aside a final order under the common law by application or action proceedings.
De Wet v Western Bank Ltd [1977] 4 All SA 721 (T), 1977 (4) SA 770 (T) p. 776
[Page 233]
Motor Marine (Edms) Bpk v Thermotron [1985] 1 All SA 40 (SE), 1985 (2) SA 127 (SE)
Santos Erec v Cheque Discounting Co (Pty) Ltd [1986] 3 All SA 129 (W), 1986 (4) SA 752 (W)
Essentials: To succeed in a claim for setting aside of a final judgment because of fraud a plaintiff must allege and
prove that
(a) the defendant (or someone to the defendant's knowledge) gave incorrect evidence or misled the court or the
other party in some other way;
(b) fraud was committed; and
(c) the fraud was material that is, had the court known the true facts it would have given a judgment in favour
of the plaintiff.
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163
Rowe v Rowe [1997] 3 All SA 503 (A), 1997 (4) SA 160 (SCA)
See FRAUD
PRECEDENTS
Claim to set aside a judgment fraudulently obtained
1. On [date], this honourable court ordered the plaintiff to pay the defendant [amount], being damages suffered by
defendant because of . . .
2. Unbeknown to plaintiff, the true facts were . . .
3. Defendant, at all material times, was aware of the true facts.
4. Defendant fraudulently failed to disclose these facts to this honourable court at the hearing.
5. Defendant intended to mislead this honourable court and induce it to believe that . . .
6. Had this honourable court known the true facts, it would not have awarded any damages in defendant's favour against
plaintiff, but it was induced to do so because of defendant's fraudulent conduct.
The plaintiff claims that the order of this honourable court in [case number] given against plaintiff in favour of defendant on
[date] be set aside.
Jurisdiction
General: A court must have jurisdiction for its judgment or order to be valid. If the court does not have jurisdiction,
its judgment or order is a nullity. No pronouncement to that effect is required.
Jurisdiction in this context means 'the power invested in a court by law to adjudicate upon, determine and dispose
of a matter'. The time for determining whether a court has jurisdiction is when proceedings commence that is,
when the initiating papers are served on the defendant or respondent. Once jurisdiction is established, it persists
to the end of the proceedings even though the ground may have ceased to exist.
Communication Workers Union v Telkom SA Ltd [1999] 2 All SA 113 (T), 1999 (2) SA 586 (T)
Jurisdiction is determined with reference to the allegations in the pleadings and not by the substantive merits of the
case. In the event of the court's jurisdiction being challenged at the outset (in limine), the plaintiff's pleadings are
the determining factor since they contain the legal basis of the claim under which the plaintiff has chosen to invoke
the court's competence.
Gcaba v Minister for Safety and Security 2010 (1) BCLR 35 (CC), 2010 (1) SA 238 (CC) para. 75
[Page 234]
'Persons residing or being in': Section 21(1)(a) of the Superior Courts Act 10 of 2013 states in general terms that
high courts have jurisdiction over all persons residing or being in their respective areas of jurisdiction. This is simply
an attempt to introduce or confirm the commonlaw rules of jurisdiction.
The test is not one of domicile: This means that a court may have jurisdiction in relation to a matter even though
the cause had not arisen within its area of jurisdiction, provided it has jurisdiction over the person of the defendant.
This general statement must be qualified: it does not mean that the court of a defendant's residence is as a matter
of principle competent to take cognisance of the particular case. For instance, if the dispute concerns property, the
only competent court may be the one where the property is situated.
Jurisdiction can be acquired over a person who does not reside in the area of the court's jurisdiction if he or she is
joined as a party to any cause in respect of which that court has jurisdiction or who in terms of a thirdparty notice
becomes a party to such a cause, provided he or she resides or is within the area of jurisdiction of any other high
court.
Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in liq) 1987 (4) SA 883 (A) 886
Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A)
Mayne v Main [2001] 3 All SA 157 (A), 2001 (2) SA 1239 (SCA)
Gallo Africa Ltd v Sting Music (Pty) Ltd [2011] 1 All SA 449 (SCA), 2010 (6) SA 329 (SCA), [2010] JOL 26301
(SCA)
Natural persons: Determining a person's residence is a factual inquiry and the courts have been reluctant to
formulate an allembracing definition of the concept. However, a person
(a) may have a domicile in one place and residence for the time being at another;
(b) may have more than one residence; and
(c) does not reside at a place he or she is temporarily visiting, nor does he or she cease to reside at a place even
though he or she may be temporarily absent on certain occasions and for short periods.
Corporations: A domestic corporation or legal person is resident both at the place where its registered office is
located and where its principal place of business is. In other words, it may have a dual residence. It is not resident
at a place where it simply has a place of business that is not its principal place of business. There is a vast
difference between a corporation's principal place of business and its principal place of business within the court's
jurisdiction: the first may establish jurisdiction, while the second a place where service of process may take place.
Some uncertainty exists in regard to the residence of a foreign corporation operating in South Africa. Mere
registration in South Africa and the establishment of a branch office apparently do not suffice to constitute
residence; establishing a branch office, which actively carries on the company's business, does.
State and statutory bodies: Similar considerations apply in relation to the state and statutory bodies. It may be
accepted that the central government 'resides' or 'is' at Pretoria, within the area of jurisdiction of the Transvaal
court and not in every high court. Likewise, a provincial government resides at the place of its central management
and control.
Partnerships: The place where a partnership has its principal place of business should be the most convenient
forum as far as the partnership is concerned.
[Page 235]
'All causes arising': A high court has jurisdiction in relation to all causes arising within its jurisdiction although it
does not have jurisdiction over the person of the defendant.
This general statement is subject to the qualification that
(a) the defendant must be an incola of the Republic; or
(b) if the defendant is a peregrinus of the country, an attachment to found jurisdiction must have been made.
If the defendant is a peregrinus of the country and an attachment cannot be made, the summons is served on the
defendant while in South Africa and there is sufficient connection between the suit and the area of jurisdiction of
the court concerned so that disposal of the case by that court is appropriate and convenient.
Whether a cause arose in the area of a court's jurisdiction at common law depends on whether that court is
regarded as a proper forum.
Plaintiff: A plaintiff must allege and prove the facts necessary to establish that the court has jurisdiction in the
matter and over the person of the defendant. It does not suffice to allege the legal conclusion of jurisdiction.
Natalse Landboukoöperasie Bpk v Fick [1982] 2 All SA 326 (N), 1982 (4) SA 287 (N)
It is not necessary in the ordinary course of events to make any specific allegation concerning jurisdiction, provided
that the underlying facts establishing jurisdiction appear from the pleading. For instance, an allegation that the
defendant resides within the area of jurisdiction of the court may be an adequate prima facie allegation of
jurisdiction. Likewise, an allegation that the delict was committed within the court's area of jurisdiction is sufficient
to establish jurisdiction.
In magistrates' courts the summons must set out sufficient facts establishing not only that the court has jurisdiction
over the person of the defendant but also in relation to the cause of action.
Defendant: Absence of jurisdiction may be raised by a defendant by way of a special plea (if the lack of jurisdiction
does not appear ex facie the plaintiff's pleadings) or by way of an exception (if it does so appear).
Dusheiko v Milburn [1964] 4 All SA 411 (A), 1964 (4) SA 648 (A)
A defendant who does not raise the absence of jurisdiction prior to litis contestatio in the high court is deemed to
have submitted to that court's jurisdiction.
Muller v Möller [1965] 2 All SA 223 (C), 1965 (1) SA 872 (C)
Unless submission to jurisdiction is possible, a court is obliged to raise the lack of jurisdiction mero motu, even on
appeal.
A fuller discussion of the rules relating to jurisdiction falls beyond the scope of this work.
PRECEDENTS
Special plea alleging absence of jurisdiction
Defendant denies that this honourable court has jurisdiction to hear plaintiff's claim for damages because
(a) the collision which allegedly caused the damages occurred at [place], outside the area of jurisdiction of this court; and
[Page 236]
(b) defendant is not ordinarily resident within the area of its jurisdiction but resides at [address].
Lateral support
A landowner has a commonlaw right to lateral support from adjoining land. The right of support applies to the
surface in its natural state and is not a right to the support of artificial constructions.
Elektrisiteitsvoorsieningskommissie v Fourie [1988] 3 All SA 100 (T), 1988 (2) SA 627 (T)
Wrongfulness: The removal of lateral support is not in itself a wrongful act. Liability arises only when damage to
the adjoining property takes place. For that reason, every new subsidence gives rise to a fresh cause of action.
Oslo Land Co Ltd v The Union Government 1938 AD 584 p. 592
Subsidence: The plaintiff is entitled to relief not only in the case of subsidence but also in the event of erosion
caused by a disturbance of the natural surroundings of the ground.
Gijzen v Verrinder [1965] 1 All SA 476 (D), 1965 (1) SA 806 (D)
Fault: Fault is not an element of the action. Absence of fault is probably not a defence.
Foentjies v Beukes [1977] 4 All SA 648 (E), 1977 (4) SA 964 (E)
Relief: Damages and an interdict are claimable. Claims for prospective damages and a mandatory interdict to
prevent future subsidence are not available.
John Newmark & Co (Pty) Ltd v Durban City Council [1959] 1 All SA 91 (N), 1959 (1) SA 169 (N)
PRECEDENT
Claim for damages
1. Plaintiff is the owner of [lot] in the township of [specify] in the district of [specify].
2. Defendant is the owner of [lot] in the same township, which adjoins plaintiff's property along its western side.
3. During the period [date] to [date], defendant excavated a hole on his property to a depth of [number] metres right up to
the western boundary of plaintiff's property.
4. In so doing, the defendant deprived the plaintiff's property of the lateral support to which the plaintiff is entitled.
5. Because of the removal of this lateral support, plaintiff's land subsided along its western boundary and plaintiff suffered
damages of [amount] calculated as follows:
[detail].
Lease
Related subject: EVICTION
The contract: A party relying on a contract of letting and hiring must allege and prove a contract containing at least
the essential terms that
(a) the lessor undertake to deliver a thing to the lessee;
(b) the lessee will have temporary use and enjoyment of the thing; and
(c) the lessee will pay rent.
[Page 237]
Genac Properties Jhb (Pty) Ltd v NBC Administrators CC [1992] 1 All SA 421 (A), 1992 (1) SA 566 (A)
Southernport Developments (Pty) Ltd v Transnet Ltd [2005] 2 All SA 16 (SCA), 2005 (2) SA 202 (SCA)
Ferndale Crossroads Share Block (Pty) Ltd v City of Johannesburg Metropolitan Municipality [2011] 2 All SA 15
(SCA), 2011 (1) SA 24 (SCA) para. 12
Formalities: There are generally no formalities for the validity of leases although a landlord must, when requested
to do so by a tenant, reduce a lease in respect of rental housing to writing.
Rental Housing Act 50 of 1999s 5(1) and (2)
A long lease of land (excluding a lease covered by the Rental Housing Act) is not valid against certain third parties
unless the lease is registered or, if not registered, the third party had knowledge of the lease.
Formalities in respect of Leases of Land Act 18 of 1969s 1
No lease in respect of a portion of agricultural land of which lease the period is 10 years or longer, or which is
renewable from time to time at the will of the lessee, may be entered unless the relevant minister has consented in
writing.
Subdivision of Agricultural Land Act 70 of 1970s 3(d)
Adlem and another v Arlow [2013] 1 All SA 1 (SCA), 2013 (3) SA 1 (SCA)
National Credit Act 34 of 2005: Certain leases relating to movables are governed by this Act.
Statutory rights: The Rental Housing Act contains provisions regulating the relationship between landlords and
tenants. These leases are deemed to contain several clauses that may not be amended or waived.
Rental Housing Act 50 of 1999ss 4 and 5
The Act also provides for provincial Rental Housing Tribunals. Any tenant or landlord or group of tenants or landlords
or interest group may lodge in the prescribed manner a complaint with the relevant Tribunal concerning an unfair
rental practice.
Rental Housing Act 50 of 1999s 13
Duties of the landlord: The landlord is obliged to give the tenant undisturbed possession and occupation of the
leased thing.
Where a lessee is deprived of or disturbed in the use or enjoyment of leased property, either in whole or in part,
the lessee may in appropriate circumstances be relieved of the obligation to pay rental, either in whole or in part.
This applies not only where the interference with the lessee's enjoyment of the leased property is the result of vis
major or casus fortuitus but also where it is due to the lessor's breach of contract, for example because the leased
property is not fit for the purpose for which it was leased or because the performance rendered by the lessor is
incomplete or partial.
Thompson v Scholtz [1998] 4 All SA 526 (A), 1999 (1) SA 232 (SCA) p. 247AD
Herr v Innomet (Pty) Ltd [2016] ZASCA 82
Tudor Hotel Brasserie and Bar (Pty) Ltd v Hencetrade 15 (Pty) Ltd [2017] ZASCA 111
Arrear rental: A lessor claiming arrear rental must allege
(a) the contract;
(b) fulfilment of the lessor's duties; and
(c) nonpayment of rent.
The plaintiff bears the onus of proof in relation to (a) and (b) but the lessee must allege and prove payment.
Ramnath v Bunsee [1961] 2 All SA 22 (N), 1961 (1) SA 394 (N)
[Page 238]
Termination of periodic lease: A periodic lease continues until it is terminated by notice given by either party. In the
absence of agreement to the contrary, notice must be given a reasonable time before the date on which a party
decides to terminate the lease.
Airports Company South Africa Soc Limited v Airports Bookshops (Pty) Limited t/a Exclusive Books [2016] 4 All SA
665 (SCA), 2017 (3) SA 128 (SCA)
Cancellation on breach: A lessor relying on cancellation of the contract must allege and prove
(a) breach of the contract;
(b) the cancellation right; and
(c) an effective cancellation.
See CONTRACT: CANCELLATION
As to breach, a lessor who relies on a late payment of rent, for instance, bears the onus of proving that payment
was late.
As to the cancellation right, there must either be a material breach, a cancellation clause (lex commissoria), or mora.
Spies v Lombard [1950] 3 All SA 355 (A), 1950 (3) SA 469 (A)
Goldberg v Buytendach Boerdery Beleggings (Edms) Bpk 1980 (4) SA 775 (A)
Ver Elst v Sabena Belgian World Airlines [1983] 2 All SA 51 (A), 1983 (3) SA 637 (A)
Distinct Investments (Pty) Ltd v Arhay CC; Bloom v Das Neves [1997] 2 All SA 513 (W)
The lessor must also allege and prove cancellation that is, the election to cancel and timely notification to the
tenant of cancellation.
Swart v Vosloo [1965] 1 All SA 264 (A), 1965 (1) SA 100 (A)
Brits v Coetzee [1967] 3 All SA 353 (T), 1967 (3) SA 570 (T)
Even though the contract has been cancelled, the lessor is entitled to claim the rent accrued before termination of
the contract.
Bester v Van Zyl [1972] 4 All SA 423 (T), 1972 (4) SA 580 (T)
Cancellation under the Rental Housing Act: When a tenant lodges a complaint about a termination based on a
provision in a lease, the relevant Tribunal has the power to rule that the landlord's action constitutes an unfair
practice even though termination may be permitted by the lease and the common law. Pending the determination, a
court may postpone eviction
Maphango and others v Aengus Lifestyle Properties (Pty) Ltd (Inner City Resources Centre as amicus curiae) 2012
(5) BCLR 449 (CC), 2012 (3) SA 531 (CC)
Huur gaat voor koop: A lessor who alienates leased premises as seller ex lege falls out of the picture and is
replaced as lessor by the purchaser. No new contract comes into existence; all that happens is that the purchaser
is substituted for the seller as lessor without a cession of rights or an assignment of obligations. On substitution,
the purchaser acquires all the rights that the seller had under the lease. Both purchaser and lessee are bound by
the lease.
Mignoel Properties (Pty) Ltd v Kneebone 1989 (4) SA 1042 (A)
GennaWae Properties (Pty) Ltd v MedioTronics (Natal) (Pty) Ltd 1995 (2) SA 926 (A) p. 939
This does not apply to collateral rights unconnected with the lease such as an option to purchase.
Spearhead Property Holdings Ltd v E & D Motors (Pty) Ltd [2009] 4 All SA 417 (SCA), 2010 (2) SA 1 (SCA)
Damages: A lessor who claims damages for the lessee's failure to return the property in the condition in which it
was delivered must allege and prove that the property was [Page 239] damaged during the currency of the lease.
The lessee may escape liability by alleging and proving that the damage was not caused by the lessee's fault.
Nel v Dobie [1966] 3 All SA 581 (N), 1966 (3) SA 352 (N)
Mutual Construction Co (Tvl) (Pty) Ltd v Komati Dam Joint Venture [2009] 1 All SA 458 (SCA), 2009 (1) SA 464
(SCA)
The same principle applies to a claim based on the lessee's failure to return the property.
Manley Van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai Safaris & Film Productions (Pty) Ltd
[1977] 1 All SA 120 (A), 1977 (2) SA 416 (A)
Basson and others v Hanna [2017] 1 All SA 669 (SCA), 2017 (3) SA 22 (SCA) para. 37
The lessor may also claim compensation for the loss of rental for the remaining period of the lease. The onus rests
on the lessor to show the amount that should be credited to the lessee in respect of the reversion to the lessor of
the right to sublet. If the premises are not lettable or if the only rental obtainable is not something the lessor could
reasonably be expected to accept, the lessee is not entitled to any credit.
Commercial Careers College (Pvt) Ltd v Forest View (Pvt) Ltd 1979 (2) SA 402 (RA)
Ejectment: See EVICTION; VINDICATION.
Holding over: The lessor is entitled to damages for holding over if the lessee failed to return the property let when
the contract terminated. Claims for holding over are founded on a breach of the contractual obligation (actual or
implied) to return vacant possession on termination of the lease. As the lease is at an end, the amount claimable is
not rent but damages equal to the market rental value of the premises. In the absence of evidence to the contrary,
it is fair to assume that market rental value is the same as the rental agreed on in the terminated lease.
Hyprop Investments Ltd and another v NCS Carriers and Forwarding CC and another [2013] 3 All SA 449 (GSJ),
2013 (4) SA 607 (GSJ)
The plaintiff must allege and prove the market rental value of the premises for the period of the unlawful occupation
and must show at least prima facie that the premises were lettable.
Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd 1985 (1) SA 248 (W)
Tacit relocation: Holding over may lead to the tacit conclusion of a new agreement between the parties on many of
the terms of the old agreement. This is known as tacit relocation of the agreement.
Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC [2002] 2 All SA 551 (SCA), 2002 (1) SA 822 (SCA)
Nedcor Bank Ltd v Withinshaw Properties (Pty) Ltd 2002 (6) SA 236 (C)
Section 5(5) of the Rental Housing Act provides that should the tenant remain in the dwelling with the express or
tacit consent of the landlord on the expiration of the lease, the parties are deemed to have entered into a tacit
periodic lease on the same terms and conditions as the expired lease, except that at least one month's written
notice must be given of the intention by either party to terminate the lease.
Renewal of lease: Where parties extend a lease, the extended lease generally also includes terms that are
collateral to the lease unless a different intention that appears.
Mokone v Tassos Properties CC and another 2017 (10) BCLR 1261 (CC), 2017 (5) SA 456 (CC) para. 26
Counterclaims: A lessor's claim for ejectment cannot be stayed by a counterclaim for, for example, compensation for
improvements, because the counterclaim has no bearing on the main claim.
Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk [ 1 9 8 4 ] 2 A l l S A 3 3 8 ( A ) , 1 9 8 4 ( 3 ) S A 7 6 0 ( N ) ,
1986 (1) SA 448 (A)
Palabora Mining Co Ltd v Coetzer [1993] 2 All SA 45 (T), 1993 (3) SA 306 (T)
[Page 240]
A claim for rental in respect of a lease which is current may be stayed by a counterclaim for damages whilst the
lessee is still in occupation of the property.
Ntshiqa v Andreas Supermarket (Pty) Ltd [1996] 3 All SA 154 (Tk), 1997 (1) SA 184 (Tk) and, on appeal to the full
court, 1997 (3) SA 60 (Tk)
Lessee's lien: Absent any governing provisions in a contract of lease, lessees, like bona fide possessors, have an
enrichment claim for the recovery of expenses that were necessary for the protection or preservation of the
property and for expenses incurred in effecting useful improvements to the property.
Lessees also have an enrichment lien that allows them to retain the property until their claims for compensation
have been satisfied.
The position in relation to rural tenements is different: under the Dutch placaeten, rural tenants have a right to
compensation for improvements but only if the improvements were made with the landlord's consent. At the end of
the lease period they first must vacate the property before they may institute their claim for compensation because
they do not have a lien.
Business Aviation Corp (Pty) Ltd v Rand Airport Holdings (Pty) Ltd [2007] 1 All SA 421 (SCA), 2006 (6) SA 605
(SCA)
De Aguiar v Real People Housing (Pty) Ltd [2010] 4 All SA 459 (SCA), 2011 (1) SA 16 (SCA)
Landlord's hypothec: The lessor has a hypothec over the goods of the tenant on the leased property (invecta et
illata) as security for outstanding rental. The lessor also has a hypothec over the goods of third parties on the
leased premises if
(a) the goods are on the leased premises with the knowledge and consent of the third party;
(b) the lessor was unaware of the fact that the goods are owned by the third party;
(c) the goods were brought onto the property for the use of the lessee; and
(d) the goods were intended to remain on the premises indefinitely.
Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA 495 (T)
PRECEDENTS
Claim for arrear rental and cancellation
1. On [date] at [place], the parties entered into a written agreement of lease in terms of which plaintiff let to defendant a
property [address] at a monthly rental of [amount]. A copy of the deed of lease is attached and marked 'A'.
2. On [date], defendant took occupation of the premises and has been in occupation since then.
3. Despite demand, defendant has failed to pay rental for the months of [specify] to [specify].
4. In terms of clause [number] of Annexure 'A', plaintiff is entitled, upon nonpayment of rental, to cancel the agreement
upon 14 days' notice.
5. Notice was given to defendant on [date], a copy of which is attached and marked 'B'.
6. Despite due notice, defendant has failed to rectify his breach of contract or to vacate the premises.
7. Plaintiff duly cancelled the agreement on [date] by [detail].
(a) Payment of [amount], being the arrear rental to date of cancellation.
(b) Ejectment of defendant from the premises.
[Page 241]
Claim for damages caused by lessee
1. On [date] at [place], the parties entered an oral agreement of lease in terms of which plaintiff let to defendant a property
[address] for a period of [state period] at a rental of [amount] per month.
2. It was an express, alternatively implied, term of the lease that, at its termination, defendant would return the house to
plaintiff in the same condition as it was upon delivery to defendant.
3. The lease terminated by effluxion of time on [date] and defendant vacated the premises on the same day.
4. Defendant, however, failed to return the house in the same condition as it was upon delivery, the house having been
damaged in the following respects: [detail].
5. Because of defendant's breach, plaintiff suffered damages of [amount], calculated as follows:
[detail].
Legal practitioners
Related subjects: AGENCY; CHOICE OF ACTION; FIDUCIARY RELATIONSHIPS
Legislation: The Legal Practice Act 28 of 2014 (which is not yet in operation) does not speak of attorneys and
advocates but of legal practitioners. The text below speaks of attorneys on the assumption that it deals with
general principles that are not much affected by the new Act.
General: The relationship between an attorney and client is based on a contract of mandate.
The contract imposes fiduciary obligations on the attorney.
Incorporated Law Society, Transvaal v Meyer [1981] 4 All SA 350 (T), 1981 (3) SA 962 (T) p. 970
Eksteen v Van Schalkwyk [1991] 3 All SA 291 (T), 1991 (2) SA 39 (T)
The meaning and scope of a fiduciary duty.
See FIDUCIARY RELATIONSHIPS
An attorney has a duty of care towards the client, the court, the opponent and third parties. This duty does not
readily admit of a clear definition.
Flionis v Bartlett [2006] 3 All SA 95 (SCA), 2006 (3) SA 575 (SCA)
Mandate: An instructing attorney may, by instructing a correspondent, incur liability to the correspondent for
payment of the latter's fees.
Truter, Crous, Wiggill & Vos v Udwin [1981] 3 All SA 46 (T), 1981 (4) SA 68 (T)
The fact that an attorney has been appointed in a deed of sale to attend to the transfer of the property does not
make the attorney a party to that agreement, nor can the attorney become a party to the agreement by accepting
the socalled benefit.
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A)
The scope of the mandate depends on its express, tacit or implied terms.
Joubert Scholtz Inc and others v Elandsfontein Beverage Marketing (Pty) Ltd [2012] 3 All SA 24 (SCA), [2012]
ZASCA 6
[Page 242]
A mandate to institute an action or to receive payment of the amount claimed does not necessarily imply a mandate
to settle the claim. An implied mandate to settle will not cover matter collateral or extraneous to the action.
Hlobo v Multilateral Motor Vehicle Accidents Fund [2001] 1 All SA 322 (A), 2001 (2) SA 59 (SCA)
MEC for Economic Affairs, Environment and Tourism v Kruizenga [2010] 4 All SA 23 (SCA), 2010 (4) SA 122 (SCA)
Botha v Road Accident Fund 2017 (2) SA 50 (SCA)
As a rule, the client is entitled to terminate the mandate at any stage. The mandate is also terminated by the death
or insolvency of the client.
Goodricke & Son v Auto Protection Insurance Co Ltd (in liquidation) [1968] 1 All SA 269 (A), 1968 (1) SA 717 (A)
Fees: Attorneys may not practise or act as practitioners for their own account or in partnership unless they are in
possession of a fidelity fund certificate. Attorneys who practise or act in contravention of this rule are not entitled to
any fee, reward or disbursement in respect of anything done by them while so practising or acting.
Attorneys Act 53 of 1979s 41
The right to practice has always depended on admission as either advocate or attorney. Under the Legal Practice
Act 28 of 2014 the same will apply (s 24 read with s 115).
An attorney who wishes to claim a fee from the client must allege and prove
(a) the contract (mandate);
(b) due and proper performance of the mandate;
(c) an agreement as to the amount payable or, in the absence of an express term, the reasonable remuneration
for the work done in terms of a tacit term.
Kruger v Resnik [1955] 4 All SA 37 (A), 1955 (3) SA 378 (A)
Mnweba v Maharaj [2001] 1 All SA 265 (C)
Taxation of an attorneyandclient bill is not a prerequisite for legal proceedings to recover fees.
C h a p m a n D y e r M i l e s & M o o r h e a d I n c v H i g h m a r k I n v e s t m e n t H o l d i n g s C C [ 1 9 9 7 ] 4 A l l S A 2 4 7 ( D ) ,
1998 (3) SA 608 (D)
Unless the fees have been agreed, the client may by way of a special plea (which is dilatory in nature) require
taxation. Only after taxation can the case proceed.
Benson v Walters [1984] 1 All SA 283 (A), 1984 (1) SA 73 (A)
Setoff is not possible unless the fees have been liquidated by means of an agreement or taxation.
Blakes Maphanga Incorporated v Outsurance Insurance Company Ltd [2010] 3 All SA 383 (SCA), 2010 (4) SA 232
(SCA)
The taxing master may not decide whether the client is liable to the attorney but may consider whether there is
evidence that the work was done and disallow fees claimed for work not done.
Berman & Fialkov v Lumb [2002] 4 All SA 432 (C), 2003 (2) SA 677 (C)
Mackay v Legal Aid Board 2003 (1) SA 271 (SE) p. 287
A client who has paid the attorney is not afterwards entitled to taxation of the bill.
Werksmans Incorporated v Praxley Corporate Solutions (Pty) Ltd [2015] 4 All SA 525 (GSJ)
Provisional sentence: An attorney is entitled to claim for a provisional sentence in respect of an attorneyand
(own)client bill of costs, provided that the attorney can rely on a written mandate signed by the client coupled with
a duly taxed attorneyandclient bill.
Gelb, Benjamin & Kaplan v Melzer [1987] 1 All SA 174 (T), 1987 (1) SA 917 (T)
[Page 243]
Pactum de quota litis and champerty: An agreement to finance litigation in exchange for part of the proceeds
(pactum de quota litis) is permitted unless it amounts to abuse of court process that is, unless it lacks bona fides.
Contingency fee agreements must comply with the Contingency Fees Act 66 of 1997 to be valid.
Price Waterhouse Coopers Inc v National Potato Coop Ltd [2004] 3 All SA 20 (SCA), 2004 (6) SA 66 (SCA)
Ronald Bobroff and Partners Inc v De La Guerre; South African Association of Personal Injury Lawyers v Minister
of Justice and Constitutional Development and another 2014 (4) BCLR 430 (CC), 2014 (3) SA 134 (CC)
Fluxmans Incorporated v Levenson [2017] 1 All SA 313 (SCA), 2017 (2) SA 520 (SCA)
Trust account: The matter will be regulated by chapter 7 of the Legal Practice Act 28 of 2014, once promulgated,
but will not differ in substance from the current position.
Section 78(1) of the Attorneys Act 53 of 1979 requires practising attorneys to keep a separate trust banking
account. Trust creditors have no control over the trust account. Ownership of the money in the account vests in the
bank, and it is the attorney who is entitled to operate on the account and make withdrawals from it. The only right
that trust creditors have is the right to payment by the attorney of whatever is due to them, and it is to that extent
that they are the attorney's creditors and not those of the bank.
In dealing with the trust account, an attorney exercises the right to dispose of the amounts standing to the credit
of that account as principal and not in a representative capacity. Consequently, an attorney who draws a cheque
against the trust account exercises the right to dispose of the amount standing to the credit of that account and
does so as principal and not in a representative capacity. This means that an attorney is personally liable for a
dishonoured cheque drawn on the trust account.
Wypkema v Lubbe [2007] 4 All SA 1224 (SCA), 2007 (5) SA 138 (SCA)
Capricorn Beach Home Owners Association v HES Potgieter t/a Nilands and another 2014 (1) SA 46 (SCA)
An attorney into whose trust account money intended for payment to a third party was paid or who receives
unidentified money, bears a legal duty to deal with the money without negligence.
Roestoff v Cliffe Dekker Hofmeyr Inc 2013 (1) SA 12 (GNP)
EDS South Africa (Pty) Ltd v Nationwide Airline (Pty) Ltd and others 2011 (5) SA 158 (SCA)
Fidelity Guarantee Fund: The Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund was created by
chapter II of the Attorneys Act 53 of 1979. The Fund will continue to exist as a juristic person under the name Legal
Practitioners' Fidelity Fund once chapter 6 of the Legal Practice Act 28 of 2014 comes into effect. This discussion
deals with the 1979 Act but will not differ much from the information of the 2014 Act.
The Fund's board of control may sue and be sued under the name of the Fund. The Fund is liable to reimburse a
person who can allege and prove
(a) that the plaintiff suffered pecuniary loss,
(b) by reason of a theft committed by a practising attorney, a candidate attorney or employee,
(c) of any money or other property entrusted by or on behalf of the plaintiff to the attorney or to a candidate
attorney or employee,
Attorneys Fidelity Fund Board of Control v Mettle Property Finance (Pty) Ltd [2011] ZASCA 133, 2012 (3) SA 611
(SCA)
[Page 244]
(d) in the course of the attorney's practice, while acting as executor or administrator in the estate of a deceased
person, as a trustee in an insolvent estate, in any other similar capacity or when the attorney or an employee
has acted as estate agent.
Attorneys Act 53 of 1979s 26(a)
Industrial & Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control [1996] 4 All SA 295 (A) p.
297, 1997 (1) SA 136 (SCA)
Devland Cash and Carry (Pty) Limited v Attorneys Fidelity Fund [2017] 2 All SA 825 (WCC)
The Fund is also liable for pecuniary loss suffered because of theft of money or other property by estate agents in
the employ of attorneys and by attorneys, if the money or property was entrusted to them under the provisions of
the Estate Agency Affairs Act 112 of 1976.
Attorneys Act 53 of 1979s 26(b)
See AGENCY: ESTATE AGENTS
A fiduciary relationship between the plaintiff and the attorney is not required.
Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund [1981] 4
All SA 144 (W), 1981 (3) SA 539 (W)
See the facts in Flionis v Bartlett [2006] 3 All SA 95 (SCA), 2006 (3) SA 575 (SCA)
An action cannot be instituted against the Fund unless the claimant has exhausted all available legal remedies
against the practitioner. The board may, however, waive this requirement.
Peffers NO v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control 1965 (2) SA 53 (C)
Attorneys Act 53 of 1979s 49(1)
No one can without prior written notice claim against the Fund more than three months after becoming aware of the
theft or more than three months after he or she, by the exercise of reasonable care, should have become aware of
the theft. A claimant who fails to furnish the board within the prescribed time with such proof as the board may
reasonably require also loses the right to claim from the board.
SVV Construction (Pty) Ltd v Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund [1993] 3 All SA 8 (C),
1993 (2) SA 577 (C) pp. 584585
The claim for reimbursement is limited to the amount handed over, but the board may in its discretion pay interest.
The board is nevertheless obliged to pay mora interest if it withheld payment incorrectly.
Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund v Tony Allem (Pty) Ltd 1990 (2) SA 665 (A)
Attorneys Act 53 of 1979ss 45(2) and 47(2)
Action must be instituted within one year of the date of the notification from the board of the rejection of the claim.
The liability of the Fund is limited in several ways. For example, the Fund is not liable for losses caused by theft
committed by a practitioner in the employ of any person who is not a practitioner or for losses suffered by a spouse
of a practitioner because of any theft committed by that practitioner. Importantly, the Fund is not liable for any loss
suffered by any person because of theft of money which a practitioner has been instructed to invest on behalf of
such person.
King and others v Attorneys Fidelity Fund Board of Control [2006] 1 All SA 458 (SCA), 2010 (4) SA 185 (SCA)
Negligence: The liability of an attorney to a client for damages resulting from the attorney's negligence is based on
a breach of the contract between the parties. It is a term of the mandate that the attorney will exercise the skill,
adequate knowledge and [Page 245] diligence expected of an average practising attorney. An attorney may be
held liable for negligence even when the attorney committed an error of judgement on matters of discretion by
failing to exercise the required skill, knowledge and diligence.
Mouton v Mynwerkersunie [1977] 1 All SA 242 (A), 1977 (1) SA 119 (A)
Jowell v BramwellJones [2000] 2 All SA 161 (A), 2000 (3) SA 274 (SCA)
Steyn NO v Ronald Bobroff & Partners [2013] 1 All SA 471 (SCA), 2013 (2) SA 311 (SCA)
Drake Flemmer and Orsmond Inc and another v Gajjar NO [2018] 1 All SA 344 (SCA), 2018 (3) SA 353 (SCA)
The client must allege and prove
(a) the mandate;
(b) breach of the mandate;
(c) negligence in the sense described above;
(d) damages, which may require proof of the likelihood of success in the aborted proceedings; and
Dhooma v Mehta 1957 (1) SA 676 (D)
(e) damages were within the contemplation of the parties when the contract was concluded.
Bruce NO v Berman [1963] 3 All SA 181 (T), 1963 (3) SA 21 (T)
Extension of liability: A private company may conduct an attorney's practice if the memorandum of association
provides that all present and past directors will be liable jointly and severally with the company for the company's
debts and liabilities contracted during their periods of office.
Maritz v Maritz & Pieterse Inc (in liq) 2006 (3) SA 481 (SCA)
This provision does not apply to delictual debts.
Cf. Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A), 1997 (1) SA 710 (A)
Third parties: An attorney may be liable in damages to a third party for a negligent misrepresentation made to that
party. The third party must allege and prove
(a) a duty of care owed by the attorney to the claimant;
(b) a misstatement or misrepresentation;
(c) a negligent breach of the duty;
(d) damages.
SA Bantoetrust v Ross & Jacobz [1977] 2 All SA 123 (T), 1977 (3) SA 184 (T)
Road Accident Fund v Shabangu [2004] 2 All SA 356 (SCA), 2005 (1) SA 265 (SCA)
The attorney may also be otherwise liable in delict. Such cases, which are based on a negligent breach of a legal
duty, include claims by disappointed heirs or by persons who have deposited money into an attorney's trust
account without a contractual arrangement.
BOE Bank Ltd v Ries [2002] 2 All SA 247 (A), 2002 (2) SA 39 (SCA)
See MISREPRESENTATION: NEGLIGENT MISREPRESENTATION
PRECEDENTS
Claim for agreed fees
1. Plaintiff is an attorney, duly admitted and practising at [place].
2. On [date] at [place], the defendant engaged the services of the plaintiff to act as his attorney in an action instituted
against him by [name] and in [court].
[Page 246]
3. Plaintiff duly acted as the defendant's attorney in the action, which was concluded on [date].
4. It was expressly agreed between the parties that, upon the conclusion of the action, the defendant would pay to the
plaintiff [amount] as fees for services rendered and would, in addition, recompense the plaintiff for all disbursements
necessarily made by plaintiff in acting for defendant as aforesaid.
5. Plaintiff made necessary disbursements of [amount] [detail].
6. Despite demand, the defendant has failed to pay the plaintiff.
Claim for taxed fees
[Alternative to paragraphs 4 and 5 (above)]:
Thereafter, and after due notice of taxation was given to the defendant, the registrar of the court [or the clerk of the court, as
the case may be] duly taxed a bill of costs in respect of the plaintiff's services on the defendant's behalf and taxed the plaintiff's
fees and disbursements in a sum of [amount]. A copy of the taxed bill is annexed.
Claim against correspondent
1. Plaintiff is an attorney.
2. Defendant is an attorney.
3. On [date], the defendant orally instructed the plaintiff to act as his correspondent in an action between [name] and
[name] to be instituted in [court].
4. Plaintiff accepted the instruction and performed the agreed professional services and made certain necessary
disbursements on the defendant's behalf.
5. Thereafter, the plaintiff's mandate was terminated by the defendant.
6. It was an implied term of the instructions that the plaintiff would be entitled to be paid a reasonable fee for his
professional services and recompensed for all necessary disbursements made on his behalf.
7. Plaintiff's reasonable fee for the professional services rendered is [amount] as detailed in Annexure 'A'.
8. In the performance of his mandate, plaintiff made the following necessary disbursements: [detail].
Claim for damages against attorney
1. Defendant is a practising attorney.
2. On [date], defendant accepted instructions from plaintiff to perform, inter alia, the following professional services as the
plaintiff's attorney:
(a) to investigate whether [ABC Company] was financially sound enough to sign as a surety for the loan of [amount]
to be made by the plaintiff to [X];
(b) to determine whether [ABC Company] was, in terms of its statutes, entitled to sign as a surety for such a loan;
(c) to advise the plaintiff as to the legal risks involved in accepting such a surety.
3. It was an implied term of the agreement between the parties that the defendant would perform the services in a proper
and professional manner and without negligence.
4. In breach of the agreement, the defendant was negligent in the performance of his duties in one or more of the following
respects:
(a) he failed to ascertain that [ABC Company] was not financially able to perform in terms of such a security;
(b) he failed to ascertain that the statutes of [ABC Company] prohibited the entering into of such a suretyship;
(c) he advised the plaintiff that no legal risks flowed from the acceptance of the suretyship of the [ABC Company].
5. By the exercise of such care as could reasonably be expected of an average attorney, he would have ascertained the
true facts.
[Page 247]
6. A reasonable attorney would have advised his client not to enter into the loan on the strength of a suretyship obtained
from [ABC Company].
7. It was in the contemplation of the parties when the agreement was reached that the plaintiff would suffer damages in the
event of being wrongly advised by the defendant.
8. Acting on the defendant's advice, the plaintiff lent and advanced [amount] to [X].
9. Before [X] could repay the loan, [X] was sequestrated and no dividends were paid to the plaintiff out of the insolvent
estate.
10. [ABC Company] was never in a financial position to act as surety, nor was it authorised by its statutes to enter into such
suretyship, and the plaintiff is, therefore, unable to rely on the suretyship and to obtain any payment from the [ABC
Company].
11. Because of the defendant's incorrect and negligent advice, the plaintiff suffered damages of [amount] [detail].
Claim against fidelity fund
1. Defendant is the Attorneys, Notaries and Conveyancers Fidelity Guarantee Fund, established in terms of section 25 of Act
53 of 1979.
2. On or about [date], the plaintiff entrusted to [A], an attorney duly admitted and practising as such, in his capacity as
attorney, a sum of [amount] to be held in trust by him, pending registration of transfer of a certain property [description]
into the name of [name].
3. During or about [state period], the said [A] stole the money.
4. Because of the theft, the plaintiff suffered pecuniary loss in the amount of [Rx].
5. Plaintiff attempted to recover the amount from [A] and exhausted all his remedies but was unable to recover any of the
amounts from [A].
6. Despite demand and the giving of the requisite notice in terms of Act 53 of 1979, the defendant failed to pay the plaintiff
as it was obliged to do.
Special plea of nontaxation
1. Defendant admits that the plaintiff performed professional services as alleged.
2. Defendant denies that [Rx] claimed by the plaintiff constitutes a fair and reasonable fee for the services rendered, or that
[amount] allegedly disbursed by the plaintiff constitutes reasonable disbursements in respect of the services rendered.
3. Plaintiff has not presented a bill for taxation.
The defendant prays that plaintiff's action be stayed, pending the taxation of his bill of costs.
Legal standing (locus standi)
Related subjects: CITATION OF PARTIES; VOLUNTARY ASSOCIATIONS
General: The question of locus standi is in a sense procedural, but it is also a matter of substance. It concerns the
sufficiency and directness of a person's interest in the litigation to be accepted as a litigating party. It is also related
to the capacity of a person to conclude a jural act. Sufficiency of interest depends on the facts of each case and
there are no fixed rules.
Jacobs v Waks 1992 (1) SA 521 (A) p. 534D
The general rule is that it is for the party instituting proceedings to allege and prove its locus standi, and the onus of
establishing it, rests on that party. It must accordingly appear ex facie the founding papers that the parties have
the necessary legal standing (locus standi in iudicio).
Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) p. 575
Kommissaris van Binnelandse Inkomste v Van der Heever [1999] 3 All SA 115 (A), 1999 (3) SA 1051 (SCA) para.
10
[Page 248]
The issue is divorced from the substance of the case and must be determined before the merits are considered.
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and others 2013 (3) BCLR 251 (CC) para. 32
Constitutional owninterest standing is broader than the traditional commonlaw standing, but not limitless, and a
litigant must nevertheless show that his or her rights or interests are directly affected by the challenged law or
conduct.
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and others 2013 (3) BCLR 251 (CC) para. 41
Trusts: A trust is not a legal persona but a legal institution sui generis. Its assets and liabilities vest in the trustees.
This means that a trust has no legal standing and that the trustees must sue and be sued in their capacities as
trustees.
Standard Bank of South Africa Limited v Swanepoel NO 2015 (5) SA 77 (SCA)
Minors: Every child has the right to bring, and to be assisted in bringing, a matter to court, provided that the matter
falls within the court's jurisdiction.
Children's Act 38 of 2005s 14
FB and another v MB 2012 (2) SA 394 (GSJ)
A minor (someone below the age of 18) may sue or be sued
(a) in the name of a guardian representing the minor, in which case the fact of the representative capacity must
be alleged;
(b) in the minor's own name, assisted by the guardian;
(c) i n t h e a b s e n c e o f a g u a r d i a n , i n t h e n a m e o f a d u l y a p p o i n t e d curator ad litem, in which event the
representative capacity must be stated.
Children's Act 38 of 2005s 17
A parent may not litigate on behalf of a child who is no longer a minor.
Madalane v Van Wyk [2016] ZASCA 25
For a precedent, see MEDICAL AND DENTAL PRACTITIONERS
Spouses married in community of property: A spouse married in community of property may without the written
consent of the other spouse institute legal proceedings or defend legal proceedings
(a) between the spouses;
(b) in respect of the spouse's separate property;
(c) for the recovery of damages, other than damages for patrimonial loss, resulting from a delict against the
spouse;
(d) in respect of a matter relating to the spouse's profession, trade or business.
Amalgamated Banks of South Africa Beperk v De Goede [1997] 2 All SA 427 (A), 1997 (4) SA 66 (SCA)
When a debt is recoverable from a joint estate, the spouse who incurred the debt, or both spouses jointly, may be
sued. When a debt has been incurred for necessaries for the joint household, the spouses may be sued jointly and
severally.
Matrimonial Property Act 88 of 1984s 17(5)
Maharaj v Sanlam Life Insurance Ltd and others [2011] 2 All SA 571 (KZD)
[Page 249]
Lien
General: A lien does not ground a cause of action.
Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons [1970] 3 All SA 332 (A), 1970 (3) SA 264 (A)
It is security for a debt and does not afford a right to execute, which distinguishes it from a pledge.
Delpech v Holloway and others 2011 (2) SA 194 (GSJ) para. 7
A lien does not entitle the possessor to use the object, but only hold it as security.
Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider Health & Fitness Centre [1996] 4 All SA 29 (C),
1997 (1) SA 646 (C)
A lien cannot be relied on in conflict with an agreement to vacate.
De Aguiar v Real People Housing (Pty) Ltd [2010] 4 All SA 459 (SCA), 2011 (1) SA 16 (SCA) para. 14
Salvage and improvement liens: These liens provide dilatory defences against vindication and possessory claims.
If successfully raised, the owner may not recover possession of the property from a person who is lawfully in
possession and has an underlying valid enrichment claim, unless and until the possessor has been compensated.
Singh v Santam Insurance Company Limited [1997] 1 All SA 525 (A), 1997 (1) SA 291 (SCA)
To rely on a lien, the defendant must allege and prove
(a) lawful possession of the object;
Roux v Van Rensburg [1996] 3 All SA 499 (A), 1996 (4) SA 271 (SCA)
(b) that the expenses were necessary for the salvation of the thing or useful for its improvement;
(c) the actual expenses and the extent of the enrichment of the plaintiff (both must be given because the lien
covers only the lesser of the two amounts); and
Rhoode v De Kock and another [2013] 2 All SA 389 (SCA), 2013 (3) SA 123 (SCA)
(d) that there was no contractual arrangement between the parties (or a third person) in respect of the
expenses.
(SCA)
Debtor and creditor liens: This lien also provides a dilatory defence but depends on a debtorcreditor relationship
between the parties. It differs substantially from salvage and improvement liens.
(a) It can only be enforced against a party to the contract.
Wynland Construction (Pty) Ltd v AshleySmith [1985] 2 All SA 368 (A), 1985 (3) SA 798 (A)
(b) It covers all the improvements effected in terms of the agreement, even if they are of a luxurious nature.
(c) Its only purpose is to enforce payment of the contract price. Enrichment of the plaintiff is irrelevant.
Van Niekerk v Van den Berg [1965] 2 All SA 367 (SCA), 1965 (2) SA 525 (A)
[Page 250]
A typical example of a debtor and creditor lien is a builder's lien or the lien an attorney has over a client's
documents.
Benson v Walters [1984] 1 All SA 283 (A), 1984 (1) SA 73 (A) p. 89
Botha NO v EM Mchunu & Co [1992] 2 All SA 427 (N), 1992 (4) SA 740 (N)
Tenants: See LEASE.
Alternatives: Reliance may be placed on the two liens in the alternative but in such an event the primary case must
be the debtor and creditor lien.
D Glaser & Sons (Pty) Ltd v The Master NO [1979] 2 All SA 247 (C), 1979 (4) SA 780 (C)
Discretion: A court has a discretion to order the release of the goods against provision of security for the
defendant's counterclaim.
Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd [1968] 2 All SA 153 (A), 1968 (1) SA 571 (A)
Pheiffer v Van Wyk 2015 (5) SA 464 (SCA)
Possession: Loss of possession destroys a lien, and the lien cannot be revived by recovery of possession.
Rand Bank Bpk v Regering van die RSA [1975] 4 All SA 11 (A), 1975 (3) SA 726 (A)
Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk [1979] 4 All SA 782 (T), 1979 (4) SA 467 (T)
PRECEDENT
Plea alleging debtor and creditor lien
1. Defendant pleads that, on [date], plaintiff delivered the motor vehicle to defendant's service station for the following
repairs: [detail].
2. Defendant undertook orally to repair the motor car.
3. It was a[n implied] term of the agreement that defendant would be entitled, in respect of the services, to reasonable
remuneration and that he would replace any defective parts at defendant's ruling and reasonable prices.
4. Defendant effected the repairs and replaced defective parts. The details and costs thereof are set out in the annexures
hereto.
5. Despite request for payment of [amount], plaintiff has failed to pay it.
6. Defendant is accordingly entitled to retain possession of the said motor car until payment of [amount].
The defendant prays that plaintiff's claim for delivery of the motor car be stayed pending payment by plaintiff of [amount], and
costs of suit.
Lis alibi pendens
Related subject: RES IUDICATA
General: The pleas of res iudicata and lis pendens are related and the elements are the same.
Caesarstone SdotYam Ltd v The World of Marble and Granite 2000 CC and others [2013] 4 All SA 509 (SCA),
2013 (6) SA 499 (SCA) para. 18
Procedure: The defence should, from a pleading point, be raised by way of a special plea. While the defendant may
plead to the merits, it appears senseless to do so pending the determination of this dilatory special plea.
See PART A s.v. IV. SPECIAL PLEAS
Courts may not raise the issue of lis pendens unless pleaded by the defendant.
Kerbel v Kerbel [1987] 3 All SA 33 (W), 1987 (1) SA 562 (W)
[Page 251]
A defendant is nevertheless entitled to apply for a stay of proceedings by way of an interlocutory application.
Requisites: The party wishing to raise a lis pendens bears the onus of alleging and proving the following:
George v Minister of Environmental Affairs & Tourism 2005 (6) SA 297 (EqC)
(a) pending litigation,
RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk 1981 (2) SA 141 (O)
Van As v Appollus [1993] 3 All SA 402 (C), 1993 (1) SA 606 (C)
(b) between the same parties or their privies,
2013 (6) SA 499 (SCA)
(c) based on the same cause of action (the requirement of the same cause of action is satisfied if the other
proceedings involve determination of a question that is necessary for the determination of the present case
and substantially determinative of its outcome),
Nestlé (SA) (Pty) Ltd v Mars Inc [2001] 4 All SA 315 (A), 2001 (4) SA 542 (SCA)
(d) in respect of the same subject matter. (This does not mean that the form of relief claimed must be identical.)
Williams v Shub [1976] 4 All SA 449 (C), 1976 (4) SA 567 (C)
Whether the subject matter is the same is determined by the issues as defined in the pleadings. The fact that
the same evidence may be led in both cases is beside the point.
Marks & Kantor v Van Diggelen 1935 TPD 29
Onus: The onus of proving the requisites rests on the party raising the defence.
Dreyer v Tuckers Land and Development Corporation (Pty) Ltd 1981 (1) SA 1219 (T) p. 1231
Sikatele v Sikatele [1996] 1 All SA 445 (Tk)
Once they have been established, a factual presumption arises that the second proceedings are prima facie
vexatious. The party who instituted the second proceedings must satisfy the court that, despite all the elements
being present, the balance of convenience and equity require the case to proceed.
A court has an overriding discretion to order a stay even if all the elements are not present.
2013 (6) SA 499 (SCA)
PRECEDENTS
Special plea of lis alibi pendens
1. On [date], plaintiff instituted proceedings in this honourable court against defendant for an order ejecting defendant from
[describe the property].
2. Those proceedings are pending.
3. In the present action, plaintiff again claims for the ejectment of defendant from the same property.
4. There is, accordingly, litigation pending between the parties on the same cause of action and in respect of the same
subject matter.
The defendant prays that plaintiff's present action be stayed pending the final determination of the first action with costs.
Replication to a special plea of lis alibi pendens
1. Plaintiff admits the prior proceedings for ejectment as alleged.
2. Plaintiff denies that the pending litigation is based on the same cause of action or is in respect of the same subject
matter.
[Page 252]
3. Plaintiff alleges that the cause of action for the ejectment in the pending proceedings is the cancellation of a lease
between the parties due to defendant's failure to keep the leased property in a proper state of repair.
4. Plaintiff furthermore alleges that the cause of action in these proceedings is plaintiff's ownership of the property and
defendant's occupation and, in the alternative, cancellation of the lease between the parties by virtue of defendant's
subsequent failure to pay rentals on due date.
5. Plaintiff accordingly pleads that the instant proceedings are not vexatious and that, since the issues to be decided are
simple, the balance of convenience and equity are in favour of allowing the case to proceed.
The plaintiff prays that the special plea be dismissed with costs.
Loan for consumption
Related subjects: BANKS; CONSUMER PROTECTION; CREDIT AGREEMENTS; INTEREST
Cause of action: In a claim based on a loan for consumption (usually money), the plaintiff must allege and prove
(a) the loan agreement;
(b) the money was advanced under the agreement; and
(c) the loan is repayable.
Time for repayment: If no time for repayment was fixed, the loan is repayable on demand and it is not necessary
to allege that a reasonable time has elapsed.
Damont NO v Van Zyl [1962] 3 All SA 429 (C), 1962 (4) SA 47 (C)
Interaccess (Pty) Ltd v Van Dorsten [1999] 2 All SA 561 (C)
Unless the lapse of a reasonable time is part of the plaintiff's cause of action, the onus is on the debtor who
considers the claim for repayment premature to raise the question and to advance reasons why the debtor is
entitled to further time to pay.
Fluxman v Brittain 1941 AD 273
Credit Corporation of SA Ltd v Roy [1966] 1 All SA 114 (D), 1966 (1) SA 12 (D)
Cf. Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A), 1997 (2) SA 337 (SCA) pp. 352353
Demand: It is not necessary to allege that a prior demand was made unless under the loan agreement a demand
was a requirement for repayment.
Ridley v Marais 1939 AD 5
National Credit Act 34 of 2005: Most loan agreements are covered by this Act. Regard must accordingly be had to
its provisions.
Interest: See CONSUMER PROTECTION; CREDIT AGREEMENTS; INTEREST.
PRECEDENTS
Claim for repayment
1. On [date] at [place], plaintiff lent and advanced to defendant [amount] in terms of an oral agreement between them.
2. The sum was, in terms of the agreement, repayable on [date], together with interest [percentage] to date of repayment.
3. Defendant failed to repay the plaintiff on due date and has failed, since that date, to repay the money.
[Page 253]
Claim for the repayment of a loan: no time stipulated for repayment
1. On [date] at [place], plaintiff lent and advanced to defendant [amount].
2. No time for repayment had been agreed.
3. On [date], plaintiff demanded repayment of [amount] but, despite the lapse of a reasonable time, defendant has failed to
repay it.
Claim on acknowledgement of debt
1. On [date], defendant acknowledged in writing his indebtedness to plaintiff for [amount] together with interest at
[percentage] from [date]. A copy of the acknowledgement of debt is annexed.
2. The capital amount and interest became repayable on [date] but defendant has, despite demand, failed to pay.
Plea of non numeratae pecuniae
1. Defendant admits that he signed the acknowledgement of debt.
2. Defendant admits that plaintiff agreed to lend to defendant [amount] on the terms alleged.
3. Defendant denies that he or she at any time received any money from plaintiff pursuant to the agreement and states that
the acknowledgement of debt was signed by him or her in anticipation of payment of the money to be lent.
Loan for use (commodatum)
The rights and duties of lenders and borrowers of things for use are very similar to those of depositors and
depositaries respectively. Therefore, the notes under DEPOSIT apply.
Loans for use differ from loans for consumption in that in the latter instance the thing lent need not be returned;
only its kind must be returned.
Saridakis t/a Auto Nest v Lamont [1993] 1 All SA 431 (C), 1993 (2) SA 164 (C)
PRECEDENT
Claim for loss of things lent
1. On [date] at [place], plaintiff lent and delivered to defendant his [item] for use for a period of [number] days from that
date.
2. Despite demand, defendant has failed to return [item] to plaintiff.
3. The market value is [amount].
(a) Return of the said [item].
(b) Alternatively, in the event of defendant's failing to return [item] within a time to be fixed by this honourable court,
payment of its value, namely [amount].
Loss of support
Related subjects: DAMAGES: DELICTUAL DAMAGES; DELICT: LEX AQUILIA; ROAD ACCIDENTS
Leading case:
Coughlan NO v Road Accident Fund 2015 (6) BCLR 676 (CC), 2015 (4) SA 1 (CC)
[Page 254]
Elements: A person wishing to claim damages for loss of support due to the death or injury of another must, in
addition to the other ordinary elements of delict, allege and prove
(a) that the dead or injured person had a legal duty to support the plaintiff because of the requisite degree of
consanguinity, a court order, a contract, or statute (such as that applicable in respect of divorced spouses) or
in terms of customary law;
Santam Bpk v Henery [1999] 2 All SA 312 (A), 1999 (3) SA 421 (SCA)
Amod (born Peer) v Multilateral Motor Vehicle [1999] 4 All SA 421 (A), 1999 (4) SA 1319 (A)
Paixão and another v Road Accident Fund [2012] 4 All SA 262 (SCA), 2012 (6) SA 377 (SCA)
Road Accident Fund v Mohohlo 2018 (2) SA 65 (SCA)
(b) the defendant's liability for the loss, usually negligence;
Brooks v Min of Safety & Security [2009] 2 All SA 17 (SCA), 2009 (2) SA 94 (SCA)
Septoo obo. Septoo and another v Road Accident Fund [2017] ZASCA 164 para. 14
Compensation for loss of support can only arise from the unlawful killing of or injury to the breadwinner by the
defendant. Therefore, if the breadwinner died because of his or her own negligence, the dependants do not
have a claim.
(c) the loss suffered.
Santam Insurance Co Ltd v Fourie [1997] 1 All SA 590 (A), 1997 (1) SA 611 (SCA)
Reay and another v Netcare (Pty) Ltd t/a Umhlanga Hospital and others [2016] 4 All SA 195 (KZP)
Esterhuizen and others v Road Accident Fund [2016] ZAGPPHC 1221, 2017 (4) SA 461 (GP)
Pecuniary loss: Loss of support is confined to pecuniary loss.
Dependants cannot claim compensation in the form of a solatium for the grief, stress and hurt caused by the death
of the breadwinner, because these aspects are not capable of being calculated in money.
Dependants may not profit from the wrongdoing of the defendant. Accordingly, the actual pecuniary loss to which
the dependants are entitled can only be ascertained by balancing losses and gains that is, considering not only to
the losses suffered but also to the pecuniary advantage that may come to the dependants by reason of the
breadwinner's death. This requires account to be taken of any income available to the dependants by way of an
inheritance from the erstwhile breadwinner.
But see Coughlan NO v Road Accident Fund 2015 (6) BCLR 676 (CC), 2015 (4) SA 1 (CC)
If the nett assets in the estate of a deceased parent together with the income derived from those assets are
sufficient to support the dependants in full, no claim for loss of support because of the breadwinner's death can be
sustained.
When damages are assessed for loss of support because of a person's death, insurance money, pension or benefit
which has been, will or may be paid because of the death may not be taken into account.
Assessment of Damages Act 9 of 1969
MacDonald and others v Road Accident Fund [2012] ZASCA 69, [2012] 4 All SA 15 (SCA)
Indigence: Depending on the nature of the duty (i.e. childtoparent) liability may arise only if
(a) the plaintiff is indigent although this requirement appears to be culture specific;
Seleka v Road Accident Fund 2016 (4) SA 445 (GP) (indigenous law)
Osman v Road Accident Fund 2015 (6) SA 74 (GP) (Muslim law)
(b) the deceased maintained the plaintiff; and
[Page 255]
(c) the deceased would have had a legal duty to continue with maintenance.
Van Vuuren v Sam [1972] 2 All SA 436 (A), 1972 (2) SA 633 (A)
Leask and another v Road Accident Fund 2015 (5) SA 20 (GJ)
Fortuin v Road Accident Fund 2015 (5) SA 532 (GP) (foster child)
PRECEDENT
Claim by parent for loss
1. Plaintiff, born on [date], is the mother of the deceased, [name], born on [date].
2. Defendant wrongfully and negligently killed [the deceased] on [date] at [place] by shooting him.
3. During his lifetime, the deceased, who had a legal duty, contributed to plaintiff's support [detail].
4. Plaintiff was, and still is, indigent and unable to work because of her blindness and has no other source of support and
maintenance.
5. The deceased, had he not been killed, would have been legally obliged to continue to support plaintiff and he would have
been able to do so in [amount] per month.
6. Due to defendant's wrongful act, plaintiff lost her right of support from the deceased and suffered damages [amount]
[detail].
Malicious and wrongful legal proceedings
Related subjects: ARREST AND DETENTION; DELICT: LEX AQUILIA; INIURIA; STATE LIABILITY
General: There are material differences between malicious proceedings and wrongful proceedings, which are
explained below.
Minister of Law and Order v Thusi [1994] 1 All SA 242 (N), 1994 (2) SA 224 (N)
Cause of action: The cause of action for a claim for damages caused by malicious criminal or civil proceedings is the
actio iniuriarum. The plaintiff bears the onus in respect of all the elements of iniuria
Beckenstrater v Rottcher & Theunissen [1955] 1 All SA 146 (A), 1955 (1) SA 129 (A) pp. 135136
Van der Merwe v Strydom [1967] 3 All SA 281 (A), 1967 (3) SA 460 (A) p. 467
Rudolph and others v Minister of Safety and Security [2009] 3 All SA 323 (SCA), 2009 (5) SA 94 (SCA)
Elements: To succeed with a claim for malicious prosecution, a claimant must allege and prove that
(a) the defendants set the law in motion they instigated or instituted the proceedings;
(b) the defendants acted without reasonable and probable cause;
(c) the defendants acted with 'malice' (or animo iniuriandi) that is, with the intention to injure the plaintiff; and
(d) the prosecution failed.
Minister of Justice and Constitutional Development and others v Moleko [ 2 0 0 8 ] 3 A l l S A 4 7 ( S C A ) ,
2009 (2) SACR 585 (SCA)
Minister of Safety and Security NO v Schubach [2014] ZASCA 216
[Page 256]
Setting the law in motion: The plaintiff must allege and prove that the defendant instituted or instigated the
proceedings. It is not enough for the defendant merely to have provided the police with information or facts which
led to legal proceedings.
Lederman v Moharal Investments (Pty) Ltd [1969] 1 All SA 297 (A), 1969 (1) SA 190 (A) pp. 196197
On the other hand, an informer who makes a statement to the police, which is wilfully false in a material respect,
'instigates' a prosecution.
Prinsloo v Newman [1975] 2 All SA 89 (A), 1975 (1) SA 481 (A) p. 492
Lack of reasonable and probable cause: The plaintiff must allege and prove that the defendant instituted the
proceedings without reasonable and probable cause that is, without an honest belief based on reasonable
grounds that the institution of proceedings is justified. The concept involves both a subjective and an objective
element.
Prinsloo v Newman [1975] 2 All SA 89 (A), 1975 (1) SA 481 (A)
Malice and animus iniuriandi : Malice is not a separate element of the delict and means the intention to injure or

animus iniuriandi.
Termination of proceedings: Because this cause of action cannot be used to prejudge the reasonableness of the
proceedings that form the subject of the complaint, the plaintiff must allege and prove that the proceedings were
terminated in the plaintiff's favour.
Thompson v Minister of Police [1971] 1 All SA 534 (E), 1971 (1) SA 371 (E) pp. 373375
Els v Minister of Law & Order [1993] 3 All SA 467 (C), 1993 (1) SA 12 (C)
Vicarious liability: See VICARIOUS LIABILITY.
Damages: Courts take a serious view of malicious proceedings and may award substantial damages for contumelia.
Minister of Safety and Security NO v Schubach [2014] ZASCA 216
The plaintiff may claim special damages such as legal costs expended in defending the prosecution or other
proceedings.
Law v Kin [1966] 3 All SA 84 (W), 1966 (3) SA 480 (W)
Full particulars of special damages must be given, but not of general damages.
Wrongful legal proceedings: A claim for malicious legal proceedings differs materially from one based on wrongful
legal proceedings. Examples of wrongful legal proceedings include attachment or execution of property and arrest
without a (valid) writ or warrant. These cases have two special features: first, the defendant must allege and prove
the lawfulness of the execution or arrest and, secondly, absence of animus iniuriandi is not a defence.
Cohen Lazar & Co v Gibbs 1922 TPD 146
Ramsay v Minister van Polisie [1981] 4 All SA 692 (A), 1981 (4) SA 802 (A)
Tödt v Ipser [1993] 2 All SA 296 (A), 1993 (3) SA 577 (A)
Coetzee (Sheriff, Pretoria East) v Meevis [2001] 1 All SA 10 (A), 2001 (3) SA 454 (SCA)
Campbell v Botha 2009 (1) SA 238 (SCA)
See ARREST AND DETENTION
Malicious insolvency or liquidation proceedings: If a court discharging a provisional order of sequestration is
satisfied that the petition for sequestration was vexatious or malicious, it may allow the debtor forthwith to prove
any damages sustained by reason of the provisional order, and award compensation as it deems fit.
[Page 257]
PRECEDENT
Claim for damages
1. On [date] at [place], defendant wrongfully and maliciously set the law in motion by laying a false charge of theft against
plaintiff with the police at [place] by giving them the following false information, namely: [detail].
2. When laying this charge and giving this disinformation, defendant had no reasonable or probable cause for so doing, nor
did he have any reasonable belief in the truth of the information.
3. Because of defendant's conduct, plaintiff was arrested and held in custody for [number] days until he was prosecuted for
theft in the magistrates' court at [place] and acquitted on [date].
4. Plaintiff suffered damages because of defendant's conduct of [amount], being the costs reasonably expended by plaintiff
in defending himself against the charge, and [amount] for contumelia, deprivation of freedom, and discomfort.
Mandament van spolie
See SPOLIATION
Medical and dental practitioners
The contract: The legal relationship between a medical practitioner and a patient is usually created by contract. The
practitioner undertakes to render professional services and the patient undertakes (normally) to pay for services
rendered.
In cases of emergency, a practitioner may act without the consent of the patient.
Stofberg v Elliott 1923 CPD 148
Esterhuizen v Administrator, Transvaal [1957] 3 All SA 242 (T), 1957 (3) SA 710 (T)
The liability of the client to pay may then be based on negotiorum gestio.
See NEGOTIORUM GESTIO
Confidential relationship: The relationship is based on confidentiality and a breach by the practitioner may give rise
to an action for damages.
Jansen van Vuuren v Kruger [1993] 2 All SA 619 (A), 1993 (4) SA 842 (A)
See INIURIA
Registration: To practise the profession of a medical practitioner or other health profession, a person must be
registered.
Health Professions Act 56 of 1974s 17(1)
Informed consent: A patient subjects to treatment by consent. The consent must be informed.
Medical treatment given without the 'informed' consent of the patient is not an assault but breach of contract.
Broude v McIntosh [1998] 2 All SA 555 (SCA) pp. 562563, 1998 (3) SA 60 (SCA) pp. 6768
Cf. Louwrens v Oldwage [2006] 1 All SA 197 (SCA), 2006 (2) SA 161 (SCA)
[Page 258]
Whether a practitioner should disclose to a patient the dangers or risks involved in a medical procedure depends on
the circumstances of the case. Mere failure to warn the patient does not necessarily constitute negligence.
Richter v Estate Hammann [1976] 3 All SA 497 (C), 1976 (3) SA 226 (C)
However, a practitioner must warn patient consenting to treatment of any material risk inherent in that treatment.
Castell v De Greef 1993 (3) SA 501 (C), 1994 (4) SA 408 (C) p. 426FH
Streicher v Van Vuuren [2000] 4 All SA 306 (SCA)
Sonny v Premier, Province of KwaZuluNatal [2010] 1 All SA 169 (KZP), 2010 (1) SA 427 (KZP)
Negligence: It is an implied term of the contract that the medical practitioner will exercise the reasonable skill and
care of a practitioner in the particular field. In deciding what is reasonable, the evidence of qualified physicians is of
the greatest assistance; however, what is reasonable under the circumstances is a matter for the court to decide.
Van Wyk v Lewis 1924 AD 438
Michael asnd another v Linksfield Park Clinic (Pty) Ltd and another [2002] 1 All SA 384 (SCA), 2001 (3) SA 1188
(SCA)
Van der Walt v De Beer [2005] 3 All SA 510 (C), 2005 (5) SA 151 (C)
If the practitioner fails in this duty, the practitioner must compensate the patient for damages caused by the breach
of contract.
Mukheiber v Raath [1999] 3 All SA 490 (A), 1999 (3) SA 1065 (SCA)
Ntsele v MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ)
To succeed with a claim for damages, the patient must allege and prove
(a) the contract;
(b) negligent breach of the contract;
(c) causation; and
Wright v MediClinic Ltd [2007] 2 All SA 515 (C), 2007 (4) SA 327 (C)
(d) damages.
Blyth v Van den Heever [1980] 1 All SA 148 (A), 1980 (1) SA 191 (A)
Administrator, Natal v Edouard [1990] 2 All SA 374 (A), 1990 (3) SA 581 (A)
Chapeikin and another v Mini [2016] ZASCA 105
A medical treatment which was unsuccessful or not as successful as it might have been, or did not have the desired
effect, does not necessarily justify an inference of lack of diligence, skill or.
Castell v De Greef 1993 (3) SA 501 (C) p. 509FJ, 1994 (4) SA 408 (C) p. 416
Cf. Louwrens v Oldwage [2006] 1 All SA 197 (SCA), 2006 (2) SA 161 (SCA)
Liability for an omission: See DELICT: LEX AQUILIA.
2016 (1) SA 325 (CC)
Approach to expert evidence: The question of reasonableness and negligence is for the court to determine based
on the various and often conflicting expert opinions presented. As a rule, the determination does not involve
considerations of credibility but the examination of the opinions and the analysis of the experts' essential
reasoning.
What is required in evaluating the evidence is a determination of whether and to what extent the opinions
advanced are founded on logical reasoning.
Michael and another v Linksfield Park Clinic (Pty) Ltd and another [2002] 1 All SA 384 (A), 2001 (3) SA 1188 (SCA)
paras 3440
MediClinic v Vermeulen [2014] ZASCA 150
[Page 259]
Cecilia Goliath v Member of the Executive Council for Health, Eastern Cape [2014] ZASCA 182
Kluever and another v De Goede [2015] ZASCA 105
Third parties: A medical practitioner may owe a duty of care towards a nonpatient. A negligent breach of that duty
may lead to an action for damages.
Magware v Minister of Health NO [1981] 4 All SA 531 (Z), 1981 (4) SA 472 (Z)
Payment: In a claim for payment, the practitioner must allege and prove
(a) appropriate registration;
(b) the contract;
(c) performance of the mandate;
(d) the agreed remuneration or the usual charges;
(e) that the defendant was furnished with a detailed account within a reasonable period.
Determination of the reasonableness of fees: If the fee to be charged exceeds that usually charged for the
service, the practitioner must inform the patient in advance of the intended fee and of the usual fee.
A patient who disputes the fee may apply to the Medical Council for a determination of the fee. The Council's
determination is final.
PRECEDENT
Claim for damages
1. Defendant is a medical practitioner and orthopaedic surgeon of [place].
2. On [date], the parties entered into an oral agreement at [place] in terms of which defendant undertook to perform
surgery on plaintiff's [e.g. left knee for the removal of the patella].
3. It was a term of the agreement that defendant would perform the surgery with such professional skill as is reasonable for
a specialist orthopaedic surgeon.
4. Despite the agreement, defendant carried out the surgery negligently in one or more of the following respects: [detail].
5. Because of defendant's negligence, plaintiff experienced pain and suffering and loss of earnings, both in the past and in
future, and had to undergo further medical treatment with resultant medical costs and will have to undergo further
medical treatment in future. [Detail].
6. In consequence of the above, plaintiff suffered damages in the sum of [amount], made up and calculated as follows:
[detail].
Claim against hospital*
1. The plaintiff is AB, who sues in his personal capacity as well as in his representative capacity as father and natural
guardian of BB, a minor girl. BB was born on [date].
2. The defendant is the MEMBER OF THE EXECUTIVE COUNCIL FOR HEALTH OF THE [C] PROVINCIAL GOVERNMENT, in her
capacity as the MEC responsible for the administration of the Department of Health of the Provincial Government.
3. The CC Hospital is a provincial hospital falling under the control and administration of the defendant in her capacity as
the MEC.
[Page 260]
4. BB has a fundamental right in terms of section 27(1) of the Constitution of the Republic of South Africa, 1996 to have
access to healthcare services and to receive emergency medical treatment.
5. The medical practitioners and nurses referred to hereunder were employed by the Department to render medical
services patients at CC, and they were acting in the course and scope of their employment with the Department.
6. They were under a legal duty to render to BB proper and appropriate medical treatment and to exercise the degree of
skill and care which can reasonably be expected of a medical practitioner and/or nurse in the prevailing circumstances.
7. On the evening of [date], BB was examined at CC by Dr DD and acute abdomen appendicitis was diagnosed. An
appendicectomy was then performed by Dr EE.
8. During the procedure, BB sustained electrosurgeryinduced burn wounds caused by the diathermy machine which was
used during the surgical procedure.
9. Medical practitioners and nurses who attended to or were required to attend to the care of BB, wrongfully and negligently
breached their legal duties, and were either individually or jointly negligent in one or more of the following respects:
[detail].
10. BB
(a) has experienced pain, suffering and discomfort and will in future experience pain, suffering and discomfort
[detail];
(b) underwent hospital, medical and related treatment;
(c) required and will require surgery;
(d) experienced a loss of amenities of life;
(e) will experience a future loss of earnings and earning capacity;
(f) experienced psychological trauma;
(g) suffers from posttraumatic stress disorder; and
(h) sustained scarring and disfigurement.
11. Therefore, the plaintiff in his personal capacity and BB in her personal capacity have suffered the damages as detailed
below.
12. The plaintiff, in his capacity as father and guardian of BB, is under a legal duty to provide BB with such maintenance and
support as she reasonably requires and in his personal capacity has suffered the following damages: [R1].
13. BB, in her personal capacity, has suffered special damages [amount], which is computed and calculated as follows:
(a) Future medical and related expenses: [R2].
(b) Future loss of earnings and loss of earning capacity: [R3].
14. BB, in her personal capacity, has suffered [R4] general damages in respect of
(a) past and future pain;
(b) suffering and discomfort;
(c) past and future loss of amenities of life;
(d) psychological shock and trauma; and
(e) permanent scarring and disfigurement. It is not practicable to state separately the amount claimed in respect of
each head.
15. In the premises the defendant is vicariously liable for payment of the damages.
16. The plaintiff has complied with s 3(2)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of
2002, and a period of 30 days has elapsed since delivery of the written notice to the defendant. The defendant has to
date hereof failed to respond to that written notice.
(a) Payment of damages to the plaintiff in his personal capacity [R1].
(b) Payment to the plaintiff in his representative capacity on behalf of BB of damages [R2 + R3 + R4].
(c) Interest.
[Page 261]
Footnotes
* The contribution of Adv. Irma Lingenvelder is acknowledged.
Mental incapacity
The validity of a jural act depends on the ability of a party thereto to bring to bear on that act the necessary
consenting mind. The acts of a person destitute of reason or intelligence are void. A party who wishes to rely on
mental incapacity must raise the issue distinctly in the pleadings.
Pheasant v Warne 1922 AD 481
Kotze NO v Santam Insurance Ltd [1994] 3 All SA 257 (C), 1994 (1) SA 237 (C) p. 242
The onus rests on the person raising the issue. The inquiry into a party's state of mind is delicate and difficult. It
involves establishing whether the person concerned was at the relevant time incapable of concluding the jural act
because, mentally, he or she could not understand and appreciate the jural act.
Theron v AA Life Assurance Association Ltd [1995] 2 All SA 581 (A), 1995 (4) SA 361 (A) pp. 374375
Eerste Nasionale Bank van SA Bpk v Saayman NO [1997] 3 All SA 391 (A), 1997 (4) SA 302 (A)
Mental incapacity may be the result of a natural affliction or have been induced chemically. Intoxication must be such
as to render the party non compos mentis and not merely more easily persuadable or more willing to conclude the
jural act.
Van Metzinger v Badenhorst [1953] 3 All SA 321 (T), 1953 (3) SA 291 (T)
A party lacking mental capacity must be represented by a curator ad litem. The appointment of a curator ad litem is
regulated by Uniform rule 57.
PRECEDENTS
Claim to set aside a contract on ground of intoxication
1. On [date] at [place], plaintiff signed a written document, Annexure 'A', purporting to be an agreement in terms of which
plaintiff sold to defendant a certain motor vehicle for the sum of [amount].
2. On that date, defendant took delivery of the vehicle.
3. At all material times, plaintiff was under the influence of intoxicating liquor to such an extent that he was deprived of his
reasoning faculties and not aware of the nature and contents of the document to which he signed, nor was he aware of
the fact that defendant had taken delivery of the said motor vehicle.
4. Plaintiff was at no time agreeable to selling his vehicle to defendant and, had he been aware of the nature and contents
of the document, he would not have signed it.
(a) An order declaring the agreement null and void.
(b) Return of the motor vehicle.
Plea of intoxication to a claim under a contract
1. Defendant admits having executed the alleged agreement but avers that, at the time, he was so intoxicated that he was
incapable of comprehending its contents or its meaning and effect.
2. In the premises, defendant alleges that the agreement is of no force or effect.
Claim to set aside an agreement on the grounds of insanity
1. On [date] at [place], plaintiff affixed his signature to a document (a copy of which is annexed hereto) purporting to be an
agreement of sale in terms of which plaintiff sold to defendant a certain motor vehicle belonging to plaintiff for the sum of
[amount] and authorising defendant to take possession of the motor vehicle from [name] in whose possession it then
was.
[Page 262]
2. At the time of the signing of the document, plaintiff was not of sound mind and was, as a result thereof, wholly incapable
of understanding and appreciating the nature and contents of the document which he signed. [State medical reasons.]
3. The value of the motor vehicle is [amount].
4. Plaintiff has not received any portion of the purchase price.
(a) An order declaring the said purported agreement of sale null and void.
(b) Return of his said motor vehicle; alternatively, payment of the sum of [amount].
Plea of insanity
1. Defendant admits having signed the said document, Annexure 'A'.
2. At the time of his signing the said document, defendant was not in his sound and sober senses, but was mentally
incapable of entering into any agreement whatsoever and was not capable of appreciating the nature and contents of the
said document. [Provide medical reason.]
3. In the premises, the said purported agreement was void ab initio and defendant is not bound by its terms.
Misrepresentation: Innocent misrepresentation
Related subjects: FRAUD; MISREPRESENTATION: NEGLIGENT MISREPRESENTATION; MISTAKE
General: A p a r t y i n d u c e d b y a n i n n o c e n t m i s r e p r e s e n t a t i o n t o e n t e r i n t o a c o n t r a c t m a y r e l y o n t h a t
misrepresentation to avoid the contract and to claim restitution. The contract is not void. The misrepresentation
does not give rise to a claim for damages because it is not a delict.
Cockroft v Baxter [1955] 4 All SA 184 (C), 1955 (4) SA 93 (C)
Fitt v Louw [1970] 2 All SA 542 (T), 1970 (3) SA 73 (T)
Indrieri v Du Preez [1989] 2 All SA 254 (C), 1989 (2) SA 721 (C) pp. 728729
In given circumstances, the contract may be void due to lack of consensus.
Trollip v Jordaan [1961] 1 All SA 494 (A), 1961 (1) SA 238 (A)
Spenmac (Pty) Ltd v Tatrim CC [2014] 2 All SA 549 (SCA), 2015 (3) SA 46 (SCA)
If the contract is one of sale, the aedilitian remedies are available that is, price reduction, or cancellation and
restitution.
Phame (Pty) Ltd v Paizes [1973] 3 All SA 501 (A), 1973 (3) SA 397 (A)
Tender: The party seeking restitution must tender to restore what was obtained under the contract, so that each
party may be placed in its original position.
Essentials: The essential allegations for avoiding a contract on the ground of an innocent misrepresentation are
(a) a representation;
(b) which was false;
(c) which was made by the defendant or the defendant's agent;
(d) which is material;
(e) which was intended to induce the claimant to enter into the transaction; and
(f) did induce the contract (causation).
Novick v Comair Holdings Ltd [1979] 3 All SA 73 (W), 1979 (2) SA 116 (W) p. 149
[Page 263]
PRECEDENTS
Claim for cancellation of contract
1. On [date] at [place], defendant and plaintiff entered into an oral agreement of sale in terms of which defendant sold to
plaintiff [description] motor vehicle for [amount].
2. Prior to the conclusion of the sale, defendant, with the intention of inducing plaintiff to purchase the vehicle, orally
represented to plaintiff that it was in a mechanically sound condition.
3. Relying on the truth of the representation, which was material to the sale, plaintiff purchased the vehicle and paid
defendant the purchase sum on delivery of the vehicle to him on [date].
4. The vehicle was not in a mechanically sound condition for the following reasons: [detail].
5. Plaintiff cancelled the sale on [date] per letter and tendered to return the vehicle to defendant against repayment of the
purchase price.
The plaintiff claims, repeating the tender, repayment of [amount].
Misrepresentation: Negligent misrepresentation
Related subjects: DELICT: LEX AQUILIA; FRAUD; MISREPRESENTATION: INNOCENT MISREPRESENTATION; MISTAKE
Leading cases:
Administrateur, Natal v Trust Bank van Afrika Bpk [1979] 2 All SA 270 (A), 1979 (3) SA 824 (A)
Standard Chartered Bank of Canada v Nedperm Bank Ltd [1994] 2 All SA 524 (A), 1994 (4) SA 747 (A)
Extracontractual and precontractual misrepresentation: A negligent misrepresentation in an extracontractual
context and a precontractual negligent misrepresentation leading to a contract may both give rise to a claim for
delictual damages.
False representation:
Schmidt v Dwyer [1959] 1 All SA 6 (C), 1959 (3) SA 896 (C)
Kern Trust (Edms) Bpk v Hurter [1981] 2 All SA 286 (C), 1981 (3) SA 607 (C)
The representation must have been material. In other words, it would have influenced a reasonable person to act
on the representation for example, to conclude a contract or advance money to a third person.
Faulkner v Freeman [1985] 4 All SA 224 (C), 1985 (3) SA 555 (C)
The representation must have been made by the defendant (or the defendant's agent);
Karabus Motors (1959) Ltd v Van Eck [1962] 1 All SA 403 (C), 1962 (1) SA 451 (C)
Wrongfulness: T h e t e s t f o r w r o n g f u l n e s s i s w h e t h e r t h e d e f e n d a n t h a d a l e g a l d u t y n o t t o m a k e a
misrepresentation or misstatement to the plaintiff.
Ehlers NO v Graphorn NO; Graphorn v KZN Natuurbewaringsraad [2005] ZASCA 6, [2005] 4 All SA 601 (SCA)
Brouze v Wenneni Investments [2015] 4 All SA 543 (SCA) paras 110115
Cuba NO and others v Holoquin Global (Pty) Ltd and others [2016] 4 All SA 77 (GJ)
Circumstances determine the vital questions of unlawfulness and causation.
Bayer SA (Pty) Ltd v Frost [1991] 2 All SA 444 (A), 1991 (4) SA 559 (A) p. 570
[Page 264]
Silence as misrepresentation: The test for wrongfulness is the same as that relating to omissions in delict.
The duty to speak depends on community convictions. Parties are expected to speak when the information falls
within their exclusive knowledge and the duty to communicate would have been mutually recognised by honest
persons.
It is not the norm that one contracting party must inform the other about everything known to the former.
McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C)
ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA), 2003 (1) SA 176 (SCA)
Negligence: The issue is whether it was foreseeable that the representation could induce the person to whom it
was made to act on the representation by, for example, entering into the transaction.
Novick v Comair Holdings Ltd [1979] 3 All SA 73 (W), 1979 (2) SA 116 (W) p. 150
Negligence may manifest itself in a failure to have established the correctness of the representation.
Causation:
Cockroft v Baxter [1955] 4 All SA 184 (C), 1955 (4) SA 93 (C)
Hulett v Hulett [1992] 2 All SA 308 (A), 1992 (4) SA 291 (A) pp. 210211
Relief: In the case of extracontractual misrepresentation, the scale of damages is delictual.
See DAMAGES: DELICTUAL DAMAGES
In the event of a precontractual misrepresentation giving rise to a contract, cancellation may be claimed with or
without damages. Damages are restitutional.
See CONTRACT: DAMAGES
If the misrepresentation relates to a latent defect in a sold object, the aedilitian remedies are available.
Restitution: In the event of a contract concluded because of a misrepresentation, which is cancelled, the plaintiff
who claims restitution, must tender restitution.
PRECEDENT
Claim for damages as result of negligent misrepresentation
1. During [state period], a certain [A] was desirous of purchasing goods from plaintiff on credit.
2. Defendant by letter dated [date] represented to plaintiff that [A] was then in a sound financial position and might safely
be trusted to purchase goods on credit up to [amount].
3. Defendant was, at all material times, the banker of [A] and provided the report at the request of [A].
4. Defendant knew that plaintiff would act on the assumption that the report is factually correct and owed a duty of care
towards plaintiff to provide correct information.
5. The report was material and was made with the intention of inducing plaintiff to act thereon.
6. Plaintiff, relying on its truth, supplied goods to [A] on credit of [Rx].
7. The representation was false because [A] was then not in a sound financial position and could not safely be trusted with
goods on credit of [amount] but was in insolvent circumstances and unable to pay plaintiff any amount
[Page 265]
8. Defendant was negligent in making the representation because it did not make proper inquiries as to the financial
position of its client.
9. Because of defendant's representation, plaintiff suffered damages of [Rx] calculated as follows: [detail].
Mistake (error)
Related subjects: CONDICTIO INDEBITI; CONTRACT: CONCLUSION AND TERMS; FRAUD; MISREPRESENTATION:
INNOCENT MISREPRESENTATION; MISREPRESENTATION: NEGLIGENT MISREPRESENTATION
Leading cases:
Du Toit v Atkinson's Motors Bpk [1985] 2 All SA 149 (A), 1985 (2) SA 893 (A)
Sonap Petroleum SA (Pty) Ltd v Pappadogianis [1992] 2 All SA 114 (A), 1992 (3) SA 234 (A)
Mutual mistake: A mutual mistake exists when each party to the alleged contract was mistaken about the other
party's intention. An example of a mutual mistake is when the parties use an ambiguous word in their contract and
each attaches a different meaning to that word. The one accordingly does not realise that its promise is being
misunderstood by the other.
The party wishing to rely on a contract which, the one alleges, was concluded under these circumstances must
allege and prove that the parties were, in fact, in agreement. This is part and parcel of the onus of proving the
contract between the parties.
Diamond v Kernick [1947] 3 All SA 254 (A), 1947 (3) SA 69 (A)
Common mistake: When parties reach agreement based on a common incorrect assumption of a present or past
fact, the contract is void.
Osman v Standard Bank National Credit Corp Ltd [1985] 1 All SA 585 (C), 1985 (2) SA 378 (C) p. 386
However, a party cannot vitiate a contract based on a mistaken motive relating to an existing fact, even if the
mistake is common, unless the contract was made dependent on the motive or the requirements for a
misrepresentation are present.
Transnet Ltd v Rubenstein [2005] 3 All SA 425 (SCA), 2006 (1) SA 591 (SCA)
The party wishing to rely on the voidness of the contract must allege and prove that
(a) the contract was based on a common assumption;
(b) the assumption was incorrect; and
(c) the subject matter of the assumption was vital to the transaction in other words, had both parties been
aware of the true position the transaction would not have been entered.
Dickinson Motors (Pty) Ltd v Oberholzer [1952] 1 All SA 421 (A), 1952 (1) SA 443 (A)
Luzon Investments (Pty) Ltd v Strand Municipality [1990] 1 All SA 70 (C), 1990 (1) SA 215 (C) p. 228
Krapohl v Oranje Koöperasie Bpk [1990] 2 All SA 366 (A), 1990 (3) SA 848 (A) p. 865
Unilateral error: It is factually but not finally presumed that a person who signs a document knows what it
contains.
Glen Comeragh (Pty) Ltd v Colibri (Pty) Ltd [1979] 4 All SA 321 (T), 1979 (3) SA 210 (T)
Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers [2001] 2 All SA 646 (NC), 2001 (3) SA 110 (NC)
Brink v Humphries & Jewell (Pty) Ltd [2005] 2 All SA 343 (SCA), 2005 (2) SA 419 (SCA)
[Page 266]
ABSA Bank Ltd v Trzebiatowsky and others 2012 (5) SA 134 (ECP)
The party alleging a unilateral error must allege and prove the facts necessary to avoid the contract.
National & Overseas Distributors Corp (Pty) Ltd v Potato Board [1958] 3 All SA 13 (A), 1958 (2) SA 473 (A)
George v Fairmead (Pty) Ltd [1958] 3 All SA 1 (A), 1958 (2) SA 465 (A)
ABSA Bank Ltd v The Master NNO [1998] 3 All SA 189 (N), 1998 (4) SA 15 (N)
In addition, it must also be alleged and proved that the error was iustus. An error is said to be iustus if it was
caused by the misrepresentation of the other party. Innocent misrepresentation will suffice as will the silence of one
party that misleads the other.
Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd [1986] 1 All SA 384 (A), 1986 (1) SA 303 (A)
Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA)
See MISREPRESENTATION: INNOCENT MISREPRESENTATION
The test is whether the party whose actual intention did not conform to the expressed common intention led the
other party, as a reasonable person, to believe that the declared intention represented the actual intention. The
inquiry entails determining whether there was misrepresentation as to intention; who made the representation;
who was the misled party; and whether a reasonable person would have been misled.
Sonap Petroleum SA (Pty) Ltd v Pappadogianis [1992] 2 All SA 114 (A), 1992 (3) SA 234 (A)
Prins v ABSA Bank Ltd [1997] 1 All SA 486 (C), 1998 (3) SA 904 (C)
Pillay and another v Shaik and others [2009] 2 All SA 435 (SCA), 2009 (4) SA 74 (SCA),
Spenmac (Pty) Ltd (formerly Bobcart (Pty) Ltd) v Tatrim CC [2014] 2 All SA 549 (SCA), 2015 (3) SA 46 (SCA)
Van Huyssteen NO and another v Mila Investment and Holding Company (Pty) Ltd [2017] ZASCA 84
An incidental mistake a mistake relating to the reasoning or motivation behind the agreement only is not iustus.
Diedericks v Minister of Lands [1964] 1 All SA 197 (N), 1964 (1) SA 49 (N)
A unilateral error caused by a misrepresentation renders the agreement voidable and not void.
Trollip v Jordaan [1961] 1 All SA 494 (A), 1961 (1) SA 238 (A)
Quasimutual consent: See CONTRACT: CONCLUSION AND TERMS.
PRECEDENTS
Claim based on common mistake
1. On [date] at [place], the parties entered into an oral agreement of sale in terms of which plaintiff purchased from
defendant a motor vehicle [registration number] for [amount].
2. Plaintiff paid the purchase price on [date] and took delivery of the vehicle on [date] at [place].
3. The contract was entered on the common assumption that the motor vehicle was a [year] model.
4. The motor vehicle is not what was assumed by the parties but is, in fact, a [year] model.
[Page 267]
5. There is a material difference between the market value of a [year] model and a [year] model of approximately
[amount].
6. The agreement is accordingly void because of the common mistake between the parties when they entered into the
agreement.
7. Plaintiff tenders return of the motor vehicle against repayment of the purchase price.
Plea of mutual mistake
1. Defendant admits the agreement in terms of which he sold to plaintiff the stated quantity of 'maize'.
2. Defendant denies that the 'maize' sold to plaintiff was grade 1 maize.
3. Defendant by selling 'maize' intended to sell grade 2 maize and not grade 1 maize.
4. In so far as plaintiff may have been under the bona fide belief that the 'maize' sold was grade 1 maize, defendant alleges
that the agreement which referred to 'maize' simpliciter was entered as the result of a mutual mistake.
5. Defendant, therefore, pleads that the alleged agreement is of no legal force and effect.
Plea of unilateral mistake
1. Defendant admits that the document relied on by plaintiff was signed by him, but pleads that he is not bound by the
terms of the document because he signed it in error.
2. Defendant pleads that, in his dealings with plaintiff, he was acting on behalf of a disclosed principal, one [name].
3. Plaintiff handed the document to defendant on the assumption that it contained the terms of the agreement reached
between plaintiff and defendant acting in his aforesaid capacity only.
4. When signing the document, defendant qualified his signature to indicate that he was signing in a representative capacity.
5. Defendant was unaware of, and plaintiff negligently failed to disclose to defendant, the fact that the document contained
a clause binding the signatory as surety of his principal.
6. Defendant never intended to bind himself as surety or to create a personal liability by signing the document.
Mora
Related subjects: CONTRACT (all titles); INTEREST
Mora: A party to a contract who is default with performance is said to be in mora. If it is the creditor, it is called mora
creditoris; if it is the debtor, it is mora debitoris. Mora debitoris, in turn, may be either ex re or ex persona.
Mora creditoris : A creditor may be in default if the contract requires the creditor's cooperation for performance by

