Amler's 6th Ed New

Amler's Precedents of Pleadings – 6th Edition
Preface
Somewhere else the author drew a comparison between writers on civil procedure and
Sisyphus who was condemned by the gods to push a rock up a mountain – eternally.
Whenever he reaches the top, the stone rolls down again. Likewise, the author of a work that
hovers between civil procedure and substantive law has to keep it updated since the law is in
a constant state of flux, more so because of an overactive Legislature and the overabundance
of judicial utterances appearing in print. The impact of the Constitution on our private law is
being felt and every legal proposition has to be re-assessed against it. The de-latinization
craze and the fight against legalese have also required a rephrasing of much of the text. This
then is part of the justification for this edition, which is more than an update of the previous
edition – it is rather a revision. An attempt has been made to state the law as at June 2003.
A special word of thanks must be reserved for the editors, Marjorie Guy and Luis Palminha,
who had to cross the T’s and dot the I’s and if a “he” has not been changed into a “she or he”,
they have to share the blame. Now for a repeat of the preface to the fifth edition, which
remains germane.
LTC Harms
Pretoria
August 2003
Prolegomenon
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. At the end of the day they
provide embarrassing evidence of the original perceptions and intentions of the author and
they never please successors in title.
The late Mr Harry Snitcher QC, in his foreword to the first edition (1956) of this work, made
the following comments:
“The drawing of pleadings is an important part of the art of the advocate and the attorney and
is an ability which is acquired and perfected only after years of experience. To set down in
clear, concise and lucid form the distilled essence of a plaintiff’s cause of action or of a
defendant’s defence is of the essence of that art. It requires a clear conception not only of the
client’s case but also constitutes a searching test of the pleader’s knowledge of the law
involved. It has been said that the test of a client’s case is very often whether it can be
reduced in the form of a pleading to which no exception can be taken.”
That is still true.
The purpose of the 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 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.
The notes have no rechtswissenschaftliche pretensions. There are many who, like Garp’s
uncles, are of the opinion that the practice of the law is vulgar but that its study sublime. This
work is not sublime. By the very nature of things, the notes cannot set out the underlying
substantive law in detail. A selection of topics had to be made. A decision as to the extent of
the discussion of each legal subject was necessary. The selection presented is not scientific or
necessarily logical but is based on what is regarded as illustrative and practical. The law
summarised is basic, as found in the law reports and the notes are largely uncritical.
References given are, usually, the more recent ones available and those the author,
subjectively, considers of having the greater precedential value. Being a work of first
reference, references to articles and textbooks have been omitted.
Many have contributed to this work, some wittingly, others unwittingly. Their contributions
are appreciated.
LTC HARMS
Supreme Court of Appeal
Bloemfontein
• Accountants and Auditors
• Accounts
• Actio ad Exhibendum
• Actio Aquae Pluviae Arcendae
• Actio de Pastu
• Actio de Pauperie
• Actio legis Aquiliae

• Actio Pauliana
• Administration of Deceased Estates
• Admiralty Claims
• Adultery
• Agency
• Alienation of Affection
• Alienation of Land
• Animals
• Arbitration
• Architects
• Arrest and Detention
• Assault
• Attachment or Execution
• Attorneys
• Auctions
[Page 1]
Accountants and Auditors
Related subjects: LOCATIO CONDUCTIO OPERIS
PROFESSIONAL LIABILITY
General: A public accountant is a person:
(a) engaged in public practice;
(b) who performs the functions of an accountant and auditor;
(c) who for that purpose holds her- or himself out as an accountant or auditor; and
(d) who places her or his services at the disposal of the public for reward.
Public Accountants’ and Auditors’ Act 80 of 1991 s 1

Only a person registered as an accountant and auditor in terms of the Act and who has paid
the prescribed annual fees may engage in public practice as an accountant or auditor.
Public Accountants’ and Auditors’ Act 80 of 1991 s 14
Statutory duties: An auditor, in carrying out the statutory functions of an auditor, is not a
functionary of the client (usually 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 to share-holders on the financial statements of the company. The
directors are required to see to the preparation and presentation of such financial statements.
Powertech Industries Ltd v Mayberry [1996] 1 All SA 561 (W); 1996 (2) SA 742 (W) at 746
Extended liability: Registered accountants and auditors may form a company to engage in

public practice through its members. One of the requirements is that 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 its debts and liabilities contracted
during their period of office.
Public Accountants’ and Auditors’ Act 80 of 1991 s 21(2)(a)
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 wishing 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.
Negligence: It is a tacit term of the agreement between a public accountant and the client that
the accountant will exercise reasonable skill and care in the performance of the mandate.
Usually, this means that accountants must conduct their audits in accordance with generally
accepted auditing standards [Page 2] and with the due professional care required of an auditor
in public practice. Failure to comply with this standard will make the accountant liable for
damages for breach of contract.
Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA); [2001] 4
All SA 161 (SCA) par 19 and 20 of Nienaber JA’s judgment
Lipschitz NO v Wolpert & Abrahams 1977 (2) SA 732 (A) at 741
Tonkwane Sawmill Co Ltd v Filmalter 1975 (2) SA 453 (W) at 454H–455C

These standards are to be gathered from the relevant legislation, from the profession’s
codification of an auditor’s duties, from authoritative publications and legal decisions, and
from expert evidence.
All SA 161 (SCA) par 21 of Nienaber JA’s judgment
The breach itself is, apparently, insufficient to make the accountant liable. The client, in
addition, must allege and prove that the accountant acted:
(a) maliciously or pursuant to a negligent performance of its duties in
(b) expressing an opinion, or giving a certificate, or report, or statement, or certifying a

statement, account or document
in the ordinary course of its duties.
Public Accountants’ and Auditors’ Act 80 of 1991 s 20(9)
A delictual claim would probably not be competent.
Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A)
Cf Correira v Berwind 1986 (4) SA 60 (ZH)
Powertech Industries Ltd v Mayberry [1996] 1 All SA 561 (W); 1996 (2) SA 742 (W)
The Companies Act 61 of 1973 s 248 gives the court the discretion to relieve an auditor of
liability for negligence, default, breach of duty or breach of trust if the auditor acted on behalf
of a company and acted honestly and reasonably such that he or she ought fairly to be
excused for such negligence.
Contributory negligence: In a claim for damages based on a negligent breach of contract, the
defendant is not entitled to rely on the contributory negligence of the plaintiff.
All SA 161 (SCA)
Liability to third parties (contractual): A public accountant may be liable to a third party (not
being a client) for damages caused by a negligent misrepresentation to that third party, where
there is a contract between them creating such liability.
Public Accountants’ and Auditors’ Act 80 of 1991 s 20(11)(a)
Liability to third parties (not contractual): Section 20(9) provides that an accountant will not
otherwise be liable towards a third party in respect of an opinion expressed or opinion given
in the ordinary course of its duties, unless the third party alleges and proves that:
(a) the accountant acted maliciously or pursuant to a negligent performance of its duties;
and
(b) the accountant knew or could, in the particular circumstances, reasonably have been
expected to know, at the time the negligence occurred in the performance of its duties
pursuant to which the opinion was [Page 3] expressed, the certificate was given, or a report or
statement was made or a statement, account or document was certified that:
(i) the opinion would be used by its client to induce a third party to act or refrain
from acting in a certain manner; or
(ii) the third party would rely on such opinion in so acting or refraining from
acting.
The accountant will also be liable if it is shown that it, in any way and at any time after the
opinion was expressed, represented to the third party that the opinion was correct while at the
time the accountant knew, or could in the particular circumstances reasonably have been
expected to know, that the third party would rely on such representation for the purpose of
acting or refraining from acting.
The fact that the accountant performed the functions of an accountant or auditor is not in
itself proof that the accountant knew – nor is it sufficient grounds for the inference that the
accountant could reasonably have been expected to know – that the client would so use the
opinion or that a third party would so act.
(International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) dealt in detail with the
liability of an auditor for negligent misrepresentation, but must now be read in the light of
section 20, which did not exist when this case was decided.)
NPC Electronics Ltd v S Taitz Kaplan and Company [1998] 1 All SA 390 (W)
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 quasi-judicial and the audi alteram
partem rule does not necessarily apply.
Estate Milne v Donohoe Investments (Pty) Ltd 1967 (2) SA 359 (A)
PRECEDENTS
Claim – for remuneration
1. The plaintiff is a duly registered public accountant and auditor entitled to