the debtor.
Default arises automatically when the contract contains a prescribed time for performance by the debtor and, by
implication, for the creditor's cooperation.
See EXCEPTIO NON ADIMPLETI CONTRACTUS
Default may also arise when the debtor calls on the creditor for the required cooperation and the creditor fails to
supply it within a reasonable time.
[Page 268]
Mora debitoris ex re : A debtor is in mora ex re if the contract stipulates a time for performance but the debtor fails

to perform within the time limit.
Laws v Rutherford 1924 AD 261
Mora debitoris ex persona : The debtor is in mora ex persona when the contract does not stipulate a time for

performance but the creditor makes a demand on the debtor. The demand must
(a) be clear and unequivocal;
Ponisammy v Versailles Estates (Pty) Ltd [1973] 1 All SA 540 (A), 1973 (1) SA 372 (A)
Crookes Brothers Limited v Regional Land Claims Commission for the Province of Mpumalanga and others [2013] 2
All SA 1 (SCA), 2013 (2) SA 259 (SCA)
(b) provide a fixed and reasonable date for performance; and
Ver Elst v Sabena Belgian World Airlines [1983] 2 All SA 51 (A), 1983 (3) SA 637 (A)
(c) (if applicable) contain an offer by the creditor to perform reciprocal obligations simultaneously.
Hammer v Klein [1951] 1 All SA 50 (A), 1951 (2) SA 101 (A)
Nel v Cloete [1972] 4 All SA 573 (A), 1972 (2) SA 150 (A)
Fault: Mora does not depend on fault. In other words, a party cannot escape the consequences of mora by relying
on the absence of fault.
Scoin Trading (Pty) Ltd v Bernstein [2011] 2 All SA 608 (SCA), 2011 (2) SA 118 (SCA)
Right to interest: Interest begins to run as soon as a party is in mora.
See INTEREST
Right to specific performance: A debtor may be sued for specific performance without being in mora.
2018 (1) SA 94 (CC) para. 159
See SPECIFIC PERFORMANCE
Right to cancel: The fact that a party is in mora does not on its own entitle the other party to cancel the contract.
The 'innocent' party must, in addition, have an accrued right to cancel the contract.
Birkenruth Estates (Pty) Ltd v Unitrans Motors (Pty) Ltd [2005] 3 All SA 128 (W), 2005 (3) SA 54 (W)
One of the following alternatives must be present:
(a) The contract contains a cancellation clause (lex commissoria) entitling a party to cancel if the other is in mora.
Venter v Venter [1949] 2 All SA 24 (A), 1949 (1) SA 768 (A)
It must be alleged and proved that the contractual provisions of the cancellation clause have been complied
with.
Van Zyl v Rossouw [1976] 2 All SA 359 (NC), 1976 (1) SA 773 (NC)
Graham NO v Trackstar Trading 363 (Pty) Ltd [2003] 1 All SA 181 (SE) para. 58
(b) The contract contains a tacit cancellation term. This is the case when time for performance is material (is of the
essence of the contract). It must, therefore, be alleged that there is a tacit term entitling the creditor to cancel
should the debtor fail to perform on time.
Greenfield Manufacturers Temba (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A)
(c) A right to rescind created by a notice of intention to rescind. The notice of demand must contain a notice of
intention to cancel; and if it does not, a further notice is required which must also provide for a reasonable
time for performance.
Nel v Cloete [1972] 4 All SA 573 (A), 1972 (2) SA 150 (A)
[Page 269]
(d) The other party is unable to perform at the time performance is due or within a reasonable time thereafter.
Ponisammy v Versailles Estates (Pty) Ltd [1973] 1 All SA 540 (A), 1973 (1) SA 372 (A)
Cancellation: An effective cancellation must be alleged and proved. This involves an unequivocal notice of rescission
brought to the notice of the other party to the contract.
See CONTRACT: CANCELLATION
Because the party relying on a breach is required to allege and prove the breach, the defendant need only deny the
breach and is not required to plead absence of a mora notice.
G&C Shelf 103 (Pty) Ltd v Chemical Specialities (Pty) Ltd 2012 (4) SA 335 (KZD) para. 25
Reasonable time: A creditor wishing to rely on the lapse of a reasonable time must establish what that period was.
Fluxman v Brittain 1941 AD 273
Cf. Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A), 1997 (2) SA 337 (SCA) pp. 352353
PRECEDENTS
Claim for cancellation when there is no lex commissoria in the contract
1. On [date] at [place], the parties entered an oral agreement in terms of which defendant sold to plaintiff a [describe]
motor vehicle [registration number] for [amount].
2. It was a material term of the agreement that delivery was to be made on [date].
3. Defendant failed to deliver the vehicle on due date and has not delivered it since, although plaintiff had paid the price in
full on [date].
4. In consequence, defendant has breached the terms of the agreement.
5. On [date] at [place], plaintiff demanded delivery of the vehicle on or before [date] and gave notice to defendant that,
should defendant fail to comply with the demand, plaintiff would cancel the agreement. A copy of the demand is
Annexure 'A'.
6. The time given to defendant to perform was a reasonable period.
7. Defendant failed to comply with the demand.
8. Plaintiff cancelled the agreement on [date] per letter (Annexure 'B').
Claim for cancellation when there is a lex commissoria in the contract
1. On [date], the parties entered a written agreement of sale in terms of which plaintiff sold to defendant a dwelling house
situate at [address]. A copy of the agreement is attached.
2. In terms of [clause], plaintiff was entitled to cancel the agreement in the event of breach of contract.
3. Defendant breached the agreement by not providing guarantees as stipulated in [clause] on or before [date].
4. Plaintiff gave defendant due notice as required by [clause] to rectify his breach but, even though [number] days have
elapsed since the giving of notice, defendant has failed to rectify his breach.
5. In the premises, plaintiff was entitled to cancel the agreement, which he did by notice to defendant dated [date];
alternatively, plaintiff hereby cancels the agreement.
Negligence
Related subjects: DAMAGES: DELICTUAL DAMAGES; DELICT: LEX AQUILIA; ROAD ACCIDENTS
[Page 270]
General: Negligence is a requirement for delictual liability under the lex Aquilia.
Although conceptually the inquiry into wrongfulness is anterior to the inquiry into negligence, without negligence
the issue of wrongfulness does not arise. Depending on the circumstances, therefore, it may be convenient to
assume the existence of a legal duty and to consider first the issue of negligence. It may also be convenient, when
the issue of wrongfulness is considered first, to assume negligence.
Gouda Boerdery BK v Transnet Ltd [2004] 4 All SA 500 (SCA), 2005 (5) SA 490 (SCA)
Similarly, it may be prudent to assume both wrongfulness and negligence, and to consider causation first.
Onus: The plaintiff must allege and prove that the defendant was negligent.
Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T)
It is not enough to allege negligence without detailing the grounds of negligence.
SA Fish Oil Producers' Association (Pty) Ltd v Shipwrights & Engineers Holdings Ltd 1958 (1) SA 687 (C)
Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C)
A plaintiff who relies on a breach of duty of care must set out the facts that could or should have been foreseen by
the defendant.
Mkhatswa v Minister of Defence [2000] 1 All SA 188 (A), 2000 (1) SA 1104 (SCA)
Beurain h/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921 (O)
Nature of onus: The onus is on the plaintiff to establish that
(a) a reasonable person (diligens paterfamilias) in the position of the defendant would foresee the reasonable
possibility that the conduct (whether an act or omission) would injure another's person or property and cause
patrimonial loss;
(b) such a reasonable person would take reasonable steps to guard against such occurrence; and
(c) the defendant failed to take such reasonable steps.
Kruger v Coetzee [1966] 2 All SA 490 (A), 1966 (2) SA 428 (A)
(SCA)
Whether a reasonable person would have taken steps to guard against foreseeable harm involves a value
judgement. Four useful considerations are the degree or extent of the risk created; the gravity of the possible
consequences; the utility of the actor's conduct; and the burden of eliminating the risk.
City Council of Pretoria v De Jager [1997] 1 All SA 635 (A), 1997 (2) SA 46 (SCA)
Cape Metropolitan Council v Graham [2001] 1 All SA 215 (A), 2001 (1) SA 1197 (SCA)
Res ipsa loquitur : The 'doctrine' of res ipsa loquitur applies when a plaintiff proves facts from which an inference of

negligence may, in the absence of an explanation, be drawn. It is then for the defendant to displace this prima facie
inference by means of an explanation. There is no onus on the defendant to establish the correctness of the
explanation on a balance of probabilities: the onus remains on the plaintiff. This does not mean that the defendant
is entitled to rely on mere theories or hypothetical suggestions.
Arthur v Bezuidenhout & Mieny [1962] 2 All SA 506 (A), 1962 (2) SA 566 (A)
Molefe v Mahaeng [1998] 4 All SA 423 (A), 1999 (1) SA 562 (SCA)
Swartz v Delport [2002] 2 All SA 309 (A)
Negligence of the plaintiff:
[Page 271]
Presumptions of negligence: When there is a statutory presumption of negligence and the plaintiff does not have
to prove negligence, it is as a rule not necessary for the plaintiff to allege negligence, provided the alleged facts
show the presumption applies.
South African Railways & Harbours v Du Preez 1953 (1) SA 81 (C)
Cf. VELD FIRES
Imperitia culpae adnumeratur : The measure against which a skilled person's diligence is determined is the

general level of skill and diligence possessed and exercised at the time by members of the particular branch of the
profession to which the practitioner belongs.
Van Wyk v Lewis 1924 AD 438
Durr v Absa Bank Ltd [1997] 3 All SA 1 (A), 1997 (3) SA 448 (SCA)
(SCA)
Lappeman Diamond Cutting Works (Pty) Ltd v MIB Group (Pty) Ltd [2003] 4 All SA 317 (SCA), 2004 (2) SA 1
(SCA)
Meaning of 'gross negligence': See MV Stella Tignas: Transnet Ltd t/a Portnet v Owners of the MV Stella Tignas
[2003] 1 All SA 286 (SCA), 2003 (2) SA 473 (SCA).
PRECEDENTS
See DELICT: LEX AQUILIA; ROAD ACCIDENTS
Claim pure economic loss
[From Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd [1996] 1 All SA 383 (T) pp. 385a386h, 1996 (2) SA 393 (T) pp.
396C398C.]
1. For several years prior to 5 September 1990 there existed between the plaintiff and the defendant a business relationship
in terms of which the plaintiff sold and delivered steel to the defendant from time to time.
2. The defendant always complied with its obligations to the plaintiff relating to the payment of the purchase price in respect
of the said sales, and the defendant accordingly established a favourable credit rating with the plaintiff, as a result of
which the plaintiff supplied steel to the defendant on favourable terms.
3. During the existence of the business relationship, the defendant's registered name was A & W Engineering (Pty) Ltd, and
it traded as A & W Engineering.
4. On 5 September 1990 the defendant entered into an agreement with one C on behalf of a company to be incorporated in
terms of which:
4.1 the defendant sold its business to C in his stated capacity, and a copy of the deed of sale and annexures are
annexed hereto;
4.2 the defendant agreed to change its name so that 'A & W Engineering' did not form part of its name;
4.3 C, in his stated capacity was entitled to use the words 'A & W Engineering' as part of its name, and to trade under
that name.
5. Pursuant to the said agreement and after its conclusion:
5.1 C did not incorporate a new company, but caused a change of name to be effected in respect of an existing
company to A and W Engineering (Pty) Ltd ('the purchaser');
5.2 the purchaser, with the knowledge and consent of the defendant, assumed the rights and obligations which would
have devolved upon the newly incorporated company in terms of the said agreement;
5.3 the defendant changed its name to its present name;
5.4 the purchaser continued to conduct the business which had previously belonged to the defendant and, pursuant
thereto, purchased steel from the plaintiff;
5.5 the plaintiff continued to sell steel to the purchaser on the same credit terms and conditions that had previously
applied in respect of its sales of steel to the defendant in the bona fide belief that it was in fact still selling the steel
to the defendant;
[Page 272]
5.6 orders to the plaintiff for further supplies of steel were initiated by the same individuals who had initiated orders
prior to 5 September 1990;
5.7 there were no indications that the defendant's business had been sold or relocated, and deliveries of steel
continued to be effected by the plaintiff at the same address as prior to the sale;
5.8 the plaintiff continued not to charge general sales tax on steel supplied by it to the purchaser, on the strength of
the original exemption certificate which was furnished to it by defendant prior to 5 September 1990, the plaintiff
not having been advised of any new or other certificate in respect of the purchaser;
5.9 the managing director of the defendant was employed as a manager by the purchaser;
5.10 the defendant and the purchaser did not advertise the sale in terms of section 34 of the Insolvency Act 24 of 1936.
6. At all material times hereto:
6.1 the purchaser was a credit risk, and the plaintiff would not have sold steel to it, or would not have sold steel to it
on the same favourable credit terms and conditions on which it had sold steel to the defendant, had it been aware
that the business had been sold by the defendant to the purchaser;
6.2 the plaintiff ran a significant credit risk by continuing to sell steel to the purchaser on the same favourable credit
terms and conditions on which it had sold steel to the defendant;
6.3 the defendant was aware or ought to have been aware of the facts set out above.
7. In the premises:
7.1 the defendant had a duty in law to disclose to the plaintiff that it had sold the business to the purchaser;
7.2 the defendant breached the duty by failing to make the said disclosure, such failure in itself being negligent;
7.3 the defendant's failure to so disclose was accordingly wrongful and unlawful.
8. The plaintiff has suffered damages because of the defendant's unlawful conduct in the amount of [Rx], calculated as
follows:
8.1 the plaintiff supplied steel on favourable credit terms to the purchaser;
8.2 the purchaser failed to pay an amount of [Rx] which was owing to the plaintiff pursuant to steel sold to it by the
plaintiff on credit;
8.3 the purchaser has been wound up at the instance of the defendant;
8.4 the plaintiff will not recover the amount from the purchaser in liquidation;
8.5 had] the defendant not breached its said duty, the plaintiff would not have sold the steel to the purchaser or would
have sold it to the purchaser on credit terms that would have prevented the loss.
Claim collision with train
[From Harrington NO v Transnet Ltd [2007] 2 All SA 386 (C), 2007 (2) SA 228 (C).]
The collision was caused by the negligence of First and/or Second and/or Third Defendant, in that:
1. they failed, notwithstanding being aware that the railway line was patrolled at night after 22h00 by security guards such
as First and Second Plaintiffs, to warn Plaintiffs of the approach of the train; and/or
2. they failed, notwithstanding being aware of the facts and circumstances set out in subparagraph 8.1 above, to warn
and/or advise Plaintiffs and/or their employer, Kuffs Security Services ('Kuffs'), of the unscheduled journey of the train;
and/or
3. the Third Defendant failed to keep a proper lookout; and/or
4. the Third Defendant failed to apply the brakes of the train timeously, adequately, or at all; and/or
5. the Third Defendant failed to warn the Plaintiffs of the approach of the train; and/or
6. the First and Second Defendants failed to act with due care in that they:
6.1 failed to take any or reasonable measures to ensure that security personnel working on their premises received
adequate safety training;
[Page 273]
6.2 failed to take any or reasonable measures to ensure that the employees of Kuffs completed the First Defendant's
inhouse test and induction training before commencing their duties on the First and Second Defendants' premises;
6.3 failed to take any or reasonable measures to ensure that Kuffs provided its employees with adequate safety
training for their duties on the First and Second Defendants' premises;
6.4 etc.
Negligence: Contributory negligence
Related subjects: DELICT: LEX AQUILIA; ROAD ACCIDENTS; VOLENTI NON FIT INIURIA
Legislation:
Apportionment of Damages Act 34 of 1956
Leading case:
ABSA Brokers (Pty) Ltd v RMB Financial Services [2009] 4 All SA 463 (SCA), 2009 (6) SA 549 (SCA)
General: The purpose of the Apportionment of Damages Act 34 of 1956 is to prevent a single losscausing event
from giving rise to a multiplicity of actions. The Act contemplates a determination of liability of multiple wrongdoers
and the apportionment of liability amongst them in a single action.
A plaintiff who alleges that two or more persons are liable for the damage that is at issue may sue them all in the
same action.
A defendant may in the plea request apportionment of damages based on the contributory negligence of the
plaintiff.
By comparing the respective degrees of negligence of the parties the court must determine the extent of each
party's negligence in causing the damage at issue.
Apportionment of Damages Act 34 of 1956s 1
South British Insurance Co Ltd v Smit [1962] 3 All SA 548 (A), 1962 (3) SA 826 (A)
Intentional wrongdoing: Apportionment is not available if the plaintiff's claim is based on a delict intentionally
committed, such as assault or theft.
Minister van Wet en Orde v Ntsane 1993 (1) SA 560 (A), 1993 (1) SACR 256 (A)
Nedcor Bank Ltd t/a Nedbank v LloydGray Lithographers (Pty) Ltd [2000] 4 All SA 393 (A), 2000 (4) SA 915
(SCA)
The suggestion that the defence may be available if there is dolus on both sides appears questionable in the light of
the ex suo delicto non oritur actio principle.
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas Bank [1996] 4 All SA 278
(W), 1997 (2) SA 591 (W) p. 606E
Contractual claims: This partial defence cannot be raised in relation to damages claims arising from a breach of
contract.
(SCA) (overruled in so far as the auditing profession is concerned by Auditing Profession Act 26 of 2005s 58(2))
Alternative defences: It is advisable to plead contributory negligence as an alternative to a denial of negligence.
The defence of contributory negligence is also a useful alternative to a defence of volenti non fit iniuria.
Santam Insurance Co Ltd v Vorster [1973] 4 All SA 558 (A), 1973 (4) SA 764 (A)
[Page 274]
Onus: The defence must be pleaded and appropriate relief of apportionment must be sought in the plea. The
defendant must prove that the plaintiff was negligent and that this negligence was causally connected to the loss
suffered by the plaintiff.
South British Insurance Co Ltd v Smit [1962] 3 All SA 548 (A), 1962 (3) SA 826 (A)
Union National South British Insurance Co Ltd v Vitoria [1982] 1 All SA 173 (A), 1982 (1) SA 444 (A)
Labuschagne v Cloete [1987] 4 All SA 23 (T), 1987 (3) SA 638 (T)
SuidAfrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw & Collins Afslaers (Edms) Bpk [1997] 1 All
SA 473 (A), 1997 (1) SA 592 (A)
Postdelictual negligence of a plaintiff may interrupt causation but is not a ground for apportionment.
Gibson v Berkowitz [1997] 1 All SA 99 (W), 1996 (4) SA 1029 (W)
A court may order apportionment in the absence of proper pleadings if the issue was fully canvassed.
AA Mutual Insurance Association Ltd v Nomeka [1976] 3 All SA 310 (A), 1976 (3) SA 45 (A)
Gibson v Berkowitz [1997] 1 All SA 99 (W), 1996 (4) SA 1029 (W)
Third parties: A defendant who alleges that another person is also liable to the plaintiff may under Uniform rule 13
join the latter in the proceedings. The defendant must allege and prove that the third party is liable, with the
defendant, in delict, to the plaintiff.
See THIRDPARTY PROCEDURE
Wapnick v Durban City Garage 1984 (2) SA 414 (D)
A third party may be joined conditionally, joinder being dependent on a finding that the defendant is liable to the
plaintiff.
Gross v Commercial Union Assurance Co Ltd [1974] 2 All SA 149 (A), 1974 (1) SA 630 (A)
If the plaintiff and the defendant choose not to join the third party in the action, that person must be notified of the
action and given the opportunity to intervene.
Contribution: A joint wrongdoer may claim a contribution from other joint wrongdoers only if the damages claim has
been fully settled.
Picbel Groep Voorsorgfonds (in liquidation) v Somerville and other related matters [2013] 2 All SA 692 (SCA),
2013 (5) SA 496 (SCA)
PRECEDENTS
Plea
Defendant denies that he was negligent as alleged or in any other way. Alternatively and in the event of the court's finding that
he was negligent, defendant pleads that plaintiff was also negligent in one or more of the following respects, namely [detail],
and that this negligence also contributed to the collision.
Plea
Defendant admits that the collision was caused by the negligence of its insured driver but pleads that:
(a) the vehicle in which plaintiff travelled was fitted with seat belts;
(b) plaintiff failed to wear the seat belts;
(c) the facial injuries sustained by plaintiff in the collision were caused by her head striking the windscreen;
(d) had she worn her seat belt she would not have struck the windscreen;
[Page 275]
(e) she was negligent in not wearing her seat belt and her negligence caused or contributed to her damages.
Prayer
The defendant claims that plaintiff's claim be dismissed with costs; alternatively, that the amount of damages to be awarded to
plaintiff be reduced in terms of section 1 of Act 34 of 1956 to such extent as may seem just and equitable, having regard to
plaintiff's degree of negligence.
Negotiorum gestio (unauthorised administration)
Original text by Mr Justice DH van Zyl
Related subjects: CONDICTIO INDEBITI; LIEN
Leading cases:
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd [1979] 4 All SA 1 (C), 1979 (2) SA 383 (C)
ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C)
Definition: Negotiorum gestio ('management of affairs') is the voluntary management by someone (the gestor) of the
affairs of another (the dominus) without the consent or knowledge of the latter.
Virtually any act or activity that amounts to the conduct, administration or management of another's affairs may
constitute negotiorum gestio.
Essentials: The requisites for a claim arising from negotiorum gestio are the following:
(a) The affairs managed by the gestor must have been those of another.
Turkstra v Massyn [1959] 1 All SA 263 (T), 1959 (1) SA 40 (T) p. 47
(b) The dominus must have been ignorant of the fact that her or his affairs were being managed.
Turkstra v Massyn [1959] 1 All SA 263 (T), 1959 (1) SA 40 (T) p. 47
North West Arts Council v Sekhabi [1996] 3 All SA 361 (B)
A dominus who is aware of the management does nothing about it is regarded as having authorised it tacitly.
(c) The intention to manage the affairs of another and to claim reimbursement for expenses necessarily or
usefully incurred by the gestor.
Odendaal v Van Oudtshoorn [1968] 3 All SA 482 (T), 1968 (3) SA 433 (T) p. 437
Maritime Motors (Pty) Ltd v Von Steiger 2001 (2) SA 584 (SE)
(d) The management of the dominus's affairs should have been conducted in a reasonable way (utiliter coeptum).
Relief claimable by the gestor : The rights of the gestor include the right

(a) to be reimbursed for necessary and useful expenses;
New Club Garage v Milborrow & Son 1931 GWL 86 pp. 99100
Klug & Klug v Penkin 1932 CPD 401 p. 404
(b) to damages for lost interest or income;
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd [1979] 4 All SA 1 (C), 1979 (2) SA 383 (C) p. 387
(c) to be released from obligations incurred during the gestio;
New Club Garage v Milborrow & Son 1931 GWL 86 p. 100
[Page 276]
(d) to exercise a lien over the property of the dominus in the gestor's possession, pending satisfaction of the
claim.
New Club Garage v Milborrow & Son 1931 GWL 86
Relief claimable by the dominus : The duties of the gestor that may be enforced by the dominus are

(a) to complete the negotiorum gestio;
Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd [1968] 2 All SA 153 (A), 1968 (1) SA 571 (A) p. 580
(b) to render an account of the management;
McEwen NO v Khader [1969] 4 All SA 421 (N), 1969 (4) SA 559 (N) p. 562
(c) to deliver what was received or had otherwise accrued because of the gestio;
Grant's Farming Co Ltd v Attwell 9 HCG 91
(d) to perform the gestio properly, diligently and reasonably.
Boyce NO v Bloem [1960] 3 All SA 574 (T), 1960 (3) SA 855 (T) p. 866
Negotiorum gestio and unjustified enrichment: In four instances the gestor's claim is limited to the extent of the
unjustified enrichment of the dominus
(a) when the gestor has managed the affairs of a minor;
Van Rensburg v Straughan 1914 AD 317 pp. 329330
(b) when the gestor has knowingly managed another's affairs with the intention of benefiting herself or himself
alone;
(c) when the gestor manages the affairs of another in the mistaken but bona fide belief that they are the gestor's;
(d) when the affairs are managed contrary to the express wishes of the dominus.
B & H Engineering v First National Bank of SA Ltd [1995] 1 All SA 545 (A), 1995 (2) SA 279 (A) p. 295
PRECEDENTS
Claim for repayment of debt paid
1. At all relevant times, defendant was indebted to [name] in the amount of [Rx].
2. On [date] at [place], plaintiff paid to [name] [amount] on defendant's account.
3. In so paying, the plaintiff had the bona fide intention of benefiting defendant, who was unaware of the payment, and in
fact benefited defendant since his debt to [name] became discharged.
4. Plaintiff intended always to be recompensed in respect of the payment made.
Claim when payment is made in plaintiff's own interest
1. On [date] at [place], plaintiff, t/a [name], ordered certain goods from [name].
2. Delivery of the goods was refused by [name] because defendant, who had sold the business to plaintiff, and while trading
as [name], failed to pay his indebtedness to [name] in the sum of [amount].
3. To ensure the continuation of supply and to minimise his loss, plaintiff paid to [name] [amount].
4. In so doing, plaintiff advanced the affairs of defendant since his indebtedness to [name] was discharged.
[Page 277]
5. As a result, defendant was unjustly enriched at the expense of plaintiff in the sum of [amount].
Claim for account against gestor
1. During the period [date] to [date], defendant as negotiorum gestor managed the affairs of plaintiff by taking over the
management of plaintiff's business known as [name] at [place].
2. In so doing, defendant sold various items held in stock in the business.
3. Despite demand, defendant has failed to render an account of his management of the business, or to pay to plaintiff the
profits realised from his trading.
(a) An order for a statement and debatement of account by defendant in respect of his management of plaintiff's affairs.
(b) Payment to plaintiff of such amount found to be due to him after payment to defendant of all reasonable expenses
incurred during his management of plaintiff's affairs.
Novation
Related subject: SETTLEMENT
Novation and settlement (compromise) compared: A contract of novation extinguishes an existing obligation and
replaces it simultaneously with a new obligation.
Acacia Mines Ltd v Boshoff [1958] 4 All SA 212 (A), 1958 (4) SA 330 (A)
Weltmans Custom Office Furniture (Proprietary) Limited (in liquidation) v Whistlers CC [1999] (3) SA 1116 (SCA)
Rodel Financial Service (Pty) Ltd v Naidoo and another 2013 (3) SA 151 (KZP) para. 12
A void debt or invalid contract cannot be novated because novation presupposes the existence of a valid obligation
between the parties.
Gibson v Van der Walt [1952] 2 All SA 1 (A), 1952 (1) SA 262 (A)
The validity of a settlement agreement, on the other hand, does not depend on the validity of the compromised
obligation. This means that an invalid obligation may be compromised.
Onus: The party alleging novation must allege and prove it. An intention to novate is not presumed and must be
proved either by an express declaration of the parties or by way of necessary inference from all the circumstances
of the case (including the conduct of the parties).
French v Sterling Finance Corp (Pty) Ltd [1961] 4 All SA 445 (A), 1961 (4) SA 732 (A)
Lieberman v Santam Ltd 2000 (4) SA 321 (SCA)
Botes NO v Shamley [2007] 4 All SA 731 (SE)
National Health Laboratory Service v LloydJansen van Vuuren 2015 (5) SA 426 (SCA)
An agreement confirming the original obligation does not amount to a novation, nor does the provision of a cheque
or acknowledgement of debt (although they create a separate and second obligation).
Estate Liebenberg v Standard Bank of SA Ltd 1927 AD 502
Adams v SA Motor Industry Employers Association 1981 (3) SA 1189 (A)
SA Breweries Ltd v Ribeiro t/a Doc's Liquor Merchants [1999] 4 All SA 627 (W), 2000 (1) SA 803 (W)
An agreement to grant an extension of time is unlikely to amount to a novation.
Estate Liebenberg v Standard Bank of SA Ltd 1927 AD 502
Optima Fertilizers (Pty) Ltd v Turner [1968] 4 All SA 95 (D), 1968 (4) SA 29 (D)
[Page 278]
PRECEDENT
Plea of extinction of obligation
1. On [date] at [place], the parties entered a written agreement in terms of which plaintiff granted to defendant an option to
purchase a property [description] for [amount]. A copy of the agreement is attached and marked 'A'.
2. On [date] at [place], the parties novated the agreement by agreeing in writing that plaintiff would be granted the right of
preemption to purchase the property if and when defendant decided to sell it at a price equivalent to that offered by the
highest other offeror but at a maximum price of [amount]. A copy of this agreement is attached and marked 'B'.
3. Defendant denies, therefore, that plaintiff was entitled to exercise the option by accepting the offer in Annexure 'A'.
Nuisance
Cause of action: An occupier of land commits a nuisance by creating (or allowing) a state of affairs on the land
whereby the owner or occupier of other land is unreasonably or unfairly and materially disturbed or annoyed or
interfered with.
East London Western Districts Farmers' Association v Minister of Education & Development Aid [1989] 2 All SA 163
(A), 1989 (2) SA 63 (A)
Allaclas Investments (Pty) Ltd v Milnerton Golf Club [2008] 2 All SA 1 (SCA), 2008 (3) SA 134 (SCA)
Regarding the test for determining whether a disturbance constitutes an actionable nuisance, see
Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) [1983] 4 All SA 346 (T), 1983 (3) SA 896 (T)
PGB Boerdery Beleggings (Edms) Bpk v Somerville 62 (Edms) Bpk 2008 (2) SA 428 (SCA)
Wingaardt and others v Grobler and another 2010 (6) SA 148 (ECG)
The test is an objective one. The standard applied is not that of a perverse or overscrupulous person but of a
reasonable person.
Prinsloo v Shaw 1938 AD 570
Purely aesthetic considerations are irrelevant in determining whether an act amounts to a nuisance.
Dorland v Smits [2002] 3 All SA 691 (C), 2002 (5) SA 374 (C)
Some discomfort, inconvenience or annoyance emanating from the use of neighbouring property must be endured.
De Charmoy v Day Star Hatchery (Pty) Ltd [1967] 2 All SA 208 (D), 1967 (4) SA 188 (D)
The infringement of the right to reasonable enjoyment must be persistent and continual.
Rademeyer v Western Districts Council [1998] 2 All SA 547 (SE), 1998 (3) SA 1011 (SE)
Jurisdiction: As to the magistrates' court's jurisdiction, see
Botha v Andrade [2009] 1 All SA 436 (SCA), 2009 (1) SA 259 (SCA)
Plaintiff: The plaintiff will be the owner or occupier of land whose rights of enjoyment are infringed. A plaintiff who
occupies the affected property unlawfully has no right of action.
Amod v Andrews Bakery (Pty) Ltd [1965] 2 All SA 339 (T), 1965 (2) SA 433 (T)
A municipality may sue in respect of a nuisance affecting its inhabitants.
Municipality of Stellenbosch v Levinsohn 1911 CPD 303
[Page 279]
Defendant: The defendant will be the owner or occupier of the property from which the nuisance emanates, or the
person causing the nuisance. An owner or occupier who knowingly allows an actionable nuisance to be committed
by third parties may be interdicted from allowing the property to be so used.
Porter v Cape Town City Council [1961] 4 All SA 270 (C), 1961 (4) SA 278 (C)
'Allow' in this context implies knowledge of and consent to the act of the third party.
Moller v SA Railways & Harbours [1969] 3 All SA 370 (A), 1969 (3) SA 374 (N)
A person who buys land on which there is an existing nuisance may be interdicted from allowing that nuisance to
continue if reasonable steps can be taken to prevent its continuation.
Regal v African Superslate (Pty) Ltd [1963] 1 All SA 203 (A), 1963 (1) SA 102 (A)
Statutory breach: A nuisance may be caused by a statutory breach.
Van Rensburg v Nelson Mandela Metropolitan Municipality [2007] 4 All SA 950 (SE), 2008 (2) SA 8 (SE)
Fault: A plaintiff claiming abatement of a nuisance by a final interdict must allege and prove a clear right which is in
real danger of being infringed.
Gien v Gien 1979 (2) SA 1113 (T)
Proof of fault is not required.
Flax v Murphy [1991] 4 All SA 194 (W), 1991 (4) SA 58 (W)
Relief: Damages are not available for inconvenience, discomfort or annoyance.
Wynberg Municipality v Dreyer 1920 AD 439 p. 452
Actual damages must be proved.
Turkstra Ltd v Richards 1926 TPD 276
An interdict is usually the appropriate remedy.
Laskey v Showzone CC [2007] 4 All SA 1162 (C), 2007 (2) SA 48 (C)
BSB International Link CC v Readam SA (Pty) Ltd 2016 (4) SA 83 (SCA) (demolition ordered)
Defences: The following defences are available:
(a) The act was done in the due and reasonable exercise of the defendant's property rights.
Malherbe v Ceres Municipality [1951] 4 All SA 308 (A), 1951 (4) SA 510 (A)
It is not clear whether the onus rests on a defendant. This defence may be met by pleading and proving a
malicious motive (animus vicino nocendi).
Kirsh v Pincus 1927 TPD 199
Regal v African Superslate (Pty) Ltd [1963] 1 All SA 203 (A), 1963 (1) SA 102 (A) pp. 107109
Gien v Gien 1979 (2) SA 1113 (T) p. 1121
(b) No reasonably practicable steps could have been taken to prevent the disturbance. The onus rests on the
defendant.
Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) [1983] 4 All SA 346 (T), 1983 (3) SA 896 (T)
(c) The act was authorised by statute and could not be done without causing the disturbance or prejudice
complained of.
Johannesburg City Council v Vucinovich 1940 AD 365
[Page 280]
The defendant bears the onus of pleading and establishing that the interference was the inevitable result of
the exercise of the defendant's statutory powers and was impossible to avoid.
Moller v SA Railways & Harbours [1969] 3 All SA 370 (N), 1969 (3) SA 374 (N)
See STATUTORY AUTHORITY AS A DEFENCE TO A CLAIM FOR DAMAGES
(d) The defendant has, through prescription, obtained the right to perform the act.
Salisbury Municipality v Jooala 1911 AD 178
See PRESCRIPTION: ACQUISITIVE PRESCRIPTION
PRECEDENTS
Claim for an interdict based on nuisance
1. Plaintiff is the owner and occupier of [description].
2. Defendant is the owner (or occupier) of [description].
3. Oak trees grow on defendant's property and their branches overhang the roof of plaintiff's dwelling house.
4. The branches are a nuisance because the leaves block the guttering of plaintiff's house with the result that rainwater
cannot flow through the gutters and the walls of plaintiff's house have consequently become damp and damaged by the
stagnant rainwater.
5. Despite demand by plaintiff to defendant to abate the nuisance, he refuses to do so.
(a) An order directing defendant to abate the nuisance by chopping off the branches or in some other effective manner to
prevent the leaves from dropping onto plaintiff's guttering and shingles.
(b) An interdict against defendant to prevent the nuisance from recurring in future.
[Based on Malherbe v Ceres Municipality [1951] 4 All SA 308 (A), 1951 (4) SA 510 (A). In casu, a prior demand is essential
because plaintiff is in law entitled to remove the offending trees.]
Claim interdicting noise
1. Plaintiff is the lessee and occupier of [description].
2. Defendant is occupying the adjoining property [description] and is conducting excavating activities thereon.
3. During its activities, defendant uses compressors and jackhammers that cause a noise.
4. Defendant is thereby unreasonably and materially disturbing plaintiff in his use and occupation of the leased property in
that plaintiff is unable to conduct his profession thereon during ordinary business hours.
The plaintiff claims an interdict preventing defendant from using jackhammers and compressors during office hours in
excavating.
[Based on Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 (3) SA 159 (T).]
Plea to a claim based on nuisance
1. Defendant admits having erected on his premises a factory for manufacturing [detail] and that, in the process of
manufacture, there are times when offensive odours are caused and that these do on occasions escape from the
precincts of defendant's factory despite all reasonable steps' having been taken to contain them within the factory.
2. Defendant denies, however, that these odours cause a nuisance to plaintiff.
3. Alternatively, and should this honourable court find that the odours do constitute a nuisance to plaintiff, defendant pleads
that he cannot avoid the odours during his manufacturing business and that they were and are so caused by defendant in
the reasonable exercise of the defendant's property rights having particular regard to the fact that
(a) the property is zoned for manufacturing noxious substances; and
(b) manufacturing takes place in compliance with the provisions of the National Environmental Management: Air
Quality Act 39 of 2004.
[Page 281]
Occupational injuries
Leading cases:
Mankayi v AngloGold Ashanti Ltd 2011 (5) BCLR 453 (CC), [2011] 6 BLLR 527 (CC), 2011 (3) SA 237 (CC), (2011)
32 ILJ 545 (CC)
MEC for the Department of Health, Free State Province v DN [2015] 1 All SA 20 (SCA), [2014] 12 BLLR 1155
(SCA), 2015 (1) SA 182 (SCA), (2014) 35 ILJ 3301 (SCA)
Statute: The Compensation for Occupational Injuries and Diseases Act 130 of 1993 replaced the Workmen's
Compensation Act 30 of 1941. The general scope of the later Act does not differ much from the repealed Act. Its
object is to provide from a fund 'compensation' for disablement or death caused by or resulting from occupational
injuries (caused by accidents) or for occupational diseases sustained or contracted by employees in the course of
their employment.
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2) BCLR 139 (CC),
1999 (2) SA 1 (CC)
The claim procedure is laid down in the Act and falls beyond the ambit of the present work. In this note the focus is
on the impact of the Act on commonlaw relationships.
Right of employee to compensation: An employee who meets with an accident resulting in her or his disablement
or death is entitled to the benefits provided for and prescribed in the Act.
Compensation for Occupational Injuries and Diseases Act 130 of 1993s 22(1)
Unlike the RAF, the Compensation Act is not for the benefit of third parties who are liable in delict; it is for the
benefit of the employee and the employer. 'Premiums' have to be paid for the 'insurance' offered by the Act. The
converse point is that the Act does not increase the liability of third parties.
Road Accident Fund v Maphiri [2003] 4 All SA 168 (SCA), 2004 (2) SA 258 (SCA)
The provisions of the Act do not apply to all employees or employers but only to those falling within the scope of
these terms as defined in the Act.
Party liable: Compensation is payable by
(a) the directorgeneral;
(b) in the case of an employer individually liable, that employer; or
(c) a mutual association licensed to carry on the business of insuring employers against their liabilities under the
Act to their employees.
Rand Mutual Assurance Company Ltd v Rand Accident Fund [2009] 1 All SA 265 (SCA), 2008 (6) SA 511 (SCA)
Compensation for Occupational Injuries and Diseases Act 130 of 1993s 29
Compensation: Compensation is not the same as damages. There may be a complete overlap as in the case of
hospital and medical expenses (although for the general purposes of the Compensation for Occupational Injuries
and Diseases Act medical costs are not regarded as 'compensation'). There may also be a partial overlap as in the
case of loss of income (as a head of damages) and compensation for disablement under the Act. But then there may
be no congruent relief, as in the case of general damages for pain and suffering which are claimable in delict and for
which there is no corresponding head of compensation in the Act.
Accident: An occupational injury is a personal injury sustained because of an accident. 'Accident' means an accident
'arising out of' and 'in the course of' an employee's employment and resulting in personal injury to, illness or the
death of the employee.
Rauff v Standard Bank Properties 2002 (6) SA 693 (W)
[Page 282]
The question is whether the wrong causing the injury is connected to the employee's employment. Put differently,
the question is whether the act causing the injury was a risk incidental to employment.
Fault: Fault is not an element of the definition of 'accident' and an intentional wrong committed against the
employee is also included in the definition.
(SCA), 2015 (1) SA 182 (SCA), (2014) 35 ILJ 3301 (SCA) para. 41
Substitution of compensation for other legal remedies: Neither an employee nor her or his dependants have a
legal remedy against the employer for the recovery of damages relating to any occupational injury or disease that
results in the disablement or death of that employee. An employer's liability for compensation can arise only under
the Act.
Compensation for Occupational Injuries and Diseases Act 130 of 1993s 35(1)
MEC for Education, Western Cape Province v Strauss [2008] 1 All SA 440 (SCA), 2008 (2) SA 366 (SCA)
(SCA), 2015 (1) SA 182 (SCA), (2014) 35 ILJ 3301 (SCA)
Recovering damages and compensation paid from third parties: When a third party that is, someone other than
an employer is liable for damages caused by an occupational injury or disease in respect of which compensation is
payable,
(a) the employee may claim compensation in terms of the Act and also damages against the third party; and
(b) the directorgeneral may institute action (or intervene in the proceedings under (a)) against the third party for
the recovery of compensation that the directorgeneral is obliged to pay in terms of the Act.
In awarding an employee damages under (a), a court must deduct compensation paid in terms of the Act. The
amount recoverable under (b) may not exceed the full amount of damages suffered by the employee. (In other
words, should the amount of compensation payable exceed the damages, only the latter may be recovered from
the third party.)
The overriding principles under section 36 of the Act are that
(a) the third party is not liable for an amount greater than that which the employee could claim from the third
party but for the Act; and
(b) the employee is not entitled to double compensation.
At the same time, the total liability of the third party is not reduced: it merely deals with the division between the
employee and the directorgeneral of the amount payable by the third party.
If the employee was partly negligent and apportionment of damages must take place under the Apportionment of
Damages Act 34 of 1956 as between the employee and the third party, the employee's claim is likewise limited.
Notice: The employee must, in accordance with the procedure laid down, notify the directorgeneral (or the
employer individually liable) of the intention to institute proceedings against a third party or to abandon or settle a
claim. Compliance must be alleged in the claim.
Mutual & Federal Insurance Co Ltd v Kok 1985 (2) SA 225 (TkA)
[Page 283]
PRECEDENTS
Claim by employee under the Road Accident Fund Act 56 of 1996
Follow the precedents under ROAD ACCIDENTS but add the following additional allegations:
1. Plaintiff was at the time of the collision
(a) an employee as defined in the Compensation for Occupational Injuries and Diseases Act 130 of 1993;
(b) injured in the course of his employment with [X], an employer as defined in the Act.
2. Plaintiff received compensation for his injuries [Ry].
3. Defendant would have been liable to compensate plaintiff for all his damages amounting to [Rx], had it not been for the
provisions of the Act.
4. Plaintiff informed the directorgeneral of his intention to institute these proceedings.
5. Defendant is, therefore, liable to plaintiff in the sum of [Rx Ry].
Option
Related subject: PREEMPTION
Elements: A party wishing to enforce an exercised option must allege and prove
(a) a valid option that is, an offer contained in an agreement which would upon acceptance of the offer give rise
to a valid contract;
Venter v Birchholtz [1972] 1 All SA 361 (A), 1972 (1) SA 276 (A)
Aris Enterprises (Finance) (Pty) Ltd v Waterberg Koelkamers (Pty) Ltd 1977 (2) SA 425 (A)
(b) that the option was properly exercised. The exercise of an option must comply with the ordinary rules relating
to the acceptance of an offer.
SA Yster & Staal Industriële Korp Bpk v Koschade [1983] 4 All SA 217 (T), 1983 (4) SA 837 (T)
It must also comply with the formalities prescribed in the option for its exercise;
Inrybelange (Edms) Bpk v Pretorius [1966] 2 All SA 458 (A), 1966 (2) SA 416 (A)
Ficksburg Transport (Edms) Bpk v Rautenbach [1988] 1 All SA 259 (A), 1988 (1) SA 318 (A)
(c) that the option was open for acceptance; and
Cf. Mittermeier v Skema Engineering (Pty) Ltd [1984] 1 All SA 252 (A), 1984 (1) SA 121 (A)
(d) that the option was granted, or ceded, to that party. Options are generally capable of being ceded, unless
there is a term to the contrary in the option or if the grantee is a delectus personae.
Dettmann v Goldfain [1975] 3 All SA 430 (A), 1975 (3) SA 385 (A)
See CESSION
Breach of the option: When the grantor of an option repudiates it, the following possibilities exist:
(a) Before the exercise of the option, the grantee may interdict a transaction or transfer to maintain the status
quo to enable the grantee to claim delivery once the option has been exercised. The grantee may not claim
performance before the option is exercised.
Krauze v Van Wyk [1986] 1 All SA 293 (A), 1986 (1) SA 158 (A)
The doctrine of notice applies.
Le Roux and another v Nel and another [2013] ZASCA 109
[Page 284]
(b) The grantee may accept the repudiation of the option and claim damages but must then allege and prove
(i) the repudiation and its acceptance;
(ii) that as a matter of probability the option would have been exercised in other words, that there is a
causal connection between the repudiation and the damages; and
(iii) damages.
Sommer v Wilding [1984] 4 All SA 356 (A), 1984 (3) SA 647 (A)
(c) After the exercise of the option, the grantee may claim delivery from a third party who, with knowledge of the
option, took transfer of the subject matter of the option.
Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A)
PRECEDENTS
Claim on exercised option
1. On [date] at [place], defendant gave to [X] a written option to purchase [item] for amount]. A copy of the option is
annexed as '1'.
2. On [date], X in writing ceded the option to plaintiff. A copy of the cession is annexed as '2'.
3. On [date] at [place] and whilst the option was in full force and effect, plaintiff exercised it by notifying defendant in
writing. A copy of the exercise of the option is annexed as '3'.
4. Despite his tender of payment, defendant refuses to deliver the [item] to plaintiff.
Tendering as aforesaid, the plaintiff claims an order directing defendant to deliver the [item] to the plaintiff.
Ownership
Related subjects: ACTIO AD EXHIBENDUM; ESTOPPEL; SALE: CONCLUSION AND ENFORCEMENT; VINDICATION
Onus: A party who relies on ownership in an object must allege and prove the right to ownership.
Movables: Transfer of ownership of corporeal movable property requires delivery the transfer of possession of the
property by the owner to the transferee coupled with a real agreement between the parties.
The constituent elements of a real agreement are the intention of the owner to transfer ownership and the
intention of the transferee to acquire it.
Transfer of possession may be actual or constructive, and an agent can act for either the owner or the transferee,
or for both.
ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC [2003] 1 All SA 401 (SCA), 2003 (1) SA 401 (SCA)
Delivery: Delivery may be by way of
(a) traditio brevi manu;
Info Plus v Scheelke [1998] 2 All SA 509 (A), 1998 (3) SA 184 (SCA)
(b) traditio longa manu;
Eskom v Rollomatic Engineering (Edms) Bpk [1992] 2 All SA 64 (A), 1992 (2) SA 725 (A)
[Page 285]
(c) constitutum possessorium;
Bank Windhoek Bpk v Rajie [1994] 1 All SA 437 (A), 1994 (1) SA 115 (A)
(d) symbolic delivery;
Botha v Mazeka [1981] 4 All SA 232 (A), 1981 (3) SA 191 (A)
(e) attornment
Caledon & SuidWestelike Distrikte EksekuteursKamer Bpk v Wentzel [1972] 1 All SA 347 (A), 1972 (1) SA 270
(A)
Airkel (Edms) Bpk h/a Merkel Motors v Bodenstein [1980] 2 All SA 388 (A), 1980 (3) SA 917 (A)
Possession: Reliance may be placed on the factual presumption of ownership arising from possession.
Zandberg v Van Zyl 1910 AD 302
Ruskin v Thiergen [1962] 3 All SA 466 (A), 1962 (3) SA 737 (A)
Hefer v Van Greuning 1979 (4) SA 952 (A) p. 959
Unless it is an issue on the pleadings, a purchaser who has received delivery need not prove that the seller or an
earlier predecessor in title was a true owner or that ownership was acquired from a true owner.
Concor Construction (Cape) (Pty) Ltd v Santambank Ltd [1993] 2 All SA 496 (A), 1993 (3) SA 930 (A) p. 937
If is an issue, it may be necessary to join the seller as a third party.
See SALE: WARRANTY AGAINST EVICTION; THIRDPARTY PROCEDURE
Immovables: In accordance with the abstract theory of transfer of ownership the requirements for the passing of
ownership in immovables are also twofold, namely delivery which in the case of immovable property is by
registration of transfer in the deeds office coupled with a socalled real agreement.
Du Plessis v Prophitius and another [2009] 4 All SA 302 (SCA), 2010 (1) SA 49 (SCA)
Unless reliance is placed on acquisitive prescription, ownership in immovable property is proved by producing the
title deeds or the register of the registrar of deeds (or an extract or affidavit authorised by statute).
Gemeenskapsontwikkelingsraad v Williams (1) [1977] 2 All SA 486 (W), 1977 (2) SA 692 (W)
Cf. Pick 'n Pay Stores Ltd v Teazers Comedy and Revue CC [2000] 2 All SA 604 (W), 2000 (3) SA 645 (W)
When transfer of immovable property is registered pursuant to fraud or a forged document, ownership of the
property does not pass to the person in whose name the property is registered after the purported transfer. South
Africa's system of deeds registration is negative: it does not guarantee the title that appears in the deeds register.
Nedbank Ltd v Mendelow NO and another 2013 (6) SA 130 (SCA)
Absa v Moore 2016 (3) SA 97 (SCA) paras 3637
See FRAUD
Particulars of claim and declarations
See PART A
[Page 286]
Parties
Related subjects: CITATION OF PARTIES; LEGAL STANDING; VOLUNTARY ASSOCIATIONS
Partnerships
Related subjects: ACCOUNT AND ITS DEBATE; JOINT OWNERSHIP
The contract: A party who relies on a partnership contract must allege and prove a contract with the essentials
(a) of an undertaking by each party to bring into the partnership money, labour or skill;
(b) to carry on a business for the joint benefit of all the parties; and
(c) with the common object of making profit.
Bester v Van Niekerk [1960] 2 All SA 512 (A), 1960 (2) SA 779 (A)
Purdon v Muller [1961] 2 All SA 464 (A), 1961 (2) SA 211 (A)
Pezzutto v Dreyer [1992] 2 All SA 81 (A), 1992 (3) SA 379 (A)
The contract may be concluded expressly or tacitly. Universal partnerships between spouses and persons who
cohabit are usually concluded tacitly.
Ponelat v Schrepfer [2012] 1 All SA 532 (SCA), 2012 (1) SA 206 (SCA)
Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA)
Mühlmann v Mühlmann [1984] 1 All SA 340 (A), 1984 (3) SA 102 (A)
Steyn v Hasse and another 2015 (4) SA 405 (WCC)
Citation: A partnership is not a legal person.
Chipkin (Natal) (Pty) Ltd v Commissioner, SARS [2005] 3 All SA 26 (SCA), 2005 (5) SA 566 (SCA)
The citation of partners is regulated by Uniform rule 14 and Magistrates' court rule 58.
Liability: The following rules apply:
(a) The liability of partners is joint and several.
Bester v Van Niekerk [1960] 2 All SA 512 (A), 1960 (2) SA 779 (A)
(b) During the existence of the partnership, creditors must sue the partnership and not the individual partners.
Execution must first proceed against partnership assets. The same judgment will entitle execution against
individual partners if the partnership assets are insufficient.
Muller v Pienaar [1968] 3 All SA 290 (A), 1968 (3) SA 195 (A)
Herbst v Solo Boumateriaal [1993] 3 All SA 211 (T), 1993 (1) SA 397 (T)
(c) As soon as the partnership is dissolved, action for payment of the full debt may be instituted against any of
the partners.
Lee v Maraisdrif (Edms) Bpk [1976] 3 All SA 53 (A), 1976 (2) SA 536 (A)
(d) A partnership which was dissolved after the accrual of the cause of action but before the issue of summons
may be sued in its name as at the date of accrual. The [Page 287] action continues against the persons
alleged by the plaintiff or stated by the partnership to have been partners, as if they are being sued
individually.
Kirsch Industries Ltd v Vosloo & Lindeque [1982] 4 All SA 326 (W), 1982 (3) SA 479 (W)
Beira v RaphaelyWeiner 1997 (4) SA 332 (SCA)
(e) Despite its dissolution, a partnership is deemed to remain in existence until the claims of creditors have been
discharged and for the purposes of liquidating and distributing the assets.
Van der Merwe v Sekretaris van Binnelandse Inkomste [1977] 1 All SA 591 (A), 1977 (1) SA 462 (A) p. 472
Spie Batignolles SA v Van Niekerk [1980] 3 All SA 686 (NC), 1980 (2) SA 441 (NC)
Actio pro socio : The rules of the action between partners are as follows:

(a) During the existence of the partnership, action may be instituted by a partner against a copartner for specific
performance of the partnership agreement and fulfilment of obligations arising from it.
(b) When the partnership agreement provides for or the parties subsequently agree to the dissolution of the
partnership and the way the partnership is to be liquidated and wound up, specific performance may be
claimed.
(c) When neither the partnership agreement nor the subsequent agreement between the partners provides for
its dissolution or winding up, this action may be brought by a partner to have it liquidated and wound up. The
court may appoint a liquidator to realise the partnership assets for liquidating partnership debts and to
distribute the balance of the assets or their proceeds among the partners.
(d) When a partnership has been dissolved, a partner may claim, against a copartner, distribution of any
undistributed partnership assets.
Van Onselen NO v e Kgengwenyane 1997 (2) SA 423 (BSC)
Els v Smit [2009] 1 All SA 339 (SCA)
Espag v Hattingh [2010] 1 All SA 394 (SCA), 2010 (3) SA 22 (SCA)
A person appointed to liquidate a partnership is not entitled to use the actio pro socio.
Morar NO v Akoo and another [2011] 4 All SA 617 (SCA), 2011 (6) SA 311 (SCA) (also, in general, on the powers
of liquidators)
Partners are not debtors and creditors inter se in relation to partnership dealings until the partnership is wound up
or there is a binding settlement of accounts. Accordingly, one partner has no right of action against another partner
for the balance owing until after final settlement of accounts. Partners must, therefore, allege a windingup or a
settlement of accounts before suing for money due by another partner.
Pataka v Keefe [1947] 3 All SA 125 (A), 1947 (2) SA 962 (A)
Ferreira v Fouche [1949] 1 All SA 130 (T), 1949 (1) SA 67 (T)
Loots v Nieuwenhuizen 1997 (1) SA 361 (T)
A former partner has no claim to the property of a dissolved partnership. The claim is at best for a proportionate
share of the proceeds after liquidation because common partnership property falls for division between the partners
on dissolution.
Carmel Trading Co Ltd v Commissioner, SA Revenue Service [2008] 2 All SA 125 (SCA), 2008 (2) SA 433 (SCA)
Once a liquidator is appointed, a partner's right to claim delivery of partnership property from another partner ends.
Van Tonder v Davids [1975] 3 All SA 544 (C), 1975 (3) SA 616 (C)
Anonymous partner: An anonymous partner is not liable for partnership debts.
SACCA Ltd v Olivier [1954] 2 All SA 279 (T), 1954 (3) SA 136 (T)
[Page 288]
The name of an anonymous partner may not be disclosed to the world at large and the partner may not participate
in the partnership business.
Mmabatho Food Corp (Pty) Ltd v Fourie [1985] 1 All SA 92 (T), 1985 (1) SA 318 (T)
PRECEDENTS
Claim for account
1. From [date] until [date], the parties carried on a business as general dealers in partnership at [place].
2. The aforesaid partnership was dissolved by oral agreement on the latter date.
3. During the currency of the partnership, defendant acted as the sole manager of the partnership business, conducted all
the partnership transactions and was in sole control thereof.
4. Plaintiff had no share in the management and control of the business, its transactions or assets.
5. Despite his obligations to do so, defendant has failed to render to plaintiff an account of the partnership's transactions for
the period aforesaid.
(a) An order directing defendant to render to plaintiff an account of all partnership transactions for the period [date] to [date]
duly supported by proper vouchers.
(b) A debate of such account.
(c) Payment to plaintiff of any amounts found to be owing to plaintiff.
[See ACCOUNT AND ITS DEBATE.]
Claim for dissolution of partnership
1. On [date] at [place], the parties entered a written agreement of partnership. A copy {'A'] is attached.
2. The partnership was formed for the express purpose of erecting a certain block of flats at [address] and thereafter
selling it.
3. The block of flats was erected and was sold on [date] for a selling price of [amount].
4. In the premises, the purpose for which the partnership was created ceased to exist.
5. Plaintiff called upon defendant to agree to dissolution of the partnership and for the appointment of a liquidator, but
defendant refused to do so.
(a) An order dissolving the partnership.
(b) An order appointing a liquidator with authority to realise the partnership assets, to liquidate the liabilities of the
partnership, to prepare a final account and to pay to plaintiff half the net assets of the partnership.
Claim for appointment of a liquidator
1. On [date] at [place], the parties entered a written partnership agreement. A copy marked 'A' is attached.
2. In terms of the agreement the parties have since [date] and to date been trading as partners under the style of [name]
at [address].
3. Defendant breached the partnership agreement in that he [specify].
4. The breach of contract was a material one and plaintiff was entitled to cancel the agreement.
5. By letter dated [date], plaintiff cancelled the agreement of partnership.
6. Defendant refused to agree to the appointment of a liquidator or in any way to assist in the liquidation of the partnership.
[Page 289]
(a) An order confirming the dissolution of the partnership.
(b) An order appointing a liquidator with authority to realise the partnership assets, to liquidate the liabilities of the
partnership, to prepare a final account and to pay to the parties whatever is owing to them by virtue of the partnership
agreement.
Claim for dissolution in terms of the agreement
1. On [date] at [place], the parties entered an oral agreement of partnership in terms of which they traded under the style
of [name] at [address] from [date] to the date hereof.
2. Relations between plaintiff and defendant have become strained to such an extent that it is no longer possible to continue
the partnership profitably because [detail].
3. It was an express term of the agreement between the parties that, upon dissolution of the partnership, the affairs of the
partnership would be liquidated as follows: [detail].
4. Despite demand, defendant refused to agree to dissolve the partnership or to give effect to the provisions relating to
liquidation.
5. Plaintiff hereby tenders to carry out his obligations relating to the dissolution and liquidation of the partnership.
(a) An order dissolving the partnership.
(b) An order directing defendant to [state relief sought].
Claim in respect of a universal partnership between spouses
1. The parties were married to each other out of community of property by antenuptial contract at [place] on [date].
2. During the subsistence of the marriage, the parties commenced for their joint benefit a retail grocery business at
[address] and entered into a tacit partnership agreement.
3. Defendant paid into the said business the initial sum of [amount] and thereafter both he and plaintiff contributed in equal
shares their labour, services and skill to the business. Neither received a salary from the business but, from time to time,
each one, by mutual agreement, drew money from the profits of the business for personal use and benefit and for the
purposes of the common household.
4. No express agreement as to the division of the profits of the business was arrived at between the parties, but plaintiff
avers that, in the premises, it was tacitly agreed that the profits would be divided in equal shares.
5. The marriage between the parties was dissolved by this honourable court on [date].
6. At all material times, defendant was and still is in possession of all the books of account of the partnership.
7. Defendant denies the existence of the partnership and has refused to render to plaintiff an account of the said business.
(a) An order declaring that a partnership existed between plaintiff and defendant in equal shares in respect of the grocery
business.
(b) An order dissolving the partnership as from [date].
(c) An order appointing a liquidator [and so on].
Passingoff
Related subjects: TRADE MARKS; UNLAWFUL (UNFAIR) COMPETITION
Trademark infringement and passingoff: The distinction between these two actions is dealt with under TRADE
MARKS.
[Page 290]
Domain names: Domain names are a new type of intangible property. Domain names are the humanfriendly forms
of internet addresses. The domain name system is essentially a global addressing system that enables an internet
user to access a web page. It consists of two parts, namely numerical and a distinctive readable address.
Domain name disputes relating to names registered in the co.za domain are subject to the Alternative Dispute
Resolution Regulations promulgated by the Minister of Communications November 2006.* It obliges anyone in
whose name a domain name ending with co.za was registered to submit to a dispute resolution proceeding
initiated by a complainant who alleges that
(a) the complainant has rights in respect of a name or mark which is identical or similar to the domain name and,
in the hands of the registrant, the domain name is an abusive registration; or
(b) the domain name, in the hands of the registrant, is an offensive registration.
Fairhaven Country Estate (Pty) Ltd v Harris and another 2015 (5) SA 540 (WCC)
All other domain name disputes are subject to the Uniform Domain Name Dispute Resolution Policy (UDRP). Under
the standard dispute clause for the registration, the registrant submits to system. The provider (e.g. the WIPO
Arbitration and Mediation Centre) appoints a panelist who decides whether the domain(s) should be transferred to
the complainant.?
Cause of action: A passingoff action protects the goodwill or reputation of a trader's business, merchandise or
services against a false representation by a competitor that the business, merchandise or service of the competitor
is that of or associated with the plaintiff. It also provides protection against deception as to trade source or trade
connection.
Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc [1977] 3 All SA 306 (A), 1977 (2) SA 916 (A)
Pioneer Foods (Pty) Limited v Bothaville Milling (Pty) Limited [2014] 2 All SA 282 (SCA)
The typical case of passingoff is when the defendant uses, adopts or imitates the trade name or getup of the
plaintiff's business, goods or services.
AdcockIngram Products Ltd v Beecham SA (Pty) Ltd [1977] 4 All SA 657 (W), 1977 (4) SA 434 (W)
Passingoff is a species of the broader delict of unlawful competition.
Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T) p. 1138
Jurisdiction: The ordinary principles relating to delictual claims apply.
Parties: The goodwill must be that of the plaintiff. A distributor of goods of another person has no legal interest to
protect the manufacturer's goodwill.
Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd [1975] 2 All SA 416 (W), 1975 (4) SA 626 (W)
Salusa (Pty) Ltd v Eagle International Traders [1979] 4 All SA 839 (C), 1979 (4) SA 697 (C)
A plaintiff who ceased to carry on business must show that he or she has retained the reputation or a residual
renown. A defendant who relies on the abandonment of goodwill must prove it.
Polakow Bros (Pty) Ltd v Gershlowitz [1976] 1 All SA 452 (SE), 1976 (1) SA 863 (SE)
[Page 291]
An instigator or accomplice is likewise liable.
Omega Louis Brandt et Frere SA v African Textile Distributors [1982] 3 All SA 612 (T), 1982 (1) SA 951 (T)
Misrepresentation: The plaintiff must allege and prove a misrepresentation by the defendant. The test is whether
there is a reasonable likelihood that members of the public may be confused into believing that the business of one
person is or is connected with that of the plaintiff.
The representation must be false and unauthorised.
Reputation or goodwill: It is necessary to allege and prove that the plaintiff's trade name, trade mark, getup or
service mark was known in the market, became distinctive and acquired a public reputation.
para. 16
Herbal Zone (Pty) Limited and others v Infitech Technologies (Pty) Limited and others [2017] 2 All SA 347 (SCA)
Consequently, when a trader uses a word in its ordinary meaning or a descriptive term as a trade name, it must be
proved that through use the word acquired a secondary meaning and designates the plaintiff's goods, services or
business.
Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A) p. 938
When, however, a trader uses a fancy or invented name, it is difficult to avoid an inference of passingoff if a rival
uses that name.
Truck & Car Co Ltd v Hirschmann [1954] 2 All SA 118 (E), 1954 (2) SA 117 (E)
The same principles apply when the plaintiff seeks to protect the getup goods.
Bergkelder v Delheim Wines (Pty) Ltd [1980] 4 All SA 542 (C), 1980 (3) SA 1171 (C)
Calculated to deceive or confuse: It is necessary to allege and prove that the defendant's getup or trade name
was calculated or likely to deceive or confuse the ordinary customer and thus to cause confusion and damage to the
goodwill of the plaintiff's business by, for example, diverting customers from the plaintiff's business or product to
that of the defendant.
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd [1993] 1 All SA 27 (A), 1993 (2) SA 307 (A)
Confusion itself is not enough: there must be a causal connection between the representation and the confusion.
Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930 (A)
It is not necessary to prove that anyone was actually deceived or confused, but a plaintiff who fails to prove actual
confusion or deception runs the risk of failing to establish the likelihood of confusion.
Rizla International BV v L Suzman Distributors (Pty) Ltd [1996] 2 All SA 414 (C), 1996 (2) SA 527 (C)
Common field of activity: Proof of a common field of activity is merely a factor in determining whether the
defendant's conduct is likely to lead to confusion between the parties' goods or businesses.
Philip Morris Inc v Marlboro Shirt Co SA Ltd [1991] 2 All SA 177 (A), 1991 (2) SA 720 (A)
[Page 292]
Intention to deceive: The plaintiff need not show that the defendant intended to deceive. Evidence of such
intention, however, may indicate that the defendant considered that the plaintiff's trade mark, getup or trade
name had acquired the requisite reputation. A court may then more readily find that the likelihood of deception or
confusion has been established. Moreover, there is a practical justification for holding that a deliberate copier
succeeded with passingoff.
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (A), 2001 (3) SA 884 (SCA)
Interdict: The plaintiff may claim an interdict prohibiting the defendant from using, adopting or imitating the trade
name, trade or service mark or getup.
WeberStephen Products Co v Alrite Engineering (Pty) Ltd [1992] 4 All SA 453 (A), 1992 (2) SA 489 (A)
It is not necessary to allege and prove either intention to deceive or negligence on the part of the defendant.
Kenitex Africa (Pty) Ltd v Coverite (Pty) Ltd [1967] 3 All SA 357 (W), 1967 (3) SA 307 (W)
See INJURIOUS FALSEHOODS
It is also not necessary to prove actual prejudice. The probability of prejudice resulting from the defendant's
persisting in the conduct complained of is sufficient.
Damages: The plaintiff may recover damages for any loss suffered by the delict.
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T)
Cf. Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (A), 1997 (4) SA 399 (SCA)
Loss may result from a diversion of custom from the business or injury to its reputation.
Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T)
Account of profits: A claim for an account of profits is not competent.
An interim order may be granted directing the keeping of an account of sales by the defendant to enable the
plaintiff to assess at a later stage the damages suffered.
John Waddington Ltd v Arthur E Harris (Pty) Ltd [1968] 1 All SA 174 (T), 1968 (1) SA 38 (T)
Deliveryup: To make the interdict effective, the plaintiff may obtain an order for the handing over of material to
remove or destroy any offending matter.
Jafta v Minister of Law & Order [1991] 4 All SA 234 (A), 1991 (2) SA 286 (A)
Alternative causes of action: A passingoff action is often brought as an alternative to trademark infringement. An
act of passingoff may also overlap with other types of unlawful competition such as contravention of a statutory
provision, such as section 7 of the Merchandise Marks Act 17 of 1941 or the Counterfeit Goods Act 37 of 1997. The
plaintiff may then base the case primarily or in the alternative on a contravention of the relevant statute.
Berman Bros (Pty) Ltd v Sodastream Ltd [1986] 2 All SA 252 (A), 1986 (3) SA 209 (A)
[Page 293]
A getup may also constitute an original artistic work. If it does, the plaintiff may base the claim on passingoff or
infringement of copyright or both, and claim the remedies provided for in the Copyright Act.
See COPYRIGHT
Character merchandising
See INTERFERENCE WITH CONTRACTUAL RELATIONSHIPS
Nevertheless, it is not legitimate to use some general notion of unlawful competition to create an ersatz passingoff
with requirements (in the alternative) less exacting than those required by the common law. Some of the restraints
that the common law places on the passingoff action are important in preventing the creation of impermissible
monopolies.
Payen Components SA Ltd v Bovic CC [1995] 2 All SA 600 (A), 1995 (4) SA 441 (A) p. 453
Doctrine of unclean hands: A plaintiff whose own getup contains a material false representation may not be
entitled to protection from passingoff.
Zyp Products Co Ltd v Ziman Bros Ltd 1926 TPD 224
This doctrine of unclean hands is applicable only if there was fraud, dishonesty or mala fides on the part of the
plaintiff.
Volkskas Bpk v Barclays Bank (DC & O) [1952] 3 All SA 325 (A), 1952 (3) SA 343 (A)
Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd [1976] 2 All SA 472 (T), 1976 (4) SA 218 (T)
A related principle is that passingoff cannot be used to protect a false reputation or a misapprehension.
Marketsurvey evidence: To prove reputation, a party may rely on marketsurvey evidence provided it is properly
structured.
McDonald's Corporation v Joburgers DriveInn Restaurant (Pty) Ltd [1996] 4 All SA 1 (A), 1997 (1) SA 1 (A)
PRECEDENTS
Interdict passingoff
1. Since or about [date], plaintiff has made continuous and extensive use of a distinctive getup in relation to toilet soap in
South Africa.
2. The getup consists of a white wrapper upon which is printed a device comprising the mark ACME printed in a distinctive
style of lettering. Annexure 'A' is an example.
3. Because of plaintiff's continuous and extensive use of the getup, plaintiff has built up a substantial reputation therein,
and members of the public associate toilet soap, in relation to which the getup is used, as toilet soap emanating from
plaintiff or as being connected in the course of trade with plaintiff.
[or]
The getup has become and is identified in the minds of the public with soap manufactured and supplied by plaintiff, and
purchasers and traders, when purchasing soap in the getup, do so in the belief that it emanates from and is supplied by
plaintiff.
4. Since about [date], defendant has been selling toilet soap in relation with a getup comprising a pink wrapper upon which
the word ACNE is used in a distinctive style of lettering (hereinafter referred to as 'the offending getup'). Annexure 'B' is
an example of the offending getup.
[Page 294]
5. The offending getup is confusingly or deceptively like plaintiff's getup.
6. The conduct of defendant is not authorised by plaintiff.
7. The conduct of defendant is calculated to confuse or deceive people into believing that defendant's products are those of
plaintiff or are connected in the course of trade with plaintiff.
8. In the premises, defendant is wrongfully passingoff its products as and for those of plaintiff.
9. Plaintiff apprehends on reasonable grounds that defendant will not desist with its aforesaid unlawful conduct unless
restrained by an order of court.
The plaintiff claims an interdict restraining defendant from passingoff its soap as that of plaintiff or as being connected in the
course of trade with plaintiff, by using, in regard thereto, the offending getup or any getup which is confusingly or deceptively
similar to plaintiff's distinctive getup.
Footnotes
* The regulations are available at http://www.domaindisputes.co.za/content.php?tag=7.
? See www.wipo.int/amc/en/domains.
Patents
Statute: Patents are governed by the Patents Act 57 of 1978. Only patentinfringement proceedings are by way of
action and, for that reason, this title is limited to a discussion of infringement proceedings.
Jurisdiction: The court of the commissioner of patents is the only tribunal with jurisdiction in the first instance to
hear and decide proceedings relating to any matter under the Act.
Patents Act 57 of 1978s 18
Precismeca Ltd v Melco Mining Supplies (Pty) Ltd 2003 (1) SA 664 (SCA)
The commissioner has, in connection with patent proceedings, the powers and jurisdiction of a single judge of the
High Court in a civil action.
Patents Act 57 of 1978s 17(1)
The procedure must be as far as practicable the same as for civil cases in the Gauteng North High Court.
Any decision or order of the commissioner has the same effect as, and for all purposes is deemed to be a decision
or order of, the Gauteng North High Court.
Patent regulation 76
The proceedings of the court of the commissioner are not subject to review.
Gentiruco AG v Firestone SA (Pty) Ltd [1972] 1 All SA 201 (A), 1972 (1) SA 589 (A)
Territorial jurisdiction: Patent infringement is a statutory delict and the court of the commissioner has jurisdiction
in respect of South African patents and acts of infringement committed in South Africa only.
Cf. Schlumberger Logelco Inc v Coflexip SA 2000 (3) SA 861 (SCA)
Plaintiff: An infringement action may be instituted by
(a) the patentee; or
(b) a licensee of right (after having called upon the patentee to institute action, in which event the patentee must
be joined as a defendant).
Intervention as plaintiff: Notice must be given to every licensee under the patent in question whose name is
recorded in the register and who is entitled to join as coplaintiff and recover any damages suffered because of the
infringement.
[Page 295]
Likewise, a joint patentee who institutes infringement proceedings must give notice thereof to every other joint
patentee. The latter may intervene as coplaintiffs and recover damages.
Defendant: Any person who during the duration of the patent makes, uses, exercises, disposes or offers to dispose
of or imports the invention infringes the patent.
The sale of a patented article by or on behalf of a patentee or a licensee gives the purchaser the right to use, to
offer to dispose of and to dispose of that article.
The patent: The plaintiff must allege and prove that the patent has been granted (not merely applied for) and at all
times relevant to the action in force.
Continental Linen Co (Pty) Ltd v Kenpet Agency (Pty) Ltd [1986] 4 All SA 437 (T), 1986 (4) SA 703 (T)
There is a presumption that a registered patent is valid.
Gentiruco AG v Firestone SA (Pty) Ltd [1972] 1 All SA 201 (A), 1972 (1) SA 589 (A) p. 629
It is preferable to attach a copy of the complete specification to the particulars of claim.
Phillips Estate (Pvt) Ltd v Braunstein [1964] 4 All SA 166 (SR), 1964 (3) SA 818 (SR)
The grant of the patent may be proved by means of a certificate purporting to be signed by the registrar of patents.
Infringement: The plaintiff must allege and prove that the defendant has infringed one or more of the claims of the
patent. Infringement means that the defendant, without the consent of the patentee, has made, used, exercised,
disposed or offered to dispose of or imported the invention.
The practice is to plead one or more instances of infringement that will be the subject of the evidence.
Infringement turns on a comparison between the article or process involved in the alleged infringement and the
scope of the claims.
Gentiruco AG v Firestone SA (Pty) Ltd [1972] 1 All SA 201 (A), 1972 (1) SA 589 (A)
Nampak Products Ltd v ManDirk (Pty) Ltd [1999] 2 All SA 543 (A), 1999 (3) SA 708 (SCA)
Aktiebolaget Hässle v Triomed (Pty) Ltd [2002] 4 All SA 138 (A), 2003 (1) SA 155 (SCA)
Inciting and abetting infringement of patent:
Cipla Medpro (Pty) Ltd v Aventis Pharma SA (Treatment Action Campaign as amicus curiae) 2013 (4) SA 579
(SCA)
Relief: In an infringement action, relief may be obtained by way of
(a) an interdict;
(b) deliveryup of any infringing product or any article or product of which the infringing product forms an
inseparable part; and
(c) damages.
Stauffer Chemicals v Monsanto Co [1988] 3 All SA 279 (T), 1988 (1) SA 805 (T)
Cipla Medpro (Pty) Ltd v Aventis Pharma SA (Treatment Action Campaign as amicus curiae) 2013 (4) SA 579
(SCA)
The plaintiff may claim an inquiry into the damages suffered because of the infringement and payment of the
amount of damages found to have been so suffered. It is [Page 296] accordingly not necessary to specify in the
pleadings the damages allegedly suffered or how they are computed.
Patent regulation 98
The measure of damages is delictual and may include loss of profit in respect of those articles the plaintiff could and
would have made and sold but for the infringement. The plaintiff must prove this probability, since there is no prima
facie inference that infringing sales would have gone to the plaintiff.
Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd 1978 (3) SA 465 (A)
In lieu of damages the plaintiff may choose to claim an amount based on a reasonable royalty which would have
been payable by a licensee or sublicensee in respect of the patent concerned.
Cf. Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd [2010] 1 All SA 25 (SCA), 2010 (2) SA 600 (SCA)
Invalidity: A defendant may rely on the invalidity of a patent in two ways:
(a) in the plea, as a defence; and
(b) (optionally) in a counterclaim for the revocation of the patent.
Strix Limited v NuWorld Industries 2016 (1) SA 387 (SCA)
There is little, if any, merit in not counterclaiming for revocation.
The onus rests on the defendant to allege and prove the invalidity of the patent. Each statutory ground of invalidity
relied on must be specially and separately pleaded and considered separately by the court.
FiltaMatix (Pty) Limited v Freudenberg [1998] 1 All SA 239 (A), 1998 (1) SA 606 (SCA)
The attack of invalidity should as far as possible be directed at the claims relied on by the plaintiff because relief
may be granted in respect of a partially valid patent.
Patents Act 57 of 1978s 68
PRECEDENTS
Claim infringement
1. First plaintiff is, and has at all material times been, the registered proprietor of patent [number 72/2519] entitled
'Herbicide Compositions'.
2. The patent has, at all material times, been valid and subsisting. A copy of the complete specification is annexed.
3. Second plaintiff is, and has at all material times been, a registered licensee under the said patent.
4. From a date unknown to plaintiffs, defendant has infringed and is infringing claims 1 to 5 of the patent.
5. To prove infringement, plaintiffs will rely on:
(a) the importation by defendant of 100 litres of a herbicidal composition known as Genep Plus on [date];
(b) the sale by defendant of Genep Plus to [name] on [date] at [place]
without the authority of the plaintiff.
6. Genep Plus is a herbicidal composition falling within the scope of claims 1 to 5 of the patent.
7. Plaintiffs apprehend on reasonable grounds that defendant will not desist from infringing unless restrained by an order of
court.
8. The conduct of defendant is causing plaintiffs damages, which damages plaintiffs are not presently able to quantify.
[Page 297]
The plaintiffs claim:
(a) An interdict restraining defendant from infringing the patent by importing and/or disposing of Genep Plus.
(b) Deliveryup of all the infringing Genep Plus in the possession of defendant or under its control.
(c) An inquiry into damages suffered by plaintiffs because of defendant's infringement.
[Based on the facts of Stauffer Chemical Co v Safsan Marketing 1987 (2) SA 331 (A).]
Claim infringement
1. The plaintiff is the registered proprietor of patent [number] entitled 'Online Measuring System and Method'.
2. The patent is, and has been, at all material times hereto valid and subsisting. A copy of the complete specification is
attached as annexure.
3. Claim 1 claims a system for the online measurement of a parameter in processed sugarcane which includes (a) a
scanning head mounted adjacent to a continuous stream of processed cane, the scanning head comprising a remote light
source and reflectedlightgathering and transmission apparatus, (b) a nearinfrared spectrophotometer which includes a
monochromator for resolving the reflected light into light of a discrete wavelength and (c) a database containing a
referencecalibration equation linking absorption characteristics by wavelength and the quantified presence of the
parameter of interest.
4. From a date unknown to the plaintiff the defendant has used and is using a system for the online measurement of a
parameter in processed sugarcane at the defendant's sugar mill.
5. The system includes a scanning head mounted adjacent to a continuous stream of processed cane, the scanning head
comprising a remote light source and reflectedlightgathering and transmission apparatus.
6. The system includes a nearinfrared spectrophotometer which includes a monochromator for resolving the reflected light
into light of a discrete wavelength.
7. The system includes a database containing a referencecalibration equation linking absorption characteristics by
wavelength and the quantified presence of the parameter of interest.
8. The conduct of the defendant is not authorised by the plaintiff.
9. Consequently, by using the system the defendant has infringed and is still infringing claim 1 of the patent.
10. The plaintiff apprehends on reasonable grounds that the defendant will not desist from infringing unless restrained by an
order of court.
11. The conduct of the defendant has caused and is causing the plaintiff damages, which damages the plaintiff is at present
unable to quantify.
(a) An interdict restraining the defendant form infringing claim 1 of the patent;
(b) An enquiry into damages suffered by the plaintiff because of the defendant's infringement;
(c) Should the enquiry in terms of subparagraph (b) above be ordered and the parties be unable to reach agreement as to
the future process relating to the enquiry, an order authorising either of the parties to make application to the above
Honourable Court for directions; and
(d) Costs of suit.
Plea infringement
1. Defendant admits the specification annexed but denies that the patent is valid and subsisting for the reasons set out in
the counterclaim.
2. Defendant admits its importation and sale of Genep Plus as alleged but denies that Genep Plus falls within the scope of
any of the claims of the patent. Defendant accordingly denies that it has infringed or is infringing the said patent.
[Page 298]
Counterclaim invalidity
1. Plaintiff in reconvention is defendant in convention.
2. Defendant in reconvention is first plaintiff in convention.
3. The parties will be referred to as in convention.
4. First plaintiff is the registered proprietor of patent [number 72/2519] entitled 'Herbicide Compositions'.
5. The patent is invalid for one or more of the reasons set out below in the statement of particulars of invalidity.
The defendant claims revocation of patent [number 72/2519].
Statement particulars of invalidity
1. The invention claimed in claims 1 to 5 was not patentable because it was not new immediately before the priority date of
the patent, since it formed part of the state of the art as made available to the public:
(a) in a public lecture given by [name] at [place] on [date];
(b) in a publication entitled [name] published on [date] at [place].
2. The invention claimed in claims 1 to 5 was not patentable because it did not involve an inventive step, since it was
obvious to a person skilled in the art having regard to the state of the art immediately before the priority date of the
patent.
3. The invention claimed in claim 1 covers compound X, and compound X has no herbicidal properties.
4. The invention as exemplified in the complete specification does not lead to results and advantages set out in the
complete specification because [give details].
Payment
Related subjects: BANKS; CHEQUE; CONDICTIO INDEBITI; LOAN FOR CONSUMPTION; TENDER IN 'FULL AND FINAL
SETTLEMENT'
General: Generally, payment is a bilateral act one that, in the absence of agreement to the contrary, requires the
cooperation of payer (usually the debtor) and payee (the creditor). Also, discharge of a debt generally requires an
agreement between the debtor and creditor to that effect, which agreement may be express or tacit.
Nevertheless, a debt may be extinguished by a payment made by a stranger to the creditor in discharge of that
debt even if the debtor is unaware of such payment. This does not apply to the discharge of an obligation which by
its nature can be properly performed only by the debtor in person.
Mostert and others v Firstrand Bank t/a RMB Private Bank [2018] ZASCA 54
A thief who pays own or another's debts with stolen funds extinguishes those debts, provided the creditor who
receives and accepts payment is innocent. Payment by electronic means is effective if the payee acquires the
unfettered or unrestricted right to the immediate use of the funds in question.
If payment is made into a bank account, acceptance is evidenced by the corresponding credit and its nonreversal.
SaambouNasionale Bouvereniging v Friedman [1979] 2 All SA 71 (A), 1979 (3) SA 978 (A) p. 993
Vereins und Westbank AG v Veren Investments 2002 (4) SA 421 (SCA)
2005 (1) SA 441 (SCA)
[Page 299]
ABSA Bank Limited v Lombard Insurance Company Limited; FirstRand Bank Limited v Lombard Insurance
Company Limited [2012] 4 All SA 485 (SCA), 2012 (6) SA 569 (SCA) para. 18.
C f. NMB Bank Limited v Capsopoulos and another [2017] 3 All SA 765 (SCA); Absa Bank Ltd v Moore and another
2017 (2) BCLR 131 (CC), 2017 (1) SA 255 (CC) paras 3236
Onus: A plaintiff claiming payment must allege the defendant's failure to make payment. A defendant wishing to rely
on a payment, in defence, must allege and prove the payment.
Pillay v Krishna 1946 AD 946 p. 958
1998 (1) SA 811 (SCA)
Payment by cheque
See CHEQUE
Appropriation of payment: The rules of appropriation of payment operate when a debtor who owes more than one
debt to the same creditor pays the creditor an amount which is insufficient to discharge the total indebtedness to
the creditor.
Pfeiffer v First National Bank of SA Ltd [1998] 3 All SA 397 (A), 1998 (3) SA 1018 (SCA)
In general, when the debtor does not appropriate the payment to any particular debt, the creditor is entitled to do
so when payment is made.
Douglas Green Bellingham v Green t/a Greens Bottle Recyclers [1997] 4 All SA 423 (A), 1998 (1) SA 367 (SCA)
If capital and interest are owing in respect of the same indebtedness, payment must be credited first to interest
and thereafter to capital.
1998 (1) SA 811 (SCA)
An enforceable debt is extinguished before an unenforceable one. In the case of enforceable debts, the more
onerous such debt is extinguished first. A debt secured by a deed of suretyship is classified as an onerous debt, but
a surety bound to a limited amount is not discharged from liability merely upon payment by the principal debtor of
an equivalent portion of the principal debt.
ABSA Bank Ltd t/a Volkskas Bank v Page [2002] 1 All SA 99 (A), 2002 (1) SA 617 (SCA)
Older debts are settled before more recent ones. When none of the specific rules applies, the various debts are
settled proportionally.
Payment under protest
Payment to a third party: The parties may agree that payment made to a third party constitutes payment of the
debt. This usually means that the agreement authorises the debtor to pay the creditor's creditor who is referred to
as an adiectus solutionis gratia.
Stupel & Berman Incorporated v Rodel Financial Services (Pty) Ltd [2015] 3 All SA 150 (SCA), 2015 (3) SA 36
(SCA)
PRECEDENTS
Plea of payment
1. Defendant admits that he owed plaintiff the sum of [Rx].
2. Defendant pleads, however, that, on [date] at [place], defendant paid [Rx] to plaintiff by personally handing to him a
cheque drawn on [C] bank for [Rx], which cheque was duly honoured by [C] on [date].
[Page 300]
Pleadings: General principles
See PART A s.v. I. INTRODUCTION
Pleas
See PART A s.v. III. PLEAS
Pledge
Creation of a pledge: A pledge is valid and perfected if it is based on
(a) a valid principal obligation which is to be secured by the pledge;
Kilburn v Estate Kilburn 1931 AD 501
Oertel NO v Brink 1972 (3) SA 669 (W)
(b) an agreement to pledge; and
Vasco Dry Cleaners v Twycross [1979] 1 All SA 321 (A), 1979 (1) SA 603 (A)
(c) delivery to and continued possession of the pledged article by the pledgee.
Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd [2003] 1 All SA 267 (SCA), 2003 (2) SA 253 (SCA)
Duties of the pledgee: The pledgee must take good care of the pledge and is responsible for all damage to it. If the
pledged article is destroyed, the pledgee must make it good; if it is being misused, the pledgee may be compelled
to give security. When the debt is paid, the pledgee must restore the article pledged in a state no worse than that
in which it was received.
Simon NO v Mitsui & Co Ltd [1996] 3 All SA 353 (W), 1997 (2) SA 475 (W)
Pactum commissorium : A pactum commissorium in the context of a pledge is an agreement that provides that

should the pledgor default the pledgee may keep the security as the pledgee's own property. Such an agreement is
void.
Graf v Buechel [2003] 2 All SA 123 (SCA), 2003 (4) SA 378 (SCA)
An agreement whereby the creditor may keep a pledge upon the debtor's default at a fair price then determined is
similar to a conditional sale, and is valid.
Bock v Duburoro Investments (Pty) Ltd [2003] 4 All SA 103 (SCA), 2004 (2) SA 242 (SCA)
National Credit Act 34 of 2005: This Act applies to pawning.
Security by Means of Movable Property Act 57 of 1993: At common law, security over movables could have been
established only by means of delivery under an agreement to pledge. This Act provides for the registration of
notarial bonds hypothecating corporeal movable property. If it is specified and described in the bond in a manner
that renders it readily recognisable, and the bond is registered, that property is deemed to have been pledged to
the mortgagee as effectually as if it had been delivered to the mortgagee.
Janse van Rensburg v Mahu Exhaust CC and another 2014 (3) SA 431 (NCK)
Statutory pledges: Pledges are sometimes created by statute without agreement or delivery. A typical example is
the pledge created in favour of an agricultural cooperative.
Cooperatives Act 14 of 2005 sched. 1, part 4
[Page 301]
PRECEDENTS
Claim for return of pledged article
1. On [date] at [place], and pursuant to an oral agreement between the parties, plaintiff pledged with defendant [state
article pledged] as security for [amount] being the amount then owing by plaintiff to defendant.
2. On [date], plaintiff repaid the defendant.
3. Defendant has refused to redeliver the [items] to plaintiff.
4. The value of [items] is [X amount].
5. By reason of defendant's refusal, plaintiff has been deprived of the use of [items] from [date] to date and has suffered a
loss of [Y amount].
(a) Return of [items]; alternatively, payment of [X amount].
(b) Payment [Y amount].
Claim for damages due to negligence
1. On [date] at [place], the parties entered an oral agreement of pledge in terms of which plaintiff pledged with defendant
his motor car [registration number], then undamaged, as security for a debt of [amount] then owing by him to
defendant.
2. On [date], plaintiff paid [amount] and defendant returned plaintiff's motor car to plaintiff.
3. On its return, the motor car was not in the same condition as when it was pledged, as it had been damaged whilst in the
care of defendant.
4. The reasonable cost of repairing the damage to the vehicle is [amount].
5. In the premises, defendant is liable to pay to plaintiff [amount].
Police
Related subjects: ARREST AND DETENTION; ASSAULT; STATE LIABILITY; VICARIOUS LIABILITY
Statute: The South African Police Service Act 68 of 1995 circumscribed the liability of the police for civil wrongs and
provided for formalities before proceedings could have been instituted against the state or members of the service.
The provision dealing with the formalities that had to be complied with before the institution of proceedings (s 57)
differed materially from the repealed section 32 of the Police Act 7 of 1958. Section 57 has been repealed and the
formalities are governed by the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002.
Prayers in pleadings
See PART A s.v. VIII. PRAYERS
Preemption
Related subject: OPTION
General: It is of the essence of the right of preemption that the grantor undertakes not to sell the object unless
the grantee has been given a reasonable opportunity to [Page 302] purchase it at the same price as that at which
the grantor is prepared and willing to sell it to a third party. It does not compel the grantor to sell at the behest of
the grantee. It merely compels the grantor to offer it to the grantee if the grantor intends to sell it to a third party.
Hartsrivier Boerderye (Edms) Bpk v Van Niekerk 1964 (3) SA 702 (T)
Pick 'n Pay Retailers (Pty) Ltd and others v Eayrs and others NNO [2012] 1 All SA 522 (SCA), 2012 (1) SA 238
(SCA)
A right of preemption is strictly construed against the grantee.
Owsianick v African Consol Theatres (Pty) Ltd [1967] 3 All SA 337 (A), 1967 (3) SA 310 (A)
Bellairs v Hodnett 1978 (1) SA 1109 (A)
Section 2(1) of the Alienation of Land Act does not apply to a right of preemption.
Mokone v Tassos Properties CC and another 2017 (10) BCLR 1261 (CC), 2017 (5) SA 456 (CC)
Exercise of right: By exercising the right of preemption, the grantee concludes a contract of sale by means of a
unilateral declaration of intent.
Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A)
Specific performance: The grantee may claim specific performance from the grantor if the object has not yet been
transferred or delivered to the third party. If it has been delivered or transferred, the grantee may claim delivery
from a third party who with knowledge of the right took transfer of the subject matter of the right.
Cf. Smuts v Booyens; Markplaas (Edms) Bpk v Booyens [2001] 3 All SA 536 (A), 2001 (4) SA 15 (SCA)
Pick 'n Pay Retailers (Pty) Ltd and others v Eayrs and others NNO [2012] 1 All SA 522 (SCA), 2012 (1) SA 238
(SCA)
Interdict: The holder of a preemptive right may interdict the transfer or delivery of the subject of the right should
the grantor sell it to a third person without having given the grantee the opportunity of purchasing it. The grantor
and the third person must be joined.
Le Roux v Odendaal [1954] 4 All SA 173 (N), 1954 (4) SA 432 (N)
Krauze v Van Wyk [1986] 1 All SA 293 (A), 1986 (1) SA 158 (A)
Cf. Le Roux and another v Nel and another [2013] ZASCA 109
PRECEDENTS
Claim to enforce right of preemption
1. On [date] at [place], plaintiff and first defendant, both acting personally, entered into an oral agreement in terms of
which first defendant granted to plaintiff a right of preemption in respect of his [description] motor vehicle [registration
number].
2. In terms of the agreement, first defendant was obliged, should he decide to sell the vehicle, to offer it first to plaintiff.
3. Despite this agreement and in breach thereof, first defendant sold the vehicle to second defendant at the price of
[amount].
4. Before delivery of the vehicle to second defendant, plaintiff informed both defendants that he was willing to purchase the
vehicle at the same price and tendered payment.
5. In the premises, a valid and binding agreement of sale exists between plaintiff and first defendant.
6. Despite demand, first defendant has refused to recognise plaintiff's rights to the vehicle and delivered it to second
defendant, who took delivery well knowing of plaintiff's rights.
The plaintiff again tenders payment of the purchase price of [amount] against delivery of the vehicle to him and claims an order
that second defendant deliver to plaintiff the [description] motor vehicle [registration number].
[Page 303]
Claim for interdict and enforcement of preemptive right
1. On [date] at [place], first defendant granted to plaintiff, in terms of a written contract, the first right to purchase the
property known as [address]. The parties acted personally. A copy of the agreement is annexed and marked 'A'.
2. On [date], first defendant, in breach of the agreement and without giving plaintiff the opportunity of exercising his right,
entered a written deed of sale with second defendant in terms of which the latter purchased the property for [amount].
Transfer to second defendant has not yet been effected.
3. Plaintiff, on ascertaining that first defendant had entered into the deed of sale with second defendant, notified first
defendant in writing that he (plaintiff) was exercising his right of preemption and, at the same time, tendered payment
of [amount]. A copy of the exercise of the right of preemption is annexed and marked 'B'.
Tendering as aforesaid, the plaintiff claims:
(a) An order restraining first defendant from passing transfer of the property to second defendant.
(b) An order directing first defendant to take all steps necessary to pass transfer of the property to plaintiff.
Prescription: Acquisitive prescription
Statutes: The Prescription Act 68 of 1969, which came into force on 1 December 1970, applies to prescription that
commenced running from that date. If the required period expired before the Act's commencement, the Prescription
Act 18 of 1943 applies.
Prescription Act 68 of 1969s 5
Prescription: A party claiming acquisitive prescription of a movable or immovable object must allege and prove
(a) civil possession that is, possession with the intention to possess and control as owner;
Minister van Landbou v Sonnendecker [1979] 2 All SA 19 (A), 1979 (2) SA 944 (A)
Kruger v Joles Eiendomme (Edms) Bpk [2009] 1 All SA 553 (SCA), 2009 (3) SA 5 (SCA)
(b) possession for an uninterrupted period of 30 years or for a period which, together with any period for which
the thing was possessed by any predecessors in title, constituted an uninterrupted period of 30 years;
Cf. Barker NO v Chadwick [1974] 1 All SA 458 (D), 1974 (1) SA 461 (D)
(c) that possession was exercised openly;
Cf. Bisschop v Stafford [1974] 3 All SA 293 (A), 1974 (3) SA 1 (A)
(d) adverse user (this element is probably the same as the first element).
Pezula Private Estate (Pty) Ltd v Metelerkamp and another [2014] 1 All SA 664 (SCA), 2014 (5) SA 37 (SCA)
Morgenster 1711 (Pty) Ltd v De Kock NO and others [2012] 2 All SA 640 (WCC), 2012 (3) SA 59 (WCC)
Effect of prescription: When the period of prescription is completed, the possessor becomes owner of the property
ipso iure. The real right is effective against all without registration.
Cillie v Geldenhuys [2008] 3 All SA 507 (SCA), 2009 (2) SA 325 (SCA)
State land: State land cannot be acquired by prescription.
State Land Disposal Act 48 of 1961s 3
[Page 304]
Servitudes: The principles relating to the acquisition of servitudes by prescription are very similar to those relating
to the acquisition of ownership. The obvious difference is that, instead of possession, it must be shown that the
claimant exercised the rights and powers that a person who has a right to such servitude is entitled to exercise.
PRECEDENTS
Claim ownership
1. Since [date] to date (being a period of 30 years or more), plaintiff has continuously, openly and, as if he were the owner,
possessed [property] of which defendant is the registered owner.
2. At no time during the aforesaid period has plaintiff acknowledged defendant's rights or those of his predecessors in title
to and in respect of the property.
3. In the premises, plaintiff became the owner of [property] in terms of the provisions of section 1 of Act 68 of 1969.
Claim relating to servitude
1. Since [date] (being more than 30 years before), plaintiff has used a road from [place] to [place] running over
defendant's farm openly, continuously and as though he were entitled to do so.
2. At no time has plaintiff acknowledged defendant's right to prevent him from using the said road.
3. In the premises, plaintiff has acquired a servitude of right of way over defendant's property in terms of section 6 of Act
68 of 1969.
Claim for cancellation of servitude
1. Plaintiff is the owner of a farm [X].
2. Defendant is the owner of the adjoining farm [Y].
3. A servitude of right of way is registered against the title deeds of farm [X] in favour of farm [Y] in the following terms:
[detail].
4. Defendant and his predecessors in title have not exercised the aforesaid servitude for an uninterrupted period exceeding
30 years.
5. In the premises, plaintiff is entitled to a cancellation of the servitude in terms of section 7 of Act 68 of 1969.
Prescription: Extinctive prescription
Related subject: STATE LIABILITY
Statutory provisions: Chapter III of the Prescription Act 68 of 1969 provides for the extinction of debts by
prescription. The general provisions of the Act regarding such matters as the delay of the completion or the
interruption of prescription apply to other statutes that contain prescriptive periods, unless those statutes express
a clear, contrary intention.
President Insurance Co Ltd v Yu Kwam [1963] 3 All SA 443 (A), 1963 (3) SA 766 (A)
Moloi v Road Accident Fund [2000] 4 All SA 576 (A), 2001 (3) SA 546 (SCA)
Commissioner for Customs & Excise v Standard General Ins Co Ltd 2001 (1) SA 978 (SCA)
Statutes dealing with litigation against certain public authorities usually contained preconditions (such as prior
notice and time limits) for valid claims and often had special [Page 305] short prescriptive periods. These provisions
were replaced by the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, which is of
general application.
See STATE LIABILITY
Effect of prescription: A debt is extinguished by prescription after the lapse of the prescriptive period applicable to
that debt. This means, inter alia, that the debt cannot be revived, not even by an acknowledgement of liability,
unless the acknowledgement amounts to a new undertaking.
Lipschitz v Dechamps Textiles GmbH [1978] 4 All SA 586 (C), 1978 (4) SA 427 (C)
A prescribed debt cannot be set off against any claim, but payment of a prescribed debt cannot be reclaimed.
Prescription Act 68 of 1969s 10(3)
Procedure: A court may not of its own motion raise prescription. The proper way of raising prescription in action
proceedings is by way of a plea or special plea, and not by way of exception. The reason is that the plaintiff may
have a valid answer (such as delay or interruption) to the plea of prescription, which may be raised in replication.
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A)
Prescription may be raised in interlocutory proceedings.
Union Finance Holdings (Pty) Ltd v Bonugli and another NNO 2013 (2) SA 449 (GSJ)
A party may apply for a declaratory order to determine whether a debt has prescribed.
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A)
The right to invoke prescription is not the sole prerogative of a defendant. It may be raised by a person who has a
real interest in the claim for example, a surety.
Lipschitz v Dechamps Textiles GmbH [1978] 4 All SA 586 (C), 1978 (4) SA 427 (C)
The debt: Prescription extinguishes a debt. Although the term 'debt' is not defined in the Act, it refers to anything
that is owed or due, such as money, goods or services a debtor is under an obligation to pay or render to a
creditor.
Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A)
Duet and Magnum Financial Services CC (in liquidation) v Koster [2010] 4 All SA 154 (SCA), 2010 (4) SA 499
(SCA)
The word 'debt' refers generally to the claim and not the cause of action.
Rustenburg Platinum Mines v Industrial Maintenance Painting Services [2009] 1 All SA 275 (SCA), [2008] ZASCA
108,
Frieslaar NO and others v Ackerman and another [2018] ZASCA 3
The term must be interpreted in the context of the Constitution.
Makate v Vodacom (Pty) Ltd 2016 (6) BCLR 709 (CC), 2016 (4) SA 121 (CC) paras 8793
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus and others 2017 (4) BCLR 473
(CC), 2018 (1) SA 38 (CC)
Mogaila v Coca Cola Fortune (Pty) Limited 2017 (7) BCLR 839 (CC), 2018 (1) SA 82 (CC)
OffBeat Holiday Club and another v Sanbonani Holiday Spa Shareblock Limited and others 2017 (7) BCLR 916
(CC), 2017 (5) SA 9 (CC) para. 44.
It includes a debt owed to the state as well as debts of statutory origin.
Oertel NNO v Direkteur van Plaaslike Bestuur [1983] 1 All SA 159 (A), 1983 (1) SA 354 (A)
[Page 306]
A claim for rectification of a contract is not a claim for a debt and does not prescribe.
Boundary Financing Ltd v Protea Property Holdings (Pty) Ltd [2009] 2 All SA 7 (SCA), 2009 (3) SA 447 (SCA)
Bester NO and others v Schmidt Bou Ontwikkelings CC 2013 (1) SA 125 (SCA)
A rei vindicatio is also not a claim based on a debt.
Absa Bank Limited v Keet [2015] 4 All SA 1 (SCA), 2015 (4) SA 474 (SCA)
When prescription begins to run: The party who raises prescription must allege and prove the date of inception of
the period of prescription.
Gericke v Sack [1978] 2 All SA 111 (A), 1978 (1) SA 821 (A)
Lancelot Stellenbosch Mountain Retreat (Pty) Ltd v Gore NO and others [2015] ZASCA 37
As a rule, prescription begins to run as soon as the debt is due unless the debt is the result of a continuing wrong.
Santam Ltd v Ethwar [1999] 1 All SA 252 (A), 1999 (2) SA 244 (SCA)
Barnett v Minister of Land Affairs [2007] ZASCA 95, 2007 (6) SA 313 (SCA)
Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and another [2016] 3 All SA 487 (SCA),
2017 (1) SA 185 (SCA)
This means that the debt must be immediately claimable by the creditor in legal proceedings and that the debtor
must be under an obligation to perform.
Benson v Walters [1984] 1 All SA 283 (A), 1984 (1) SA 73 (A) p. 82
Uitenhage Municipality v Molloy [1998] 1 All SA 140 (A), 1998 (2) SA 735 (SCA)
2018 (1) SA 94 (CC)
A debt, whether contractual, delictual or arising otherwise, is not deemed to be due until the creditor has
knowledge of the identity of the debtor and of the facts giving rise to the debt. A creditor who could have acquired
the knowledge by exercising reasonable care is deemed to have had such knowledge.
Abrahamse v East London Municipality; East London Municipality v Abrahamse [ 1 9 9 7 ] 2 A l l S A 6 5 1 ( A ) ,
1997 (4) SA 613 (SCA)
Van Immerzeel & Pohl v Samancor Ltd [2001] 2 All SA 235 (A), 2001 (2) SA 90 (SCA)
Van Zijl v Hoogenhout [2004] 4 All SA 427 (SCA), 2005 (2) SA 93 (SCA)
ATB Chartered Accountants (SA) v Bonfiglio [2011] 2 All SA 132 (SCA)
Actual knowledge means that the creditor knew the facts and the identity of the debtor. Constructive knowledge
(attributed knowledge) is established if the creditor could reasonably have acquired knowledge of the identity of
the debtor and the facts on which the debt arises by exercising reasonable care.
Macleod v Kweyiya 2013 (6) SA 1 (SCA) para. 9
Loni v Member of the Executive Council, Department of Health, Eastern Cape Bhisho 2018 (6) BCLR 659 (CC),
2018 (3) SA 335 (CC)
Knowledge is not the same as a suspicion, and suspicion is insufficient.
Minister of Finance and others v Gore [2007] 1 All SA 309 (SCA), 2007 (1) SA 111 (SCA)
Knowledge of legal conclusions is not required before prescription begins to run.
Claasen v Bester 2012 (2) SA 404 (SCA)
Fluxmans Incorporated v Levenson [2017] 1 All SA 313 (SCA), 2017 (2) SA 520 (SCA)
Mtokonya v Minister of Police 2017 (11) BCLR 1443 (CC)
The party raising prescription must allege and prove the date on which the creditor acquired knowledge of the
debtor's identity and the date on which the creditor acquired knowledge of the facts from which the debt arose. The
defendant may, in the [Page 307] alternative, allege and prove the date on which the creditor could, with the
exercise of reasonable care, have acquired the relevant knowledge.
Cf. Gericke v Sack [1978] 2 All SA 111 (A), 1978 (1) SA 821 (A)
D r e n n a n M a u d & P a r t n e r s v T o w n B o a r d o f t h e T o w n s h i p o f P e n n i n g t o n [ 1 9 9 8 ] 2 A l l S A 5 7 1 ( S C A ) ,
1998 (3) SA 200 (SCA)
Period of prescription: The general rule is that a debt prescribes after three years. Exceptions to this rule are the
following:
(a) Debts secured by mortgage bond, judgment debts, debts in respect of taxation or levies, and debts owed to
the state in respect of any share of the profits in respect of the right to mine minerals or other substances
30 years.
Factaprops 1052 CC and another v Land and Agricultural Development Bank of South Africa t/a Land Bank
2017 (4) SA 495 (SCA)
(b) Certain other debts owed to the state 15 years.
(c) Debts arising from a negotiable instrument or notarial contract 6 years.
(d) A claim for a contribution in terms of the Apportionment of Damages Act 34 of 1956 12 months calculated
from the date of the judgment in respect of which a contribution is claimed (s 2(6)(b)).
Delay of completion of prescription: The onus is on the creditor to allege and prove that the completion of
prescription was delayed under the circumstances set out in section 13.
Regering van die RSA v SA Eagle Versekeringsmaatskappy Bpk [1985] 3 All SA 236 (O), 1985 (2) SA 42 (O)
Completion is delayed while, for instance, the creditor is a minor, the debtor is outside the Republic, the debt is the
object of a dispute subjected to arbitration or when the debt is the object of a claim filed against the estate of a
debtor who is deceased, insolvent or in liquidation. If one of these circumstances is present, the period of
prescription will not be completed before a year has elapsed after the day on which the impediment ceased to exist.
Nedcor Bank Ltd v Rundle [2007] 4 All SA 1120 (SCA), 2008 (1) SA 415 (SCA)
Silouette Investments Ltd v Virgin Hotels Group Ltd [2009] 3 All SA 172 (SCA), 2009 (4) SA 617 (SCA)
Malcolm v Premier, Western Cape Government NO [2014] 2 All SA 251 (SCA), 2014 (3) SA 177 (SCA) (on the
meaning of 'minor')
Interruption of prescription: The creditor bears the onus of alleging and proving interruption of prescription by
either
(a) an express or tacit acknowledgement of liability by the debtor or the debtor's agent; or
Pentz v Government of the RSA [1983] 2 All SA 312 (A), 1983 (3) SA 584 (A)
Aussenkehr Farms (Pty) Ltd v Trio Transport CC [2002] 3 All SA 309 (A), 2002 (4) SA 483 (SCA)
KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd [2017] 3 All SA 739 (SCA), 2017 (6) SA 55 (SCA)
(b) service on the debtor of any process whereby the creditor claims payment of the debt.
[Page 308]
Prescription is not interrupted by service of a process on a wrong debtor.
Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd [2004] 1 All SA 129 (SCA), 2004 (3) SA 160
(SCA)
It is also not interrupted by process issued by the wrong creditor.
Solenta Aviation (Pty) Ltd v Aviation @Work (Pty) Ltd [2013] ZASCA 103, 2014 (2) SA 106 (SCA)
Notice of joinder is (usually) not a process whereby a creditor claims payment of a debt; therefore, it does not
interrupt prescription, but service of a joinder application does.
Peter Taylor & Associates v Bell Estates (Pty) Ltd and another [2013] ZASCA 94, 2014 (2) SA 312 (SCA)
Huyser v Quicksure (Pty) Ltd and another [2017] 2 All SA 209 (GP)
Although the running of prescription is not deemed to have been interrupted if the creditor does not prosecute the
claim successfully under the process in question to final judgment, no time limit is stated within which the claim must
be prosecuted successfully.
(SCA) para. 24
Prescription against surety: If the principal debt is kept alive by a judgment, the surety's accessory obligation
continues to exist because the obligation of the principal debtor and the surety relate to the same debt.
Eley v Lynn & Main Inc [2008] 1 All SA 315 (SCA), 2008 (2) SA 151 (SCA)
Interruption of prescription of the principal debt also interrupts prescription of an accessory debt (that of the
surety).
Jans v Nedcor Bank Ltd [2003] 2 All SA 11 (SCA), 2003 (6) SA 646 (SCA)
Prescription against the state: The prescription period of 15 years in favour of the state does not apply to state
organs but to juristic persons capable of suing in their own name for what is due to the National Treasury.
Holeni v The Land and Agricultural Development Bank of South Africa [2009] 3 All SA 22 (SCA), 2009 (4) SA 437
(SCA)
The Isibiya Fund v Visser and another [2015] ZASCA 183 (as to the meaning of 'state')
Phokwane Municipality v Triple Seven Commercial Holdings CC and another [2016] 4 All SA 606 (NCK) p. 9 (as to
municipalities)
Waiver of prescription: The right to rely on prescription can be waived.
Amendment of pleading: In amending a pleading, the question often arises whether the amendment introduces
another cause of action that has prescribed. If it does, the amendment may be refused. Since the plaintiff may have
an answer to the plea of prescription it is under special circumstances only that an amendment may be refused on
this ground.
Province of the Free State v Williams NO [2000] 2 All SA 172 (A), 2000 (3) SA 65 (SCA)
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd [2003] 2 All SA 597 (SCA), 2004 (2) SA 622 (SCA)
Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd [2004] 1 All SA 129 (SCA), 2004 (3) SA 160
(SCA)
PRECEDENTS
Plea defendant's special plea
1. Plaintiff's claim is based on a contract which was concluded on [date]. On that date, plaintiff's claim fell due.
[Page 309]
2. Plaintiff's summons was served on defendant on [date], which is more than three years after the date on which the claim
arose.
3. In the premises, plaintiff's claim is prescribed in terms of section 11 of Act 68 of 1969.
Replication
1. Plaintiff admits the allegations in paragraphs 1 and 2 of defendant's special plea, but alleges that, on [date], defendant
wrote a letter to plaintiff in which he acknowledged his indebtedness to plaintiff.
2. In terms of section 14 of Act 68 of 1969, the running of prescription was interrupted by this acknowledgement.
3. In the premises, plaintiff denies that the claim has prescribed.
Replication
Plaintiff admits the allegations in paragraphs 1 and 2 of defendant's special plea, but alleges that:
(a) plaintiff attained majority on [date] that is, less than one year prior to the service of summons upon defendant;
(b) in terms of section 13 of Act 68 of 1969, the completion of prescription is delayed until one year after the date on which
plaintiff ceased to be a minor.
Privacy
See DELICT: LEX AQUILIA; INIURIA
Provincial and local authorities
Related subjects: CITATION OF PARTIES; PRESCRIPTION: ACQUISITIVE PRESCRIPTION; STATE LIABILITY
Quantity surveyors
See the Quantity Surveying Profession Act 49 of 2000.
The rights and duties of quantity surveyors are similar to those of architects (depending on the terms of the
contract with the employer). See ARCHITECTS.
Rens v Coltman 1996 (1) SA 452 (A)
Ratification
General: Ratification is the validation by a purported principal of a juristic act concluded on that principal's behalf by
a purported agent someone who acted without authority. Ratification is a unilateral act and like any other
expression of will, may be made expressly or by conduct.
[Page 310]
The purported principal acquires no rights and incurs no obligations unless the act is ratified. Ratification has
retroactive effect.
Vereins und Westbank AG v Veren Investments 2002 (4) SA 421 (SCA)
Ratification is not possible in respect of any act that conflicts with the common law or a statutory provision.
Mathipa v Vista University 2000 (1) SA 396 (T)
The purported principal must intend to adopt the unauthorised act with full knowledge of all the facts or otherwise
with the intention to confirm the agent's action irrespective of the circumstances.
An undisclosed principal is not entitled to ratify a contract concluded by a selfstyled agent in the agent's name. In
other words, ratification is possible only when the 'agent' professed to act as agent and the third party intended to
contract with the agent qua agent and not in person.
Lazarus v Gorfinkel [1988] 2 All SA 338 (C), 1988 (4) SA 123 (C)
Durity Alpha (Pty) Ltd v Vagg [1991] 2 All SA 146 (A), 1991 (2) SA 840 (A)
Failure to repudiate may be interpreted as ratification.
Wilmot Motors (Pty) Ltd v Tucker's Fresh Meat Supply Ltd [1969] 4 All SA 395 (T), 1969 (4) SA 474 (T)
See WAIVER
Ratification does not affect vested rights.
Rectification
General: The purpose of rectification is to have a written contract conform to the common intention of the parties.
Rectification overrides the parolevidence rule.
Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (A), 2000 (1) SA 268 (SCA)
Rectification is necessary before a court may entertain evidence running counter to the written words unless all
parties affected by the error agree extrajudicially to remedy the situation.
Schroeder v Vakansieburo (Edms) Bpk [1970] 3 All SA 320 (T), 1970 (3) SA 240 (T)
Procedure: Rectification should preferably be sought by way of action.
Fourie's Poultry Farm (Pty) Ltd v KwaNatal Food Distributors (Pty) Ltd (in liq) [ 1 9 9 1 ] 2 A l l S A 4 6 9 ( N ) ,
1991 (4) SA 514 (N) p. 527
Onus: A party who wishes to rely on rectification must claim rectification in the claim, plea or counterclaim. That
party bears the onus of proof.
Benjamin v Gurewitz [1973] 1 All SA 401 (A), 1973 (1) SA 418 (A) p. 428
Lazarus v Gorfinkel [1988] 2 All SA 338 (C), 1988 (4) SA 123 (C) p. 131
Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd [2004] 2 All SA 366 ( S C A ) ,
2004 (6) SA 29 (SCA)
Rectification as a claim: The following facts must be alleged and proved:
Propfokus 49 (Pty) Ltd v Wenhandel 4 (Pty) Ltd [2007] 3 All SA 18 (SCA)
Stapelberg v Schlebusch NO [1968] 3 All SA 421 (O), 1968 (3) SA 596 (O)
(a) A contract which was reduced to writing by agreement.
Meyer v Kirner [1974] 4 All SA 201 (N), 1974 (4) SA 90 (N) p. 103
[Page 311]
(b) The common continuing intention of the parties, as it existed when the agreement was reduced to writing.
The wording and not only the general import of the common intention should be formulated.
Meyer v Merchants Trust Ltd 1942 AD 244
Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd [1970] 2 All SA 570 (A), 1970 (2) SA 498 (A) p. 503
Levin v Zoutendijk 1979 (3) SA 1145 (W)
City Council of the City of Durban v Rumdel Construction (Pty) Ltd [1997] 3 All SA 20 (D)
(c) The document does not reflect the common intention.
(d) A mistake in drafting the document which may have been the result of
(i) a bona fide mutual error; or
(ii) an intentional misleading act of one of the parties.
Von Ziegler v Superior Furniture Manufacturers (Pty) Ltd [1962] 3 All SA 371 (T), 1962 (3) SA 399 (T) p. 411
(explaining Mouton v Hanekom [1959] 1 All SA 69 (A), 1959 (3) SA 35 (A))
Neuhoff v York Timbers Ltd [1981] 4 All SA 675 (T), 1981 (4) SA 666 (T) p. 674
Milner Street Properties (Pty) Ltd v Eckstein Properties (Pty) Ltd 2001 (4) SA 1315 (SCA) para. 32
Negligence is not relevant.
Van Aswegen v Fourie [1964] 3 All SA 20 (O), 1964 (3) SA 94 (O)
Humphrys v Laser Transport Holdings Ltd [1994] 4 All SA 27 (C), 1994 (4) SA 388 (C)
It is not necessary to plead the cause of the mistake.
Offit Enterprises (Pty) Ltd v Knysna Development Co (Pty) Ltd [1987] 2 All SA 222 (C), 1987 (4) SA 24 (C)
Parties: All parties affected by rectification sought must be formally joined.
Schroeder v Vakansieburo (Edms) Bpk [1970] 3 All SA 320 (T), 1970 (3) SA 240 (T)
Prayer: The relief is for rectification of the agreement, with or without consequential relief.
Levin v Zoutendijk 1979 (3) SA 1145 (W)
Rectification as a defence: Although it is possible to rely on rectification as a defence, it is advisable to
counterclaim. The requirements for a claim apply.
Gralio (Pty) Ltd v DE Claassen (Pty) Ltd [1980] 1 All SA 423 (A), 1980 (1) SA 816 (A)
Invalid contract: Rectification of a contract required by statute to be in writing is possible only if the document, on
its face and before rectification, is formally valid in the sense that it complies formally with the statute.
Milner Street Properties (Pty) Ltd v Eckstein Properties (Pty) Ltd 2001 (4) SA 1315 (SCA)
Swanepoel v Nameng [2010] 1 All SA 345 (SCA), 2010 (3) SA 124 (SCA)
Osborne v West Dunes Properties 176 (Pty) Ltd 2013 (6) SA 105 (WCC)
A contract which is invalid because of vagueness may be rectified to remove the vagueness, provided the
underlying agreement which reflected the parties' common intention does not suffer from the same defect. A vague
contract required by statute to be in writing cannot be rectified.
Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd [2002] 3 All SA 117 (A), 2002 (3) SA 346 (SCA)
Prescription: A claim for rectification does not prescribe because it is not a 'debt' for the purposes of the
Prescription Act 68 of 1969.
See PRESCRIPTION: EXTINCTIVE PRESCRIPTION
[Page 312]
Nonvariation clause: A nonvariation clause is not a bar to a claim for rectification.
Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd [1980] 4 All SA 598 (T), 1980 (4) SA 271 (T)
PRECEDENTS
Claim for rectification of deed of sale
1. On [date] at [place], plaintiff (acting personally) and defendant (represented by one [name]) concluded a written deed of
sale in terms of which plaintiff purchased from defendant the property known as plot 84 situate at [address] for
[amount].
2. Plot 84 was pointed out by the agent to plaintiff prior to the entering of the agreement.
3. The written contract does not correctly record the agreement between the parties in that it describes the plot sold as
being plot 48.
4. The incorrect description of the plot purchased by plaintiff was occasioned by a common error of the parties and the
parties signed the written contract in the bona fide but mistaken belief that it recorded the true agreement between the
parties.
5. Plaintiff has demanded rectification of the contract to conform with the common intention of the parties and has tendered
against transfer into his name of plot 84 the purchase price and fulfilment of all his other obligations under the contract.
6. Defendant refuses to consent to a rectification of the agreement and refuses to transfer plot 84 into plaintiff's name.
The plaintiff, repeating the tender, claims:
(a) An order rectifying the written contract, Annexure 'A', by the substitution of the words 'plot 84' for the words 'plot 48'
wherever the latter occur.
(b) An order directing defendant to pass transfer into plaintiff's name of plot 84.
Rei vindicatio
See ACTIO AD EXHIBENDUM; OWNERSHIP; SPOLIATION; VINDICATION
Replication and further pleadings
See PART A s.v. VII. REPLICATION for notes
PRECEDENT
Replication
1. Plaintiff admits paragraphs [specify] of defendant's plea.
2. Plaintiff joins issue with defendant in respect of the other allegations in the plea.
3. In the alternative to paragraph 2, and in the event of a finding that the said [name] was not defendant's agent, plaintiff
alleges that defendant is estopped from denying that [name] was his agent because [see ESTOPPEL].
The plaintiff persists in his claim.
Repudiation
Related subjects: CONTRACT: BREACH; WAIVER
[Page 313]
General: Repudiation or anticipatory breach of a contract gives rise to a right to cancel the contract.
Repudiation is often said to consist of two parts: (i) the act of repudiation, and (ii) the act of the adversary,
'accepting' and thus completing the breach. The better view is that (a) repudiation is a breach in itself and, (b)
although it is a convenient catchword, 'acceptance' does not 'complete' the breach; it is the exercise by the
aggrieved party of the right to terminate the agreement.
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A), 2001 (2) SA 284 (SCA)
Elements: To rely on cancellation because of repudiation, the innocent party must allege and prove
(a) repudiation of a fundamental term of the contract that is, conduct that exhibits objectively a party's
deliberate and unequivocal intention not to be bound by the contract, that is an intimation by or on behalf of
the repudiating party by word or conduct and without lawful excuse, that all or some of the obligations arising
from the agreement will not be performed according to their tenor;
(b) an election by the innocent party to terminate; and
(c) communication of the election to the repudiating party.
Schlinkmann v Van der Walt [1947] 3 All SA 92 (E), 1947 (2) SA 900 (E) p. 919
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A), 2001 (2) SA 284 (SCA)
Starways Trading 21 CC v Pearl Island Trading 714 (Pty) Ltd [2017] 4 All SA 568 (WCC) paras 5158
'Intention': Repudiation is not a matter of intention; it is a matter of perception. The perception is that of a
reasonable person placed in the position of the aggrieved party. The test is whether such a notional reasonable
person would conclude that proper performance (in accordance with the agreement) will not be forthcoming. The
inferred intention serves as the criterion for determining the nature of the threatened actual breach.
Braun Medical (Pty) Ltd v Ambasaam CC 2015 (3) SA 22 (SCA)
'Rejection': A party is not obliged to 'accept' the repudiation but may ignore it and proceed to enforce the contract.
Ndlovu v Santam Ltd 2006 (2) SA 239 (SCA)
Repentance: If the election to proceed is exercised, but the defaulting party persists in the breach by evincing an
unequivocal intention not to remedy the breach, the aggrieved party, after affording the defaulting party the
opportunity to repent the repudiation, may change the election and cancel the contract and claim damages.
Sandown Travel (Pty) Ltd v Cricket South Africa 2013 (2) SA 502 (GSJ) para. 39
Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality 2017 (5) SA 420 (SCA)
Delict: A contracting party is not liable in delict for damages suffered by a stranger to the contract resulting from
the contracting party's repudiation of the contract.
Country Cloud Trading CC v MEC, Department of Infrastructure Development [2014] 1 All SA 267 ( S C A ) ,
2014 (2) SA 214 (SCA)
Relief: The following relief may be sought:
(a) restitution;
[Page 314]
(b) damages, usually assessed at the agreed date for performance;
(c) specific performance of accrued rights.
Nash v Golden Dumps (Pty) Ltd [1985] 2 All SA 161 (A), 1985 (3) SA 1 (A)
See CONTRACT: SPECIFIC PERFORMANCE
PRECEDENTS
Claim for damages and restitution
1. On [date] at [place], the parties entered a written agreement, attached and marked 'A', in terms of which plaintiff sold
[item] to defendant for [amount].
2. On [date], defendant informed plaintiff in writing that she was no longer interested in purchasing the said [item]. A copy
of the letter is attached hereto and marked 'B'.
3. The letter constitutes a repudiation of the agreement between the parties.
4. Plaintiff elected to accept the repudiation and terminated the agreement. The election was conveyed to defendant by
letter dated [date].
5. Because of defendant's repudiation, plaintiff suffered damages [amount] made up as follows:
[detail].
6. In terms of the agreement, plaintiff delivered to defendant three of the [items] and defendant paid [amount] in respect of
the purchase price.
7. Because of the termination of the agreement, plaintiff is entitled to return the [items], and tenders to set off the amount
paid by defendant against any damages found by the honourable court to be proven.
8. The value of the [items] delivered to defendant is [amount].
1. Payment of [amount] being damages.
2. Return of the three [items] delivered to defendant; alternatively, payment of [amount].
Res iudicata
Related subjects: ESTOPPEL; JUDGMENT: SETTING ASIDE; SETTLEMENT; LIS ALIBI PENDENS
General: The pleas of res iudicata and lis pendens are related. The elements required to establish one are the
same as those required to establish the other.
Janse van Rensburg NO and others v Steenkamp and another; Janse van Rensburg NO and others v Myburgh and
2013 (6) SA 499 (SCA) para. 18
The exceptio rei iudicatae is based on the irrebuttable presumption that a final judgment on a claim submitted to a
competent court is correct. This presumption is founded on public policy which requires that litigation should not be
endless and on the requirement of good faith, which does not permit of the same thing's being demanded more
than once.
African Farms & Townships Ltd v Cape Town Municipality [1963] 3 All SA 20 (A), 1963 (2) SA 555 (A) p. 564
[Page 315]
Mashamaite and others v Mogalakwena Local Municipality and others; Member of the Executive Council for
Coghsta, Limpopo and another v Kekana and others [2017] 2 All SA 740 (SCA) paras 1422
'Once and for all' rule: This rule, derived from English law, requires that all claims generated by the same cause of
action ought to be instituted in one action. It does not mean that contractual claims and claims for damages must
be brought in the same action.
Custom Credit Corp (Pty) Ltd v Shembe [1972] 3 All SA 489 (A), 1972 (3) SA 462 (A) p. 472
Procedure: Although known at common law as an exceptio, the defence cannot be raised by way of exception but
must be raised in a plea or special plea.
Lowrey v Steedman 1914 AD 532
It is assumed that the defence was waived unless it is specifically pleaded.
BlaikieJohnstone v P Hollingsworth (Pty) Ltd [1974] 3 All SA 405 (D), 1974 (3) SA 392 (D) p. 395
Onus: The party who raises res iudicata must allege and prove all the elements underlying the defence.
Tradax Ocean Transportation SA v MV Silvergate properly described as MV Astyanax [1999] 3 All SA 175 (A),
1999 (4) SA 405 (SCA)
Hochfeld Commodities v Theron 2000 (1) SA 551 (O) pp. 566567
Final judgment: The judgment or order must be final and definitive on the merits of the matter. The judgment must
be that of a competent court. Consequently, an order given in interiminterdict proceedings or an order that is
subject to variation or review because of changed circumstances cannot be relied on.
African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A)
Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2007] 1 All SA 279 (C), 2006 (6) SA 68 (C)
An absolution order is not a final order.
United Enterprises Corporation v STX Pan Ocean Company Ltd [2007] 3 All SA 87 (C); [2008] 3 All SA 111 (SCA)
Same parties: The judgment relied on must be a judgment given in litigation to which the present parties or their
privies were parties. This requirement does not apply to a judgment in rem.
Le Roux v Le Roux [1967] 1 All SA 488 (A), 1967 (1) SA 446 (A)
Same thing on the same ground: The cause of action must be the same, and the same thing (relief) must have
been claimed or may have been claimed in both cases.
National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v International Liquor Distributors (Pty) Ltd
[2001] 1 All SA 417 (A), 2001 (2) SA 232 (SCA)
Appeal: A pending appeal, even if it suspends a judgment, is no answer to a plea of res iudicata.
Liley v Johannesburg Turf Club [1983] 4 All SA 211 (W), 1983 (4) SA 548 (W)
Cf. Jones v Krok [1995] 2 All SA 30 (A), 1995 (1) SA 677 (A)
Consent orders: See SETTLEMENT.
Foreign judgments: A foreign judgment may give rise to res iudicata. The principles set out above apply.
See JUDGMENT: FOREIGN JUDGMENTS
Issue estoppel: The ambit of the exceptio rei iudicata has been extended by the relaxation in appropriate cases of
the commonlaw requirements that (a) the relief claimed and (b) the cause of action be the same.
[Page 316]
Where the circumstances justify the relaxation of these requirements those that remain are that (a) the parties
must be the same and (b) the same issue must arise. The latter involves an inquiry into whether an issue of fact or
law was an essential element of the judgment on which reliance is placed. It has become commonplace to speak of
'issue estoppel' when the plea of res iudicata is raised in the absence of a commonality of cause of action and relief
claimed.
Aon South Africa (Pty) Ltd v van den Heever NO and others [2017] 3 All SA 365 (SCA)
The defence remains one of res iudicata. Recognition of the defence requires careful scrutiny in each case and
depends on the facts of the case with reference to equity and fairness to the parties and to others.
Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A)
Smith v Porritt 2008 (6) SA 303 (SCA)
Janse van Rensburg NO and others v Steenkamp and another; Janse van Rensburg and others v Myburgh and
NSC Carriers and Forwarding CC and others v Hyprop Investments Limited and others [2012] 4 All SA 678 (GSJ)
Royal Sechaba Holdings (Pty) Ltd v Coote and another [2014] 3 All SA 431 (SCA)
Prinsloo NO and others v Goldex 15 (Pty) Ltd and another 2014 (5) SA 297 (SCA)
PRECEDENTS
Plea of res iudicata
1. On [date] at [place], plaintiff issued a summons against defendant for a declaratory order that defendant is liable to
plaintiff for payment of any damages suffered by plaintiff because of [detail] in [case number].
2. On [date], this honourable court dismissed plaintiff's claim with costs. A copy of the judgment and order is annexed
hereto.
3. Plaintiff's present claim for payment of damages suffered because of [detail] is a claim for the same thing on the same
ground against the same party.
4. Defendant accordingly pleads that plaintiff's present claim was finally adjudicated upon by a court of competent
jurisdiction and should be dismissed.
Restraint of trade
Statute: Restraints of trade may be affected by the provisions of the Competition Act 89 of 1998 and be subject to
the jurisdiction of the structures created by that Act.
There is a difference between a restraintoftrade agreement and an agreement regulating and restricting trade.
Nel v Drilec (Pty) Ltd 1976 (3) SA 79 (D)
Hunt h/a Realty 1 Elk Estates v Dermann [1997] 4 All SA 665 (T)
Constitutionality: On the constitutionality of a restraint of trade, see
Den Braven SA (Pty) Limited v Pillay [2008] 3 All SA 518 (D), 2008 (6) SA 229 (D)
Advtech Resourcing (Pty) Ltd t/a The Communicate Personnel Group v Kuhn [2007] 4 All SA 1368 ( C ) ,
2008 (2) SA 375 (C)
Contract and delict: An enforcement claim is based on contract while the claim against a third party who, with
knowledge of the contract, (for instance) employs the exemployee, is liable in delict for the misuse of confidential
information and trade secrets to advance the third party's business interests at the expense of a competitor whose
proprietary interests have been appropriated.
See CONFIDENTIAL INFORMATION
[Page 317]
A party wishing to enforce a restraintoftrade agreement need only allege and prove the agreement and its breach
by the defendant.
Enforcement: An exemployer who seeks to enforce against an exemployee a protectable interest recorded in a
restraint does not have to show that the exemployee used confidential information only that the exemployee
could do so. While the relief ordinarily sought is an interdict, damages for breach of contract may also be claimed.
The fundamental difference between the two remedies is that in the delictual claim it does not suffice for the ex
employer to prove that the exemployee who is in possession of protectable information has taken up employment
with a rival who is aware of the restraint. In addition, existing or threatened use of such information by the third
party must be established.
(W), 2004 (4) SA 174 (W)
Defence invalidity: A party wishing to be absolved from a restraintoftrade agreement must allege and prove
that the enforcement of the restrictive condition would be contrary to public policy.
Magna Alloys & Research (SA) (Pty) Ltd v Ellis [1984] 2 All SA 583 (A), 1984 (4) SA 874 (A) p. 893
Den Braven SA (Pty) Limited v Pillay [2008] 3 All SA 518 (D), 2008 (6) SA 229 (D)
The factual basis for this allegation must be set out.
Sibex Engineering Services (Pty) Ltd v Van Wyk [1991] 4 All SA 262 (T), 1991 (2) SA 482 (T)
In determining whether the agreement should be enforced, regard is had to the circumstances then present not
to those obtaining when the agreement was entered.
The conflicting considerations are, on the one hand, that agreements ought to be honoured and, on the other
hand, that everyone ought to be free to seek fulfilment in her or his business or profession and that the right to
freedom of trade should be protected.
Basson v Chilwan [1993] 2 All SA 373 (A), 1993 (3) SA 742 (A)
Townsend Productions (Pty) Ltd v Leech [2001] 2 All SA 255 (C), 2001 (4) SA 33 (C)
Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA)
Defence no proprietary right: A restraint directed solely at the restriction of fair competition with the covenantee
that is not, at the time of enforcement, reasonably necessary for the legitimate protection of the covenantee's
protectable proprietary interests (goodwill or trade secrets) is against the public interest.
Super Safes (Pty) Ltd v Voulgarides [1975] 1 All SA 50 (W), 1975 (2) SA 783 (W)
Digicore Fleet Management v Steyn [2009] 1 All SA 442 (SCA)
Value Logistics Limited v Smit and another [2013] 4 All SA 213 (GSJ)
That interest may take the form of trade secrets, confidential information, goodwill or trade connections. Liability
involves a fourfold test:
(a) Is there an interest of the plaintiff which, pursuant to the agreement, warrants protection?
(b) Is that interest threatened by the defendant?
(c) If it is threatened, does that interest weigh qualitatively and quantitatively against the interest of the other
so that he or she will be economically inactive and unproductive?
(d) Is there another aspect of public interest that does not affect the parties but requires that the restraint not
be invoked?
Basson v Chilwan [1993] 2 All SA 373 (A), 1993 (3) SA 742 (A)
Digicore Fleet Management v Steyn [2009] 1 All SA 442 (SCA)
[Page 318]
This means that employees cannot be restrained from using their own skill, knowledge and experience. The dividing
line between what the exemployee cannot be restrained from using and the employer's trade secrets or
confidential information or other interest is notoriously difficult to define.
Automotive Tooling Systems (Pty) Ltd v Wilkens [2007] 4 All SA 1073 (SCA), 2007 (2) SA 271 (SCA)
Divisibility: The court may declare the whole or part of the restraint unenforceable.
National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 (3) SA 1092 (T)
Reeves v Marfield Insurance Brokers CC [1996] ZASCA 39, 1996 (3) SA 766 (A)
If the restraint is too broad, a plaintiff who wishes to enforce a lesser restraint must raise divisibility as an issue, at
least in the replication.
Sunshine Records (Pty) Ltd v Frohling [1990] 1 All SA 8 (A), 1990 (4) SA 782 (A) pp. 795796
Disposal of goodwill: A seller who disposes of the goodwill of a business is not allowed thereafter to act contrary
to the sale. This is an implied term of such a contract.
A Becker & Co (Pty) Ltd v Becker and others 1981 (3) SA 406 (A)
Grainco (Pty) Ltd v Van der Merwe 2016 (4) SA 303 (SCA)
Damages: See
Waste Products Utilisation (Pty) Ltd v Wilkes [2001] JOL 8923 (W), 2003 (2) SA 515 (W) p. 573GI
PRECEDENTS
Claim for interdict
1. Plaintiff is an accountant carrying on her profession at [address].
2. On [date], plaintiff employed defendant as an articled clerk in terms of a written agreement entered between the parties
personally. A copy of the agreement is annexed.
3. In terms of the agreement, defendant agreed not to carry on, within a period of [number] years of ending her
employment with plaintiff, the profession of an accountant within [number] kilometres of plaintiff's place of practice.
4. Defendant left plaintiff's employ on [date].
5. During [state period], defendant commenced to carry on and has continued to carry on the profession of an accountant
at [address] which is within [number] kilometres of plaintiff's said place of practice.
The plaintiff claims an order restraining defendant from carrying on the profession of an accountant within [number] kilometres
from plaintiff's place of practice at [address] for the remainder of the period of [state period].
Claim for interdict and damages
1. In terms of a written contract [date] entered at [place], defendant sold to plaintiff a general dealer's business [name].
The parties acted personally. A copy of the agreement is annexed.
2. The agreement provides, inter alia, that defendant will not be interested, directly or indirectly, in any general dealer's
business for a period of [number] years from the date of the agreement, within a radius of [number] kilometres of the
business sold.
3. It was a further term of the agreement that in the event of defendant's breaching the condition she would pay to plaintiff
[amount] as liquidated damages.
4. On [date], defendant commenced to carry on and is still carrying on within the prohibited area, and in breach of the
condition, the business of a general dealer at [address] under the name of [name].
5. Because of the breach and in terms of the agreement, defendant is indebted to plaintiff [amount] as liquidated damages.
[Page 319]
(a) An interdict restraining defendant from carrying on or being interested, directly or indirectly, in the business of a general
dealer within [number] kilometres of [place] until [date].
(b) Payment of [amount] being damages.
Road
In claiming a right of way over another's property, consideration should be given to the following possibilities:
(a) enforcement of an existing registered servitude;
(b) enforcement of an unregistered servitude to which the defendant is bound either as a party or because of the
doctrine of notice;
(c) vetustas;
See VETUSTAS
(d) way of necessity or via necessitate; or
See ROAD: WAY OF NECESSITY
(e) public roads created by legislation.
Coetzee v De Beer 1959 (1) SA 690 (T)
Werner v Florauna Kwekery BK and others 2016 (2) SA 282 (SCA)
Escherich v De Waal 2017 (6) SA 257 (WCC)
As to the duty to maintain roads, see
Agri Eastern Cape v MEC, Department of Roads and Public Works 2017 (3) SA 383 (ECG)
PRECEDENTS
Claim declaring a road a public road
1. Plaintiff is the owner of farm [X] situated at [place].
2. Defendant owns farm [Y] situated to the south of and adjoining farm [X].
3. For a continuous period since [date] (more than 15 years), a road has existed traversing farm [Y] between a point on the
western highway and plaintiff's farm.
4. The road was used by the public during this period.
5. [Deal with any statutory limitation.]
6. On [date], defendant threatened to close the road.
7. The location of the road is indicated on the annexed map.
The plaintiff claims an order declaring the road [location] to be a public road.
Road: Way of necessity
Related subjects: ROAD; VETUSTAS
Jurisdiction: Magistrates' courts have jurisdiction to grant a right of way and an interim interdict in respect of a way
of necessity, pending the determination of an action to register the right of way.
Magistrates' Courts Act 32 of 1944s 29(1)(c)
Cloete v KareeAar Landgoed Bpk [1997] 2 All SA 700 (NC), 1997 (3) SA 30 (NC)
[Page 320]
Cause of action: A claim to a way of necessity arises if a plaintiff's land is so situated that the plaintiff has no
reasonably sufficient access from any part of the land to the nearest public road.
Van Rensburg v Coetzee [1979] 4 All SA 848 (A), 1979 (4) SA 655 (A)
SA Yster & Staal Industriële Korp Bpk v Van der Merwe [1984] 2 All SA 403 (A), 1984 (3) SA 706 (A)
Naudé v Ecoman Investments [1994] 1 All SA 72 (T), 1994 (2) SA 95 (T)
Sanders NO v Edwards NO [2003] 1 All SA 108 (C), 2003 (5) SA 8 (C)
The right of way arises because of the court order. An order of court is, therefore, essential to enable a party to
enter the defendant's property to use the road, and to obtain registration of a right of way.
Onus: A claimant must allege and prove
(a) the need to a road of necessity and the reason why it must traverse the defendant's property;
English v CJM Harmse Investments CC 2007 (3) SA 415 (N)
(b) the width of the road claimed and the reason for that claim;
(c) a suitable route;
And the claimant must tender compensation in a fixed sum.
Compensation: Compensation must be determined with reference to the advantage to be gained by the plaintiff
and the disadvantage to be suffered by the defendant. It must include special damages. No compensation is
payable if the claim is for a road that will be used in emergency situations only.
Relief: The relief sought is registration of a right of way over the defendant's property against payment of
compensation and the costs of registration. Although it is said that a particular route should not form part of the
relief claimed, plaintiffs are well advised to set out in their claim the route they allege will be the most convenient.
PRECEDENTS
Claim for a road, without offer of compensation
1. Plaintiff is the owner of farm [X] situate at [location].
2. Defendant is the owner of farm [Y] situated to the north of [X] and adjoining it.
3. To the east of farm [Y] runs a proclaimed public road known as the eastern highway.
4. It is necessary for plaintiff, as a farmer on farm [X], in times of floods to have access to the eastern highway for himself,
his servants and his visitors.
5. There is, however, in times of floods no access to or egress from the highway, save by traversing defendant's farm [Y].
6. Despite repeated requests, defendant has refused to allow plaintiff to traverse [Y] to reach the highway which is the
nearest public road to the farm [X].
The plaintiff claims an order declaring plaintiff entitled to a way of necessity over the farm [Y], in times of floods, to and from
the eastern highway.
Claim for a road, with offer of compensation
1. Plaintiff is the owner of farm [A] in the district of [specify].
2. Defendant is the owner of farm [B] which adjoins plaintiff's said farm along its northern boundary, as will more clearly
appear from the map attached.
3. The nearest public road to A is that running from [place] to [place] and marked PQ on the map.
4. No other public road is within reasonable reach of A.
5. The only access from plaintiff's farm to the public road is over defendant's farm.
[Page 321]
6. Plaintiff requires such access for farming activities and for personal reasons.
7. For farming activities, it is necessary for plaintiff to use vehicles at least [number] metres wide and, therefore, a road of
at least [number] metres wide is required.
8. The value of the road to plaintiff and the disadvantage to be suffered by defendant is [amount] and plaintiff hereby
tenders payment of such amount as well as the cost of registration of a right of way. [Detail amount]
9. Plaintiff alleges that a suitable route for a right of way would be that between the points marked X and Y on the map.
Tendering as aforesaid, plaintiff claims:
(a) An order that defendant take the necessary steps to register a right of way over B which right of way shall be [number]
metres wide and over the route as the honourable court may determine.
(b) Failing compliance by defendant with the order within such time as the honourable court may determine, an order
authorising the sheriff to perform all the necessary acts on defendant's behalf to register the right of way.
Road accidents
Related subjects: DAMAGES: DELICTUAL DAMAGES; DELICT: LEX AQUILIA; LOSS OF SUPPORT; OCCUPATIONAL
INJURIES
Statutes: Claims for the payment of compensation for damages resulting from bodily injuries or death caused by
road accidents are regulated by statute. Since 1 May 1997, they have been regulated by the Road Accident Fund
Act 56 of 1996 which repealed the preceding 1986 and 1989 Acts.
Road Accident Fund Act 56 of 1996s 28
The 1996 Act has been altered materially by the Road Accident Fund Amendment Act 19 of 2005.
Road Accident Appeal Tribunal and others v Gouws and another [2018] 1 All SA 701 (SCA), 2018 (3) SA 413
(SCA) para. 28
Various provisions of the Act, both before and after amendment, have been the subject of constitutional scrutiny.
Law Society of South Africa v Minister for Transport 2011 (2) BCLR 150 (CC), 2011 (1) SA 400 (CC)
Road Accident Fund v Mdeyide 2011 (1) BCLR 1 (CC), 2011 (2) SA 26 (CC)
Mvumvu v Minister for Transport 2011 (5) BCLR 488 (CC), 2011 (2) SA 473 (CC)
Coughlan NO v Road Accident Fund [2015] ZACC 10
Liability general: The liability of the Fund is Aquilian and it is necessary for the plaintiff to make allegations
relating to wrongfulness, negligence and causation.
See DAMAGES: DELICTUAL DAMAGES; DELICT: LEX AQUILIA; NEGLIGENCE
Section 19 excludes liability when the driver or owner of the vehicle did not cause the damage wrongfully and
negligently.
Elements of liability: The liability of the Fund is towards a 'third party' who had suffered any loss or damage and
(a) the loss resulted from bodily injury to himself or herself;
(b) the loss arose from the driving of a motor vehicle;
(c) the injury was due to negligence or other wrongful act;
[Page 322]
(d) the negligence or wrongful act must be
(i) that of the driver; or
(ii) that of the owner of the motor vehicle; or
(iii) that of of his or her employee.
Protea Assurance Co Ltd v Matinise [1978] 2 All SA 194 (A), 1978 (1) SA 963 (A)
'Driving': Section 20 creates certain presumptions regarding the driving of a motor vehicle.
Road Accident Fund v Mkize 2005 (3) SA 20 (SCA)
If the vehicle is propelled by any mechanical, animal or human power or by gravity or momentum, it is deemed to be
driven by the person in control of it. A person who has placed or left the vehicle at any place is deemed to be driving
that vehicle while it moves from that place because of gravity or while it is stationary at that place or at a place to
which it moved from the firstmentioned place as a result of gravity.
Khoza v Netherlands Insurance Co of SA Ltd 1969 (3) SA 590 (W)
It is also presumed that a motor vehicle which has been placed or left at any place was so placed or left by its
owner.
'Motor vehicle': A motor vehicle as defined must have caused the incident that gave rise to the damage.
Road Accident Fund Act 56 of 1996s 1 s.v. 'motor vehicle'
Mutual & Federal Insurance Co Ltd v Day [2001] 4 All SA 6 (SCA), 2001 (3) SA 775 (SCA)
Road Accident Fund v Mbendera [2004] 4 All SA 25 (SCA)
Road Accident Fund v Vogel 2004 (5) SA 1 (SCA)
Bell v Road Accident Fund 2007 (6) SA 48 (SCA)
Plaintiff: The plaintiff is referred to in these statutes as a 'third party'. A third party is a person who has suffered
loss or damage because of any bodily injury to herself or himself, or the death of or any bodily injury to any other
person, caused by or arising from the driving of a motor vehicle.
Road Accident Fund Act 56 of 1996s 17(1)
A driver involved in a single motor vehicle accident, and who was not an employee of the owner of the insured
vehicle, is entitled as 'third party' to claim compensation from the Fund.
Road Accident Fund v Abrahams [2018] ZASCA 49
If a child is injured, the parent may sue in the parent's name for the medical expenses incurred on behalf of the
child in respect of its bodily injuries. The child may also sue under both heads of damages, in its own name and duly
assisted by its guardian.
Guardian National Insurance Co Ltd v Van Gool NO [1992] 2 All SA 287 (A), 1992 (4) SA 61 (A)
A plaintiff may rely on more than one cause of action flowing from the same event for example, an accident may
give rise to a claim for personal injuries and another for loss of support as result of the death of a breadwinner in
the accident.
Evins v Shield Insurance Co Ltd [1980] 2 All SA 40 (A), 1980 (2) SA 814 (A)
Defendant: The action must be instituted against the Road Accident Fund, a body with legal personality, or against
the relevant agent appointed by the Fund.
Road Accident Fund v Hansa [2002] 1 All SA 143 (A), 2001 (4) SA 1204 (SCA)
[Page 323]
The driver or owner of the vehicle or the employer of the driver concerned may be held liable to the plaintiff only if
the Fund is unable to pay the third party.
Jurisdiction: An action to enforce a claim against the Fund or an agent may be brought in any competent court
within whose area of jurisdiction the incident that caused the injury or death took place.
Prior demand: The claim must also contain an averment that the claim for compensation was sent to the defendant
and that the prescribed period of 120 days has lapsed.
John v Road Accident Fund [1999] 4 All SA 355 (T), 2000 (1) SA 459 (T)
The form must comply in substance with the requirements of section 24 of the Act and regulation 7.
Road Accident Fund Regulations, GN R770, GG 31249, 21 July 2008
SA Eagle Insurance Co Ltd v Van der Merwe NO [1998] 2 All SA 527 (A), 1998 (2) SA 1091 (SCA)
Busuku v Road Accident Fund [2016] 3 All SA 498 (ECM), 2017 (1) SA 71 (ECM)
Noncompliance must be specifically pleaded by the defendant.
Nkisimane v Santam Insurance Co Ltd [1978] 3 All SA 33 (A), 1978 (2) SA 430 (A) p. 439
If the Fund or the agent does not, within 60 days from the date on which the claim was sent or delivered, object to
its validity, the claim is deemed to be valid in all respects.
Road Accident Fund v Thugwana [2004] 1 All SA 275 (SCA), 2004 (3) SA 169 (SCA)
Cf. Malokoane v Multilateral Motor Vehicle Accidents Fund [1998] 4 All SA 486 (A), 1999 (1) SA 544 (A)
Damages: Loss or damage must have been suffered as the result of a bodily injury to the third party or of the
death or any bodily injury to any other person. The provisions of Uniform rule 18(10) and (11) must be stressed.
See DAMAGES: DELICTUAL DAMAGES
Limitation of damages serious injuries: The Fund's obligation to compensate third parties for nonpecuniary loss
is limited to compensation for a 'serious injury' and must be paid by way of a lump sum.
Assessment of a 'serious' injury must be based on a prescribed method adopted after consultation with medical
service providers and must be reasonable in ensuring that injuries are assessed in relation to the circumstances of
the third party.
Road Accident Fund Regulations, GN R770, GG 31249, 21 July 2008
The power to decide whether the injury of a third party meets the threshold for an award of general damages (but
not the determination of causation) has been conferred on the Fund and not on the court. For the court to consider
a claim for general damages, the third party must satisfy the Fund, not the court, that the injury was serious.
Should the Fund reject the RAF 4 form, the plaintiff cannot continue with the claim for general damages.
Road Accident Fund v Duma and three related cases (Health Professions Council of South Africa as amicus curiae)
[2013] 1 All SA 543 (SCA), 2013 (6) SA 9 (SCA)
Road Accident Appeal Tribunal and others v Gouws and another [2018] 1 All SA 701 (SCA), 2018 (3) SA 413
(SCA)
Limitation of damages loss of income or support: Any claim for loss of income or support, irrespective of the
actual loss, must be proportionately calculated to an amount not exceeding a prescribed amount per year in the
case of a claim for loss of income, [Page 324] or a prescribed amount per year in respect of each deceased
breadwinner in the case of a claim for loss of support.
Road Accident Fund Act 56 of 1996ss 17(4)(c) and 17(4A)
Road Accident Fund v Sweatman [2015] 2 All SA 679 (SCA), 2015 (6) SA 186 (SCA)
Barnard NO v Road Accident Fund 2017 (1) SA 245 (ECP)
The cap for loss of income or support must be applied after any apportionment of damages for contributory
negligence.
Nel v Road Accident Fund 2016 (2) SA 517 (GP)
Undertakings in respect of future costs: The Fund may on its own (or if so ordered by a court) in respect of claims
for future hospitalisation, treatment, services or goods furnish the third party with an undertaking to compensate
the costs after they have been incurred
Emotional shock: The driver or owner of the vehicle or the employer of the driver may be held liable for
compensation for loss or damage resulting from emotional shock sustained by a person, other than a third party,
when that person witnessed or observed or was informed of the bodily injury or death of another person because
of the driving of a motor vehicle. The Fund is not liable.
Road Accident Fund Act 56 of 1996ss 19(g) and 21(2)
Plea: The following pleas are standard:
(a) Prescription.
Mbele v Road Accident Fund [2016] 4 All SA 752 (SCA), 2017 (2) SA 34 (SCA)
Manukha v Road Accident Fund 2017 (4) SA 453 (SCA)
Road Accident Fund v Masindi [2018] ZASCA 94
(b) Denial of negligence;
(c) Contributory negligence;
(d) Joinder or conditional joinder of another.
Hanekom v Multilateral Motor Vehicle Accidents Fund (De Lange, third party) [ 1 9 9 7 ] 4 A l l S A 6 9 1 ( T ) ,
1998 (1) SA 634 (T)
See THIRDPARTY PROCEDURE
PRECEDENTS
Claim against Road Accident Fund
1. The plaintiff is [describe].
2. (a) The defendant is the Road Accident Fund, a legal person incorporated in terms of the Road Accident Fund Act, 56
of 1996, of [address].
(b) The defendant is liable for payment of damages in respect of bodily injuries sustained by persons as the result of
negligent driving of motor vehicles by other persons.
3. On [date] and at [place], a motor vehicle collision occurred between a motor vehicle with registration number [detail],
driven by one AB (the first insured driver), and a motor vehicle with registration number [detail], driven by one CD (the
second insured driver).
4. As a result, the plaintiff, who was a passenger of the second insured driver, was injured when the two vehicles collided.
5. The collision was caused by the sole negligence of the first insured driver, who was negligent in one or more of the
following respects: [detail see NEGLIGENCE].
6. In the alternative, the collision was caused by the sole negligence of the second insured driver, who was negligent in one
or more of the following respects: [detail].
7. In the further alternative, the collision was caused by the negligence of both said drivers.
[Page 325]
8. (a) As a result, the plaintiff sustained the following serious bodily injuries: [detail].
(b) The plaintiff obtained the prescribed Serious Injury Assessment Report.
(c) The report was submitted to the defendant, but the defendant was not satisfied that the injuries have been
correctly assessed as serious.
(d) The subsequent appeal to the Appeal Tribunal was upheld, and it found that the injuries were serious.
(e) The pronouncement of the Appeal Tribunal is final and binding.
9. The nature and extent of these injuries are set out in the medicolegal report of Dr QR which is annexed hereto.
10. Because of these injuries sustained by the plaintiff, she
(a) was hospitalised;
(b) experienced pain, suffering and discomfort;
(c) experienced emotional shock and trauma;
(d) required hospital and medical treatment;
(e) was temporarily totally disabled and continues to suffer limited but permanent general disability;
(f) has suffered a loss of earnings and will suffer in future; and
(g) has been permanently disfigured.
(Particulars appear from the annexed report of Dr QR.)
11. As a further result, the plaintiff suffered the following damages:
(a) Hospital, medical and related expenses of [R1]. This amount represents the actual expenses incurred in relation to
the serious injuries sustained and the plaintiff has provided the defendant with a detailed schedule and specified
vouchers.
(b) Estimated future hospital, medical and related expenses of [R2]. The nature, extent, duration, frequency and costs
appear from the report of Dr QR. The amount has not been capitalised or discounted on the assumption that the
defendant will elect to offer to issue a section 17(4)(a) certificate in settlement of this claim.
(c) Loss of income and earning capacity, limited in accordance with section 17(4)(c), of [R3}. The amount is based on
the assumptions and postulates contained in the attached actuarial report of Mr ST.
(d) General damages of [R4]. The plaintiff is entitled to compensation for nonpecuniary loss because of the serious
injuries. The amount is a global figure in respect of pain, suffering and discomfort, emotional shock and trauma,
loss of enjoyment of amenities of life, disfigurement and nonpecuniary aspects of disability. It is not reasonably
practical to apportion the amount amongst the components.
12. The plaintiff has complied with the provisions of section 24 of the Act relating to notices and the prescribed period has
elapsed.
(a) Payment of [R1 + R2 + R3 + R4].
(b) Interest thereon at the prescribed rate from 14 days after the date of judgment.
(c) Costs.
Claim against Road Accident Fund
1. The plaintiff is RS, a major businessman born on [date], and resides at [place].
2. The defendant is the Road Accident Fund, a juristic person established in terms of the Road Accident Fund Act 56 of 1996
('the Act'), with its principal place of business at [state].
3. In terms of section 17 of the Act, the defendant is legally liable to compensate the plaintiff for any loss or damage caused
by or arising out of the driving of a motor vehicle within the Republic of South Africa which injury or death is due to the
negligence or wrongful act by the driver or owner of the motor vehicle.
[Page 326]
4. On [date] at or about [time] and [place] within the area of jurisdiction of this honourable court, a motor vehicle collision
occurred between motor vehicle [A] driven by the plaintiff and a motor vehicle [B] driven by one DJ.
5. Because of the collision, the plaintiff suffered severe bodily injuries consisting of [detail].
6. The collision was caused solely by the negligence of DJ who was negligent in the following respects: [list the acts of
negligence].
7. The nature and extent of these injuries are set out in the medicolegal report compiled by the orthopaedic surgeon, Dr
Brown, which is annexed, as well as in the medicolegal report of the neurosurgeon, Dr van der Merwe, which is also
annexed.
8. The plaintiff's injuries are serious injuries as assessed by a medical practitioner registered under the Health Professions
Act 56 of 1974 as contemplated in section 17(1)(a) of the Act.
9. Because of the injuries and their sequelae, the plaintiff received medical and hospital treatment [detail] and incurred
expenses in connection therewith [detail].
10. In addition, the plaintiff will require further medical and hospital treatment, which will necessitate the incurring of further
expenses which are estimated to be [detail].
11. Because of the injuries, the plaintiff has lost income of R [detail] and will suffer a future loss of earnings or earning
capacity of R [detail].
12. The plaintiff has also experienced pain, suffering and discomfort and will in future continue to experience pain suffering
and discomfort as set forth in the mentioned medicolegal reports.
13. In addition, the plaintiff has suffered a loss of amenities of life and will in the future continue to suffer a further loss of
amenities of life [detail].
14. Because of the collision, the plaintiff has suffered damages in the sum of [R1 R7] which is calculated as follows:
(a) Nonprovincial hospital expenses in the sum of [R1].
(b) Future nonprovincial hospital expenses of [R2].
(c) Past medical expenses [R3].
(d) Future medical expenses [R4].
(e)
Past loss of earnings [R5].
(f) Future loss of earnings or future loss of earning capacity limited in accordance with section 17(4)(c) [R6].
(g) General damages in respect of pain and suffering and discomfort, loss of amenities of life, temporary and
permanent disfigurement and temporary and permanent disablement [R7].
15. The plaintiff's claim for general damages is a globular figure and it is not reasonably practicable to divide up this claim
into separate heads of damages as these heads largely overlap.
16. The plaintiff complied with the provisions of sections 17 and 24 of the Act as read with the Regulations.
17. Notwithstanding the expiration of the period of 120 days from the date on which the claim was sent [or delivered by
hand] to the defendant, the defendant has failed to pay the plaintiff.
18. In the premises the defendant is liable to compensate the plaintiff for his claim.
(a) Payment of [R1 R7].
(b) Interest at the prescribed rate from 14 days from date of judgment to date of payment.
(c) Costs.
Plea of contributory negligence
1. Defendant denies that the driver was negligent either as alleged or at all.
2. In the event of its being held by the above honourable court that the driver was negligent, defendant denies that the
driver's negligence was the cause of the collision. The collision [Page 327] was caused by the negligence of plaintiff, who
was negligent in one or more of the following respects:
(a) He failed to keep a proper lookout.
(b) He failed to apply his brakes timeously or at all.
(c) He failed to exercise proper or adequate control over his vehicle.
3. In the event of its being held that the driver was negligent and that his negligence was a cause of the collision, defendant
avers that plaintiff was also negligent and that his negligence contributed to the collision.
Plea of contributory negligence seatbelt
1. First defendant denies these allegations.
2. First defendant avers that the aforesaid collision occurred because of an inevitable accident and in circumstances free of
negligence on the part of the driver of motor vehicle [registration number].
3. In the alternative and in the event of its being held by the above honourable court that the driver of the said motor
vehicle was negligent, first defendant pleads that
(a) plaintiff at all material times negligently failed to make use of a seatbelt which was available for use by her and
that she reasonably ought to have made use of the seatbelt;
(b) the negligent omission by plaintiff was a cause of or contributed to the extent of the injuries which she sustained in
the collision.
Special plea prescription
1. Plaintiff's claim arose because of a motor vehicle collision which occurred on [date].
2. Plaintiff's summons was served on defendant herein on [date].
3. Plaintiff's claim prescribed prior to the issue of summons in terms of the provisions of [set out statutory provision.]
Sale: Conclusion and enforcement
Related subjects: ALIENATION OF LAND; CONTRACT: CONCLUSION AND TERMS
Sale: A sale is perfecta if it is absolute in the sense that it is not subject to a suspensive condition. It becomes
perfecta once there is agreement on the merx (the thing sold) and the pretium (price) and any suspensive condition
has been fulfilled
Southern Era Resources Ltd v Farndell NO [2010] 2 All SA 350 (SCA), 2010 (4) SA 200 (SCA) para. 9
The contract: A party relying on a contract of sale must allege and prove a contract in which the parties agreed
(a) to purchase and sell;
(b) on the thing purchased; and
(c) on the price.
The general rules applicable to the pleading of contracts apply.
Loggenberg and others v Maree [2018] ZASCA 24
Price: There can be no valid contract of sale unless the parties have agreed, expressly or tacitly, on a purchase
price. They must either fix the amount of the price in their [Page 328] contract or agree on some external, objective
standard that makes it possible to determine the price without further reference to them.
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986 (2) SA 555 (A)
H Merks & Co (Pty) Ltd v BM Group (Pty) Ltd 1996 (2) SA 225 (A)
Chretien and another v Bell [2010] 2 All SA 428 (SCA), 2011 (1) SA 54 (SCA)
Cf. Makate v Vodacom (Pty) Ltd 2016 (6) BCLR 709 (CC), 2016 (4) SA 121 (CC)
In the absence of an express term it is possible to rely on a tacit term to the effect that the price was to be the
seller's usual price.
The thing sold: The object sold must be identified or identifiable from the contract.
Clements v Simpson [1971] 3 All SA 196 (A), 1971 (3) SA 1 (A)
Vermeulen v Goose Valley Investments (Pty) Ltd [2001] 3 All SA 350 (A), 2001 (3) SA 986 (SCA)
JR 209 Investments and another v Pine Villa Estates; Pine Villa Estates v JR 209 Investments [2009] 3 All SA 32
(SCA), 2009 (4) SA 302 (SCA)
Claim for purchase price: A seller who claims payment of the purchase price claims specific performance and must
allege and prove
(a) a valid contract of sale; and
Horwitz v Hendricks 1928 AD 391
(b) that the purchase price is due and payable because
(i) the goods were delivered in conformity with the terms of the contract;
Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) p. 537
(ii) a tender of delivery against payment is made in the claim; or
(iii) the contract provides for payment on a specific date independently of the seller's obligation to make
delivery.
Pienaar v Fortuin [1977] 1 All SA 56 (T), 1977 (4) SA 428 (T)
The seller's claim would then be for payment or payment against delivery, and, in the event of failure to pay, for
cancellation and damages.
The duty of the seller: The duty of the seller is to deliver the object sold and provide the purchaser with vacant
possession and to warrant against eviction.
See SALE: WARRANTY AGAINST EVICTION
Claim for delivery: A purchaser's claim for delivery is a claim for specific performance. The purchaser must allege
and prove
(a) a valid contract of sale; and
(b) that delivery is due because
(i) the purchase price was paid;
Wolpert v Steenkamp 1917 AD 493
(ii) of a tender of payment against delivery; or
Robinson v Hay 1930 AD 444
(iii) the contract provides for delivery on a specific date independently of the purchaser's obligations.
See CONTRACT: SPECIFIC PERFORMANCE; EXCEPTIO NON ADIMPLETI CONTRACTUS
The purchaser's claim is for delivery or delivery against payment and, in the event of failure to deliver, for
cancellation and damages.
Damages: Damages that flow naturally from the failure of a contract of purchase and sale when an obligation to
deliver is breached, for example are ordinarily calculated as the adverse difference between the net price that
would have been paid under [Page 329] the failed transaction and the market value of the property at the time for
performance. In many cases the calculation will be based on the net price achieved on resale provided there is no
reason to think that market circumstances had materially altered in the interim.
Mia v Verimark Holdings (Pty) Ltd [2009] ZASCA 99, [2010] 1 All SA 280 (SCA) para. 12
Consumer Protection Act 68 of 2008: Many provisions in the Act affect sales for instance, the right to safe, good
quality goods (s 55) and the implied warranty of quality (s 56).
See CONSUMER PROTECTION
PRECEDENTS
Claim for payment after delivery
1. On [date] at [place], the parties entered into an oral agreement of sale in terms of which plaintiff sold to defendant two
horses at the price of [amount] payable one week after delivery.
2. On [date], plaintiff delivered the horses to defendant at [place].
3. Despite demand, defendant has failed to pay the purchase price.
Claim for payment against delivery
1. On [date] at [place], the parties entered into a written agreement in terms of which plaintiff sold to defendant two
krugerrands at a selling price equal to the price quoted by the [bank] for such krugerrands on [date], payable on
delivery. A copy of the said agreement is attached hereto and marked 'A'.
2. On [date], the [bank] quoted the selling price for krugerrands at [amount] per coin.
3. In the premises, the purchase price of the two krugerrands is [amount].
4. Plaintiff tendered to deliver to defendant the two krugerrands against payment of [amount] but defendant refused to
accept delivery or to make payment.
The plaintiff, tendering as aforesaid, claims payment of [amount].
Claim for delivery
defendant one [specify] model washing machine.
2. In terms of the agreement between the parties, plaintiff paid the full purchase price to defendant on [date].
3. Despite his obligation to do so, defendant has failed to deliver the washing machine to plaintiff.
Sale: Latent defects
Latent defect: A defect is latent if it was not visible or discoverable upon reasonable inspection and the purchaser
was unaware of the defect.
Cullen v Zuidema [1951] 4 All SA 81 (C), 1951 (3) SA 817 (C)
Odendaal v Ferraris [2008] 4 All SA 529 (SCA), 2009 (4) SA 313 (SCA)
Haviside v Heyndricks and another 2014 (1) SA 235 (KZP)
The presence of latent defects does not per se amount to a breach of contract.
[Page 330]
Alternative remedies: Depending on the facts, a seller may be held liable for latent defects in the object sold by
means of the actio empti (for damages), actio redhibitoria (for repayment) or actio quanti minoris (for price reduction).
Relief may be claimed in the alternative.
Le Roux v Autovend (Pty) Ltd [1981] 2 All SA 466 (N), 1981 (4) SA 890 (N)
It is necessary to distinguish between defects in the goods and delivery to a purchaser of a thing of something
different from that which had been bargained for. The claim in the latter instance does not fall under this heading
but falls to be considered under the head of ordinary breach of contractual principles for nonperformance.
Liability for latent and other defects is affected by the Consumer Protection Act in relation to agreements covered by
that Act.
Consumer Protection Act 68 of 2008ss 53, 55, 61 and 76
Damages actio empti: Damages (with or without cancellation of the contract) for latent defects may be claimed
with the actio empti. (The other two actions do not entitle the purchaser to damages.) This requires a breach of
contract or fraud.
See CONTRACT: BREACH; CONTRACT: DAMAGES
The purchaser must allege and prove not only that the object had a defect that was latent but also one of the
following:
(a) Warranty: The seller warranted as a term of the contract the absence of defects or the presence of qualities
lacking in the object sold.
Minister van LandbouTegniese Dienste v Scholtz [1971] 3 All SA 81 (A), 1971 (3) SA 188 (A)
(b) Implied term: The seller was a merchant or dealer who publicly professed to have skill and expert knowledge
in relation to the kind of thing sold or was a manufacturing seller.
Kroonstad Westelike Boere Kooperatiewe Vereniging Bpk v Botha [1964] 3 All SA 546 (A), 1964 (3) SA 561 (A)
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd [1977] 4 All SA 94 (A), 1977 (3) SA 670 (A)
CibaGeigy (Pty) Ltd v Lushof Farms (Pty) Ltd [2002] 2 All SA 525 (A), 2002 (2) SA 447 (SCA)
D & H Piping Systems (Pty) Ltd v Trans Hex Group Ltd [2006] 3 All SA 309 (SCA), 2006 (3) SA 593 (SCA)
(c) Fraud: The seller knowingly concealed defects, or knowingly represented their absence. This is fraud in
another form.
Glaston House (Pty) Ltd v Inag (Pty) Ltd [1977] 3 All SA 88 (A), 1977 (2) SA 846 (A)
See FRAUD
Repayment actio redhibitoria: This claim is for repayment of the purchase price and interest. The purchaser must
allege and prove that
Mkize v Lourens 2003 (3) SA 292 (T)
(a) the object sold had a defect which, viewed objectively, substantially impaired the object's utility or
effectiveness for the purpose for which it was sold or for which it is commonly used;
Glaston House (Pty) Ltd v Inag (Pty) Ltd [1977] 3 All SA 88 (A), 1977 (2) SA 846 (A)
(b) the defect existed at the time of sale;
Seboko v Soll [1949] 3 All SA 353 (T), 1949 (3) SA 337 (T) p. 350
[Page 331]
(c) the defect was latent in other words, it was not visible or discoverable upon inspection;
Haviside v Heyndricks and another 2014 (1) SA 235 (KZP)
(d) the purchaser was unaware of the defect. An allegation that the defect was latent implies this element;
Cullen v Zuidema [1951] 4 All SA 81 (C), 1951 (3) SA 817 (C)
(e) objectively speaking, the purchaser would not have purchased the object if the defect was known;
(f) the purchaser is willing and able to effect restitution or that there are sufficient grounds for excusing
restitution.
HallThermotank Natal (Pty) Ltd v Hardman [1968] 4 All SA 361 (D), 1968 (4) SA 818 (D)
Instances in which restitution is excused are when the thing has perished because of the defect; it was disposed of
in manner contemplated and its proceeds are tendered; it was partly destroyed in the process of determining its
quality; or it became valueless while being used in the manner contemplated.
Harper v Webster [1956] 1 All SA 213 (FC), 1956 (2) SA 495 (FC)
Price reduction actio quanti minoris: A purchaser who is unable to prove the last two elements of the actio
redhibitoria is entitled to claim a price reduction with the actio quanti minoris. This reduction is the difference between
the purchase price and the value of the object with its defect.
Labuschagne Broers v Spring Farm (Pty) Ltd [1976] 1 All SA 181 (T), 1976 (2) SA 824 (T)
It is necessary, therefore, to allege and prove the actual value of the article with its defect.
Grosvenor Motors Border Ltd v Visser [1971] 3 All SA 398 (E), 1971 (3) SA 213 (E)
Sarembock v Medical Leasing Services (Pty) Ltd [1991] 1 All SA 16 (A), 1991 (1) SA 344 (A)
If the sale was one by measure, the price reduction will be proportional.
Welgemoed v Sauer [1974] 4 All SA 112 (A), 1974 (4) SA 1 (A)
'Implied warranty of quality': The purpose of excluding an 'implied warranty' in a contract is to exclude liability not
expressly undertaken. Its proper interpretation therefore excludes both a tacit term as to quality and a term implied
by law.
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd [2004] 1 All SA 1 (SCA), 2005 (6) SA 1 (SCA)
Cf. Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd [2011] 3 All SA 362 (SCA), 2011 (4) SA 276 (SCA)
There is an implied warranty of quality in terms of the Consumer Protection Act in respect of agreements covered by
that Act.
Consumer Protection Act 68 of 2008ss 55 and 56
Voetstoots clause: The seller may rely on a voetstoots clause as a defence to a claim based on a latent defect. It
does not provide a defence if the seller delivers something different from what was bought.
To succeed despite the clause, the purchaser must allege and prove that the seller
(a) was aware of the latent defect when the contract was concluded;
(b) deliberately concealed the defect;
[Page 332]
(c) bore a duty to disclose the defect; and
(d) failed so to disclose.
Glaston House (Pty) Ltd v Inag (Pty) Ltd [1977] 3 All SA 88 (A), 1977 (2) SA 846 (A) p. 870
Van der Merwe v Meades [1991] 4 All SA 42 (A), 1991 (2) SA 1 (A)
Truman v Leonard [1994] 4 All SA 445 (SE), 1994 (4) SA 371 (SE)
Banda v Van der Spuy [2013] (4) SA 77 (SCA)
Ellis v Cilliers NO 2016 (1) SA 293 (WCC)
Exceptio quanti minoris: Although a defendant may in the plea to a claim for payment of the purchase price rely on
a price reduction, the socalled exceptio quanti minoris is no defence unless the amount still due in terms of the
contract is the same as or less than the price reduction to which the defendant is entitled. Normally, quanti minoris
must be claimed in a counterclaim.
Davenport Corner Tea Room (Pty) Ltd v Joubert [1962] 3 All SA 45 (D), 1962 (2) SA 709 (D)
Product liability: A seller may at common law be liable in delict for damage caused by a defect, provided the
elements for delictual liability, including fault, are present.
Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd [2003] 2 All SA 167 (SCA), 2003 (4) SA 285 (SCA)
Under section 61 of the Consumer Protection Act 68 of 2008, the producer or importer, distributor or retailer of any
goods is liable for any harm caused wholly or partly because of
(a) supplying any unsafe goods;
(b) a product failure, defect or hazard in any goods; or
(c) inadequate instructions or warnings provided to the consumer pertaining to any hazard arising from or
associated with the use of any goods,
irrespective of whether the harm resulted from any negligence on the part of the producer, importer, distributor or
retailer. It might be possible to formulate similar tacit or implies terms giving rise to liability under the action empti.
PRECEDENTS
Claim for cancellation or price reduction
1. On [date] at [place], the parties entered into an oral agreement in terms of which defendant sold to plaintiff a motor
vehicle [describe] for a sum of [amount].
2. Plaintiff paid the purchase price to defendant upon delivery on [date].
3. It was an implied term of the agreement that the vehicle would be free of latent defects and fit for use on a public road.
4. At the time of the sale, the motor vehicle suffered from the following latent defects: [detail].
5. The aforesaid defects were of such a nature that the vehicle could not be used on a public road.