practise as such in terms of the Public Accountants’ and Auditors’ Act 80 of 1991.
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.
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 Public Accountants’ and Auditors’ Act 80 of 1991,
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.
[Page 4]
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 Public
Accountants’ and Auditors’ Act 80 of 1991, signed a financial report in respect of [name]
(“the company”) in which the following figures appear:
[detail].
2. Whilst preparing the said 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 aforesaid 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 said shares.
6. In consequence of the defendant’s actions, the plaintiff has suffered a loss of

[Ry–Rx].
Accounts
Related subjects: AGENCY
PARTNERSHIPS
Essentials: The object of a claim for an account is to enable the claimant to establish whether
the other party is indebted to the claimant. The typical claim is for delivery of an account, a
debate thereof and payment of the amount found to be due. The claimant must allege and
prove:
(a) The basis of the right to receive an account.
The duty to render an account is dependent upon one of the following:
(i) a fiduciary relationship between the parties which obliges the person in a
fiduciary position to provide an account (typical examples are those of partners, agents and
trustees, but not banks);
[Page 5]
(ii) a contractual obligation to render an account; or
(iii) a statutory duty to render an account.

Rectifier & Communication Systems (Pty) Ltd v Harrison 1981 (2) SA 283 (C)
Rosseau NO v Cloete 1952 (3) SA 703 (C)
Loots v Nieuwenhuizen 1997 (1) SA 361 (T)
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)
(b) If the right relied upon is contractual, the terms of the contract. If the right is not
contractual, the circumstances having a bearing on the right to the account sought – for
instance, the grounds upon which it is said that the relationship between the parties is a
fiduciary one.
(c) The defendant’s failure to render an account or, if an incomplete account has been
rendered, failure to render a proper account.
Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A)
Narayanasamy v Venkatrathnam 1979 (3) SA 1360 (D)
Field NNO v Compuserve (Pvt) Ltd 1991 (4) SA 490 (Z)
Nucsa v Nucsa 1995 (4) SA 813 (T)
Procedure: If these elements have been established, the court will usually order the rendering
of an account within a time specified in the court order. It will also prescribe the time and
procedure of the debate to follow. First, the parties should debate the account between
themselves. If they are unable to reach an agreement, they should then formulate a list of the
disputed items. The formulation can be done by means of an amendment to the pleadings or
at a pre-trial conference.
Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) at 762–763
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 debatement.
Dale Street Congregational Church v Hendrickse 1992 (1) SA 133 (E)
If the plaintiff receives an account which is allegedly inadequate, the plaintiff may proceed
with a claim for a due and proper account.
Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) at 767
Nusca v Nusca 1995 (4) SA 813 (T)
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 dealers 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 regularly, and not less than 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].
[Page 6]
4. Alternatively, such accounts as the defendant has rendered are defective and
inadequate in the following respects:
[Detail].
WHEREFORE the plaintiff prays for an order:
(a) That the defendant renders a full account, supported by vouchers, of the business
ABC for the period [state period].
(b) Debate of the said account.
(c) Payment to the plaintiff of whatever amount appears to be due to the plaintiff upon
debate of the account.
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 said account with the plaintiff within
[period] from the time such account was rendered in terms of par (a) above.
Order
[Cf Nusca v Nusca 1995 (4) SA 813 (T) at 820J–821C.]
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 said account with the plaintiff within
one month from the date it was rendered in terms of par 1 above.
Actio ad Exhibendum
Related subjects: CONDICTIO FURTIVA
VINDICATION
Cause of action: The actio ad exhibendum is a delictual action which is normally instituted

as an alternative to rei vindicatio (see : VINDICATION). It enables a plaintiff to claim
damages from an erstwhile possessor of the plaintiff’s property.
Essentials: The plaintiff must allege and prove that:
(a) the plaintiff is or was the owner of the property concerned when such property was
alienated by the defendant;
RMS Transport v Psicon Holdings (Pty) Ltd 1996 (2) SA 176 (T) at 181
(b) the defendant had been in possession of this property;
(c) when the defendant lost possession, the defendant had knowledge of the plaintiff’s
ownership or claim to ownership of the property.
Vulcan Rubber Works (Pty) Ltd v SAR & H 1958 (3) SA 285 (A)
Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T) at
48
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) at
1011–1012; on appeal: 2003 (1) SA 204 (T) at 212
A defendant who disposes of a plaintiff’s property after the institution of an action in

which the plaintiff relies on alleged ownership is mala fide.
Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A)
[Page 7]
Dolus eventualis is sufficient to constitute knowledge. The defendant will be liable if,
at the time of the disposition or destruction of the disputed property, he or she knew of the
plaintiff’s right or claim. The defendant cannot disavow knowledge if “red or amber lights
flash”.
Frankel Pollak Vinderine Inc v Stanton [1996] 2 All SA 582 (W) at 601e–f; 2000 (1) SA 425
(W) at 425
An allegation or evidence that the defendant should have known of the plaintiff’s
ownership is insufficient;
Hall & Sons Ltd v Kleinsmith 1963 (4) SA 320 (T)
(Gore NO v Saficon Industrial (Pty) Ltd 1994 (4) SA 536 (W) at 549–550 contains dicta that
appear to be in conflict with this exposition)
(d) the defendant intentionally disposed of the property or caused its destruction
intentionally or negligently.
Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T) at
52
Relief: The plaintiff is entitled to claim for damages resulting from the defendant’s wrongful
act. These damages are normally the value of the plaintiff’s property at the date of disposal of
the property by the defendant.
On occasion, damages have been granted to a plaintiff claiming vindication where the
defendant alienated the plaintiff’s property after institution of the action, even though the
plaintiff had not claimed damages, but where 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.
Conversion: The English-law doctrine of conversion does not form part of our law. This
doctrine holds that any person who, even innocently, obtains the goods of a person who has
been fraudulently deprived of them and disposes of such goods is liable in tort to the owner.
Atkinson Oates Motors Ltd v Trust Bank of Africa Ltd 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 said 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].
WHEREFORE the plaintiff claims payment of [amount].
1. Plaintiff is the owner of a [year] model motor vehicle with [engine number].
2. Defendant was in possession of the said vehicle during [period].
[Page 8]
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 post-collision value of the vehicle is [Ry].
8. Plaintiff is in possession of the damaged vehicle.
WHEREFORE plaintiff claims:
Payment of [Rx–Ry].
Actio Aquae Pluviae Arcendae
Related subject : WATER
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. There is an implied servitude in terms of which a
property is entitled to receive water from a neighbouring property where such water would
naturally flow onto the ground of the former property.
De Villiers v Galloway 1943 AD 439
This applies to both 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 by an owner, fault is not a
requirement for a claim for abatement. 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) SA 430 (A)
Van Schalkwyk v Van der Wath 1963 (3) SA 636 (A)
Damages: The plaintiff is entitled to damages suffered after litis contestatio without having
to allege and prove fault. The plaintiff will, presumably, have to amend the claim to cater for
this relief.
Cape Town Council v Benning 1917 AD 315
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.
Actio (interdictum) quod vi aut clam : This action or interdictum was, in principle, available
against the erector of a construction on neighbouring property and it obliged the defendant to
allow the plaintiff to remove the construction. It now allows a claim for damages to the
owner of damaged land. While it does not require proof of fault, the plaintiff must allege and
prove that the works that caused the damage were erected either secretly or with force.
Thormahlen v Gouws 1956 (4) SA 430 (A)
Baldric Farms (Pty) Ltd v Wessels 1994 (3) SA 425 (A) at 431
[Page 9]
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 north-east to south-west.
7. As a result 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.
Actio de Pastu
Related subjects: ACTIO DE PAUPERIE
WILD ANIMALS
General: The actio de pastu is available to the owner of land who has suffered damages as
the result of the grazing and the concomitant trampling of fodder or crops.
Vermaak v Du Plessis 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 upon the property;
(d) the plaintiff has suffered damages as a consequence of the grazing.
Van Zyl v Kotze 1961 (4) SA 214 (T)