6. Had plaintiff known of the defects, he would not have purchased the vehicle at all.
7. Plaintiff tenders return of the vehicle to defendant against repayment of the sum of [amount].
8. Alternatively, and if the honourable court finds that plaintiff was not entitled, by virtue of the latent defects, to reject the
vehicle in its entirety, plaintiff avers that he would only have paid a purchase price of [amount] for the motor vehicle in
the condition in which it was.
[Page 333]
The plaintiff claims repayment of the sum of [the purchase price] against delivery of motor vehicle [describe] to defendant;
alternatively, payment of [amount] (being the difference between the purchase price and the price plaintiff would have paid for
the vehicle).
Claim against expert vendor
defendant a tractor, model [number].
2. The purchase price was [amount], which plaintiff paid to defendant on [date].
3. At all material times:
(a) defendant publicly held himself out to be an expert seller of farm machinery, including tractors;
(b) defendant knew that plaintiff required the tractor to plough his maize fields;
(c) defendant knew that plaintiff would suffer damages if the tractor had latent defects.
4. In the premises, the agreement between the parties contained an implied warranty against any latent defects which
would render the tractor unfit for the purposes of ploughing maize fields.
5. At the time of sale, the tractor had the following latent defects: [detail].
6. Because of the defects, the tractor was not fit to plough the said fields and was substantially unfit for any farm work.
7. Due to the latent defects and defendant's breach of warranty, plaintiff is entitled to cancel the agreement between the
parties, which he hereby does, and he tenders return of the tractor to defendant.
8. Because of defendant's breach of contract as aforesaid, plaintiff has suffered damages in the amount of [amount], made
up as follows:
[detail].
Sale: Warranty against eviction
The duty of the seller: A seller must deliver the object sold and provide the purchaser with vacant possession and
warrant against eviction.
Cradle City (Pty) Ltd v Lindley Farm 528 (Pty) Ltd 2018 (3) SA 65 (SCA)
The seller is not obliged to transfer ownership, which means that a nonowner can validly sell an object.
Köster v Norval [2015] ZASCA 185
Breach of implied warranty: A purchaser has a claim against the seller for a breach of the legally implied warranty
against eviction in the following circumstances:
(a) The purchaser must have been evicted. This does not necessarily mean a physical loss but includes a case in
which an unassailable claim of a third party to the goods was compromised.
Lammers & Lammers v Giovannoni [1955] 4 All SA 59 (A), 1955 (3) SA 385 (A)
Van Jaarsveldt v Bosman [2007] 4 All SA 1198 (W)
(b) The purchaser must have given the seller proper notice of the proceedings, calling on the seller for assistance
in defending the case. The purchaser must also have conducted an unsuccessful virilis defensio against the
claim.
Westeel Engineering (Pty) Ltd v Sydney Clow & Co Ltd [1968] 3 All SA 221 (T), 1968 (3) SA 458 (T)
York & Co (Pvt) Ltd v Jones NO (2) [1962] 1 All SA 83 (SR), 1962 (1) SA 72 (SR)
[Page 334]
If no notice was given or no virilis defensio conducted, the purchaser must establish that the claimant's title
was unassailable.
Lammers & Lammers v Giovannoni [1955] 4 All SA 59 (A), 1955 (3) SA 385 (A)
Garden City Motors (Pty) Ltd v Bank of the OFS Ltd [1983] 1 All SA 359 (N), 1983 (2) SA 104 (N)
Göbel Franchises CC v Kadwa 2007 (5) SA 456 (C)
Relief: An evicted purchaser may reclaim the purchase price and interest plus any increase in the value of the thing
as at the date of eviction.
Alpha Trust (Edms) Bpk v Van der Watt [1975] 4 All SA 61 (A), 1975 (3) SA 734 (A)
Katzeff v City Car Sales (Pty) Ltd 1998 (2) SA 644 (C)
Göbel Franchises CC v Kadwa 2007 (5) SA 456 (C)
When the purchase price has not yet been paid, the purchaser may sue for damages. The measure is the difference
between the price and the value of the thing at the date of eviction.
An increase in value due to circumstances that were not contemplated by the parties or could not reasonably have
been contemplated when the contract was concluded cannot be recovered.
Watt v Standard Bank National Industrial Credit Corp [1982] 1 All SA 121 (D), 1982 (2) SA 47 (D)
Even if the warranty against eviction was excluded in terms of the contract the purchaser is nevertheless entitled to
the repayment of the purchase price.
Vrystaat Motors v Henry Blignaut (Edms) Bpk [1996] 1 All SA 249 (A), 1996 (2) SA 448 (A)
Cf. Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA), 2002 (6) SA 453 (SCA)
Successive sales: In the case of successive sales, the warranty binds the seller to the seller's direct purchaser and
not to a successive purchaser.
Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [2006] 1 All SA 103 (SCA), 2005 (6) SA 205
(SCA)
PRECEDENTS
Claim for repayment
1. On [date] at [place], the parties entered an oral agreement in terms of which plaintiff purchased from defendant a
[describe] motor car.
2. On [date], defendant delivered the motor car to plaintiff who, on the same date, paid defendant the full purchase price
[amount].
3. On [date], plaintiff was evicted by [name] who claimed to be the owner of the vehicle in case number [specify] in this
honourable court.
4. On [date], plaintiff gave defendant notice of the [name] claim and requested assistance in defending the claim.
5. Despite request, defendant failed to assist plaintiff who, nevertheless, unsuccessfully but strenuously defended the
application. In the alternative, plaintiff avers that [name]'s claim to and in respect of the motor vehicle was unassailable.
6. On [date], the honourable court ordered that possession of the vehicle be given to [name].
Sale of land on instalment
Related subjects: ALIENATION OF LAND; CONTRACT: CONCLUSION AND TERMS; CREDIT AGREEMENT; SALE:
CONCLUSION AND ENFORCEMENT
Statute: Alienation of Land Act 68 of 1981.
[Page 335]
Scope of the Act: The provisions of the Act relating to the sale of land on instalment apply to land used or intended
to be used mainly for residential purposes, thus excluding agricultural land and commercial properties.
Alienation of Land Act 68 of 1981s 1 s.v. 'land'
If, in any proceedings, it is alleged that land sold was used or intended to be used mainly for residential purposes,
it is presumed that the allegation is true until the contrary is proved.
Formalities: The contract must be in writing and signed by the parties or by their agents acting on their written
authority.
See Alienation of Land
In addition, the contract must be drawn in the official language chosen by the purchaser (s 5) and must contain
several prescribed terms (s 6). In the event of any noncompliance, a court may at the instance of the purchaser in
proceedings instituted within two years of the contract
(a) declare it void ab initio;
(b) rectify the contract;
(c) reduce the rate of interest; or
(d) grant alternative relief in its discretion.
Certain terms are of no force and effect for instance, terms prohibiting the purchaser from accelerating the
discharge of the contract restricting the right to compensation for improvements.
Claim by a seller: In the event of a breach of contract by the purchaser, the seller must notify the purchaser, by
letter, of the breach and demand that the breach must be rectified. Thirty days' notice must be given. The notice
must contain a description of the alleged breach of contract and an indication of the steps the seller intends to take
should the breach not be rectified.
Only when the purchaser has failed to comply with a proper demand, the seller may enforce any provision of the
contract for acceleration (or any other penalty provision), terminate the contract, or institute an action for damages.
A seller's claim in enforcing a contract is limited to the amounts specified in section 12(2).
Claim by a purchaser: A purchaser may at any time claim transfer of the property against payment of the purchase
price (or, in the case of a remote purchaser, the fulfilment or tender of the obligations of every prior intermediary).
Any term in the agreement limiting this right is of no force and effect.
A purchaser who has paid at least 50% of the price is also entitled to demand transfer, provided the land is
registrable against registration of a first mortgage bond in favour of the seller.
Alienation of Land Act 68 of 1981s 11, read with ss 17 and 18, and s 27
Botha and another v Rich NO and others 2014 (4) SA 124 (CC), 2014 (7) BCLR 741 (CC)
PRECEDENTS
Claim setting aside contract
1. On [date] at [place], the parties concluded a written deed of sale in terms of which defendant sold to the plaintiff the
property [description]. A copy of the deed is attached and marked 'A'.
[Page 336]
2. In terms of 'A', the purchase price was payable in six equal instalments, payable halfyearly, with a first instalment
payable on or before [date].
3. The land sold was intended to be used mainly for residential purposes and Chapter II of Act 68 of 1981 applies to the
contract.
4. In terms of section 6, the contract had to contain, inter alia, [detail].
5. Annexure 'A' does not contain them and does not substantially comply with the Act.
6. Plaintiff has paid to defendant [amount].
(a) An order declaring the contract of sale between the parties to be null and void ab initio.
(b) Repayment to plaintiff of [amount].
(c) Interest on the amount at [percentage] per annum.
Claim for cancellation
1. On [date] at [place], the parties entered a written contract of sale in terms of which plaintiff sold to defendant a property
[X] within the jurisdiction of this honourable court. A copy is marked 'A'.
2. In terms of 'A', defendant was obliged to pay to the plaintiff the following instalments: [detail].
3. Defendant failed to pay the first instalment, which was due on [date].
4. On [date], plaintiff sent by registered post to defendant's address a notice informing her of her breach together with a
demand to rectify the breach by payment of the instalment within 30 days of the [date] [being the date on which the
notice was sent]. A copy of the notice is marked 'B'.
5. In terms of 'B', plaintiff stated that she would cancel the agreement upon failure of defendant to rectify the latter's breach
of contract.
6. Defendant failed to rectify the breach of contract within the allowed period and, on [date], plaintiff notified defendant of
the cancellation of the agreement.
7. Despite the cancellation of the agreement, defendant has failed to vacate plaintiff's premises.
The plaintiff claims an order evicting defendant from X.
Setoff
Related subject: PAYMENT
Setoff: Setoff takes place when two parties (a) are mutually indebted to each other; (b) both debts are liquidated
and fully due.
Effect: Setoff operates automatically and not because of a plea of setoff.
Great North Farms (Edms) Bpk v Ras [1972] 4 All SA 124 (T), 1972 (4) SA 7 (T)
Western Cape Housing Development Board v Parker [2006] 3 All SA 84 (C), 2005 (1) SA 462 (C)
Setoff in effect amounts to payment brevi manu: the one debt extinguishes the other pro tanto as effectually as if
payment had been made.
Joint Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund [1969] 2 All SA 121 (T), 1969 (2) SA 78
(T)
Cf. Absa Bank Limited v Standard Bank of SA Limited [1997] 4 All SA 673 (A), 1998 (1) SA 242 (SCA)
If a creditor claims payment, the defendant must plead and prove setoff. Once setoff is established, the claim is
deemed to have been extinguished (fully or in part) retrospectively (ex tunc) from the moment mutuality of the
debts arose.
[Page 337]
Schierhout v Union Government (Minister of Justice) 1926 AD 286 p. 290
Mahomed v Nagdee [1952] 2 All SA 121 (A), 1952 (1) SA 410 (A)
AAA Brick Co (Pty) Ltd v Coetzee [1996] 1 All SA 23 (B), 1996 (3) SA 578 (B)
Liquidated debt: A debt is liquidated if
(a) it is based on a liquid document;
(b) it is admitted;
(c) its money value has been ascertained; or
(d) it is capable of prompt ascertainment.
Fatti's Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd [1962] 1 All SA 578 (T), 1962 (1) SA 736 (T)
Unliquidated debt: Only a liquidated debt can be setoff. A defendant who wishes to rely on an unliquidated debt
must file a claim in reconvention and pray for the postponement of judgment on the plaintiff's claim pending
judgment on the claim in reconvention.
See PART A s.v. VI. COUNTERCLAIMS
Essentials: To rely on setoff, the defendant must allege and prove
(a) the indebtedness of the plaintiff to the defendant;
Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C)
(b) that the plaintiff's debt to the defendant is due and payable;
Mahomed v Nagdee [1952] 2 All SA 121 (A), 1952 (1) SA 410 (A)
(c) that both debts are liquidated;
(d) that the parties are indebted to each other in the same capacity.
Road Accident Fund v Myhill NO 2013 (5) SA 426 (SCA)
Capricorn Beach Home Owners Association v HES Potgieter t/a Nilands and another 2014 (1) SA 46 (SCA)
Spar Group Ltd v Firstrand Bank Ltd and another [2016] 4 All SA 646 (GP), 2017 (1) SA 449 (GP).
Surety: See SURETYSHIP.
PRECEDENTS
Plea of setoff
1. Defendant admits that she was indebted to plaintiff in the amount claimed on the grounds stated.
2. Defendant pleads, however, that her indebtedness towards plaintiff was extinguished by setoff by the following facts:
(a) on [date] at [place], defendant sold under an oral agreement a table to plaintiff for [amount];
(b) defendant duly delivered the table on [date] at [place];
(c) plaintiff has not paid the purchase price which was, at all relevant times, due and payable to defendant.
Settlement (compromise)
Related subjects: NOVATION; RES IUDICATA; TENDER BY A DEFENDANT; TENDER IN 'FULL AND FINAL SETTLEMENT'
[Page 338]
Definition: A compromise or settlement (transactio) is a contract which has as its object the prevention, avoidance
or termination of litigation. It has the effect of res iudicata irrespective of whether it is embodied in an order of court
and it is an absolute defence to any action based on the original claim.
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A)
GbengaOluwatoye v Reckitt Benckiser South Africa (Pty) Limited and another 2016 (12) BCLR 1515 (CC), [2017]
1 BLLR 1 (CC), (2016) 37 ILJ 2723 (CC)
Contract: A compromise is a substantive contract which exists independently of the cause that gave rise to the
compromise. The general rules of pleading contracts apply.
See CONTACT: CONCLUSION AND TERMS
The agreement must relate directly or indirectly to an issue or lis between the parties; it must not be objectionable
both from a legal and practical point of view; it must not be at odds with public policy; and it must hold some
practical and legitimate advantage.
Eke v Parsons 2015 (11) BCLR 1319 (CC), 2016 (3) SA 37 (CC) paras 2526
Big Five Duty Free (Pty) Limited v Airports Company South Africa Limited and others [2017] 4 All SA 295 (SCA)
paras 1517
Compromise made an order of court: A consent order following upon a settlement has the same standing and
qualities as any other court order. It is res iudicata as between the parties regarding the matters covered. The court
does not consider the merits of the litigation.
Moraitis Investments (Pty) Ltd and others v Montic Diary (Pty) Ltd and others [2017] 3 All SA 485 (SCA),
2017 (5) SA 508 (SCA) para. 10
Compromise and novation: Compromise and novation differ fundamentally.
See NOVATION
Authority to compromise: See LEGAL PRACTITIONERS.
Breach of compromise: In the absence of a reservation of the right to proceed on the original cause of action, the
compromise agreement bars any proceedings based on the original cause. In addition, the defendant is not entitled
to go behind the compromise and raise defences to the original cause of action when sued on the compromise.
Van Zyl v Nieman [1964] 4 All SA 377 (A), 1964 (4) SA 661 (A)
A term providing that when one of the parties does not comply with the terms of the compromise the other may rely
on the original cause of action may be express or tacitly implied and may be either a resolutive or a suspensive
condition.
Ocean Bentonite Co (Pty) Ltd v Crause 1981 (3) SA 1177 (A)
Onus: The onus of proof is on the party who alleges that a compromise has been reached. Compromises, including
those resulting in an order of court, are interpreted in accordance with the general rules applicable to the
interpretation of documents.
Chapmans Peak Hotel (Pty) Ltd v South Peninsula Municipality [1998] 4 All SA 619 (C)
Defences: A compromise may be set aside if it was obtained fraudulently; or
Rowe v Rowe [1997] 3 All SA 503 (A), 1997 (4) SA 160 (SCA)
on the grounds of mistake, provided that the error vitiated true consent and did not merely relate to the motive of
the parties or to the merits of the dispute, which was the purpose of the parties to compromise.
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA 914 (A)
Wilson Bayly Holmes (Pty) Ltd v Maeyane [1995] 2 All SA 173 (T), 1995 (4) SA 340 (T)
See MISTAKE
[Page 339]
Other contractual defences, such as impossibility of performance or illegality of the compromise, are also available.
Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T)
Standard Bank of SA Ltd v Essop [1997] 3 All SA 117 (D), 1997 (4) SA 569 (D)
PRECEDENTS
Claim based on compromise
1. On [date] at [place], plaintiff and defendant entered a written agreement in terms of which the dispute [detail] between
the parties was settled. A copy is annexed.
2. Defendant has failed to comply with the terms of the settlement.
3. In terms of the settlement, plaintiff is entitled, in the event of defendant's failure to comply with the terms, at her choice
to proceed with the original cause of action or with the settlement agreement.
4. Plaintiff has elected to abide by the terms of the compromise.
Plea alleging a settlement
1. On [date] at [place], plaintiff and defendant settled the dispute which is the subject matter of the present claim. A copy is
annexed.
2. Plaintiff did not reserve his rights to proceed on the original cause of action.
Simulated transactions
Related subjects: FRAUD; INSOLVENCY
Leading cases:
Zandberg v Van Zyl 1910 AD 302
Commissioner for SARS v NWK Ltd [2011] 2 All SA 347 (SCA), 2011 (2) SA 67 (SCA)
Commissioner, South African Revenue Service v Bosch and another [2015] 1 All SA 1 (SCA), 2015 (2) SA 174
(SCA) paras 3841
Definition: A simulated transaction is essentially dishonest because the parties to the transaction do not intend it
to have as between them the legal effect it purports to convey. The purpose of the disguise is to deceive by
concealing the real transaction. However, substance rather than form determines the nature of a transaction ( plus
valet quod agitur quam quod simulate concipitur).
S v De Jager [1965] 2 All SA 495 (A), 1965 (2) SA 616 (A) pp. 627628
Skjelbreds Rederi AS v Hartless (Pty) Ltd [1982] 1 All SA 15 (A), 1982 (2) SA 710 (A) p. 733
Avoidance of statutory provisions: Parties are free to arrange their affairs in such a way as to remain outside the
provisions of a statute. Merely because those provisions would not have been avoided had the parties structured
their transaction in a different and perhaps more convenient way does not render the transaction objectionable.
What parties may not do is conceal the true nature of their transaction or 'call it by a name, or give it a shape,
intended not to express but to disguise its true nature'.
Erf 3183/1 Ladysmith (Pty) Ltd v Commissioner for Inland Revenue 1996 (3) SA 942 (A)
Registrateur van Aandelebeurse v Aldum h/a Onecor Group 2002 (2) SA 767 (SCA)
Michau v Maize Board 2003 (6) SA 459 (SCA)
Maize Board v Jackson [2006] 3 All SA 511 (SCA), 2005 (6) SA 592 (SCA)
The test for simulation is not simply whether there is an intention to give effect to a contract in accordance with its
terms. Invariably, when parties structure a transaction [Page 340] to achieve an objective other than the one
ostensibly achieved they intend to give effect to the transaction on the terms agreed. The test requires an
examination of the commercial sense of the transaction, of its real substance and purpose.
If the purpose of the transaction is only to achieve an object that allows the evasion of tax or of a peremptory law,
the transaction will be regarded as simulated. The fact that parties do perform in terms of the contract does not
show that it is not simulated: the charade of performance may be to give credence to their simulation.
Commissioner for SARS v NWK Ltd [2011] 2 All SA 347 (SCA), 2011 (2) SA 67 (SCA) para. 55
Roshcon (Pty) Ltd v Anchor Auto Body Builders CC and others [2014] 2 All SA 654 (SCA), 2014 (4) SA 319 (SCA)
Commissioner, South African Revenue Service v Bosch and another [2015] 1 All SA 1 (SCA), 2015 (2) SA 174
(SCA) paras 3841
Onus: A party who alleges that a transaction is simulated must allege and prove simulation and rebut the prima
facie inference that it is not simulated. Simulations are detected by considering the facts leading up to the contract
and by taking account of any unusual provisions.
Zandberg v Van Zyl 1910 AD 302 p. 314
Vasco Dry Cleaners v Twycross [1979] 1 All SA 321 (A), 1979 (1) SA 603 (A) p. 611
Commissioner for SARS v NWK Ltd [2011] 2 All SA 347 (SCA), 2011 (2) SA 67 (SCA)
PRECEDENTS
Plea alleging a simulated transaction
1. Defendant admits signing the purported agreement of sale as alleged by plaintiff.
2. Defendant denies, however, that the parties intended to enter into an agreement of sale and alleges that it was their
intention to enter into an agreement of pledge.
3. Defendant alleges that she borrowed [amount] from plaintiff on [date] at [place] and, since she was unable to repay
plaintiff and in order to protect from defendant's other creditors the article allegedly sold, the agreement was entered
into.
4. Defendant, therefore, pleads that the true agreement was one of pledge and that the sale was a simulated agreement.
Special pleas
See PART A s.v. IV. SPECIAL PLEAS
Precedents can be found under the relevant headings for example, ARBITRATION and JURISDICTION.
Spoliation (mandament van spolie)
Related subjects: EVICTION; VINDICATION
General: Relief by way of the mandament van spolie is seldom claimed in action proceedings because of the urgency
of these matters. A spoliation order is a final order and, if the factual dispute is such that it cannot be resolved in
application proceedings, action proceedings may be indicated.
Reck v Mills [1990] 1 All SA 560 (A), 1990 (1) SA 751 (A)
[Page 341]
Jurisdiction: Magistrates' courts have the jurisdiction to grant spoliation orders, provided the value of the spoliated
goods does not exceed the value limits imposed by the Magistrates' Courts Act. In the case of possession of
immovables, it is not the market value that determines jurisdiction but the value of the possession. In the case of
movables, the yardstick is market value.
Magistrates' Courts Act 32 of 1944s 30(1)
Possession: Physical possession, not the right to possession, is protected. The claim to relief under the mandament
arises solely from deprivation of possession otherwise than through legal procedure.
The plaintiff must allege and prove that the plaintiff was in peaceful and undisturbed possession of the property or
other real right.
Kgosana v Otto [1991] 3 All SA 665 (W), 1991 (2) SA 113 (W)
Impala Water Users Association v Lourens NO [2004] 2 All SA 476 (SCA), 2008 (2) SA 495 (SCA)
'Possession', for purposes of the mandament, is not possession in the strict juridical sense. It suffices if the holding
was with the intention of securing some benefit for the plaintiff. The causa of the plaintiff's possession is irrelevant,
and it is also irrelevant that the defendant has a stronger right or claim to possession.
Yeko v Qana [1973] 4 All SA 512 (A), 1973 (4) SA 735 (A)
Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director, Dept of Education & Culture Services 1996 (4) SA 231
(C)
The fact that the claimant's possession is wrongful, or illegal, is irrelevant.
I v a n o v v N o r t h W e s t G a m b l i n g B o a r d a n d o t h e r s [ 2 0 1 2 ] 4 A l l S A 1 ( S C A ) , 2 0 1 2 ( 6 ) S A 6 7 ( S C A ) ,
2012 (2) SACR 408 (SCA)
Because good title is irrelevant, the respondent may not contest the applicant's title to the property. But, should
the applicant go further and claim a substantive right to possession, whether based on title of ownership or on
contract, the respondent may answer the additional claim of right and may demonstrate that the applicant does not
have the right.
Street Pole Ads Durban (Pty) Ltd v Ethekwini Municipality [2008] 3 All SA 182 (SCA), 2008 (5) SA 290 (SCA)
Dispossession: The plaintiff must allege and prove unlawful deprivation of possession by the defendant. In this
context 'unlawful' refers to dispossession without the plaintiff's consent or due legal process.
Sillo v Naude 1929 AD 21
Ntai v Vereeniging Town Council [1953] 4 All SA 358 (A), 1953 (4) SA 579 (A)
George Municipality v Vena [1989] 2 All SA 125 (A), 1989 (2) SA 263 (A)
Contractual rights: The mandament does not protect contractual rights and cannot be used to enforce specific
performance of a contract.
Telkom SA Ltd v Xsinet (Pty) Ltd [2003] ZASCA 35, 2003 (5) SA 309 (SCA)
First Rand Ltd t/a Rand Merchant Bank v Scholtz NO [2007] 1 All SA 436 (SCA), 2008 (2) SA 503 (SCA)
ATM Solutions (Pty) Ltd v Olkru Handelaars CC [2009] 2 All SA 1 (SCA), 2009 (4) SA 337 (SCA)
Defences: Since the merits of the plaintiff's possession and the defendant's right to possession are not justiciable,
there are few defences available that do not amount to a denial of the plaintiff's allegations.
Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W)
Engling v Bosielo [1994] 3 All SA 351 (B), 1994 (2) SA 388 (B)
[Page 342]
An exception, subject to the Constitution, is that of a statutory right to dispossess. The person invoking this
defence must establish that dispossession occurred strictly within the limits of the statute that created the right to
dispossess.
Minister of Finance v Ramos 1998 (4) SA 1096 (C)
City of Cape Town v Rudolph [2003] 3 All SA 517 (C), 2004 (5) SA 39 (C)
Ngqukumba v Minister of Safety and Security and others 2014 (7) BCLR 788 (CC), 2014 (5) SA 112 (CC)
A dispossessed person must act within a reasonable time to have possession restored; otherwise the application
for a mandament will be refused.
Le Riche v PSP Properties CC [2005] 4 All SA 551 (C), 2005 (3) SA 189 (C)
Counterspoliation: See
Abbott v Von Theleman 1997 (2) SA 848 (C)
Bosman NO v Tworeck 2000 (3) SA 590 (C)
Relief: The relief claimed with the mandament is restoration of possession ante omnia.
Viljoen v Viljoen [2002] 2 All SA 143 (T)
When the property has been destroyed, a mandament van spolie is not an appropriate remedy: the mandament is a
possessory remedy and not one for providing a substitution.
Rikhotso v Northcliff Ceramics (Pty) Ltd [1996] 4 All SA 524 (W), 1997 (1) SA 526 (W)
The applicant may, however, be entitled in suitable circumstances to a constitutional remedy which obliges the
respondent to provide substitute housing.
Tswelopele NonProfit Organisation v City of Tshwane Metropolitan Municipality 2007 (6) SA 511 (SCA)
Schubart Park Residents' Association and others v City of Tshwane Metropolitan Municipality and another 2013 (1)
BCLR 68 (CC), 2013 (1) SA 323 (CC)
PRECEDENTS
Claim for possession
1. The plaintiff was, on [date], in peaceful and undisturbed possession of the farm known as [name].
2. On [date], defendant unlawfully deprived plaintiff of her possession by placing chains and locks on the gates leading to
the farm.
The plaintiff claims an order that
(a) plaintiff's possession of the farm known as [name] be restored; and
(b) defendant remove all chains and locks on the gates leading to the farm.
State liability
Related subjects: CITATION OF PARTIES; VICARIOUS LIABILITY
A. STATE LIABILITY ACT 20 OF 1957
Contractual liability: Any claim which arises out of a contract lawfully entered on behalf of the state may be
adjudicated by any competent court.
State Liability Act 20 of 1957s 1
Government of the Province of the Eastern Cape v Frontier Safaris (Pty) Ltd [ 1 9 9 7 ] 4 A l l S A 5 0 0 ( A ) ,
1998 (2) SA 19 (SCA)
[Page 343]
Delictual liability: Any competent court may adjudicate a claim arising out of any wrong committed by any employee
of the state acting in her or his capacity and in the scope of her or his authority.
State Liability Act 20 of 1957s 1
Minister van Polisie v Gamble 1979 (4) SA 759 (A)
(A), 1989 (2) SA 63 (A)
Although there is a distinction between an employee ('servant') acting within the scope of the employee's authority
and one acting within the scope of employment, both situations have come to be treated as synonymous for the
purposes of determining the liability of the state.
Mhlongo NO v Minister of Police [1978] 3 All SA 73 (A), 1978 (2) SA 551 (A) p. 567
See also
Citation: See CITATION OF PARTIES.
B. INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE ACT 40 OF 2002
General: This Act regulates and harmonises prescription of debts for which organs of state are liable and provides
for notice requirements in connection with the institution of legal proceedings against certain organs of state in
respect of the recovery of debts whatever their nature.
Prescription and notice requirements are different issues.
Premier of the Western Cape Provincial Government NO v BL [2012] 1 All SA 465 (SCA) (also reported as Premier
of the Western Cape Provincial Government NO v Lakay 2012 (2) SA 1 (SCA)) para. 7
Organ of state: 'Organ of state' means any national or provincial department; a municipality; any functionary or
institution exercising a power or performing a function in terms of the Constitution or a provincial constitution; the
South African Maritime Safety Authority; the South African National Roads Agency Limited; National Ports Authority
Limited; and any person for whose debt one of these organs of state is liable.
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002s 1(1)
Period of prescription: Chapter III of the Prescription Act applies to these debts. This means that there is no
distinction between these and other debts about when prescription begins to run, the period of prescription, delay
in the completion or interruption of prescription.
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002s 2
Minister of Finance and others v Gore NO [2007] 1 All SA 309 (SCA), 2007 (1) SA 111 (SCA)
See PRESCRIPTION: EXTINCTIVE PRESCRIPTION
The other provisions of the Prescription Act were not incorporated in the Institution of Legal Proceedings against
Certain Organs of State Act.
Notice of intended legal proceedings: No legal proceedings for the recovery of a debt may be instituted against an
organ of state unless the creditor has given the organ of state written notice of the intention to institute the legal
proceedings in question.
Legal Aid Board v Singh 2009 (1) SA 184 (N)
Dauth v Minister of Safety and Security 2009 (1) SA 189 (NC)
[Page 344]
Notice may be by hand, certified mail, electronic mail or facsimile.
The notice must be addressed to the appropriate official as set out in section 4. In the case of a national or
provincial department mentioned in the first column of schedule 1, 2 o r 3 to the Public Service Act, 1994
(Proclamation 103 of 1994), to the officer who is the incumbent of the post, bearing the designation mentioned in
the second column of the schedule 1, 2 or 3 opposite the name of the relevant national or provincial department.
In the case of the Department of Police, the notice must be sent to the National Commissioner and the Provincial
Commissioner of the province in which the cause of action arose, as defined in section 1 of the South African Police
Service Act, 1995.
This notice must be served on the organ of state within six months of the date on which the debt became due and
must briefly set out
(a) the facts giving rise to the debt; and
(b) the particulars of the debt within the knowledge of the creditor.
Service of process: No process may be served before the expiry of a period of 60 days after the notice has been
served on the organ of state. However, if the organ of state repudiates in writing liability for the debt, the creditor
may at any time after such repudiation serve the process.
There are special provisions relating to service on the Minister of State Security, the Minister of Police and the
Minister of Correctional Services.
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002s 5
Objection: A defendant is not entitled to the setting aside of a summons in terms of Uniform rule 30 where the
plaintiff failed to comply with the Act. The correct procedure is to file a special plea or an objection in terms of the
Act.
Cochrane v The City of Johannesburg [2010] JOL 25952 (GSJ), 2011 (1) SA 553 (GSJ)
Debt due: A debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of
state and of the facts that gave rise to the debt. However, a creditor is regarded as having acquired this knowledge
as soon as it could have been acquired through the exercise of reasonable care, unless the organ of state wilfully
prevented the creditor from acquiring such knowledge.
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002s 3(3)(a)
Sibiya v Premier of the Province of KwaZuluNatal [2008] 1 All SA 295 (N)
Makhwelo v Minister of Safety and Security 2017 (1) SA 274 (GJ)
Condonation: Should an organ of state rely on a creditor's failure to serve the required notice, the creditor may
apply for condonation, even after the issue of summons. The court may grant the application if it is satisfied that
(a) the debt has not been extinguished by prescription;
(b) good cause exists for the creditor's failure to serve the notice; and
(c) the organ of state is not unreasonably prejudiced by the failure.
Minister of Safety and Security v De Witt 2009 (1) SA 457 (SCA)
Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd [2010] 3 All SA 537 (SCA), 2010 (4) SA 109 (SCA)
Premier of the Western Cape Provincial Government NO v BL [2012] 1 All SA 465 (SCA) (also reported as Premier
of the Western Cape Provincial Government NO v Lakay 2012 (2) SA 1 (SCA))
[Page 345]
PRECEDENTS
See also MEDICAL AND DETAL PRACTITIONERS
Plea lack of the requisite notice
Before pleading to the merits of the plaintiff's claim, the defendant pleads as follows:
1. In terms of section 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, the plaintiff
was obliged to serve the defendant (an organ of state, as defined) with written notice of the alleged collision referred to
in the claim, of the facts on which defendant's alleged liability arose and of the particulars within six months of its
occurrence.
2. Plaintiff failed to serve any written notice, and, in the premises, no action can be founded by plaintiff based on the
alleged negligence of the defendant.
Stated case
See PART A s.v. IX. STATED CASE
Statutory authority as a defence to a claim for damages
Related subjects: DAMAGES: DELICTUAL DAMAGES; DELICT: LEX AQUILIA; NEGLIGENCE; STATUTORY DUTY OR
AUTHORITY: BREACH; STATUTORY PROVISIONS
General: An act authorised by statute is justified and consequently lawful even if it is harmful to another.
Union Government v Sykes 1913 AD 156 p. 169
Regard must be had to the duties imposed on all organs of government by the Constitution, particularly by the
positive obligations imposed by section 7 (the state must 'respect, protect, promote and fulfil the rights in the Bill of
Rights') and section 41(1) (all spheres of government and organs of state must provide 'effective, transparent,
accountable and coherent government').
In determining accountability, it is necessary to have regard to that official or member's specific statutory duties and
to the nature of the function involved. The incorrect exercise of a discretion will seldom be considered wrongful.
When a statute interferes with commonlaw rights, loss resulting from interference may be wrongful if the act
authorised by the legislature was performed in an unreasonable manner.
(A), 1989 (2) SA 63 (A)
Pretoria City Council v De Jager [1997] 1 All SA 635 (A), 1997 (2) SA 46 (SCA)
Cape Town Municipality v Bakkerud [2000] 3 All SA 171 (A), 2000 (3) SA 1049 (SCA)
Unreasonable conduct may be of two kinds: failure to select reasonably practicable measures for the exercise of the
right or fault in the implementation of the measures chosen. In practice, it is often impossible to distinguish
between these two and it is debatable whether the second is not part and parcel of the first.
Diepsloot Residents' and Landowners' Association v Administrator Transvaal [ 1 9 9 4 ] 2 A l l S A 2 9 9 ( A ) ,
1994 (3) SA 336 (A) pp. 345347
Knop v Johannesburg City Council [1995] 1 All SA 673 (A), 1995 (2) SA 1 (A) pp. 2427
[Page 346]
Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA 455 (A), 1997 (1) SA 157
(A) pp. 164166
The enquiry requires consideration of whether the legislation precludes an action for damages.
Premier of the Province of the Western Cape v Fair Cape Property Developers (Pty) Ltd [2003] 2 All SA 465 (SCA),
2003 (6) SA 13 (SCA)
Onus: Defendants relying on the defence of statutory authority must justify their actions and bear the onus of
pleading and proving that interference was impossible to avoid and the inevitable result of the exercise of the
statutory powers.
When a statutory exemption is pleaded, the section relied on need not be specified provided the case is formulated
clearly.
Ketteringham v City of Cape Town 1934 AD 80 p. 90
Botha v Guardian Assurance Co Ltd 1949 (2) SA 223 (G) p. 227
See STATUTORY PROVISIONS
It is then incumbent on the plaintiff to allege (in the replication) and prove that the statutory powers were
exceeded by unreasonable conduct (usually referred to as negligence).
Cape Metropolitan Council v Graham [2001] 1 All SA 215 (A), 2001 (1) SA 1197 (SCA)
PRECEDENTS
Claim relying on statutory authority
1. Defendant admits that it constructed a road on land immediately adjoining that of plaintiff and that a certain amount of
waste material fell onto plaintiff's farm.
2. Defendant pleads that, in terms of [specify relevant legislation], it was empowered to build a road on the land.
3. Defendant pleads that it was inevitable and unavoidable in the building of the road that the waste material should land on
plaintiff's farm.
4. In the premises, defendant denies that the spillage of waste material was unlawful.
Replication relying on authority's having been exceeded
1. Plaintiff admits that defendant was authorised by [ordinance] to build a road on the land adjoining plaintiff's farm.
2. Plaintiff denies that it was inevitable that waste material should fall onto plaintiff's land.
3. Plaintiff pleads that defendant exceeded its statutory authority and was negligent in one or more of the following respects
in permitting the waste material to fall onto plaintiff's land: [detail].
The plaintiff persists in its claim.
Statutory duty or authority: Breach
Related issue: STATUTORY PROVISIONS
Causes of action: Depending on the circumstances and the interpretation of the relevant statute, breach of a
statutory duty may
(a) provide evidence of negligence in an action based on negligence;
(b) create a right of action for damages irrespective of negligence;
(c) create a right of action for damages resulting from negligent conduct; or
(d) be the element of wrongfulness necessary to found delictual liability.
[Page 347]
Callinicos v Burman [1963] 1 All SA 580 (A), 1963 (1) SA 489 (A)
Da Silva v Coutinho [1971] 3 All SA 264 (A), 1971 (3) SA 123 (A)
Simon's Town Municipality v Dews [1993] 1 All SA 238 (A), 1993 (1) SA 191 (A) p. 196
The present heading, is concerned with (b) and (c), although there is hardly a distinction between (c) and (d).
A distinction must be drawn between a breach of a statutory duty and a wrongful (negligent) breach of that duty.
The former cause of action assumes that the statute created absolute liability irrespective of negligence.
The pleadings ought to state whether the plaintiff is relying on a breach of statutory duty per se as distinct from a
negligent breach of that duty. An averment in a pleading that the defendant breached a stated statutory duty
'wrongfully, unlawfully and negligently' is ambiguous because it does not indicate sufficiently whether the plaintiff
relies on (b), (c) or (d).
Callinicos v Burman [1963] 1 All SA 580 (A), 1963 (1) SA 489 (A)
Essentials: A party relying on a breach of a statutory duty as a cause of action must satisfy the court that
(a) the statute, properly interpreted, gives a right of action;
(b) the plaintiff is a person for whose benefit the duty was imposed;
(c) the damage suffered is of the kind contemplated by the statute;
(d) the defendant's conduct constituted a breach of the statutory duty; and
(e) the breach was causally linked to the damage.
Da Silva v Coutinho [1971] 3 All SA 264 (A), 1971 (3) SA 123 (A) p. 140
Cf. Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd [1997] 3 All SA 433 (W), 1997 (4) SA 578 (W)
Olitzki Property Holdings v State Tender Board and another 2001 (8) BCLR 779 (SCA), 2001 (3) SA 1247 (SCA)
Premier, Western Cape v Faircape Property Developers (Pty) Ltd [2003] 2 All SA 465 (SCA), 2003 (6) SA 13 (SCA)
Items (a) and (b) are legal issues which depend on the interpretation of the statute involved.
Patz v Greene & Co 1907 TS 427
Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718
On pleading a breach of a duty of care, see
Knop v Johannesburg City Council [1995] 1 All SA 673 (A), 1995 (2) SA 1 (A) pp. 2428
Negligence (fault): As indicated, negligence may or may not be an essential element of the claim, depending on
the terms of the statute. Negligence means, in this context, the failure to exercise due and reasonable care in the
performance of the duty imposed and not negligence in relation to the loss suffered. The loss need not have been
foreseen.
Pure economic loss failure of administrative justice: A legal duty may have its origin in statute law or the
common law. Not every breach of a legal duty, especially one imposed by administrative law, translates into a
breach of a delictual duty that is, a duty to compensate by payment of damages. Whether an action for damages
can be inferred from the controlling legislation depends on its interpretation, having regard to the purpose of the
legislation.
Olitzki Property Holdings v State Tender Board and another 2001 (8) BCLR 779 (SCA), 2001 (3) SA 1247 (SCA)
Steenkamp NO v Provincial Tender Board, EC [2006] 1 All SA 478 (SCA), 2006 (3) SA 151 (SCA)
[Page 348]
Steenkamp NO v Provincial Tender Board of the Eastern Cape 2007 (3) BCLR 300 (CC), 2007 (3) SA 121 (CC)
Saamwerk Southwerke (Pty) Ltd v Minister of Mineral Resources and another [2017] ZASCA 56 paras 6066
[I]n cases of pure economic loss the question will always be whether considerations of public or legal policy dictate
that delictual liability should be extended to loss resulting from the conduct at issue. Thus understood, it is hard to
think of any reason why the fact that the loss was caused by dishonest (as opposed to bona fide negligent)
conduct, should be ignored in deciding the question. We do not say that dishonest conduct will always be wrongful
for the purposes of imposing liability, but it is difficult to think of an example where it will not be so.
Minister of Finance and others v Gore NO [2007] 1 All SA 309 (SCA), 2007 (1) SA 111 (SCA) para. 87
Odinfin (Pty) Ltd v Reynecke 2018 (1) SA 153 (SCA)
Causation: The breach need not be the sole cause of the damage but must have contributed materially thereto.
PRECEDENTS
Claim based on breach of a statutory duty
1. Defendant is the trustee of the insolvent estate of [name].
2. The insolvent was, at all material times, indebted to plaintiff [amount] for rent in respect of the premises situate at
[address] leased by plaintiff to the insolvent in terms of a written agreement [detail and annex copy].
3. On [date], plaintiff filed with defendant a claim which included a preferent claim for rent in respect of the premises
[amount].
4. The claim was duly admitted by defendant.
5. The proceeds of the property subject to plaintiff's legal hypothec for rent were sufficient to pay the preferent claim.
6. Upon admitting plaintiff's claim, it became defendant's duty to apply the proceeds of the property subject to plaintiff's
legal hypothec in satisfying the claim for rent amounting to [amount] in terms of the provisions of section 95 o f
Insolvency Act 24 of 1936.
7. Despite the foregoing, defendant wrongfully, negligently and in breach of his legal duty failed to apply the proceeds for
the payment of plaintiff's claim but treated plaintiff's claim as a concurrent claim and tendered her [amount] in respect of
her claim.
8. Defendant filed a final account in the estate which was confirmed on [date]. Thereafter, defendant distributed the
difference to creditors, leaving only [amount] available for payment of plaintiff's claim in terms of the account.
9. Plaintiff alleges that, by reason of defendant's negligent breach of duty, she sustained damages amounting to [Rx] for
which defendant is, in his personal capacity, liable to her.
10. Defendant was negligent in that he
(a) failed to have regard to the provisions of section 95 of Insolvency Act 24 of 1936;
(b) failed to peruse plaintiff's claim properly;
(c) failed to act as a reasonable trustee would have acted in the circumstances.
[Based on Callinicos v Burman [1963] 1 All SA 580 (A), 1963 (1) SA 489 (A). For a further precedent, see Kommissaris van
Binnelandse Inkomste v Willers 1994 (3) SA 283 (A).]
Statutory provisions
General: A party who wishes to rely on a statutory provision as a cause of action or as a defence must formulate
the relevant pleading in clear terms with reference to that provision.
[Page 349]
Yannakou v Apollo Club [1974] 2 All SA 129 (A), 1974 (1) SA 614 (A)
Naude v Fraser [1998] 3 All SA 239 (SCA), 1998 (4) SA 539 (SCA)
Dali and others v Government of Republic of South Africa and another [2000] 3 All SA 206 (A), [2000] ZASCA 30
Maphango and others v Aengus Lifestyle Properties (Pty) Ltd (Inner City Resources Centre as amicus curiae) 2012
(5) BCLR 449 (CC), 2012 (3) SA 531 (CC) para. 113
It is not necessary to refer specifically to the statute or section relied on provided that the case is formulated
clearly. Put differently, it is sufficient that the facts pleaded justify the conclusion that the provisions of the statute
apply.
Ketteringham v City of Cape Town 1934 AD 80 p. 90
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A), 1997 (1) SA 710 (A)
When an averment in a pleading is couched in the same language as that of a statutory provision, it may be
legitimate to conclude that the pleader has assigned to the words in question their statutory meaning.
Touyz v Greater Johannesburg Transitional Metropolitan Council [1996] 1 All SA 115 (A), 1996 (1) SA 950 (A)
A party who relies in a pleading on a statutory provision may not without amendment rely on another provision.
Terblanche NO v Baxtrans CC 1998 (3) SA 912 (C)
Suretyship
Related subject: CONTRACT: CONCLUSION AND TERMS
Formalities: The terms of the contract of suretyship must be embodied in a written document signed by or on
behalf of the surety.
General Law Amendment Act 50 of 1956
The document must identify the creditor, the surety and the principal debtor.
In addition, the nature and amount of the principal debt must be capable of ascertainment by reference to the
provisions of the written document supplemented, if necessary, by admissible extrinsic evidence.
Sapirstein v Anglo African Shipping Co (SA) Ltd [1978] 4 All SA 474 (A), 1978 (4) SA 1 (A)
Du Toit v Barclays Nasionale Bank Bpk [1985] 3 All SA 326 (A), 1985 (1) SA 563 (A)
The terms of the deed of suretyship may be supplemented by incorporating another document to comply with the
statutory requirement.
Industrial Development Corporation of SA (Pty) Ltd v Silver [2002] 4 All SA 316 (SCA), 2003 (1) SA 365 (SCA)
GA Odendal v Structured Mezzanine Investments [2014] ZASCA 89
A suretyship agreement may be rectified if it otherwise complies with the statutory requirements.
Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (A), 2000 (1) SA 268 (SC)
See RECTIFICATION
Claim against surety: A plaintiff who wishes to claim on a deed of suretyship must comply with the ordinary rules
relating to the pleading of contracts. The onus rests on the plaintiff to allege and prove the following:
Dormell Properties 282 CC v Bamberger [2015] ZASCA 89 para. 12
[Page 350]
(a) A valid contract of suretyship.
Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) p. 291
(b) That the causa debiti is one in respect of which the defendant undertook liability. The renunciation of the
exceptio non causa debiti places the onus of proving the nonexistence of a causa on the defendant. The
plaintiff must still allege the causa.
Dowson & Dobson Industrial Ltd v Van der Werf [1981] 2 All SA 331 (C), 1981 (4) SA 417 (C) p. 431
(c) The indebtedness of the principal debtor that is, the amount and that it is due.
Senekal v Trust Bank of Africa Ltd [1978] 4 All SA 43 (A), 1978 (3) SA 375 (A)
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO [2002] ZASCA 23, 2002 (3) SA 752 (SCA)
The surety's liability cannot exceed that of the principal debtor but need not be coterminous.
MAN Truck & Bus (SA) (Pty) Ltd v Singh (2) [1976] 4 All SA 189 (N), 1976 (4) SA 266 (N)
Stiff v Q Data Distribution (Pty) Ltd 2003 (2) SA 336 (SCA)
A surety's liability arises from the time the principal debtor is in default, provided an enforceable claim is proved. The
debt of a surety who is also a coprincipal debtor becomes enforceable at the same time as the principal debt
becomes enforceable.
Millman NO v Masterbond Participation Bond Trust Managers (Pty) Ltd (under curatorship) [1997] 1 All SA 408 (C),
1997 (1) SA 113 (C)
An admission by or judgment against a principal debtor does not bind a surety.
Matrimonial Property Act 88 of 1984: A spouse married in community of property may not without the written
consent of the other spouse bind himself or herself as surety unless the deed is entered by the spouse in the
ordinary course of his or her profession, trade or business.
Strydom v Engen Petroleum Ltd [2013] 1 All SA 563 (SCA), 2013 (2) SA 187 (SCA)
Defences relating to the principal debt: The surety may, in defence to the claim, rely on any defence that is or was
available to the principal debtor, provided that the defence is one in rem (arising from the obligation) and not one in
personam (due to some personal privilege attaching to the debtor).
Ideal Finance Corp v Coetzer [1970] 3 All SA 36 (A), 1970 (3) SA 1 (A)
Thomani and another v Seboka NO and others 2017 (1) SA 51 (GP) para. 90 (the principal debtor is a deregistered
company)
An example of a defence in rem is the extinction of the principal debt by prescription (see below). The reason is that
the obligation of a surety is an accessory obligation, and its validity depends on the existence of a valid principal
obligation.
Desert Star Trading 145 (Pty) Ltd and another v No 11 Flamboyant Edleen CC and another [2011] 2 All SA 471
(SCA), 2011 (2) SA 266 (SCA)
A surety or coprincipal debtor may, against the creditor, rely on the defence that the debt of the principal debtor
was discharged by setoff as between the creditor and principal debtor.
Standard Bank of SA Ltd v SA Fire Equipment (Pty) Ltd [1984] 2 All SA 41 (C), 1984 (2) SA 693 (C)
Motani Lounge (Pty) Ltd v Standard Bank of SA Ltd 1995 (2) SA 498 (W)
Business rescue: In the absence of a specific provision in business rescue plan for sureties, their liability remains
unaffected by business rescue, and they cannot claim the benefit of the moratorium.
Nedbank Ltd v Zevoli 208 (Pty) Ltd 2017 (6) SA 318 (KZP)
[Page 351]
Defences relating to the deed of suretyship:
(a) Noncompliance with formalities: If the surety pleads noncompliance with the statutory provisions relating to
formalities, the question is usually one of law and should be decided with reference to the terms of the
document.
Stewart & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd 1981 (1) SA 305 (W)
Noncompliance may not appear ex facie the document. Typically, the surety may allege that the document
signed was incomplete and did not, therefore, comply with the Act. The onus remains on the creditor to prove
compliance with the Act.
Fourlamel (Pty) Ltd v Maddison [1977] 1 All SA 513 (A), 1977 (1) SA 333 (A)
Pizani v First Consolidated Holdings (Pty) Ltd [1979] 1 All SA 167 (A), 1979 (1) SA 69 (A)
Jurgens v Volkskas Bank Ltd [1993] 1 All SA 199 (A), 1993 (1) SA 214 (A)
(b) Joint suretyship intended: When a joint suretyship was intended, the obligation does not arise until all the
proposed sureties have signed.
Nelson v Hodgetts Timbers (East London) (Pty) Ltd [1973] 3 All SA 185 (A), 1973 (3) SA 37 (A)
Industrial Development Corp of SA Ltd v See Bee Holdings (Pty) Ltd 1978 (4) SA 136 (C)
The intention must be deduced from the terms of the document signed by the defendant.
(c) Termination: Unless prohibited from doing so by the agreement, the surety may by due notice terminate the
surety's liability in respect of future transactions.
Kalil v Standard Bank of SA Ltd [1967] 4 All SA 407 (A), 1967 (4) SA 550 (A)
Tsaperas v Boland Bank Ltd [1996] 4 All SA 312 (A), 1996 (1) SA 719 (A)
Termination may also be by agreement, oral or otherwise, unless the deed prescribes formalities for
cancellation.
HNR Properties CC v Standard Bank of SA Ltd [2004] 1 All SA 486 (SCA), 2004 (4) SA 471 (SCA)
The onus is on the defendant to prove termination.
(d) Variation of the suretyship: The defendant may rely on a written variation of the deed of suretyship signed by
the surety and accepted by the creditor.
Ferreira v SAPDC (Trading) Ltd [1983] 3 All SA 346 (A), 1983 (1) SA 235 (A)
African Life Property Holdings (Pty) Ltd v Score Food Holdings Ltd 1995 (2) SA 230 (A)
The deed may be cancelled orally or tacitly, but not so varied.
Visser v Theodore Sassen & Son (Pty) Ltd [1982] 1 All SA 362 (C), 1982 (2) SA 320 (C)
(e) Excussion and division: A surety may by way of a dilatory defence rely on the benefits of excussion and
division. This defence must be specifically pleaded and is not available if it was renounced. Someone who
signs as surety and coprincipal debtor renounces them.
Gerber v Wolson [1955] 1 All SA 373 (A), 1955 (1) SA 158 (A)
Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron [1978] 2 All SA 1 (A), 1978 (1) SA 463 (A)
(f) Cession of action and security: A creditor is not obliged to tender cession of action and of securities held
against payment of the debt by the surety, but the surety may raise the failure to do so as a dilatory defence.
Anyone who signs as surety and coprincipal debtor renounces these benefits.
Pfeiffer v First National Bank of SA Ltd [1998] 3 All SA 397 (A), 1998 (3) SA 1018 (SCA)
(g) Release: If the creditor acts in conflict with the surety agreement to the prejudice of the surety, the surety
may be released. Prejudice caused to the surety can release the latter (whether totally or partially) only if the
prejudice is the result of a breach [Page 352] of a legal duty or contractual obligation by the creditor. It is for
the surety to allege and prove this defence.
ABSA Bank Ltd v Davidson [2000] 1 All SA 355 (A), 2000 (1) SA 1117 (SCA)
Bock v Duburoro Investments (Pty) Ltd [2003] 4 All SA 103 (SCA), 2004 (2) SA 242 (SCA)
Dominick v Nedbank Limited [2015] ZASCA 160
Ndubu and others v First Rand Bank Limited t/a Wesbank [2017] ZASCA 61
Absa Bank Ltd v Expectra 423 (Pty) Ltd 2017 (1) SA 81 (WCC)
Stay of proceedings: Sureties: A surety may apply for a stay of proceedings pending the finalisation of a
counterclaim by the principal debtor, whether in the same or in separate proceedings.
Future debts: A suretyship may secure a future principal obligation.
Trust Bank of Africa Ltd v Frysch 1977 (3) SA 562 (A) p. 584GH
Close corporation: For a suretyship to be binding on a close corporation the written consent of all the corporation's
members is required. Consent does not have to be prior consent.
Hanekom v Builders Market Klerksdorp (Pty) Ltd [2006] ZASCA 2, 2007 (3) SA 95 (SCA)
Error: An undertaking to stand surety is often contained as a clause in a contract such as an application for credit.
Unless the suretyship clause is properly highlighted or brought to the attention of the signatory, the surety may be
able to rely on the defence of justus error. The onus is on the surety to prove the just error.
Brink v Humphries & Jewell (Pty) Ltd [2005] 2 All SA 343 (SCA), 2005 (2) SA 419 (SCA)
See MISTAKE
Waiver: If a creditor waives a portion of the debt, the surety is discharged to the extent of that waiver.
BOE Bank Ltd v Bassage [2006] 4 All SA 105 (SCA), 2006 (5) SA 33 (SCA)
See WAIVER
Appropriation rules: The surety is entitled to the benefit of the appropriation rules; for instance, payments made
by the debtor should be first appropriated by the creditor to secured debts (such as those secured by the deed of
suretyship) before unsecured ones.
See PAYMENT
Claim by surety against principal debtor: A surety who discharged the main debt in full has a claim against the
principal debtor on alternative bases. The surety must first discharge the debt in full before proceeding against the
principal debtor.
Proksch v Die Meester [1969] 4 All SA 381 (A), 1969 (4) SA 567 (A)
ABSA Bank Ltd v Scharrighuisen [2000] 1 All SA 318 (C), 2000 (2) SA 998 (C)
A ceded action: A surety who pays the whole of the principal debt is entitled to obtain a cession of action and
securities from the creditor. The surety may proceed against the debtor on the ceded action, in which event the
surety must allege and prove the cession and the creditor's case against the debtor under the principal obligation.
Barlows Tractor Co (Pty) Ltd v Townsend [1996] 2 All SA 105 (A), 1996 (2) SA 869 (A)
A right of recourse: The surety has a right of recourse against the principal debtor regardless of whether the
suretyship was entered at the behest of the debtor. If the surety stood surety with the consent or at the request
of the principal debtor, the surety's cause of action against the principal debtor is based on a contract of mandate,
express or implied. If he or she stood surety without the defendant's consent, the principal [Page 353] debtor's
liability will be based on negotiorum gestio. These causes of action may be claimed in the alternative.
Rossouw & Rossouw v Hodgson 1925 AD 97
Turkstra v Massyn [1959] 1 All SA 263 (T), 1959 (1) SA 40 (T)
See NEGOTIORUM GESTIO
Claim by surety against cosurety: A surety who has paid the principal debt in full has a claim against cosureties
for their share of the debt. It does not matter whether the sureties had bound themselves in the same document or
in different deeds. A surety who so wishes to recover must allege and prove
(a) full payment to the creditor of the debt secured so that the creditor;
(b) that the debt was due and owing by the principal debtor; and
(c) that the debt was covered by the contract of suretyship.
ASA Investments (Pty) Ltd v Smit [1980] 1 All SA 443 (C), 1980 (1) SA 897 (C)
The surety may not claim from any cosurety more than that latter surety's proportionate share even if the plaintiff
surety bases the claim on a cession from the creditor.
Gerber v Wolson [1955] 1 All SA 373 (A), 1955 (1) SA 158 (A)
Contribution cannot be claimed until the extent of the ultimate burden the cosureties must share has been
established.
Fircone Investments (Pty) Ltd v Bank of Lisbon & SA Ltd 1982 (3) SA 700 (T)
Prescription: When the principal debt becomes prescribed the surety is released.
If the principal debt is kept alive by a judgment against the debtor, the surety's accessory obligation continues to
exist.
Eley v Lynn & Main Inc [2008] 1 All SA 315 (SCA), 2008 (2) SA 151 (SCA)
Interruption of prescription of the principal debt interrupts prescription of the debt of the surety.
Guarantee: A guarantee may amount to either a contract of suretyship (an accessory obligation) or a primary
obligation to perform under certain conditions or circumstances.
List v Jungers [1979] 2 All SA 121 (A), 1979 (3) SA 106 (A)
The latter type of agreement need not be in writing, and the special rules relating to suretyship do not apply. The
legal effect of a guarantee depends on its terms.
Jonnes v AngloAfrican Shipping Co (1936) Ltd [1972] 3 All SA 109 (A), 1972 (2) SA 827 (A)
The same applies to a contract of indemnity or an unreserved undertaking to pay the debt of another.
Northern Assurance Co Ltd v DelbrookJones [1966] 3 All SA 117 (T), 1966 (3) SA 176 (T)
Peter Cooper & Co (previously Cooper & Ferreira) v De Vos [1998] 2 All SA 237 (E)
National Credit Act 35 of 2005: When a deed of suretyship amounts to a credit guarantee, it is a credit agreement
under this Act. An agreement constitutes a credit guarantee if 'in terms of that agreement, a person undertakes or
promises to satisfy upon demand any obligation of another consumer in terms of a credit facility or a credit
transaction to which this Act applies'.
A suretyship will be governed by the Act if the underlying credit agreement falls within the terms of the Act. If the
credit agreement is exempt, the underlying suretyship is likewise exempt.
[Page 354]
PRECEDENTS
Claim against principal debtor and surety
1. On [date] at [place], plaintiff entered a written agreement with first defendant in terms of which the latter undertook to
clear a plantation for plaintiff, in the manner set out in the agreement, and to complete the work on or before [date]. A
copy of the agreement is marked 'A'.
2. Second and third defendants, in writing, on [date] at [place], bound themselves as sureties and coprincipal debtors with
first defendant for the due and punctual performance by first defendant of the obligations under the agreement. A copy is
marked 'B'.
3. First defendant commenced the work during [state period] but failed to complete it.
4. The reasonable cost of completing the work is [amount] and exceeds the contract price by [amount] which amount,
therefore, represents the damages suffered by plaintiff.
The plaintiff claims against defendants jointly and severally:
(b) Interest at the rate of [percentage], calculated from date of judgment.
Claim against principal debtor and surety
1. First defendant is indebted to plaintiff [set out cause of action and amount].
2. Second defendant executed a deed of suretyship on [date] at [place] in favour of plaintiff and bound herself as surety
and coprincipal debtor with first defendant for and in respect of first defendant's liability.
3. A copy of the deed of suretyship is annexed.
4. First and second defendants failed to pay the indebtedness of first defendant.
The plaintiff claims against defendants, jointly and severally:
(b) Interest at the rate of [percentage] from [date] to date of payment.
Claim against surety only
1. [Set out the claim against principal debtor].
2. Defendant bound himself in writing as surety for the due fulfilment of his obligations by the principal debtor on [date] at
[place]. A copy of the deed of suretyship is annexed.
3. Defendant renounced the benefits of excussion, division and cession of action.
or
The principal debtor is in insolvent circumstances, is manifestly unable to meet her obligations and has no attachable
assets within the jurisdiction of this honourable court.
4. The principal debtor failed to pay the amount due by him.
The plaintiff claims against defendant (which judgment shall be joint and several with any judgment obtained against the
principal debtor):
(b) Interest.
Claim by surety against principal debtor
1. On [date], defendant became indebted to [name] in [amount] [set out the grounds].
2. On [date] at [place], plaintiff bound himself as surety and coprincipal debtor, on behalf of defendant, to the creditor for
[amount] in the event of defendant's failing to pay on demand. A copy of the deed of suretyship is annexed.
3. Defendant failed to pay [amount] to the creditor.
4. On [date] at [place], plaintiff as surety paid defendant's indebtedness to the creditor.
5. Defendant is, therefore, obliged to reimburse plaintiff with [amount].
[Page 355]
Claim for contribution by cosurety
1. Plaintiff and the two defendants jointly and severally became sureties and coprincipal debtors for the due payment by
[name] of the sum of [amount] to [name].
2. A copy of the deed of suretyship is annexed.
3. The principal debtor failed to pay the creditor.
4. On [date], plaintiff, having been called upon by the creditor to do so, paid the full indebtedness of the principal debtor to
the creditor.
5. In the premises, each defendant is liable to plaintiff for a pro rata share of the amount paid.
(a) Payment by first defendant of [amount].
(b) Payment by second defendant of [amount].
Plea limitation of liability
[Taken from Snaid v Volkskas Bank Ltd 1997 (1) SA 239 (W).]
1. On [date] and at Johannesburg the defendant signed a written document termed 'guarantee by an individual' in terms of
which the defendant bound herself as surety and coprincipal debtor in favour of the plaintiff for and on behalf of M.
2. In terms of the suretyship the defendant bound herself for repayment on demand of any sum or sums which the debtor
owed to the plaintiff provided that the total amount to be recovered from the defendant would not exceed the sum of
R10 000.
3. On [date] and at Johannesburg the defendant paid the plaintiff R10 000 being the total amount owing by the defendant to
the plaintiff in terms of the deed of suretyship.
4. In the premises the defendant has discharged her indebtedness to the plaintiff in full arising out of the said deed of
suretyship and the plaintiff is not entitled to receive any further sums from the defendant arising out of the said deed of
suretyship.
Tender by a defendant
Related subjects: SETTLEMENT; TENDER IN 'FULL AND FINAL SETTLEMENT'
General: A defendant who wishes to compromise may, with or without an admission of liability, tender payment or
performance of part of what is claimed. Such a tender may be made in the plea or in terms of Uniform rule 34. The
rule does not concern principles of pleading and is not discussed.
Winlite Aluminium Windows & Doors (Pty) Ltd v Pyramid Freight (Pty) Ltd t/a UTI 2011 (1) SA 571 (SCA)
Van der Merwe v Firstrand Bank Ltd t/a Wesbank and Barloworld Equipment Finance 2012 (1) SA 480 (ECG)
A prior tender is not a defence to an action.
Aarwater (Edms) Bpk v Venter [1982] 2 All SA 143 (T), 1982 (3) SA 974 (T)
Tender in plea: The purpose of a tender in a plea is to protect the defendant against a costs order since an extra
curial tender does not provide any protection against costs even if the plaintiff succeeds only in the amount
tendered or in a smaller amount.
To obtain the advantage of a prior tender, the fact of the tender must be pleaded, and the tender must be
repeated in the plea. The tender must be unconditional and open to acceptance until judgment.
De Beer v Rondalia Versekeringskorp van SA Bpk 1971 (3) SA 614 (O)
Boland Bank Bpk v Steele [1994] 1 All SA 54 (T), 1994 (1) SA 259 (T) p. 266
[Page 356]
A defendant who pleads a tender (with or without admission of liability) for protection against an order for costs will
be held to the tender. Judgment will be entered according to the tender even if the defendant is not at all liable.
Bouwer v Stadsraad van Johannesburg 1979 (3) SA 37 (A)
Swanepoel v Swanepoel [1996] 3 All SA 440 (SE) p. 445
It follows from this that a tender in a plea has very little, if any, practical advantage and that a tender in terms of
rule 34 is preferable.
The provision of rule 34(10) that prohibits the disclosure to the court of a tender in terms of the rules, obviously
does not apply to an open tender pleaded.
Foord v Lake NNO 1968 (4) SA 395 (W)
PRECEDENTS
Plea repeating a tender
1. Defendant denies liability for the claimed amount of [Rx] but admits his liability to plaintiff on the grounds stated for the
lesser amount of [Ry].
2. On [date] at [place], defendant in writing tendered payment to plaintiff of [Ry] which tender plaintiff rejected.
3. Defendant hereby repeats the said tender unconditionally and hereby consents to judgment in the amount of [Ry].
The defendant, whilst repeating his tender, prays that plaintiff's claim to the extent of [Rx Ry] be dismissed with costs.
Tender by a plaintiff
Related subjects: CONTRACT: CANCELLATION; EXCEPTIO NON ADIMPLETI CONTRACTUS
Need for tender: When a plaintiff claims performance of the defendant's obligation under a contract, but the right
to performance depends on the plaintiff's performance of a reciprocal obligation owed to the defendant, the plaintiff
must tender full performance of this reciprocal obligation to the defendant.
Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A)
SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle [ 1 9 5 5 ] 3 A l l S A 2 5 7 ( D ) ,
1955 (3) SA 541 (D)
Nkengana and another v Schnetler and another [2011] 1 All SA 272 (SCA)
The tender should normally be made in the body of the relevant pleading but may be contained in or inferred from
the prayers.
Lafrenz (Pty) Ltd v Dempers [1962] 3 All SA 289 (A), 1962 (3) SA 492 (A)
When a contract is to be set aside, the person seeking restitution from the other party must tender to restore what
was obtained under the contract, so that each party may be placed in its original position.
Marks Ltd v Laughton 1920 AD 12
Botha and another v Rich NO and others 2014 (4) SA 124 (CC), 2014 (7) BCLR 741 (CC)
Tender dispensed with: When a defendant repudiates the obligation to perform, the need to tender falls away
because the continuing repudiation amounts to waiver of a right to a tender of performance by the plaintiff.
NKP Kunsmisverspreiders (Edms) Bpk v Sentrale Kunsmis Korp (Edms) Bpk 1973 (2) SA 680 (T)
[Page 357]
If restitution is no longer possible through no fault on the part of the plaintiff, the plaintiff may still cancel.
A plaintiff reclaiming possession that came into the hands of the defendant under a void contract is not obliged to
tender repayment to complete its cause of action. The defendant may obviously counterclaim for repayment.
A claim for damages resulting from a breach of contract does not require a tender of restitution of the benefits
received under the cancelled contract.
Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd [1951] 1 All SA 106 (C), 1951 (1) SA 312 (C)
Tender in 'full and final settlement'
Related subjects: PAYMENT; SETTLEMENT; TENDER BY A DEFENDANT
Effect: The acceptance by a creditor of a tender made in full and final settlement may, depending on the
circumstances, amount to a settlement of the debt. The meaning of the expression 'in full and final settlement'
depends on the context in which it is used.
ABSA Bank Ltd v Van de Vyver NO [2002] 3 All SA 425 (A), 2002 (4) SA 397 (SCA)
Be Bop a Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd [ 2 0 0 8 ] 1 A l l S A 5 2 9 ( S C A ) ,
2008 (2) SA 327 (SCA)
Hubbard v Mostert 2010 (2) SA 391 (WCC)
The debtor may raise the compromise as a complete answer to a claim for the balance of the debt.
Stieler v KrochBou Aannemers Bpk [1997] 2 All SA 526 (W)
Such settlement presupposes an existing dispute in relation to the indebtedness.
Karson v Minister of Public Works 1996 (1) SA 887 (E)
Onus: The defendant must allege and prove the compromise. When there is doubt, the construction of the tender
or offer which is unfavourable to the defendant will prevail.
Tender: As a rule, the sending of money (in the past, a cheque) 'in full and final settlement' of a debt amounts to an
offer of compromise, especially if the money is accompanied by a denial of liability. The offer carries with it the
implied condition that, should the money be accepted, the claim is settled.
Be Bop a Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd [ 2 0 0 8 ] 1 A l l S A 5 2 9 ( S C A ) ,
2008 (2) SA 327 (SCA)
Depending on the circumstances, sending money may amount to payment of an admitted liability. The creditor may
then retain payment and sue for the balance.
The fact that the defendant, together with the offer of payment of a lesser amount, acknowledges all or part of the
debt is not necessarily inconsistent with an offer of compromise.
Van Breukelen v Van Breukelen [1966] 2 All SA 379 (A), 1966 (2) SA 285 (A)
Acceptance of tender: A creditor who accepts payment also accepts the offer of compromise. A creditor who does
not wish to compromise must return the money tendered and sue for the full amount.
[Page 358]
A creditor may not retain payment 'without prejudice' to her or his rights.
Andy's Electrical v Laurie Sykes (Pty) Ltd [1979] 2 All SA 91 (N), 1979 (3) SA 341 (N)
The defendant must show that the person who accepted payment on behalf of the creditor had authority to
compromise the claim on the creditor's behalf.
Blackie Swart Argitekte v Van Heerden [1986] 1 All SA 373 (A), 1986 (1) SA 249 (A)
PRECEDENTS
Plea of settlement
1. Defendant pleads that his indebtedness to plaintiff was, at all relevant times, in dispute.
2. On [date], defendant sent to plaintiff a cheque for [amount]. This cheque was marked 'in full and final settlement' and
constituted an offer of settlement.
3. On [date], plaintiff accepted the cheque and banked it to the credit of his own account.
4. In the premises, plaintiff accepted defendant's offer of compromise and his claim became settled.
Thirdparty procedure
Related subject: ROAD ACCIDENTS
General: The purpose of the thirdparty procedure is to enable a litigant to avoid a multiplicity of actions concerning
the same or a related subject matter. It is used principally to complement the provisions of section 2 o f t h e
Apportionment of Damages Act 34 of 1956, and it permits conditional claims.
The procedure is not obligatory, and a party may instead institute separate proceedings and, if so minded, apply for
consolidation of the different proceedings.
MCC Contracts (Pty) Ltd v Coertzen [1998] 4 All SA 503 (A), 1998 (4) SA 1046 (SCA)
Jurisdiction: A has jurisdiction over any person residing in or outside its area of jurisdiction who, in terms of a third
party notice, becomes a party to such a cause, if that person resides or is within the area of jurisdiction of any other
Division.
Procedure: A party (called a 'third party', say C), who is not a party to an action, may be made a party to it by a
party (say B) who is already a party to the action by following the procedure of Uniform rule 13.
The substantial portion of the thirdparty notice, which must be in the form of particulars of claim, must state the
nature and ground of the claim of B against C.
The relief sought against C is a contribution, an indemnification or a declaratory order and is brought on the basis
that the question or issue in the main action is substantially the same as one that has arisen or will arise between
B and C.
It should be noted that the lis thus created is between B and C only. There is no lis between the third party and
any other party to the litigation (usually the plaintiff, say A).
Geduld Lands Ltd v Uys [1980] 4 All SA 236 (T), 1980 (3) SA 335 (T)
See, however, IPF Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, third party) 2002 (5) SA 101 (W)
p. 110
This means that a thirdparty notice is a pleading which is independent of the main claim and of any response
thereto.
ABSA Bank Ltd v Boksburg Transitional Local Council (Government of the Republic of South Africa third party)
1997 (2) SA 415 (W) p. 419
[Page 359]
C may plead or except to the thirdparty notice as if he or she were a defendant to the action and may also, by
filing a plea or other pleading, contest on any ground the liability of B to A, even though that ground has not been
raised by B. C is not entitled to institute a counterclaim against A, but may do so against B.
Uniform rule 13(6)
A claim for damages against C which would arise upon the success of the plaintiff's (A's) claim against B is not a
claim for indemnity under this rule.
Dodd v Estate Cloete [1971] 1 All SA 473 (E), 1971 (1) SA 376 (E)
PRECEDENTS
Claim for indemnity
1. Plaintiff is [name].
2. Defendant is [name].
3. The third party is [name].
4. On [date], plaintiff sued defendant for [amount] being estate agent's commission in respect of the sale of defendant's
property situated at [location] to the third party. A copy of each of the summons and particulars of claim are attached
hereto and marked 'A'.
5. On [date] at [place], the third party in writing agreed to indemnify defendant against any claim for estate agent's
commission arising from the said sale. A copy of the indemnity is attached hereto and marked 'B'.
6. On [date], defendant filed a plea to plaintiff's particulars of claim, in which he denied that plaintiff was the effective cause
of the sale. A copy of the plea is attached hereto and marked 'C'.
The defendant claims against the third party:
An order that, in the event of plaintiff's succeeding against defendant, the third party indemnify defendant in such amount as
defendant is ordered to pay, together with the costs of defending the action.
[See, further, Gross v Commercial Union Assurance Co Ltd [1974] 2 All SA 149 (A), 1974 (1) SA 630 (A).]
Trade marks
Related subjects: PASSINGOFF; UNLAWFUL (UNFAIR) COMPETITION
Trade Marks Act: The Trade Marks Act 194 of 1993 is concerned with trade marks that are registered. Unregistered
marks may be protected by the principles relating to unlawful competition and more particularly passingoff. The Act
does not affect the rights of any person at common law to bring an action based on passingoff.
See PASSINGOFF
One object of registration is to dispense with the proof of reputation of a mark. Registration under the Act is
required before proceedings can be instituted for trademark infringement.
Counterfeit Goods Act: In a case of counterfeiting, the trade mark owner may use the remedies provided by the
Counterfeit Goods Act 37 of 1997.
AM Moolla Group Ltd v GAP Inc [2005] 3 All SA 101 (SCA), 2005 (2) SA 412 (SCA)
(SCA)
Domain name disputes: See PASSINGOFF.
[Page 360]
Passingoff compared: Trademark infringement and passingoff should each be kept in its own niche because
(a) infringement proceedings are directed at a comparison between the registered trade mark and the allegedly
offending mark, whereas in passingoff proceedings the comparison is between the whole getup used by the
plaintiff and the whole getup of the defendant;
(b) in the case of passingoff, the plaintiff must prove a reputation in the mark or getup, whereas in trademark
infringement proceedings the plaintiff's reputation is irrelevant.
National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd 2001 (3) SA 563 (SCA)
Jurisdiction: Trademark infringement is a statutory delict and the rules relating to jurisdiction in delictual actions
apply. Statutory relief may be granted by a high court only.
Trade Marks Act 194 of 1993s 34(3)
A registered trade mark is effective only in the territory (country) in which it is registered. The sole exception is the
protection under the Paris Convention given to wellknown 'foreign' trade marks.
Trade Marks Act 194 of 1993s 35
McDonald's Corporation v Joburgers DriveInn Restaurant (Pty) Ltd [1996] 4 All SA 1 (A), 1997 (1) SA 1 (A)
Any high court with competent civil jurisdiction may try an infringement action. As the situs of the registry is in
Pretoria, the Gauteng North Court has sole jurisdiction over any claim or counterclaim affecting any entry in the
register, unless it arises from or forms part of an infringement instituted in another high court with jurisdiction, in
which event that court will have this additional jurisdiction.
PPI Makelaars v Professional Provident Society of South Africa [1997] 4 All SA 444 (A), 1998 (1) SA 595 (SCA)
Infringement proceedings are normally brought by way of application and not by way of action.
The plaintiff: The plaintiff in an action for trademark infringement must be the registered proprietor of the trade
mark. A registered user of a trade mark is entitled to call upon the proprietor to institute infringement proceedings.
Should the proprietor fail or neglect to do so within two months, the registered user may do so but must join the
proprietor as a nominal defendant.
Trademark registration: The plaintiff must allege and prove the existence of a trademark registration.
Registration is proved by a certificate of the registrar.
No right of action arises prior to registration.
Trade Marks Act 194 of 1993s 33
Once a trade mark is registered, the owner is also entitled to damages arising from acts performed after
advertisement of the acceptance of the application for registration which would, if performed after registration,
amount to infringement of the registered mark.
Trade Marks Act 194 of 1993s 34(3)(c) and (d)
Infringement of trade mark: An action for infringement lies against any person who, without the necessary
authority, uses a mark contrary to the provisions of section 34(1). (S 34(1) differs in some material respects from s
44(1) of the repealed Trade Marks Act 62 of 1963 and earlier cases may not always be applicable to the new
provisions.) [Page 361] A trade mark may be infringed in three ways and it is necessary to distinguish between
them.
Esquire Electronics Ltd v Executive Video [1986] 2 All SA 210 (A), 1986 (2) SA 576 (A) p. 590
The plaintiff must allege and prove infringement of the trade mark.
Lucky Star Ltd v Lucky Brands (Pty) Ltd and others 2017 (2) SA 588 (SCA)
Infringement under section 34(1)(a): This provision represents the usual infringement case. It requires proof of
trademark use by the defendant.
Verimark (Pty) Ltd v BMW AG v Verimark 2007 (6) SA 263 (SCA)
Commercial Auto Glass (Pty) Ltd v Bayerische Motoren Werke Aktiengesellschaft [2007] 4 All SA 1331 (SCA),
2007 (6) SA 637 (SCA)
Cochrane Steel Products (Pty) Ltd v MSystems Group (Pty) Ltd and another [2016] 3 All SA 345 (SCA),
2016 (6) SA 1 (SCA)
(a) unauthorised use
Beecham Group plc v Southern Transvaal Pharmaceutical Pricing Bureau (Pty) Ltd 1993 (1) SA 546 (A)
(b) in the course of trade
(c) in relation to goods or services in respect of which the trade mark is registered
Berman Bros (Pty) Ltd v Sodastream Ltd [1986] 2 All SA 252 (A), 1986 (3) SA 209 (A)
(d) of an identical mark or of a mark so nearly resembling it
Miele et Cie GmbH & Co v Euro Electrical (Pty) Ltd [1988] 2 All SA 244 (A), 1988 (2) SA 583 (A)
National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd 2001 (3) SA 563 (SCA)
(e) as to be likely to deceive or cause confusion.
PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A), 1984 (3) SA 623 (A)
Use of a genuine mark by a third party in connection with the plaintiff's genuine goods or services is not an
infringement.
Television Radio Centre (Pty) Ltd v Sony [1987] 2 All SA 196 (A), 1987 (2) SA 994 (A)
Standard Bank of SA Ltd v United Bank Ltd [1991] 4 All SA 840 (W), 1991 (4) SA 780 (W)
Infringement under section 34(1)(b): The object of this cause of action is primarily to protect a mark against
confusion if the mark is used in relation to similar goods or services but not of the same class in which the mark is
registered.
Section 34(1)(b) also requires proof of trademark use by the defendant. The plaintiff must allege and prove
(a) unauthorised use of a mark
(b) which is identical or similar to the trade mark registered
(c) in the course of trade
(d) in relation to goods or services
(e) which are so similar to the goods or services in respect of which the trade mark is registered
(f) that, in such use, there exists the likelihood of deception or confusion.
Verimark (Pty) Ltd v BMW AG v Verimark 2007 (6) SA 263 (SCA)
Commercial Auto Glass (Pty) Ltd v Bayerische Motoren Werke Aktiengesellschaft [2007] 4 All SA 1331 (SCA),
2007 (6) SA 637 (SCA)
Infringement under section 34(1)(c): This provision, the socalled dilution provision, protects a registered mark
wellknown in the Republic against the taking of unfair [Page 362] advantage of the distinctive character or repute
of the mark. The provision applies primarily in relation to cases in which there is no confusion or deception but in
which the trade mark is being diluted.
(a) unauthorised use of a mark
(b) which is identical or similar to a registered trade mark
(c) which is wellknown in the Republic
(d) in the course of trade
(e) in relation to any goods or services, and
(f) that the use of the infringing mark is likely to take 'substantial' unfair advantage of, or be substantially
detrimental to, the distinctive character or repute of the registered trade mark.
Laugh It Off Promotions CC v SA Breweries International (Finance) BV t/a Sabmark International [2004] 4 All SA
151 (SCA), 2005 (2) SA 46 (SCA)
Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International 2006 (1) SA 144 (CC)
This provision does not apply to a defensive trade mark.
Fault: Fault is not an element of the action and the absence of fault is not a defence to an infringement action.
Relief: The Trade Marks Act has special provisions relating to the relief to which a plaintiff is entitled. The relief
ordinarily prayed for is
(a) an interdict;
(b) an order for removal of the infringing mark from all material or, when the infringing mark is inseparable or
incapable of being removed from the material, an order that it all be delivered up to the proprietor;
(c) damages; or
(d) in lieu of damages, at the option of the proprietor, a reasonable royalty which would have been payable by a
licensee for the use of the trade mark concerned.
Trade Marks Act 194 of 1993s 34(3) and (4)
The plaintiff is entitled to notional royalties even if no loss was suffered.
Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd [2010] 1 All SA 25 (SCA), 2010 (2) SA 600 (SCA)
Defences: A defendant may in defence apply for the expungement of the trade mark. Typical grounds for the
expungement are that
(a) the registered mark does not constitute a trade mark (s 10(1));
(b) it was not capable of distinguishing within the meaning of section 9;
(c) it consists exclusively of a sign or an indication which may serve, in trade, to designate the kind, quality,
quantity, intended purpose, value, geographical origin or other characteristics of the goods or services, or the
mode or time of production of the goods, or mode or time of the rendering of the services, or
(d) consists exclusively of a sign or an indication which has become customary in the current language or in the
bona fide and established practices of the trade (s 10(2)).
SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons [2003] 1 All SA 274 (SCA), 2003 (3) SA 313 (SCA)
Century City Apartments Property Services CC v Century City Property Owners' Association [2010] 2 All SA 409
(SCA), 2010 (3) SA 1 (SCA)
[Page 363]
Noninfringement: A registered trade mark is not infringed by
(a) any bona fide use by a person of that person's own name;
(b) the use of any bona fide description or indication of the kind, quality, quantity, intended purpose, value,
geographical origin or other characteristics of the goods or services;
(c) the bona fide use of the trade mark to indicate the intended purpose of goods;
(d) the importation into or the distribution, sale or offering for sale in the Republic of goods to which the trade
mark has been applied by or with the consent of the proprietor (parallel importation);
(e) the bona fide use of any utilitarian features embodied in a container, shape, configuration, colour or pattern
which is registered as a trade mark;
(f) the use of a trade mark within any conditions or limitations entered in the register; or
(g) the use of any identical or confusingly or deceptively similar trade mark which is registered.
Paragraph (a) does not apply to the name of any juristic person whose name was registered after the date of
registration of the trade mark, and the use contemplated in paragraph (a), (b) or (c) must be consistent with fair
practice.
PRECEDENTS
Claim trademark infringement
1. Plaintiff is and has been since [date] the registered proprietor in the Republic of South Africa of the trade mark MICATEX
which is registered under number 71/ in class 2 (Schedule IV) in respect of paints.
2. The registration is of full force and effect.
3. Since about [date], defendant has been using, in the Republic of South Africa, a mark consisting of the word MICADEK in
relation to paints as a trade mark.
4. The mark MICADEK (hereinafter called 'the offending mark') so nearly resembles plaintiff's registered trade mark as to
be likely to deceive or cause confusion.
5. The use by defendant of the offending mark is use in relation to goods in respect of which plaintiff's trade mark is
registered.
6. The use by defendant of the offending mark was not authorised by plaintiff.
7. The use by defendant of the offending mark is, in the premises, an infringement of the rights of plaintiff acquired by
registration of its trade mark.
8. Plaintiff has suffered damage because of the infringement by defendant of [amount]. [Detail].
9. Plaintiff apprehends upon reasonable grounds that defendant will continue with its infringement unless restrained by an
order of court.
(a) An order interdicting defendant from infringing plaintiff's rights acquired by the registration of the trade mark number
71/ MICATEX by using, in relation to any goods in respect of which the said trade mark is registered, the mark
MICADEK or any other mark so nearly resembling the registered trade mark as to be likely to deceive or cause
confusion.
(b) An order compelling defendant to erase the offending mark from all goods, containers, packages, labels, advertising
matter and documents of whatever sort, bearing the mark MICADEK which may be in its possession or under its control.
(c) Payment of [amount] damages.
[Based, in part, on PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A), 1984 (3) SA 623 (A).]
[Page 364]
Trespass
Related subjects: DELICT: LEX AQUILIA; ENCROACHMENT; EVICTION; VINDICATION
Meaning of 'trespass': The term 'trespass' in the present context refers in a wide sense to the wrongful
disturbance of possession.
Hefer v Van Greuning 1979 (4) SA 952 (A)
The right to claim damages due to trespass is not limited to the owner but also extends to a bona fide possessor.
Swart v Van der Vyver [1970] 1 All SA 486 (A), 1970 (1) SA 633 (A) p. 647
The right of the bona fide possessor in turn has been extended to a hirepurchase purchaser and to a legal occupier
of property who is about to become the owner (the latter is in any event probably a bona fide possessor).
Smit v Saipem [1973] 4 All SA 371 (A), 1974 (4) SA 918 (A)