Coetzee & Sons v Smit 1955 (2) SA 553 (A)
Damages must be properly quantified in terms of Uniform rule 18(10).
[Page 10]
Negligence: Liability is independent of negligence. As will be pointed out in the context of

the actio de pauperie, it is advisable to rely in the alternative on the lex Aquilia.
See : ACTIO DE PAUPERIE
Defence: Where the plaintiff was at fault in relation to the damage – for example, by leaving
gates open – such fault can be raised as a complete defence.
Potgieter v Smit 1985 (2) SA 690 (D)
Pieters v Botha 1989 (3) SA 607 (T)
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, for example, 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 [for example, 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.
Actio de Pauperie
Related subjects: ACTIO DE PASTU
WILD ANIMALS
General: This action makes an owner of a domesticated animal liable for damages caused by
such animal, without imputing fault to the owner.
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
injuries;
O’Callaghan NO v Chaplin 1927 AD 310
SAR&H v Edwards 1930 AD 3
Solomon NNO v De Waal 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 their domesticated nature.
Da Silva v Otto 1986 (3) SA 538 (T)
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 [Page 11] ewe all act according to
their nature (secundam naturam sui generis) and not contrary thereto.
Coetzee & Sons v Smit 1955 (2) SA 553 (A)
Jordaan v Krone Broers [1999] 3 All SA 57 (C)
In the absence of an express allegation, the question of whether the animal acted
contrary to the nature of its class may be implied from the other facts set out in the pleading.
Maree v Diedericks 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 (3) SA 603 (T)
(d) the conduct of the animal caused the plaintiff damage.
Portwood v Svamvur 1970 (4) SA 8 (RA)
The damage may be to property or person.
Cf Solomon NNO v De Waal 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 base the plaintiff’s claim, in
the alternative, on the actio legis Aquiliae. Thus, should the plaintiff, for example, 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.
Cf Coetzee & Sons v Smit 1955 (2) SA 553 (A)
Defences: The onus is on the defendant to allege and prove the defences set out hereinafter.
Da Silva v Coetzee 1970 (3) SA 603 (T)
(a) The animal that caused the injury was provoked by the culpable conduct of the injured
party (the plaintiff), a third party or by the conduct of another animal.
Swart v Honeyborne 1981 (1) SA 974 (C)
Minister van Polisie v Chetty 1977 (2) SA 885 (A)
(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 (3) SA 17 (A)
(c) The “unlawful” presence of the plaintiff on the premises opened the plaintiff to the
risk of injury. In order 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 on the
premises.
Veiera v Van Rensburg 1953 (3) SA 647 (T)
Vermaak v Khoza 1979 (1) SA 578 (N)
[Page 12]
(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.
Joubert v Combrinck 1980 (3) SA 680 (T)
Maartens v Pope 1992 (4) SA 883 (N)
See : VOLENTI NON FIT INIURIA
PRECEDENTS
Claim – based on the actio de pauperie and, in the alternative, the actio legis Aquiliae
1. Defendant was at all material times the owner of a male Rottweiler dog.
2. On [date] at [place], the said dog injured the plaintiff by [for example, biting]
and caused him damage by [for example, tearing his trousers] and [set out injuries].
3. The said 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 [for example]
(a) the defendant knew or should have known that the dog was at times vicious
and likely to bite strangers lawfully visiting;
(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. As a result of the foregoing, plaintiff suffered the following damages:
(a) pain and suffering [amount];
(b) medical expenses [amount];
(c) loss of [for example, 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
said 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, in spite of such knowledge, the plaintiff entered
upon the property and freely and voluntarily assumed the risk of injury.
2. Alternatively, the defendant pleads that the plaintiff, having the aforesaid
knowledge, was negligent in entering the defendant’s property and that any injuries sustained
were occasioned by this said negligence [detail].
[Page 13]
Actio Legis Aquiliae
See : DAMAGES, LEX AQUILIA, NEGLIGENCE
Actio Pauliana
Related subjects: FRAUD
INSOLVENCY
General: Alienation of assets by a debtor in fraud of creditors may be set aside at common

law in terms of 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)
Essentials: The plaintiff must allege and prove:
(a) that the plaintiff is a creditor of the debtor;
(b) the alienation of assets by the debtor;
(c) that the alienation was of such a nature that it 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 – that is, a disposition with knowledge of
insolvency;
(f) causation – that is, that the fraud had the intended effect, namely to defraud creditors
and cause them loss.
Fenhalls v Ebrahim 1956 (4) SA 723 (D)
Sackstein & Venter NNO v Greyling 1990 (2) SA 323 (O)
Kerbyn 178 (Pty) Ltd v van den Heever NO 2000 (4) SA 804 (W) at 818B
Extension of action: The action lies for the recovery of property from a person who has
acquired the property gratuitously or without valuable consideration from someone who has
alienated the property in fraud of a creditor even though the person who acquired such
property was innocent of the fraud. The debtor’s fraudulent intent remains nevertheless an
element of the cause of action.
Commissioner of Customs & Excise v Bank of Lisbon International Ltd 1994 (1) SA 205 (N)
at 210C–D
Kommisaris van Binnelandse Inkomste v Willers [1999] 2 All SA 342 (A); 1999 (3) SA 19
(SCA)
The action also finds application where the debtor pays into a bank account money obtained
by fraud but which, on being paid into the bank, becomes the property of the bank.
Commissioner of Customs & Excise v Bank of Lisbon International Ltd 1994 (1) SA 205 (N)
at 213E–H
Not only the assets transferred to the third party can be recovered but also other benefits
obtained as a result of the fraud.
Kerbyn 178 (Pty) Ltd v van den Heever NO 2000 (4) SA 804 (W) at 817–819
[Page 14]
The action is, however, not a remedy for recovery by a claimant of property that the claimant
has lost as result of fraud.
Nedcor Bank Ltd v ABSA Bank 1995 (4) SA 727 (W)
Parties: As a general rule, the debtor and the third party (the receiver of the property) have to
be joined as co-defendants. In the course of sequestration or liquidation, the trustee or
liquidator will be the plaintiff.
Wolpe v Gale 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.
4. First defendant did transfer the farm to the second defendant as trustee on
[date].
5. When the deed of trust was entered into and when the farm was transferred,
the first defendant was insolvent and indebted to the plaintiff as aforesaid.
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. As a result of this fraud, the plaintiff is unable to recover his claim from the
first defendant.
8. The trust beneficiaries have not yet accepted the trust advantages.
Alternatively, they have accepted them with knowledge of the fraud [in which event they
must be joined].
WHEREFORE 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.
Administration of 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) SA 848 (A)
Clarkson NO v Gelb 1981 (1) SA 288 (W)
Pentz v Gross 1996 (2) SA 518 (C)
Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (A)
The rule does not apply where the executor is delinquent and an heir wishes to claim, on
behalf of the estate, damages from the executor.
Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (A)
[Page 15]
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 (2) SA 15 (C)

If a co-executor refuses without reason to be joined in litigation, the court may, on
application, permit the other executor to litigate on her or his own.
Webster v Webster 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.
The institution of an action in respect of an undisputed claim, before the account is accepted
by the master, is premature.
McNicol v Delport NO 1980 (4) SA 287 (W)
If a claim is disputed, the normal way of solving the issue is by way of the procedure
prescribed in section 35. A creditor does not forfeit the claim if he or she does not follow that
procedure.
MacDonald, Forman & Co Ltd v Van Aswegen 1963 (3) SA 173 (O)
Benade v Boedel Alexander 1967 (1) SA 648 (O)
Els NO v Jacobs 1989 (4) SA 622 (SWA)
The relief claimed must be for a declaratory order that the plaintiff is entitled to have the
claim reflected in the distribution account.
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).
Van Zyl v Serfontein 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 only where there has been an overpayment to the heir and nothing is left in the estate
to satisfy the claim of the creditor.
Mosam v De Kamper 1964 (3) SA 794 (T)
(b) It must be alleged that the defendant is an heir. 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) SA 298 (N)
(c) The indebtedness of the estate to the plaintiff must be alleged and proved.
Mosam v De Kamper 1964 (3) SA 794 (T)
A creditor’s claim against an executor personally: If an executor makes a distribution

otherwise than in accordance with the provisions of the Administration of Estates Act and the
accepted estate account, the executor is personally liable to an underpaid creditor for the loss
caused by such incorrect payment.
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 (3) SA 78 (A)
Johnston v Johnston NNO 1972 (3) SA 104 (RA)
Low v Consortium Consol Corpn (Pty) Ltd 1999 (1) SA 445 (A)
[Page 16]
Plene administravit (completed administration): This defence is based on English law and

was purportedly available to an executor in circumstances where:
(a) the administration was duly completed;
(b) the executor duly complied with the provisions of the Act in respect of the estate
accounts; and
(c) there are no further assets in or due to the estate.
Faure v Britz NO 1981 (4) SA 346 (O)
It seems that this defence does not exist in our law and that a creditor is, in these
circumstances, still entitled to judgment against the estate, subject to the proviso that such a
creditor is entitled to be paid only from assets that have not yet been distributed.
Visser v Schmidt NO 2001 (3) SA 810 (T)
Tolstrup NO v Kwapa NO 2002 (5) SA 73 (W)
Maladministration: Heirs have an action against an executor in respect of loss suffered by

them consequent upon maladministration of the deceased’s estate. This action is the actio
legis Aquiliae. The duty of care flows from the fiduciary position held by the executor.
Sasfin (Pty) Ltd v Jessop 1997 (1) SA 675 (W)
Lindsay v Stofberg NO 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 virtue of 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 said machinery was delivered to [name] during his lifetime on [date], but
he failed to pay the purchase price or any part thereof.
4. Plaintiff has duly lodged his claim with the defendant in terms of the
provisions 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 as provided for in Act 66 of 1965.
6. In the said account, the defendant failed to admit and reflect the plaintiff’s
claim.
7. Plaintiff thereafter, acting in terms of section 35(7) of Act 66 of 1965, in time

and in writing, lodged an objection with the Master against the omission of the said claim
from the account. A copy of the objection is attached hereto and marked “A”.
8. The Master overruled the plaintiff’s objection on [date].
(a) Payment of [amount].
(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 hereto and marked “A”.
[Page 17]
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 said estate as required
by law, paid to the defendants the sum of [amount] each, being their share as heirs.
4. Plaintiff, being at all material times ignorant of the death of the deceased, did
not lodge his claim for the sum of [amount] with the executor, and the executor did not
include the plaintiff’s claim in the said account. In consequence of the foregoing, the plaintiff
received no payment in respect of such 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 as

aforesaid.
5. During [state period], the first defendant stole [specify] from the estate.
6. First defendant acted as aforesaid in the course and scope of the business of
the partnership.
7. As a consequence, the estate suffered damages in the sum of [amount].
8. The partnership was dissolved on [date].
WHEREFORE the plaintiff claims against the defendants, jointly and severally, payment of
[amount].
[Based on Lindsay v Stofberg NO 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) at 311G–315D; Sasfin (Pty) Ltd v Jessop 1997 (1) SA 675 (W) at 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).]
Admiralty Claims
[Text prepared by Adv Graham Lopes, Durban.]

Types of actions: Admiralty claims may be divided into two broad categories:
(a) Actions in rem against various categories of property.
Admiralty Jurisdiction Regulation Act 105 of 1983 s 3(5)(a)–(f)
(b) Actions in personam against certain categories of persons.
Admiralty Jurisdiction Regulation Act 105 of 1983 s 3(2)(a)–(e)
Any admiralty claim must fall within the definition of a “maritime claim” as set out in section
1 of the Act.
[Page 18]
Jurisdiction: Admiralty jurisdiction is extremely wide and is defined in the Act.
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 Act on 1 November 1983, English law as at that date applies.
(b) If the Colonial Courts of Admiralty would not have had jurisdiction, Roman-Dutch
law is applicable.
(c) The parties may have agreed to a system of law to be applied in the event of a dispute,
in which event that system will be applicable.
Admiralty Jurisdiction Regulation Act 105 of 1983 s 6
Pleadings: Admiralty cases are governed by their own rules of procedure, and the rules of
pleading in the admiralty court are not as stringent as those in the ordinary courts.
Rules Regulating the Conduct of Admiralty Proceedings rule 9
Essentials: The most important aspects of any cargo claim, which must be identified
accurately, are:
(a) the party to be sued;
(b) the legal standing of the suing party to claim; and
(c) the time within which the action must be commenced.
Time limit: Almost all contracts of carriage are subject to either the Hague rules or the
Hague-Visby rules, both of which provide for a time bar of one year.
Associated ships: A ship other than a ship in respect of which the maritime claim arose may,
under certain circumstances, be arrested for the institution of an action in rem.
Admiralty Jurisdiction Regulation Act 105 of 1983 s 3(6) and (7)