Vaal Transport Corp (Pty) Ltd v Van Wyk Venter [1974] 2 All SA 617 (T), 1974 (2) SA 575 (T)
Raqa v Hofman 2010 (1) SA 302 (WCC)
Relief: A plaintiff is entitled to claim patrimonial loss. The ordinary principles of the lex Aquilia apply.
A lessee who has not received occupation is not entitled to claim damages resulting from unauthorised occupation
of the leased premises by a third person.
Dantex Investment Holdings (Pty) Ltd v Brenner NNO [1989] 1 All SA 411 (A), 1989 (1) SA 390 (A)
Even though the right to claim eviction has been curtailed by legislation, the owner's delictual claim for patrimonial
loss caused by unlawful occupation is still available.
Mkangeli v Joubert [2002] 2 All SA 473 (A), 2002 (4) SA 36 (SCA)
PRECEDENTS
Claim by hirepurchase purchaser
1. Plaintiff is the hirepurchaser of vehicle [identify] in terms of a hirepurchase agreement [particularise].
2. In terms of [clause] of the agreement, the risk relating to the vehicle passed to plaintiff.
3. Defendant negligently [set out detail] damaged the vehicle by [particularise].
4. Because of defendant's wrongful and negligent act, plaintiff suffered damages [detail].
Claim by possessor
[Taken from Smit v Saipem [1973] 4 All SA 371 (A), 1974 (4) SA 918 (A) p. 933EH.]
1. Plaintiff is, and at all times material to this action was, in civil possession of [describe properties]. The aforesaid erven
are hereinafter referred to as 'the erven'.
2. Plaintiff acquired civil possession of the erven on [date], under and by virtue of three separate deeds of sale entered into
on [date], between certain third parties as sellers and plaintiff as purchaser.
3. It was an express term of the aforesaid deeds of sale that plaintiff would be given possession and occupation of the
relevant erven on the date of signature of the said deeds of sale and that the risk in respect of the relevant erven would
pass to plaintiff on the date of signature of the said deeds of sale.
4. During [date], defendant wrongly trespassed on the erven by:
(a) driving heavy earthmoving machinery over the erven;
(b) damaging and/or uprooting certain trees and other indigenous plants;
(c) dumping certain filling on the erven;
[Page 365]
(d) changing the contours of the erven;
(e) blocking plaintiff's access to the erven.
5. Because of defendant's aforesaid wrongful conduct, plaintiff has suffered damages in an amount of [Rx] which amount
defendant is, in the premises, obliged to pay but, notwithstanding due demand, fails to pay to plaintiff.
Claim by new owner
1. Plaintiff became the registered owner of [property] on [date].
2. Defendant was in wrongful occupation of the property from [dates].
3. Plaintiff only obtained occupation of the property on [date].
4. Because of defendant's wrongful occupation of the property, plaintiff suffered damages. [Detail].
[See Hefer v Van Greuning 1979 (4) SA 952 (A).]
Trusts
See CITATION OF PARTIES; CONTRACT FOR THE BENEFIT OF THIRD PARTIES; FIDUCIARY RELATIONSHIPS
Undue influence
Related subjects: DURESS; MENTAL INCAPACITY
Elements: A party to a transaction may avoid the act if the transaction was concluded as a result of undue influence
that is, influence which was contra bonos mores. The plaintiff must allege and prove that
(a) the other party had influence over the plaintiff;
(b) the influence weakened the plaintiff's resistance and made her or his will pliable;
(c) the other party used this influence unscrupulously or unconscionably to prevail upon the plaintiff to agree to
the transaction;
Hofer v Kevitt NO [1997] 4 All SA 620 (A), 1998 (1) SA 382 (SCA)
Gerelomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP) para. 24
(d) the transaction is prejudicial; and
(e) exercising a normal free will, the plaintiff would not have entered into the transaction.
Preller v Jordaan [1956] 2 All SA 35 (A), 1956 (1) SA 483 (A)
Patel v Grobbelaar [1974] 1 All SA 518 (A), 1974 (1) SA 532 (A)
Cf. BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C)
Special relationship: The existence of a special relationship between the parties does not create any presumption
of undue influence.
Miller v Muller [1965] 2 All SA 284 (C), 1965 (4) SA 458 (C) p. 463
Unconscionable conduct: A supplier covered by the Consumer Protection Act or an agent of the supplier may not
use 'physical force against a consumer, coercion, undue influence, pressure, duress or harassment, unfair tactics or
any other similar conduct'.
It is also unconscionable for a supplier 'knowingly to take advantage of the fact that a consumer was substantially
unable to protect the consumer's own interests because of [Page 366] physical or mental disability, illiteracy,
ignorance, inability to understand the language of an agreement, or any other similar factor'.
Tender: Since the relief available is restitution, the party relying on undue influence must tender to restore anything
received in terms of the voided transaction.
PRECEDENTS
Claim for return of property
1. Defendant was, at all material times, a registered medical practitioner practising at [place].
2. Plaintiff was the registered owner of the property [describe].
3. On [date], plaintiff transferred the property to defendant without any consideration and the property is still registered in
defendant's name.
4. During the period when plaintiff and defendant negotiated the transfer to defendant of the property, plaintiff was
physically and mentally ill and intellectually in a weak and exhausted condition.
5. Defendant was plaintiff's personal medical practitioner, and frequently treated plaintiff.
6. Because of the relationship between plaintiff and defendant, as his doctor, plaintiff from time to time confided to
defendant his anxieties and his concern that, if he became unable to manage his property because of his age and health,
his wife would not be in a position to attend to it in her own interest.
7. Defendant, on several occasions, advised plaintiff to cause the property to be registered in his name so that he would
have control and be able to look after the interest of the plaintiff and of his wife.
8. Defendant repeatedly urged and influenced plaintiff to accept his advice and, as a result thereof, plaintiff signed the
necessary documents prepared by defendant's attorney for the transfer of the property to defendant.
9. Plaintiff states that, in the light of the foregoing, defendant unduly and unlawfully influenced him to sign the documents
and took advantage of plaintiff's condition for his own benefit.
10. But for defendant's conduct as aforesaid, plaintiff would not have signed the documents for the transfer.
An order compelling defendant to retransfer the property to plaintiff.
Unlawful (unfair) competition
Related subjects: CONFIDENTIAL INFORMATION; INJURIOUS FALSEHOOD; PASSINGOFF; RESTRAINT OF TRADE
Cause of action: Competitive trading is unlawful when it involves wrongful interference with another trader's rights
and is actionable under the lex Aquilia if it results in loss.
Schultz v Butt [1986] 2 All SA 403 (A), 1986 (3) SA 667 (A) p. 678
It is not legitimate to use some general notion of unlawful competition to create an 'ersatz' passingoff with
requirements less exacting than those of the common law. Some of the commonlaw restraints on the passingoff
action are important to prevent the creation of impermissible monopolies.
Payen Components SA Ltd v Bovic CC [1995] 2 All SA 600 (A), 1995 (4) SA 441 (A) p. 453
[Page 367]
Examples: There is not a closed list of acts that constitute unlawful competition. The bestknown are
(a) trading in contravention of a statutory prohibition;
See STATUTORY DUTY OR AUTHORITY: BREACH
(b) fraudulent misrepresentations by a rival trader as to its own business or goods;
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C)
See INJURIOUS FALSEHOOD
(c) publication by a rival trader of injurious falsehoods concerning the competitor's business;
See INJURIOUS FALSEHOOD
(d) passingoff by a rival trader of goods or business as being that of a competitor;
See PASSINGOFF
(e) misuse of confidential information to advance one's own business interests and activities at the expense of a
competitor's;
See CONFIDENTIAL INFORMATION
(f) unfair use of a competitor's fruits and labour;
1968 (1) SA 209 (C)
(g) interference with contractual relations (inducement or procurement of a breach of contract;
(h) interference with character merchandising rights.
Wrongfulness: The test for wrongfulness is one of fairness and honesty, having regard to the boni mores and
general sense of justice in the community. Questions of public policy, such as the significance of a free market and
of competition, are important.
Schultz v Butt [1986] 2 All SA 403 (A), 1986 (3) SA 667 (A) p. 679 and cases there cited
Phumelela Gaming and Leisure Limited v Gründlingh 2006 (8) BCLR 883 (CC), 2007 (6) SA 350 (CC)
Masstores (Pty) Limited v Pick n Pay Retailers (Pty) Limited 2017 (2) BCLR 152 (CC), 2017 (1) SA 613 (CC)
Mullane and another v Smith and others [2015] 3 All SA 230 (GJ)
In some instances, such as the interference with contractual relationships, wrongfulness requires intention.
Damages: For calculation and proof, see
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (A), 1997 (4) SA 399 (SCA)
Precedents: Precedents appear under the different headings mentioned.
Usury
See CREDIT AGREEMENTS; INTEREST; LOAN FOR CONSUMPTION
[Page 368]
Veld fires
Legislation:
National Veld and Forest Fire Act 101 of 1998
Limitation of liability: Neither the state nor any other person is liable for any damage or loss caused by the
purported exercise of any power or performance of any duty, or by the failure to exercise any power or perform any
duty, in terms of the Act. This immunity does not apply if the person responsible acted
(a) in bad faith in relation to a power or duty in respect of fire rating; or
(b) negligently or in bad faith in relation to any other power or duty under the Act.
National Veld and Forest Fire Act 101 of 1998s 33
Cf. Simon's Town Municipality v Dews [1993] 1 All SA 238 (A), 1993 (1) SA 191 (A)
Cf. Fire Brigade Services Act 99 of 1987s 20
Presumption of negligence: A defendant is presumed (until the contrary is proved) to have been negligent in
relation to a veld fire if the plaintiff proves loss suffered because of a veld fire
(a) caused by the defendant; or
(b) that started on or spread from land 'owned' by the defendant.
The Act uses an extended definition of 'owner'.
Mondi SA Ltd v Martens [2012] 1 All SA 602 (KZP), 2012 (2) SA 469 (KZP)
The presumption applies only to a veld fire.
Gouda Boerdery BK v Transnet Ltd [2004] 4 All SA 500 (SCA), 2005 (5) SA 490 (SCA)
It does not apply to a defendant who is a member of a fireprotection association in the area in which the fire
occurred.
National Veld and Forest Fire Act 101 of 1998s 34(1)
Minister of Water Affairs & Forestry v Durr [2007] 1 All SA 337 (SCA), 2006 (6) SA 587 (SCA)
The presumption does not exempt the plaintiff from the onus of proving that any act or omission by the defendant
was wrongful.
Landowners are under a duty to control or extinguish fires burning on their land.
Lubbe v Louw [2006] 4 All SA 341 (SCA)
Plaintiff's onus: Before the presumption can assist a plaintiff, the plaintiff must
(a) allege and prove a wrongful act or omission by the defendant in causing a veld fire;
National Veld and Forest Fire Act 101 of 1998s 34(2)
(b) allege negligence on the part of the defendant or someone else for whom he or she was vicariously liable;
Viljoen v Smith 1997 (1) SA 309 (A)
(c) allege and prove a causal connection between the loss suffered and the defendant, such as that the
defendant started the fire or that the fire emanated from the defendant's property;
Rosenthal v Mastroguiseppe [2000] 4 All SA 295 (A)
(d) allege and prove that the defendant is not a member of a fireprotection association in the area in which the
fire occurred.
Minister of Forestry v Quathlamba (Pty) Ltd [1973] 3 All SA 336 (A), 1973 (3) SA 69 (A) p. 84
Porritt v Molefe 1982 (3) SA 76 (A)
Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A)
[Page 369]
Defendant's onus: The onus is then on the defendant to prove on a balance of probabilities that
(a) it was not negligent in any of the respects alleged by the plaintiff; or
(b) if its conduct fell short of the standards required such a failing would have had no effect on and, hence, would
not have been relevant to the harm caused.
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759 (CC)
HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd [2000] 4 All SA 545 (A), 2001 (4) SA 814 (SCA)
Minister of Water Affairs & Forestry v Durr [2007] 1 All SA 337 (SCA), 2006 (6) SA 587 (SCA)
Otherwise the onus is the same as that in other delictual matters.
C f . Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [ 2 0 0 0 ] 1 A l l S A 1 2 8 ( A ) ,
2000 (1) SA 827 (SCA)
PRECEDENTS
Claim
1. Plaintiff is the owner of the farm [describe].
2. Defendant is the owner of the adjoining farm [describe].
3. On [date], while defendant was making a fire break on his farm, the fire spread to plaintiff's farm.
4. The fire was a veld fire.
5. The fire destroyed [describe] on plaintiff's farm, causing damages amounting to [amount] [detail].
6. The damage was caused by defendant's negligence. [Detail grounds of negligence.]
7. Defendant is not a member of a fireprotection association.
Vetustas (immemorial usage)
Vetustas (immemorial usage) is a method of proving the existence of a public servitude (normally a public road).
Immemorial usage gives rise to a presumption of fact that an alleged right had a lawful origin. If the origin of the
use can be established, the doctrine does not apply. Prescription, on the other hand, creates a private right
through use but cannot create a right in favour of the public.
Nel v Louw [1955] 1 All SA 86 (C), 1955 (1) SA 107 (C)
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd [1993] 3 All SA 412 (C), 1993 (4) SA 138 (C)
The rebuttable presumption that a right had a lawful origin arises if the following are alleged and proved
(a) continuous and uninterrupted use of the 'right' (such as the use of a road) by the general public (or the public
of a particular locality);
(b) the owner did not interfere with that use; and
(c) the origin of the use cannot be established.
Malherbe v Van Rensburg [1970] 4 All SA 130 (C), 1970 (4) SA 78 (C)
The onus (of rebuttal) then rests on the defendant to prove that the use had an unlawful origin.
De Beer v Van der Merwe 1923 AD 378
[Page 370]
PRECEDENTS
Claim
1. Plaintiff and other members of the public have used the road between [place] and [place], as shown on the sketch map
attached hereto and marked 'A', since time immemorial.
2. The road runs over the land of defendant, who, with knowledge of the aforesaid use, did not interfere.
3. In consequence, plaintiff and members of the public have a right to use the road.
4. On [date], defendant caused a fence to be erected across the road and thereby caused its closure.
5. Despite demand, defendant has refused to remove the fence.
(a) An order directing defendant to remove the said fence.
(b) An order interdicting defendant from interfering in any way with the free and undisturbed use of the road by plaintiff as a
member of the public.
Vicarious liability
Related issues: DELICT: LEX AQUILIA
Employees: An employer is liable for damage occasioned by delicts committed by an employee in the course and
scope of the employee's employment.
K v Minister of Safety and Security [2005] 3 All SA 519 (SCA), 2005 (3) SA 179 (SCA)
K v Minister of Safety and Security 2005 (9) BCLR 835 (CC), [2005] 8 BLLR 749 (CC), 2005 (6) SA 419 (CC)
Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014 (5) BCLR 511 (CC), 2014 (3) SA 394 (CC)
The same principles apply to analogous cases such as the liability of an owner of a vehicle for the negligence of the
driver.
Messina Associated Carriers v Kleinhaus [2001] 3 All SA 285 (A), 2001 (3) SA 868 (SCA)
Onus: The onus rests on the plaintiff to allege and prove in addition to the usual allegations to establish delictual
liability
(a) that the person who committed the delict was an employee of the defendant;
Gibbins v Williams, Muller, Wright & Mostert Ingelyf [1987] 1 All SA 417 (T), 1987 (2) SA 82 (T)
(b) the scope of the employee's duties at the relevant time.
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd [2001] 1 All SA 425 (A), 2001 (2) SA 242 (SCA)
Minister of Safety and Security v F [2011] 3 All SA 149 (SCA), 2011 (3) SA 487 (SCA)
(c) that the employee performed the delictual act in the course and scope of the employee's employment;
Stadsraad van Pretoria v Pretoria Pools 1990 (1) SA 1005 (T)
Cf. Midway Two Engineering & Construction Services BK v Transnet Bpk [1998] 2 All SA 451 (A), 1998 (3) SA 17
(SCA) p. 29
Course and scope: The subjective intention of the employee is a relevant factor in determining whether he or she
acted within the course and scope of employment.
Minister van Veiligheid en Sekuriteit v Japmoco 2002 (5) SA 649 (SCA) p. 659
[Page 371]
The fact that the act complained of took place while the employee was on duty does not generally provide prima
facie proof that the act was committed in the scope and course of her or his duties.
Should the plaintiff succeed in establishing facts from which it could be inferred that the employee was acting in the
course and scope of her or his employment, it will be for the employer to discharge the tactical onus. However, the
ultimate onus remains on the plaintiff.
SA Railways & Harbours v Dhlamini [1967] 2 All SA 288 (D), 1967 (2) SA 203 (D)
A defendant who wishes to deny the employeremployee relationship should do so explicitly.
FPS Ltd v Trident Construction (Pty) Ltd [1989] 2 All SA 295 (A), 1989 (3) SA 537 (A)
The Minister of Justice bears no responsibility for decisions of the National Prosecuting Authority or for the acts of a
judicial officer.
Minister of Safety and Security v Van der Walt [2014] ZASCA 174, 2015 (2) SACR 1 (SCA)
Disobedience: An employee who acts in defiance of an express instruction acts outside the course and scope of her
or his duties. When subsequent negligence in completing tasks within the course and scope of the duties causes
damage to one who has associated herself or himself (even innocently) with the action taken in defiance of the
express instruction, the employer remains not liable.
Bezuidenhout NO v Eskom [2003] 1 All SA 411 (SCA), 2003 (3) SA 83 (SCA)
If the employee did something unauthorised and criminal by abusing the employment position the act may have no
connection with her or his duties. The employer will then not be liable because it is not a case of an improper
execution of duties but one of not performing them at all.
ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd [2001] 1 All SA 1 (A), 2001 (1) SA 372 (SCA) p. 383
Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 (5) SA 475 (SCA)
Deviation cases: The employer is not liable if the employee was engaged in a frolic of his or her own or in doing
something he or she was permitted to do for his or her own purposes but not employed to do for the employer,
unless the act was incidental to the employment.
Minister of Law and Order v Ngobo [1992] 2 All SA 492 (A), 1992 (4) SA 822 (A)
Ess Kay Electronics Pte Ltd v First National Bank of Southern Africa Ltd [2001] 1 All SA 315 (A), 2001 (1) SA 1214
(SCA)
Viljoen v Smith 1997 (1) SA 309 (A)
The limitation of proximity to cases where the employee deviates from the course or scope of employment but is
nevertheless acting in furtherance of the employer's business when the deviation occurs does not apply if
constitutional dictates require otherwise.
K v Minister of Safety and Security 2005 (9) BCLR 835 (CC), [2005] 8 BLLR 749 (CC), 2005 (6) SA 419 (CC)
F v Minister of Safety and Security and another (Institute for Security Studies and others as amici curiae) 2012 (3)
BCLR 244 (CC), 2012 (1) SA 536 (CC), (2012) 33 ILJ 93 (CC), 2013 (2) SACR 20 (CC)
Minister of Defence v Von Benecke (2013) 34 ILJ 275 (SCA), 2013 (2) SA 361 (SCA)
Minister of Safety and Security v Morudu 2016 (1) SACR 68 (SCA)
In relation to sexual harassment, see
Media 24 Ltd v Grobler [2005] 3 All SA 297 (SCA), 2005 (6) SA 328 (SCA)
PE v Ikwezi Municipality 2016 (5) SA 114 (ECG)
Fraud: Even though a deliberately dishonest act committed solely for the employee's own interests and purposes
may fall outside the ambit of conduct that renders the [Page 372] employer liable, liability may nevertheless follow
if, objectively seen, there is a sufficiently close link between the selfdirected conduct and the employer's business.
Minister of Finance and others v Gore [2007] 1 All SA 309 (SCA), 2007 (1) SA 111 (SCA)
Independent contractors: A principal is normally not liable for the acts of an independent contractor.
Midway Two Engineering & Construction Services BK v Transnet Bpk [1998] 2 All SA 451 (A), 1998 (3) SA 17
(SCA)
Chartaprops 16 (Pty) Ltd v Silberman [2009] 1 All SA 197 (SCA), 2009 (1) SA 265 (SCA)
When the work to be performed is per se dangerous, the principal may be held liable for failing to take reasonable
precautions to protect other persons, including servants of the contractor.
PeriUrban Areas Health Board v Munarin [1965] 3 All SA 471 (A), 1965 (3) SA 367 (A)
Langley Fox Building Partnership (Pty) Ltd v De Valence [1991] 3 All SA 736 (A), 1991 (1) SA 1 (A)
Pienaar v Brown [2010] 2 All SA 495 (SCA), 2010 (6) SA 365 (SCA)
In appropriate circumstances a person may escape liability arising out of dangerous work by delegating to a
properly qualified expert.
Rhodes Fruit Farms Ltd v Cape Town City Council [1968] 2 All SA 496 (C), 1968 (3) SA 514 (C)
Chartaprops 16 (Pty) Ltd v Silberman [2009] 1 All SA 197 (SCA), 2009 (1) SA 265 (SCA)
General: A parent is not vicariously liable for the acts of a child.
Godfrey v Campbell [1997] 1 All SA 395 (C), 1997 (1) SA 570 (C)
An operator of a casino has no duty to protect one customer from another.
Tsogo Sun Holdings (Pty) Ltd v QingHe Shan 2006 (6) SA 537 (SCA)
PRECEDENTS
Claim against a master for a delict committed by an employee
1. At all material times, one [name] was employed by defendant as a driver of defendant's motor vehicles.
2. On [date], the said [name], while driving defendant's motor vehicle [registration number] during the course of
defendant's business and within the scope of his authority, collided with plaintiff's motor vehicle at [place].
3. The collision was caused by the negligence of the said [name] [detail]. [See DELICT: LEX AQUILIA]
4. Because of the aforesaid collision, considerable damage was done to plaintiff's motor vehicle as a result of which he has
suffered damage in the sum of [amount] for which defendant is, in the premises, liable. [See DELICT: LEX AQUILIA]
Plea to the above claim
1. Defendant denies that, at the time of the said collision, [name] was acting within the course of his employment or within
the scope of his authority.
2. Defendant avers that, at the time, the said [name] was using defendant's motor vehicle for his own private purposes and
without defendant's permission or knowledge.
Vindication
Related subjects: ACTIO AD EXHIBENDUM; ESTOPPEL; EVICTION; INTERPLEADER
Leading case:
Chetty v Naidoo [1974] 3 All SA 304 (A), 1974 (3) SA 13 (A)
[Page 373]
Statutes: The right to vindicate has been curtailed substantially by social legislation some of which is dealt with
under EVICTION.
Molusi and others v Voges NO and others 2016 (3) SA 370 (CC), 2016 (7) BCLR 839 (CC)
Cause of action: An owner is entitled to reclaim possession of her or his property with the rei vindicatio. The action
is an action in rem. It may be advisable for a plaintiff to claim alternative relief on the assumption that the
defendant may have disposed of the plaintiff's property before the institution of the action or may dispose of it
thereafter.
See ACTIO AD EXHIBENDUM
Essentials: A plaintiff must allege and prove
(a) ownership of the thing (whether movable or immovable); and
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd [1993] 1 All SA 259 (A), 1993 (1) SA 77 (A) p. 82
Concor Construction (Cape) (Pty) Ltd v Santambank Ltd [1993] 2 All SA 496 (A), 1993 (3) SA 930 (A)
(b) that the defendant was in possession of the property when the action was instituted.
Graham v Ridley 1931 TPD 476
Wrongfulness: Because possession of an owner's property by another is prima facie wrongful, it is not necessary
for the plaintiff to allege or prove that the defendant's possession is wrongful or against the wishes of the plaintiff.
Even if the allegation is made, it does not draw any onus.
Singh v Santam Insurance Company Limited [1997] 1 All SA 525 (A), 1997 (1) SA 291 (SCA)
Relief: The following relief is available to a plaintiff:
(a) Return of possession of the property or, in lieu thereof, payment of its value calculated on the day of the trial.
(b) If the defendant was a mala fide possessor, delivery of all fruits (or payment of their value) that have accrued
to the defendant.
(c) If the defendant was bona fide, delivery of the fruits (or payment of their value) that accrued after litis
contestatio.
Mlombo v Fourie [1964] 3 All SA 555 (T), 1964 (3) SA 350 (T)
Defences:
(a) Denial of ownership, which creates no onus for the defendant since the plaintiff must prove ownership.
See OWNERSHIP
(b) Denial of possession, which likewise draws no onus.
(c) The defendant may plead that the plaintiff's property was returned to the plaintiff. This defence must be
specifically alleged and proved. An allegation by a plaintiff that the defendant had failed to return the property
is unnecessary and draws no onus.
Groenendijk v Tractor & Excavator Spares (Pty) Ltd [1978] 2 All SA 188 (A), 1978 (1) SA 815 (A)
(d) The bona fide disposal of possession is a complete defence.
[Page 374]
A disposal by the defendant with knowledge of the plaintiff's claim to the property is wrongful and provides no
defence. In such an instance, a plaintiff is entitled to damages based on the value of the property at the date
of disposal.
(e) Should the defendant wish to rely on a right to possession (e.g. by virtue of a lease), the defendant must
allege and prove the right.
Woerman NO v Masondo [2002] 2 All SA 53 (A), 2002 (1) SA 811 (SCA)
If the plaintiff concedes this right at any stage of the proceedings, the onus is on the plaintiff to plead and
prove a valid termination of the right. This includes proving the term of the agreement that gives the right of
cancellation
If a plaintiff alleges or concedes a right of possession (e.g. by virtue of a lease) and the defendant denies that
right but relies on another right of possession or on another defence, the plaintiff need no longer prove the
conceded right or its termination.
It may be tactically advisable for a plaintiff not to concede the right in the claim but to deal with it, and with its
termination, in the replication, and then only in the alternative. The duty to begin will then rest on the
defendant.
(f) A defendant wishing to rely on estoppel must allege and prove
(i) a representation by the owner, by conduct or otherwise, that the person who disposed of the property
to the defendant was its owner or was entitled to dispose of it;
(ii) that the representation was made negligently;
Johaadien v Stanley Porter (Paarl) (Pty) Ltd [1970] 2 All SA 28 (A), 1970 (1) SA 394 (A)
(iii) that the defendant relied on the representation in obtaining the property;
(iv) that reliance on the representation was the cause of the defendant's detriment.
Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd 1976 (1) SA 441 (A)
Stellenbosch Farmers' Winery Ltd v Vlachos t/a Liquor Den [2001] 3 All SA 577 (A), 2001 (3) SA 597 (SCA)
See ESTOPPEL
Estoppel as defence: See VINDICATION.
Tender: A plaintiff reclaiming possession with the rei vindicatio of property which came into the hands of the
defendant by virtue of a void contract is not obliged to tender repayment of any money received to complete the
cause of action. The defendant may obviously counterclaim for repayment.
Quartermark Investments (Pty) Ltd v Mkhwanazi and another [2014] 1 All SA 22 (SCA), 2014 (3) SA 96 (SCA)
Interpleader: A defendant who expects to be sued for delivery of the same thing by two or more parties with
conflicting claims may issue an interpleader notice.
See INTERPLEADER
[Page 375]
PRECEDENTS
Claim for delivery
1. Plaintiff is the owner of [property].
2. Defendant is in possession thereof.
3. In the alternative to paragraph 2, and if it be found that defendant is no longer in possession thereof, plaintiff alleges
that:
(a) defendant disposed of the property with knowledge of plaintiff's ownership;
(b) the value of the property is [amount].
(a) Delivery of the [property].
(b) Alternatively, payment of [amount].
Plea relying on a right of possession
1. Defendant admits that plaintiff is the owner of [item] and that defendant is in possession thereof.
2. Defendant pleads that he possesses the [item] in terms of a hirepurchase agreement entered into by the parties in
writing on [date] at [place]. A copy of the agreement is annexed hereto.
Replication alleging cancellation of contract
1. Plaintiff denies that the parties have entered into a hirepurchase agreement as alleged by defendant.
2. In the alternative, plaintiff alleges that the said hirepurchase agreement is void by virtue of [detail].
3. In the further alternative, plaintiff alleges that the hirepurchase agreement was duly cancelled by plaintiff on [date], by
letter, in terms of clause [number] of the contract, due to defendant's breach by [detail].
Plea relying on estoppel
1. Defendant admits that he was in possession of the [item] during the period [state period].
2. Defendant denies that plaintiff is or was the owner of the [item] during any relevant period.
3. In the alternative to paragraph 2, defendant pleads that:
(a) he purchased the [item] in good faith from a secondhand dealer [name] at [place] on [date];
(b) the secondhand dealer displayed the [item] with plaintiff's consent as part of his stock in trade;
(c) plaintiff thereby negligently represented that the dealer was the owner of the [item];
(d) defendant acted on the representation by purchasing the [item] from the dealer and thereby acted to his
detriment.
4. Defendant admits that he sold the [item] on [date] to [name] at [place] but pleads that he had, at that stage, no
knowledge of plaintiff's claim to ownership.
Volenti non fit iniuria
Related subjects: DAMAGES: APPORTIONMENT; DELICT: LEX AQUILIA; NEGLIGENCE; NEGLIGENCE: CONTRIBUTORY
NEGLIGENCE; MEDICAL AND DENTAL PRACTITIONERS
Nature of defence: The voluntary acceptance of the risk of injury or loss may negate wrongfulness of the act.
[Page 376]
Parties: The defence of volenti non fit iniuria cannot be raised against a claim by dependants arising from the death
of their breadwinner.
Jameson's Minors v Central SA Railways 1908 TS 575
It may, however, be raised against most other claims, whether under the lex Aquilia, actio iniuriarum or the actio de
pauperie.
Onus: The onus rests on the defendant to establish the defence.
Rosseau v Viljoen [1970] 2 All SA 417 (C), 1970 (3) SA 413 (C) p. 417
Santam Insurance Co Ltd v Vorster [1973] 4 All SA 558 (A), 1973 (4) SA 764 (A) p. 779
The defence is fairly difficult to establish because the 'maxim has to be applied with specially careful regard to the
varying facts of human affairs and human nature . . . because it is concerned with the intangible factors of will and
mind'.
Bowater v Rowley Regis Corp 1 9 4 4 1 K B 4 7 6 , q u o t e d i n Stolzenberg v Lurie [1959] 2 All SA 105 ( W ) ,
1959 (2) SA 67 (W) p. 73
Essentials: The defendant must allege and prove that the plaintiff
(a) had knowledge of the risk;
Alberts v Engelbrecht [1961] 2 All SA 611 (T), 1961 (2) SA 644 (T)
(b) appreciated the ambit of the risk; and
Durban City Council v SA Board Mills Ltd [1961] 3 All SA 344 (A), 1961 (3) SA 397 (A) pp. 406407
(c) consented to the risk.
Waring & Gillow Ltd v Sherborne 1904 TS 340 pp. 340344
Malherbe v Eskom 2002 (4) SA 497 (O)
Consent: The supervening injury must have been sustained in consequence of a risk falling within the ambit of the
consent.
Consent may be express or tacit. If the plaintiff foresaw the risk of injury and had knowledge and an appreciation of
the danger, consent will be assumed.
Knowledge does not necessarily imply appreciation; and knowledge and appreciation are not tantamount to
consent.
The fact that the plaintiff was made aware of the risk does not absolve the defendant from not acting negligently.
Fredericks v Shield Insurance Co Ltd 1982 (2) SA 423 (A)
Volenti and contributory negligence: The defences of contributory negligence and volenti non fit iniuria may overlap
since the voluntary assumption of a risk may constitute contributory negligence.
Contributory negligence is a partial defence to a claim for damages because the amount that may be awarded
depends on the degree of the plaintiff's own fault in relation to the damage caused, whereas the volenti defence is
a complete defence.
The volenti defence entails a subjective inquiry relating to the particular plaintiff, while contributory negligence calls
for an objective inquiry in conformity with the standard of the reasonable person.
PRECEDENTS
Plea of volenti
1. Defendant admits that plaintiff was injured when he fell off scaffolding at defendant's premises, as alleged.
[Page 377]
2. When plaintiff climbed onto the scaffolding, he was warned that it was dangerous to do so and that he should desist since
the scaffolding had not yet been properly secured.
3. Plaintiff was fully aware of the risks involved in climbing onto the scaffolding in that condition.
4. Despite this knowledge, and whilst appreciating the risk, plaintiff nevertheless climbed onto the scaffolding and fell.
5. Defendant, therefore, pleads that plaintiff consented to be subjected to the risk of injury and that in the premises
defendant is not liable for any loss or damage suffered by plaintiff.
Voluntary associations
Unincorporated association: An association without juristic personality may sue or be sued in its own name if its
constitution grants it the power to litigate.
Uniform rule 14(2)
Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council 2002 (6) SA 66 (T)
Incorporated association: An association with legal personality may also sue and be sued in its own name.
Uniform rule 14(2)
Whether an association has legal personality depends on the nature of the association, its constitution, objects and
activities.
Morrison v Standard Building Society 1932 AD 229
Contracts: An association is a creature of its constitution which binds its members and it is bound by a contract
which is intra vires its constitution.
Advertising Standards Authority v Herbex (Pty) Ltd 2017 (6) SA 354 (SCA)
National African Federated Chamber of Commerce and Industry and others v Mkhize and others [2015] 1 All SA
393 (SCA)
An association may be bound by a contract ultra vires its constitution when the other contracting party was induced
to enter into the contract by the fraudulent nondisclosure of the fact that the contract would be ultra vires.
Oranje Benefit Society v Central Merchant Bank Ltd [1976] 4 All SA 551 (A), 1976 (4) SA 659 (A)
Delict: A voluntary association may be vicariously liable for delicts committed in its name and on its behalf.
African National Congress v Lombo [1997] 1 All SA 697 (A), 1997 (3) SA 187 (A)
Locus standi: The party relying on the locus standi of an association must make the necessary allegations to
establish locus standi. Depending on the circumstances, lack of locus standi may be raised by way of an exception or
a special plea.
Ahmadiyya AAIL (SA) v Muslim Judicial Council (Cape) [1983] 4 All SA 535 (C), 1983 (4) SA 855 (C)
Waiver
Effect: Waiver of a right extinguishes that right and the concomitant obligation. Waiver is a question of fact.
Laws v Rutherford 1924 AD 261
[Page 378]
Onus: The onus rests on the party relying on a waiver to allege and prove waiver on a balance of probabilities.
Hepner v RoodepoortMaraisburg Town Council [1962] 4 All SA 510 (A), 1962 (4) SA 772 (A)
Borstlap v Spangenberg [1974] 4 All SA 25 (A), 1974 (3) SA 695 (A)
The onus remains on that party throughout the proceedings. In assessing the probabilities, the factual presumption
that a party is not lightly deemed to have waived rights should be borne in mind. Clear evidence of a waiver is
required.
Procedure: The defence of waiver must be pleaded.
Montesse Township & Investment Corp (Pty) Ltd v Gouws NO [1965] 4 All SA 285 (A), 1965 (4) SA 373 (A)
Dale v Fun Furs (Pty) Ltd [1968] 3 All SA 314 (O), 1968 (3) SA 264 (O)
Decision to abandon right: The defendant must allege and prove a decision by the plaintiff to abandon the right
which is being asserted against the defendant.
Road Accident Fund v Mothupi [2000] 3 All SA 181 (A), 2000 (4) SA 38 (SCA)
The decision to abandon may be either express or tacit. Tacit abandonment is proved by conduct plainly
inconsistent with an intention to enforce the right now relied on.
Hepner v RoodepoortMaraisburg Town Council [1962] 4 All SA 510 (A), 1962 (4) SA 772 (A)
Borstlap v Spangenberg [1974] 4 All SA 25 (A), 1974 (3) SA 695 (A)
The decision to abandon must have been conveyed to the defendant for it to become effective.
Traub v Barclays National Bank Ltd 1983 (3) SA 619 (A) p. 634
Knowledge of the right: The defendant must plead and prove that when the alleged waiver took place the plaintiff
had full knowledge of the right the plaintiff decided to abandon.
Netlon Ltd v Pacnet (Pty) Ltd [1977] 4 All SA 169 (A), 1977 (3) SA 840 (A) pp. 873874
An error in deciding to waive can vitiate the waiver if the error is of such a nature that it would have vitiated a
contract.
See MISTAKE
Election: An election generally involves a waiver: one right is waived when a party chooses to exercise another
right which is inconsistent with it.
Administrator, Orange Free State v Mokopanele [1990] 2 All SA 430 (A), 1990 (3) SA 780 (A)
Xenopoulos v Standard Bank of South Africa Ltd [2000] 2 All SA 494 (W), 2001 (3) SA 498 (W)
The defendant bears the same onus as in the case of a waiver.
There is no general proposition that a party with more than one remedy at her or his disposal must elect at some
given point which one to pursue and that, having done so, that party is assumed to have abandoned all other
remedies. The position may be different when the choice is between inconsistent remedies (e.g. the choice between
accepting or rejecting a repudiation) to one of which the party commits unequivocally.
Montesse Township & Investment Corp (Pty) Ltd v Gouws NO [1965] 4 All SA 285 (A), 1965 (4) SA 373 (A)
[Page 379]
When a party to a contract has the right, on a breach of that contract, either to repudiate or abide by the contract,
the election to abide constitutes a waiver of the right to cancel.
Sandown Travel (Pty) Ltd v Cricket South Africa 2013 (2) SA 502 (GSJ) paras 35 and 39
See REPUDIATION
Acquiescence and delay: Acquiescence is not a substantive defence. In suitable cases, however, delay may be
evidence of (a) an intention to waive, (b) a misrepresentation that might found estoppel, or (c) consent for the
purposes of the volenti non fit iniuria principle.
New Media Publishing (Pty) Ltd v Eating Out Web Services 2005 (5) SA 388 (C)
Turbek Trading CC v A & D Spitz Ltd [2010] 2 All SA 284 (SCA), [2010] FSR 16 (SCA) para. 15
Delay in enforcing a right does not, in itself, amount to waiver.
Zuurbekom Ltd v Union Corp Ltd [1947] 1 All SA 319 (A), 1947 (1) SA 514 (A)
Mahabeer v Sharma NO [1985] 2 All SA 295 (A), 1985 (3) SA 739 (A)
On the other hand, failure to cancel a contract within a reasonable time after a breach may provide evidence of an
election to abide by the contract.
Paradyskloof Golf Estate (Pty) Ltd v Municipality of Stellenbosch [2010] 4 All SA 591 (SCA), 2011 (2) SA 525
(SCA) para. 24
Waiver after cancellation: A debtor may rely on the waiver of a right to cancel between the date of the breach and
the date of the purported cancellation. Conduct during that period which manifests an election not to cancel may
constitute waiver of the right to cancel.
The position may be different when the defendant relies on conduct after cancellation. For instance, acceptance of a
rental payment after the date of the cancellation of the lease agreement does not necessarily amount to a waiver
of the cancellation.
Desai v Mohamed [1976] 3 All SA 13 (N), 1976 (2) SA 709 (N)
Pienaar v Southern Insurance Association Ltd [1983] 1 All SA 268 (C), 1983 (1) SA 917 (C)
Similarly, when a purchaser cancels a sale and tenders return of the purchased goods and the seller refuses to
accept the tender, the fact that the purchaser remains in possession of the goods and even uses them does not
necessarily amount to a waiver.
Acceptance of waiver: It has been said that a waiver is incomplete until it is accepted by the debtor. This need not
be alleged and proved by the defendant because reliance on waiver implies an acceptance of the waiver.
Union Free State Mining & Finance Corp Ltd v Union Free State Gold & Diamond Corp Ltd [1960] 4 All SA 113 (W),
1960 (4) SA 547 (W)
Waiver not permitted: No one may renounce a right contrary to law or a right introduced in the public interest and
not only for personal benefit.
South African Cooperative Citrus Exchange Ltd v DirectorGeneral Trade and Industry [1997] 2 All SA 321 (A),
1997 (3) SA 236 (SCA)
Peremption of appeal and waiver: If the conduct of an unsuccessful litigant is such as to point indubitably and
necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in
it. But the conduct relied upon must be unequivocal and must be inconsistent with any intention to appeal. The
onus of establishing it is on the party alleging it.
South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and others [2017] 1 BLLR
8 (CC), (2017) 38 ILJ 97 (CC), 2017 (1) SA 549 (CC), 2017 (2) BCLR 241 (CC) para. 26
Rajah and another v Balduzzi [2018] ZASCA 57
[Page 380]
Nonvariation clauses: Waiver of a right flowing from a contract requires no formalities. Thus, where a contract
cannot be amended because of a nonvariation clause, a party may nevertheless waive any right flowing from that
contract.
Van As v Du Preez [1981] 4 All SA 402 (T), 1981 (3) SA 760 (T)
The same applies when a statutory provision prevents the amendment of a contract without compliance with
formalities.
Venter v Birchholtz [1972] 1 All SA 361 (A), 1972 (1) SA 276 (A)
PRECEDENTS
Plea of waiver
1. Defendant admits that, in terms of the agreement between the parties, he was obliged to [specify].
2. At all material times, plaintiff was fully aware of his rights in terms of the agreement.
3. On [date] at [place], plaintiff, by implication, waived his rights to and in respect of the obligations by defendant by
[specify].
Water
The Water Act 54 of 1956 was repealed by section 163(1) of the National Water Act 36 of 1998.
Naude v Heatlie; Naude v WorcesterOos Hoofbesproeiingsraad [2001] 2 All SA 521 (A), 2001 (2) SA 815 (A)
Useful precedents cannot be given here because water law is an administrative matter. For precedents, see
WATER in South African Encyclopaedia of Forms and Precedents
Water: Actio aquae pluviae arcendae
General: This action and the related interdict protect the plaintiff's property against interference with the natural
flow of water from the defendant's property onto that of the plaintiff by means of artificial works.
A property is otherwise obliged to receive water from a neighbouring property which flows naturally onto the
former.
De Villiers v Galloway 1943 AD 439
Pietermaritzburg and District Council for the Care of the Aged (PADCA) v Redlands Development Projects (Pty) Ltd
and others 2018 (4) SA 113 (SCA)
This applies to urban and rural land.
Williams v Harris 1998 (3) SA 970 (SCA)
It is wrongful to erect works that alter the natural flow of water in such a way that it flows onto another person's
property and causes damage to it. Since the actio is not intended for the recovery of damages but for the
abatement of mischief, fault is not required.
This principle is subject to exceptions: (i) the existence of a servitude; (ii) a contract or statute justifying
interference; and (iii) reasonable cultivation of agricultural land.
Thormahlen v Gouws [1956] 4 All SA 259 (A), 1956 (4) SA 430 (A)
Van Schalkwyk v Van der Wath [1963] 3 All SA 507 (A), 1963 (3) SA 636 (A)
[Page 381]
Damages: The plaintiff is entitled to damages suffered after litis contestatio without having to allege and prove fault.
The plaintiff, presumably, must amend the claim to cater for this relief.
A claim in respect of damages incurred prior to litis contestatio must be based on the lex Aquilia: in other words,
negligence must be alleged and proved.
Cape Town Council v Benning 1917 AD 315
PRECEDENTS
Claim
1. Plaintiff is the owner of a farm known as [name], situate at [location].
2. Defendant is the owner of [name], a farm adjoining the plaintiff's farm along its boundary, which runs from east to west.
3. On both sides of this boundary there are ploughed fields.
4. The slope of the land is from north to south across the aforesaid boundary.
5. The normal runoff of rainwater is from the defendant's farm southward across the plaintiff's farm.
6. On his farm, to the north of the boundary, the defendant constructed a trench [metres] deep and [metres] long, running
from about northeast to southwest.
7. Because of the construction of the trench, rainwater falling on the defendant's farm runs onto the plaintiff's farm in a
greater concentration and volume and with greater force and velocity than would naturally occur according to the natural
slope of the land.
8. On [date], rain fell on the defendant's farm and flowed onto the plaintiff's farm at a greater concentration and volume
and with greater force and velocity than would naturally occur if it were not for the construction of the trench.
9. As a result of this water flow, the plaintiff's lands were extensively damaged by flooding and erosion.
10. Plaintiff suffered damages in the amount of [Rx] made up as follows:
[detail]
11. Defendant secretly erected the trench.
(a) An order directing the defendant to fill in the trench on his farm [name], and to restore the status quo so that the flow of
water running from his farm onto the farm [name] belonging to the plaintiff is not unnaturally concentrated or increased,
either in volume or in force.
(b) An order prohibiting the defendant from erecting any further works on his farm which would have the effect of increasing
or concentrating the volume, force or velocity of the flow from the farm [name] onto the farm [name].
(c) Payment of [Rx] being damages.
Wills
Parties: In litigation concerning wills, special care should be taken to join all interested and potentially interested
parties.
Fakroodeen v Fakroodeen NNO 1971 (3) SA 395 (D)
The Master of the High Court has an interest and must be joined even if no relief is sought against the Master.
[Page 382]
Onus: A will which is prima facie regular is presumed to be valid and the onus of establishing its invalidity rests on
the person challenging it. It follows from this principle that the burden of proof rests on the party alleging
(a) forgery of the will;
(b) lack of mental capacity on the part of the testator;
See MENTAL INCAPACITY
(c) undue influence; or
See UNDUE INFLUENCE
(d) failure to comply with the prescribed statutory formalities.
Kunz v Swart and others 1924 AD 618
Katz v Katz [2004] 4 All SA 545 (C)
Interpretation: Interpretation of a will normally depends on legal argument only. In such a case, application
proceedings may be apposite.
The interpretation of a will cannot be decided on exception, unless the court is satisfied that there is no admissible
extrinsic evidence which may have a bearing on the interpretation of the will.
Cf. PART A s.v. V. EXCEPTION
Rectification: A court may rectify a will if it appears ex facie the document to be valid. Rectification may take place by
the addition or deletion of words to give effect to the true intention of the testator.
Henriques v Giles NO: In re Henriques v Giles NO [2009] 4 All SA 116 (SCA), 2010 (6) SA 51 (SCA)
See RECTIFICATION
PRECEDENTS
Claim
1. On [date], the late [name] (the testator) purported to execute a will, a copy of which is attached hereto and marked 'A'.
2. At the time of execution of the will, the testator was not in a mental state fit to execute a valid will, because he was
suffering from [specify] to such a degree that he was unable to appreciate the nature or contents of his acts.
3. The testator left no other valid will.
(a) An order declaring the will of the testator dated [date] to be null and void.
(b) An order declaring that the testator died intestate.
1166 Roodekrans CC and others v Nedcor Bank Ltd [2001] 2 All SA 666 (W) 138
A
A Becker & Co (Pty) Ltd v Becker and others 1981 (3) SA 406 (A) 318
AA Mutual Insurance Association Ltd v Nomeka
[1976] 3 All SA 310 (A), 1976 (3) SA 45 (A) 274
AAA Brick Co (Pty) Ltd v Coetzee [1996] 1 All SA 23 (B), 1996 (3) SA 578 (B) 337
Aarwater (Edms) Bpk v Venter [1982] 2 All SA 143 (T), 1982 (3) SA 974 (T) 355
Abakor v Crafcor Farming t/a Riversdale Feedlot 2000 (1) SA 973 (N) 210
Abbott v Von Theleman 1997 (2) SA 848 (C) 342
Abraham v Du Plessis [1962] 3 All SA 135 (T), 1962 (3) SA 162 (T) 74
Abrahamse v East London Municipality; East London Municipality v Abrahamse
[1997] 2 All SA 651 (A), 1997 (4) SA 613 (SCA) 306
Abrinah 7804 (Pty) Ltd v Kapa Koni Investments CC 2018 (3) SA 108 (NCK) 112
ABSA Bank v Mutual & Federal Ins Co Ltd 2003 (1) SA 635 (W) 77
ABSA Bank Bpk v Coetzee [1997] ZASCA 78, [1998] 1 All SA 1 (SCA) 77
ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) 13, 62
ABSA Bank Bpk v ONS Beleggings BK [2000] 3 All SA 199 (A), 2000 (4) SA 27 (SCA) 65
Absa Bank Bpk h/a Volkskas Bank v Retief
[1999] 1 All SA 68 (NC), 1999 (3) SA 322 (NC) 63, 142, 222
ABSA Bank Limited v Hanley [2014] 1 All SA 249 (SCA), 2014 (2) SA 448 (SCA) 64
Absa Bank Limited v IW Blumberg & Wilkinson
[1997] 2 All SA 307 (A), 1997 (3) SA 669 (SCA) 4, 63, 64, 187
Absa Bank Limited v Keet [2015] 4 All SA 1 (SCA), 2015 (4) SA 474 (SCA) 306
ABSA Bank Limited v Lombard Insurance Company Limited;
FirstRand Bank Limited v Lombard Insurance Company Limited
[2012] 4 All SA 485 (SCA), 2012 (6) SA 569 (SCA) 299
Absa Bank Limited v Standard Bank of SA Limited
[1997] 4 All SA 673 (A), 1998 (1) SA 242 (SCA) 90, 64, 336
Absa Bank Ltd v Arif and another [2014] 2 All SA 1 (SCA), 2014 (2) SA 466 (SCA) 26
ABSA Bank Ltd v Boksburg Transitional Local Council
(Government of the Republic of South Africa third party) 1997 (2) SA 415 (W) 358
ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd
[2001] 1 All SA 1 (A), 2001 (1) SA 372 (SCA) 371
ABSA Bank Ltd v Davidson [2000] 1 All SA 355 (A), 2000 (1) SA 1117 (SCA) 352
ABSA Bank Ltd v De Beer 2016 (3) SA 432 (GP) 137
Absa Bank Ltd v De Klerk [1998] 4 All SA 674 (W), 1999 (1) SA 861 (W) 75, 188
Absa Bank Ltd v Expectra 423 (Pty) Ltd 2017 (1) SA 81 (WCC) 352
ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA), 2003 (1) SA 176 (SCA) 164, 264
Absa Bank Ltd v Greyvenstein 2003 (4) SA 537 (SCA) 77
ABSA Bank Ltd v Intensive Air (Pty) Ltd (in liquidation)
[2011] 3 All SA 2 (SCA), 2011 (2) SA 275 (SCA) 62, 63, 64
ABSA Bank Ltd v Leech [2001] 4 All SA 55 (A), 2001 (4) SA 132 (SCA) 89
ABSA Bank Ltd v Lombard Insurance Company Limited;
FirstRand Bank Limited v Lombard Insurance Company Limited
[2012] 4 All SA 485 (SCA), 2012 (6) SA 569 (SCA) 63, 120
Absa Bank Ltd v Moore 2016 (3) SA 97 (SCA) 204, 285
Absa Bank Ltd v Moore and another 2017 (2) BCLR 131 (CC), 2017 (1) SA 255 (CC)204, 299
Absa Bank Ltd v Prochaska t/a Bianca Cara Interiors 2009 (2) SA 512 (D) 138, 139
ABSA Bank Ltd v Scharrighuisen [2000] 1 All SA 318 (C), 2000 (2) SA 998 (C) 352
ABSA Bank Ltd v The Master NNO [1998] 3 All SA 189 (N), 1998 (4) SA 15 (N) 266, 378
ABSA Bank Ltd v Trzebiatowsky and others 2012 (5) SA 134 (ECP) 266
ABSA Bank Ltd v Van de Vyver NO [2002] 3 All SA 425 (A), 2002 (4) SA 397 (SCA) 357
ABSA Bank Ltd v Zalvest Twenty (Pty) Ltd 2014 (2) SA 119 (WCC) 106
ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC
[2003] 1 All SA 401 (SCA), 2003 (1) SA 401 (SCA) 284
ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C) 275
ABSA Bank Ltd t/a Volkskas Bank v Page [2002] 1 All SA 99 (A), 2002 (1) SA 617 (SCA)299
ABSA Brokers (Pty) Ltd v RMB Financial Services
[2009] 4 All SA 463 (SCA), 2009 (6) SA 549 (SCA) 273
Absa Brokers (Pty) Ltd v Stoltz [2002] 4 All SA 476 (NC) 27
ABSA Insurance Brokers (Pty) Ltd v Luttig NO
[1997] 3 All SA 267 (A), 1997 (4) SA 229 (SCA) 119
Acacia Mines Ltd v Boshoff [1958] 4 All SA 212 (A), 1958 (4) SA 330 (A) 277
Acs v Acs [1981] 3 All SA 736 (W), 1981 (2) SA 795 (W) 8
Adams v SA Motor Industry Employers Association 1981 (3) SA 1189 (A) 277
AdcockIngram Products Ltd v Beecham SA (Pty) Ltd
[1977] 4 All SA 657 (W), 1977 (4) SA 434 (W) 290, 291, 292
Adel Builders (Pty) Ltd v Thompson [2000] 4 All SA 341 (A), 2000 (4) SA 1027 (SCA) 224
Adenia Eiendomme (Edms) Bpk v LPD Ondernemings BK [1997] 3 All SA 85 (T) 32
Adfin (Pty) Ltd t/a Rand Trust v Fashion Shoe Centre (Pty) Ltd
[1990] 2 All SA 450 (C), 1990 (4) SA 371 (C) 138
Adlem and another v Arlow [2013] 1 All SA 1 (SCA), 2013 (3) SA 1 (SCA) 237
Administrateur, Natal v Trust Bank van Afrika Bpk
[1979] 2 All SA 270 (A), 1979 (3) SA 824 (A) 163, 263
Administrateur, Transvaal v JD van Niekerk en Genote BK 1995 (2) SA 241 (A) 222
Administrator, Natal v Edouard [1990] 2 All SA 374 (A), 1990 (3) SA 581 (A) 258
Administrator, Orange Free State v Mokopanele
[1990] 2 All SA 430 (A), 1990 (3) SA 780 (A) 378
Advertising Standards Authority v Herbex (Pty) Ltd 2017 (6) SA 354 (SCA) 377
Advtech Resourcing (Pty) Ltd t/a The Communicate Personnel Group v Kuhn
[2007] 4 All SA 1368 (C), 2008 (2) SA 375 (C) 316
Aegis Insurance Co Ltd v Consani NO [1996] 3 All SA 547 (A), 1996 (4) SA 1 (A) 219
Aetiology Today CC v Van Aswegen [1992] 3 All SA 400 (W), 1992 (1) SA 807 (W) 210
Affirmative Portfolios CC v Transnet Ltd t/a Metrorail
[2009] 1 All SA 303 (SCA), 2009 (1) SA 196 (SCA) 90
Afgri Corporation Limited v Eloff and another [2016] ZASCA 141 109
Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd [2002] 3 All SA 369 (A), 2002 (4) SA 681 (SCA)107
African Consolidated Agencies (Pty) Ltd v Siemens Nixdorf Information Systems (Pty) Ltd
[1992] 3 All SA 611 (C), 1992 (2) SA 739 (C) 71
African Dawn Property Finance 2 (Pty) Ltd v Dreams Travel and Tours CC and others
[2011] 3 All SA 345 (SCA), 2011 (3) SA 511 (SCA) 223
African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd
1978 (3) SA 699 (A) 90
African Farms & Townships Ltd v Cape Town Municipality
[1963] 3 All SA 20 (A), 1963 (2) SA 555 (A) 314
African Life Assurance Co Ltd v NBS Bank Ltd
[2000] 1 All SA 545 (W), 2001 (1) SA 432 (W) 66
African Life Property Holdings (Pty) Ltd v Score Food Holdings Ltd 1995 (2) SA 230 (A) 351
African National Congress v Inkatha Freedom Party [1999] 3 All SA 47 (W) 152
African National Congress v Lombo [1997] 1 All SA 697 (A), 1997 (3) SA 187 (A) 377
African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A) 315
Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) 10
Afrisure v Watson [2009] 1 All SA 1 (SCA), 2009 (2) SA 127 (SCA) 91, 120, 187
Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA), 2002 (6) SA 21 (SCA) 119, 165
Agri Eastern Cape v MEC, Department of Roads and Public Works
2017 (3) SA 383 (ECG) 319
Ahmadiyya AAIL (SA) v Muslim Judicial Council (Cape)
[1983] 4 All SA 535 (C), 1983 (4) SA 855 (C) 377
Aida Uitenhage CC v Singapi [1992] 4 All SA 865 (E), 1992 (4) SA 675 (E) 32
Airkel (Edms) Bpk h/a Merkel Motors v Bodenstein
[1980] 2 All SA 388 (A), 1980 (3) SA 917 (A) 285
Airports Company South Africa Soc Limited v Airports Bookshops (Pty) Limited
t/a Exclusive Books [2016] 4 All SA 665 (SCA), 2017 (3) SA 128 (SCA) 238
AJP Properties CC v Sello 2018 (1) SA 535 (GJ) 191
Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd
[2002] 3 All SA 117 (A), 2002 (3) SA 346 (SCA) 311
Aktiebolaget Hässle v Triomed (Pty) Ltd [2002] 4 All SA 138 (A), 2003 (1) SA 155 (SCA) 295
Alberts v Engelbrecht [1961] 2 All SA 611 (T), 1961 (2) SA 644 (T) 376
Albertyn v Kumalo 1946 WLD 529 120
Aldeia v Coutinho 1997 (4) SA 295 (O) 204
Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T) 20
Alex Carriers (Pty) Ltd v Kempston Investments (Pty) Ltd 1998 (1) SA 662 (E) 69
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
[1974] 3 All SA 497 (A), 1974 (3) SA 506 (A) 98, 108
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
[1977] 4 All SA 262 (T), 1977 (4) SA 310 (T) 108, 114
Algoa Milling Co Ltd v Arkell & Douglas 1918 AD 145 123
Aliwal North Municipality v Crawford [1964] 1 All SA 551 (A), 1964 (1) SA 344 (A) 50
Allaclas Investments (Pty) Ltd v Milnerton Golf Club
[2008] 2 All SA 1 (SCA), 2008 (3) SA 134 (SCA) 278
Allie v Foodworld Stores Distribution Centre (Pty) Ltd
[2004] 1 All SA 369 (SCA), 2004 (2) SA 433 (SCA) 208, 210
Alpha Trust (Edms) Bpk v Van der Watt [1975] 4 All SA 61 (A), 1975 (3) SA 734 (A) 334
AlumPhos (Pty) Ltd v Spatz [1997] 1 All SA 616 (W) 93
AM Moolla Group Ltd v GAP Inc [2005] 3 All SA 101 (SCA), 2005 (2) SA 412 (SCA) 359
Amalgamated Banks of South Africa Beperk v De Goede
[1997] 2 All SA 427 (A), 1997 (4) SA 66 (SCA) 81, 248
Amalgamated Beverage Industries Ltd v Rond Vista Wholesalers
[2003] 4 All SA 95 (SCA), 2004 (1) SA 538 (SCA) 102, 109, 269
Amar v Amar [1999] 2 All SA 376 (W), 1999 (3) SA 604 (W) 175
Amardien and others v Registrar of Deeds and others [2017] 2 All SA 431 (WCC) 139
Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk
[1984] 2 All SA 338 (A), 1984 (3) SA 760 (N), 1986 (1) SA 448 (A) 9, 239
Amod v Andrews Bakery (Pty) Ltd [1965] 2 All SA 339 (T), 1965 (2) SA 433 (T) 278
Amod (born Peer) v Multilateral Motor Vehicle
[1999] 4 All SA 421 (A), 1999 (4) SA 1319 (A) 254
Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd
[1995] 2 All SA 463 (A), 1995 (3) SA 42 (A) 68
Andrews v Lidaks [1971] 2 All SA 29 (W), 1971 (1) SA 892 (W) 194
Andy's Electrical v Laurie Sykes (Pty) Ltd [1979] 2 All SA 91 (N), 1979 (3) SA 341 (N) 358
Annex Distribution (Pty) Ltd and others v Bank of Baroda 2018 (1) SA 562 (GP) 63
Aon South Africa (Pty) Ltd v van den Heever NO and others [2017] 3 All SA 365 (SCA) 316
APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) 65, 77
Appleton v Harnischfeger Corporation [1995] 2 All SA 693 (A), 1995 (2) SA 247 (A) 129
Arend v Astra Furnishers (Pty) Ltd [1974] 1 All SA 522 (C), 1974 (1) SA 298 (C) 181
Arendse v Roode [1989] 2 All SA 106 (C), 1989 (1) SA 763 (C) 207
Argus Printing & Publishing Co Ltd v Esselen's Estate
[1994] 2 All SA 160 (A), 1994 (2) SA 1 (A) 152, 154
Argus Printing & Publishing Co Ltd v Inkatha Freedom Party
[1992] 2 All SA 185 (A), 1992 (3) SA 579 (A) 152
Argus Printing & Publishing Co Ltd v Rutland
[1953] 3 All SA 144 (C), 1953 (3) SA 446 (C) 155
Argus Printing & Publishing Co Ltd v Weichardt 1940 CPD 453 154
Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd
[1981] 4 All SA 238 (A), 1981 (3) SA 274 (A) 187
Aris Enterprises (Finance) (Pty) Ltd v Waterberg Koelkamers (Pty) Ltd
1977 (2) SA 425 (A) 283
Arthur v Bezuidenhout & Mieny [1962] 2 All SA 506 (A), 1962 (2) SA 566 (A) 270
ASA Investments (Pty) Ltd v Smit [1980] 1 All SA 443 (C), 1980 (1) SA 897 (C) 353
Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N) 35, 180
Ashton Ins Brokers CC v IMATU [2002] 3 All SA 175 (A) 219
Asmal v Essa [2014] 3 All SA 115 (SCA), 2016 (1) SA 95 (SCA) 134
Aspeling NO v Joubert 1919 AD 167 20
Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd
1982 (3) SA 893 (A) 284, 302
ATB Chartered Accountants (SA) v Bonfiglio [2011] 2 All SA 132 (SCA) 306
Atkinson Oates Motors Ltd v Trust Bank of Africa Ltd
[1977] 3 All SA 411 (W), 977 (3) SA 188 (W) 21
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd
1981 (2) SA 173 (T) 93, 94, 225, 292
ATM Solutions (Pty) Ltd v Olkru Handelaars CC
[2009] 2 All SA 1 (SCA), 2009 (4) SA 337 (SCA) 341
Atteridgeville Town Council v Livanos t/a Livanos Brothers Electrical
[1992] 1 All SA 274 (A), 1992 (1) SA 296 (A) 45
Attorneys Fidelity Fund Board of Control v Mettle Property Finance (Pty) Ltd
[2011] ZASCA 133, 2012 (3) SA 611 (SCA) 243
Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund v Tony Allem (Pty) Ltd
1990 (2) SA 665 (A) 244
Aussenkehr Farms (Pty) Ltd v Trio Transport CC
[2002] 3 All SA 309 (A), 2002 (4) SA 483 (SCA) 72, 307
Automotive Tooling Systems (Pty) Ltd v Wilkens
[2007] 4 All SA 1073 (SCA), 2007 (2) SA 271 (SCA) 93, 318
Avis v Verseput 1943 AD 331 179
Axiam Holdings Ltd v Deloitte & Touche
[2005] 4 All SA 157 (SCA), 2006 (1) SA 237 (SCA) 17, 19
B
B & H Engineering v First National Bank of SA Ltd
[1995] 1 All SA 545 (A), 1995 (2) SA 279 (A) 64, 92, 276
Badenhorst v Marks 1911 TPD 144 228
Badenhorst v Prinsloo [1967] 1 All SA 234 (O), 1967 (1) SA 212 (O) 100
Badenhorst v Van Rensburg [1986] 4 All SA 417 (T), 1985 (2) SA 321 (T) 107
Bailes v Highveld 7 Properties (Pty) Ltd [1998] 3 All SA 205 (N), 1998 (4) SA 42 (N) 36
Baker v Probert [1985] 2 All SA 263 (A), 1985 (3) SA 429 (A) 115, 117
Baking Investments (Pty) Ltd v Britz 1978 (3) SA 1067 (T) 9
Baliso v Firstrand Bank Limited t/a Wesbank
2016 (10) BCLR 1253 (CC), 2017 (1) SA 292 (CC) 139
Balkan Energy Limited and another, Ex parte; In re: Balkan Energy Limited and another v
Government of the Republic of Ghana 2017 (5) SA 428 (GJ) 47
Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA) 139
Banda v Van der Spuy [2013] (4) SA 77 (SCA) 332
Bane and others v D'Ambrosi [2010] 1 All SA 101 (SCA), 2010 (2) SA 539 (SCA) 145
Bank of Lisbon & SA Ltd v De Ornelas [1988] 2 All SA 393 (A), 1988 (3) SA 580 (A) 110
Bank of Lisbon International Ltd v Venter [1990] 2 All SA 14 (A), 1990 (4) SA 463 (A)127, 128
Bank Windhoek Bpk v Rajie [1994] 1 All SA 437 (A), 1994 (1) SA 115 (A) 285
Bannister's Printer (Pty) Limited v D and A Calenders CC and another [2018] ZASCA 17 204
Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W) 208
Barclays National Bank Ltd v Thompson [1989] 1 All SA 447 (A), 1989 (1) SA 547 (A) 6
Barclays National Bank Ltd v Wall [1983] 1 All SA 231 (A), 1983 (1) SA 149 (A) 73
Barclays Western Bank Bpk v Upington Paneelkloppers (Edms) Bpk 1986 (2) SA 409 (NC) 226
Baring Eiendomme BK v Roux [2001] 1 All SA 399 (SCA) 32
Barker NO v Chadwick [1974] 1 All SA 458 (D), 1974 (1) SA 461 (D) 303
Barkhuizen v Forbes 1998 (1) SA 140 (E) 180
Barkhuizen v Napier 2007 (7) BCLR 691 (CC), 2007 (5) SA 323 (CC) 1, 96, 109, 119
Barlows Tractor Co (Pty) Ltd v Townsend [1996] 2 All SA 105 (A), 1996 (2) SA 869 (A) 352
Barnard NO v Road Accident Fund 2017 (1) SA 245 (ECP) 324
Barnett v Abe Swersky & Associates [1986] 2 All SA 450 (C), 1986 (4) SA 407 (C) 126
Barnett v Minister of Land Affairs [2007] ZASCA 95, 2007 (6) SA 313 (SCA) 192, 306
Baron and others v Claytile (Pty) Limited and another
2017 (10) BCLR 1225 (CC), 2017 (5) SA 329 (CC) 191
Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd
[1999] 1 All SA 285 (A), 1999 (1) SA 831 (SCA) 77, 78, 205
Basson v Chilwan [1993] 2 All SA 373 (A), 1993 (3) SA 742 (A) 317
Basson and others v Hanna [2017] 1 All SA 669 (SCA), 2017 (3) SA 22 (SCA) 124, 239
Bayer SA (Pty) Ltd v Frost [1991] 2 All SA 444 (A), 1991 (4) SA 559 (A) 263
BDE Construction v Basfour 3581 (Pty) Ltd 2013 (5) SA 160 (KZP) 45
Be Bop a Lula Manufacturing & Printing CC v Kingtex Marketing (Pty) Ltd
[2008] 1 All SA 529 (SCA), 2008 (2) SA 327 (SCA) 357
Beckenstrater v Rottcher & Theunissen [1955] 1 All SA 146 (A), 1955 (1) SA 129 (A) 255
Beckwith v Foundation Investment Co [1961] 2 All SA 45 (A), 1961 (4) SA 510 (A) 32
Bedford v Uys [1971] 2 All SA 246 (C), 1971 (1) SA 549 (C) 122, 124
Bee v Road Accident Fund [2018] ZASCA 52 199
Beecham Group plc v Southern Transvaal Pharmaceutical Pricing Bureau (Pty) Ltd
1993 (1) SA 546 (A) 361
Beira v RaphaelyWeiner 1997 (4) SA 332 (SCA) 287
Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd
[1996] 1 All SA 509 (C), 1996 (2) SA 537 (C) 103
Bekker v OosVrystaat Kaap Koöperasie Bpk [2000] ZASCA 175, [2000] 3 All SA 301 (A)120
Bekker v Schmidt Bou Ontwikkelings CC [2007] 4 All SA 1231 (C), 2007 (1) SA 600 (C) 97
Bell v Road Accident Fund 2007 (6) SA 48 (SCA) 322
Bellairs v Hodnett 1978 (1) SA 1109 (A) 4, 116, 203, 302
Benede Sand Boerdery (Edms) Bpk v Virginia Munisipaliteit
[1992] 2 All SA 264 (A), 1992 (4) SA 176 (A) 200
Benefit Cycle Works v Atmore 1927 TPD 524 107
Benjamin v Gurewitz [1973] 1 All SA 401 (A), 1973 (1) SA 418 (A) 310
Bennett v Minister of Police [1980] 3 All SA 817 (C), 1980 (3) SA 24 (C) 57, 207, 208
Benoni Town Council v Minister of Agricultural Credit & Land Tenure
[1978] 2 All SA 283 (T), 1978 (1) SA 978 (T) 180
Benson v Robinson & Co (Pty) Ltd [1967] 1 All SA 476 (A), 1967 (1) SA 420 (A) 160
Benson v SA Mutual Life Assurance Society [1986] 2 All SA 30 (A),
1986 (1) SA 776 (A) 124
Benson v Walters [1984] 1 All SA 283 (A), 1984 (1) SA 73 (A) 242, 250, 306
Bergkelder v Delheim Wines (Pty) Ltd [1980] 4 All SA 542 (C), 1980 (3) SA 1171 (C) 291
Berman v Teiman [1975] 1 All SA 45 (W), 1975 (1) SA 756 (W) 35
Berman & Fialkov v Lumb [2002] 4 All SA 432 (C), 2003 (2) SA 677 (C) 242
Berman Bros (Pty) Ltd v Sodastream Ltd [1986] 2 All SA 252 (A),
1986 (3) SA 209 (A) 292, 361
The 'Berny' [1977] 2 Lloyd's Rep. 533 24
Bertelsmann v Per 1996 (2) SA 375 (T) 142
Bester v Van Niekerk [1960] 2 All SA 512 (A), 1960 (2) SA 779 (A) 286
Bester v Van Zyl [1972] 4 All SA 423 (T), 1972 (4) SA 580 (T) 238
Bester NO and others v Schmidt Bou Ontwikkelings CC 2013 (1) SA 125 (SCA) 306
Bestuursraad van Sebokeng v M&K Trust & Finansiële Maatskappy (Edms) Bpk
1973 (3) SA 376 (A) 199
Beukes v Claassen [1986] 2 All SA 90 (O), 1986 (4) SA 495 (O) 72
Beurain h/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921 (O) 270
Bezuidenhout v Otto 1996 (3) SA 339 (W) 108
Bezuidenhout NO v Eskom [2003] 1 All SA 411 (SCA), 2003 (3) SA 83 (SCA) 371
Bhe and others v Khayelitsha Magistrate and others
2005 (1) BCLR 1 (CC), 2005 (1) SA 580 (CC) 141
Bhyat's Departmental Store (Pty) Ltd v Dorklerk Investments (Pty) Ltd
1975 (4) SA 881 (A) 120
Bidoli v Bidoli and another 2011 (5) SA 247 (SCA) 46
Big Dutchman (SA) (Pty) Ltd v Barclays National Bank Ltd
[1979] 1 All SA 89 (W), 1979 (3) SA 267 (W) 62
Big Five Duty Free (Pty) Limited v Airports Company South Africa Limited and others
[2017] 4 All SA 295 (SCA) 338
Biotech Laboratories (Pty) Ltd v Beecham Group PLC
[2002] 3 All SA 652 (A), 2002 (4) SA 249 (SCA) 130
Bird v Sumerville [1961] 3 All SA 335 (A), 1961 (3) SA 194 (A) 32
Birkenruth Estates (Pty) Ltd v Unitrans Motors (Pty) Ltd
[2005] 3 All SA 128 (W), 2005 (3) SA 54 (W) 114, 268
Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd 1991 (1) SA 482 (A) 234
Bisschop v Stafford [1974] 3 All SA 293 (A), 1974 (3) SA 1 (A) 303
Bitou Municipality v Booysen 2011 (5) SA 31 (WCC) 152
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
[1979] 3 All SA 166 (A), 1979 (1) SA 391 (A) 96, 98, 99, 193
Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
[2004] 1 All SA 129 (SCA), 2004 (3) SA 160 (SCA) 308
Blackie Swart Argitekte v Van Heerden [1986] 1 All SA 373 (A), 1986 (1) SA 249 (A) 187, 358
BlaikieJohnstone v P Hollingsworth (Pty) Ltd
[1974] 3 All SA 405 (D), 1974 (3) SA 392 (D) 315
Blakes Maphanga Incorporated v Outsurance Insurance Company Ltd
[2010] 3 All SA 383 (SCA), 2010 (4) SA 232 (SCA) 242
Blanchard, Krasner & French v Evans 2004 (4) SA 427 (W) 230
Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) 339
Blower v Van Noorden 1909 TS 890 29
Blue Chip 2 (Pty) Ltd t/a Blue Chip 49 v Ryneveldt
(National Credit Regulator as amicus curiae) 2016 (6) SA 102 (SCA) 139
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd
[2001] 4 All SA 235 (A), 2001 (3) SA 884 (SCA) 292, 293, 360, 367
Blyth v Van den Heever [1980] 1 All SA 148 (A), 1980 (1) SA 191 (A) 258
BMW AG v Grandmark International (Pty) Ltd 2014 (1) SA 323 (SCA) 168
Bocimar NV v Kotor Overseas Shipping Ltd 1994 (2) SA 563 (A) 23
Bock v Duburoro Investments (Pty) Ltd
[2003] 4 All SA 103 (SCA), 2004 (2) SA 242 (SCA) 300, 352
BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) 181, 365
BOE Bank Ltd v Bassage [2006] 4 All SA 105 (SCA), 2006 (5) SA 33 (SCA) 352
BOE Bank Ltd v Ries [2002] 2 All SA 247 (A), 2002 (2) SA 39 (SCA) 245
Boland Bank Bpk v Steele [1994] 1 All SA 54 (T), 1994 (1) SA 259 (T) 355
Bonnet v Department of Agricultural Credit & Land Tenure
[1974] 1 All SA 18 (T), 1974 (3) SA 737 (T) 200
Boompret Investments (Pty) Ltd v Paardekraal Concession Store (Pty) Ltd
1990 (1) SA 347 (A) 190
Bopape v Moloto [1999] 4 All SA 277 (T), 2000 (1) SA 383 (T) 180
Borcherds v Estate Naidoo [1955] 2 All SA 359 (A), 1955 (3) SA 78 (A) 148
Born Free Investments 364 (Pty) Ltd v Firstrand Bank Ltd [2014] 2 All SA 127 (SCA) 71
Borstlap v Spangenberg [1974] 4 All SA 25 (A), 1974 (3) SA 695 (A) 378
Bosch Munitech (Pty) Ltd v Govan Mbeki Municipality [2015] 4 All SA 674 (GP) 106
Boshoff v Union Government 1932 TPD 345 190
Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd
[1984] 3 All SA 13 (SWA), 1984 (2) SA 24 (SWA) 69, 99
Bosman NO v Tworeck 2000 (3) SA 590 (C) 342
Botes NO v Shamley [2007] 4 All SA 731 (SE) 277
Botha v Andrade [2009] 1 All SA 436 (SCA), 2009 (1) SA 259 (SCA) 278
Botha v Coopers & Lybrand [2002] ZASCA 47, 2002 (5) SA 347 (SCA) 16
Botha v Fick [1995] 2 All SA 78 (A), 1995 (2) SA 750 (A) 71
Botha v Giyose t/a Paragon Fisheries [2007] ZASCA 73 27
Botha v Guardian Assurance Co Ltd 1949 (2) SA 223 (G) 346
Botha v Mazeka [1981] 4 All SA 232 (A), 1981 (3) SA 191 (A) 285
Botha v Potch Motors (Edms) Bpk 1963 (1) SA 279 (T) 139
Botha v Rich 2014 (7) BCLR 741 (CC), 2014 (4) SA 124 (CC) 103, 127
Botha v Road Accident Fund 2017 (2) SA 50 (SCA) 242, 266, 338
Botha v Smit [1976] 4 All SA 587 (A), 1976 (4) SA 885 (A) 32
Botha (now Griessel) v Finanscredit (Pty) Ltd
[1989] 2 All SA 401 (A), 1989 (3) SA 773 (A) 128
Botha NO v EM Mchunu & Co [1992] 2 All SA 427 (N), 1992 (4) SA 740 (N) 250
Botha and another v Rich NO and others
2014 (4) SA 124 (CC), 2014 (7) BCLR 741 (CC) 335, 356
Boundary Financing Ltd v Protea Property Holdings (Pty) Ltd
[2009] 2 All SA 7 (SCA), 2009 (3) SA 447 (SCA) 306
Bouwer v Adelford Motors (Pty) Ltd [1970] 4 All SA 263 (E), 1970 (4) SA 286 (E) 196
Bouwer v Stadsraad van Johannesburg 1979 (3) SA 37 (A) 356
Bowater v Rowley Regis Corp 1944 1 KB 476 376
Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd
[1996] 1 All SA 383 (T), 1996 (2) SA 393 (T) 271
Bowman NO and others v Fidelity Bank Ltd
[1997] 1 All SA 317 (A), 1997 (2) SA 35 (A) 89, 90, 92
Boyce NO v Bloem [1960] 3 All SA 574 (T), 1960 (3) SA 855 (T) 84, 276
BR and another v TM; In re: LR [2015] 4 All SA 280 (GJ) 170
Braun Medical (Pty) Ltd v Ambasaam CC 2015 (3) SA 22 (SCA) 313
Brayshaw v Schoeman [1960] 1 All SA 448 (A), 1960 (1) SA 625 (A) 32
Brayton Carlswald (Pty) Ltd and another v Brews 2017 (5) SA 498 (SCA) 70
Braz v Afonso [1997] 4 All SA 428 (SCA), 1998 (1) SA 573 (SCA) 74
Bredenkamp and others v Standard Bank of SA Ltd 2010 (9) BCLR 892 (SCA),
[2010] 4 All SA 113 (SCA), 2010 (4) SA 468 (SCA) 62, 63, 109, 110, 119
Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A) 204, 210
Brenner v Botha [1956] 3 All SA 407 (T), 1956 (3) SA 257 (T) 207
Brett v Schultz [1982] 4 All SA 195 (SE), 1982 (3) SA 286 (SE) 158
Brink v Humphries & Jewell (Pty) Ltd
[2005] 2 All SA 343 (SCA), 2005 (2) SA 419 (SCA) 265, 352
Brisley v Drotsky [2002] 3 All SA 363 (SCA), 2002 (4) SA 1 (SCA) 119
Brits v Coetzee [1967] 3 All SA 353 (T), 1967 (3) SA 570 (T) 238
Brodsky Trading 224CC v Cronimet Chrome Mining SA (Pty) Ltd and others
2017 (4) SA 610 (SCA) 31
Brompton Court Body Corporate v Khumalo 2018 (3) SA 347 (SCA) 46
Broodie NO v Maposa and others 2018 (3) SA 129 (WCC) 180
Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons
[1970] 3 All SA 332 (A), 1970 (3) SA 264 (A) 249
Brooks v Min of Safety & Security [2009] 2 All SA 17 (SCA), 2009 (2) SA 94 (SCA) 254
Broude v McIntosh [1998] 2 All SA 555 (SCA), 1998 (3) SA 60 (SCA) 257
Brouze v Wenneni Investments [2015] 4 All SA 543 (SCA) 263
Brown v Hoffman [1977] 2 All SA 517 (NC), 1977 (2) SA 556 (NC) 57, 59
Brown v Vlok 1925 AD 56 5
Brown v Yebba CC t/a Remax Tricolor 2009 (1) SA 521 (D) 13
Bruce NO v Berman [1963] 3 All SA 181 (T), 1963 (3) SA 21 (T) 245
Brummer v Gorfil Brothers Investments (Pty) Ltd
[1999] 2 All SA 127 (SCA), 1999 (3) SA 389 (SCA) 71
BSB International Link CC v Readam SA (Pty) Ltd 2016 (4) SA 83 (SCA) 279
Buildcure CC v Brews and others [2017] 3 All SA 843 (GJ), 2017 (6) SA 562 (GJ) 46
Burg Trailers SA (Pty) Ltd v ABSA Bank Ltd [2003] ZASCA 55, 2004 (1) SA 284 (SCA)63, 73
Burger v Rand Water Board 2007 (1) SA 30 (SCA) 80
Burley Appliances Ltd v Grobbelaar NO [2003] 3 All SA 505 (C), 2004 (1) SA 602 (C) 21, 83
Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
1976 (2) SA 930 (A) 291
Business Aviation Corp (Pty) Ltd v Rand Airport Holdings (Pty) Ltd
[2007] 1 All SA 421 (SCA), 2006 (6) SA 605 (SCA) 240
Busuku v Road Accident Fund [2016] 3 All SA 498 (ECM), 2017 (1) SA 71 (ECM) 323
Buthelezi v South African Broadcasting Corporation
[1998] 1 All SA 147 (D), 1997 (12) BCLR 1733 (D) 157
Butters v Mncora [2012] 2 All SA 485 (SCA), 2012 (4) SA 1 (SCA) 286
Buttner v Buttner [2006] 1 All SA 429 (SCA), 2006 (3) SA 23 (SCA) 174
Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd
[1996] 3 All SA 1 (A), 1996 (4) SA 19 (SCA) 89, 90, 249
C
C & T Products (Pty) Ltd v MH Goldschmidt (Pty) Ltd
[1981] 4 All SA 324 (C), 1981 (3) SA 619 (C) 223
Cadac (Pty) Ltd v WeberStephen Products Company and others
[2011] 1 All SA 343 (SCA), 2011 (3) SA 570 (SCA) 131, 146, 308, 359
Caesarstone SdotYam Ltd v The World of Marble and Granite 2000 CC and others
[2013] 4 All SA 509 (SCA), 2013 (6) SA 499 (SCA) 250, 251, 314
Caldeira v Ruthenberg [1999] 1 All SA 519 (A), 1999 (4) SA 37 (SCA) 188
CalderPotts v McMillan [1956] 2 All SA 202 (E), 1956 (3) SA 360 (E) 29
Caledon & SuidWestelike Distrikte EksekuteursKamer Bpk v Wentzel
[1972] 1 All SA 347 (A), 1972 (1) SA 270 (A) 285
California Spice and Marinade (Pty) Ltd in re: Bankorp v California Spice and
Marinade (Pty) Ltd; Fair O'Rama Property Investments CC; Tsaperas; and Tsaperas
[1997] 4 All SA 317 (W) 85
Callinicos v Burman [1963] 1 All SA 580 (A), 1963 (1) SA 489 (A) 163, 347, 348
Cambridge Plan AG v Moore [1987] 1 All SA 123 (D), 1987 (4) SA 821 (D) 93
Campbell v Botha 2009 (1) SA 238 (SCA) 256
Cape Empowerment Trust Limited v Fisher Hoffman Sithole
[2013] 2 All SA 629 (SCA), 2013 (5) SA 183 (SCA) 15, 17, 263
Cape Group Construction (Pty) Ltd t/a Forbes Waterproofing v Government of the
United Kingdom [2003] 3 All SA 496 (SCA), 2003 (5) SA 182 (SCA) 165
Cape Metropolitan Council v Graham
[2001] 1 All SA 215 (A), 2001 (1) SA 1197 (SCA) 270, 346
Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd
[1995] 2 All SA 543 (A), 1995 (4) SA 790 (A) 86
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO
[2001] 1 All SA 627 (W), 2001 (2) SA 182 (W) 125
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO [2002] ZASCA 23, 2002 (3) SA 752 (SCA) 350
Cape Town Council v Benning 1917 AD 315 381
Cape Town Municipality v Bakkerud [2000] 3 All SA 171 (A), 2000 (3) SA 1049 (SCA) 164, 345
Capespan (Pty) Ltd v Any Name 451 (Pty) Ltd 2008 (4) SA 513 (C) 71
Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc
[1977] 3 All SA 306 (A), 1977 (2) SA 916 (A) 290, 291, 292
Capricorn Beach Home Owners Association v HES Potgieter t/a Nilands and another
2014 (1) SA 46 (SCA) 243, 337
Cargo laden and lately laden on board the MV Thalassini Avgi v MV Dimitris
1989 (3) SA 820 (A) 23
Carlis v McCusker 1904 TS 917 91
Carmel Trading Co Ltd v Commissioner, SA Revenue Service
[2008] 2 All SA 125 (SCA), 2008 (2) SA 433 (SCA) 287
Carmichele v Minister of Safety and Security
2001 (10) BCLR 995 (CC), 2001 (4) SA 938 (CC) 56, 57, 163, 343
Cash Converters Southern Africa (Pty) Ltd v Rosebud Western Province Franchise (Pty) Ltd
[2002] 3 All SA 435 (A), 2002 (5) SA 494 (SCA) 102
Castell v De Greef 1993 (3) SA 501 (C), 1994 (4) SA 408 (C) 258
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
[1998] 3 All SA 175 (A), 1998 (3) SA 938 (SCA) 106, 290, 291, 293
Caxton Ltd v Reeva Forman (Pty) Ltd [1990] 2 All SA 300 (A), 1990 (3) SA 547 (A) 151, 156
CC v MVC [2013] 4 All SA 327 (GSJ) 175
Cecilia Goliath v Member of the Executive Council for Health, Eastern Cape
[2014] ZASCA 182 259
Cele v Acusa Media Ltd [2013] 2 All SA 412 (GSJ) 153
Cele v Minister of Safety and Security [2007] 3 All SA 365 (D) 54
Cell C (Pty) Ltd v Zulu [2006] 4 All SA 417 (SCA), 2008 (1) SA 451 (SCA) 102, 109
Century City Apartments Property Services CC v Century City Property Owners' Association
[2010] 2 All SA 409 (SCA), 2010 (3) SA 1 (SCA) 362
Cerebos Food Corp Ltd v Diverse Foods SA (Pty) Ltd 1984 (4) SA 149 (T) 20
Certain Underwriters of Lloyds of London v Harrison 2004 (2) SA 446 (SCA)
(also reported as Lloyds of London, Certain Underwriters of v Harrison
[2003] ZASCA 83) 205, 217
CGEE Alsthom Equipments et Enterprises Electriques v GKN Sankey (Pty) Ltd
[1987] 3 All SA 619 (A), 1987 (1) SA 81 (A) 105
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd
[2003] 2 All SA 597 (SCA), 2004 (2) SA 622 (SCA) 308
Chamotte (Pty) Ltd v Carl Coetzee (Pty) Ltd
[1973] 1 All SA 636 (A), 1973 (1) SA 644 (A) 97
Chapeikin and another v Mini [2016] ZASCA 105 258
Chapman Dyer Miles & Moorhead Inc v Highmark Investment Holdings CC
[1997] 4 All SA 247 (D), 1998 (3) SA 608 (D) 242
Chapmans Peak Hotel (Pty) Ltd v South Peninsula Municipality [1998] 4 All SA 619 (C) 338
Chartaprops 16 (Pty) Ltd v Silberman [2009] 1 All SA 197 (SCA), 2009 (1) SA 265 (SCA)372
Chestnut Hill Investments 150 (Pty) Ltd v 169 Stamford Hill Road [2007] 2 All SA 71 (D) 38
Chetty v Hart [2015] 4 All SA 401 (SCA), 2015 (6) SA 424 (SCA) 43
Chetty v Italtile Ceramics Ltd 2013 (3) SA 374 (SCA) 88
Chetty v Naidoo [1974] 3 All SA 304 (A), 1974 (3) SA 13 (A) 372, 373, 374
Chevron SA (Pty) Ltd v Wilson t/a Wilson's Transport and others
2015 (10) BCLR 1158 (CC) 119, 136
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 232, 233
Chipkin (Natal) (Pty) Ltd v Commissioner, SARS
[2005] 3 All SA 26 (SCA), 2005 (5) SA 566 (SCA) 286
Chretien and another v Bell [2010] 2 All SA 428 (SCA), 2011 (1) SA 54 (SCA) 35, 328
Christelis NO v Meyer NO [2014] ZASCA 53 88
Chrysafis v Katsapas [1988] 2 All SA 605 (A), 1988 (4) SA 818 (A) 84, 127
CibaGeigy (Pty) Ltd v Lushof Farms (Pty) Ltd
[2002] 2 All SA 525 (A), 2002 (2) SA 447 (SCA) 330
Ciliza v Minister of Police [1976] 4 All SA 64 (N), 1976 (4) SA 243 (N) 208
Cillie v Geldenhuys [2008] 3 All SA 507 (SCA), 2009 (2) SA 325 (SCA) 303, 304, 380
Cipla Medpro (Pty) Ltd v Aventis Pharma SA
(Treatment Action Campaign as amicus curiae) 2013 (4) SA 579 (SCA) 295
Citibank NA, SA Branch v Paul NO [2003] 2 All SA 484 (T), 2003 (4) SA 180 (T) 116
City Council of Pretoria v De Jager [1997] 1 All SA 635 (A), 1997 (2) SA 46 (SCA) 270
City Council of the City of Durban v Rumdel Construction (Pty) Ltd
[1997] 3 All SA 20 (D) 311
City of Cape Town v Helderberg Park Development (Pty) Ltd
[2007] 1 All SA 517 (SCA), 2007 (1) SA 1 (SCA) 198, 199
City of Cape Town v Mgoqi 2006 (4) SA 355 (C) 10
City of Cape Town v Rudolph [2003] 3 All SA 517 (C), 2004 (5) SA 39 (C) 342
CJ Mathebula t/a Nxolwane Bottle Store v University of the North
[1998] 3 All SA 477 (T) 190
Claasen v Bester 2012 (2) SA 404 (SCA) 306
Classen v Ann Fenwick Eiendomme Bpk 1996 (2) SA 99 (O) 127
Claude Neon Lights (SA) Ltd v Daniel [1976] 4 All SA 387 (A), 1976 (4) SA 403 (A) 29
Clegg v Groenewald 1970 (3) SA 90 (C) 105
Clements v Simpson [1971] 3 All SA 196 (A), 1971 (3) SA 1 (A) 35, 328
Clifford v Farinha [1988] 4 All SA 673 (W), 1988 (4) SA 315 (W) 88
Clipsal Australia (Pty) Ltd v Trust Electrical Wholesalers
[2007] 4 All SA 1082 (SCA), 2009 (3) SA 292 (SCA) 168, 169
Cloete v KareeAar Landgoed Bpk [1997] 2 All SA 700 (NC), 1997 (3) SA 30 (NC) 319
Cloete v Maritz 2013 (5) SA 448 (WCC) 96
Cochrane v The City of Johannesburg [2010] JOL 25952 (GSJ), 2011 (1) SA 553 (GSJ) 344
Cochrane Steel Products (Pty) Ltd v MSystems Group (Pty) Ltd and another
[2016] 3 All SA 345 (SCA), 2016 (6) SA 1 (SCA) 361
Cockroft v Baxter [1955] 4 All SA 184 (C), 1955 (4) SA 93 (C) 262, 264
Coertzen v Gerrard NO 1997 (2) SA 836 (O) 180
Coetzee v Coetzee [2016] 4 All SA 404 (WCC) 228
Coetzee v De Beer 1959 (1) SA 690 (T) 319
Coetzee (Sheriff, Pretoria East) v Meevis [2001] 1 All SA 10 (A), 2001 (3) SA 454 (SCA) 256
Coetzee & Sons v Smit [1955] 3 All SA 108 (A), 1955 (2) SA 553 (A) 39, 40
Coetzer v Mosenthals Ltd [1963] 3 All SA 484 (A), 1963 (4) SA 22 (A) 26
Coface South Africa Insurance Co Ltd v East London Own Haven t/a
Own Haven Housing Association [2014] 1 All SA 536 (SCA), 2014 (2) SA 382 (SCA) 100
Cohen Lazar & Co v Gibbs 1922 TPD 146 256
Colin v De Guisti [1975] 4 All SA 319 (NC), 1975 (4) SA 223 (NC) 97
Colt Motors (Edms) Bpk v Kenny [1987] 3 All SA 229 (T), 1987 (4) SA 378 (T) 205
Columbus Joint Venture v ABSA Bank Ltd [2002] 1 All SA 105 (SCA), 2002 (1) SA 90 (SCA) 65
Combined Business Solutions CC v Courier and Freight Group (Pty) Ltd t/a XPS
[2011] 1 All SA 10 (SCA) 114, 115
Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) 10
Command Protection Services (Gauteng) (Pty) Ltd t/a Maxi Security v
South African Post Office Limited [2013] 1 All SA 266 (SCA), 2013 (2) SA 133 (SCA) 105
Commercial Auto Glass (Pty) Ltd v Bayerische Motoren Werke Aktiengesellschaft
[2007] 4 All SA 1331 (SCA), 2007 (6) SA 637 (SCA) 361
Commercial Careers College (Pvt) Ltd v Forest View (Pvt) Ltd 1979 (2) SA 402 (RA) 239
Commercial Union Assurance Company of South Africa Ltd v
Kwazulu Finance and Investment Corporation and another 1995 (3) SA 751 (A) 220
Commercial Union Ins Co of SA Ltd v Wallace NO; Santam Ins Ltd v
Afric Addressing (Pty) Ltd 2004 (1) SA 326 (SCA) 217
Commercial Union Trade Finance v Republic Bottlers of SA (Pty) Ltd t/a
Booth's Bottle Store 1992 (4) SA 728 (D) 74
Commissioner for Customs & Excise v Standard General Ins Co Ltd
2001 (1) SA 978 (SCA) 304
Commissioner for Inland Revenue v Bowman NO [1990] ZASCA 28, 1990 (3) SA 311 (A)212
Commissioner for Inland Revenue v First National Industrial Bank Ltd
[1990] 2 All SA 327 (A), 1990 (3) SA 641 (A) 91, 182
Commissioner for SARS v NWK Ltd
[2011] 2 All SA 347 (SCA), 2011 (2) SA 67 (SCA) 339, 340
Commissioner of Customs & Excise v Bank of Lisbon International Ltd
1994 (1) SA 205 (N) 22
Commissioner, SA Revenue Service v Absa Bank Ltd 2003 (2) SA 96 (W) 22
Commissioner, South African Revenue Service v Bosch and another
[2015] 1 All SA 1 (SCA), 2015 (2) SA 174 (SCA) 339, 340
Communication Workers Union v Telkom SA Ltd
[1999] 2 All SA 113 (T), 1999 (2) SA 586 (T) 233, 235
Community Development Board v Mahomed NNO
[1987] 1 All SA 228 (A), 1987 (2) SA 899 (A) 200
Compagnie Interafricaine de Travaux v SA Transport Services
[1991] 2 All SA 155 (A), 1991 (4) SA 217 (A) 150
Concor Construction (Cape) (Pty) Ltd v Santambank Ltd
[1993] 2 All SA 496 (A), 1993 (3) SA 930 (A) 285, 373
Concor Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
[2004] 4 All SA 589 (SCA), 2004 (6) SA 491 (SCA) 188
Cone Textiles (Pvt) Ltd v Mather & Platt (SA) (Pty) Ltd
[1981] 4 All SA 346 (ZA), 1981 (3) SA 565 (ZA) 51
Conress (Pty) Ltd v Gallic Construction (Pty) Ltd
[1981] 3 All SA 337 (W), 1981 (3) SA 73 (W) 45
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd
[2002] 1 All SA 517 (C), 2002 (2) SA 580 (C) 9
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd
[2004] 1 All SA 1 (SCA), 2005 (6) SA 1 (SCA) 331
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd (2)
[2005] 4 All SA 517 (C), 2005 (6) SA 23 (C) 104
Consolidated Frame Cotton Corp Ltd v Sithole [1985] 1 All SA 183 (N), 1985 (2) SA 18 (N)28
Constantia Graswerke BK v Snyman 1996 (4) SA 117 (W) 107
Constantia Insurance Co Ltd v Nohamba [1986] 2 All SA 312 (A), 1986 (3) SA 27 (A) 5
Continental Illinois National Bank & Trust Co of Chicago v Greek Seamen's Pension Fund
1989 (2) SA 515 (D) 27
Continental Linen Co (Pty) Ltd v Kenpet Agency (Pty) Ltd
[1986] 4 All SA 437 (T), 1986 (4) SA 703 (T) 295
Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd
[2003] 1 All SA 267 (SCA), 2003 (2) SA 253 (SCA) 300
Cool Ideas 1186 CC v Hubbard and another
2014 (8) BCLR 869 (CC), [2014] ZACC 16, 2014 (4) SA 474 (CC) 46, 49, 97, 119, 120
Cooper NO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) 212
Cooper NO v South African Mutual Life Assurance Society
[2001] 1 All SA 355 (A), 2001 (1) SA 967 (SCA) 85
Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[2006] 1 All SA 103 (SCA), 2005 (6) SA 205 (SCA) 334
Corlett Drive Estates v Boland Bank Bpk [1979] 1 All SA 346 (C), 1979 (1) SA 863 (C) 227
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982 (4) SA 371 (D) 162, 166
Coughlan NO v Road Accident Fund
2015 (6) BCLR 676 (CC), [2015] ZACC 10, 2015 (4) SA 1 (CC) 253, 254, 321
Country Cloud Trading CC v MEC, Department of Infrastructure Development
[2014] 1 All SA 267 (SCA), 2014 (2) SA 214 (SCA) 313
Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng
2014 (12) BCLR 1397 (CC), 2015 (1) SA 1 (CC) 162, 164, 225
Courtis Rutherford & Sons CC v Sasfin (Pty) Ltd [1999] 3 All SA 639 (C) 127
CourtneyClarke v Bassingthwaighte [1991] 3 All SA 625 (Nm), 1991 (1) SA 684 (Nm) 204
Cowley v Hahn [1987] 1 All SA 23 (E), 1987 (1) SA 440 (E) 126
Cradle City (Pty) Ltd v Lindley Farm 528 (Pty) Ltd 2018 (3) SA 65 (SCA) 193, 333
Crawford v Albu 1917 AD 102 159
Credit Corporation of SA Ltd v Roy [1966] 1 All SA 114 (D), 1966 (1) SA 12 (D) 252
Credit Corporation of SA Ltd v Swart [1959] 1 All SA 452 (O), 1959 (1) SA 555 (O) 139
Crest Enterprises (Pty) Ltd v Rycklof Beleggings (Edms) Bpk
[1972] 3 All SA 152 (A), 1972 (2) SA 863 (A) 103
Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie NoordTransvaal
1972 (1) SA 376 (A) 54
Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) 328, 356
Crookes NO v Watson [1956] 1 All SA 227 (A), 1956 (1) SA 277 (A) 125
Crookes Brothers Limited v Regional Land Claims Commission for the Province of
Mpumalanga and others [2013] 2 All SA 1 (SCA), 2013 (2) SA 259 (SCA) 222, 268
Crots v Pretorius 2010 (6) SA 512 (SCA), [2011] 3 All SA 10 (SCA) 88, 153
Cuba NO and others v Holoquin Global (Pty) Ltd and others [2016] 4 All SA 77 (GJ) 79, 263
Cullen v Zuidema [1951] 4 All SA 81 (C), 1951 (3) SA 817 (C) 329, 331
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koop Bpk
[1972] 2 All SA 1 (A), 1972 (1) SA 761 (A) 25, 27, 70, 72
Culverwell v Brown [1990] 1 All SA 253 (A), 1990 (1) SA 7 (A) 124
Cumes v Estate Cumes [1950] 1 All SA 77 (C), 1950 (2) SA 15 (C) 147
Custom Credit Corp (Pty) Ltd v Shembe
[1972] 3 All SA 489 (A), 1972 (3) SA 462 (A) 2, 104, 315
D
D & H Piping Systems (Pty) Ltd v Trans Hex Group Ltd
[2006] 3 All SA 309 (SCA), 2006 (3) SA 593 (SCA) 330
D Glaser & Sons (Pty) Ltd v The Master NO [1979] 2 All SA 247 (C), 1979 (4) SA 780 (C)250
DJay Corporation CC v Investor Management Services (Pty) Ltd
[1996] 4 All SA 650 (W), 2000 (2) SA 755 (W) 9
Da Silva v CH Chemicals (Pty) Ltd [2009] 1 All SA 216 (SCA), 2008 (6) SA 620 (SCA) 203
Da Silva v Coetzee [1970] 4 All SA 46 (T), 1970 (3) SA 603 (T) 40, 41
Da Silva v Coutinho [1971] 3 All SA 264 (A), 1971 (3) SA 123 (A) 163, 347, 348
Da Silva v Janowski [1982] 1 All SA 43 (A), 1982 (3) SA 205 (A) 28, 107
Da Silva v Otto [1986] 3 All SA 448 (T), 1986 (3) SA 538 (T) 40
DA Ungaro & Sons (Pty) Ltd v ABSA Bank Ltd [2015] 4 All SA 783 (GJ) 64
Dabelstein v Lane and Fey NNO [2001] 1 All SA 532 (SCA), 2001 (1) SA 1222 (SCA) 211
Daewoo Heavy Industries (SA) (Pty) Ltd v Banks
[2004] 2 All SA 530 (C), 2004 (4) SA 458 (C) 203
Dale v Fun Furs (Pty) Ltd [1968] 3 All SA 314 (O), 1968 (3) SA 264 (O) 378
Dali v Government of the Republic of South Africa
[2000] 3 All SA 206 (A), [2000] ZASCA 30 3, 89, 91, 349
Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd
[1979] 1 All SA 399 (A), 1979 (2) SA 56 (A) 98, 99, 194
Damont NO v Van Zyl [1962] 3 All SA 429 (C), 1962 (4) SA 47 (C) 252
Daniels v Campbell NO and others 2004 (5) SA 331 (CC) 176
Danielson v Human 2017 (1) SA 141 (WCC) 229
Dantex Investment Holdings (Pty) Ltd v Brenner NNO
[1989] 1 All SA 411 (A), 1989 (1) SA 390 (A) 204, 364
Dass v Lowewest Trading (Pty) Ltd 2011 (1) SA 48 (KZD) 106
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd
[2001] 1 All SA 581 (A), 2001 (2) SA 284 (SCA) 102, 103, 313
Dauth v Minister of Safety and Security 2009 (1) SA 189 (NC) 343
Dave v Birrell 1936 TPD 192 97
Davehill (Pty) Ltd v Community Development Board
[1988] 1 All SA 388 (A), 1988 (1) SA 290 (A) 200, 223
Davenport Corner Tea Room (Pty) Ltd v Joubert
[1962] 3 All SA 45 (D), 1962 (2) SA 709 (D) 332
David Beckett Construction (Pty) Ltd v Bristow [1987] 3 All SA 25 (W),
1987 (3) SA 275 (W) 5
David Trust v Aegis Insurance Co Ltd [2000] 2 All SA 297 (A), 2000 (3) SA 289 (SCA) 25
Davies v Lombard [1966] 1 All SA 177 (W), 1966 (1) SA 585 (W) 3, 160
Davis v Pietermaritzburg City Council [1989] 2 All SA 379 (A), 1989 (3) SA 765 (A) 200
DE v RH 2015 (5) SA 83 (CC), 2015 (9) BCLR 1003 (CC) 207
De Aguiar v Real People Housing (Pty) Ltd
[2010] 4 All SA 459 (SCA), 2011 (1) SA 16 (SCA) 240, 249
De Beer v Keyser [2002] 1 All SA 368 (A), 2002 (1) SA 827 (SCA) 110
De Beer v Rondalia Versekeringskorp van SA Bpk 1971 (3) SA 614 (O) 355
De Beer v Van der Merwe 1923 AD 378 369
De Charmoy v Day Star Hatchery (Pty) Ltd [1967] 2 All SA 208 (D), 1967 (4) SA 188 (D)278
De Franca v Exhaust Pro CC (De Franca intervening)
[1996] 4 All SA 503 (SE), 1997 (3) SA 878 (SE) 82
De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A), 2001 (3) SA 537 (SCA) 119, 308, 379
De Jager v Grunder [1964] 2 All SA 17 (A), 1964 (1) SA 446 (A) 179, 205
De Jongh v Du Pisanie NO [2004] 2 All SA 565 (SCA), 2005 (5) SA 457 (SCA) 145
De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA), [2003] 1 All SA 651 (SCA) 145
De Klerk v Minister of Police [2018] ZASCA 45 54
De Klerk v Old Mutual Insurance Co Ltd [1990] 1 All SA 371 (E), 1990 (3) SA 34 (E) 188
De La Rey's Transport (Edms) Bpk v Lewis [1978] 2 All SA 258 (A), 1978 (1) SA 797 (A) 144
De Pinto v Rensea Investments (Pty) Ltd 1977 (2) SA 1000 (A), 1977 (4) SA 529 (A) 146
De Sousa and another v Technology Corporate Management (Pty) Ltd and others
[2017] 3 All SA 47 (GJ) 85
De Villiers v Galloway 1943 AD 439 380
De Villiers v Schutte 2001 (3) SA 834 (C) 153
De Wet v Western Bank Ltd [1977] 4 All SA 721 (T), 1977 (4) SA 770 (T) 232
De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) 232
De Zwaan v Nourse 1903 TS 814 50
Deedat v Muslim Digest [1980] 2 All SA 80 (D), 1980 (2) SA 922 (D) 153
Delange v Costa [1989] 2 All SA 267 (A), 1989 (2) SA 857 (A) 207
Delfante v Delta Electrical Industries Ltd [1992] 3 All SA 968 (C), 1992 (2) SA 221 (C) 45