General: In prosecuting cargo claims, a thorough understanding of bills of lading and
charter-parties is essential. The plaintiff must allege and prove:
(a) a title to sue – that is, as owner of the cargo or as holder of the bill of lading;
(b) that the goods were delivered to the carrier in good order and condition. This is
required by the terms and conditions of the bill of lading;
(c) the contractual obligations of the carrier;
(d) that the goods were not delivered, or that they were delivered in a damaged condition,
at the port of destination;
(e) the quantum of the damages suffered.
PRECEDENTS
1. Plaintiff is [name].
2. Defendant is the MV “BB” (herein “the vessel”).
3. At [place] and on [date], the master of the vessel issued a bill of lading no.
[number] in respect of [details of cargo] (herein “the cargo”).
[Page 19]
4. The bill of lading was endorsed “clean shipped on board” and recorded further
that the cargo had been “shipped at the port of loading in apparent good order and condition”.
5. A copy of the bill of lading is annexed hereto and marked “A”, and a copy of
its reverse side as “B”.
6. In terms of the contract of carriage as evidenced by the bill of lading, the

owner of the vessel was obliged:
(a) before and at the beginning of the voyage, to exercise due diligence to make
the vessel seaworthy, properly to man, equip and supply the vessel, and to make the holds
and all the other parts of the vessel in which the cargo was to be carried fit and safe for the
reception, carriage and preservation of the cargo;
(b) properly and carefully to load, handle, stow, carry, keep, care for and
discharge the cargo;
(c) to deliver the cargo to plaintiff as consigned at the port of [name] in the same
good order and condition in which it was received.
7. On or about [date] and at [place], pursuant to the terms of the contract, the
cargo was loaded on board the vessel in good order and condition.
8. Plaintiff was at all material times the owner of the cargo and the holder of the
bill of lading.
9. On [date], the vessel arrived at [name of harbour] and the cargo was
discharged.
10. The owner of the vessel breached its obligations in terms of the contract of
carriage in that, upon discharge thereof, the cargo was found to have become contaminated
by water.
11. As a result, plaintiff has suffered damages in the sum of [Rx], calculated as
follows [details].
12. This Court has jurisdiction to determine plaintiff’s action in rem against the
vessel by virtue of the following:
(a) Plaintiff’s claim is a maritime claim in terms of section 1(1)(g) or (h) of the
Admiralty Jurisdiction Regulation Act 105 of 1983.
(b) On [date], security was furnished to the plaintiff to prevent the arrest of the
vessel, and, in the premises, the vessel is deemed to have been arrested and to be under arrest
pursuant to section 3(10) of Act 105 of 1983.
(a) payment of damages in the sum of [Rx];
(b) interest; and
(c) costs.
Adultery
Related subjects: ALIENATION OF AFFECTION
DIVORCE
Jurisdiction: The jurisdiction of a court is determined according to the principles applicable

to delictual claims. The fact that a court has jurisdiction in a matrimonial matter (for example,
by virtue of the domicile of the spouses) does not, without more, vest it with jurisdiction
against the third party.
Van Wyk v Van Wyk 1952 (1) SA 760 (N)
Carroll v Menzies 1961 (4) SA 672 (N)
Cause of action: The cause of action against the third party is the actio iniuriarum.
Viviers v Kilian 1927 AD 449
Foulds v Smith 1950 (1) SA 1 (A)

The adultery of the guilty spouse is not a ground for an action for damages against her or him
but may be relevant in the context of divorce proceedings.
Ex parte AB 1910 TPD 1332
[Page 20]
Consequently, the guilty spouse cannot be interdicted from committing further acts of
adultery. It is debatable whether the third party can be so interdicted and it is highly unlikely
that, assuming that a remedy does exist, a court would, in the exercise of its discretion, grant
such relief.
Wassenaar v Jameson 1969 (2) SA 349 (W) at 353
Wrongfulness and animus iniuriandi : It follows that wrongfulness and animus iniuriandi are
essential elements of the delict. Extramarital intercourse with a married person is wrongful
against the other partner in the marriage. Animus iniuriandi involves knowledge of the
wrongfulness (with respect to the marriage) of the sexual intercourse. It is not customary to
allege wrongfulness or animus iniuriandi because the use of the term “adultery” incorporates
these allegations.
Foulds v Smith 1950 (1) SA 1 (A)
Degree of particularity: Full particulars of the adultery must be given, unless the plaintiff is
unaware of the particulars, in which event the grounds upon which the allegation is based
must be set out. This does not mean that the degree of particularity required is greater than
that in an ordinary delictual action.
Van der Walt v Viviers 1955 (4) SA 10 (T)
Louw v Louw 1965 (3) SA 852 (E)
Born v Born 1970 (4) SA 560 (C)
Cf Uniform rule 18(8)
Patrimonial damages: Patrimonial damages can be claimed but, because of difficulties

relating to causation and quantum, are generally not claimed. If damages are claimed, full
particulars must be given and, unless pleaded, evidence relating thereto is irrelevant and,
therefore, inadmissible.
Diemer v Solomon 1982 (4) SA 13 (C) at 15
Sentimental damages: General damages in respect of loss of consortium and infliction of

contumelia are usually claimed. Particulars relating to quantification need not be given.
Diemer v Solomon 1982 (4) SA 13 (C) at 16
Loss of consortium has been defined as the loss of the comfort, society and services of the
guilty spouse.
Viviers v Kilian 1927 AD 449 at 455
Contumelia relates to the infringement of the plaintiff’s right to privacy, dignity and
reputation.
In respect of the factors taken into account in calculating damages, see:
Bruwer v Joubert 1966 (3) SA 334 (A)
Van der Westhuizen v Van der Westhuizen 1996 (2) SA 850 (C)
If the plaintiff has condoned the guilty spouse’s adultery, such condonation may mitigate the
quantum of damages claimable but does not provide a defence to the claim.
Viviers v Kilian 1927 AD 449
Godfrey v Campbell 1997 (1) SA 570 (C)
Proof of adultery: It is not necessary to provide corroboration of the alleged adultery.
Cf Smit v Arthur 1976 (3) SA 378 (A)
[Page 21]
PRECEDENTS
Claim – based on adultery
1. Plaintiff was married to [name] on [date] at [place].
2. The marriage still subsists; or
The marriage was dissolved by a decree of divorce on [date] at [place].
3. On or about [date] at [place], the defendant committed adultery with the

plaintiff’s spouse; or
Since [date] at [place], the defendant and the plaintiff’s spouse have been
living in adultery as husband and wife; or
On various occasions and at places, particulars of which are not known to the
plaintiff, the defendant and the plaintiff’s spouse have committed adultery, which adultery the
defendant admitted to the plaintiff on [date] at [place].
4. As a result of the adultery, the plaintiff suffered damages, namely:
(a) contumelia inflicted upon the plaintiff [amount];
(b) the loss of the comfort, society and services of the said spouse [amount].
Agency
Related subjects: ACCOUNTS
ESTATE AGENTS
ESTOPPEL
General: One of the natural incidents of a contract of mandate is that the agent is obliged,
first, to fulfil the agreed functions faithfully, honestly, and with care and diligence and,
second, 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)
A person is able to contract in more than one capacity by, for instance, contracting with her-
or himself as 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 party who wishes to rely on an agency must allege and prove the existence and
scope of the authority of the alleged agent, whether express or implied.
Potchefstroomse Stadsraad v Kotze 1960 (3) SA 616 (A)
Scala Café v Rand Advance (Pty) Ltd 1975 (1) SA 28 (N)
Glofinco v ABSA Bank Ltd t/a United Bank 2001 (2) SA 1048 (W) at 1059
Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA)
The fact that the alleged agent purported to act as an agent does not assist in proving an
agency.
Van Niekerk v Van den Berg 1965 (2) SA 525 (A) at 537
A denial of authority must be specifically and unambiguously pleaded.
Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR)
Tuckers Land & Development Corp (Pty) Ltd v Perpellief 1978 (2) SA 11 (T) at 16
[Page 22]
The authority of an agent is a question of fact – ie, it must be actual – although a party may,
in particular circumstances, rely on an ostensible authority.
Inter-Continental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd 1979
(3) SA 740 (W)
Actual authority is either express or implied (tacit).
Coetzer v Mosenthals Ltd 1963 (4) SA 22 (A)

Tuckers Land & Development Corp (Pty) Ltd v Perpellief 1978 (2) SA 11 (T) at 14
Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk [2000] 4 All SA 412 (C); 2001 (1)
SA 313 (C)
NBS Bank Ltd v Cape Produce Co (Pty) Ltd [2002] 2 All SA 262 (A); 2002 (1) SA 396
(SCA)
If reliance is placed on an ostensible authority, the elements of estoppel must be alleged,

including a representation by the alleged principal and the necessary causation.
Inter-Continental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd 1979
(3) SA 740 (W) at 749
Beyleveld NO v Southern Life Association Ltd 1987 (4) SA 238 (C) at 248
(overruled on the facts by Southern Life Association Ltd v Beyleveld NO 1989 (1) SA 496
(A), which emphasises that to constitute an estoppel the representation must be unambiguous)
Because estoppel can only be raised as a defence, a plaintiff intending to rely on estoppel is
well advised to allege an actual authority and, in the replication, to rely on estoppel as an
alternative.
An allegation that a contract was entered into between two parties carries with it the
implication that they were not represented by agents 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 a sufficient allegation of
agency.
Lind v Spicer Bros (Africa) Ltd 1917 AD 147
Formalities: A donor’s agent must be authorised in writing in the presence of two witnesses.
General Law Amendment Act 50 of 1956 s 5
No formalities have been 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 1981 s 2(1)
See : ALIENATION OF LAND

The agent as a party: An agent has, in general, 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) SA 346 (A)
Sentrakoop Handelaars Bpk v Lourens 1991 (3) SA 540 (W)
Myburgh v Walters NO 2001 (2) SA 127 (C) at 130
The agent may sue in its own name if the agent acted as principal by not disclosing the
agency.
Ibid
[Page 23]
An agent may also 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) at 538
If an agent acts for an undisclosed principal, such agent may be sued in its own name instead
of the principal.
Ncqula v Muller’s Book Shop 1960 (4) SA 300 (E)
Commission: In order to recover remuneration or commission for the performance of the

mandate, an agent must allege and prove:
(a) the contract of mandate;
Da Silva v Janowski 1982 (3) SA 205 (A)
(b) an undertaking to pay remuneration. In the absence of any agreement, an agreement to

pay customary or reasonable remuneration may be implied;
Middleton v Carr 1949 (2) SA 374 (A)
(c) due performance of the mandate.
See : ESTATE AGENTS
Ratification: A party can ratify an unauthorised act, provided:
(a) the so-called agent professed to act on its behalf;
Durity Alpha (Pty) Ltd v Vagg 1991 (2) SA 840 (A)
Cf Keystone Trading Co v Die Verenigde &c Mij 1926 TPD 218
(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 terminate the authority conferred

upon an agent, even if the mandate purports to be irrevocable. In the latter instance, the
principal may be liable for damages for breach of contract, but the erstwhile agent may no
longer bind the principal.
Pretorius v Erasmus 1975 (2) SA 765 (T)
The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 1984 (2) SA 881 (A)
Consolidated Frame Cotton Corp Ltd v Sithole 1985 (2) SA 18 (N) at 22
The general rule does not apply if the authority is coupled with an interest.
Ward v Barrett NO 1985 (2) SA 732 (N) at 737
Lusizi v Transnet Ltd t/a Spoornet [2002] 3 All SA 635 (C)
A mandate automatically terminates when any change of status occurs, such as death or
insolvency.
Goodricke & Son v Auto Protection Insurance Co Ltd (in liquidation) 1968 (1) SA 717 (A) at
722
Mort NO v Chiat [2000] 2 All SA 515 (C); 2001 (1) SA 464 (C)
Secret commission and profit: 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 to the principal.
Hargreaves v Anderson 1915 AD 519
Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168
Mallinson v Tanner 1947 (4) SA 681 (T)
[Page 24]
Accounting: A claim for an account against an agent is permissible.
See : ACCOUNTS
Bribery: Bribery occurs when someone gives or promises to the agent of another a gift or
remuneration, without the knowledge of the principal, with a view to influencing the agent in
order to gain an advantage.
Plaaslike Boeredienste (Edms) Bpk v Chemfos Bpk 1986 (1) SA 819 (A) at 845
A contract entered into by a bribed agent is unenforceable against the will of the innocent
principal.
Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd [1998] 4 All SA 465 (A); 1999 (2) SA 719
(SCA)
The elements of commercial bribery are:
(a) a reward
(b) paid or promised
(c) by one party, the briber,
(d) to another, the agent (who may be an agent in the true sense or merely a go-between
or facilitator),
(e) who is able to exert influence over
(f) a third party, the principal
(g) with the intention that the agent
(h) should induce the principal
(i) without the principal’s knowledge and
(j) for the direct or indirect benefit of the briber
(k) to enter into or maintain or alter a contractual relationship
(l) with the briber, her or his principal, associate or subordinate.
(SCA)
Vicarious liability: A principal may be vicariously liable for the wrongful acts of the agent
even if the agent thereby also committed a fraud against the principal.
Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 (4) SA 363 (A)
See : VICARIOUS LIABILITY
Implied warranty of authority: If a person represents that he or she is authorised to act as an

agent when, in fact, not so authorised (or if the authorisation is limited to exclude the relevant
act), the purported agent will be liable for damages 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) SA 403 (A)
Indrieri v Du Preez 1989 (2) SA 721 (C)
The following must be alleged and proved by the plaintiff:
(a) a representation of authority;
(b) that the representation was false. A repudiation of liability by the alleged principal
may establish prima facie that the representation was false;
Calder-Potts v McMillan 1956 (3) SA 360 (E)
(c) the conclusion of a contract with the “agent” in that capacity;
[Page 25]
(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 an inducement;
Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 412
(e) the damages suffered as a result 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, effected certain sales of such hardware goods on the defendant’s behalf
amounting 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].
[Page 26]
5. The said 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. As a consequence 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 said period, the
defendant, through the instrumentality of another agent, [name], appointed by him in breach
of the said term, sold the [object] for the sum of [amount] to [name].
4. As a consequence 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].
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

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.
Replication – estoppel
1. In the event of the court’s finding that [X] was not duly authorised to represent
the defendant, the plaintiff replicates as follows:
[Page 27]
(a) on [date], the defendant informed the plaintiff that he had employed [X] as his
general manager and that [X] would in future be responsible for running the defendant’s
business;
(b) the agreement entered into between the parties falls within the normal business
of the defendant;
(c) the plaintiff was induced by this representation to believe that [X] was duly
authorised to enter into the agreement on behalf of the defendant and, acting on the strength
of this belief, entered into the agreement.
2. Defendant is accordingly estopped from denying that [X] had the authority to
represent him.
3. In every other respect, the plaintiff joins issue with the defendant on the
allegations made in the plea.
Alienation of Affection
Related subjects: ADULTERY
DIVORCE
Cause of action: The cause of action against the third party is the actio iniuriarum.
Jurisdiction: The jurisdiction of the court is determined according to the principles applicable

to delictual claims and not those applicable to divorce actions.
Wrongfulness: Wrongful interference with the marriage relationship consists of an act of

enticement, persuasion or coaxing.
Smit v Arthur 1976 (3) SA 378 (A) at 387
Gower v Killian 1977 (2) SA 393 (E)
The action protects the existing consortium between the married parties – that is, the totality
of the rights, duties and advantages flowing from the marriage.
Grobbelaar v Havenga 1964 (3) SA 522 (N)