Delfs v Kuehne & Nagel (Pty) Ltd [1990] 2 All SA 5 (A), 1990 (1) SA 822 (A) 108
Delpech v Holloway and others 2011 (2) SA 194 (GSJ) 249
Delphisure Group Insurance Brokers Cape (Pty) Ltd v Kotzé and others
[2011] 1 All SA 109 (SCA), 2010 (5) SA 499 (SCA) 162, 164
Democratic Alliance v African National Congress and another
2015 (3) BCLR 298 (CC), 2015 (2) SA 232 (CC) 159
Den Braven SA (Pty) Limited v Pillay [2008] 3 All SA 518 (D), 2008 (6) SA 229 (D) 316, 317
Dendy v University of the Witwatersrand [2007] 3 All SA 1 (SCA), 2007 (5) SA 382 (SCA) 207
Densam (Pty) Ltd v Cywilnat (Pty) Ltd [1991] 1 All SA 275 (A), 1991 (1) SA 100 (A) 71
Department of Public Works v MS Moos Construction CC [2006] 4 All SA 535 (SCA) 80
Desai v Mohamed [1976] 3 All SA 13 (N), 1976 (2) SA 709 (N) 379
Desert Star Trading 145 (Pty) Ltd and another v No 11 Flamboyant Edleen CC and another
[2011] 2 All SA 471 (SCA), 2011 (2) SA 266 (SCA) 137, 350
Design & Planning Service v Kruger [1974] 2 All SA 55 (T), 1974 (1) SA 689 (T) 111
Desmond Isaacs Agencies (Pty) Ltd v Contemporary Displays
[1971] 3 All SA 60 (T), 1971 (3) SA 286 (T) 117
Dettmann v Goldfain [1975] 3 All SA 430 (A), 1975 (3) SA 385 (A) 71, 283
Devland Cash and Carry (Pty) Limited v Attorneys Fidelity Fund
[2017] 2 All SA 825 (WCC) 244
Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and others
[2014] 1 All SA 375 (SCA), 2013 (6) SA 520 (SCA) 47
Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd
[2002] 4 All SA 67 (SCA), 2003 (1) SA 31 (SCA) 132, 168
Dharumpal Transport (Pty) Ltd v Dharumpal
[1956] 1 All SA 388 (A), 1956 (1) SA 700 (A) 6, 10
Dhooma v Mehta 1957 (1) SA 676 (D) 245
Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) 350
Diamond v Kernick [1947] 3 All SA 254 (A), 1947 (3) SA 69 (A) 265
Dickinson v SA General Electric Co (Pty) Ltd [1973] 2 All SA 487 (A), 1973 (2) SA 620 (A)75
Dickinson Motors (Pty) Ltd v Oberholzer [1952] 1 All SA 421 (A), 1952 (1) SA 443 (A) 265
Diedericks v Minister of Lands [1964] 1 All SA 197 (N), 1964 (1) SA 49 (N) 266
Diepsloot Residents' and Landowners' Association v Administrator Transvaal
[1994] 2 All SA 299 (A), 1994 (3) SA 336 (A) 345
Diggers Development (Pty) Ltd v City of Matlosana and another
[2012] 1 All SA 428 (SCA) 111, 112
Digicore Fleet Management v Steyn [2009] 1 All SA 442 (SCA) 317
Dilokong Chrome Mines (Edms) Bpk v DirekteurGeneraal,
Departement van Handel & Nywerheid [1992] 2 All SA 209 (A), 1992 (4) SA 1 (A) 107
Diners Club SA (Pty) Ltd v Singh [2004] 3 All SA 568 (D), 2004 (3) SA 630 (D) 120
Dippenaar v Shield Insurance Co Ltd [1979] 4 All SA 92 (A), 1979 (2) SA 904 (A) 144
Dirk Fourie Trust v Gerber [1986] 2 All SA 77 (A), 1986 (1) SA 763 (A) 112
Distinct Investments (Pty) Ltd v Arhay CC; Bloom v Das Neves [1997] 2 All SA 513 (W) 238
Divisional Commissioner of SA Police Witwatersrand Area v SA Associated Newspapers Ltd
[1966] 3 All SA 1 (A), 1966 (2) SA 503 (A) 54
Dlamini v Joosten [2006] 3 All SA 1 (SCA), 2006 (3) SA 342 (SCA) 191
Dodd v Estate Cloete [1971] 1 All SA 473 (E), 1971 (1) SA 376 (E) 359
Dominick v Nedbank Limited [2015] ZASCA 160 352
Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd
[1970] 1 All SA 369 (A), 1970 (1) SA 228 (A) 8, 98, 100, 114, 116
Dorland v Smits [2002] 3 All SA 691 (C), 2002 (5) SA 374 (C) 278
Dorman Long Swan Hunter (Pty) Ltd v Karibib Visserye Ltd
[1984] 3 All SA 542 (C), 1984 (2) SA 462 (C) 108
Dormell Properties 282 CC v Bamberger [2015] ZASCA 89 349
Douglas Green Bellingham v Green t/a Greens Bottle Recyclers
[1997] 4 All SA 423 (A), 1998 (1) SA 367 (SCA) 299
Dowson & Dobson Industrial Ltd v Van der Werf
[1981] 2 All SA 331 (C), 1981 (4) SA 417 (C) 350
Doyle v Board of Executors [1999] 1 All SA 309 (C), 1999 (2) SA 805 (C) 13
Doyle v Fleet Motors PE (Pty) Ltd [1971] 3 All SA 550 (A), 1971 (3) SA 760 (A) 13, 14
Drake Flemmer and Orsmond Inc and another v Gajjar NO
[2018] 1 All SA 344 (SCA), 2018 (3) SA 353 (SCA) 224, 245
Drennan Maud & Partners v Town Board of the Township of Pennington
[1998] 2 All SA 571 (SCA), 1998 (3) SA 200 (SCA) 307
Dreyer v Tuckers Land & Development Corp (Pty) Ltd 1981 (1) SA 1219 (T) 251
Dreyer NO v AXZS Industries (Pty) Ltd [2006] 3 All SA 219 (SCA), 2006 (5) SA 548 (SCA)61
Dros (Pty) Ltd v Telefon Beverages CC [2003] 1 All SA 164 (C), 2003 (4) SA 207 (C) 2
Du Plessis v Doubells Transport (Edms) Bpk 1979 (1) SA 1046 (O) 5
Du Plessis v Nel 1952 (1) SA 513 (A) 1
Du Plessis v Prophitius and another [2009] 4 All SA 302 (SCA), 2010 (1) SA 49 (SCA) 205, 285
Du Plessis v Strydom 1985 (2) SA 142 (T) 49
Du Preez v Boetsap Stores (Pty) Ltd [1978] 2 All SA 460 (NC), 1978 (2) SA 177 (NC) 6
Du Toit v Atkinson's Motors Bpk [1985] 2 All SA 149 (A), 1985 (2) SA 893 (A) 265, 266
Du Toit v Barclays Nasionale Bank Bpk [1985] 3 All SA 326 (A), 1985 (1) SA 563 (A) 349
Du Toit v De Beer [1955] 1 All SA 320 (T), 1955 (1) SA 469 (T) 7, 9
Du Toit v Minister of Transport 2005 (11) BCLR 1053 (CC), 2006 (1) SA 297 (CC) 198
Du Toit v Vermeulen [1972] 3 All SA 573 (A), 1972 (3) SA 848 (A) 147
Duarte v Lissack [1973] 4 All SA 86 (D), 1973 (3) SA 615 (D) 230
Duet and Magnum Financial Services CC (in liquidation) v Koster
[2010] 4 All SA 154 (SCA), 2010 (4) SA 499 (SCA) 213, 305
Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd
[1968] 1 All SA 348 (C), 1968 (1) SA 209 (C) 93, 94, 367
Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) 26
Durban City Council v Association of Building Societies 1942 AD 27 150
Durban City Council v SA Board Mills Ltd [1961] 3 All SA 344 (A), 1961 (3) SA 397 (A) 376
Durban's Water Wonderland (Pty) Ltd v Botha
[1999] 1 All SA 411 (A), 1999 (1) SA 982 (SCA) 109, 165, 167
Durity Alpha (Pty) Ltd v Vagg [1991] 2 All SA 146 (A), 1991 (2) SA 840 (A) 27, 28, 310
Durr v Absa Bank Ltd [1997] 3 All SA 1 (A), 1997 (3) SA 448 (SCA) 63, 271
Dusheiko v Milburn [1964] 4 All SA 411 (A), 1964 (4) SA 648 (A) 235
E
Eagle Star Insurance Co Ltd v Willey [1956] 1 All SA 349 (A), 1956 (1) SA 330 (A) 218
East London Western Districts Farmers' Association v Minister of Education &
Development Aid [1989] 2 All SA 163 (A), 1989 (2) SA 63 (A) 278, 343, 345
Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd t/a Crown River Safari
2018 (4) SA 206 (SCA) 42
Eaton & Louw v Arcade Properties (Pty) Ltd 1962 (3) SA 255 (A) 49
Ebrahim v Airports Cold Storage (Pty) Ltd
[2009] 1 All SA 330 (SCA), 2008 (6) SA 585 (SCA) 82
Ebrahim v Pretoria Stadsraad [1979] 2 All SA 341 (T), 1980 (4) SA 10 (T) 190
EC Chenia and Sons CC v Lamé and Van Blerk
[2006] ZASCA 10, 2006 (4) SA 574 (SCA) 2, 106
Eden v Pienaar [2000] 3 All SA 632 (W), 2001 (1) SA 158 (W) 229, 230
Edouard v Administrator, Natal [1990] 2 All SA 374 (D), 1989 (2) SA 368 (D) 209
EDS South Africa (Pty) Ltd v Nationwide Airline (Pty) Ltd and others
2011 (5) SA 158 (SCA) 243
Edwards v Firstrand Bank Limited t/a Wesbank
[2016] 4 All SA 692 (SCA), 2017 (1) SA 316 (SCA) 139
Eerste Nasionale Bank van SA Bpk v Saayman NO
[1997] 3 All SA 391 (A), 1997 (4) SA 302 (A) 261
Ehlers NO v Graphorn NO; Graphorn v KZN Natuurbewaringsraad
[2005] ZASCA 6, [2005] 4 All SA 601 (SCA) 263
Eight Kaya Sands v Valley Irrigation Equipment 2003 (2) SA 495 (T) 240
Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Pty) Ltd
[1989] 2 All SA 290 (A), 1989 (3) SA 26 (A) 33
Eilon v Eilon [1965] 2 All SA 72 (A), 1965 (1) SA 703 (A) 171
Eke v Parsons 2015 (11) BCLR 1319 (CC), 2016 (3) SA 37 (CC) 338
Eksteen v Van Schalkwyk [1991] 3 All SA 291 (T), 1991 (2) SA 39 (T) 241
Electrical Contractors' Association SA v Building Industries Federation SA (2)
[1980] 3 All SA 76 (T), 1980 (2) SA 516 (T) 149, 150
Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) 305
Elektrisiteitsvoorsieningskommissie v Fourie [1988] 3 All SA 100 (T), 1988 (2) SA 627 (T)236
Eley v Lynn & Main Inc [2008] 1 All SA 315 (SCA), 2008 (2) SA 151 (SCA) 308, 353
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1)
[1988] 4 All SA 68 (W), 1988 (2) SA 350 (W) 210
Ellis v Cilliers NO 2016 (1) SA 293 (WCC) 332
Els v Minister of Law & Order [1993] 3 All SA 467 (C), 1993 (1) SA 12 (C) 256
Els v Smit [2009] 1 All SA 339 (SCA) 287
Emadyl Industries CC t/a Raydon Industries v Formex Engineering 2012 (4) SA 29 (ECP)115
Energy Measurements (Pty) Ltd v First National Bank of SA Ltd
[2002] 2 All SA 396 (W), 2001 (3) SA 132 (W) 66
Engelbrecht v Merry Hill (Pty) Ltd 2006 (3) SA 238 (E) 37
Engelbrecht NO and others v Zuma and others [2015] 3 All SA 590 (GP) 85
Engling v Bosielo [1994] 3 All SA 351 (B), 1994 (2) SA 388 (B) 341
English v CJM Harmse Investments CC 2007 (3) SA 415 (N) 320
Enslin v Nhlapo [2008] 4 All SA 156 (SCA), 2008 (5) SA 146 (SCA) 41
Ensor NO v Nedbank Ltd [1978] 3 All SA 303 (D), 1978 (3) SA 110 (D) 212
Ensor NO v Rensco Motors (Pty) Ltd [1981] 1 All SA 301 (A), 1981 (1) SA 815 (A) 212
Erasmus v Davis [1969] 1 All SA 91 (A), 1969 (2) SA 1 (A) 143, 144, 165
Erasmus v Venter 1953 (3) SA 828 (O) 26
Erf 1026 Tygerberg CC T/A Aspen Promotions SA v Pick 'n Pay Retailers (Pty) Ltd
2005 (6) SA 527 (C) 115
Erf 3183/1 Ladysmith (Pty) Ltd v Commissioner for Inland Revenue 1996 (3) SA 942 (A) 339
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton
[1973] 4 All SA 116 (A), 1973 (3) SA 685 (A) 73
Errier v Outsurance Insurance Co Ltd 2015 (5) SA (KZP) 217
Esbach v Steyn 1975 (4) SA 503 (A) 49
Escherich v De Waal 2017 (6) SA 257 (WCC) 319
Eskom v First National Bank of Southern Africa Ltd
[1995] 2 All SA 65 (A), 1995 (2) SA 386 (A) 64, 76
Eskom v Rollomatic Engineering (Edms) Bpk
[1992] 2 All SA 64 (A), 1992 (2) SA 725 (A) 284
Eskom Holdings Limited v HalsteadCleak 2017 (1) SA 333 (SCA) 101, 183, 332
Eskom Holdings Ltd v Grundy 2018 (4) SA 242 (KZP) 107
Eskom Holdings Ltd v H o.b.o. H [2005] 3 All SA 415 (SCA), 2005 (5) SA 503 (SCA) 183
Eskom Pension and Provident Fund v Krugel and another
[2011] 4 All SA 1 (SCA), 2012 (6) SA 143 (SCA) 174
Espag v Hattingh [2010] 1 All SA 394 (SCA), 2010 (3) SA 22 (SCA) 287
Esquire Electronics Ltd v Executive Video [1986] 2 All SA 210 (A), 1986 (2) SA 576 (A) 361
Ess Kay Electronics Pte Ltd v First National Bank of Southern Africa Ltd
[2001] 1 All SA 315 (A), 2001 (1) SA 1214 (SCA) 371
Essa v Divaris [1947] 2 All SA 111 (A), 1947 (1) SA 753 (A) 69, 167
Estate Agents Board v Mahadeo [1991] 1 All SA 436 (N), 1991 (3) SA 49 (N) 33
Estate Agents Board v Swart [1998] 4 All SA 373 (T), 1999 (1) SA 1097 (T) 33
Estate Liebenberg v Standard Bank of SA Ltd 1927 AD 502 277
Estate Milne v Donohoe Investments (Pty) Ltd
[1967] 2 All SA 345 (A), 1967 (2) SA 359 (A) 17
Estate Rother v Estate Sandig 1943 AD 47 228
Esterhuizen v Administrator, Transvaal [1957] 3 All SA 242 (T), 1957 (3) SA 710 (T) 257
Esterhuizen v Holmes 1947 (2) SA 789 (T) 8
Esterhuizen and others v Road Accident Fund
[2016] ZAGPPHC 1221, 2017 (4) SA 461 (GP) 254
Ethekwini Municipality v Verulam Medicentre (Pty) Ltd [2006] 3 All SA 325 (SCA) 224
Euro Blitz 21 (Pty) Ltd and another v Secena Aircraft Investments CC [2015] ZASCA 21 223
Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
2012 (3) BCLR 219 (CC), 2012 (1) SA 256 (CC) 1, 95
Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T) 164, 270
Evins v Shield Insurance Co Ltd [1980] 2 All SA 40 (A), 1980 (2) SA 814 (A) 143, 162, 322
Ewing, McDonald & Co (Pty) Ltd v Heyns 1973 (3) SA 747 (NC) 74
Ex parte Balkan Energy Limited and another; In re: Balkan Energy Limited and another v
Government of the Republic of Ghana 2017 (5) SA 428 (GJ) 47
Ex parte Gore NO and others NNO (in their capacities as the liquidators of
41 companies comprising King Financial Holdings Ltd (in liquidation)
and its subsidiaries) [2013] 2 All SA 437 (WCC) 86
Ex parte Inkley & Inkley [1995] 2 All SA 101 (C), 1995 (3) SA 528 (C) 170
Ex parte Minister of Safety and Security: In re: S v Walters
2002 (7) BCLR 663 (CC), 2002 (4) SA 613 (CC) 58, 59
Ex parte Minister of Social Development and others
2006 (4) SA 309 (CC), 2006 (5) BCLR 604 (CC) 232
Ex parte Nell [1963] 2 All SA 55 (A), 1963 (1) SA 754 (A) 150
Ex parte Orchison [1952] 3 All SA 43 (T), 1952 (3) SA 66 (T) 126
Ex parte PJLG and another; In re: PJLG and another [2013] 4 All SA 41 (ECG) 173
Ex parte Venter & Spain NNO: Fordom Factoring Ltd intervening;
Venter & Spain v Povey 1982 (2) SA 94 (D) 79
Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd
[1998] 4 All SA 465 (A), 1999 (2) SA 719 (SCA) 10, 25, 29, 102, 117, 356, 357
F
F v Minister of Safety and Security and another (Institute for Security Studies and others
as amici curiae) 2012 (3) BCLR 244 (CC), 2012 (1) SA 536 (CC),
(2012) 33 ILJ 93 (CC), 2013 (2) SACR 20 (CC) 2, 371
F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk
[1998] 4 All SA 480 (SCA), 1999 (1) SA 515 (SCA) 120, 224
Factaprops 1052 CC and another v Land and Agricultural Development Bank of
South Africa t/a Land Bank 2017 (4) SA 495 (SCA) 307
Fairhaven Country Estate (Pty) Ltd v Harris and another 2015 (5) SA 540 (WCC) 290
Fairoaks Investment Holdings (Pty) Limited v Oliver
[2008] 3 All SA 365 (SCA), 2008 (4) SA 302 (SCA) 37
Fakroodeen v Fakroodeen NNO 1971 (3) SA 395 (D) 381
Fatti's Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd
[1962] 1 All SA 578 (T), 1962 (1) SA 736 (T) 337
Faulkner v Freeman [1985] 4 All SA 224 (C), 1985 (3) SA 555 (C) 263
Faure v Joubert NO 1979 (4) SA 939 (A) 61
FB and another v MB 2012 (2) SA 394 (GSJ) 248
Federation Internationale de Football v Bartlett
[1994] 2 All SA 62 (T), 1994 (4) SA 722 (T) 226
Fedgroup Participation Bond Managers (Pty) Ltd v Trustee of the Capital Property Trust
[2015] 3 All SA 523 (SCA), 2015 (5) SA 290 (SCA) 186
Fedlife Assurance Ltd v Wolfaardt [2002] 2 All SA 295 (A), 2002 (1) SA 49 (SCA) 184
Feinstein v Niggli [1981] 2 All SA 92 (A), 1981 (2) SA 684 (A) 204, 205, 378
Feldman NO v EMI Music SA (Pty) Ltd [2009] 4 All SA 307 (SCA), 2010 (1) SA 1 (SCA) 130
Felix v Nortier NO [1996] 3 All SA 143 (SE) 35
Fenhalls v Ebrahim [1956] 4 All SA 355 (D), 1956 (4) SA 723 (D) 22
Ferndale Crossroads Share Block (Pty) Ltd v City of Johannesburg Metropolitan Municipality
[2011] 2 All SA 15 (SCA), 2011 (1) SA 24 (SCA) 237
Ferreira v Fouche [1949] 1 All SA 130 (T), 1949 (1) SA 67 (T) 287
Ferreira v SAPDC (Trading) Ltd [1983] 3 All SA 346 (A), 1983 (1) SA 235 (A) 1, 351
Ferris and another v Firstrand Bank Limited and another
2014 (3) BCLR 321 (CC), 2014 (3) SA 39 (CC) 134
FHP Management (Pty) Ltd v Theron NO [2003] 2 All SA 516 (C), 2004 (3) SA 392 (C) 124
Ficksburg Transport (Edms) Bpk v Rautenbach
[1988] 1 All SA 259 (A), 1988 (1) SA 318 (A) 283
Fidelity Bank Ltd v Three Women (Pty) Ltd [1996] 4 All SA 368 (W) 127, 128
FiltaMatix (Pty) Limited v Freudenberg [1998] 1 All SA 239 (A), 1998 (1) SA 606 (SCA) 296
Financial Mail (Pty) Ltd v Sage Holdings Ltd
[1993] 2 All SA 109 (A), 1993 (2) SA 451 (A) 151, 207, 208
Fircone Investments (Pty) Ltd v Bank of Lisbon & SA Ltd 1982 (3) SA 700 (T) 353
Firestone SA (Pty) Ltd v Gentiruco AG [1977] 4 All SA 600 (A), 1977 (4) SA 298 (A)231, 232
The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd
[1984] 2 All SA 211 (A), 1984 (2) SA 881 (A) 28, 33
First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd
1988 (4) SA 924 (W) 139
First National Bank v Clear Creek Trading 12 (Pty) Ltd 2014 (1) SA 23 (GNP) 135
First National Bank of SA Ltd v Duvenhage
[2006] 4 All SA 541 (SCA), 2006 (5) SA 319 (SCA) 62
First National Bank of SA Ltd v East Coast Design CC
[2000] 3 All SA 1 (D), 2000 (4) SA 137 (D) 88
First National Bank of SA Ltd v Lynn NO [1996] 1 All SA 229 (A), 1996 (2) SA 339 (A) 112
First National Bank of SA Ltd v Perry NO
[2001] 3 All SA 331 (A), [2001] ZASCA 37, 2001 (3) SA 960 (SCA) 6, 120, 187, 373
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd
[1995] 2 All SA 616 (A), 1995 (3) SA 556 (A) 65, 77
First National Bank of SA Ltd v Rosenblum
[2001] 4 All SA 355 (A), 2001 (4) SA 189 (SCA) 167
First Rand Bank Ltd v Brera Investments CC 2013 (5) SA 556 (SCA) 100
First Rand Ltd t/a Rand Merchant Bank v Scholtz NO
[2007] 1 All SA 436 (SCA), 2008 (2) SA 503 (SCA) 341
Fischer and another v Ramahlele and others
[2014] 3 All SA 395 (SCA), 2014 (4) SA 614 (SCA) 1, 95, 192
Fisher v Natal Rubber Compounders (Pty) Ltd 2016 (5) SA 477 (SCA) 72
Fitt v Louw [1970] 2 All SA 542 (T), 1970 (3) SA 73 (T) 262
Flax v Murphy [1991] 4 All SA 194 (W), 1991 (4) SA 58 (W) 279
Flionis v Bartlett [2006] 3 All SA 95 (SCA), 2006 (3) SA 575 (SCA) 241, 243, 244, 245
Fluxman v Brittain 1941 AD 273 252, 269
Fluxmans Incorporated v Levenson
[2017] 1 All SA 313 (SCA), 2017 (2) SA 520 (SCA) 243, 306
Foentjies v Beukes [1977] 4 All SA 648 (E), 1977 (4) SA 964 (E) 236
Food & Nutritional Products (Pty) Ltd v Neumann
[1986] 3 All SA 96 (W), 1986 (3) SA 464 (W) 86
Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C) 153
Foord v Lake NNO 1968 (4) SA 395 (W) 356
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd
[1993] 3 All SA 412 (C), 1993 (4) SA 138 (C) 369
Fortuin v Road Accident Fund 2015 (5) SA 532 (GP) 255
Fose v Min of Safety & Security 1997 (7) BCLR 851 (CC), 1997 (3) SA 786 (CC) 55, 59, 96
Four Arrows Investments 68 v Abigail Construction 2016 (1) SA 257 (SCA) 36
Four Wheel Drive Accessory Distribution CC v Rattan NO 2018 (3) SA 204 (KZD) 101
Fourie v Braude 1996 (1) SA 610 (T) 87
Fourie v CDMO Homes (Pty) Ltd [1982] 1 All SA 81 (A), 1982 (1) SA 21 (A) 112
Fourie v First Rand Bank Ltd [2013] 1 All SA 291 (SCA), 2013 (1) SA 204 (SCA) 86
Fourie v Naranjo [2007] 4 All SA 1152 (C), 2008 (1) SA 192 (C) 40, 41
Fourie NO v Edeling NO [2005] 4 All SA 393 (SCA) 212
Fourie's Poultry Farm (Pty) Ltd v KwaNatal Food Distributors (Pty) Ltd (in liq)
[1991] 2 All SA 469 (N), 1991 (4) SA 514 (N) 310
Fourlamel (Pty) Ltd v Maddison [1977] 1 All SA 513 (A), 1977 (1) SA 333 (A) 351
FPS Ltd v Trident Construction (Pty) Ltd [1989] 2 All SA 295 (A), 1989 (3) SA 537 (A) 4, 371
Frankel Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] 2 All SA 495 (A), 1996 (3) SA 355 (SCA) 46
Frankel Pollak Vinderine Inc v Stanton [1996] 2 All SA 582 (W), 2000 (1) SA 425 (W) 19, 20
Fransba Vervoer (Edms) Bpk v IGI Ltd 1975 (4) SA 968 (W), 1976 (4) SA 970 (W) 217
Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd
[2011] 3 All SA 362 (SCA), 2011 (4) SA 276 (SCA) 78, 109, 161, 163, 330, 31
Fredericks v Shield Insurance Co Ltd 1982 (2) SA 423 (A) 376
Free State Consolidated Gold Mines (Operations) Bpk v Sam Flanges Mining Supplies BK
[1997] 3 All SA 356 (O), 1997 (4) SA 644 (O) 227
Freidrich and others v Smit NO and others 2017 (4) SA 144 (SCA) 148, 173
French v Sterling Finance Corp (Pty) Ltd [1961] 4 All SA 445 (A), 1961 (4) SA 732 (A) 277
Friedrich and others v Smit NO and others [2015] 4 All SA 805 (GP) 148
Frieslaar NO and others v Ackerman and another [2018] ZASCA 3 305
Froman v Robertson [1971] 1 All SA 232 (A), 1971 (1) SA 115 (A) 75
Fundstrust (Edms) Bpk (in likwidasie) v Marais
[1996] 3 All SA 574 (C), 1997 (3) SA 470 (C) 85
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer
[1997] 1 All SA 644 (A), 1997 (1) SA 710 (A) 16, 51, 245, 349
Future Rustic Construction (Pty) Ltd v Spillers Waterfront (Pty) Ltd
2011 (5) SA 506 (KZD) 46
G
G & C Construction v De Beer [2000] 1 All SA 540 (T), 2000 (2) SA 378 (T) 82
G&C Shelf 103 (Pty) Ltd v Chemical Specialities (Pty) Ltd 2012 (4) SA 335 (KZD) 269
GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 210
GA Odendal v Structured Mezzanine Investments [2014] ZASCA 89 349
Gabelsberger v Babl [1994] 2 All SA 1 (T), 1994 (2) SA 677 (T) 230
Gabriel v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C) 69
Gainsford NO and others v Tanzer Transport (Pty) Ltd; Gainsford NO and others v
Tanzer Transport (Pty) Ltd and others [2014] 3 All SA 21 (SCA),
2014 (3) SA 468 (SCA) 79
Galago Publishers (Pty) Ltd v Erasmus [1989] 1 All SA 431 (A), 1989 (1) SA 276 (A) 130
Gallo Africa v Sting Music [2011] 1 All SA 449 (SCA), 2010 (6) SA 329 (SCA) 129
Gallo Africa Ltd v Sting Music (Pty) Ltd
[2011] 1 All SA 449 (SCA), 2010 (6) SA 329 (SCA), [2010] JOL 26301 (SCA) 234
Ganes v Telecom Namibia Ltd [2004] 2 All SA 609 (SCA), 2004 (3) SA 615 (SCA) 203
Ganie v Parekh [1962] 4 All SA 504 (N), 1962 (4) SA 618 (N) 73
Garden City Motors (Pty) Ltd v Bank of the OFS Ltd
[1983] 1 All SA 359 (N), 1983 (2) SA 104 (N) 334
Gardner v Margo [2006] 3 All SA 229 (SCA), 2006 (6) SA 33 (SCA) 28, 32, 224
Gazit Properties (Pty) Ltd v Botha NO and others 2012 (2) SA 306 (SCA) 212
GbengaOluwatoye v Reckitt Benckiser South Africa (Pty) Limited and another
2016 (12) BCLR 1515 (CC), [2017] 1 BLLR 1 (CC), (2016) 37 ILJ 2723 (CC) 338
Gcaba v Minister for Safety and Security 2010 (1) BCLR 35 (CC),
2010 (1) SA 238 (CC) 233
Geary & Son (Pty) Ltd v Gove [1964] 2 All SA 50 (A), 1964 (1) SA 434 (A) 204, 209, 210
Geduld Lands Ltd v Uys [1980] 4 All SA 236 (T), 1980 (3) SA 335 (T) 358
Gelb, Benjamin & Kaplan v Melzer [1987] 1 All SA 174 (T), 1987 (1) SA 917 (T) 242
Gemeenskapsontwikkelingsraad v Williams (1)
[1977] 2 All SA 486 (W), 1977 (2) SA 692 (W) 285
Genac Properties Jhb (Pty) Ltd v NBC Administrators CC
[1992] 1 All SA 421 (A), 1992 (1) SA 566 (A) 237
General Accident Ins Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v
Carstens NO; General Accident Ins Co SA Ltd v Nhlumayo
[1987] 2 All SA 345 (W), 1987 (3) SA 577 (A) 146
General Accident Versekeringsmaatskappy SA Bpk v Bailey NO
[1988] 4 All SA 614 (A), 1988 (4) SA 353 (A) 225
GennaWae Properties (Pty) Ltd v MedioTronics (Natal) (Pty) Ltd 1995 (2) SA 926 (A) 238
Gentiruco AG v Firestone SA (Pty) Ltd [1972] 1 All SA 201 (A), 1972 (1) SA 589 (A)294, 295
George v Fairmead (Pty) Ltd [1958] 3 All SA 1 (A), 1958 (2) SA 465 (A) 266
George v Minister of Environmental Affairs & Tourism 2005 (6) SA 297 (EqC) 251
George Municipality v Vena [1989] 2 All SA 125 (A), 1989 (2) SA 263 (A) 341
Gerber v Wolson [1955] 1 All SA 373 (A), 1955 (1) SA 158 (A) 351, 353
Gerelomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP) 365
Gericke v Sack [1978] 2 All SA 111 (A), 1978 (1) SA 821 (A) 306, 307
Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T) 44, 46
Gert de Jager (Edms) Bpk v Jones NO & McHardy NO
[1964] 1 All SA 36 (A), 1964 (3) SA 325 (A) 212, 213
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and others 2013 (3) BCLR 251 (CC) 248
Gibbins v Williams, Muller, Wright & Mostert Ingelyf
[1987] 1 All SA 417 (T), 1987 (2) SA 82 (T) 370
Gibson v Berkowitz [1997] 1 All SA 99 (W), 1996 (4) SA 1029 (W) 274
Gibson v Van der Walt [1952] 2 All SA 1 (A), 1952 (1) SA 262 (A) 277
Gien v Gien 1979 (2) SA 1113 (T) 279
Gihwala and others v Grancy Property Ltd and others
[2016] 2 All SA 649 (SCA), 2017 (2) SA 337 (SCA) 87
Gijzen v Verrinder [1965] 1 All SA 476 (D), 1965 (1) SA 806 (D) 236
Gilbey Distillers & Vintners (Pty) Ltd v Morris NO 1990 (2) SA 217 (SE) 204
GK Breed (Bethlehem) (Edms) Bpk v Martin Harris & Seuns (OVS) (Edms) Bpk
1984 (2) SA 66 (O) 45
Glaston House (Pty) Ltd v Inag (Pty) Ltd
[1977] 3 All SA 88 (A), 1977 (2) SA 846 (A) 330, 332
Glen Comeragh (Pty) Ltd v Colibri (Pty) Ltd
[1979] 4 All SA 321 (T), 1979 (3) SA 210 (T) 265
Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA) 25, 26, 188
GN v JN 2017 (1) SA 342 (SCA) 174
Göbel Franchises CC v Kadwa 2007 (5) SA 456 (C) 334
Godfrey v Campbell [1997] 1 All SA 395 (C), 1997 (1) SA 570 (C) 372
Goldberg v Buytendach Boerdery Beleggings (Edms) Bpk 1980 (4) SA 775 (A) 238
Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd
[1973] 3 All SA 118 (C), 1973 (2) SA 642 (C) 142
Golden China TV Game Centre v Nintendo Co Ltd
[1996] 4 All SA 667 (A), 1997 (1) SA 405 (A) 130
Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC
[2002] 2 All SA 551 (SCA), 2002 (1) SA 822 (SCA) 239
Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C) 88
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd
1978 (1) SA 914 (A) 204, 338
Gongqose and others v Minister of Agriculture, Forestry and Fisheries and others;
Gongqose and others v S [2018] ZASCA 87 141
Goodricke & Son v Auto Protection Insurance Co Ltd (in liquidation)
[1968] 1 All SA 269 (A), 1968 (1) SA 717 (A) 28, 242
Goodwin Stable Trust v Duohex (Pty) Ltd
[1996] 2 All SA 558 (C), 1998 (4) SA 606 (C) 44, 71, 72
Gordon Lloyd Page & Associates v Rivera
[2000] 4 All SA 241 (A), 2001 (1) SA 88 (SCA) 93, 106
Gore NO v Shell SA (Pty) Ltd [2003] 4 All SA 370 (C), 2004 (2) SA 521 (C) 212
Gore NO and others NNO (in their capacities as the liquidators of 41 companies comprising
King Financial Holdings Ltd (in liquidation) and its subsidiaries), Ex parte
[2013] 2 All SA 437 (WCC) 86
Gouda Boerdery BK v Transnet Ltd
[2004] 4 All SA 500 (SCA), 2005 (5) SA 490 (SCA) 270, 368
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1993] 1 All SA 259 (A), 1993 (1) SA 77 (A) 373
Govender v Minister of Safety and Security
2001 (4) SA 273 (SCA), 2001 (2) SACR 197 (SCA) 58
Government of RSA v Ngubane [1972] 2 All SA 489 (A), 1972 (2) SA 601 (A) 71, 208
Government of the Province of the Eastern Cape v Frontier Safaris (Pty) Ltd
[1997] 4 All SA 500 (A), 1998 (2) SA 19 (SCA) 342
Government of the Republic of South Africa v Midkon (Pty) Ltd 1984 (3) SA 552 (T) 227
Government of the SelfGoverning Territory of KwaZulu v Mahlangu
1994 (1) SA 626 (T) 107
Gowar Investments (Pty) Ltd v Section 3, Dolphin Coast Medical Centre CC
2007 (3) SA 100 (SCA) 35
GPC Developments CC and others v Uys [2017] 4 All SA 14 (WCC) 102
Graf v Buechel [2003] 2 All SA 123 (SCA), 2003 (4) SA 378 (SCA) 300
Graham v Ridley 1931 TPD 476 373
Graham NO v Trackstar Trading 363 (Pty) Ltd [2003] 1 All SA 181 (SE) 268
Grainco (Pty) Ltd v Van der Merwe 2016 (4) SA 303 (SCA) 318
Gralio (Pty) Ltd v DE Claassen (Pty) Ltd [1980] 1 All SA 423 (A), 1980 (1) SA 816 (A) 311
Grancy Property Limited v Manala and others [2013] 3 All SA 111 (SCA) 86
Grancy Property Ltd and another v Seena Marena Investment (Pty) Ltd and others
[2014] 3 All SA 123 (SCA) 13, 14
Grand Mines (Pty) Ltd v Giddey NO 1999 (1) SA 960 (A) 193
Grant's Farming Co Ltd v Attwell 9 HCG 91 276
Gravett NO v Van Der Merwe 1996 (1) SA 531 (D) 27
Great North Farms (Edms) Bpk v Ras [1972] 4 All SA 124 (T), 1972 (4) SA 7 (T) 336
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a
Volkskas Bank [1996] 4 All SA 278 (W), 1997 (2) SA 591 (W) 66, 273
Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd
1978 (4) SA 901 (N) 161
Greenfield Manufacturers Temba (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd
1976 (2) SA 565 (A) 268
Grindal v Grindal 1997 (4) SA 137 (C) 171
Grobbelaar NO v Bosch [1964] 1 All SA 191 (E), 1964 (3) SA 687 (E) 123
Grobler v Oosthuizen [2009] 3 All SA 508 (SCA), 2009 (5) SA 500 (SCA) 70, 72
Groenendijk v Tractor & Excavator Spares (Pty) Ltd
[1978] 2 All SA 188 (A), 1978 (1) SA 815 (A) 373
Groenewald v Groenewald [1998] 2 All SA 335 (A), 1998 (2) SA 1106 (SCA) 57
Groenewald v Minister van Justisie [1973] 4 All SA 149 (A), 1973 (3) SA 877 (A) 54
Grootboom v GraaffReinet Municipality 2001 (3) SA 373 (E) 183
Gross v Commercial Union Assurance Co Ltd
[1974] 2 All SA 149 (A), 1974 (1) SA 630 (A) 274, 359
Gross v Pentz [1996] 4 All SA 63 (A), 1996 (4) SA 617 (A) 147, 148, 149, 247
Grosvenor Motors Border Ltd v Visser [1971] 3 All SA 398 (E), 1971 (3) SA 213 (E) 331
Group Five Building Ltd v Minister of Community Development
[1993] 4 All SA 678 (A), 1993 (3) SA 629 (A) 97
Grütter v Lombard [2007] 3 All SA 311 (SCA), 2007 (4) SA 89 (SCA) 207
Guardian National Insurance Co Ltd v Van Gool NO
[1992] 2 All SA 287 (A), 1992 (4) SA 61 (A) 322
Gumede (born Shange) v President of the Republic of South Africa and others
2009 (3) BCLR 243 (CC), 2009 (3) SA 152 (CC) 175
Gunn NNO v Barclays Bank, DCO 1962 (3) SA 678 (A) 213
Gutman NO v Standard General Insurance Co Ltd
[1981] 4 All SA 496 (C), 1981 (4) SA 114 (C) 216
Gutsche Family Investments (Pty) Ltd v Mettle Equity Group (Pty) Ltd
[2007] 3 All SA 223 (SCA), 2007 (5) SA 491 (SCA) 44, 45
H
H v Fetal Assessment Centre 2015 (2) BCLR 127 (CC), 2015 (2) SA 193 (CC) 6, 95
H & F Spares Centre (Pty) Ltd v Grand Prix Spares
[1986] 2 All SA 575 (N), 1986 (4) SA 974 (N) 74
H Merks & Co (Pty) Ltd v BM Group (Pty) Ltd 1996 (2) SA 225 (A) 328
HA Millard & Son (Pty) Ltd v Enzenhofer [1968] 1 All SA 388 (T), 1968 (1) SA 330 (T) 194
Hall & Sons Ltd v Kleinsmith [1963] 4 All SA 418 (T), 1963 (4) SA 320 (T) 20
HallThermotank Natal (Pty) Ltd v Hardman
[1968] 4 All SA 361 (D), 1968 (4) SA 818 (D) 331
HamiltonBrowning v Denis Barker Trust [2001] 1 All SA 618 (N), 2001 (4) SA 1131 (N) 108
Hammer v Klein [1951] 1 All SA 50 (A), 1951 (2) SA 101 (A) 38, 268
Hanekom v Builders Market Klerksdorp (Pty) Ltd [2006] ZASCA 2, 2007 (3) SA 95 (SCA)352
Hanekom v Multilateral Motor Vehicle Accidents Fund (De Lange, third party)
[1997] 4 All SA 691 (T), 1998 (1) SA 634 (T) 324
Hanger v Regal and another 2015 (3) SA 115 (FB) 42
Hansa Silver (Pty) Ltd and others v Obifon (Pty) Ltd t/a The High Street Auction Company
2015 (4) SA 17 (SCA) 61
Hardaker v Phillips 2005 (4) SA 515 (SCA) 158, 159
Hargreaves v Anderson 1915 AD 519 203
Harper v Webster [1956] 1 All SA 213 (FC), 1956 (2) SA 495 (FC) 331
Harrington NO v Transnet Ltd [2007] 2 All SA 386 (C), 2007 (2) SA 228 (C) 272
Hartsrivier Boerderye (Edms) Bpk v Van Niekerk 1964 (3) SA 702 (T) 302
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd
[1977] 1 All SA 481 (T), 1977 (1) SA 316 (T) 93, 94, 146
Hassam v Jacobs NO and others 2009 (5) SA 572 (CC) 176
Hassen v Post Newspapers (Pty) Ltd [1965] 3 All SA 528 (W), 1965 (3) SA 562 (W) 153, 154
Hauman v Nortjé 1914 AD 293 98, 99
Haviside v Heyndricks and another 2014 (1) SA 235 (KZP) 329, 331
Hawker v Prudential Assurance Co of SA Ltd 1987 (4) SA 442 (C) 163
Hawkins Hawkins & Osborn (South) (Pty) Ltd v Enviroserve Waste Management
[2009] 2 All SA 319 (SCA), 2009 (4) SA 425 (SCA) 187
Haynes v King Williams Town Municipality [1950] 3 All SA 434 (A), 1951 (2) SA 371 (A) 124
Headermans (Vryburg) (Pty) Ltd v Ping Bai
[1997] 2 All SA 371 (A), 1997 (3) SA 1004 (SCA) 37
Hefer v Van Greuning 1979 (4) SA 952 (A) 285, 364, 365
Helios Ltd v Letraset Graphic Art Products (Pty) Ltd
[1973] 1 All SA 68 (T), 1973 (4) SA 81 (T) 210
Hendriks NO v Swanepoel [1962] 4 All SA 286 (A), 1962 (4) SA 338 (A) 212
Henri Viljoen (Pty) Ltd v Awerbuch Bros [1953] 2 All SA 40 (O), 1953 (2) SA 151 (O) 84
Henriques v Giles NO: In re Henriques v Giles NO
[2009] 4 All SA 116 (SCA), 2010 (6) SA 51 (SCA) 382
Henry v Branfield 1996 (1) SA 244 (D) 121
Hepner v RoodepoortMaraisburg Town Council
[1962] 4 All SA 510 (A), 1962 (4) SA 772 (A) 378
Herbal Zone (Pty) Limited and others v Infitech Technologies (Pty) Limited and others
[2017] 2 All SA 347 (SCA) 155, 291
Herbst v Solo Boumateriaal [1993] 3 All SA 211 (T), 1993 (1) SA 397 (T) 286
Hermanus v Department of Land Affairs
[2000] 4 All SA 499 (LCC), 2001 (1) SA 1030 (LCC) 198
Heroldt v Wills 2013 (2) SA 530 (GSJ) 209
Herr v Innomet (Pty) Ltd [2016] ZASCA 82 237
Herselman NO v Botha [1994] 1 All SA 420 (A), 1994 (1) SA 28 (A) 159
Hersman v Shapiro & Co 1926 TPD 367 145
Heslop v General Accident, Fire & Life Assurance Corp Ltd 1962 (3) SA 511 (A) 218
Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council
2002 (6) SA 66 (T) 377
Hippo Quarries (Tvl) (Pty) Ltd v Eardley [1992] 1 All SA 398 (A), 1992 (1) SA 867 (A) 71
Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A) 68
Hix Networking Technologies CC v System Publishers (Pty) Ltd
[1996] 4 All SA 675 (A), 1997 (1) SA 391 (SCA) 155
HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
[2000] 4 All SA 545 (A), 2001 (4) SA 814 (SCA) 369
Hlobo v Multilateral Motor Vehicle Accidents Fund
[2001] 1 All SA 322 (A), 2001 (2) SA 59 (SCA) 242, 266, 342
Hlophe v Mahlalela 1998 (1) SA 449 (T) 142
HNR Properties CC v Standard Bank of SA Ltd
[2004] 1 All SA 486 (SCA), 2004 (4) SA 471 (SCA) 351
Hoal v Hoal 2002 (3) SA 209 (N) 172
Hochfeld Commodities v Theron 2000 (1) SA 551 (O) 315
Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd
[1968] 2 All SA 153 (A), 1968 (1) SA 571 (A) 250, 276
Hoeksma v Hoeksma 1990 (2) SA 893 (A) 35, 196
Hofer v Kevitt NO [1997] 4 All SA 620 (A), 1998 (1) SA 382 (SCA) 365
Hoffman v Meyer [1956] 3 All SA 134 (C), 1956 (2) SA 752 (C) 48
Hoffman v Moni's Wineries Ltd [1948] 2 All SA 229 (C), 1948 (2) SA 163 (C) 204
Hohne v Super Store Mining (Pty) Ltd [2017] 1 All SA 681 (SCA), 2017 (3) SA 45 (SCA) 181
Holeni v The Land and Agricultural Development Bank of South Africa
[2009] 3 All SA 22 (SCA), 2009 (4) SA 437 (SCA) 308
Holford v Carleo Enterprises (Pty) Ltd and others [2014] ZASCA 195 44
Hollandia Reinsurance Co Ltd v Nedcor Bank Ltd
[1993] 4 All SA 545 (A), 1993 (3) SA 574 (W) 66, 78
Hollard Life Assurance Co Ltd v Van der Merwe NO
[2006] 4 All SA 333 (SCA); [2007] 4 All SA 684 (SCA) 219
Holm Jordaan v City of Tshwane Metropolitan Municipality [2014] ZASCA 105 49
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd
[1977] 4 All SA 94 (A), 1977 (3) SA 670 (A) 115, 116, 225, 329, 330, 331
Holt v Brook [1960] 2 All SA 537 (A), 1960 (2) SA 590 (A) 127
Holtzhausen v Absa Bank Ltd [2005] 2 All SA 560 (SCA), 2008 (5) SA 630 (SCA) 78
Holz v Harksen [1995] 1 All SA 580 (C), 1995 (3) SA 521 (C) 230
Holzman v Standard Bank Ltd [1985] 3 All SA 22 (W), 1985 (1) SA 360 (W) 63
Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd 1984 (3) SA 681 (A) 168
Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C) 51, 270
Horwitz v Hendricks 1928 AD 391 328
Hos+Med Medical Aid Scheme v Thebe ya Pelo Healthcare and others
[2008] 2 All SA 132 (SCA), 2008 (2) SA 608 (SCA) 43, 44
Howard v Herrigel NO [1991] 2 All SA 113 (A), 1991 (2) SA 660 (A) 86
HT Group (Pty) Ltd v Hazelhurst [2003] 2 All SA 262 (C) 154
Hubbard v Mostert 2010 (2) SA 391 (WCC) 357
Hughes v Ridley and others 2010 (1) SA 381 (KZP) 14
Hugo v Wessels 1987 (3) SA 837 (A) 105
Hulett v Hulett [1992] 2 All SA 308 (A), 1992 (4) SA 291 (A) 204, 264
HülseReutter v Gödde [2002] 2 All SA 211 (A), 2001 (4) SA 1336 (SCA) 82, 86
Humphrys v Laser Transport Holdings Ltd [1994] 4 All SA 27 (C), 1994 (4) SA 388 (C) 311
Hunt v Van der Westhuizen [1990] 4 All SA 533 (C), 1990 (3) SA 357 (C) 205
Hunt h/a Realty 1 Elk Estates v Dermann [1997] 4 All SA 665 (T) 316
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd
[1997] 2 All SA 672 (A), 1997 (4) SA 399 (SCA) 292, 367
Huyser v Quicksure (Pty) Ltd and another [2017] 2 All SA 209 (GP) 308
Hyprop Investments Ltd and another v NCS Carriers and Forwarding CC and another
[2013] 3 All SA 449 (GSJ), 2013 (4) SA 607 (GSJ) 239
I
Ideal Finance Corp v Coetzer [1970] 3 All SA 36 (A), 1970 (3) SA 1 (A) 350
Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C) 124
IIR SA BV (inc in the Netherlands) t/a Institute for International Research v
Hall (aka Baghas) [2004] 4 All SA 646 (W), 2004 (4) SA 174 (W) 93, 94, 317
Impala Water Users Association v Lourens NO
[2004] 2 All SA 476 (SCA), 2008 (2) SA 495 (SCA) 341
Imprefed (Pty) Ltd v National Transport Commission
[1993] 2 All SA 179 (A), 1993 (3) SA 94 (A) 2, 96
Incorporated Law Society, Transvaal v Meyer
[1981] 4 All SA 350 (T), 1981 (3) SA 962 (T) 241
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd
[1992] 1 All SA 421 (A), 1992 (1) SA 783 (A) 62, 64, 163
Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA) 157, 158
Indrieri v Du Preez [1989] 2 All SA 254 (C), 1989 (2) SA 721 (C) 29, 262
Industrial & Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control
[1996] 4 All SA 295 (A), 1997 (1) SA 136 (SCA) 244
Industrial Development Corp of SA Ltd v See Bee Holdings (Pty) Ltd
1978 (4) SA 136 (C) 351
Industrial Development Corporation of SA (Pty) Ltd v Silver
[2002] 4 All SA 316 (SCA), 2003 (1) SA 365 (SCA) 36, 349
Info Plus v Scheelke [1998] 2 All SA 509 (A), 1998 (3) SA 184 (SCA) 188, 189, 284
Inkin v Borehole Drillers [1949] 2 All SA 383 (A), 1949 (2) SA 366 (A) 98
Inkley & Inkley, Ex parte [1995] 2 All SA 101 (C), 1995 (3) SA 528 (C) 170
Inrybelange (Edms) Bpk v Pretorius [1966] 2 All SA 458 (A), 1966 (2) SA 416 (A) 283
Interaccess (Pty) Ltd v Van Dorsten [1999] 2 All SA 561 (C) 252
InterContinental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd
1979 (3) SA 740 (W) 26
Intercontinental Exports (Pty) Ltd v Fowles
[1999] 2 All SA 304 (A), 1999 (2) SA 1045 (SCA) 119, 311, 349
International Executive Communications Ltd t/a Institute for International Research v
Turnley [1996] 3 All SA 648 (W), 1996 (3) SA 1043 (W) 94, 194
International Shipping Co (Pty) Ltd v Bentley
[1990] 1 All SA 498 (SCA), 1990 (1) SA 680 (A) 15, 17, 164
International Tobacco Co of SA Ltd v Wollheim
[1953] 3 All SA 20 (A), 1953 (2) SA 603 (A) 153, 210, 211
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4)
1955 (2) SA 40 (W) 153
Investec Bank Limited t/a Investec Private Bank v Ramurunzi
[2014] 3 All SA 34 (SCA), 2014 (4) SA 394 (SCA) 139
IPF Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, third party)
2002 (5) SA 101 (W) 358
Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A), 1996 (1) SACR 314 (SCA) 54
The Isibiya Fund v Visser and another [2015] ZASCA 183 308
Ivanov v North West Gambling Board and others
[2012] 4 All SA 1 (SCA), 2012 (6) SA 67 (SCA), 2012 (2) SACR 408 (SCA) 341
J
Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd
[1998] 1 All SA 123 (A), 1998 (2) SA 968 (SCA) 130
Jachris (Pty) Ltd v Fourie [1984] 2 All SA 359 (T), 1984 (4) SA 501 (T) 74
Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A) 57, 208
Jacobs v Waks 1992 (1) SA 521 (A) 247
Jafta v Minister of Law & Order [1991] 4 All SA 234 (A), 1991 (2) SA 286 (A) 292
Jajbhay v Cassim 1939 AD 537 119, 121
Jameson's Minors v Central SA Railways 1908 TS 575 376
Jans v Nedcor Bank Ltd [2003] 2 All SA 11 (SCA), 2003 (6) SA 646 (SCA) 308, 353
Janse van Rensburg v Grieve Trust CC
[1999] 3 All SA 597 (C), 2000 (1) SA 315 (C) 196, 262, 331
Janse van Rensburg v Mahu Exhaust CC and another 2014 (3) SA 431 (NCK) 300
Janse van Rensburg NO and others v Steenkamp and another;
Janse van Rensburg and others v Myburgh and others
[2009] 1 All SA 539 (SCA), 2010 (1) SA 649 (SCA) 213, 314, 316
Janse van Rensburg NO and others v Steyn 2012 (3) SA 72 (SCA) 211
Jansen van Vuuren v Kruger [1993] 2 All SA 619 (A), 1993 (4) SA 842 (A) 207, 208, 257
Jardin v Agrela 1952 (1) SA 256 (T) 125
Jayber (Pty) Ltd v Miller [1980] 2 All SA 346 (W), 1980 (4) SA 280 (W) 146
Jayiya v MEC for Welfare, EC Government
[2003] 2 All SA 223 (SCA), 2004 (2) SA 611 (SCA) 80
Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163 6
Jili v Firstrand Bank Ltd [2014] ZASCA 183 140
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) 106, 125, 241
Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd
[1997] 1 All SA 455 (A), 1997 (1) SA 157 (A) 165, 346
Johannesburg City Council v Vucinovich 1940 AD 365 279
John v Road Accident Fund [1999] 4 All SA 355 (T), 2000 (1) SA 459 (T) 323
John Bell and Co Ltd v Esselen 1954 (1) SA 147 (A) 88
John Newmark & Co (Pty) Ltd v Durban City Council
[1959] 1 All SA 91 (N), 1959 (1) SA 169 (N) 236
John Waddington Ltd v Arthur E Harris (Pty) Ltd
[1968] 1 All SA 174 (T), 1968 (1) SA 38 (T) 292
Johnson v A Blaikie & Co (Pty) Ltd t/a FT Building Supplies Manaba
[1998] 2 All SA 38 (N), 1998 (3) SA 251 (N) 149
Johnson v Beckett [1992] 1 All SA 383 (A), 1992 (1) SA 762 (A) 152, 159
Johnson v Blaikie & Co (Pty) Ltd t/a FT Building Supplies
[1998] 2 All SA 38 (N), 1998 (3) SA 251 (N) 83
Johnson v Inc General Insurances Ltd [1983] 3 All SA 255 (A), 1983 (1) SA 318 (A) 70
Johnson v Jainodien [1982] 4 All SA 598 (C), 1982 (4) SA 599 (C) 205
Johnson v Rand Daily Mail 1928 AD 190 158
Joint Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund
[1969] 2 All SA 121 (T), 1969 (2) SA 78 (T) 336
Jones v Krok [1995] 2 All SA 30 (A), 1995 (1) SA 677 (A) 229, 230, 315
Jones v Krok 1996 (1) SA 504 (T) 231
Jonnes v AngloAfrican Shipping Co (1936) Ltd
[1972] 3 All SA 109 (A), 1972 (2) SA 827 (A) 353
Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture
[2009] 3 All SA 407 (SCA), 2009 (5) SA 1 (SCA) 50
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening)
1999 (2) BCLR 139 (CC), 1999 (2) SA 1 (CC) 281
Jordaan v Krone Broers [1999] 3 All SA 57 (C) 40
Joubert v Bester [1977] 1 All SA 185 (T), 1977 (4) SA 560 (T) 102, 122
Joubert v Santam Versekeringsmaatskappy Bpk
[1978] 2 All SA 604 (T), 1978 (3) SA 328 (T) 144
Joubert v Venter [1985] 1 All SA 443 (A), 1985 (1) SA 654 (A) 159
Joubert Scholtz Inc and others v Elandsfontein Beverage Marketing (Pty) Ltd
[2012] 3 All SA 24 (SCA), [2012] ZASCA 6 92, 241
Joubert Street Investments (Pty) Ltd v Roberts 1943 TPD 141 166
Jowell v BramwellJones [2000] 2 All SA 161 (A), 2000 (3) SA 274 (SCA) 143, 245
JR 209 Investments and another v Pine Villa Estates; Pine Villa Estates v
JR 209 Investments [2009] 3 All SA 32 (SCA), 2009 (4) SA 302 (SCA) 35, 328
JT Publishing (Pty) Ltd v Minister of Safety and Security 1997 (3) SA 514 (CC) 150
Juglal NO v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division
[2004] 2 All SA 268 (SCA), 2004 (5) SA 248 (SCA) 119
Jurgens v Volkskas Bank Ltd [1993] 1 All SA 199 (A), 1993 (1) SA 214 (A) 351
Jurgens Eiendomsagente v Share [1990] 2 All SA 548 (A), 1990 (4) SA 664 (A) 32, 34, 111, 126
Just Names Properties 11 CC v Fourie 2008 (1) SA 343 (SCA) 36
JW v CW 2012 (2) SA 529 (NCK) 175
K
K v Minister of Safety and Security [2005] 3 All SA 519 (SCA), 2005 (3) SA 179 (SCA) 370
K v Minister of Safety and Security
2005 (9) BCLR 835 (CC), [2005] 8 BLLR 749 (CC), 2005 (6) SA 419 (CC) 370, 371
Kadoma Trading (Pty) Ltd v Noble Crest CC
[2013] 3 All SA 126 (SCA), 2013 (3) SA 338 (SCA) 82
Kaknis v Absa Bank Limited; Kaknis v Man Financial Services SA (Pty) Ltd
[2017] 2 All SA 1 (SCA), 2017 (4) SA 17 (SCA) 134
Kalil v Standard Bank of SA Ltd [1967] 4 All SA 407 (A), 1967 (4) SA 550 (A) 351
Kalinko v Nisbet [2002] 3 All SA 294 (W), 2002 (5) SA 766 (W) 88
Kangra Holdings (Pty) Ltd v Minister of Water Affairs
[1998] 3 All SA 227 (A), 1998 (4) SA 330 (A) 200
Karabus Motors (1959) Ltd v Van Eck [1962] 1 All SA 403 (C), 1962 (1) SA 451 (C) 263
Karson v Minister of Public Works 1996 (1) SA 887 (E) 357
Karstein v Moribe [1982] 1 All SA 324 (T), 1982 (2) SA 282 (T) 27
Kate's Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd
[1997] 4 All SA 185 (A), 1998 (1) SA 235 (SCA) 111, 113
Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd
[1970] 2 All SA 570 (A), 1970 (2) SA 498 (A) 44, 311
Katz v Katz [1989] 2 All SA 353 (A), 1989 (3) SA 1 (A) 175
Katz v Katz [2004] 4 All SA 545 (C) 382
Katzeff v City Car Sales (Pty) Ltd 1998 (2) SA 644 (C) 334
Katzenellenbogen Ltd v Mullin [1977] 4 All SA 818 (A), 1977 (4) SA 855 (A) 116
Kay v Kay [1961] 1 All SA 132 (A), 1961 (4) SA 257 (A) 179
Kelly v Wright; Kelly v Kok [1948] 3 All SA 363 (A), 1948 (3) SA 522 (A) 121
Kemp v Republican Press (Pty) Ltd [1994] 4 All SA 392 (E), 1994 (4) SA 261 (E) 158
Kenitex Africa (Pty) Ltd v Coverite (Pty) Ltd
[1967] 3 All SA 357 (W), 1967 (3) SA 307 (W) 292
Kerbyn 178 (Pty) Ltd v Van den Heever NO 2000 (4) SA 804 (W) 22
Kern Trust (Edms) Bpk v Hurter [1981] 2 All SA 286 (C), 1981 (3) SA 607 (C) 263
Ketteringham v City of Cape Town 1934 AD 80 346, 349
Kgosana v Otto [1991] 3 All SA 665 (W), 1991 (2) SA 113 (W) 341
Kgothule v Majonga 2015 (6) SA 389 (FB) 153
Khan v Kahn 2005 (2) SA 272 (T) 176
Khoza v Netherlands Insurance Co of SA Ltd 1969 (3) SA 590 (W) 322
Khumalo v Holomisa 2002 (8) BCLR 771 (CC), 2002 (5) SA 401 (CC) 151, 155, 206
Khumalo v Potgieter [2001] 3 All SA 216 (A), 2001 (3) SA 63 (SCA) 191
Kilburn v Estate Kilburn 1931 AD 501 300
King v South Africa Weather Service [2009] 2 All SA 31 (SCA), 2009 (3) SA 13 (SCA) 130
King and others v Attorneys Fidelity Fund Board of Control
[2006] 1 All SA 458 (SCA), 2010 (4) SA 185 (SCA) 244
King Sabata Dalindyebo Municipality v Landmark Mthatha (Pty) Ltd and another
[2013] 3 All SA 251 (SCA) 122
King's Car Hire (Pty) Ltd v Wakeling [1970] 4 All SA 485 (N), 1970 (4) SA 640 (N) 167
Kirkland v Kirkland [2005] 3 All SA 353 (C), 2006 (6) SA 144 (C) 174
Kirsch Industries Ltd v Vosloo & Lindeque [1982] 4 All SA 326 (W), 1982 (3) SA 479 (W) 287
Kirsh v Pincus 1927 TPD 199 279
Klaase and another v Van der Merwe NO and others
2016 (9) BCLR 1187 (CC), 2016 (6) SA 131 (CC) 191
KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd
[2017] 3 All SA 739 (SCA), 2017 (6) SA 55 (SCA) 307
Klein NO v SA Transport Services [1992] 4 All SA 384 (W), 1992 (3) SA 509 (W) 89
KLM Royal Dutch Airlines v Hamman [2002] 3 All SA 484 (W), 2002 (3) SA 818 (W) 68
Klokow v Sullivan [2005] ZASCA 99, 2006 (1) SA 259 (SCA) 119, 121
Kluever and another v De Goede [2015] ZASCA 105 259
Klug & Klug v Penkin 1932 CPD 401 275
KM v TM 2018 (3) SA 225 (GP) 174
Knop v Johannesburg City Council [1995] 1 All SA 673 (A), 1995 (2) SA 1 (A) 163, 345, 347
Knox D'Arcy Ltd v Jamieson [1992] 4 All SA 275 (W), 1992 (3) SA 520 (W) 94
Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) 316
Kommissaris van Binnelandse Inkomste v Boedel du Toit 1985 (4) SA 594 (NC) 147
Kommissaris van Binnelandse Inkomste v Van der Heever
[1999] 3 All SA 115 (A), 1999 (3) SA 1051 (SCA) 247
Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA 283 (A) 149, 348
Kommissaris van Binnelandse Inkomste v Willers
[1999] 2 All SA 342 (A), 1999 (3) SA 19 (SCA) 21, 22
Koornklip Beleggings (Edms) Bpk v Allied Minerals Ltd
[1970] 2 All SA 333 (C), 1970 (1) SA 674 (C) 84
Köster v Norval [2015] ZASCA 185 333
Kotze NO v Santam Insurance Ltd [1994] 3 All SA 257 (C), 1994 (1) SA 237 (C) 261
Koukoudis and another v Abrina and another
[2016] 3 All SA 398 (SCA), 2016 (5) SA 352 (SCA) 163
KPMG Chartered Accountants v Securefin Ltd
[2009] 2 All SA 523 (SCA), 2009 (4) SA 399 (SCA) 109, 266
Kragga Kamma Estates CC v Flanagan [1995] 1 All SA 486 (A), 1995 (2) SA 367 (A) 2, 101
Krapohl v Oranje Koöperasie Bpk [1990] 2 All SA 366 (A), 1990 (3) SA 848 (A) 265
Krauze v Van Wyk [1986] 1 All SA 293 (A), 1986 (1) SA 158 (A) 283, 302
Kriegler v Minitzer [1949] 4 All SA 498 (A), 1949 (4) SA 821 (A) 96, 107
Kroonstad Westelike Boere Kooperatiewe Vereniging Bpk v Botha
[1964] 3 All SA 546 (A), 1964 (3) SA 561 (A) 330
Krugell v Shield Versekeringsmaatskappy Bpk
[1982] 4 All SA 505 (T), 1982 (4) SA 95 (T) 146
Kruger v Coetzee [1966] 2 All SA 490 (A), 1966 (2) SA 428 (A) 270
Kruger v Johnnic Publishing (Pty) Ltd 2004 (4) SA 306 (T) 153
Kruger v Joles Eiendomme (Edms) Bpk [2009] 1 All SA 553 (SCA), 2009 (3) SA 5 (SCA) 303
Kruger v Resnik [1955] 4 All SA 37 (A), 1955 (3) SA 378 (A) 242
Kruger v Sekretaris van Binnelandse Inkomste
[1973] 1 All SA 357 (A), 1973 (1) SA 394 (A) 91
Kruger v Terblanche 1979 (4) SA 38 (T) 228
Kruger v Van der Merwe 1966 (2) SA 266 (A) 164
Kruger NO v Goss and another [2010] 1 All SA 422 (SCA), 2010 (2) SA 507 (SCA) 148, 173
KS v MS 2016 (1) SA 64 (KZD) 174
KT v MR 2017 (1) SA 97 (GP) 174
Kubyana v Standard Bank of South Africa Ltd
2014 (4) BCLR 400 (CC), 2014 (3) SA 56 (CC) 134, 138, 139
Kudu Granite Operations (Pty) Ltd v Caterna Ltd
[2003] 3 All SA 1 (SCA), 2003 (5) SA 193 (SCA) 91, 93, 122, 224
Kunz v Swart and others 1924 AD 618 382
L
La Grange v Schoeman [1980] 3 All SA 495 (E), 1980 (1) SA 885 (E) 207
Labuschagne v Cloete [1987] 4 All SA 23 (T), 1987 (3) SA 638 (T) 274
Labuschagne Broers v Spring Farm (Pty) Ltd
[1976] 1 All SA 181 (T), 1976 (2) SA 824 (T) 331
Lafrenz (Pty) Ltd v Dempers [1962] 3 All SA 289 (A), 1962 (3) SA 492 (A) 356
Lambons (Edms) Bpk v BMW (SuidAfrika) (Edms) Bpk
[1997] 3 All SA 327 (A), 1997 (4) SA 141 (A) 105
Lambrakis v Santam Ltd 2000 (3) SA 1098 (W), 2002 (3) SA 710 (SCA) 143
Lammers & Lammers v Giovannoni [1955] 4 All SA 59 (A), 1955 (3) SA 385 (A) 333, 334
Lancelot Stellenbosch Mountain Retreat (Pty) Ltd v Gore NO and others
[2015] ZASCA 37 306
Land and Agricultural Development Bank of SA v Parker
[2004] 4 All SA 261 (SCA), 2005 (2) SA 77 (SCA) 79
Land and Agricultural Development Bank of South Africa v
Ryton Estates (Pty) Ltd and others [2013] 4 All SA 385 (SCA), 2013 (6) SA 319 (SCA)223
Land & Landbouontwikkelingsbank van SA v Conradie
[2005] 4 All SA 509 (SCA), 2005 (4) SA 506 (SCA) 192
Langeberg Koöperasie Bpk v Inverdoorn Farming & Trading Co Ltd
[1965] 2 All SA 463 (A), 1965 (2) SA 597 (A) 211
Langley Fox Building Partnership (Pty) Ltd v De Valence
[1991] 3 All SA 736 (A), 1991 (1) SA 1 (A) 372
Lanificio Varam SA v Masurel Fils (Pty) Ltd [1952] 4 All SA 329 (A), 1952 (4) SA 655 (A) 108
Lansdown NO v Wajar [1973] 4 All SA 401 (T), 1973 (4) SA 329 (T) 75
Lappeman Diamond Cutting Works (Pty) Ltd v MIB Group (Pty) Ltd
[2003] 4 All SA 317 (SCA), 2004 (2) SA 1 (SCA) 219, 271
Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd
[1997] 3 All SA 433 (W), 1997 (4) SA 578 (W) 347
Laskey v Showzone CC [2007] 4 All SA 1162 (C), 2007 (2) SA 48 (C) 279
Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International
2006 (1) SA 144 (CC) 362
Law v Kin [1966] 3 All SA 84 (W), 1966 (3) SA 480 (W) 256
Law Society of South Africa v Minister for Transport
2011 (2) BCLR 150 (CC), 2011 (1) SA 400 (CC) 321
Laws v Rutherford 1924 AD 261 268, 377
Lazarus v Gorfinkel [1988] 2 All SA 338 (C), 1988 (4) SA 123 (C) 310
Le Riche v Hamman 1946 AD 648 90
Le Riche v PSP Properties CC [2005] 4 All SA 551 (C), 2005 (3) SA 189 (C) 342
Le Roux v Autovend (Pty) Ltd [1981] 2 All SA 466 (N), 1981 (4) SA 890 (N) 330
Le Roux v Dey [2010] 3 All SA 497 (SCA), 2010 (4) SA 210 (SCA) 152, 155, 158, 160
Le Roux v Dey
2011 (6) BCLR 577 (CC), 2011 (3) SA 274 (CC) 152, 153, 155, 158, 160, 162, 207, 209
Le Roux v Le Roux [1967] 1 All SA 488 (A), 1967 (1) SA 446 (A) 315
Le Roux v Odendaal [1954] 4 All SA 173 (N), 1954 (4) SA 432 (N) 302
Le Roux v Standard General Versekeringsmaatskappy Bpk 2000 (4) SA 1035 (SCA) 219
Le Roux and another v Nel and another [2013] ZASCA 109 283, 302
Leadtrain Assessments (Pty) Ltd and others v Leadtrain (Pty) Ltd and others
[2013] ZASCA 33, 2013 (5) SA 84 (SCA) 46
Leask and another v Road Accident Fund 2015 (5) SA 20 (GJ) 255
Lebeloane v Lebeloane [2000] 4 All SA 525 (W), 2001 (1) SA 1079 (W) 173
Lederman v Moharal Investments (Pty) Ltd [1969] 1 All SA 297 (A), 1969 (1) SA 190 (A)256
Lee v Maraisdrif (Edms) Bpk [1976] 3 All SA 53 (A), 1976 (2) SA 536 (A) 286
Lee v Minister of Correctional Services
2013 (2) BCLR 129 (CC), 2013 (2) SA 144 (CC), 2013 (1) SACR 213 (CC) 163, 164, 343
Leeuw v First National Bank [2010] 2 All SA 329 (SCA), 2010 (3) SA 410 (SCA) 64, 188
Legal Aid Board v Singh 2009 (1) SA 184 (N) 343
Legator McKenna Inc v Shea
[2009] 2 All SA 45 (SCA), 2010 (1) SA 35 (SCA) 89, 91, 119, 120, 284, 285
Lehmbecker's Earthmoving & Excavators (Pty) Ltd v IGI Ltd
[1984] 2 All SA 352 (A), 1984 (3) SA 513 (A) 217
Lekup Prop Co No 4 (Pty) Ltd v Wright
[2012] 4 All SA 136 (SCA), 2012 (5) SA 246 (SCA) 113
Lench v Cohen 2006 (2) SA 99 (W) 102
Leonard Light Industries (Pty) Ltd v Wright
[1991] 4 All SA 250 (W), 1991 (4) SA 628 (W) 35, 196
Lethimvula Healthcare (Pty) Ltd v Private Label Promotion (Pty) Ltd
2012 (3) SA 143 (GSJ) 8
Lever v Purdy [1993] 2 All SA 265 (A), 1993 (3) SA 17 (A) 41
Levin v Zoutendijk 1979 (3) SA 1145 (W) 311
Levy v Levy [1991] 2 All SA 407 (A), 1991 (3) SA 614 (A) 5, 8
Lewis v Oneanate (Pty) Ltd [1992] 2 All SA 498 (A), 1992 (4) SA 811 (A) 7
Leyds NO v NoordWestelike Koöperatiewe Landboumaatskappy Bpk
[1985] 2 All SA 97 (A), 1985 (2) SA 769 (A) 72
Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd
[1980] 4 All SA 598 (T), 1980 (4) SA 271 (T) 312
Liberty Life Association of Africa Ltd v De Waal NO 1999 (4) SA 1177 (SCA) 218
Lichtenburg Garage (Pty) Ltd v Gerber [1963] 2 All SA 404 (T), 1963 (4) SA 395 (T) 160
Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C) 62
Liebenberg, Estate v Standard Bank of SA Ltd 1927 AD 502 277
Lieberman v Santam Ltd 2000 (4) SA 321 (SCA) 277
Lief NO v Dettmann [1964] 2 All SA 448 (A), 1964 (2) SA 252 (A) 70
Liley v Johannesburg Turf Club [1983] 4 All SA 211 (W), 1983 (4) SA 548 (W) 315
Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd
[1985] 1 All SA 347 (A), 1985 (1) SA 475 (A) 78, 144, 162
Lind v Spicer Bros (Africa) Ltd 1917 AD 147 26
Lindsay v Stofberg NO [1988] 1 All SA 200 (C), 1988 (2) SA 462 (C) 148, 149
Lipschitz v Dechamps Textiles GmbH [1978] 4 All SA 586 (C), 1978 (4) SA 427 (C) 305
Lissack v Duarte [1974] 4 All SA 487 (N), 1974 (4) SA 560 (N) 230
List v Jungers [1979] 2 All SA 121 (A), 1979 (3) SA 106 (A) 353
Lloyds of London, Certain Underwriters of v Harrison [2003] ZASCA 83
(also reported as Certain Underwriters of Lloyds of London v Harrison
2004 (2) SA 446 (SCA)) 205, 217
Lloyds of London Underwriting Syndicates 969, 48, 1183 & 2183 v Skilya Property
Investments (Pty) Ltd [2004] 1 All SA 386 (SCA), 2004 (2) SA 276 (SCA) 218
Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd
2007 (6) SA 87 (SCA) 232
Loggenberg and others v Maree [2018] ZASCA 24 35, 110, 327
Lombard Insurance Company Ltd v Landmark Holding (Pty) Ltd and others
[2009] 4 All SA 322 (SCA), 2010 (2) SA 86 (SCA) 100
Lombo v African National Congress [2002] 3 All SA 517 (SCA), 2002 (5) SA 668 (SCA) 53
Loni v Member of the Executive Council, Department of Health, Eastern Cape Bhisho
2018 (6) BCLR 659 (CC), 2018 (3) SA 335 (CC) 306
Loots v Nieuwenhuizen 1997 (1) SA 361 (T) 287
Lorcom Thirteen (Pty) Ltd v Zurich Insurance Company South Africa Ltd
2013 (5) SA 42 (WCC) 216
Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd
1981 (3) SA 1129 (T) 290, 292
Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA) 40
Loubser v SA Spoorweë & Hawens [1976] 4 All SA 320 (T), 1976 (4) SA 589 (T) 200
Loureiro and others v iMvula Quality Protection (Pty) Ltd
2014 (5) BCLR 511 (CC), 2014 (3) SA 394 (CC) 102, 162, 370
Louw NO v Coetzee [2003] 1 All SA 34 (SCA), 2003 (3) SA 329 (SCA) 62
Louwrens v Oldwage [2006] 1 All SA 197 (SCA), 2006 (2) SA 161 (SCA) 257, 258
Low v Consortium Consol Corpn (Pty) Ltd 1999 (1) SA 445 (A) 148
Lowrey v Steedman 1914 AD 532 315
LTA Construction Bpk v Administrateur, Transvaal
[1992] 3 All SA 1007 (A), 1992 (1) SA 473 (A) 224
LTA Construction Ltd v KwaZuluNatal Provincial Administration
[1997] 1 All SA 503 (N), 1997 (1) SA 633 (N) 50
LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd
[1974] 2 All SA 6 (A), 1974 (1) SA 747 (A) 8, 72
Lubbe v Bosman [1948] 3 All SA 497 (A), 1948 (3) SA 909 (A) 4
Lubbe v Louw [2006] 4 All SA 341 (SCA) 368
Lucky Star Ltd v Lucky Brands (Pty) Ltd and others 2017 (2) SA 588 (SCA) 361
Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews
2009 (6) BCLR 527 (CC), 2009 (4) SA 529 (CC) 43, 47, 48
Lusizi v Transnet Ltd t/a Spoornet [2002] 3 All SA 635 (C) 28
Lutzkie NO v Zenith Concessions Ltd 2003 (6) SA 643 (SCA) 75
Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd
[2001] 2 All SA 506 (W), 2001 (4) SA 211 (W) 68
Luzon Investments (Pty) Ltd v Strand Municipality
[1990] 1 All SA 70 (C), 1990 (1) SA 215 (C) 150, 265
Lynco Plant Hire & Sales BK v Univem Versekeringsmakelaars BK
2002 (5) SA 85 (T) 216
M
M v M [2017] 2 All SA 364 (SCA), 2017 (3) SA 371 (SCA) 174
Maartens v Pope [1992] 2 All SA 524 (N), 1992 (4) SA 883 (N) 41
Mabaso v Felix [1981] 2 All SA 306 (A), 1981 (3) SA 865 (A) 56, 57, 58
Mabuza v Nedbank Ltd 2015 (3) SA 369 (GP) 232
McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C) 264
McCarthy Ltd v ABSA Bank Ltd [2010] 1 All SA 435 (SCA), 2010 (2) SA 321 (SCA) 64
McCarthy Ltd v Gore NO [2007] 4 All SA 1212 (SCA), 2007 (6) SA 366 (SCA) 213
McCarthy Retail Ltd v Shortdistance Carriers CC
[2001] 3 All SA 236 (A), 2001 (3) SA 482 (SCA) 89, 90, 187, 249
McDonald v Young 2012 (3) SA 1 (SCA) 2
MacDonald and others v Road Accident Fund
[2012] ZASCA 69, [2012] 4 All SA 15 (SCA) 146, 254
McDonald's Corporation v Joburgers DriveInn Restaurant (Pty) Ltd
[1996] 4 All SA 1 (A), 1997 (1) SA 1 (A) 293, 360
McEwen NO v Khader [1969] 4 All SA 421 (N), 1969 (4) SA 559 (N) 276
MacFarlane v Crooke [1951] 3 All SA 103 (C), 1951 (3) SA 256 (C) 99
Mackay v Legal Aid Board 2003 (1) SA 271 (SE) 242
Macleod v Kweyiya 2013 (6) SA 1 (SCA) 306
McNicol v Delport NO 1980 (4) SA 287 (W) 147
Macu v Du Toit [1983] 2 All SA 464 (A), 1983 (4) SA 629 (A) 58
McWilliams v First Consolidated Holdings (Pty) Ltd
[1982] 1 All SA 245 (A), 1982 (2) SA 1 (A) 107
Madalane v Van Wyk [2016] ZASCA 25 248
Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 347
Madyosi v SA Eagle Insurance Co Ltd [1990] 2 All SA 408 (A), 1990 (3) SA 442 (A) 4
Magna Alloys & Research (SA) (Pty) Ltd v Ellis
[1984] 2 All SA 583 (A), 1984 (4) SA 874 (A) 317
Magware v Minister of Health NO [1981] 4 All SA 531 (Z), 1981 (4) SA 472 (Z) 259
Mahabeer v Sharma NO [1985] 2 All SA 295 (A), 1985 (3) SA 739 (A) 103, 379
Mahadeo v Dial Direct Insurance Ltd [2008] 2 All SA 352 (W), 2008 (4) SA 80 (W) 218
Maharaj v Sanlam Life Insurance Ltd and others [2011] 2 All SA 571 (KZD) 248
Mahomed v Kassim [1973] 2 All SA 398 (RA), 1973 (2) SA 1 (RA) 153, 158
Mahomed v Mahomed [1976] 1 All SA 144 (T), 1976 (3) SA 151 (T) 150
Mahomed v Nagdee [1952] 2 All SA 121 (A), 1952 (1) SA 410 (A) 337
Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC
[1997] 3 All SA 451 (C), 1998 (2) SA 468 (C) 115, 118
Maisela v Kgolane NO [2000] 1 All SA 658 (T), 2000 (2) SA 370 (T) 141
Maize Board v Jackson [2006] 3 All SA 511 (SCA), 2005 (6) SA 592 (SCA) 339
Maize Board v Tiger Oats Ltd 2002 (5) SA 365 (SCA) 7
Maja v SA Eagle Ins Co Ltd 1990 (2) SA 701 (A) 146
Makate v Vodacom (Pty) Ltd 2016 (6) BCLR 709 (CC), 2016 (4) SA 121 (CC) 26, 305, 328
Makhwelo v Minister of Safety and Security 2017 (1) SA 274 (GJ) 344
Makings v Makings [1958] 1 All SA 510 (A), 1958 (1) SA 338 (A) 232
Malahe v Minister of Safety and Security [1998] 4 All SA 246 (A), 1999 (1) SA 528 (SCA) 58
Malcolm v Premier, Western Cape Government NO
[2014] 2 All SA 251 (SCA), 2014 (3) SA 177 (SCA) 307
Malelane (Edms) Bpk v Godfrey [2008] 2 All SA 97 (T) 191
Malherbe v Ceres Municipality [1951] 4 All SA 308 (A), 1951 (4) SA 510 (A) 279, 280
Malherbe v Eskom 2002 (4) SA 497 (O) 376
Malherbe v Van Rensburg [1970] 4 All SA 130 (C), 1970 (4) SA 78 (C) 369
Malilang v MV Houda Pearl [1986] 2 All SA 177 (A), 1986 (2) SA 714 (A) 181, 182
Mallinson v Tanner [1947] 4 All SA 250 (T), 1947 (4) SA 681 (T) 203
Malokoane v Multilateral Motor Vehicle Accidents Fund
[1998] 4 All SA 486 (A), 1999 (1) SA 544 (A) 323
MAN Truck & Bus (Pty) Ltd v Dorbyl Ltd t/a Dorbyl Transport Products and Busaf
[2004] 2 All SA 113 (SCA), 2004 (5) SA 226 (SCA) 194
MAN Truck & Bus (SA) (Pty) Ltd v Singh (2)
[1976] 4 All SA 189 (N), 1976 (4) SA 266 (N) 350
Manderson t/a Hillcrest Electrical v Standard General Insurance Co Ltd
1996 (3) SA 434 (D) 216
Mankayi v AngloGold Ashanti Ltd 2011 (5) BCLR 453 (CC),
[2011] 6 BLLR 527 (CC), 2011 (3) SA 237 (CC), (2011) 32 ILJ 545 (CC) 281
Manley Van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai Safaris &
Film Productions (Pty) Ltd [1977] 1 All SA 120 (A), 1977 (2) SA 416 (A) 239
Mann v Sidney Hunt Motors (Pty) Ltd [1958] 1 All SA 328 (G), 1958 (2) SA 102 (G) 188
Mannesmann Demag (Pty) Ltd v Romatex 1988 (4) SA 383 (D) 73
Mano et Mano v Nationwide Airlines (Pty) Ltd
[2007] 2 All SA 227 (SCA), 2007 (2) SA 512 (SCA) 32
Manukha v Road Accident Fund 2017 (4) SA 453 (SCA) 324
Maphango and others v Aengus Lifestyle Properties (Pty) Ltd
(Inner City Resources Centre as amicus curiae) 2012 (5) BCLR 449 (CC),
2012 (3) SA 531 (CC) 238, 349
Marais v Bezuidenhout 1999 (3) SA 988 (W) 49
Marais v Engler Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais
1998 (2) SA 450 (E) 211
Marais v Groenewald [2000] 2 All SA 578 (T), 2001 (1) SA 634 (T) 160
Marais v Steyn [1975] 3 All SA 401 (T), 1975 (3) SA 479 (T) 157
Maree v Diedericks [1962] 1 All SA 321 (T), 1962 (1) SA 231 (T) 40
Margre Property Holdings CC v Jewula [2005] 2 All SA 119 (E) 191
Maritime Motors (Pty) Ltd v Von Steiger 2001 (2) SA 584 (SE) 275
Maritz v Maritz & Pieterse Inc (in liq) 2006 (3) SA 481 (SCA) 245
Marks & Kantor v Van Diggelen 1935 TPD 29 251
Marks Ltd v Laughton 1920 AD 12 356
Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) 247
Marshall v Bull Quip (Pty) Ltd [1983] 1 All SA 96 (A), 1983 (1) SA 23 (A) 74, 75
Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens;
Qwa Qwa Regeringsdiens v Martin Harris & Seuns OVS (Edms) Bpk
[2000] 2 All SA 72 (A), 2000 (3) SA 339 (SCA) 50, 98, 194, 267
Maschinen Frommer GmbH & Co KG v Trisave Engineering &
Machinery Supplies (Pty) Ltd [2003] 1 All SA 453 (C), 2003 (6) SA 69 (C) 230
Mashamaite and others v Mogalakwena Local Municipality and others;
Member of the Executive Council for Coghsta, Limpopo and another v
Kekana and others [2017] 2 All SA 740 (SCA) 315
Masinga v Minister of Justice, KwaZulu Government
[1995] 2 All SA 350 (A), 1995 (3) SA 214 (A) 185
Masstores (Pty) Limited v Pick n Pay Retailers (Pty) Limited
2017 (2) BCLR 152 (CC), 2017 (1) SA 613 (CC) 225, 367
Masters v Thalia Thain t/a Inhaca Safaris [1999] 4 All SA 618 (W),
2000 (1) SA 467 (W) 115
Masuku v Mdlalose [1997] 3 All SA 339 (A), 1998 (1) SA 1 (SCA) 5, 343, 370
Matador Buildings (Pty) Ltd v Harman
[1971] 1 All SA 381 (C), 1971 (2) SA 21 (C) 103, 190, 374
Mathe v Minister of Police [2017] 4 All SA 130 (GJ), 2017 (2) SACR 211 (GJ) 55
Mathenjwa NO and others v Magudu Game Company (Pty) Ltd
[2009] 4 All SA 15 (SCA), 2010 (2) SA 26 (SCA) 42
Mathipa v Vista University 2000 (1) SA 396 (T) 310
Matthews v Pretorius [1984] 4 All SA 224 (W), 1984 (3) SA 547 (W) 127
Matyeka v Kaaber [1960] 4 All SA 335 (T), 1960 (4) SA 900 (T) 8
Matyila v Matyila [1987] 3 All SA 7 (W), 1987 (3) SA 230 (W) 174
Maw v KeithReed [1975] 4 All SA 540 (C), 1975 (4) SA 603 (C) 49
May v Udwin 1981 (1) SA 1 (A) 159
Mayelane v Ngwenyama 2013 (8) BCLR 918 (CC)
(also reported as MM v MN 2013 (4) SA 415 (CC)) 142, 171
Mayne v Main [2001] 3 All SA 157 (A), 2001 (2) SA 1239 (SCA) 234
Mbele v Road Accident Fund [2016] 4 All SA 752 (SCA), 2017 (2) SA 34 (SCA) 324
Mbethe v United Manganese of Kalahari (Pty) Limited 2017 (6) SA 409 (SCA) 87
Mbhele v Natal Parks, Game & Fish Preservation Board
[1980] 2 All SA 469 (D), 1980 (4) SA 303 (D) 42
MC Denneboom Service Station CC and another v Phayane
2015 (1) SA 54 (CC), 2014 (12) BCLR 1421 (CC) 192
MCC Bazaar v Harris & Jones (Pty) Ltd [1954] 3 All SA 107 (T), 1954 (3) SA 158 (T) 120
MCC Contracts (Pty) Ltd v Coertzen [1998] 4 All SA 503 (A), 1998 (4) SA 1046 (SCA) 358
MEC for Economic Affairs, Environment and Tourism v Kruizenga
[2010] 4 All SA 23 (SCA), 2010 (4) SA 122 (SCA) 231, 242
MEC for Education, Western Cape Province v Strauss
[2008] 1 All SA 440 (SCA), 2008 (2) SA 366 (SCA) 282
MEC for the Department of Health, Free State Province v DN [2015] 1 All SA 20 (SCA),
[2014] 12 BLLR 1155 (SCA), 2015 (1) SA 182 (SCA), (2014) 35 ILJ 3301 (SCA) 281, 282
MediClinic v Vermeulen [2014] ZASCA 150 258
Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd
[2016] 4 All SA 311 (SCA), 2017 (2) SA 1 (SCA) 130
Media 24 Ltd v Grobler [2005] 3 All SA 297 (SCA), 2005 (6) SA 328 (SCA) 371
Media 24 Ltd and others v SA Taxi Securitisation (Pty) Ltd
(Avusa Media Ltd and others as amici curiae) [2011] 4 All SA 9 (SCA),
2011 (5) SA 329 (SCA) 151, 152, 156
Media24 (Pty) Ltd t/a Media Sun v Estate of late Deon Jean Du Plessis and another
[2017] ZASCA 168 48
Medscheme Holdings (Pty) Ltd v Bhamjee
[2005] 4 All SA 16 (SCA), 2005 (5) SA 339 (SCA) 182
Melamed v BP Southern Africa (Pty) Ltd [2000] 1 All SA 342 (W), 2000 (2) SA 614 (W) 112
Member of the Executive Council for Health and Social Development, Gauteng v
DZ obo WZ 2017 (12) BCLR 1528 (CC), 2018 (1) SA 335 (CC) 143, 144
Memory Institute SA CC t/a SA Memory Institute v Hansen
[2003] ZASCA 44, 2004 (2) SA 630 (SCA) 130
Mercurius Motors v Lopez [2008] 3 All SA 238 (SCA), 2008 (3) SA 572 (SCA) 167
Meredith Woods Johnson & Associates Trust v Deep Blue See Properties (Pty) Ltd
2005 JDR 0476 (SE) 49
Merrill Lynch SA (Pty) Ltd v Moosa [2003] 2 All SA 431 (C) 122
Mervis Brothers v Interior Acoustics 1999 (3) SA 607 (W) 44
Messina Associated Carriers v Kleinhaus [2001] 3 All SA 285 (A), 2001 (3) SA 868 (SCA)370
Metiso v Padongelukfonds [2002] 1 All SA 291 (T), 2001 (3) SA 1142 (T) 142
Metje & Ziegler Ltd v Stauch, Vorster & Partners 1972 (4) SA 679 (SWA) 8
Metro GoldwynMayer Incorporated v Ackerman [1996] 1 All SA 584 (SE) 131
Meyer v Kirner [1974] 4 All SA 201 (N), 1974 (4) SA 90 (N) 310
Meyer v Merchants Trust Ltd 1942 AD 244 311
Meyer NO v Transvaalse Lewendehawe Koöperasie Bpk
[1982] 2 All SA 455 (A), 1982 (4) SA 746 (A) 212
Meyerson v Health Beverages (Pty) Ltd [1989] 4 All SA 179 (C), 1989 (4) SA 667 (C) 5
MGB v DEB [2013] 4 All SA 99 (KZD) (also MB v DB 2013 (6) SA 86 (KZD) 174
Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk) 54
Mhlongo NO v Minister of Police [1978] 3 All SA 73 (A), 1978 (2) SA 551 (A) 343
Mia v Verimark Holdings (Pty) Ltd [2009] ZASCA 99, [2010] 1 All SA 280 (SCA) 112, 329
Michael and another v Linksfield Park Clinic (Pty) Ltd and another
[2002] 1 All SA 384 (SCA), 2001 (3) SA 1188 (SCA) 258
Michau v Maize Board 2003 (6) SA 459 (SCA) 339
Middleton v Carr [1949] 2 All SA 400 (A), 1949 (2) SA 374 (A) 28, 97, 99
Midway Two Engineering & Construction Services BK v Transnet Bpk
[1998] 2 All SA 451 (A), 1998 (3) SA 17 (SCA) 370, 372
Miele et Cie GmbH & Co v Euro Electrical (Pty) Ltd
[1988] 2 All SA 244 (A), 1988 (2) SA 583 (A) 361
Mighty Solutions CC t/a Orlando Service Station v Engen Petroleum Ltd and another
2016 (1) SA 621 (CC), 2016 (1) BCLR 28 (CC) 190
Mignoel Properties (Pty) Ltd v Kneebone 1989 (4) SA 1042 (A) 238
Miller v Muller [1965] 2 All SA 284 (C), 1965 (4) SA 458 (C) 365
Millman NO v Masterbond Participation Bond Trust Managers (Pty) Ltd
(under curatorship) [1997] 1 All SA 408 (C), 1997 (1) SA 113 (C) 350
Mills v Mills [2017] 2 All SA 364 (SCA) 175
Milne, Estate v Donohoe Investments (Pty) Ltd
[1967] 2 All SA 345 (A), 1967 (2) SA 359 (A) 17
Milner Street Properties (Pty) Ltd v Eckstein Properties (Pty) Ltd 2001 (4) SA 1315 (SCA)311
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) 5
Minister of Agriculture and Land Affairs v CJ Rance (Pty) Ltd
[2010] 3 All SA 537 (SCA), 2010 (4) SA 109 (SCA) 344
Minister of Correctional Services v Thobani 2003 (5) SA 126 (E) 55
Minister of Defence v Von Benecke (2013) 34 ILJ 275 (SCA), 2013 (2) SA 361 (SCA) 371
Minister of Finance v EBN Trading (Pty) Ltd
[1997] 3 All SA 481 (N), 1998 (2) SA 319 (N) 55, 57, 209
Minister of Finance v Ramos 1998 (4) SA 1096 (C) 342
Minister of Finance and others v Gore NO
[2007] 1 All SA 309 (SCA), 2007 (1) SA 111 (SCA) 205, 306, 343, 348, 372
Minister of Forestry v Quathlamba (Pty) Ltd [1973] 3 All SA 336 (A),
1973 (3) SA 69 (A) 368
Minister of Justice v Hofmeyr [1993] 2 All SA 232 (A), 1993 (3) SA 131 (A) 53, 55, 57, 208
Minister of Justice and Constitutional Development and others v Moleko
[2008] 3 All SA 47 (SCA), 2009 (2) SACR 585 (SCA) 255
Minister of Law and Order v Hurley [1986] 2 All SA 428 (A), 1986 (3) SA 568 (A) 53
Minister of Law and Order v Monti 1995 (1) SA 35 (A) 59
Minister of Law and Order v Ngobo [1992] 2 All SA 492 (A), 1992 (4) SA 822 (A) 57, 371
Minister of Law and Order v Thusi [1994] 1 All SA 242 (N), 1994 (2) SA 224 (N) 255
Minister of Police v Mbilini [1983] 2 All SA 282 (A), 1983 (3) SA 705 (A) 208, 370, 371
Minister of Police v Mboweni [2014] 4 All SA 452 (SCA), 2014 (6) SA 256 (SCA) 11, 55, 59, 96
Minister of Safety and Security, Ex parte: In re: S v Walters
2002 (7) BCLR 663 (CC), 2002 (4) SA 613 (CC) 58, 59
Minister of Safety and Security v Carmichele
[2003] 4 All SA 565 (SCA), 2004 (3) SA 305 (SCA) 57, 163, 164
Minister of Safety and Security v De Witt 2009 (1) SA 457 (SCA) 344
Minister of Safety and Security v F [2011] 3 All SA 149 (SCA), 2011 (3) SA 487 (SCA) 370
Minister of Safety and Security v Magagula [2017] ZASCA 103 54
Minister of Safety and Security v Mohofe
[2007] 4 All SA 697 (SCA), 2007 (4) SA 215 (SCA) 57, 59
Minister of Safety and Security v Morudu 2016 (1) SACR 68 (SCA) 371
Minister of Safety and Security v Rudman
[2004] 3 All SA 667 (SCA), 2005 (2) SA 16 (SCA) 143
Minister of Safety and Security v Seymour
[2007] 1 All SA 558 (SCA), 2006 (6) SA 320 (SCA) 55, 209, 256
Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA) 2
Minister of Safety and Security v Van der Walt [2014] ZASCA 174,
2015 (2) SACR 1 (SCA) 371
Minister of Safety and Security v Van Duivenboden
[2002] 3 All SA 741 (SCA), 2002 (6) SA 431 (SCA) 57, 163, 164, 270
Minister of Safety and Security NO v Schubach [2014] ZASCA 216 255, 256
Minister of Social Development and others, Ex parte
2006 (4) SA 309 (CC), 2006 (5) BCLR 604 (CC) 232
Minister of Transport v Du Toit [2004] 4 All SA 603 (SCA), 2005 (1) SA 16 (SCA) 198, 199
Minister of Water Affairs & Forestry v Durr
[2007] 1 All SA 337 (SCA), 2006 (6) SA 587 (SCA) 368, 369
Minister van Justisie v Jaffer [1995] 1 All SA 366 (A), 1995 (1) SA 273 (A) 89
Minister van Landbou v Sonnendecker [1979] 2 All SA 19 (A), 1979 (2) SA 944 (A) 303
Minister van LandbouTegniese Dienste v Scholtz
[1971] 3 All SA 81 (A), 1971 (3) SA 188 (A) 330
Minister van Polisie v Chetty [1976] 2 All SA 508 (A), 1977 (2) SA 885 (A) 41
Minister van Polisie v Ewels 1975 (3) SA 590 (A) 164
Minister van Polisie v Gamble 1979 (4) SA 759 (A) 53, 343
Minister van Polisie v Goldschagg [1981] 3 All SA 321 (A), 1981 (1) SA 37 (A) 54
Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101 (A) 164
Minister van Veiligheid en Sekuriteit v Geldenhuys
[2003] 4 All SA 330 (SCA), 2004 (1) SA 515 (SCA) 163
Minister van Veiligheid en Sekuriteit v Japmoco 2002 (5) SA 649 (SCA) 370
Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK
2002 (5) SA 475 (SCA) 371
Minister van Wet en Orde v Jacobs 1999 (1) SA 944 (O) 3
Minister van Wet en Orde v Ntsane 1993 (1) SA 560 (A), 1993 (1) SACR 256 (A) 273
Mittermeier v Skema Engineering (Pty) Ltd [1984] 1 All SA 252 (A), 1984 (1) SA 121 (A) 283
Mkangeli v Joubert [2002] 2 All SA 473 (A), 2002 (4) SA 36 (SCA) 191, 364
Mkhatswa v Minister of Defence [2000] 1 All SA 188 (A), 2000 (1) SA 1104 (SCA) 270
Mkize v Lourens 2003 (3) SA 292 (T) 330
Mlombo v Fourie [1964] 3 All SA 555 (T), 1964 (3) SA 350 (T) 373
MM v MN 2013 (4) SA 415 (CC)
(also reported as Mayelane v Ngwenyama 2013 (8) BCLR 918 (CC)) 142, 171
Mmabatho Food Corp (Pty) Ltd v Fourie [1985] 1 All SA 92 (T), 1985 (1) SA 318 (T) 288
Mnweba v Maharaj [2001] 1 All SA 265 (C) 242
Moaki v Reckitt & Colman (Africa) Ltd [1968] 2 All SA 141 (W), 1968 (1) SA 702 (W) 209
Moaki v Reckitt & Colman (Africa) Ltd
[1968] 3 All SA 242 (A), 1968 (3) SA 98 (A) 1, 208, 209, 256
Mobil Oil Southern Africa (Pty) Ltd v Mechin
[1965] 2 All SA 533 (A), 1965 (2) SA 706 (A) 103
Modiri v Minister of Safety and Security and others
[2012] 1 All SA 154 (SCA), 2011 (6) SA 370 (SCA) 158
Mogaila v Coca Cola Fortune (Pty) Limited
2017 (7) BCLR 839 (CC), 2018 (1) SA 82 (CC) 305
Moghamat v Centre Guards CC [2004] 1 All SA 221 (C) 57
Mograbi v Miller [1956] 4 All SA 220 (T), 1956 (4) SA 239 (T) 153
Mohamed v Jassiem 1996 (1) SA 673 (A) 152
Mohamed's Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd
2018 (2) SA 314 (SCA) 119
Mokone v Tassos Properties CC and another
2017 (10) BCLR 1261 (CC), 2017 (5) SA 456 (CC) 35, 239, 302
Molefe v Mahaeng [1998] 4 All SA 423 (A), 1999 (1) SA 562 (SCA) 270
Moller v SA Railways & Harbours [1969] 3 All SA 370 (N), 1969 (3) SA 374 (N) 279, 280
Moloi v Road Accident Fund [2000] 4 All SA 576 (A), 2001 (3) SA 546 (SCA) 304
Molusi and others v Voges NO and others
2016 (3) SA 370 (CC), 2016 (7) BCLR 839 (CC) 1, 95, 190, 373
Momentum Group Ltd v Van Staden NO and another
[2009] 4 All SA 218 (SCA), 2010 (2) SA 135 (SCA) 72
Mondi SA Ltd v Martens [2012] 1 All SA 602 (KZP), 2012 (2) SA 469 (KZP) 368
Moni v Mutual & Federal Versekeringsmaatskappy Bpk
[1992] 1 All SA 135 (T), 1992 (2) SA 600 (T) 11
Montesse Township & Investment Corp (Pty) Ltd v Gouws NO
[1965] 4 All SA 285 (A), 1965 (4) SA 373 (A) 378
Montsisi v Minister van Polisie [1984] 1 All SA 478 (A), 1984 (1) SA 619 (A) 11, 12
Moola and others v Aulsebrook NO and others 1983 (1) SA 687 (N) 176
Moosa NO and others v Minister of Justice and Correctional Services and others
[2018] ZACC 19 176
Moraitis v De Canha [1984] 3 All SA 206 (W), 1984 (1) SA 420 (W) 74
Moraitis Investments (Pty) Ltd and others v Montic Diary (Pty) Ltd and others
[2017] 3 All SA 485 (SCA), 2017 (5) SA 508 (SCA) 338
Morar NO v Akoo and another [2011] 4 All SA 617 (SCA), 2011 (6) SA 311 (SCA) 228, 287
Morettino v Italian Design Experience CC [2000] 4 All SA 158 (W) 124
Morgenster 1711 (Pty) Ltd v De Kock NO and others
[2012] 2 All SA 640 (WCC), 2012 (3) SA 59 (WCC) 303
Morris v Benson & Hedges [2000] JOL 6387 (W), 2000 (3) SA 1092 (W) 131, 169
Morrison v Standard Building Society 1932 AD 229 377
Mort NO v Chiat [2000] 2 All SA 515 (C), 2001 (1) SA 464 (C) 28, 241, 310
Mosam v De Kamper [1964] 4 All SA 176 (T), 1964 (3) SA 794 (T) 147
Moses v Min for Safety & Security [2000] 1 All SA 89 (C), 2000 (3) SA 106 (C) 60
Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA)
[1983] 4 All SA 346 (T), 1983 (3) SA 896 (T) 278, 279
Mostert NO v Old Mutual Life Assurance Co (SA) Ltd
[2001] 4 All SA 250 (A), 2001 (4) SA 159 (SCA) 115
Mostert and others v Firstrand Bank t/a RMB Private Bank [2018] ZASCA 54 298
Motani Lounge (Pty) Ltd v Standard Bank of SA Ltd 1995 (2) SA 498 (W) 350
Motion Transfer & Precision Roll Grinding CC v Carsten [1998] 4 All SA 168 (N) 94
Motor Marine (Edms) Bpk v Thermotron [1985] 1 All SA 40 (SE), 1985 (2) SA 127 (SE) 233
Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd
[1996] 4 All SA 601 (A), 1996 (4) SA 950 (A) 193, 194
Motsetse v Motsetse [2015] 2 All SA 495 (FB) 173
Mountbatten Investments (Pty) Ltd v Mahomed
[1989] 1 All SA 94 (D), 1989 (1) SA 172 (D) 196
Mouton v Boland Bank Ltd [2001] 3 All SA 485 (SCA), 2001 (3) SA 877 (SCA) 82
Mouton v Hanekom [1959] 1 All SA 69 (A), 1959 (3) SA 35 (A) 311
Mouton v Mynwerkersunie [1977] 1 All SA 242 (A), 1977 (1) SA 119 (A) 245
Movie Camera Co (Pty) Ltd v Van Wyk [2003] 2 All SA 291 (C) 205
MT Argun v Master and Crew of the MT Argun and others 2004 (1) SA 1 (SCA) 24
MthembiMahanyele v Mail & Guardian Ltd
[2004] 3 All SA 511 (SCA), 2004 (6) SA 329 (SCA) 152
MTO Forestry (Pty) Ltd v Swart NO
[2017] 3 All SA 502 (SCA), 2017 (5) SA 76 (SCA) 162, 164, 368
Mtokonya v Minister of Police 2017 (11) BCLR 1443 (CC) 306
Mufamadi v Dorbyl Finance (Pty) Ltd 1996 (1) SA 799 (A) 116
Mühlmann v Mühlmann [1984] 1 All SA 340 (A), 1984 (3) SA 102 (A) 106, 175, 286
Mukheiber v Raath [1999] 3 All SA 490 (A), 1999 (3) SA 1065 (SCA) 258
Mullane and another v Smith and others [2015] 3 All SA 230 (GJ) 367
Muller v CocaCola Sabco (SA) (Pty) Ltd 1998 (2) SA 824 (SE) 81
Muller v Möller [1965] 2 All SA 223 (C), 1965 (1) SA 872 (C) 235
Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk
[2000] 4 All SA 412 (C), 2001 (1) SA 313 (C) 32
Muller v Pienaar [1968] 3 All SA 290 (A), 1968 (3) SA 195 (A) 286
Muller and others v Botswana Development Corporation Ltd
[2002] 3 All SA 663 (SCA), 2003 (1) SA 651 (SCA) 7, 8, 350, 352
Multi Tube Systems (Pty) Ltd v Ponting [1984] 3 All SA 578 (D), 1984 (3) SA 182 (D) 94
Multilateral Motor Vehicle Accidents Fund v Thabede
[1994] 2 All SA 207 (N), 1994 (2) SA 610 (N) 108
Municipality of Stellenbosch v Levinsohn 1911 CPD 303 278
Murabi v Murabi [2014] 2 All SA 644 (SCA) (also reported as TM v NM
2014 (4) SA 575) (SCA) 142
Murcia Lands CC v Erinvale Country Est Home Owners Association
[2004] 4 All SA 656 (C) 127
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality
1984 (1) SA 571 (A) 305
Mutebwa v Mutebwa [2001] 1 All SA 83 (Tk), 2001 (2) SA 193 (Tk) 232
Mutual & Federal Insurance Co Ltd v Day [2001] 4 All SA 6 (SCA),
2001 (3) SA 775 (SCA) 322
Mutual & Federal Insurance Co Ltd v Kok 1985 (2) SA 225 (TkA) 282
Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality
[1985] 1 All SA 324 (A), 1985 (1) SA 419 (A) 217
Mutual & Federal Insurance Company Ltd v SMD Telecommunications CC
2011 (1) SA 94 (SCA), [2011] 2 All SA 34 (SCA) 219
Mutual & Federal Ltd v Rumdel Construction (Pty) Ltd
[2005] 1 All SA 405 (SCA), 2005 (2) SA 179 (SCA) 225
Mutual Construction Co (Tvl) (Pty) Ltd v Komati Dam Joint Venture
[2009] 1 All SA 458 (SCA), 2009 (1) SA 464 (SCA) 239
MV Heavy Metal; Belfry Marine Ltd v Palm Base Maritime SDN BHD
1999 (3) SA 1083 (SCA) 25
MV Nyk Isabel: Northern Endeavour Shipping Pte Ltd v
Owners of MV Nyk Isabel and another 2017 (1) SA 25 (SCA) 24
MV Orient Stride: Asiatic Shipping Services Inc v Elgina Marine Co Ltd
2009 (1) SA 246 (SCA) 23
The MV Sea Joy: Owners of the Cargo lately laden on board the MV Sea Joy v
The MV Sea Joy [1997] 4 All SA 191 (C), 1998 (1) SA 487 (C) 223
MV Stella Tignas: Transnet Ltd t/a Portnet v Owners of the MV Stella Tignas
[2003] 1 All SA 286 (SCA), 2003 (2) SA 473 (SCA) 271
Mvumvu v Minister for Transport 2011 (5) BCLR 488 (CC), 2011 (2) SA 473 (CC) 321
MY Summit One: Farocean Marine (Pty) Ltd v Malacca Holdings Ltd and another
2005 (1) SA 428 (SCA) 24
Myathaza v Johannesburg Metropolitan Bus Services (SOC) Limited t/a
Metrobus and others 2017 (4) BCLR 473 (CC), 2018 (1) SA 38 (CC) 305
Myers v Abramson [1952] 1 All SA 267 (C), 1952 (3) SA 121 (C) 104
Myflor Investments (Pty) Ltd v Everett NO [2000] 1 All SA 586 (C), 2001 (2) SA 1083 (C) 35
N
N Goodwin Design (Pty) Ltd v Moscak [1992] 3 All SA 270 (C), 1992 (1) SA 154 (C) 4
Naidoo v ABSA Bank Ltd [2010] 4 All SA 496 (SCA), 2010 (4) SA 597 (SCA) 140
Namibian Minerals Corporation v Benguela Concessions Ltd
[1997] 1 All SA 191 (A), 1997 (2) SA 548 (A) 110
Nampak Products Ltd v ManDirk (Pty) Ltd
[1999] 2 All SA 543 (A), 1999 (3) SA 708 (SCA) 295
Nampak Products Ltd t/a Nampak Flexible Packaging v Sweetcor (Pty) Ltd
1981 (4) SA 919 (T) 74
Napier v Collett [1995] 2 All SA 457 (A), 1995 (3) SA 140 (A) 218
Nash v Golden Dumps (Pty) Ltd [1985] 2 All SA 161 (A), 1985 (3) SA 1 (A) 314
Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing
[2001] 2 All SA 319 (T), 2001 (2) SA 790 (T) 1, 6, 145
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] 2 All SA 262 (SCA), 2012 (4) SA 593 (SCA) 109
Natalse Landboukoöperasie Bpk v Fick [1982] 2 All SA 326 (N), 1982 (4) SA 287 (N) 235
National African Federated Chamber of Commerce and Industry and others v
Mkhize and others [2015] 1 All SA 393 (SCA) 377
National & Overseas Distributors Corp (Pty) Ltd v Potato Board
[1958] 3 All SA 13 (A), 1958 (2) SA 473 (A) 266
National Association of Broadcasters v South African Music Performance Rights
Association and another [2014] 2 All SA 263 (SCA), 2014 (3) SA 525 (SCA) 129
National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd 2001 (3) SA 563 (SCA) 360, 361
National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 (3) SA 1092 (T) 318
National Credit Regulator v Opperman and others
2013 (2) BCLR 170 (CC), 2013 (2) SA 1 (CC) 134
National Education, Health & Allied Workers Union v Tsatsi
[2006] 1 All SA 583 (SCA), 2006 (6) SA 327 (SCA) 154
National Health Laboratory Service v LloydJansen van Vuuren 2015 (5) SA 426 (SCA) 277
National Media Ltd v Bogoshi
[1998] 4 All SA 347 (A), 1998 (4) SA 1196 (SCA) 151, 152, 155, 158, 159, 160, 161
National Media Ltd v Jooste [1996] 2 All SA 510 (A), 1996 (3) SA 262 (A) 207, 209
National Sorghum Breweries (Pty) Ltd t/a Vivo Africa Breweries v
International Liquor Distributors (Pty) Ltd
[2001] 1 All SA 417 (A), 2001 (2) SA 232 (SCA) 103, 127, 143, 315
National South British Insurance Co Ltd v Vitoria
[1982] 1 All SA 173 (A), 1982 (1) SA 444 (A) 274
National Stadium South Africa (Pty) Ltd and others v Firstrand Bank Ltd
[2011] 3 All SA 29 (SCA), 2011 (2) SA 157 (SCA) 10
National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984 157, 158
Naudé v Ecoman Investments [1994] 1 All SA 72 (T), 1994 (2) SA 95 (T) 320
Naude v Fraser [1998] 3 All SA 239 (SCA), 1998 (4) SA 539 (SCA) 349
Naude v Heatlie; Naude v WorcesterOos Hoofbesproeiingsraad
[2001] 2 All SA 521 (A), 2001 (2) SA 815 (A) 380
Navidas (Pty) Ltd v Essop; Metha v Essop [1994] 2 All SA 426 (A), 1994 (4) SA 141 (A) 74, 75
Naylor v Jansen [2005] 4 All SA 26 (SCA), 2006 (3) SA 546 (SCA) 155, 159
NBS Bank Ltd v Cape Produce Co (Pty) Ltd
[2002] 2 All SA 262 (A), 2002 (1) SA 396 (SCA) 26, 64, 106
NBS Boland Bank v One Berg River Drive; Deeb v ABSA Bank Ltd; Friedman v
Standard Bank of SA Ltd [1999] 4 All SA 183 (A), 1999 (4) SA 928 (SCA) 35
Ncqula v Muller's Book Shop [1960] 4 All SA 218 (E), 1960 (4) SA 300 (E) 27
Ndamse v University College of Fort Hare [1966] 4 All SA 292 (E), 1966 (4) SA 137 (E) 209
Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA), 2003 (1) SA 113 (SCA)192, 193
Ndlovu v Santam Ltd 2006 (2) SA 239 (SCA) 5, 313
Ndubu and others v First Rand Bank Limited t/a Wesbank [2017] ZASCA 61 352
Nedbank Limited v Steyn and others [2015] 2 All SA 671 (SCA), 2016 (2) SA 416 (SCA) 147
Nedbank Ltd v Aldick 1981 (3) SA 1007 (D) 74
Nedbank Ltd v Mateman; Nedbank Ltd v Stringer
[2008] 1 All SA 593 (T), 2008 (4) SA 276 (T) 134
Nedbank Ltd v Mendelow NO and another 2013 (6) SA 130 (SCA) 285
Nedbank Ltd v National Credit Regulator 2011 (3) SA 581 (SCA) 224
Nedbank Ltd v Pestana [2009] 2 All SA 58 (SCA), 2009 (2) SA 189 (SCA) 63
Nedbank Ltd v Zevoli 208 (Pty) Ltd 2017 (6) SA 318 (KZP) 350
Nedcor Bank Ltd v ABSA Bank [1995] 3 All SA 291 (W), 1995 (4) SA 727 (W) 22
Nedcor Bank Ltd v Rundle [2007] 4 All SA 1120 (SCA), 2008 (1) SA 415 (SCA) 307
Nedcor Bank Ltd v Withinshaw Properties (Pty) Ltd 2002 (6) SA 236 (C) 239
Nedcor Bank Ltd t/a Nedbank v LloydGray Lithographers (Pty) Ltd
[2000] 4 All SA 393 (A), 2000 (4) SA 915 (SCA) 66, 273
Nedcor Bank Ltd t/a Nedbank v Mooipan Voer & Graanverspreiders CC
[2002] 3 All SA 477 (T) 102
Neethling v Du Preez; Neethling v The Weekly Mail
[1994] 3 All SA 479 (A), 1994 (1) SA 708 (A) 152, 158, 159
Neethling v Klopper [1967] 4 All SA 304 (A), 1967 (4) SA 459 (A) 37
Nel v Cloete [1972] 4 All SA 573 (A), 1972 (2) SA 150 (A) 268
Nel v Dobie [1966] 3 All SA 581 (N), 1966 (3) SA 352 (N) 239
Nel v Drilec (Pty) Ltd 1976 (3) SA 79 (D) 316
Nel v Louw [1955] 1 All SA 86 (C), 1955 (1) SA 107 (C) 369
Nel v Metequity Ltd [2007] 2 All SA 602 (SCA), 2007 (3) SA 34 (SCA) 86
Nel v Nelspruit Motors (Edms) Bpk [1961] 2 All SA 60 (A), 1961 (1) SA 582 (A) 108
Nel v Road Accident Fund 2016 (2) SA 517 (GP) 324
Nell, Ex parte [1963] 2 All SA 55 (A), 1963 (1) SA 754 (A) 150
Nelson v Hodgetts Timbers (East London) (Pty) Ltd
[1973] 3 All SA 185 (A), 1973 (3) SA 37 (A) 351
Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron
[1978] 2 All SA 1 (A), 1978 (1) SA 463 (A) 351
Nestlé (SA) (Pty) Ltd v Mars Inc [2001] 4 All SA 315 (A), 2001 (4) SA 542 (SCA) 251
Netlon Ltd v Pacnet (Pty) Ltd [1977] 4 All SA 169 (A), 1977 (3) SA 840 (A) 378
Neuhoff v York Timbers Ltd [1981] 4 All SA 675 (T), 1981 (4) SA 666 (T) 311
New Age Press Ltd v O'Keefe [1947] 1 All SA 251 (W), 1947 (1) SA 311 (W) 152
New Club Garage v Milborrow & Son 1931 GWL 86 275, 276
New Media Publishing (Pty) Ltd v Eating Out Web Services 2005 (5) SA 388 (C) 379
Ngqukumba v Minister of Safety and Security and others
2014 (7) BCLR 788 (CC), 2014 (5) SA 112 (CC) 342
Ngubane v SA Transport Services [1991] 4 All SA 22 (A), 1991 (1) SA 756 (A) 144
Nissan SA (Pty) Ltd v Marnitz NO (Stand 186 Aeroport (Pty) Ltd intervening)
[2006] 4 All SA 120 (SCA), 2005 (1) SA 441 (SCA) 22, 63, 298
Nkala and others v Harmony Gold Mining Company Limited and others
[2016] 3 All SA 233 (GJ), 2016 (7) BCLR 881 (GJ), 2016 (5) SA 240 (GJ) 207
Nkengana and another v Schnetler and another [2011] 1 All SA 272 (SCA) 124, 356
Nkisimane v Santam Insurance Co Ltd [1978] 3 All SA 33 (A), 1978 (2) SA 430 (A) 323
NKP Kunsmisverspreiders (Edms) Bpk v Sentrale Kunsmis Korp (Edms) Bpk
1973 (2) SA 680 (T) 356
NM v Smith (Freedom of Expression Institute as amicus curiae) 2007 (5) SA 250 (CC) 207
NMB Bank Limited v Capsopoulos and another [2017] 3 All SA 765 (SCA) 22, 299
Noormohamed v Visser NNO 2006 (1) SA 290 (SCA) 35, 61
North & Son (Pty) Ltd v Albertyn [1962] 1 All SA 176 (A), 1962 (2) SA 212 (A) 117
North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd
[2013] 3 All SA 291 (SCA), 2013 (5) SA 1 (SCA) 45
North West Arts Council v Sekhabi [1996] 3 All SA 361 (B) 275
Northern Assurance Co Ltd v DelbrookJones
[1966] 3 All SA 117 (T), 1966 (3) SA 176 (T) 353
Northern Estate and Trust Administrators (Pty) Ltd v Agricultural and
Rural Development Corporation [2014] 1 All SA 655 (SCA) 72
Northern Metropolitan Local Council v Company Unique Finance (Pty) Ltd and others
[2012] 3 All SA 498 (SCA), 2012 (5) SA 323 (SCA) 188
Northwest Provincial Government v Tswaing Consulting CC
[2007] 2 All SA 365 (SCA), 2007 (4) SA 452 (SCA) 45, 205
Novartis v Maphil [2015] 4 All SA 417 (SCA), 2016 (1) SA 518 (SCA) 107, 109
Novick v Benjamin [1972] 2 All SA 510 (A), 1972 (2) SA 842 (A) 114, 115, 314
Novick v Comair Holdings Ltd [1979] 3 All SA 73 (W), 1979 (2) SA 116 (W) 262, 264
NSC Carriers and Forwarding CC and others v Hyprop Investments Limited and others
[2012] 4 All SA 678 (GSJ) 316
Ntai v Vereeniging Town Council [1953] 4 All SA 358 (A), 1953 (4) SA 579 (A) 341
Ntsele v MEC for Health, Gauteng Provincial Government [2013] 2 All SA 356 (GSJ) 258
Ntshiqa v Andreas Supermarket (Pty) Ltd
[1996] 3 All SA 154 (Tk), 1997 (1) SA 184 (Tk); 1997 (3) SA 60 (Tk) 240
Ntuli v Ntuli 1946 TPD 181 228
Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG
[1997] 1 All SA 11 (A), 1996 (4) SA 1190 (A) 119, 122
Nunes v Crawford and others [2010] 4 All SA 304 (WCC) 49
Nusca v Nusca [1995] 3 All SA 104 (T), 1995 (4) SA 813 (T) 13, 15
O
O'Callaghan NO v Chaplin 1927 AD 310 40, 41
O'Connell, Manthe, Cragg & Partners v Charles
[1970] 1 All SA 196 (E), 1970 (1) SA 7 (E) 50
Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd
1976 (1) SA 441 (A) 189, 374
Ocean Bentonite Co (Pty) Ltd v Crause 1981 (3) SA 1177 (A) 338
Ocean Diners (Pty) Ltd v Golden Hill Construction CC
[1993] 2 All SA 260 (A), 1993 (3) SA 331 (A) 50
Ocean Echo Properties 327 CC and another v Old Mutual Life Assurance Company
(South Africa) Ltd 2018 (3) SA 405 (SCA) 7
Odendaal v Ferraris [2008] 4 All SA 529 (SCA), 2009 (4) SA 313 (SCA) 329, 330, 331
Odendaal v Van Oudtshoorn [1968] 3 All SA 482 (T), 1968 (3) SA 433 (T) 275, 276
Odinfin (Pty) Ltd v Reynecke 2018 (1) SA 153 (SCA) 164, 348
Oelofsen NO v Cigna Insurance Co of SA Ltd
[1992] 2 All SA 448 (T), 1991 (1) SA 74 (T) 221
Oerlikon SA (Pty) Ltd v Johannesburg City Council
[1970] 3 All SA 563 (A), 1970 (3) SA 579 (A) 122
Oertel NNO v Direkteur van Plaaslike Bestuur
[1983] 1 All SA 159 (A), 1983 (1) SA 354 (A) 305
Oertel NO v Brink 1972 (3) SA 669 (W) 300
OffBeat Holiday Club and another v Sanbonani Holiday Spa
Shareblock Limited and others 2017 (7) BCLR 916 (CC), 2017 (5) SA 9 (CC) 305
Offit Enterprises (Pty) Ltd v Knysna Development Co (Pty) Ltd
[1987] 2 All SA 222 (C), 1987 (4) SA 24 (C) 311
Offit Enterprises (Pty) Ltd and another v Coega Development
Corporation (Pty) Ltd and others 2011 (2) BCLR 189 (CC) 197
Offit Farming Enterprises (Pty) Ltd v Coega Development Corporation (Pty) Ltd
[2010] 2 All SA 545 (SCA), 2010 (4) SA 242 (SCA) 197
Oilwell (Pty) Ltd v Protec International Ltd and others
[2011] ZASCA 29, 2011 (4) SA 394 (SCA) 119
Olitzki Property Holdings v State Tender Board and another
2001 (8) BCLR 779 (SCA), 2001 (3) SA 1247 (SCA) 347
Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd
1978 (3) SA 465 (A) 169, 296
Omega Louis Brandt et Frere SA v African Textile Distributors
[1982] 3 All SA 612 (T), 1982 (1) SA 951 (T) 291
Ongevallekommissaris v Santam Bpk [1998] 4 All SA 507 (A), 1999 (1) SA 251 (SCA) 144
Oosthuizen v Castro [2017] 4 All SA 876 (FB), 2018 (2) SA 529 (FB) 219
Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape
2015 (12) BCLR 1471 (CC), 2016 (1) SA 325 (CC) 162, 164, 258
Optima Fertilizers (Pty) Ltd v Turner [1968] 4 All SA 95 (D), 1968 (4) SA 29 (D) 277
Optimprops 1030 CC v First National Bank of SA [2002] 4 All SA 582 (N) 77
Oranje Benefit Society v Central Merchant Bank Ltd
[1976] 4 All SA 551 (A), 1976 (4) SA 659 (A) 377
Orchison, Ex parte [1952] 3 All SA 43 (T), 1952 (3) SA 66 (T) 126
Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC
[2011] 3 All SA 173 (SCA), 2011 (2) SA 508 (SCA) 188
Osborne v West Dunes Properties 176 (Pty) Ltd 2013 (6) SA 105 (WCC) 311
Osborne Panama SA v Shell & BP SA Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A)163
Oshry NO and another v Feldman [2011] 1 All SA 124 (SCA), 2010 (6) SA 19 (SCA) 125
Oslo Land Co Ltd v The Union Government 1938 AD 584 236
Osman v Road Accident Fund 2015 (6) SA 74 (GP) 254
Osman v Standard Bank National Credit Corp Ltd
[1985] 1 All SA 585 (C), 1985 (2) SA 378 (C) 265
Owsianick v African Consol Theatres (Pty) Ltd
[1967] 3 All SA 337 (A), 1967 (3) SA 310 (A) 302
Ozinsky NO v Lloyd 1992 (3) SA 396 (C) 85
Ozinsky NO v Lloyd [1995] 2 All SA 373 (A), 1995 (2) SA 915 (A) 85, 205
P
Paddock Motors (Pty) Ltd v Igesund [1976] 3 All SA 332 (A), 1976 (3) SA 16 (A) 127
Padiachy v Motor Mecca JHB CC 2002 (4) SA 351 (W) 167
Paixão and another v Road Accident Fund
[2012] 4 All SA 262 (SCA), 2012 (6) SA 377 (SCA) 254
Palabora Copper (Pty) Ltd v Motlokwa Transport and Construction (Pty) Ltd
[2018] ZASCA 23 47
Palabora Mining Co Ltd v Coetzer [1993] 2 All SA 45 (T), 1993 (3) SA 306 (T) 239
Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd
[1978] 3 All SA 406 (A), 1978 (2) SA 872 (A) 112
Panamo Properties (Pty) Ltd and another v Nel NO and others
2015 (5) SA 63 (SCA), [2015] 3 All SA 274 (SCA) 119
Papenfus v Torre NO 2012 (5) SA 612 (GNP) 31, 61
Paradyskloof Golf Estate (Pty) Ltd v Municipality of Stellenbosch
[2010] 4 All SA 591 (SCA), 2011 (2) SA 525 (SCA) 379
Parekh v Shah Jehan Cinemas [1982] 3 All SA 697 (D), 1982 (3) SA 618 (D) 84
Parekh v Shah Jehan Cinemas (Pty) Ltd [1980] 1 All SA 239 (D), 1980 (1) SA 301 (D) 44
Parsons Transport (Pty) Ltd v Global Insurance Co Ltd
[2005] ZASCA 95, 2006 (1) SA 488 (SCA) 111, 218
Pataka v Keefe [1947] 3 All SA 125 (A), 1947 (2) SA 962 (A) 287
Patel v Adam [1977] 3 All SA 31 (A), 1977 (2) SA 653 (A) 91
Patel v Grobbelaar [1974] 1 All SA 518 (A), 1974 (1) SA 532 (A) 365
Patel v Paruk's Trustee 1944 AD 469 79
Patz v Greene & Co 1907 TS 427 347
Paulsen and another v Slip Knot Investments 777 (Pty) Limited
2015 (3) SA 479 (CC), 2015 (5) BCLR 509 (CC) 135, 224
Paulsen and another v Slip Knot Investments 777 (Pty) Ltd
[2014] 2 All SA 527 (SCA), 2014 (4) SA 253 (SCA) 135
Payen Components SA Ltd v Bovic CC [1995] 2 All SA 600 (A), 1995 (4) SA 441 (A)293, 366
PE v Ikwezi Municipality 2016 (5) SA 114 (ECG) 371
Peffers NO v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control
1965 (2) SA 53 (C) 244
Penderis & Gutman NNO v Liquidators, ShortTerm Business, AA Mutual Ins Association Ltd 1992 (4) SA 836 (A) 218
Pennefather v Gokul [1960] 3 All SA 446 (N), 1960 (4) SA 42 (N) 196
Pentree Limited v Nelson Mandela Bay Municipality
[2017] 2 All SA 260 (ECP), 2017 (4) SA 32 (ECP) 199
Pentz v Government of the RSA [1983] 2 All SA 312 (A), 1983 (3) SA 584 (A) 307
Perdikis v Jamieson [2002] 4 All SA 560 (W), 2002 (6) SA 356 (W) 48
Pereira v Marine & Trade Insurance Co Ltd [1975] 4 All SA 635 (A), 1975 (4) SA 745 (A)217
PeriUrban Areas Health Board v Breet NO [1955] 2 All SA 186 (T), 1958 (3) SA 783 (T) 188
PeriUrban Areas Health Board v Munarin [1965] 3 All SA 471 (A), 1965 (3) SA 367 (A) 372
Perumal v Govender 1997 (3) SA 644 (N) 185
Peter Cooper & Co (previously Cooper & Ferreira) v De Vos [1998] 2 All SA 237 (E) 353