Animus iniuriandi : Animus iniuriandi is an essential element. It is difficult to conceive how
there could be an enticement to leave the plaintiff without the necessary intent.
Degree of particularity: The plaintiff may rely on the cumulative effect of a series of facts for
this conclusion.
Grobbelaar v Havenga 1964 (3) SA 522 (N) at 527
Damages: See : ADULTERY
Proof of enticement: Although the onus of proof is the ordinary civil onus, it is a “very
considerable onus” to discharge because the guilty parties are normally attracted to one
another and come together by their own inclination and desire.
Wassenaar v Jameson 1969 (2) SA 349 (W) at 352
Smit v Arthur 1976 (3) SA 378 (A)
Related cause of action: This claim is normally an alternative to a claim for damages based
upon adultery. An alternative claim could be based on harbouring.
Woodiwiss v Woodiwiss 1958 (3) SA 609 (D)
[Page 28]
Defences: The claim will be defeated if the defendant can show (without bearing an onus)
that:
(a) the spouse had good reason to leave the plaintiff (for example, where the plaintiff
subjected the spouse to ill-treatment), or
(b) the defendant did not have the necessary wrongful intent because of a belief, albeit
incorrect, that the spouse had good reason to leave the plaintiff.
PRECEDENTS
Claim – based on alienation of affection
1. Plaintiff was married to [name] on [date] at [place].
2. The marriage still subsists; or
The marriage was dissolved by a decree of divorce on [date] at [place].
3. During or about [date/period] at [place], the defendant wrongfully and

intentionally enticed and persuaded the plaintiff’s spouse to desert the marital home and to
live with the defendant.
4. As a result of the enticement and persuasion, the plaintiff’s spouse deserted

the marital home on [date] and began to reside with the defendant.
5. As a further result, the said marriage relationship has irretrievably broken
down [and has resulted in the aforesaid divorce].
6. As a result of the foregoing, the plaintiff suffered damages, namely:
(a) contumelia inflicted upon the plaintiff [amount];
(b) the loss of the affection, comfort, society and services of the said spouse
[amount].
Plea – to a claim based on alienation of affection
Defendant admits that he enticed the plaintiff’s said spouse to desert the marital home but
denies that he acted wrongfully or intentionally because:
(a) he was justified in so doing since the plaintiff had assaulted the said spouse regularly;
(b) alternatively, in the event that it is found that the defendant was not so justified, he
bona fide believed that the plaintiff did so assault the said spouse and the defendant
consequently bona fide believed that he was justified in enticing the said spouse.
Alienation of Land
Related subjects: DONATION
EVICTION OR EJECTION
RECTIFICATION
SALE
SALE OF LAND ON INSTALMENTS
Definitions: The alienation of land is governed by the provisions of the Alienation of Land

Act 68 of 1981. The concept of “alienation” as defined in the Act includes a sale, exchange or
donation, irrespective of whether such sale, exchange or donation 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) SA 628 (W) at 633
Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N)
[Page 29]
“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.
Formalities: Alienation of land must be contained in a deed of alienation which must be
signed by the parties thereto or by their agents acting on their written authority. The written
authority apparently need not be signed.
Hugo v Gross 1989 (1) SA 154 (C)
Van der Merwe v DSSM Boerdery BK 1991 (2) SA 320 (T) at 329
SAI Investments v Van der Schyff NO 1999 (3) SA 340 (N)
The only exception is a sale of land by public auction.
Alienation of Land Act 68 of 1981 s 2 and 3
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.
Trustees, Mitchell’s Plain Islamic Trust v Weeder [2001] 2 All SA 629 (C)
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) SA 756 (W)
(b) a sufficient description of the property to enable one to identify it without reference to
inadmissible evidence. In other words, it must be possible, by applying the ordinary rules for
the construction of contracts and by admitting such evidence, to interpret the contract as is
admissible under the parol evidence rule.
Clements v Simpson 1971 (3) SA 1 (A)
Headermans (Vryburg) (Pty) Ltd v Ping Bai [1997] 2 All SA 371 (A) at 376; 1997 (3) SA
1004 (A) at 1008–1009
Kriel v Le Roux [2000] 2 All SA 65 (SCA)
Vermeulen v Goose Valley Investments (Pty) Ltd [2001] 3 All SA 350 (A); 2001 (3) SA 986
(SCA)
(c) the price;
Patel v Adam 1977 (2) SA 653 (A)
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 a purchaser or prospective purchaser to revoke the offer or terminate the
deed of alienation in terms of section 29A.
Alienation of Land Act 68 of 1981 s 2(2A)
Sayers v Khan [2002] 1 All SA 57 (C); 2002 (5) SA 688 (C)
It should be noted that, under certain circumstances, the sale of a portion of agricultural land
is void unless the minister in writing consents thereto.
Subdivision of Agricultural Land Act 70 of 1970 ss 2 and 3. This Act is to be repealed when
the Subdivision of Agricultural Land Act Repeal Act 64 of 1998 comes into force.
Extrinsic evidence may be permissible 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 contained in the deed.
Philmatt (Pty) Ltd v Mosselbank Developments CC [1996] 1 All SA 296 (A); 1996 (2) SA 15
(SCA)
[Page 30]
Incorporation by reference: The terms of the deed of alienation may be supplemented by

means of the incorporation of another document. In this way, a deed of alienation can be
made to comply with statutory requirements.
Van Wyk v Rottcher’s Mills (Pty) Ltd 1948 (1) SA 983 (A) at 990
Industrial Development Corporation of SA (Pty) Ltd v Silver [2002] 4 All SA 316 (SCA)
Variation: Variation of a material term of the deed of alienation must comply with the
prescribed formalities.
Sidali v Mpolongwana 1990 (4) SA 212 (C)
Bailes v Highveld 7 Properties (Pty) Ltd [1998] 3 All SA 205 (N); 1998 (4) SA 42 (N)
Cancellation: There are no formalities prescribed by statute for valid cancellation by

agreement or for the reinstatement of a cancelled deed of alienation.
Neethling v Klopper 1967 (4) SA 459 (A)
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 in
respect of land, revoke such offer or terminate such deed of alienation, as the case may be, by
written notice delivered to the seller or to the seller’s agent within that period.
Alienation of Land Act 68 of 1981 s 29A
Waiver: The waiver by any person, who has purchased land in terms of a deed of alienation,
of any right conferred upon her or him by the Act is null and void.
Alienation of Land Act 68 of 1981 s 29

Rectification: If the deed does not reflect the intention of the parties correctly, it may be
rectified. If, on its face, the document is void for non-compliance with the statute,
rectification cannot be granted.
See : RECTIFICATION
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 the deed is invalid, any person who performed partially or in full is entitled to recover from
the other party that which the former performed, unless there has been performance in full by
both parties. 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
damages caused either intentionally or negligently.
PRECEDENTS
Claim – for payment

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”.
[Page 31]
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.
WHEREFORE the plaintiff claims:
Payment of [amount] against transfer of the said property in the name of the defendant.