Peter Taylor & Associates v Bell Estates (Pty) Ltd and another
[2013] ZASCA 94, 2014 (2) SA 312 (SCA) 308
Peters NO v Schoeman [2001] 1 All SA 155 (A), 2001 (1) SA 872 (SCA) 103
Peters Flamman & Co v Kokstad Municipality 1919 AD 427 122
Petersen v Minister of Safety and Security [2010] 1 All SA 19 (SCA) 58
Pete's Warehousing and Sales CC v Bowsink Investments CC
[2000] 2 All SA 266 (E), 2000 (3) SA 833 (E) 108
Pezula Private Estate (Pty) Ltd v Metelerkamp and another
[2014] 1 All SA 664 (SCA), 2014 (5) SA 37 (SCA) 303
Pezzutto v Dreyer [1992] 2 All SA 81 (A), 1992 (3) SA 379 (A) 286
Pfeiffer v First National Bank of SA Ltd
[1998] 3 All SA 397 (A), 1998 (3) SA 1018 (SCA) 299, 351
PG Bison Ltd v Master of the High Court [2000] 1 All SA 363 (A), 2000 (1) SA 859 (A) 72
PGB Boerdery Beleggings (Edms) Bpk v Somerville 62 (Edms) Bpk
2008 (2) SA 428 (SCA) 42, 278
Phame (Pty) Ltd v Paizes [1973] 3 All SA 501 (A), 1973 (3) SA 397 (A) 262, 263, 264
Pheasant v Warne 1922 AD 481 261
Pheiffer v Van Wyk 2015 (5) SA 464 (SCA) 250
Philip Morris Inc v Marlboro Shirt Co SA Ltd
[1991] 2 All SA 177 (A), 1991 (2) SA 720 (A) 291
Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd
[1975] 2 All SA 633 (A), 1975 (2) SA 420 (A) 19, 20, 144, 373, 374
Phillips v Aida Real Estate (Pty) Ltd [1975] 3 All SA 143 (A), 1975 (3) SA 198 (A) 32
Phillips v Fieldstone Africa (Pty) Ltd
[2004] 1 All SA 150 (SCA), 2004 (3) SA 465 (SCA) 13, 14, 15, 203
Phillips v General Accident Insurance Co (SA) Ltd
[1983] 3 All SA 101 (W), 1983 (4) SA 652 (W) 216
Phillips Estate (Pvt) Ltd v Braunstein [1964] 4 All SA 166 (SR), 1964 (3) SA 818 (SR) 295
Philmatt (Pty) Ltd v Mosselbank Developments CC
[1996] 1 All SA 296 (A), 1996 (2) SA 15 (SCA) 36
Philotex (Pty) Ltd v Snyman; Braitex (Pty) Ltd v Snyman 1998 (2) SA 138 (SCA) 85
Phokwane Municipality v Triple Seven Commercial Holdings CC and another
[2016] 4 All SA 606 (NCK) 308
Phumelela Gaming and Leisure Limited v Gründlingh
2006 (8) BCLR 883(CC), 2007 (6) SA 350 (CC) 162, 367
Picardi Hotels Ltd v Thekweni Properties (Pty) Ltd
[2009] 1 All SA 471 (SCA), 2009 (1) SA 493 (SCA) 72
Picbel Groep Voorsorgfonds (in liquidation) v Somerville and other related matters
[2013] 2 All SA 692 (SCA), 2013 (5) SA 496 (SCA) 7, 274
Pick 'n Pay Retailers (Pty) Ltd and others v Eayrs and others NNO
[2012] 1 All SA 522 (SCA), 2012 (1) SA 238 (SCA) 302
Pick 'n Pay Stores Ltd v Teazers Comedy and Revue CC
[2000] 2 All SA 604 (W), 2000 (3) SA 645 (W) 285
Pienaar v Brown [2010] 2 All SA 495 (SCA), 2010 (6) SA 365 (SCA) 372
Pienaar v Fortuin [1977] 1 All SA 56 (T), 1977 (4) SA 428 (T) 328
Pienaar v Guardian National Insurance Co Ltd
[2002] 3 All SA 27 (C), 2002 (3) SA 640 (C) 216
Pienaar v Maritz t/a JJ Coal Suppliers [1985] 2 All SA 612 (T), 1985 (1) SA 547 (T) 74
Pienaar v Minister van Landbou [1972] 1 All SA 287 (T), 1972 (1) SA 14 (T) 198
Pienaar v Southern Insurance Association Ltd
[1983] 1 All SA 268 (C), 1983 (1) SA 917 (C) 379
Pietermaritzburg and District Council for the Care of the Aged (PADCA) v
Redlands Development Projects (Pty) Ltd and others 2018 (4) SA 113 (SCA) 380
Pieters v Botha [1989] 3 All SA 667 (T), 1989 (3) SA 607 (T) 39
Pieterse v Shrosbree and others; Shrosbree v Love and others
[2006] 3 All SA 343 (SCA) 125
Pillay v Krishna 1946 AD 946 166, 299
Pillay v Naidoo 1916 WLD 151 153
Pillay and another v Shaik and others
[2009] 2 All SA 435 (SCA), 2009 (4) SA 74 (SCA) 105, 266
Pioneer Foods (Pty) Limited v Bothaville Milling (Pty) Limited [2014] 2 All SA 282 (SCA) 290
Pitje v Shibambo and others 2016 (4) BCLR 460 (CC) 192
Pitout v Mbolane [2000] 2 All SA 377 (LCC) 192
Pizani v First Consolidated Holdings (Pty) Ltd [1979] 1 All SA 167 (A), 1979 (1) SA 69 (A)351
PJLG and another, Ex parte; In re: PJLG and another [2013] 4 All SA 41 (ECG) 173
PL v YL 2013 (6) SA 28 (ECG) 173
Plaaskem (Pty) Ltd v Nippon Africa Chemicals (Pty) Ltd
[2014] 4 All SA 12 (SCA), 2014 (5) SA 287 (SCA) 102, 109
Plaaslike Boeredienste (Edms) Bpk v Chemfos Bpk
[1986] 2 All SA 42 (A), 1986 (1) SA 819 (A) 28
PlasconEvans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] 2 All SA 366 (A), 1984 (3) SA 623 (A) 361, 363
Polakow Bros (Pty) Ltd v Gershlowitz [1976] 1 All SA 452 (SE), 1976 (1) SA 863 (SE) 290
Ponelat v Schrepfer [2012] 1 All SA 532 (SCA), 2012 (1) SA 206 (SCA) 286
Ponisammy v Versailles Estates (Pty) Ltd [1973] 1 All SA 540 (A),
1973 (1) SA 372 (A) 268, 269
Porritt v Molefe 1982 (3) SA 76 (A) 368
Porter v Cape Town City Council [1961] 4 All SA 270 (C), 1961 (4) SA 278 (C) 279
Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
2000 (4) SA 598 (C) 337
Portion 1 of 46 Wadeville (Pty) Ltd v Unity Cutlery (Pty) Ltd
[1984] 1 All SA 260 (A), 1984 (1) SA 61 (A) 71
Portwood v Svamvur [1970] 4 All SA 186 (RA), 1970 (4) SA 8 (RA) 41
Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd
[1970] 1 All SA 348 (T), 1970 (1) SA 454 (T) 210
Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd
1998 (3) SA 1114 (ZHC) 152
Potgieter v Potgieter NO 2012 (1) SA 637 (SCA) 125, 126
Potgieter v Smit [1985] 1 All SA 154 (D), 1985 (2) SA 690 (D) 39
Powell v ABSA Bank Ltd t/a Volkskas Bank
[1997] 4 All SA 231 (SE), 1998 (2) SA 807 (SE) 65, 66
PPI Makelaars v Professional Provident Society of South Africa
[1997] 4 All SA 444 (A), 1998 (1) SA 595 (SCA) 360
Pratt v FirstRand Bank [2009] 1 All SA 158 (SCA), 2009 (2) SA 119 (SCA) 96, 120
Precismeca Ltd v Melco Mining Supplies (Pty) Ltd 2003 (1) SA 664 (SCA) 294
Prefix Properties (Pty) Ltd v Golden Empire Trading 49 CC
[2010] JOL 26535 (KZP), 2011 (2) SA 334 (KZP) 103
Preller v Jordaan [1956] 2 All SA 35 (A), 1956 (1) SA 483 (A) 365
Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134 (A), 1997 (1) SA 416 (SCA)168
Premier, Free State v Firechem Free State (Pty) Ltd
[2000] 3 All SA 247 (A), 2000 (4) SA 413 (SCA) 106, 111
Premier of the Province of the Western Cape v Fair Cape Property Developers (Pty) Ltd
[2003] 2 All SA 465 (SCA), 2003 (6) SA 13 (SCA) 346
Premier of the Western Cape Provincial Government NO v BL [2012] 1 All SA 465 (SCA)
(also reported as Premier of the Western Cape Provincial Government NO v Lakay
2012 (2) SA 1 (SCA)) 343, 344
Premier, Western Cape v Faircape Property Developers (Pty) Ltd
[2003] 2 All SA 465 (SCA), 2003 (6) SA 13 (SCA) 347
Presidency Property Investments (Pty) Ltd and others v Patel 2011 (5) SA 432 (SCA) 2
President Insurance Co Ltd v Yu Kwam [1963] 3 All SA 443 (A), 1963 (3) SA 766 (A) 304
President of the Republic of South Africa and another v Modderklip Boerdery (Pty) Ltd
2005 (8) BCLR 786 (CC), 2005 (5) SA 3 (CC) 96
President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk
[1989] 1 All SA 241 (A), 1989 (1) SA 208 (A) 217
Preston v Vredendal CoOperative Winery Ltd
[2000] 4 All SA 492 (E), 2001 (1) SA 244 (E) 150
Pretoria City Council v De Jager [1997] 1 All SA 635 (A), 1997 (2) SA 46 (SCA) 345
Pretorius v Botha [1961] 4 All SA 318 (T), 1961 (4) SA 722 (T) 228
Pretorius v Erasmus [1975] 2 All SA 117 (T), 1975 (2) SA 765 (T) 28
Pretorius v Fourie NO [1962] 2 All SA 300 (O), 1962 (2) SA 280 (O) 5
Pretorius NO v Stock Owners' Cooperative Co Ltd 1959 (4) SA 462 (A) 212
Pretorius and another v Transport Pension Fund and another [2018] ZACC 10 7
Price v IGI Ltd [1983] 3 All SA 279 (A), 1983 (1) SA 311 (A) 217
Price Waterhouse Coopers Inc v National Potato Coop Ltd
[2004] 3 All SA 20 (SCA), 2004 (6) SA 66 (SCA) 119, 243
Price Waterhouse Meyernel v Thoroughbred Breeders' Association of SA
[2002] 4 All SA 723 (SCA), 2003 (3) SA 54 (SCA) 116
PriceWaterhouseCoopers Inc and others v National Potato Cooperative Ltd and another
[2015] 2 All SA 403 (SCA) 15, 16, 17
Prima Toy Holdings (Pty) Ltd v Rosenberg [1974] 2 All SA 265 (C), 1974 (2) SA 477 (C) 205
Primat Construction CC v Nelson Mandela Bay Metropolitan Municipality
2017 (5) SA 420 (SCA) 313
Prime Fund Managers (Pty) Ltd v Rowan Angel (Pty) Ltd and another
[2014] 2 All SA 227 (GNP) 46
Prins v ABSA Bank Ltd [1997] 1 All SA 486 (C), 1998 (3) SA 904 (C) 266
Prins v Universiteit van Pretoria [1980] 3 All SA 573 (T), 1980 (2) SA 171 (T) 184, 185
Prinsloo v Du Plooy 1952 (4) SA 219 (O) 59
Prinsloo v Newman [1975] 2 All SA 89 (A), 1975 (1) SA 481 (A) 54, 256
Prinsloo v Road Accident Fund 2015 (6) SA 91 (WCC) 145
Prinsloo v Shaw 1938 AD 570 278
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC), 1997 (6) BCLR 759 (CC) 369
Prinsloo v Woolbrokers Federation Ltd [1955] 2 All SA 278 (N), 1955 (2) SA 298 (N) 147
Prinsloo NO and others v Goldex 15 (Pty) Ltd and another 2014 (5) SA 297 (SCA) 316
Prism Holdings Ltd v Liversage 2004 (2) SA 478 (W) 94
Pro Tempo Akademie CC v Van der Merwe 2018 (1) SA 181 (SCA) 163
Probert v Baker [1983] 2 All SA 199 (D), 1983 (3) SA 229 (D) 115
Proksch v Die Meester [1969] 4 All SA 381 (A), 1969 (4) SA 567 (A) 352
Propfokus 49 (Pty) Ltd v Wenhandel 4 (Pty) Ltd [2007] 3 All SA 18 (SCA) 310
Protea Assurance Co Ltd v Matinise [1978] 2 All SA 194 (A), 1978 (1) SA 963 (A) 322
Protea Holdings Ltd v Herzberg [1982] 4 All SA 614 (C), 1982 (4) SA 773 (C) 126
Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers
Fidelity Guarantee Fund [1981] 4 All SA 144 (W), 1981 (3) SA 539 (W) 244
Province of the Free State v Williams NO [2000] 2 All SA 172 (A), 2000 (3) SA 65 (SCA) 308
Provincial Building Society of SA v PR Wade & Co (Pty) Ltd (in liq)
[1967] 1 All SA 60 (N), 1967 (1) SA 121 (N) 50
Provinsiale Administrasie, Kaap die Goeie Hoop v Swart
[1988] 1 All SA 63 (C), 1988 (1) SA 375 (C) 197
Puma AG Rudolf Dassler Sport v Global Warming (Pty) Ltd
[2010] 1 All SA 25 (SCA), 2010 (2) SA 600 (SCA) 131, 296, 362
Purdon v Muller [1961] 2 All SA 464 (A), 1961 (2) SA 211 (A) 286
Purser v Sales; Purser v Sales [2001] 1 All SA 25 (SCA), 2001 (3) SA 445 (SCA) 230
Q
Quartermark Investments (Pty) Ltd v Mkhwanazi and another
[2014] 1 All SA 22 (SCA), 2014 (3) SA 96 (SCA) 204, 374
Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272 10
R
Rabinowitz NNO v NedEquity Insurance Co Ltd
[1980] 3 All SA 360 (W), 1980 (1) SA 403 (W) 219
Radebe v Eastern Transvaal Development Board
[1988] 2 All SA 271 (A), 1988 (2) SA 785 (A) 2, 4
Rademeyer v Western Districts Council [1998] 2 All SA 547 (SE), 1998 (3) SA 1011 (SE)278
Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd
[1951] 1 All SA 106 (C), 1951 (1) SA 312 (C) 117, 357
Radon Projects (Pty) Ltd v NV Properties (Pty) Ltd
[2013] 3 All SA 615 (SCA), 2013 (6) SA 345 (SCA) 43, 44
Raduvha v Minister of Safety and Security and another
2016 (10) BCLR 1326 (CC), 2016 (2) SACR 540 (CC) 53, 54
Rahim v Minister of Justice 1964 (4) SA 630 (A) 90
Rail Commuters Action Group v Transnet Ltd t/a Metrorail
[2007] 1 All SA 279 (C), 2006 (6) SA 68 (C) 315
Rajah and another v Balduzzi [2018] ZASCA 57 379
Ramnath v Bunsee [1961] 2 All SA 22 (N), 1961 (1) SA 394 (N) 237
Ramsay v Minister van Polisie [1981] 4 All SA 692 (A), 1981 (4) SA 802 (A) 55, 256
Ramsukh v DieselElectric (Natal) (Pty) Ltd
[1997] 3 All SA 209 (A), 1997 (4) SA 242 (SCA) 75
Ramuhovhi v President of the Republic of South Africa and others 2018 (2) SA 1 (CC) 175
Rand Bank Bpk v Regering van die RSA [1975] 4 All SA 11 (A), 1975 (3) SA 726 (A) 250
Rand Mutual Assurance Company Ltd v Rand Accident Fund
[2009] 1 All SA 265 (SCA), 2008 (6) SA 511 (SCA) 217, 281
Rand Waterraad v Bothma 1997 (3) SA 120 (O) 186
Randaree NNO v WH Dixon & Associates [1983] 1 All SA 354 (A), 1983 (2) SA 1 (A) 51, 97
Randbank Bpk v Santam Versekeringsmaatskappy Bpk
[1965] 4 All SA 337 (A), 1965 (4) SA 363 (A) 29, 205
Randcon (Natal) (Pty) Ltd v Florida Twin Estates (Pty) Ltd
[1973] 4 All SA 315 (D), 1973 (4) SA 181 (D) 51
Ranger v Wykerd [1977] 3 All SA 245 (A), 1977 (2) SA 976 (A) 144, 205
Raqa v Hofman 2010 (1) SA 302 (WCC) 364
Ras NO and others v Van der Meulen and another 2011 (4) SA 17 (SCA) 79
Rashavha v Van Rensburg [2004] 1 All SA 168 (SCA), 2004 (2) SA 421 (SCA) 191
Rauff v Standard Bank Properties 2002 (6) SA 693 (W) 281
Reay and another v Netcare (Pty) Ltd t/a Umhlanga Hospital and others
[2016] 4 All SA 195 (KZP) 254
Reck v Mills [1990] 1 All SA 560 (A), 1990 (1) SA 751 (A) 340
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd
[1993] 1 All SA 27 (A), 1993 (2) SA 307 (A) 291, 292, 293
Rectifier & Communication Systems (Pty) Ltd v Harrison
[1981] 1 All SA 444 (C), 1981 (2) SA 283 (C) 13
Red Dunes of Africa v Masingita Property Investment Holdings [2015] ZASCA 99 112
Reddy v Siemens Telecommunications (Pty) Ltd 2007 (2) SA 486 (SCA) 317
Reeder v Softline [2000] 4 All SA 105 (W), 2001 (2) SA 844 (W) 174
Rees and another v Investec Bank Limited 2014 (4) SA 220 (SCA) 63
Reeves v Marfield Insurance Brokers CC [1996] ZASCA 39, 1996 (3) SA 766 (A) 318
Refrigerated Trucking (Pty) Ltd v Zive NO (Aegis Insurance Co Ltd, third party)
1996 (2) SA 361 (T) 216
Regal v African Superslate (Pty) Ltd [1963] 1 All SA 203 (A), 1963 (1) SA 102 (A) 279
Regent Insurance Company Ltd v King 2015 (3) SA 85 (SCA), [2015] 2 All SA 137 (SCA)218
Regering van die RSA v SA Eagle Versekeringsmaatskappy Bpk
[1985] 3 All SA 236 (O), 1985 (2) SA 42 (O) 307
Registrateur van Aandelebeurse v Aldum h/a Onecor Group 2002 (2) SA 767 (SCA) 339
Reinecke v Incorporated General Insurances Ltd
[1974] 2 All SA 80 (A), 1974 (2) SA 84 (A) 150
Rekdurum (Pty) Ltd v Weider Gym Athlone (Pty) Ltd t/a Weider Health & Fitness Centre
[1996] 4 All SA 29 (C), 1997 (1) SA 646 (C) 249
Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA) 53, 55, 209, 256
Rens v Coltman 1996 (1) SA 452 (A) 115, 309
Rens v Gutman NO [2002] 4 All SA 30 (C), 2003 (1) SA 93 (C) 180
Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd
[1963] 2 All SA 45 (A), 1963 (1) SA 632 (A) 111, 112, 218, 219
Retail Management Services (Edms) Bpk v Schwartz
[1992] 3 All SA 104 (W), 1992 (2) SA 22 (W) 85
Rhodes Fruit Farms Ltd v Cape Town City Council
[1968] 2 All SA 496 (C), 1968 (3) SA 514 (C) 372
Rhoode v De Kock and another
[2013] 2 All SA 389 (SCA), 2013 (3) SA 123 (SCA) 249, 357, 374
Ribeiro v Santam Ltd [1996] 2 All SA 47 (W), 1996 (3) SA 1035 (W) 8
Ribeiro v Slip Knot Investments 777 (Pty) Ltd [2010] ZASCA 174, 2011 (1) SA 575 (SCA)136
Richman v BenTovim [2007] 2 All SA 234 (SCA), 2007 (2) SA 283 (SCA) 230
Richter v Estate Hammann [1976] 3 All SA 497 (C), 1976 (3) SA 226 (C) 258
Richtersveld Community v Alexkor Ltd [2003] 2 All SA 27 (SCA), 2003 (6) SA 104 (SCA)142
Ridley v Marais 1939 AD 5 252
Rieseberg v Berry 1914 TPD 561 154
Rikhotso v Northcliff Ceramics (Pty) Ltd [1996] 4 All SA 524 (W), 1997 (1) SA 526 (W) 342
Riversdale Mining Limited v Du Plessis and another [2017] ZASCA 7 44
Rizla International BV v L Suzman Distributors (Pty) Ltd
[1996] 2 All SA 414 (C), 1996 (2) SA 527 (C) 291
RM van de Ghinste & Co (Pty) Ltd v Van de Ghinste
[1980] 3 All SA 105 (C), 1980 (1) SA 250 (C) 124, 193
RMS Transport v Psicon Holdings (Pty) Ltd 1996 (2) SA 176 (T) 20
Road Accident Appeal Tribunal and others v Gouws and another
[2018] 1 All SA 701 (SCA), 2018 (3) SA 413 (SCA) 321, 323
Road Accident Fund v Abrahams [2018] ZASCA 49 322
Road Accident Fund v Cloete NO [2010] 2 All SA 161 (SCA), 2010 (6) SA 120 (SCA) 46
Road Accident Fund v Duma and three related cases (Health Professions Council of
South Africa as amicus curiae) [2013] 1 All SA 543 (SCA), 2013 (6) SA 9 (SCA) 323
Road Accident Fund v Hansa [2002] 1 All SA 143 (A), 2001 (4) SA 1204 (SCA) 322
Road Accident Fund v Maphiri [2003] 4 All SA 168 (SCA), 2004 (2) SA 258 (SCA) 281, 282
Road Accident Fund v Masindi [2018] ZASCA 94 324
Road Accident Fund v Mbendera [2004] 4 All SA 25 (SCA) 322
Road Accident Fund v Mdeyide 2011 (1) BCLR 1 (CC), 2011 (2) SA 26 (CC) 321
Road Accident Fund v Mkize 2005 (3) SA 20 (SCA) 322
Road Accident Fund v Mohohlo 2018 (2) SA 65 (SCA) 254
Road Accident Fund v Mothupi [2000] 3 All SA 181 (A), 2000 (4) SA 38 (SCA) 188, 378
Road Accident Fund v Myhill NO 2013 (5) SA 426 (SCA) 337
Road Accident Fund v Shabangu [2004] 2 All SA 356 (SCA) 29, 245
Road Accident Fund v Sweatman [2015] 2 All SA 679 (SCA), 2015 (6) SA 186 (SCA) 324
Road Accident Fund v Thugwana [2004] 1 All SA 275 (SCA), 2004 (3) SA 169 (SCA) 323
Road Accident Fund v Vogel 2004 (5) SA 1 (SCA) 322
Roazar CC v Falls Supermarket CC 2018 (3) SA 76 (SCA) 108
Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A) 106, 108
Roberts Construction Co Ltd v Willcox Bros (Pty) Ltd 1962 (4) SA 326 (A) 105
Robin v Guarantee Life Assurance Co Ltd [1984] 2 All SA 422 (A), 1984 (4) SA 558 (A) 108
Robinson v D Cooper Corp of SA (Pty) Ltd 1984 (3) SA 699 (A) 170
Robinson v Hay 1930 AD 444 328
Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 25, 202, 203
Robson v Theron [1978] 2 All SA 264 (A), 1978 (1) SA 841 (A) 228, 287
Rockbreakers and Parts (Pty) Ltd v Rolag Property Trading (Pty) Ltd
2010 (2) SA 400 (SCA), [2010] 1 All SA 291 (SCA) 36
Rodel Financial Service (Pty) Ltd v Naidoo and another 2013 (3) SA 151 (KZP) 277
Roestoff v Cliffe Dekker Hofmeyr Inc 2013 (1) SA 12 (GNP) 243
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) 152
Ronald Bobroff and Partners Inc v De La Guerre; South African Association of Personal
Injury Lawyers v Minister of Justice and Constitutional Development and another
2014 (4) BCLR 430 (CC), 2014 (3) SA 134 (CC) 243
Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk
[1979] 4 All SA 782 (T), 1979 (4) SA 467 (T) 250
Ronstan Investments (Pty) Ltd v Littlewood
[2001] 3 All SA 127 (A), 2001 (3) SA 555 (SCA) 32
Roos v Engineering Fabricators (Edms) Bpk [1974] 3 All SA 136 (A), 1974 (3) SA 545 (A)106
Rose v Rose [2015] 2 All SA 352 (WCC) 176
Rosen v Barclays National Bank Ltd [1984] 1 All SA 1 (W), 1984 (3) SA 974 (W) 187
Rosen v Ekon [2000] 3 All SA 24 (W), 2001 (1) SA 199 (W) 194
Rosenthal v Mastroguiseppe [2000] 4 All SA 295 (A) 368
Roshcon (Pty) Ltd v Anchor Auto Body Builders CC and others
[2014] 2 All SA 654 (SCA), 2014 (4) SA 319 (SCA) 340
Rosseau v Viljoen [1970] 2 All SA 417 (C), 1970 (3) SA 413 (C) 376
Rossouw & Rossouw v Hodgson 1925 AD 97 353
Rossouw NO and another v Land and Agricultural Development Bank of South Africa
[2013] 4 All SA 318 (SCA) 19
Rother, Estate v Estate Sandig 1943 AD 47 228
Rousalis v Rousalis [1980] 4 All SA 314 (C), 1980 (3) SA 446 (C) 171
Rousseau NO v Cloete [1952] 3 All SA 407 (C), 1952 (3) SA 703 (C) 13
Rouwkoop Caterers (Pty) Ltd v IGI Ltd [1977] 4 All SA 347 (A), 1977 (3) SA 941 (A) 219
Roux v Van Rensburg [1996] 3 All SA 499 (A), 1996 (4) SA 271 (SCA) 249
Rowe v Rowe [1997] 3 All SA 503 (A), 1997 (4) SA 160 (SCA) 233, 338
Royal Sechaba Holdings (Pty) Ltd v Coote and another [2014] 3 All SA 431 (SCA) 316
RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk 1981 (2) SA 141 (O) 251
Rudman v Road Accident Fund [2002] 4 All SA 422 (SCA), 2003 (2) SA 234 (SCA) 144
Rudolph and others v Minister of Safety and Security
[2009] 3 All SA 323 (SCA), 2009 (5) SA 94 (SCA) 255
Rumanal (Pty) Ltd v Hubner [1976] 1 All SA 102 (E), 1976 (1) SA 643 (E) 4
Ruskin v Thiergen [1962] 3 All SA 466 (A), 1962 (3) SA 737 (A) 285
Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd
[1975] 2 All SA 416 (W), 1975 (4) SA 626 (W) 290
Rustenburg Platinum Mines v Industrial Maintenance Painting Services
[2009] 1 All SA 275 (SCA), [2008] ZASCA 108 305
Rustenburg Platinum Mines Ltd v Breedt
[1997] 2 All SA 69 (A), 1997 (2) SA 337 (SCA) 113, 252, 269
Ruto Flour Mills (Pty) Ltd v Moriates [1957] 3 All SA 28 (T), 1957 (3) SA 113 (T) 204
S
S v De Jager [1965] 2 All SA 495 (A), 1965 (2) SA 616 (A) 339
S v Makwanyane 1995 (6) BCLR 665 (CC), 1995 (3) SA 391 (CC) 58
S v S (GJ), unreported case, no. 2014/05928, 26092014 179
S v Wells [1990] 2 All SA 1 (A), 1990 (1) SA 816 (A) 231
SA Associated Newspapers Ltd v Estate Pelser
[1975] 4 All SA 683 (A), 1975 (4) SA 797 (A) 154
SA Associated Newspapers Ltd v Samuels [1980] 3 All SA 227 (A), 1980 (1) SA 24 (A) 155
SA Bantoetrust v Ross & Jacobz [1977] 2 All SA 123 (T), 1977 (3) SA 184 (T) 245
SA Board of Executors & Trust Co Ltd (in liq) v Gluckman
[1967] 2 All SA 1 (A), 1967 (1) SA 534 (A) 211
SA Breweries Ltd v Ribeiro t/a Doc's Liquor Merchants
[1999] 4 All SA 627 (W), 2000 (1) SA 803 (W) 277
SA Breweries Ltd v Shoprite Holdings Ltd
[2008] 1 All SA 337 (SCA), 2008 (1) SA 203 (SCA) 48
SA Breweries Ltd v Van Zyl 2006 (1) SA 197 (SCA) 71
SA Broadcasting Corp v Coop [2006] 1 All SA 333 (SCA), 2006 (2) SA 217 (SCA) 187
SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle
[1955] 3 All SA 257 (D), 1955 (3) SA 541 (D) 124, 356
SA Eagle Insurance Co Ltd v KRS Investments CC
[2007] 1 All SA 566 (SCA), 2005 (2) SA 502 (SCA) 220
SA Eagle Insurance Co Ltd v Van der Merwe NO
[1998] 2 All SA 527 (A), 1998 (2) SA 1091 (SCA) 323
SA Fish Oil Producers' Association (Pty) Ltd v Shipwrights & Engineers Holdings Ltd
1958 (1) SA 687 (C) 270
SA Historical Mint (Pty) Ltd v Sutcliffe [1983] 3 All SA 523 (C), 1983 (2) SA 84 (C) 93
SA Metal & Machinery Co (Pty) Ltd v Klerck NO [2005] 1 All SA 44 (E) 27
SA National Defence Union v Minister of Defence 2012 (4) SA 382 (GNP) 152
SA National Parks v Ras [2001] 4 All SA 380 (C), 2002 (2) SA 537 (C) 7
SA Onderlinge Brand & Algemene Versekeringsmaatskappy Bpk v Van den Berg
1976 (1) SA 602 (A) 9
SA Railways & Harbours v Dhlamini [1967] 2 All SA 288 (D), 1967 (2) SA 203 (D) 371
SA Yster & Staal Industriële Korp Bpk v Koschade
[1983] 4 All SA 217 (T), 1983 (4) SA 837 (T) 283
SA Yster & Staal Industriële Korp Bpk v Van der Merwe
[1984] 2 All SA 403 (A), 1984 (3) SA 706 (A) 320
SaambouNasionale Bouvereniging v Friedman
[1979] 2 All SA 71 (A), 1979 (3) SA 978 (A) 298
Saamwerk Southwerke (Pty) Ltd v Minister of Mineral Resources and another
[2017] ZASCA 56 348
SACCA Ltd v Olivier [1954] 2 All SA 279 (T), 1954 (3) SA 136 (T) 287
Sackstein NO v Proudfoot SA (Pty) Ltd
[2006] 2 All SA 577 (SCA), [2006] ZASCA 8, 2006 (6) SA 358 (SCA) 102, 117, 212, 356
Sackstein & Venter NNO v Greyling [1990] 3 All SA 48 (O), 1990 (2) SA 323 (O) 22
SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons
[2003] 1 All SA 274 (SCA), 2003 (3) SA 313 (SCA) 226, 362
Safari Reservations (Pty) Ltd v Zululand Safaris (Pty) Ltd
[1966] 3 All SA 546 (D), 1966 (4) SA 165 (D) 150
Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W) 125
Salisbury Municipality v Jooala 1911 AD 178 280
The 'Salviscount' and 'Oltet' [1984] 1 Lloyd's Rep. 164 24
Salusa (Pty) Ltd v Eagle International Traders
[1979] 4 All SA 839 (C), 1979 (4) SA 697 (C) 290
Salzwedel v Raath 1956 (2) SA 160 (E) 104
Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ) 5
Sanders NO v Edwards NO [2003] 1 All SA 108 (C), 2003 (5) SA 8 (C) 320
Sandlundlu (Pty) Ltd v Shepstone and Wylie Incorporated [2011] 3 All SA 183 (SCA) 28, 115
Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd
1985 (1) SA 248 (W) 239
Sandown Travel (Pty) Ltd v Cricket South Africa 2013 (2) SA 502 (GSJ) 313, 379
Sanlam Life Insurance Ltd v South African Breweries Ltd
[2000] 1 All SA 563 (W), 2000 (2) SA 647 (W) 224
Santam Bpk v Henery [1999] 2 All SA 312 (A), 1999 (3) SA 421 (SCA) 254
Santam Insurance Co Ltd v Fourie [1997] 1 All SA 590 (A), 1997 (1) SA 611 (SCA) 254
Santam Insurance Co Ltd v Vorster [1973] 4 All SA 558 (A), 1973 (4) SA 764 (A) 273, 376
Santam Insurance Ltd v Cave t/a The Entertainers & The Record Box
[1986] 1 All SA 513 (A), 1986 (2) SA 48 (A) 44
Santam Ltd v Ethwar [1999] 1 All SA 252 (A), 1999 (2) SA 244 (SCA) 306
Santam Versekeringsmaatskappy Bpk v Byleveldt
[1973] 2 All SA 173 (A), 1973 (2) SA 146 (A) 146
Santos Erec v Cheque Discounting Co (Pty) Ltd
[1986] 3 All SA 129 (W), 1986 (4) SA 752 (W) 233
Sapirstein v Anglo African Shipping Co (SA) Ltd
[1978] 4 All SA 474 (A), 1978 (4) SA 1 (A) 349
Sappi Manufacturing (Pty) Ltd v Standard Bank of South Africa Ltd
[1996] 4 All SA 487 (A), 1997 (1) SA 457 (A) 75
SAR&H v Lennon Ltd 1945 AD 157 2
SAR&H v Marais 1950 (4) SA 610 (A) 163
Sarembock v Medical Leasing Services (Pty) Ltd
[1991] 1 All SA 16 (A), 1991 (1) SA 344 (A) 331
Saridakis t/a Auto Nest v Lamont [1993] 1 All SA 431 (C), 1993 (2) SA 164 (C) 253
Sarrahwitz v Maritz NO and another 2015 (8) BCLR 925 (CC), 2015 (4) SA 491 (CC) 38
Sasfin (Pty) Ltd v Beukes [1989] 1 All SA 347 (A), 1989 (1) SA 1 (A) 119
Sasfin (Pty) Ltd v Jessop 1997 (1) SA 675 (W) 149
SAUK v O'Malley [1977] 3 All SA 631 (A), 1977 (3) SA 394 (A) 155, 160
Sauls v Hendrickse [1992] 2 All SA 205 (A), 1992 (3) SA 912 (A) 154
Savvides v Savvides [1986] 1 All SA 128 (T), 1986 (2) SA 325 (T) 181
Sayers v Khan [2002] 1 All SA 57 (C), 2002 (5) SA 688 (C) 35
SB v RB [2015] 2 All SA 232 (ECLD) 175
Scallop Petroleum Company v The Fund comprising the proceeds of
the sale of the MV Jade Transporter and others 1987 (1) SA 935 (N) 24
Scheibert v Allen [2016] ZASCA 126 115
Schenk v Schenk 1993 (2) SA 346 (E) 222
Schierhout v Union Government (Minister of Justice) 1926 AD 286 337
Schlinkmann v Van der Walt [1947] 3 All SA 92 (E), 1947 (2) SA 900 (E) 313
Schlumberger Logelco Inc v Coflexip SA 2000 (3) SA 861 (SCA) 294
Schmidt v Dwyer [1959] 1 All SA 6 (C), 1959 (3) SA 896 (C) 263
Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D) 124
Schmitz v Schmitz [2015] 3 All SA 85 (KZD) 170
Schnehage v Bezuidenhout [1977] 1 All SA 408 (O), 1977 (1) SA 362 (O) 190, 238, 337, 374
Schoeman v Constantia Insurance Co Ltd
[2003] 2 All SA 642 (SCA), 2003 (6) SA 313 (SCA) 218, 220
Scholtz v Scholtz 2012 (1) SA 382 (WCC) 180
Schroeder v Vakansieburo (Edms) Bpk [1970] 3 All SA 320 (T), 1970 (3) SA 240 (T)310, 311
Schubart Park Residents' Association and others v City of Tshwane Metropolitan
Municipality and another 2013 (1) BCLR 68 (CC), 2013 (1) SA 323 (CC) 342
Schuldes v Compressor Valves Pension Fund
[1980] 2 All SA 416 (W), 1980 (4) SA 576 (W) 48
Schultz v Butt [1986] 2 All SA 403 (A), 1986 (3) SA 667 (A) 168, 169, 209, 366, 367
Scoin Trading (Pty) Ltd v Bernstein NO
[2011] 2 All SA 608 (SCA), 2011 (2) SA 118 (SCA) 102, 225, 268
Scott v Golden Valley Supermarket [2002] 3 All SA 1 (A), 2002 (6) SA 297 (SCA) 80
Scott v Poupard [1971] 2 All SA 539 (A), 1971 (2) SA 373 (A) 113
SDR Investment Holdings Co (Pty) Ltd v Nedcor Bank Ltd 2007 (4) SA 190 (C) 28
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
[2000] 1 All SA 128 (A), 2000 (1) SA 827 (SCA) 164, 165, 270, 369
Seboko v Soll [1949] 3 All SA 353 (T), 1949 (3) SA 337 (T) 330
Sebola and another v Standard Bank of South Africa Ltd and another
2012 (8) BCLR 785 (CC), 2012 (5) SA 142 (CC) 134, 138
Sechold Financial Services (Edms) Bpk v Gazankulu Ontwikkelingskorporasie Bpk
[1997] 2 All SA 489 (A), 1997 (3) SA 391 (SCA) 70, 72
Sekhoto v Qwa Qwa Auto Industries CC Panel Beaters & Spray Painters
1998 (1) SA 164 (O) 8
Seleka v Road Accident Fund 2016 (4) SA 445 (GP) 254
Senekal v Trust Bank of Africa Ltd [1978] 4 All SA 43 (A), 1978 (3) SA 375 (A) 63, 350
Sentrachem Limited v Terreblanche [2017] ZASCA 16 72
Sentrakoop Handelaars Bpk v Lourens [1991] 4 All SA 693 (W), 1991 (3) SA 540 (W) 27
Senwes Ltd and others v Jan van Heerden and Sons CC and others
[2007] 3 All SA 24 (SCA) 90
Septoo obo Septoo and another v Road Accident Fund [2017] ZASCA 164 254
Seton Co v Silveroak Industries Ltd 2000 (2) SA 215 (T) 46
Seven Eleven Corp of SA (Pty) Ltd v Cancun Trading No 150 CC
[2005] 2 All SA 256 (SCA), 2005 (5) SA 186 (SCA) 204
Seven Eleven Corporation SA (Pty) Ltd v Georgiou [2002] 4 All SA 612 (SE) 11
Shatz Investments (Pty) Ltd v Kalovyrnas [1976] 3 All SA 71 (A), 1976 (2) SA 545 (A) 116
Shaw and another v Mackintosh and another [2018] ZASCA 53 134
Shelagatha Property Investments CC v Kellywood Homes (Pty) Ltd;
Shelfaerie Property Holdings CC v Midrand Shopping Centre (Pty) Ltd
[1995] 2 All SA 135 (A), 1995 (3) SA 187 (A) 50, 103
Shenfield v Murgatroyd 1954 (2) SA 241 (N) 49
Shepstone & Wylie v Geyser NO [1998] 3 All SA 349 (A), 1998 (3) SA 1036 (SCA) 79
Shilubana and others v Nwamitwa 2008 (9) BCLR 914 (CC), 2009 (2) SA 66 (CC) 141
The Shipping Corporation of India Ltd v Evdomon Corporation and another
1994 (1) SA 550 (A) 23
Sibeko v Minister of Police [1985] 3 All SA 71 (W), 1985 (1) SA 151 (W) 11
Sibex Engineering Services (Pty) Ltd v Van Wyk
[1991] 4 All SA 262 (T), 1991 (2) SA 482 (T) 317
Sibiya v Premier of the Province of KwaZuluNatal [2008] 1 All SA 295 (N) 344
Sidali v Mpolongwana [1990] 4 All SA 825 (C), 1990 (4) SA 212 (C) 36
Sifris NNO v Vermeulen Broers [1974] 1 All SA 414 (T), 1974 (2) SA 218 (T) 96
Sikatele v Sikatele [1996] 1 All SA 445 (Tk) 251
Sillo v Naude 1929 AD 21 341
Silouette Investments Ltd v Virgin Hotels Group Ltd
[2009] 3 All SA 172 (SCA), 2009 (4) SA 617 (SCA) 307
Siman & Co (Pty) Ltd v Barclays National Bank Ltd
[1984] 1 All SA 87 (A), 1984 (2) SA 888 (A) 64
Simmonds v White [1980] 1 All SA 412 (C), 1980 (1) SA 755 (C) 146, 152, 155
Simon NO v Mitsui & Co Ltd [1996] 3 All SA 353 (W), 1997 (2) SA 475 (W) 20, 300
Simon's Town Municipality v Dews [1993] 1 All SA 238 (A), 1993 (1) SA 191 (A) 347, 368
Sindani v Van der Merwe [2002] 1 All SA 311 (A), 2002 (2) SA 32 (SCA) 153
Singh v McCarthy Retail Ltd t/a McIntosh Motors
[2000] 4 All SA 487 (A), 2000 (4) SA 795 (SCA) 101
Singh v Santam Insurance Company Limited
[1997] 1 All SA 525 (A), 1997 (1) SA 291 (SCA) 249, 373
Sishen Hotel (Edms) Bpk v SA Yster & Staal Industriële Korp Bpk 1987 (2) SA 932 (A) 109
Skjelbreds Rederi AS v Hartless (Pty) Ltd [1982] 1 All SA 15 (A), 1982 (2) SA 710 (A)71, 339
Slip Knot Investments 777 (Pty) Ltd v Du Toit 2011 (4) SA 72 (SCA) 266
Smalle and another v Southern Palace Investments 440 (Pty) Limited and another
[2016] ZASCA 189 154
Smit v Abrahams [1994] 4 All SA 679 (A), 1994 (4) SA 1 (A) 146
Smit v Bester [1977] 4 All SA 767 (A), 1977 (4) SA 937 (A) 128
Smit v Oosthuizen 1979 (3) SA 1079 (A) 5
Smit v OVS Afrikaanse Pers Bpk [1956] 2 All SA 65 (O), 1956 (1) SA 768 (O) 158
Smit v Saipem [1973] 4 All SA 371 (A), 1974 (4) SA 918 (A) 144, 364
Smith v Banjo [2011] 2 All SA 577 (KZP), 2011 (2) SA 518 (KZP) 217
Smith v Basson [1979] 1 All SA 133 (W), 1979 (1) SA 559 (W) 186
Smith v KwaNonqubela Town Council [1999] 4 All SA 331 (A),
1999 (4) SA 947 (SCA) 28, 310
Smith v Mouton [1977] 1 All SA 43 (W), 1977 (3) SA 9 (W) 49
Smith v Porritt 2008 (6) SA 303 (SCA) 316
Smith NO v Hattingh [1984] 1 All SA 40 (C), 1984 (2) SA 660 (C) 79
Smuts v Booyens; Markplaas (Edms) Bpk v Booyens
[2001] 3 All SA 536 (A), 2001 (4) SA 15 (SCA) 71, 302
Snaid v Volkskas Bank Ltd 1997 (1) SA 239 (W) 355
Snyders and others v De Jager and others 2017 (5) BCLR 614 (CC),
2017 (3) SA 545 (CC) 192
Soar h/a Rebuilds for Africa v JC Motors [1992] 2 All SA 302 (A), 1992 (4) SA 127 (A) 117
Société Commerciale de Moteurs v Ackermann
[1981] 2 All SA 230 (A), 1981 (3) SA 422 (A) 108
Society of Lloyd's v Price; In re Society of Lloyd's v Lee 2006 (5) SA 393 (SCA) 230
Sodo v Chairman, African National Congress, Umtata Region [1998] 1 All SA 45 (Tk) 187
Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd
[2004] 2 All SA 366 (SCA), 2004 (6) SA 29 (SCA) 310
Solenta Aviation (Pty) Ltd v Aviation @Work (Pty) Ltd
[2013] ZASCA 103, 2014 (2) SA 106 (SCA) 308
Solomon NNO v De Waal [1972] 2 All SA 112 (A), 1972 (1) SA 575 (A) 40, 41
Sommer v Wilding [1984] 4 All SA 356 (A), 1984 (3) SA 647 (A) 284
Sonap Petroleum SA (Pty) Ltd v Pappadogianis
[1992] 2 All SA 114 (A), 1992 (3) SA 234 (A) 265, 266
Sonia (Pty) Ltd v Wheeler [1958] 2 All SA 38 (A), 1958 (1) SA 555 (A) 102
Sonny v Premier, Province of KwaZuluNatal
[2010] 1 All SA 169 (KZP), 2010 (1) SA 427 (KZP) 258
South African Cooperative Citrus Exchange Ltd v DirectorGeneral Trade and Industry
[1997] 2 All SA 321 (A), 1997 (3) SA 236 (SCA) 379
The South African Football Association v Mangope (2013) 34 ILJ 311 (LAC) 185
South African Mutual Life Assurance Society v AngloTransvaal Collieries Ltd
[1977] 4 All SA 203 (A), 1977 (3) SA 642 (A) 150
South African National Parks v Ras [2001] 4 All SA 380 (C), 2002 (2) SA 537 (C) 191
South African Police Service v Solidarity obo Barnard
2014 (10) BCLR 1195 (CC), [2014] 11 BLLR 1025 (CC), 2014 (6) SA 123 (CC) 1, 2, 95
South African Railways & Harbours v Du Preez 1953 (1) SA 81 (C) 271
South African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and others [2017] 1 BLLR 8 (CC), (2017) 38 ILJ 97 (CC),
2017 (1) SA 549 (CC), 2017 (2) BCLR 241 (CC) 379
South British Insurance Co Ltd v Smit [1962] 3 All SA 548 (A), 1962 (3) SA 826 (A)273, 274
Southern Era Resources Ltd v Farndell NO
[2010] 2 All SA 350 (SCA), 2010 (4) SA 200 (SCA) 112, 327
Southern Life Association Ltd v Beyleveld NO
[1989] 1 All SA 390 (A), 1989 (1) SA 496 (A) 188
Southernport Developments (Pty) Ltd v Transnet Ltd
[2005] 2 All SA 16 (SCA), 2005 (2) SA 202 (SCA) 237
Spar Group Ltd v Firstrand Bank Ltd and another
[2016] 4 All SA 646 (GP), 2017 (1) SA 449 (GP) 64, 337
Spearhead Property Holdings Ltd v E & D Motors (Pty) Ltd
[2009] 4 All SA 417 (SCA), 2010 (2) SA 1 (SCA) 238
Spenmac (Pty) Ltd (formerly Bobcart (Pty) Ltd) v Tatrim CC
[2014] 2 All SA 549 (SCA), 2015 (3) SA 46 (SCA) 262, 266
Sperling v Sperling [1975] 4 All SA 41 (A), 1975 (3) SA 707 (A) 171
Spheris v Flamingo Sweet (Pty) Ltd [2008] 1 All SA 304 (W) 103
Spie Batignolles SA v Van Niekerk [1980] 3 All SA 686 (NC), 1980 (2) SA 441 (NC) 287
Spies v Lombard [1950] 3 All SA 355 (A), 1950 (3) SA 469 (A) 238
Spiller v Lawrence [1976] 1 All SA 553 (N), 1976 (1) SA 307 (N) 119
Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd
[1986] 1 All SA 384 (A), 1986 (1) SA 303 (A) 266
Die Spoorbond v SA Railways; Van Heerden v SA Railways 1946 AD 999 152
Springfield Omnibus Service Durban CC v Peter Maskell Auction CC
[2006] 4 All SA 483 (N) 27, 61
SS v VVS 2018 (6) BCLR 671 (CC) 174
ST v CT [2018] ZASCA 73 173
Stabilpave (Pty) Ltd v South African Revenue Services 2014 (1) SA 350 (SCA) 73
Stadsraad van Pretoria v Pretoria Pools 1990 (1) SA 1005 (T) 370
Stadsraad van Randburg v Ludorf NO [1984] 4 All SA 108 (W), 1984 (3) SA 469 (W) 150
Stainer v PalmerPilgrim [1982] 4 All SA 590 (O), 1982 (4) SA 205 (O) 204
Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd
[1985] 2 All SA 116 (C), 1985 (3) SA 410 (C) 4
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd
[1979] 4 All SA 1 (C), 1979 (2) SA 383 (C) 275, 276
Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A) 64
Standard Bank of SA Ltd v Essop [1997] 3 All SA 117 (D), 1997 (4) SA 569 (D) 339
Standard Bank of SA Ltd v Harris [2002] 4 All SA 164 (A), 2003 (2) SA 23 (SCA) 64, 77
Standard Bank of SA Ltd v Lotze [1950] 3 All SA 56 (C), 1950 (2) SA 698 (C) 222
Standard Bank of SA Ltd v Nair (Bissessur, Third Parties) 2001 (1) SA 998 (D) 76
Standard Bank of SA Ltd v Ocean Commodities Inc
[1983] 1 All SA 145 (A), 1983 (1) SA 276 (A) 106
Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation)
[1998] 1 All SA 413 (A), 1998 (1) SA 811 (SCA) 62, 64, 224, 299
Standard Bank of SA Ltd v Peens [2006] 3 All SA 427 (SCA), 2005 (1) SA 315 (SCA) 75
Standard Bank of SA Ltd v SA Fire Equipment (Pty) Ltd
[1984] 2 All SA 41 (C), 1984 (2) SA 693 (C) 350
Standard Bank of SA Ltd v Stama (Pty) Ltd [1975] 2 All SA 206 (A), 1975 (1) SA 730 (A)188
Standard Bank of SA Ltd v United Bank Ltd [1991] 4 All SA 840 (W), 1991 (4) SA 780 (W) 361
Standard Bank of South Africa Limited v Swanepoel NO 2015 (5) SA 77 (SCA) 248
Standard Bank of South Africa Ltd v Echo Petroleum CC 2012 (5) SA 283 (SCA) 64
Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty) Ltd and another
[2016] 3 All SA 487 (SCA), 2017 (1) SA 185 (SCA) 306
Standard Bank SA Ltd v Hales [2009] 2 All SA 416 (SCA) 137
Standard Chartered Bank of Canada v Nedperm Bank Ltd
[1994] 2 All SA 524 (A), 1994 (4) SA 747 (A) 224, 263
Standard Finance Corp of SA Ltd (in liq) v Greenstein 1964 (3) SA 573 (A) 212
Standard Finance Corp of SA Ltd (in liq) v Langeberg Koöperasie Bpk
[1967] 4 All SA 387 (A), 1967 (4) SA 686 (A) 113
Standard General Insurance Co Ltd v Dugmore NO
[1996] 4 All SA 415 (A), 1997 (1) SA 33 (SCA) 144, 146
Standard General Insurance Co Ltd v SA Brake CC [1995] ZASCA 46, 1995 (3) SA 806 (A) 71
Stanhope v Combined Holdings & Industries Ltd 1950 (3) SA 52 (E) 44
Stapelberg v Schlebusch NO [1968] 3 All SA 421 (O), 1968 (3) SA 596 (O) 310
Starways Trading 21 CC v Pearl Island Trading 714 (Pty) Ltd
[2017] 4 All SA 568 (WCC) 106, 313
Stauffer Chemical Co v Safsan Marketing 1987 (2) SA 331 (A) 297
Stauffer Chemicals v Monsanto Co [1988] 3 All SA 279 (T), 1988 (1) SA 805 (T) 295
Stead v Conradie en andere [1995] 1 All SA 472 (A), 1995 (2) SA 111 (AD) 1
Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A) 368
Steenkamp NO v Provincial Tender Board of the Eastern Cape
2007 (3) BCLR 300 (CC), 2007 (3) SA 121 (CC) 348
Steenkamp NO v Provincial Tender Board, EC
[2006] 1 All SA 478 (SCA), 2006 (3) SA 151 (SCA) 347
Stellenbosch Farmers' Winery Ltd v Vlachos t/a Liquor Den
[2001] 3 All SA 577 (A), 2001 (3) SA 597 (SCA) 188, 374
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C) 211, 367
Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga and others
[2012] 3 All SA 655 (SCA), 2012 (5) SA 392 (SCA) 191
Sterling Consumer Products (Pty) Ltd v Cohen [2000] 4 All SA 221 (W) 3
Stern NO v Standard Trading Co Ltd [1955] 4 All SA 77 (A), 1955 (3) SA 423 (A) 106
Stewart & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd
1981 (1) SA 305 (W) 351
Stewart Wrightson (Pty) Ltd v Thorpe [1977] 3 All SA 267 (A), 1977 (2) SA 943 (A) 184
Steyn v AA Onderlinge Assuransie Assosiasie Bpk 1985 (4) SA 7 (T) 216
Steyn v Hasse and another 2015 (4) SA 405 (WCC) 286
Steyn NO v Ronald Bobroff & Partners
[2013] 1 All SA 471 (SCA), 2013 (2) SA 311 (SCA) 78, 245
Stieler v KrochBou Aannemers Bpk [1997] 2 All SA 526 (W) 357
Stieler Properties CC v Shaik Prop Holdings (Pty) Ltd [2015] 1 All SA 513 (GJ) 45
Stiff v Q Data Distribution (Pty) Ltd 2003 (2) SA 336 (SCA) 350
Stocks & Stocks (Cape) (Pty) Ltd v Gordon NO
[1993] 1 All SA 39 (T), 1993 (1) SA 156 (T) 46
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) 69, 107, 167
Stocks Construction (OFS) (Pty) Ltd v MetterPingon (Pty) Ltd
[1980] 1 All SA 326 (A), 1980 (1) SA 507 (A) 44
Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director, Dept of Education &
Culture Services 1996 (4) SA 231 (C) 341
Stofberg v Elliott 1923 CPD 148 257
Street Pole Ads Durban (Pty) Ltd v Ethekwini Municipality
[2008] 3 All SA 182 (SCA), 2008 (5) SA 290 (SCA) 341
Streicher v Van Vuuren [2000] 4 All SA 306 (SCA) 258
Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd
[1998] 4 All SA 117 (SCA), 1998 (4) SA 844 (SCA) 100, 116
Strix Limited v NuWorld Industries 2016 (1) SA 387 (SCA) 296
Strut Ahead Natal (Pty) Ltd v Burns [2007] 3 All SA 190 (D), 2007 (4) SA 600 (D) 85
Strydom v Engen Petroleum Ltd [2013] 1 All SA 563 (SCA), 2013 (2) SA 187 (SCA) 350
Strydom v FennerSolomon [1953] 1 All SA 253 (E), 1953 (1) SA 519 (E) 160
SuidAfrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw & Collins
Afslaers (Edms) Bpk [1997] 1 All SA 473 (A), 1997 (1) SA 592 (A) 274
SuidAfrikaanse Onderlinge Brand en Algemene Versekeringsmaatskappy Bpk v
Van den Berg 1976 (1) SA 602 (A) 150
Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers
[2001] 2 All SA 646 (NC), 2001 (3) SA 110 (NC) 69, 265
Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A) 127
Sunshine Records (Pty) Ltd v Frohling [1990] 1 All SA 8 (A), 1990 (4) SA 782 (A) 318
Super Safes (Pty) Ltd v Voulgarides [1975] 1 All SA 50 (W), 1975 (2) SA 783 (W) 317
Sutter v Brown 1926 AD 155 154, 155
SVV Construction (Pty) Ltd v Attorneys, Notaries and Conveyancers
Fidelity Guarantee Fund [1993] 3 All SA 8 (C), 1993 (2) SA 577 (C) 244
SWA Amalgameerde Afslaers (Edms) Bpk v Louw
[1956] 1 All SA 293 (A), 1956 (1) SA 346 (A) 27, 61
Swanepoel v Minister van Veiligheid en Sekuriteit
[1999] 3 All SA 285 (T), 1999 (1) SA 549 (T) 207
Swanepoel v Nameng [2010] 1 All SA 345 (SCA), 2010 (3) SA 124 (SCA) 37, 311
Swanepoel v Swanepoel [1996] 3 All SA 440 (SE) 356
Swart v Smuts [1971] 2 All SA 153 (A), 1971 (1) SA 819 (A) 119
Swart v Van der Vyver [1970] 1 All SA 486 (A), 1970 (1) SA 633 (A) 364
Swart v Vosloo [1965] 1 All SA 264 (A), 1965 (1) SA 100 (A) 102, 238
Swarts v Swarts [2002] 3 All SA 35 (T), 2002 (3) SA 451 (T) 172
Swartz v Delport [2002] 2 All SA 309 (A) 270
Symington v PretoriaOos Privaat Hospitaal Bedryfs (Pty) Ltd
[2005] 4 All SA 403 (SCA), 2005 (5) SA 550 (SCA) 10, 202, 203, 307
T
Take and Save Trading CC v Standard Bank of SA Ltd
[2004] 1 All SA 597 (SCA), 2004 (4) SA 1 (SCA) 63
Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk
[1974] 3 All SA 1 (A), 1974 (2) SA 450 (A) 220
Taljaard v TL Botha Properties [2008] 3 All SA 453 (SCA), 2008 (6) SA 207 (SCA) 31, 32
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd
[1982] 1 All SA 191 (A), 1982 (1) SA 398 (A) 124, 127
Tarloff v Olivier [2004] 1 All SA 563 (C) 207, 209
Tedco Management Services (Pvt) Ltd v Grain Marketing Board 1997 (1) SA 196 (ZSC) 77
Telcordia Technologies Inc v Telkom SA Ltd
[2007] 2 All SA 243 (SCA), 2007 (3) SA 266 (SCA) 43, 46, 47
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority of SA
[2006] 1 All SA 6 (SCA), 2006 (1) SA 461 (SCA) 7, 163
Television Radio Centre (Pty) Ltd v Sony [1987] 2 All SA 196 (A), 1987 (2) SA 994 (A) 361
Telkom SA Ltd v Xsinet (Pty) Ltd [2003] ZASCA 35, 2003 (5) SA 309 (SCA) 341
Ter Beek v United Resources CC 1997 (3) SA 315 (C) 194
Terblanche v Archdeacon [1979] 4 All SA 314 (T), 1979 (3) SA 201 (T) 196
Terblanche NO v Baxtrans CC 1998 (3) SA 912 (C) 349
Terespolsky and another v Morituri Restaurant (Lakeside) and others
[2014] ZAWCHC 62 131, 296, 362
Terminus Centre CC v Henry Mansell (Pty) Ltd [2007] 3 All SA 668 (C) 224
Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (A), 2000 (1) SA 268 (SCA) 109, 310, 349
Thanolda Estates (Pty) Ltd v Bouleigh 145 (Pty) Ltd
[2001] 1 All SA 141 (W), 2001 (3) SA 196 (W) 113
The Citizen 1978 (Pty) Ltd and others v McBride
2011 (8) BCLR 816 (CC), 2011 (4) SA 191 (CC) 159
Theron v AA Life Assurance Association Ltd [1995] 2 All SA 581 (A), 1995 (4) SA 361 (A)261
Theron v Premier of the Western Cape Province and another
[2017] All SA 916 (WCC) 184, 185
Theron NO and another v Loubser NO and others; Theron NO and another v
Loubser and others [2014] 1 All SA 460 (SCA), 2014 (3) SA 323 (SCA) 79
Thiart v Kraukamp [1967] 3 All SA 236 (T), 1967 (3) SA 219 (T) 109, 112
Thole v Minister of Justice [1967] 4 All SA 7 (D), 1967 (3) SA 531 (D) 155
Thomani and another v Seboka NO and others 2017 (1) SA 51 (GP) 350
Thomas v BMW South Africa (Pty) Ltd 1996 (2) SA 106 (C) 162
Thomas v Henry [1985] 2 All SA 416 (A), 1985 (3) SA 889 (A) 103, 378, 379
Thomas Construction (Pty) Ltd (in liq) v Grafton Furniture Manufacturers (Pty) Ltd
[1988] 2 All SA 228 (A), 1988 (2) SA 546 (A) 50, 103
Thompson v Barclays Bank, DCO [1965] 1 All SA 280 (W), 1965 (1) SA 365 (W) 145
Thompson v Minister of Police [1971] 1 All SA 534 (E), 1971 (1) SA 371 (E) 256
Thompson v SA Broadcasting Corporation
[2001] 1 All SA 329 (A), 2001 (3) SA 746 (SCA) 204
Thompson v Scholtz [1998] 4 All SA 526 (A), 1999 (1) SA 232 (SCA) 8, 114, 194, 237, 240
Thormahlen v Gouws [1956] 4 All SA 259 (A), 1956 (4) SA 430 (A) 380
Thoroughbred Breeders' Association of South Africa v Price Waterhouse
[2001] 4 All SA 161 (A), 2001 (4) SA 551 (SCA) 15, 16, 17, 164, 222, 223, 225, 271
Thorpe NNO v Trittenwein [2006] 4 All SA 129 (SCA) 35
Times Media Ltd v Niselow [2005] 1 All SA 567 (SCA) 153, 158
Tlou v Ralebipi [2016] 4 All SA 251 (GP) 174
TM v ZJ 2016 (1) SA 71 (KZD) 176
Tödt v Ipser [1993] 2 All SA 296 (A), 1993 (3) SA 577 (A) 55, 56, 256
Toerien v Stellenbosch University 1996 (1) SA 197 (C) 96
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk
[1976] 4 All SA 58 (A), 1976 (3) SA 470 (A) 107
Total SA (Pty) Ltd v Bekker NO [1992] 4 All SA 98 (A), 1992 (1) SA 617 (A) 125
Total Support Management (Pty) Ltd v Diversified Health Systems (SA) (Pty) Ltd
2002 (4) SA 661 (SCA) 43
Totalgaz Southern Africa v Solgas (Pty) Ltd and another; Easigas (Pty) Ltd v
Solgas (Pty) Ltd and another 2009 (4) SA 37 (W) 142
Touyz v Greater Johannesburg Transitional Metropolitan Council
[1996] 1 All SA 115 (A), 1996 (1) SA 950 (A) 349
Townsend Productions (Pty) Ltd v Leech [2001] 2 All SA 255 (C), 2001 (4) SA 33 (C) 317
Tradax Ocean Transportation SA v MV Silvergate properly described as MV Astyanax
[1999] 3 All SA 175 (A), 1999 (4) SA 405 (SCA) 315
TransAtlantic Equipment (Pty) Ltd v Minister of Transport of the Republic of South Africa
[2002] 1 All SA 298 (T), 2002 (2) SA 167 (T) 75, 76
TransNatal Steenkoolkorporasie Bpk v Lombaard
[1988] 2 All SA 475 (A), 1988 (3) SA 625 (A) 113
Transitional Local Council of Randfontein v ABSA Bank
[2000] 2 All SA 134 (W), 2000 (2) SA 1040 (W) 166
Transnet Ltd v Rubenstein [2005] 3 All SA 425 (SCA), 2006 (1) SA 591 (SCA) 112, 265
Transnet Ltd v SA Metal Machinery Co (Pty) Ltd
[2006] 1 All SA 352 (SCA), 2006 (6) SA 285 (SCA) 207
Traub v Barclays National Bank Ltd 1983 (3) SA 619 (A) 378
Trinity Asset Management (Pty) Limited v Grindstone Investments 132 (Pty) Limited
2017 (12) BCLR 1562 (CC), 2018 (1) SA 94 (CC) 124, 268, 306
Trojan Exploration Co (Pty) Ltd v Rustenburg Platinum Mines Ltd
[1996] 4 All SA 121 (A), 1996 (4) SA 499 (SCA) 228
Trollip v Jordaan [1961] 1 All SA 494 (A), 1961 (1) SA 238 (A) 262, 266
Trope v SA Reserve Bank [1993] 2 All SA 278 (A), 1993 (3) SA 264 (A) 6
Trope and others v South African Reserve Bank
[1993] 2 All SA 278 (A), 1993 (3) SA 264 (AD) 2
Trotman v Edwick [1951] 1 All SA 441 (A), 1951 (1) SA 443 (A) 144
Truck & Car Co Ltd v Hirschmann [1954] 2 All SA 118 (E), 1954 (2) SA 117 (E) 291
Truman v Leonard [1994] 4 All SA 445 (SE), 1994 (4) SA 371 (SE) 332
Trust Bank of Africa Ltd v Frysch 1977 (3) SA 562 (A) 352
Trust Bank of Africa Ltd v Standard Bank of SA Ltd
[1968] 3 All SA 265 (A), 1968 (3) SA 166 (A) 71
Trust Bank van Afrika Bpk v Bendor Properties Ltd
[1977] 2 All SA 129 (T), 1977 (2) SA 632 (T) 73
Trust Bank van Afrika, Bpk v Geregsbode, Middelburg
[1966] 3 All SA 488 (T), 1966 (3) SA 391 (T) 226
Trustees, Estate Whitehead v Dumas and another 2013 (3) SA 331 (SCA) 63
Trustees for the time being of the Bus Industry Restructuring Fund v
Break Through Investments CC [2008] 1 All SA 23 (SCA), 2008 (1) SA 67 (SCA) 6
Trustees of the Brian Lackey Trust v Annandale
[2003] 4 All SA 528 (C), 2004 (3) SA 281 (C) 186
Trustees of the Insolvent Estate of Whitehead v Dumas and another
[2013] ZASCA 19, 2013 (3) SA 331 (SCA) 120
Truter, Crous, Wiggill & Vos v Udwin [1981] 3 All SA 46 (T), 1981 (4) SA 68 (T) 241
Truth & Reconciliation Commission v Mpumlwana [2001] 3 All SA 58 (Ck) 204
Tryon TY v Nedgroup Defined Contribution Pension and Provident Funds and another
(Pension Funds Adjudicator, unreported case, no. PFA/GA/8796/2011/TCM) 176
Tsaperas v Boland Bank Ltd [1996] 4 All SA 312 (A), 1996 (1) SA 719 (A) 351
Tsedu and others v Lekota and another [2009] 3 All SA 46 (SCA), 2009 (4) SA 372 (SCA) 155
Tsogo Sun Holdings (Pty) Ltd v QingHe Shan 2006 (6) SA 537 (SCA) 372
Tsose v Minister of Justice [1951] 3 All SA 158 (A), 1951 (3) SA 10 (A) 55
Tsung and another v Industrial Development Corporation of South Africa Ltd and another
[2013] 2 All SA 556 (SCA), 2013 (3) SA 468 (SCA) 82
Tswelopele NonProfit Organisation v City of Tshwane Metropolitan Municipality
2007 (6) SA 511 (SCA) 342
Tuch and others NNO v Myerson and others
[2010] 2 All SA 48 (SCA), 2010 (2) SA 462 (SCA) 159
Tuckers Land and Development Corporation (Pty) Ltd v Perpellief
[1978] 1 All SA 629 (T), 1978 (2) SA 11 (T) 26, 85, 251
Tudor Hotel Brasserie and Bar (Pty) Ltd v Hencetrade 15 (Pty) Ltd [2017] ZASCA 111 237
Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd
[1976] 2 All SA 472 (T), 1976 (4) SA 218 (T) 293
Turbek Trading CC v A & D Spitz Ltd [2010] 2 All SA 284 (SCA), [2010] FSR 16 (SCA) 379
Turkstra v Massyn [1959] 1 All SA 263 (T), 1959 (1) SA 40 (T) 275, 353
Turkstra Ltd v Richards 1926 TPD 276 279
Turners Asbestos Products (Pvt) Ltd v G Straw & Son (Pvt) Ltd 1974 (3) SA 286 (R) 143
Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours
[1998] 3 All SA 57 (W), 1998 (4) SA 802 (W) 116, 122
Twentieth Century Fox Film Corp v Anthony Black Films (Pty) Ltd
[1982] 3 All SA 679 (W), 1982 (3) SA 582 (W) 131
Tyrone Selmon Properties (Pty) Ltd v Phindana Properties 112 (Pty) Ltd
[2006] 1 All SA 545 (C) 32
U
Uitenhage Municipality v Molloy [1998] 1 All SA 140 (A), 1998 (2) SA 735 (SCA) 306
Unie Volkspers Bpk v Rossouw 1943 AD 519 154
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) 20
Union Finance Holdings (Pty) Ltd v Bonugli and another NNO 2013 (2) SA 449 (GSJ) 305
Union Free State Mining & Finance Corp Ltd v Union Free State Gold &
Diamond Corp Ltd [1960] 4 All SA 113 (W), 1960 (4) SA 547 (W) 379
Union Government v Sykes 1913 AD 156 345
United Building Society v DI Stone (Pty) Ltd [1988] 4 All SA 41 (A), 1988 (4) SA 795 (E) 166
United Canners Ltd v Deepfreezing & Preserving (Pty) Ltd; Standard Canners &
Packers Ltd v Deepfreezing & Preserving (Pty) Ltd 1960 (1) SA 852 (C) 113
United Enterprises Corporation v STX Pan Ocean Company Ltd
[2007] 3 All SA 87 (C); [2008] 3 All SA 111 (SCA) 232, 315
United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd
[1972] 4 All SA 493 (C), 1972 (4) SA 409 (C) 232
Universal Stores Ltd v OK Bazaars (1929) Ltd
[1973] 4 All SA 611 (A), 1973 (4) SA 747 (A) 188
Universiteit van Stellenbosch v JA Louw (Edms) Bpk
[1983] 2 All SA 415 (A), 1983 (4) SA 321 (A) 44, 49
V
V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd [2002] 4 All SA 50 (Z) 190
Vaal Reefs Exploration & Mining Co Ltd v Burger
[1999] 4 All SA 253 (A), 1999 (4) SA 1161 (SCA) 26
Vaal Transport Corp (Pty) Ltd v Van Wyk Venter
[1974] 2 All SA 617 (T), 1974 (2) SA 575 (T) 364
Value Logistics Limited v Smit and another [2013] 4 All SA 213 (GSJ) 317
Valunet Solutions Inc t/a Dinkum USA v eTel Communications Solutions (Pty) Ltd
2005 (3) SA 494 (W) 94
Van Almelo v Shield Insurance Co Ltd [1980] 3 All SA 770 (C), 1980 (2) SA 411 (C) 146
Van As v Appollus [1993] 3 All SA 402 (C), 1993 (1) SA 606 (C) 251
Van As v Du Preez [1981] 4 All SA 402 (T), 1981 (3) SA 760 (T) 380
Van Aswegen v De Clercq [1960] 4 All SA 469 (A), 1960 (4) SA 875 (A) 32
Van Aswegen v Fourie [1964] 3 All SA 20 (O), 1964 (3) SA 94 (O) 311
Van Breda v Jacobs 1921 AD 330 142
Van Breukelen v Van Breukelen [1966] 2 All SA 379 (A), 1966 (2) SA 285 (A) 357
Van den Berg & Kie Rekenkundige Beamptes v Boomprops 1028 BK 1999 (1) SA 780 (T)182
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd
[2001] 1 All SA 425 (A), 2001 (2) SA 242 (SCA) 155, 370
Van der Hoven v Erasmus 1922 TPD 1 160
Van der Merwe v Firstrand Bank Ltd t/a Wesbank and Barloworld Equipment Finance
2012 (1) SA 480 (ECG) 355
Van der Merwe v Karroo Vleisbeurs Bpk [1963] 4 All SA 40 (C), 1963 (3) SA 831 (C) 226
Van der Merwe v Meades [1991] 4 All SA 42 (A), 1991 (2) SA 1 (A) 332
Van der Merwe v Sekretaris van Binnelandse Inkomste
[1977] 1 All SA 591 (A), 1977 (1) SA 462 (A) 287
Van der Merwe v Strydom [1967] 3 All SA 281 (A), 1967 (3) SA 460 (A) 255
Van der Walt v De Beer [2005] 3 All SA 510 (C), 2005 (5) SA 151 (C) 258
Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA), 2002 (6) SA 453 (SCA) 109, 334
Van der Westhuizen v Burger [2017] ZASCA 178, 2018 (2) SA 87 (SCA) 41, 42
Van der Westhuizen v Smit NO [1954] 2 All SA 169 (SWA), 1954 (3) SA 427 (SWA) 5
Van Deventer v Louw [1980] 2 All SA 406 (O), 1980 (4) SA 105 (O) 167
Van Heerden v Sentrale Kunsmis Korp (Edms) Bpk
[1973] 1 All SA 150 (A), 1973 (1) SA 17 (A) 45
Van Hulsteyns Attorneys v Government of the RSA
[2002] 3 All SA 64 (A), 2002 (2) SA 295 (SCA) 77
Van Huyssteen NO and another v Mila Investment and Holding Company (Pty) Ltd
[2017] ZASCA 84 107, 266
Van Immerzeel & Pohl v Samancor Ltd
[2001] 2 All SA 235 (A), 2001 (2) SA 90 (SCA) 115, 306
Van Jaarsveld v Bridges [2010] 4 All SA 389 (SCA), 2010 (4) SA 558 (SCA) 207, 209
Van Jaarsveld v Coetzee [1973] 3 All SA 285 (A), 1973 (3) SA 241 (A) 113
Van Jaarsveldt v Bosman [2007] 4 All SA 1198 (W) 333
Van Metzinger v Badenhorst [1953] 3 All SA 321 (T), 1953 (3) SA 291 (T) 261
Van Niekerk v Bayer SA (Edms) Bpk [1998] 4 All SA 212 (NC) 211
Van Niekerk v Favel 2006 (4) SA 548 (W) 36, 37
Van Niekerk v Jantjies [1996] 2 All SA 517 (E) 40
Van Niekerk v Van den Berg [1965] 2 All SA 367 (A), 1965 (2) SA 525 (A) 26, 249
Van Reenen v Santam Ltd 2013 (5) SA 595 (SCA) 219
Van Reenen Steel (Pty) Ltd v Smith NO
[2002] JOL 9515 (A), [2002] ZASCA 12, 2002 (4) SA 264 (SCA) 111, 112, 265, 266
Van Rensburg v Coetzee [1979] 4 All SA 848 (A), 1979 (4) SA 655 (A) 320
Van Rensburg v Nelson Mandela Metropolitan Municipality
[2007] 4 All SA 950 (SE), 2008 (2) SA 8 (SE) 279
Van Rensburg v Straughan 1914 AD 317 99, 276
Van Rooyen v Du Plooy 1985 (1) SA 812 (T) 76
Van Schalkwyk v Van der Wath [1963] 3 All SA 507 (A), 1963 (3) SA 636 (A) 380
Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration
1987 (4) SA 569 (A) 102
Van Tonder v Davids [1975] 3 All SA 544 (C), 1975 (3) SA 616 (C) 287
Van Vuuren v Sam [1972] 2 All SA 436 (A), 1972 (2) SA 633 (A) 255
Van Wyk v Botha [2005] 2 All SA 320 (C) 111
Van Wyk v Hermanus Municipality [1963] 4 All SA 83 (C), 1963 (4) SA 285 (C) 183
Van Wyk v Lewis 1924 AD 438 258, 271
Van Wyk v Rottcher's Mills (Pty) Ltd [1948] 2 All SA 45 (A), 1948 (1) SA 983 (A) 36
Van Zijl v Hoogenhout [2004] 4 All SA 427 (SCA), 2005 (2) SA 93 (SCA) 306
Van Zyl v Credit Corp of SA Ltd [1960] 4 All SA 314 (A), 1960 (4) SA 582 (A) 70, 72
Van Zyl v Kotze [1961] 4 All SA 293 (T), 1961 (4) SA 214 (T) 39
Van Zyl v Nieman [1964] 4 All SA 377 (A), 1964 (4) SA 661 (A) 338
Van Zyl v Rossouw [1976] 2 All SA 359 (NC), 1976 (1) SA 773 (NC) 268
Van Zyl v Serfontein [1992] 1 All SA 185 (C), 1992 (2) SA 450 (C) 90, 147
Van Zyl NO v Kiln NonMarine Syndicate No 510 of Lloyds of London
[2002] 4 All SA 355 (SCA), 2003 (2) SA 440 (SCA) 217, 218, 219
Van Zyl NO v Maarman [2000] 4 All SA 212 (LCC), 2001 (1) SA 957 (LCC) 191
Van Zyl and Maritz NNO v SA Special Risks Insurance Association
[1995] 1 All SA 7 (SE), 1995 (2) SA 331 (SE) 4
Vanarthdoy (Edms) Bpk v Roos [1979] 2 All SA 315 (A), 1979 (4) SA 1 (A) 32
Vasco Dry Cleaners v Twycross [1979] 1 All SA 321 (A), 1979 (1) SA 603 (A) 300, 340
Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in liq) 1987 (4) SA 883 (A) 234
Venter v Birchholtz [1972] 1 All SA 361 (A), 1972 (1) SA 276 (A) 283, 380
Venter v Venter [1949] 2 All SA 24 (A), 1949 (1) SA 768 (A) 268
Venter Agentskappe (Edms) Bpk v De Sousa 1990 (3) SA 103 (A) 113
Venter & Spain NNO, Ex parte: Fordom Factoring Ltd intervening;
Venter & Spain v Povey 1982 (2) SA 94 (D) 79
Ver Elst v Sabena Belgian World Airlines [1983] 2 All SA 51 (A), 1983 (3) SA 637 (A) 238, 268
Vereins und Westbank AG v Veren Investments 2002 (4) SA 421(SCA) 298, 310
Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 (3) SA 159 (T) 280
Verimark (Pty) Ltd v BMW AG v Verimark 2007 (6) SA 263 (SCA) 361
Vermaak v Du Plessis [1974] 4 All SA 338 (O), 1974 (4) SA 353 (O) 39
Vermaak v Van der Merwe [1981] 1 All SA 432 (N), 1981 (3) SA 78 (N) 153
Vermeulen v Goose Valley Investments (Pty) Ltd
[2001] 3 All SA 350 (A), 2001 (3) SA 986 (SCA) 6, 328
Viljoen v Federated Trust Ltd [1971] 2 All SA 107 (O), 1971 (1) SA 750 (O) 5
Viljoen v Smith 1997 (1) SA 309 (A) 368, 371
Viljoen v Viljoen [2002] 2 All SA 143 (T) 342
Vincorp (Pty) Ltd v Trust Hungary ZRT [2018] ZASCA 35 107
Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards Inc
[1998] 4 All SA 281 (A), 1998 (4) SA 1182 (SCA) 115
Visse v Wallachs' Printing & Publishing Co Ltd 1946 TPD 441 154
Visser v 1 Life Direct Insurance Limited 2015 (3) SA 69 (SCA) 217
Visser v Rousseau NO [1990] 1 All SA 409 (A), 1990 (1) SA 139 (A) 121
Visser v Theodore Sassen & Son (Pty) Ltd [1982] 1 All SA 362 (C), 1982 (2) SA 320 (C) 351
Volkskas Bpk v Barclays Bank (DC & O) [1952] 3 All SA 325 (A), 1952 (3) SA 343 (A) 293
Volkskas Bpk v Johnson [1979] 4 All SA 872 (C), 1979 (4) SA 775 (C) 62
Volkskas Bpk v Van Aswegen [1961] 1 All SA 581 (A), 1961 (1) SA 493 (A) 62
Von Ziegler v Superior Furniture Manufacturers (Pty) Ltd
[1962] 3 All SA 371 (T), 1962 (3) SA 399 (T) 311
Voorslag Ontwikkelingskorp (Edms) Bpk v Administrateur, Transvaal
[1974] 3 All SA 576 (T), 1974 (3) SA 563 (T) 197
Vorster v Herselman [1982] 4 All SA 650 (O), 1982 (4) SA 857 (O) 106
Vrystaat Motors v Henry Blignaut (Edms) Bpk
[1996] 1 All SA 249 (A), 1996 (2) SA 448 (A) 334
Vulcan Rubber Works (Pty) Ltd v SAR & H [1958] 3 All SA 241 (A), 1958 (3) SA 285 (A) 20
Vulindlela Furniture Manufacturers (Pty) Ltd v
MEC, Department of Education and Culture, Eastern Cape 1998 (4) SA 908 (Tk) 162
Vumane v Mkize [1990] 3 All SA 509 (W), 1990 (1) SA 465 (W) 191
W
Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd
[2003] 2 All SA 167 (SCA), 2003 (4) SA 285 (SCA) 332
Waikiwi Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd
[1978] 2 All SA 241 (A), 1978 (1) SA 671 (A) 71
Wakefields Real Estate (Pty) Ltd v Attree and others 2011 (6) SA 557 (SCA) 32
Walker v Redhouse [2007] 4 All SA 1217 (SCA), 2007 (3) SA 514 (SCA) 41
Wallachs Ltd v Marsh 1928 TPD 531 154
Wapnick v Durban City Garage 1984 (2) SA 414 (D) 274
Ward v Barrett NO [1962] 4 All SA 557 (N), 1962 (4) SA 732 (N) 28
Waring & Gillow Ltd v Sherborne 1904 TS 340 376
Waste Products Utilisation (Pty) Ltd v Wilkes
[2001] JOL 8923 (W), 2003 (2) SA 515 (W) 93, 318
Wastie v Security Motors (Pty) Ltd [1972] 2 All SA 255 (C), 1972 (2) SA 129 (C) 196
Water Renovation (Pty) Ltd v Gold Fields of SA Ltd
[1994] 2 All SA 33 (A), 1994 (2) SA 588 (A) 3
Watt v Standard Bank National Industrial Credit Corp
[1982] 1 All SA 121 (D), 1982 (2) SA 47 (D) 334
The Wave Dancer: Nel v Toron Screen Corporation (Pty) Ltd and another
1996 (4) SA 1167 (A) 23
Webb v Davis NO [1998] 2 All SA 584 (SCA), 1998 (2) SA 975 (SCA) 112
WeberStephen Products Co v Alrite Engineering (Pty) Ltd
[1992] 4 All SA 453 (A), 1992 (2) SA 489 (A) 292
Webster v Webster [1968] 3 All SA 392 (T), 1968 (3) SA 386 (T) 147
Wedge Steel (Pty) Ltd v Wepener 1991 (3) SA 444 (W) 225
Weepner v Kriel [1977] 4 All SA 589 (C), 1977 (4) SA 212 (C) 124
Welgemoed v Sauer [1974] 4 All SA 112 (A), 1974 (4) SA 1 (A) 331
Wells v SA Alumenite Co 1927 AD 69 205
Weltmans Custom Office Furniture (Proprietary) Limited (in liquidation) v Whistlers CC
[1999] (3) SA 1116 (SCA) 277
Werksmans Incorporated v Praxley Corporate Solutions (Pty) Ltd
[2015] 4 All SA 525 (GSJ) 242
Werner v Florauna Kwekery BK and others 2016 (2) SA 282 (SCA) 319
West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 222
Westeel Engineering (Pty) Ltd v Sydney Clow & Co Ltd
[1968] 3 All SA 221 (T), 1968 (3) SA 458 (T) 333
Western Cape Housing Development Board v Parker
[2006] 3 All SA 84 (C), 2005 (1) SA 462 (C) 336
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555 (A) 328
Whittaker v Roos & Bateman 1912 AD 92 53
Whyte v Da Costa Couto 1985 (4) SA 672 (A) 113
Wierda Road West Properties (Pty) Ltd v SizweNtsalubaGobodo Inc 2018 (3) SA 95 (SCA)119
Wiese and another v ABSA Bank Ltd [2017] 2 All SA 322 (WCC) 137
Wijker v Wijker [1993] 4 All SA 857 (AD), 1993 (4) SA 720 (A) 174
Wile v MEC, Department of Home Affairs, Gauteng 2017 (1) SA 125 (WCC) 230
Wilken v Kohler 1913 AD 135 91
Wilkens Nel Argitekte v Stephenson 1987 (2) SA 628 (O) 49
Wilkins v Voges [1994] 2 All SA 349 (A), 1994 (3) SA 130 (A) 108
Williams v Harris 1998 (3) SA 970 (SCA) 380
Williams v Shub [1976] 4 All SA 449 (C), 1976 (4) SA 567 (C) 251
Williams v Williams [1971] 3 All SA 45 (O), 1971 (2) SA 620 (O) 4
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue
[1992] 4 All SA 62 (AD), 1992 (4) SA 202 (A) 89, 90
Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W) 341
Wilmot Motors (Pty) Ltd v Tucker's Fresh Meat Supply Ltd
[1969] 4 All SA 395 (T), 1969 (4) SA 474 (T) 310
Wilson v SAR&H 1981 (3) SA 1016 (C) 4
Wilson v Smith [1956] 1 All SA 114 (W), 1956 (1) SA 393 (W) 122
Wilson Bayly Holmes (Pty) Ltd v Maeyane [1995] 2 All SA 173 (T), 1995 (4) SA 340 (T) 338
Wilton v Gatonby [1994] 4 All SA 292 (W), 1994 (4) SA 160 (W) 45
Wingaardt and others v Grobler and another 2010 (6) SA 148 (ECG) 278
Winlite Aluminium Windows & Doors (Pty) Ltd v Pyramid Freight (Pty) Ltd t/a UTI
2011 (1) SA 571 (SCA) 355
Winterbach v Masters [1989] 1 All SA 286 (E), 1989 (1) SA 922 (E) 59
Withinshaw Properties (Pty) Ltd v Dura Construction Co (SA) (Pty) Ltd
1989 (4) SA 1073 (A) 44
WJ Lineveldt (Edms) Bpk v Immelman [1980] 2 All SA 6 (O), 1980 (2) SA 964 (O) 167
Woerman NO v Masondo [2002] 2 All SA 53 (A), 2002 (1) SA 811 (SCA) 374
Wolpe v Gale [1980] 2 All SA 19 (W), 1980 (3) SA 259 (W) 22
Wolpert v Steenkamp 1917 AD 493 328
Wood v Capita Insurance Services Ltd [2017] UKSC 24 109
Wood NO v Branson [1952] 3 All SA 414 (T), 1952 (3) SA 369 (T) 160
Woods v Walters 1921 AD 303 105
World Leisure Holidays (Pty) Ltd v Georges 2002 (5) SA 531 (W) 123
Wormald NO v Kambule [2005] 4 All SA 629 (SCA), 2006 (3) SA 562 (SCA) 142
Wright v MediClinic Ltd [2007] 2 All SA 515 (C), 2007 (4) SA 327 (C) 258
WT and others v KT 2015 (3) SA 574 (SCA) 173
Wynberg Municipality v Dreyer 1920 AD 439 279
Wynland Construction (Pty) Ltd v AshleySmith
[1985] 2 All SA 368 (A), 1985 (3) SA 798 (A) 249
Wypkema v Lubbe [2007] 4 All SA 1224 (SCA), 2007 (5) SA 138 (SCA) 119, 243
X
Xenopoulos v Standard Bank of South Africa Ltd
[2000] 2 All SA 494 (W), 2001 (3) SA 498 (W) 378
Y
Yannakou v Apollo Club [1974] 2 All SA 129 (A), 1974 (1) SA 614 (A) 120, 349
Yarona Healthcare Network (Pty) Ltd v Medshield Medical Scheme
[2017] 4 All SA 705 (SCA), 2018 (1) SA 513 (SCA) 90, 91, 92
Yates Investments (Pty) Ltd v Commissioner for Inland Revenue
[1956] 1 All SA 285 (A), 1956 (1) SA 364 (A) 85
YB v SB 2016 (1) SA 47 (WCC) 174
Yeko v Qana [1973] 4 All SA 512 (A), 1973 (4) SA 735 (A) 341
Yorigami Maritime Construction Co Ltd v NisshoIwai Co Ltd
[1977] 4 All SA 733 (C), 1977 (4) SA 682 (C) 45
York & Co (Pvt) Ltd v Jones NO (2) [1962] 1 All SA 83 (SR), 1962 (1) SA 72 (SR) 333
Yusaf v Bailey [1964] 4 All SA 44 (W), 1964 (4) SA 117 (W) 158
Z
Za v Smith and another [2015] 3 All SA 288 (SCA), 2015 (4) SA 574 (SCA) 162
Zandberg v Van Zyl 1910 AD 302 285, 339, 340
Zietsman v Van Tonder [1989] 3 All SA 124 (T), 1989 (2) SA 484 (T) 42
Zitonix (Pty) Limited v K201250042 (South Africa) (Pty) Limited [2018] ZASCA 63 190
Zuurbekom Ltd v Union Corp Ltd [1947] 1 All SA 319 (A), 1947 (1) SA 514 (A) 379
Zwiegelaar v Zwiegelaar [2001] 1 All SA 261 (A), 2001 (1) SA 1208 (SCA) 173
Zyp Products Co Ltd v Ziman Bros Ltd 1926 TPD 224 293
Administration of Estates Act 66 of 1965 148
s 35 147
Admiralty Jurisdiction Regulation Act 105 of 1983
s 1 23
s 2 24
s 3(2) 23
s 3(2)(b) 23, 24
s 3(4) 23
s 3(5) 23
s 3(6) 25
s 3(7) 25
s 5(1) 24
s 5(2)(d) 24
s 5(2)(dA) 24
s 5(2)(f) 24
s 5(2)(g) 24
s 5(3)(a) 23
s 6 25
s 7 23
s 9 24
s 11 24
Admiralty Proceedings Rules
rule 1 24
rule 2 23
rule 3 23
rule 5 23
rules 913 24
rule 18 24
rule 19 24
rule 21 24, 25
rule 22 24
rule 24 24
rule 25 24
Alienation of Land Act 68 of 1981 34, 180, 196, 334
chap . II 336
s 1 335
s 2 39, 61
s 2(1) 27, 35, 302
s 2(2A) 35, 39
s 3 39, 61
s 5 335
s 6 36, 335, 336
s 11 335
s 12(2) 335
s 12(5) 128
s 15(1) 335
s 17 335
s 18 335
s 19 335
s 24 36, 335
s 25 335
s 27 335
s 28(1) 38
s 28(2) 38
s 29 37
s 29A 35, 37, 39
Apportionment of Damages Act 34 of 1956 116, 282
s 1 273, 275
s 2 358
s 2(6)(b) 307
Arbitration Act 42 of 1965 43
s 3(1) 45
s 6 45
s 20 46
s 25(1) 46
s 31(1) 46
s 32 46
s 33 47
Architectural Profession Act 44 of 2000
s 18 49
s 34 49
Assessment of Damages Act 9 of 1969 254
s 1 146
Attorneys Act 53 of 1979
chap . II 243
s 23(1) 245
s 25 247
s 26(a) 244
s 26(b) 244
s 41 242
s 45(2) 244
s 47(2) 244
s 48(1) 244
s 49(1) 244
s 49(2) 244
s 78(1) 243
Auditing Profession Act 26 of 2005 18
s 38(3) 16
s 41(1) 15
s 46(2) 16
s 46(3) 17
s 58(2) 17, 273
Basic Conditions of Employment Act 75 of 1997 183
s 4 184
s 37 184
Basic Conditions of Employment Act 75 of 1997 (cont.)
s 38 184
s 77 184
Bills of Exchange Act 34 of 1964
s 23 75
s 28(2) 76
s 36 75
s 37 75
s 44 74
s 45 74
s 46 74
s 48 74
s 48(2)(c) 77
s 54 74
s 73 75
s 78 76
s 78(4) 76
s 79 76, 78
s 81 76, 77
s 81(1) 76, 77
s 81(3) 77
Carriage of Goods by Sea Act 1 of 1986 25
Children's Act 38 of 2005 176
chap . 17 230
s 14 248
s 17 248
Civil Proceedings Evidence Act 25 of 1965
s 15 3
Close Corporations Act 69 of 1984
s 2 79, 81
s 7 81
s 23 82
s 42 82
s 42(3)(a) 82
s 42(3)(b) 82
s 43 82
s 50 82
s 64 21, 82, 83
s 65 82, 83
Cooperatives Act 14 of 2005
sched. 1, part 4 300
Community Development Act 3 of 1966
s 10 197
Companies Act 61 of 1973 84
s 422(1) 87
s 424 21, 82
s 424(1) 85, 87, 88
Companies Act 71 of 2008 19, 81, 84
s 20(9) 86
s 32 82
s 35 87
ss 9093 16, 18
s 163 86
s 165 86
s 165(5)(b) 87
sched. 5 21
Compensation for Occupational Injuries and Diseases Act 130 of 1993 283
s 1 281
s 22(1) 281
s 29 281
s 35(1) 282
s 36 282
Constitution of the Republic of South Africa, 1996 25, 190, 342
s 7 345
s 25(3) 197
s 27(1) 260
s 34 1
s 35(1) 53
s 35(2) 53
s 39(2) 95, 96, 141
s 41(1) 345
s 211(3) 141
Consumer Protection Act 68 of 2008
s 40 181, 366
s 45 61
s 48 110
s 53 330
s 55 329, 330, 331
s 56 329, 331
s 61 330, 332
s 68 101
s 76 330
Contingency Fees Act 66 of 1997 243
Conventional Penalties Act 15 of 1962
s 1 127
s 3 127, 128, 129
s 4 127, 129
Copyright Act 98 of 1978 293
s 1(1) 130
s 2(1) 130
s 2(2) 130
s 3 130
s 3(2) 130
s 4 130
ss 511B 130
ss 1219B 132
s 15A 168
s 23 130
s 23(1) 131
s 23(2) 131
s 24(1A) 131
s 24(1B) 131
s 24(2) 132
s 24(3) 131
s 25 130, 131
s 26 131
s 37 130
s 43 129
Counterfeit Goods Act 37 of 1997 129, 292, 359
Criminal Procedure Act 51 of 1977
s 40 54
s 40(1)(a) 56
s 49(2) 58
Deeds Registries Act 47 of 1937
s 87 170
Designs Act 195 of 1993
s 1 168
s 20 168
s 20(1) 168
s 31 169
s 31(2) 169
s 35(1) 168
s 35(3) 169
s 35(5) 169
s 39 169
s 40 169
Divorce Act 70 of 1979
s 2(1)(a) 171
s 2(1)(b) 171
s 2(2) 171
s 3 174
s 4(1) 172
s 4(2) 172
s 5 172
s 5A 172, 175
s 6(1) 171
s 6(3) 172
s 7 175
s 7(2) 173
s 7(3) 174
s 7(6) 174
s 7(7) 174
s 7(8) 174
s 8 174, 175
s 9 175
s 9(1) 174
s 10 175
Domicile Act 3 of 1992
s 1 171
s 2 171
Electricity Act 40 of 1958 183
Electricity Regulation Act 4 of 2006
s 25 183
Employment Equity Act 55 of 1998 183
Enforcement of Foreign Civil Judgments Act 32 of 1988 229
Engineering Profession Act 46 of 2000 187
Estate Agency Affairs Act 112 of 1976 244
s 2 34
s 18 33
s 18(3) 34
s 19(1) 33
s 19(3) 33
s 20 33
s 26 32
s 26(a) 33
s 26(b) 33
s 34A 31
Expropriation Act 63 of 1975
s 1 197, 198
s 3(2) 197
s 7(3) 198
s 7(5) 198
s 9(1) 200
s 12(1)(a)(i) 198
s 12(1)(a)(ii) 200
s 12(1)(b) 201
s 12(2) 200
s 12(3) 200
s 12(5) 199
s 14 197
s 15 200
s 22 200
Extension of Security of Tenure Act 62 of 1997 190
s 2 191
s 3(4) 191
s 3(5) 191
s 9 192
ss 1013 192
s 15 192
Financial Advisory and Intermediary Services Act 37 of 2002 219
Fire Brigade Services Act 99 of 1987
s 20 368
Formalities in respect of Leases of Land Act 18 of 1969
s 1 237
Game Theft Act 105 of 1991 42
General Law Amendment Act 62 of 1955
s 34 80
General Law Amendment Act 50 of 1956 349
s 5 27, 180
s 6 27
Health Professions Act 56 of 1974
s 17(1) 257
s 17(1)(a) 326
s 53(1) 259
s 53(2) 259
s 53(3) 259
s 59(1) 259
Housing Consumers Protection Act 95 of 1998
s 13(1) 97
s 13(2) 97
Housing Development Schemes for Retired Persons Act 65 of 1988
s 4(6) 128
Identification Act 68 of 1997
s 13 170
Insolvency Act 24 of 1936 21
s 15 256
s 23 211
s 26 211, 212, 213, 214
s 29 211, 212, 213, 214
s 30 211, 212, 213, 214
s 31 211, 213, 213, 215
s 32(1) 211
s 34 83, 213, 272
s 34(1) 215
s 73(1) 79
s 75 213
s 76 213
s 95 348
s 156 219
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 301, 305
s 1(1) 343
s 2 343
s 3 345
s 3(1) 343
s 3(2) 344
s 3(2)(a) 260
s 3(3)(a) 344
s 4 344
s 5 344
Insurance Act 18 of 2017 215
Interim Protection of Informal Land Rights Act 31 of 1996 192
International Arbitration Act 15 of 2017 25, 47, 231
chap . 2 43
chap . 3 43, 48
ss 1618 48
s 18 48
Intestate Succession Act 81 of 1987 176
Judicial Matters Amendment Act 8 of 2017 80
Jurisdiction of Regional Courts Amendment Act 31 of 2008 171
KwaZulu Land Affairs Act 11 of 1992 34, 123
Labour Relations Act 66 of 1995 183
s 185 184
Law of Evidence Amendment Act 45 of 1988
s 1 141
Legal Practice Act 28 of 2014 241
chap . 6 243
chap . 7 243
s 24 242
s 115 242
LongTerm Insurance Act 52 of 1998 215
s 59(1) 218
Magistrates' Court Rules
rule 5(4) 78
rule 5(9) 70
rule 14A 73
rule 15 3
rule 17(4) 8
rule 19 6
rule 20 7, 8
rule 20(3) 9
rule 20(7) 9
rule 21 9
rule 44 226
rule 49 232
rule 58 286
Magistrates' Courts Act 32 of 1944
s 30(1) 341
s 28(1A) 171
s 29(1)(c) 319
s 46(2)(c) 123
s 65 56
s 74P(1) 56
s 74P(3) 56
Maintenance Act 99 of 1998 176
Maintenance of Surviving Spouses Act 27 of 1990 148, 173, 176
Marriage Act 25 of 1961 170
Matrimonial Property Act 88 of 1984 350
s 3 174
s 5 180
s 9 174
s 10 174
s 15 180
s 17 248
s 17(5) 248
s 22 180
s 24(1) 175
Mediation in Certain Divorce Matters Act 24 of 1987 172
Merchandise Marks Act 17 of 1941
s 7 292
Merchant Shipping Act 57 of 1951 25
National Credit Act 34 of 2005 13, 35, 128, 237, 252, 300, 353
sched. 3 134
s 4 135
s 5 136
s 6 135
s 7(1)(b) 135
s 8 134
s 9 135
s 80 137
s 83 137, 138, 140
s 86(9) 138, 139
s 87 137
s 88(3) 140
s 89 136
s 90 136
s 90(2)(k)(vi)(bb) 134
s 91(a) 136
s 92 135, 136
s 100 223
s 101 138
s 102 138
s 103 138
s 111 138
s 115 138
s 127 139, 140
s 129 139, 140
s 129(1) 138, 139
s 130 139
s 130(3)(c) 140
s 130(4)(b) 139
s 131 140
s 169 138
s 172(1) 34, 128
National Credit Regulations
reg 28 135, 136
reg 29 136
reg 32 137
reg 42(1) 138
National Environmental Management: Air Quality Act 39 of 2004 280
National Veld and Forest Fire Act 101 of 1998
s 33 368
s 34(1) 368
s 34(2) 368
National Water Act 36 of 1998 199
s 163(1) 380
Patent Regulations
reg 76 294
reg 98 296
Patents Act 57 of 1978
s 17(1) 294
s 18 294
s 19(1) 294
s 19(2) 294
s 45(1) 295
s 45(2) 295
s 49(4) 295
s 53(3) 294
s 65(1) 294
s 65(3) 295
s 65(4) 296
s 65(5) 294
s 65(6) 296
s 68 296
s 73(1) 295
Police Act 7 of 1958
s 32 301
Prescribed Rate of Interest Act 55 of 1975
s 1 223
s 2 222
s 4 223
Prescription Act 18 of 1943 303
Prescription Act 68 of 1969 46, 311
chap . III 304, 343
s 1 303, 304
s 5 303
s 6 304
s 7 304
s 10(3) 305
s 11 309
s 12(1) 306
s 12(3) 306
s 13 307, 309
s 14 307, 309
s 15 307
s 15(2) 308
s 17 304, 305
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 190
s 4 192
s 4(6)(8) 192
s 5 192
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 95, 151, 207
Property TimeSharing Control Act 75 of 1983
s 5(5) 128
Property Valuation Act 17 of 2014 197
Protection from Harassment Act 17 of 2011 207
Protection of Businesses Act 99 of 1978
s 1A 231
s 1F 229
Public Finance Management Act 1 of 1999
s 80 223
Public Service Act, 1994 (Proclamation 103 of 1994)
sched. 1 344
sched. 2 344
sched. 3 344
Quantity Surveying Profession Act 49 of 2000 309
Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 230
Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989 230
Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 43, 47
Recognition of Customary Marriages Act 120 of 1998 142
s 2 171
s 6 175
s 7(1) 175
s 8(1) 172
s 8(4) 175
Registration of Copyright in Cinematograph Films Act 62 of 1977 131
Rental Housing Act 50 of 1999 238
s 4 237
s 5 237
s 5(1) 237
s 5(2) 237
s 5(5) 239
s 13 237
Restitution of Land Rights Act 22 of 1994 197, 198
Road Accident Fund Act 56 of 1996 283
s 1 322
s 15(2) 323
s 17 322, 325, 326
s 17(1) 322
s 17(4) 324
s 17(4)(a) 325
s 17(4)(c) 324
s 17(4A) 324
s 19(g) 324
s 20 322
s 21(1) 323
s 21(2) 324
s 23 324
s 24 323, 325, 326
s 24(5) 323
s 28 321
Road Accident Fund Amendment Act 19 of 2005 321
Road Accident Fund Regulations
reg 7 323
Sea Transport Documents Act 65 of 2000 25
Security by Means of Movable Property Act 57 of 1993 300
Share Block Control Act 59 of 1980
s 17(2) 128
ShortTerm Insurance Act 53 of 1998 215
s 53(1) 218
South African Police Service Act 68 of 1995
s 1 344
s 55(1) 55
s 55(2) 55
s 57 301
State Land Disposal Act 48 of 1961
s 3 303
State Liability Act 20 of 1957
s 1 342, 343
s 2 80
s 4A 80
Subdivision of Agricultural Land Act 70 of 1970 91
s 2 36
s 3 36, 123
s 3(d) 237
Subdivision of Agricultural Land Act Repeal Act 64 of 1998 36, 91, 123
Superior Courts Act 10 of 2013
s 21 105, 162
s 21(1) 235
s 21(1)(a) 234
s 21(1)(c) 149
s 21(2) 358
s 47(1) 80
Trade Marks Act 62 of 1963 360
Trade Marks Act 194 of 1993 359
s 9 362
s 10(1) 362
s 10(2) 362
s 33 360
s 34(1) 360
s 34(1)(a) 361
s 34(1)(b) 361
s 34(1)(c) 361
s 34(2) 363
s 34(3) 360, 362
s 34(3)(c) 360
s 34(3)(d) 360
s 34(4) 362
s 35 360
s 38(4) 360
s 44(1) 360
Traditional Leadership and Governance Framework Act 41 of 2003 141
Uniform Rules of Court
rule 8 73
rule 13 274, 358
rule 13(6) 359
rule 14 286
rule 14(2) 377
rule 17(4) 79
rule 18 1, 3, 7
rule 18(6) 26, 105, 106
rule 18(8) 172
rule 18(9) 173
rule 18(10) 59, 145, 323
rule 18(11) 145, 323
rule 18(12) 145
rule 20 3
rule 21(4) 146
rule 21(5) 146
rule 22(3) 4
rule 22(4) 9
rule 23 6
rule 23(3) 6
rule 23(4) 6
rule 24(1) 8
rule 24(4) 9
rule 25 9
rule 30 344
rule 31(2)(b) 232
rule 33(1)(3) 11
rule 34 355, 356
rule 34(10) 356
rule 42 232
rule 57 261
rule 58 226
rule 58(3) 226
rule 58(4) 226
Water Act 54 of 1956 199, 380
Workmen's Compensation Act 30 of 1941 281
Wreck and Salvage Act 94 of 1996 25
account and its debate
claim for delivery and debate of account 1415
duty to account 13
employment contract 1415
essentials 13
fiduciary relationships 1314
nature of claim 13
order 15
prayer 15
procedure 14
accountants and auditors
claim for damages 1819
claim for remuneration 16, 1718
contractual liability 1617
contributory negligence of client 17
extended liability of company 16
mandate, scope of 16
noncontractual liability to third parties 17
registration 15
statutory duties 16
third party's claim for damages 1819
valuation of shares 17
acquiescence and delay see waiver
acquisitive prescription
cancellation of servitude 304
claim of ownership 304
effect of 303
essentials 303
legislation 303
servitudes 304
state land 303
actio ad exhibendum
cause of action 1920
claim for payment of value 21
doctrine of conversion 2021
dolus eventualis 20
essentials 20
relief 20
actio aquae pluviae arcendae
claim 381
damages 381
general principles 380
actio de pastu
claim 40
defences 39
essentials 39
negligence 39
when available 39
actio de pauperie
claim 4142
defences 41
dog bite 4142
essentials 4041
negligence 41
plea 42
when available 40
actio empti 330
actio Pauliana
alternative remedies 21
claim against bank 22
claim to set aside fraudulent disposition 2223
essentials 22
extension of action 22
parties 22
when available 21
actio pro socio 287
actio quanti minoris 331
actio redhibitoria 330331
admiralty claims
associated ships 25
international arbitration 25
jurisdiction 24
law to be applied 25
'maritime claim' 23
pleadings 24
types of claim 2324
admission 34
advocates see legal practitioners
agency see also estate agents
agent as party 27
bribery 2829
calculation of damages 28
claim for account 28, 30
claim for breach of mandate 30
claim for commission 28, 2930
company agent 26
forfeiture of commission 31
formalities 27
honesty, care and diligence 25
implied warranty of authority 29, 31
mandate 26
ostensible authority 26
ratification of unauthorised act 28
secret commission and profit 28
termination 28
undisclosed principal 27
vicarious liability 29
alienation of land see also sale of land on instalment
definition 35
action by seller 37
additional terms 36
agricultural land 36
breach of contract, notification of 37
cancellation 37
claim for payment 38
counteroffer 36
formalities 35
full or partial performance 38
guarantee for purchase price 38
incorporation by reference 36
invalid terms 36
land: definition 35
legislation 3435
ministerial consent 36
plea of invalidity 39
preemption, right of 35
proof of noncompliance 36
rectification 37
revival of cancelled contract 37
revocation by purchaser 37
terms of contract 35
variation of material term 36
vulnerable purchasers 38
waiver of rights 37
alternative claims 2
alternative relief 10
animals see actio de pastu; actio de pauperie; wild animals
animus iniuriandi see arrest and detention; assault; defamation: claims; defamation: defences;
iniuria; injurious falsehood; malicious and wrongful legal proceedings
apportionment of damages see contributory negligence
Aquilian action see lex Aquilia
arbitration
definition 43
arbitration clause, effect of 4445
award 46
expert determination 48
foreign awards, recognition and enforcement of 4748
international commercial arbitration 47
invalidity of agreement 45
jurisdiction of arbitrator 4344
legislation 43
making award an order of court 46
onus 44
pleadings 45
remittal of award for reconsideration 46
setting aside of award 47
special plea of arbitration clause 48
statement of case 46
stay of court proceedings 45, 48
termination of agreement 45
architects
agency 4950
certificates 5051
claim for remuneration 5152
extended liability of company 51
fees 49
negligence 51
negligent issue of certificate 5253
registration 49
relationship with employer 49
repudiation of project by employer 50
arrest and detention
animus iniuriandi 55
arrest of wrong person 55
arrest with warrant 54
arrest without warrant 54
cause of action 53
constitutionality 53
deadly force 5859
defences 55
irregular warrant 5455
jurisdiction 53
malicious arrest or detention 53
onus 54
plea of lawful arrest 56
unlawful arrest or detention, liability for 53
unlawful civil detention 56
use of force 55, 5859
wrongfulness 5354
assault
cause of action 57
consent to 59
constitutional principles 57
defences 5758
effecting arrest or preventing escape 5859
jurisdiction 57
justification 58, 59
medical treatment 57
necessity 58
omission by police 60
onus 57
parties 57
by police 57, 5960
in police custody 60
provocation 59
selfdefence 58
wrongfulness 57
associations see unincorporated associations; voluntary associations
attachment and execution see malicious and wrongful legal proceedings
attorneys see legal practitioners
auctions
alienation of land 61
auctioneer as principal or agent 61
breach of contract by auctioneer 62
claim for commission 61
Consumer Protection Act 61
terms and conditions 61
auditors see accountants and auditors
B
banks see also cheques
appropriation of payments 64
certificate of indebtedness 63
crediting account, effect of 63
delictual liability 6465
loans see loan for consumption
misrepresentation (fraudulent or negligent) 64
overdraft 63, 65
reclaiming wrongful payment 6364
relationship with clients 6263
termination of contract with client 63
bare denial 4
barter see exchange
breach of contract
cancellation for 101102
conventional penalties 126129
damages 114118
fault 102
relief 102
breach of fiduciary duty see fiduciary relationships
breach of promise to marry 96
breach of statutory duty
administrative justice, failure of 347348
causation 348
causes of action 346347
claim 348
essentials 347
negligence (fault) 347
pure economic loss 347348
wrongfulness 163
bribery 2829
business rescue 350
cancellation of contract
accrued rights 103
breach of contract 101102
cancellation by notice 102
declaratory order 104
election to cancel 103
linked agreements 102
reasonable time 103
restitution 102103, 104
types of cancellation 101
wrong reason 103
carriers
air carrier 68
claim for remuneration 69
depository, liability as 69
duty of care 68
exemption clause 69
onus 69
plea to claim for damages 70
praetor's edict de nautis, cauponibus et stabularis 68, 69
cession
citation 70
claim on ceded debt 73
contract of cession 7071
counterclaims 72
defences 72
delivery of underlying document 71
limitations on 71
locus standi 71
onus 7071
pactum de non cedendo 71
plea for payment to cedent 73
in security of debt 72
champerty 243
cheques
absolute defences against holder 75
claim against collecting bank 6667
claim against endorser 75
clearinghouse system 7475
conditional payment 73
defences between immediate parties 75
delictual liability of bank 6465
dishonoured cheque 6566, 7475, 77
drawing against uncleared effects 64
duty on possessor of stolen cheque 77
failure by bank to pay 62
holder in due course 7576
implied term to reverse credit 68
'not negotiable' 66, 76, 7778
'not transferable' 64, 6668
payment according to tenor 62, 66, 76, 79
payment by 73
possession 77
provisional sentence procedure 73
revocation of mandate 75
statutory liability and defences 7677
true owner 76, 77
child abduction 230
choice of action 78
citation of parties 7880
claims 23
claims in reconvention see counterclaims
close corporations
breach of member's fiduciary duty 82
care and skill of members 8283
citation of 79, 81
deregistration 8182
derivative action 82
gross abuse of juristic personality 82, 83
jurisdiction 81
listed documents without name and registration number 82
nondisclosure of member's interest 82
personal liability of members 82
phasing out 81
position of members 81
reckless or negligent trading 82, 83
suretyship 352
codebtors
claim for contribution 84
liability 84
prayer for payment 84
combined summons 3
commodatum see loan for use
companies
authority to act on behalf of 85
citation of 79, 81
derivative action 8687
legal representation 85
mandate 85
oppressive conduct 86
piercing the corporate veil 86
reckless or fraudulent trading 8586, 8788
Turquand rule 85
ultra vires 87
companies in liquidation, citation of 79, 81
compound interest 223
compromise see settlement
condictio furtiva
claim by lessee 89
nature of action 88
nonenrichment 88
requirements 88
theft 88
condictio indebiti
definition 89
claim based on a void contract 91
enrichment and impoverishment 90
invalid contract 9091
nonenrichment 90
onus 90
parties 89
payment under protest 91
payment wrongly made 89, 92
reasonable error 90
sine causa payment or transfer 89
when available 89
condictio ob causam finitam 92, 93
condictio ob turpem vel iniustam causam see illegal contracts
condictio sine causa
bank payment to third party 6364
claim based on 93
and condictio indebiti 92
nonenrichment 93
requirements 92
conditions
conditions precedent 112
demand 113
fictional fulfilment 113, 114
onus 113
resolutive conditions 112, 114
suppositions or assumptions 112, 114
suspensive conditions 112, 113114
terms distinguished 111112
waiver 113
confidential information
claim for interdict 9495
essentials 9394
constitutional issues
breach of promise to marry 96
constitutional damages 9596
jurisdiction 95
new point on appeal 96
pleading 95
construction contracts
definition 96
contractual defences 100
Housing Consumer Protection Act 97
incomplete or defective performance
breach by employer 99
with cancellation: unjust enrichment 99
without cancellation: reduced contract price 9899
interim payments on certificate 98
late performance 98
performance 98
performance guarantees 100
plea 100
proof of contract 96
remuneration 9798
skill and diligence 97
suitability of materials 97
terms of contract 9697
works 97
consumer protection 101
contingency fees 243
contract see also breach of contract; cancellation of contract; conditions; employment contracts
agent or representative 105
agreement distinguished 107
construction contracts 96101
contract by correspondence 111
conventional penalties 126129
copy of contract 106
damages see contractual damages
date 105
exemption clause 109
express contract 106
formalities 105106
illegality see illegal contracts
implied terms 109
impossibility of performance 122123
interpretation 109
jurisdiction 105
offer and acceptance 105
onus 107
oral contract 106, 110
parol evidence 109
parties 104
place 101054
proof of terms 107108
quasimutual consent 107
rectification 310312
reliance theory 107
repudiation 312314
specific performance 123125
tacit contract 106107
tacit terms 108109, 110111
unfair, unreasonable or unjust terms 109110
vagueness 110
written contract 105, 106, 111
contract for the benefit of a third party see stipulatio alteri
contractual damages
apportionment 116
calculation method 115116
cancellation not required 115
compensatory damages (positive interesse) 115
contractual defences 11
counterclaim 116
coupled with claim for cancellation 118
date of calculation 115
iniuria 116
mitigation 116117
natural damages 117118
onus 114115
remoteness 116
restitutional damages (negative interesse) 115, 118
special damages 117
tender by claimant 117
types of damages 118
contributory negligence see negligence
alternative defences 273
apportionment of damages 273
auditor's client 17
claim for contribution 274
contractual claims 273
intentional wrongdoing 273
onus 274
plea 274275
postdelictual negligence 274
road accident 326327
third parties, joinder of 274
and volenti non fit iniuria 41, 376
conventional penalties
accumulation of remedies 128
Botha v Rich (2014) 127
claim for liquidated damages 128
claim for repayment 129
credit agreement 128
forfeiture clause 127
onus 127128
penalty clause 127
plea to claim enforcing penalty 128129
reduction of penalty 127
rouwkoop provisions 128
copyright
claim for infringement 132
copyright tribunal 129
defences to claim for infringement 132
defendant 130
direct infringement 131
indirect infringement 131
jurisdiction 129
legislation 129
piracy of copyright goods 129
plaintiff 130
presumptions 131
proof of copyright 130
proof of infringement 130
relief for infringement 131
costs 10
counterclaims
advantage of proceeding by way of 78
claim in reconvention (standard form) 133
conditional counterclaim 9, 133
exceeding jurisdiction 8
form of 8
future or uncertain contingencies 8
incorporation by reference 8
lesser amount 9
liquid and illiquid counterclaims 89
naming of parties 8
plea disguising 4
plea relying on counterclaim as a defence 133
purpose of 78
time for delivering 8
unrelated claims 9
credit agreements
definition 134
cession 137
compliance requirements 135
content 135
and Conventional Penalties Act 128
cost of credit 138
court orders 140
credit: definition 134
credit providers and consumers 135
disputing credits and debits 138
enforcement of 139140
incidental agreement 136
interest 138
intermediate agreement 135
jurisdiction 134
juristic persons 135
large agreement 136
National Credit Act
application of 134135
exclusions from 135
notifications 139
overindebtedness 137
preagreement statement and disclosures 136
reckless credit 137, 141
regulations 134
retrospective effect of Act 134
sequestration application 140
small agreement 135
suretyship 353
suspension or restructuring of obligations 138
termination by credit provider 138139
unlawful agreements 136
unlawful provisions 136137
curator ad litem 261
custom and customary law
cases between black parties 141
claim 142143
constitutional recognition 141
custom as rule of law 142
customary marriage 142, 171, 175
judicial notice 141
onus 141
trade usage 142
damages
apportionment of see contributory negligence
breach of contract see contractual damages
delict see delictual damages
debatement of account see account and its debate
deceased estates
claim for damages against dismissed executor 149
creditors' claims
against a deceased estate 147, 148
against an executor 147
against an heir 147, 148149
executor failing or refusing to act 147
Maintenance of Surviving Spouses Act 148
maladministration 148
onus 148
parties 147
declaration of right
claim in relation to will 150151
claim on contract 151
contingent right 150
discretion of court 150
interested persons 150
jurisdiction 149
procedure 149
right 150
debt or liquidated demand 2, 3
defamation: claims
Bill of Rights 151
cause of action 151
claim against individual 156
claim against member of public media 156
claim alleging a sting 156
damages 155
defamatory statement 152153
terms of 153
exception: nondefamatory allegation 157
falsity 155
group defamation 156
innuendo 154, 157
interdict 155
judge 152
jurisdiction 152
mitigation of damages 155
nontrading corporation 151
onus 152, 153, 155
parties 151152
patrimonial loss 155156
political party 152
Promotion of Equality and Prevention of Unfair Discrimination Act 151
publication 153154
pure economic loss 155156
reference to plaintiff 154
the state and its organs 152
trade union 152
trading corporation 151
wrongfulness 152
defamation: defences
alternatives 160
denial of defamation 157158
denial of wrongfulness 158
fair comment 159
jest 160
justification 161
lack of knowledge of wrongfulness 158
public media privilege 159, 161
qualified privilege 159
reasonableness 159160
replication to plea 161
rixa 160
rolledup defences 160
secondary meaning 160161
stereotyped defences 158
truth and public interest 158
delay see waiver
delict see contributory negligence; delictual damages; iniuria; lex Aquilia; loss of support; negligence; road accidents; vicarious
liability
delictual damages see also road accidents
actuarial calculations 143
admission of lower amount 143
allocation between codefendants 143
collateral benefits 146
difficulty of proving 145
general damages 145
inquiry into damages 146
measure of damages to goods 144
mitigation 146
onceandforall rule 143144
onus 143
particularity of damages 145146
personal injury claims 144
prospective loss 143
purpose of 143
'thin skull' rule 145
denial 4
dependants' claims see loss of support
deposit (depositum)
claim for return of article 166, 167
contract 166
depository's defences 166167
exemption or owner's risk clause 167
plea
absence of negligence 167
owner's risk 167
derivative actions 82, 8687
designs
advantage over copyright 168
claim for infringement 168, 169170
functional and aesthetic designs 168
invalidity 169, 170
joinder of Registrar 169
jurisdiction 168
legislation 168
onus 169
plaintiff 168
relief 169
unregistered designs 168
detention see arrest and detention
divorce
accrual system 177
alternatives 177179
antenuptial contract 170
specific performance 174, 178
children 170, 171172
civil marriage 170
customary marriage 171, 175
dissolution of universal partnership 174175
division of accrual 174
division of joint estate 173
family advocate 172
forfeiture of benefits 174
grounds 172
irretrievable breakdown 172
Islamic marriage 175176, 179
jurisdiction 171
maintenance for spouse 173
marital regime 171
marriage in community of property 176177
marriage of community of property 177
mental illness and unconsciousness 172, 177178
pension benefits 174
piercing veil of trust or company 175
postnuptial contract 177
proof of marriage 170
proprietary claims 173175
redistribution of assets 174, 178179
religious constraints 175
separation of issues 175
settlement agreement 173
sole guardianship 172
donation
claim for delivery 180
claim for delivery where donation revoked 181
donatio mortis causa 180
exclusion from accrual 180
formalities 180
onus 180
revocation 180
spouses 180
types of agreement 179
duress
claim for recovery of money 182
contra bonos mores 181
duress of goods 182
economic duress 181182
essentials 181
plea for voidness due to duress 182
third party 181
unconscionable conduct 181
edict de nautis, cauponibus et stabularis 68
edictum de feris 42
election see waiver
electricity
claim for damages caused by shock 183
general liability of licensee 183
negligence 183
emergency medical treatment 257
emotional shock 324
employees see employment contracts; vicarious liability
employment contracts see also restraint of trade
claim for wages 184, 185186
dismissal and repudiation 184
jurisdiction 183184

legislation 183
onus 184185
pleadings in Labour Court 185
tacit terms 184
termination of employment 184
encroachment
claim 186
defences 186
plea 187
remedy 186
engineers 187
enrichment 187
see also condictio furtiva; condictio indebiti; condictio sine causa; illegal contracts; negotiorum gestio
error see mistake
estate agents see also agency
auctioneer as 31
claim against Board 3233, 34
claim for commission 32, 3334, 359
fidelity fund certificate 31
sole agency 33, 34
stipulatio alteri 32
estoppel
defendant raising 188
doctrine 187
essentials 188
invalid acts 189
onus 187
plaintiff raising 187188
plea to claim based on ownership of motor vehicle 189
replication to plea denying that agent was authorised 189190
vindicatory claims 188189, 375
eviction
causes of action 190
claim after cancellation of lease 193
Extension of Security of Tenure Act 191192
possessory claims 190191
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 192193
relief 191
statutory protection 190
exceptio non adimpleti contractus
availability of defence 193
claim with tender of delivery 194
claim with tender of payment 195
duty to plead nonperformance 194
onus 194
plea of nonperformance 195
sequence of performance 193194
transfer of immovable property 194
exceptio quanti minoris 332
exception
ambiguous pleading 7
dismissal of 7
exception to claim 195
exception to part of claim 195
exception to plea 195196
formal requirements 6
purpose of 6
special plea distinguished 5
upholding of 7
when permissible 67
wrongfulness issues 7
exchange
claim for performance 196
determining nature of transaction 196
land 196
latent defects 196
sale distinguished 196
tradein 196
execution see malicious and wrongful legal proceedings
exemption clauses 69, 109, 165, 167
expropriation
amount of compensation 198
basis of compensation 198
Bill of Rights 197
claim for compensation
expropriation of fixed property 200201
expropriation of right 201
costs 200
date of notice 198
expert evidence 199
interest 200
invalid expropriation 197
legislation 197
market value 198199
determination of 199
onus 199200
parties 197198
plea
expropriation of property 201202
expropriation of right 202
validity of expropriation 202
property or right 198
Restitution of Land Rights Act 198
setting aside of invalid notice 201
solatium 200
unregistered right 200
extinctive prescription
amendment of pleading 308
commencement of 306307
debt 305306
defendant's special plea 308309
delay in completion 307
effect of 305
interruption 307308
legislation 304305
periods of prescription 307
procedure 305
release of surety 353
replication 309
state, against the 308
surety, against the 308
waiver 308
fidelity fund certificate see estate agents; legal practitioners
Fidelity Guarantee Fund 243244, 247
fiduciary relationships
account and debate 1314
attorneyclient 241
bankclient 62
breach of fiduciary duty 203
close corporation 82
defences 203
nature of 1314, 202203
remedies 203
secret commission 203
firms, citation of 80, 81
foreign judgments
cause of action 229
claim based on 231
defences 230231
Enforcement of Foreign Civil Judgments Act 229
essentials 230
Hague Convention on child abduction 230
plea: lack of jurisdiction 231
procedure to enforce 230
Protection of Businesses Act 229
provisional sentence proceedings 230
fraud
agent 205
cancellation of contract 205, 206
claim for damages 205, 206
effect on contract 204, 205
essentials 204205
exceptio doli generalis 205
onus 204
passing of ownership 205
setting aside of a judgment 205
full and final settlement see tender in 'full and final settlement'
G
government officials, citation of 80, 81
guarantee 353
see also alienation of land; construction contracts
huur gaat voor koop 238
illegal contracts
condictio ob turpem vel iniustam causam 120
contra bonos mores 119
contrary to law 119
effect of 119120
enrichment claim 121
estoppel 120
ex turpi causa non oritur actio 119
invalid contract distinguished 118119
par delictum 120
pleading illegality 120, 121
presumption of lawfulness 119
replication: relaxation of par delictum rule 121122
restitution 120
immemorial usage (vetustas) 369370
impossibility of performance
claim 123
fault 123
initial impossibility 122
partial impossibility 122
supervening impossibility 122
temporary impossibility 123
in duplum rule 224, 225
iniuria
adultery and breach of promise 207
Bill of Rights 206
bodily integrity 208
breach of contract 209
cause of action 207
impairment of dignity 207
invasion of privacy 207
jurisdiction 208
malice 209
mental wellbeing 208
parties 208
Promotion of Equality and Prevention of Unfair Discrimination Act 207
Protection from Harassment Act 207
remedies 209
verbal abuse 209
wrongfulness 208
injurious falsehood
cause of action 209
claim 210211
defamation compared 210
essentials 210
falsity 210
misrepresentation distinguished 209
innocent misrepresentation
claim for cancellation of contract 263
essentials 262
insolvency
citation of insolvent estate 79
collusive disposition 213, 214215
disposition: definition 211
dispositions without value 212, 213214
lapsing of proceedings 213
parties 211
power to set aside dispositions 211
prescription 213
res iudicata 213
undue preference 212, 214
voidable preference 212, 214
voidable sale of business 213, 215
insurance
breach of warranty 218, 221
brokers 219
causation 218
claim for compliance with terms of policy 220221
claim for recovery of indemnity paid 220
conditions 218
contra proferentem rule 217
duty to disclose 217
executor's claim under policy 221
forfeiture clause 220
fraudulent claim 220
indemnity and nonindemnity insurance 216
insolvency of insured 219
insurable interest 216
interpretation of contract 217
legislation 215
material nondisclosure 217, 222
onus 218219
registered insurer 215216
repudiation of claim 220
subrogation 217
suicide 219
warranties 218
interest
alternative prayers 225
appropriation of payments 225
compound interest 223
credit agreements 138
fault 225
in duplum rule 224, 225
interest as damages 224225
liquidated claims 222223
mora ex persona 222
mora ex re 222
rate 222223
suspension 225
unliquidated claims 223224
interference with contractual relationships 225226
interpleader
affidavit 226
interpleader notice 226, 227
particulars of claim 227
parties 226
payment and delivery 226
purpose of 226
vindicatory claim 374
intoxication 261
Islamic marriage 175176, 179
issue estoppel see res iudicata
joint ownership
ancillary relief 228
defences 228
termination 228229
joint wrongdoers see contributory negligence
judges, proceedings against 80
judgments see foreign judgments; setting aside of judgments
jurisdiction
definition 233
absence or lack of 233, 235
'all causes arising' 235
corporations 234
domicile 234
natural persons 234
partnerships 234
'persons residing or being in' 234
plaintiff must establish 235
special plea alleging absence of jurisdiction 235236
state and statutory bodies 234
submission to 235
land see also alienation of land; sale of land on instalment
definition 35
agricultural land, lease of 237
auction of 61
exchange of 196
latent defects
definition 329
alternative remedies 330
claim for cancellation or price reduction 332333
damages (actio empti) 330
delivery of a thing other than that bargained for 330
exceptio quanti minoris 332
exchange 196
expert vendor 333
implied warranty of quality 331
price reduction (actio quanti minoris) 331
product liability 332
repayment (actio redhibitoria) 330331
voetstoots clauses 331332
lateral support
fault 236
relief 236
right to 236
subsidence 236
wrongfulness 236
lease
agricultural land 237
arrear rental 237, 240
cancellation on breach 238, 240
cancellation under Rental Housing Act 238
claim for arrear rental and cancellation 240
compensation for improvements 239
counterclaims 239240
duties of landlord 237
ejectment see eviction; vindication
formalities 237
holding over 239
huur gaat voor koop 238
landlord's hypothec 240
lessee's lien 240
long lease 237
National Credit Act 237
renewal 239
Rental Housing Act, rights under 237
tacit relocation 239
termination of periodic lease 238
undisturbed possession and occupation 237
unfair practice 237, 238
legal practitioners
admission of 242
attorneyclient relationship 241
champerty 243
claim against correspondent 241, 246
contingency fees 243
extension of liability to company 245
fees 242, 245246
fidelity fund certificate 242
Fidelity Guarantee Fund 243244, 247
fiduciary relationship 241
legislation 241
mandate 241242
negligence 244245
pactum de quota litis 243
provisional sentence 242
special plea of nontaxation 247
taxation of bill of costs 242, 246
third parties 245
trust account 243
legal standing
minors 248
spouses married in community of property 248
trusts 248
letting and hiring of work see construction contracts
lex Aquilia
abuse of right 163
breach of commonlaw right 163
breach of duty of care 163164
breach of statutory duty 163
causation 164165
cause of action 161
damage to motor vehicle 165
damages 165
exemption clause 165
foreseeability of harm 162
jurisdiction 162
loss of breadwinner 162
loss of production 165166
negligence 164
omissions 164
pure economic loss 161, 164
wrongful act or omission 162
lex commissoria 101, 238, 268, 269
lien
alternatives 250
debtor and creditor liens 249250
lessee's lien 240
loss of possession 250
nature of 249
pledge distinguished 249
salvage and improvement liens 249
lis alibi pendens
essentials 251
onus 251
procedure 250251
res iudicata 250
special plea of 251
replication to 251252
loan for consumption see also interest
cause of action 252
claim on acknowledgement of debt 253
demand 252
plea of non numeratae pecuniae 253
time for repayment 252
loan for use
claim for loss of thing lent 253
deposit 253
locatio conductio operis 49, 96
locus standi see legal standing
loss of support
claim by parent 255
essentials 254
indigent plaintiff 254255
insurance money, pension or other benefit 254
pecuniary loss 254
malicious and wrongful legal proceedings
cause of action 255
essentials 255
jurisdiction 255
lack of reasonable and probable cause 256
malice and animus iniuriandi 256
malicious insolvency or liquidation proceedings 256
malicious prosecution 255
setting law in motion 256
termination of proceedings 256
wrongful legal proceedings 256
mandament van spolie see spoliation
'maritime claim' 23
see also admiralty claims
medical and dental practitioners
claim against hospital 259260
contract with patient 257
emergency treatment 257
expert evidence 258259
informed consent 257258
liability for omission 258
negligence 258
reasonableness of fees 259
registration 257
third parties 259
mental incapacity
curator ad litem 261
insanity 261262
intoxication 261
onus 261
validity of jural act 261
ministers of state, citation of 80, 81
misrepresentation see innocent misrepresentation;
negligent misrepresentation, passingoff
bank's liability 64
fraudulent 205
mistake
common mistake 265, 266267
mutual mistake 265, 267
quasimutual consent 266
unilateral mistake 265266, 267
mora
definition 267
cancellation of contract 268269
fault 268
interest 222, 268
lex commissoria 268, 269
mora creditoris 267
mora debitoris ex persona 222, 268
mora debitoris ex re 222, 268
reasonable time 269
specific performance 124, 268
mutuum see exchange
natural persons, citation of 7879, 80
necessity 58
see also assault
negligence see also contributory negligence
actio de pauperie 41
collision with train 272273
gross negligence 271
imperitia culpae adnumeratur 271
medical practitioner 258
onus 270
presumptions 271
pure economic loss 64, 271272
reasonable person test 270
res ipsa loquitur 270
skilled person 271
and wrongfulness 270
negligent misrepresentation
causation 264
extra or precontractual misrepresentation 263
materiality 263
negligence 264
relief 264
restitution 264
silence 264
wrongfulness 263
negotiorum gestio
definition 275
claim for account against gestor 277
essentials 275
payment made in plaintiff's own interest 276277
relief claimable
by dominus 276
by gestor 275276
repayment of debt paid 276
unjustified enrichment, limiting claim to 276
noise see nuisance
novation
effect of 277
onus 277
plea of extinction of obligation 278
settlement (compromise) distinguished 277, 338
nuisance
cause of action 278
defences 279280
defendant 279
fault 279
interdict 280
jurisdiction 278
noise 280
objective test 278
overhanging branches 280
plaintiff 278
plea to claim 280
relief 279
statutory breach 279
O
occupational injuries
accident in the course of employment 281282
compensation and damages distinguished 281
fault 282
legislation 281
notice of intention to institute proceedings 282
party liable 281
RAF claim 283
recovering damages and compensation paid from third parties 282
right to compensation 281
substitution of compensation for other remedies 282
option
breach 283284
claim on exercised option 284
essentials 283
overhanging branches 280
ownership
delivery 284285
immovables 285
movables 284
onus 284
possession 285
pactum commissorium 300
par delictum 120
parol evidence 109, 112
particulars of claim 23
parties
citation of 7880
locus standi 247248
partnerships
actio pro socio 287
anonymous partners 287288
appointment of liquidator 288289
citation of 80, 81, 286
claim for account 288
dissolution in terms of agreement 289
dissolution on cessation of purpose 288
liability 286287
universal partnership between spouses 289
passingoff
account of profits 292
alternative causes of action 292293
calculated to deceive or confuse 291
cause of action 290
common field of activity 291
damages 292
deliveryup 292
domain names 290
intention to deceive 292
interdict 292, 293294
jurisdiction 290
marketsurvey evidence 293
misrepresentation 291
parties 290291
reputation or goodwill 290, 291
trademark infringement distinguished 289, 360
unclean hands, doctrine of 293
patents
defendant 295
inciting and abetting infringement 295
infringement 295, 296297
intervention as plaintiff 294295
invalidity 296, 297298
jurisdiction 294
legislation 294
plaintiff 294
proof of grant 295
relief 295296
territorial jurisdiction 294
payment see also cheques
appropriation 299
bank account, into a 298299
discharge of debt 298
electronic means 298
onus 299
plea 299
stolen funds 298
to third party 299
under protest 91
wrongly made 89, 92
pleadings
alternatives 2
ambiguous pleading 7
bad in law 6
clarity and conciseness 1
counterclaims 79
deviation 2
exceptions 67
facts 1
further pleadings 10
incorrect label 2
legal conclusion 2
prayers 10
purpose of 1
replication 910, 312
vague or embarrassing 6
pleas
admission 34
bare denial 4
content of 3
counterclaims 4
denial 4
prayers 4
special pleas 5
withdrawal of admission 4
pledge
claim for return of pledged article 301
creation of 300
duties of pledgee 300
pactum commissorium 300
Security by Means of Movable Property Act 300
statutory pledge 300
police 301
praetor's edict de nautis, cauponibus et stabularis 68
prayers 10
preemption
claim to enforce right 302303
exercise of right 302
interdict 302. 303
specific performance 302
prescription see acquisitive prescription; extinctive prescription
privacy 207
product liability 332
promise to marry, breach of 96
provincial and local authorities 309
provocation 59
public road see road
pure economic loss 64, 155156, 161, 164, 271272, 347348
quantity surveyors 309
quantum meruit 9899
quasimutual assent 107
ratification 28, 309310
rectification
as a claim 310311
counterclaim 311
deed of sale 312
as a defence 311
invalid contract 311
nonvariation clause 312
onus 310
parties 311
prayer 311
prescription 311
procedure 310
purpose of 310
will 382
rei vindicatio see actio ad exhibendum; vindication
replication 910, 312
repudiation
acceptance 313
claim for damages and restitution 314
essentials 313
intention 313
rejection 313
relief 313314
repentance 313
res ipsa loquitur 270
res iudicata
appeal pending 315
final judgment 315
foreign judgments 315
issue estoppel 315316
and lis pendens 314
onceandforall rule 315
onus 315
plea 316
procedure 315
same parties 315
same thing on the same ground 315
restraint of trade
claim for interdict 318
claim for interdict and damages 318319
constitutionality 316
contract and delict 316
damages 318
defences 317318
divisibility 318
enforcement 317
goodwill, disposal of 318
invalidity 317
legislation 316
no proprietary right 317318
onus 317
right of way see road
road
accident see road accidents
declaration of public road 319
immemorial usage (vetustas) 369370
maintenance 319
right of way 319
way of necessity 319321
road accidents
claim against RAF 324326
contributory negligence 326327
damages 323
defendant 322323
driving 322
emotional shock 324
jurisdiction 323
legislation 321
liability of RAF 321322
limitation of damages 323324
loss of income or support 323324
motor vehicle 322
plaintiff 322
prescription 327
prior demand 323
seatbelt 327
serious injuries 323
standard pleas 324
rouwkoop provisions 128
sale see also latent defects
claim for delivery 328, 329
claim for payment after delivery 329
claim for payment against delivery 329
claim for purchase price 328
damages 328329
duty of seller 328
of land see alienation of land; sale of land on instalment
perfecta 327
price 327328
thing sold 328
warranty against eviction 328, 333334
sale of land on instalment see also alienation of land
Alienation of Land Act, scope of application of 335
cancellation of contract 336
claim by purchaser 335336
claim by seller 335, 336
formalities 335
legislation 334
setting aside of contract 335336
selfdefence 58
setoff
definition 336
effect of 336337
essentials 337
liquidated debt 337
plea 337
unliquidated debt 337
setting aside of judgments
commonlaw procedure 232233
correction of order 232
essentials 233
final court order, setting aside of 232
finality of judgment 231232
fraud 232, 233
grounds 232
iustus error 232
judgment by default 232
parties 232
settlement see also tender by defendant; tender by plaintiff; tender in 'full and final settlement'
definition 338
authority to compromise 242
breach of compromise 338
claim based on compromise 339
contract 338
defences 338339
novation distinguished 277, 338
order of court 338
plea alleging settlement 339
simple summons 2
simulated transactions
definition 339
avoidance of statutory provisions 339340
onus 340
plea 340
special pleas
definition 5
exception distinguished 5
onus 5
pleading over 5
relief 5
specific performance
alternative to cancellation 125
claim for 125
election to cancel 125
jurisdiction 123124
and mora 124, 268
onus 124
preemption right 302
spoliation
action proceedings 340
claim for possession 342
contractual rights 341
counterspoliation 342
defences 341342
dispossession 341
jurisdiction 341
possession 341
relief 342
statutory right to dispossess 342
state, proceedings by or against 80
see also state liability
state liability
executive authority 80
Institution of Legal Proceedings against Certain Organs of State Act
condonation of failure to serve notice 344
debt due 344
notice of intended legal proceedings 343344
objection 344
organ of state 343
plea: lack of requisite notice 345
prescription period 343
purpose of 343
service of process 344
State Liability Act
contractual liability 342
state officials, citation of 80, 81
stated case 1112
statutory authority as a defence to a claim for damages 345346
claim relying on authority's having been exceeded 346
claim relying on statutory authority 346
onus 346
replication 346
statutory duty, breach of see breach of statutory duty
statutory provisions as cause of action or defence 348349
stipulatio alteri
definition 125
claim by beneficiary 125126
claim by stipulator 126
defences 126
essentials 125126
estate agent 32
subrogation 217
subsidence 236
summons
combined 3
High Court 79
magistrates' court 78
simple 2
suretyship
appropriation rules 352
business rescue 350
claim against principal debtor and surety 354
claim against surety 349350, 354
claim by surety against cosurety 353
claim by surety against principal debtor 352353, 354
claim for contribution by cosurety 355
close corporations 352
deed of suretyship 349
defences relating to deed of suretyship 351352
defences relating to principal debt 350
error 352
formalities 349
future debts 352
guarantee 353
Matrimonial Property Act 350
plea: limitation of liability 355
prescription 353
rectification of agreement 349
right of recourse 352353
stay of proceedings 352
waiver 352
taxation of bill of costs 242, 246
tender by defendant
plea repeating tender 356
tender in plea 355356
tender by plaintiff
need for tender 356
tender dispensed with 356357
tender in 'full and final settlement'
acceptance of tender 357358
effect of 357
onus 357
plea of settlement 358
retention of payment 'without prejudice' 358
sending money 357
'thin skull' rule 145
third party, contract for the benefit of see stipulatio alteri
thirdparty procedure
claim for indemnity 359
jurisdiction 358
procedure 358359
purpose of 358
trade marks see also passingoff
Counterfeit Goods Act 359
deception or confusion 361, 362
defences 362
dilution 361362
fault 362
infringement of 360362
claim for 363
jurisdiction 360
legislation 359
noninfringing use 363
passingoff distinguished 289, 360
plaintiff 360
registration of 359, 360
relief 362
trade usage 142
trespass
definition 364
claim by hirepurchaser 364
claim by new owner 365
claim by possessor 364365
persons entitled to claim 364
relief 364
trusts, citation of 79
unauthorised administration see negotiorum gestio
undisclosed principal 27, 310
undue influence see also duress
claim for return of property 366
essentials 365
special relationship 365
tender 366
unconscionable conduct 365366
undue preference 212, 214
unincorporated associations
citation of 80, 81
power to sue or be sued 377
unlawful (unfair) competition
cause of action 366367
damages 367
examples 367
wrongfulness 367
usury 367
veld fires
claim 369
defendant's onus 369
legislation 368
limitation of liability 368
plaintiff's onus 368
presumption of negligence 368
vetustas (immemorial usage) 369370
vicarious liability
assault 57
casino operator 372
claim against employer 372
course and scope of employment 370371
deviation from 371
disobedience 371
employees 370
fraud 371372
independent contractors 372
onus 370
parent and child 372
plea to claim against employer 372
sexual harassment 371
vindication
cause of action 373
claim for delivery 375
defences 373374
essentials 373
estoppel 188189, 375
interpleader 374
plea relying on estoppel 375
plea relying on right of possession 375
relief 373
replication alleging cancellation of contract 375
right to vindicate, curtailment of 373
tender 374
wrongfulness 373
voetstoots clauses 331332
voidable preference 212, 214
voidable sale of business 213, 215
volenti non fit iniuria
consent 376
and contributory negligence 376
effect of 375
essentials 376
loss of breadwinner 376
onus 376
parties 376
plea 376377
voluntary associations
contracts 377
delict 377
incorporated associations 377
locus standi 377
unincorporated associations 377
waiver
acceptance 379
acquiescence and delay 379
after cancellation 379
decision to abandon the right 378
effect of 377
election 378379
knowledge of the right 378
nonvariation clause 380
onus 378
peremption of appeal and waiver 379
plea of 380
procedure 378
when not permitted 379
warranty against eviction
breach of implied warranty 333334
duty of seller 328, 333
relief 334
successive sales 334
water 380; see also actio aquae pluviae arcendae
way of necessity see also road
cause of action 320
claim for a road
with offer of compensation 320321
without offer of compensation 320
compensation 320
jurisdiction 319
onus 320
relief 320
wild animals
edictum de feris 42
liability for damage 42
ownership 42
wills
claim 382
interpretation 382
onus 382
parties 381
rectification 382
withdrawal of admission 4

Amler's Precedents of Pleadings

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Amler's Precedents of Pleadings

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(d) Volenti non fit iniuria : The defendant must allege and prove that the plaintiff knew of the risk of sustaining

(f) that section 130 has been complied with as indicated by attaching a copy of the section 86(9) o r section

(i) that, to the extent that sections 127, 129 a n d 131 apply, the plaintiff has complied with the required

(a) the electrical cables were used to supply electricity to industries in the vicinity, including plaintiff 's brickworks;

(b) if the said electrical cables were cut, the effect would be to interrupt the supply of electricity to plaintiff 's works;

(a) the electrical supply to plaintiff 's works was cut off for [state period];

(a) has the powers contemplated in sections 7, 8, 9 a n d 10 of the Divorce Act and section 24(1) of the

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