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”.
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].
Payment of the amount of [amount].
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.
Animals
See : ACTIO DE PASTU
ACTIO DE PAUPERIE
WILD ANIMALS
Arbitration
Related subjects: ARCHITECTS
LOCATIO CONDUCTIO OPERIS

General: Arbitration is a procedure whereby a dispute between parties is determined
extracurially. Certain statutes provide for compulsory arbitration but we are here concerned
with arbitration pursuant to a written contract that provides for the reference to arbitration of
a present or future dispute [Page 32] relating to matters specified in the contract, whether or
not an arbitrator is named or designated therein.
Arbitration Act 42 of 1965 s 1
SA Transport Services v Wilson NO 1990 (3) SA 333 (W) at 340
Nyoka v Legal Aid Board [1997] 4 All SA 593 (E)
The functions of an arbitrator are not administrative but judicial in nature.
Total Support Management (Pty) Ltd v Diversified Health Systems (SA) (Pty) Ltd 2002 (4)
SA 661 (SCA)
Jurisdiction: The jurisdiction of an arbitrator is described and delimited by the terms of the

arbitration agreement. He or she has no power to decide any issue not therein circumscribed.
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.
Schuldes v Compressor Valves Pension Fund 1980 (4) SA 576 (W)
The third party may be a valuer, mediator or referee and not an arbitrator.
Hoffman v Meyer 1956 (2) SA 752 (C)
Estate Milne v Donohoe Investments (Pty) Ltd 1967 (2) SA 359 (A)
Chelsea West (Pty) Ltd v Roodebloem Investments (Pty) Ltd 1994 (1) SA 837 (C) at 843
Watt v Sea Plant Products Ltd [1998] 4 All SA 109; 1999 (4) SA 443 (C)
A valuer does not act in a judicial capacity but, through the exercise of her or his own
judgement and skill, decides the issues submitted.
Perdikis v Jamieson [2002] 4 All SA 560 (W); 2002 (6) SA 356 (W)
Effect of arbitration clause: An agreement to arbitrate does not deprive the court of its
jurisdiction over the dispute encompassed by the agreement. An arbitration agreement is,
therefore, not an automatic bar to legal proceedings in ordinary courts. Should a party
institute proceedings in a competent court, in spite of the arbitration agreement, the defendant
has two options:
(a) to apply for a stay of the proceedings in terms of section 6. This application must be
brought before the delivery of any pleadings by the defendant or the taking of any other step
in the proceedings; or
Conress (Pty) Ltd v Gallic Construction (Pty) Ltd 1981 (3) SA 73 (W)
(b) to pray in a special plea in the nature of a dilatory plea for the stay of the proceedings
pending the final determination of the dispute by the appointed arbitrator.
Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C)
Stocks Construction (OFS) (Pty) Ltd v Metter-Pingon (Pty) Ltd 1978 (4) SA 35 (T)
GK Breed (Bethlehem) (Edms) Bpk v Martin Harris & Seuns (OVS) (Edms) Bpk 1984 (2)
SA 66 (O)
Exception: A party cannot except to a claim brought in a court of law on the grounds that the
issue must be tried by an arbitrator. This is the position even if the existence of the arbitration
clause appears from the plaintiff’s particulars of claim.
Parekh v Shah Jehan Cinemas (Pty) Ltd 1980 (1) SA 301 (D)
A stay of action for purposes of arbitration will not be granted unless there is a genuinely
triable issue between the parties.
Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221 (C)
As to the general approach to an application for a stay of proceedings, see:
Altech Data (Pty) Ltd v MB Technologies (Pty) Ltd 1998 (3) SA 748 (W)
[Page 33]
Onus: A party who wishes 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) at 567; 1998 (4) SA 606
(C) at 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) SA 498 (A)
Universiteit van Stellenbosch v JA Louw (Edms) Bpk 1983 (4) SA 321 (A)
Stocks Construction (OFS) (Pty) Ltd v Metter-Pingon (Pty) Ltd 1980 (1) SA 507 (A)
(c) that there exists a dispute between the parties, which dispute must be demarcated in
the special plea.
Parekh v Shah Jehan Cinemas (Pty) Ltd 1980 (1) SA 301 (D) at 306
Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221 (C)
Withinshaw Properties (Pty) Ltd v Dura Construction Co (SA) (Pty) Ltd 1989 (4) SA 1073
(A)
It is not necessary for the defendant to allege a readiness or willingness to arbitrate;

and
Stanhope v Combined Holdings & Industries Ltd 1950 (3) SA 52 (E)
(d) that all the preconditions contained in the agreement for the arbitration have been
complied with.
Richtown Construction Co (Pty) Ltd v Witbank Town Council 1983 (2) SA 409 (T)
Santam Insurance Ltd v Cave 1986 (2) SA 48 (A)
Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T)
Onus: The party resisting the stay of court proceedings bears the onus (which is not easily
discharged) to convince the court that, due to exceptional circumstances, the stay should be
refused. In other words, courts will enforce an agreement to arbitrate unless there are
compelling reasons for them to order otherwise.
Polysius (Pty) Ltd v Transvaal Alloys (Pty) Ltd 1983 (2) SA 630 (W)
Transvaal Alloys (Pty) Ltd v Polysius (Pty) Ltd 1983 (2) SA 653 (T)
Altech Data (Pty) Ltd v MB Technologies (Pty) Ltd 1998 (3) SA 748 (W)
Termination: An arbitration agreement can be terminated only by the consent of all the
parties, unless the arbitration agreement itself provides otherwise. This means that the
cancellation of the contract pursuant to a breach does not terminate the operation of the
arbitration clause.
Arbitration Act 42 of 1965 s 3(1)
Gardens Hotel (Pty) Ltd v Somadel Investments (Pty) Ltd 1981 (3) SA 911 (W)
The cancellation of a contract brings to an end its primary obligations but does not
necessarily terminate the arbitration clause.
Atteridgeville Town Council v Livanos t/a Livanos Brothers Electrical 1992 (1) SA 296 (A)
Invalidity of the arbitration agreement: If the arbitration agreement itself is alleged to be void
and the arbitrator’s alleged jurisdiction is based solely on that agreement, the arbitrator has no
jurisdiction to consider the invalidity of the agreement or the question of jurisdiction.
Van Heerden v Sentrale Kunsmis Korp (Edms) Bpk 1973 (1) SA 17 (A)
[Page 34]
Pleadings in arbitration proceedings: The Arbitration Act does not prescribe pleadings for
arbitration proceedings. Arbitration proceedings may be held without any pleadings, by virtue
of an oral formulation of the issues or in terms of a stated case prepared by all the parties. If
the arbitration proceedings are to be conducted in a formal manner, the parties normally agree
upon the exchange of pleadings. The pleadings usually take the form of court pleadings.
The award: The award of an arbitrator is a final adjudication of the dispute between the
parties and the award can be raised in a plea of res iudicata. Any award (including a foreign
award) may, on application to a high court of competent jurisdiction, be made an order of
court and will then be enforceable as such. Although, as a general rule, only a final award
will be enforced, this rule is dependent upon the terms of the arbitration contract.
Arbitration Act 42 of 1965 s 31(1)
Stocks & Stocks (Cape) (Pty) Ltd v Gordon NO 1993 (1) SA 156 (T) overruling
Blue Circle Projects (Pty) Ltd v Klerksdorp Municipality 1990 (1) SA 469 (T)
Irish & Co Inc (now Irish & Menell Rosenberg Inc) v Kritzas 1992 (2) SA 623 (W)
Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T)
Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977
Seton Co v Silveroak Industries Ltd 2000 (2) SA 215 (T)
For it to be binding, the award must fall within the arbitrator’s area of competence as defined
in the agreement.
Kroon Meule CC v Wittstock t/a JD Distributors; Wittstock t/a JD Distributors v De Villiers

1999 (3) SA 866 (E)
The rules applicable to the interpretation of a judgment apply to the interpretation of an

arbitrator’s award.
Frankel Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc [1996] 2 All
SA 495 (A) at 503–504; 1996 (3) SA 355 (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. Inasmuch as the defendant disputes the plaintiff’s claim and has, 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 : SPECIAL PLEAS]
[Page 35]
Architects
ARBITRATION
General: The Architectural Profession Act 44 of 2000 applies to a number of 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 2000 s 18
Since it is an offence to practise if not registered, it is safe to assume that an unregistered

person will not be able to claim remuneration for work done. The Act provides that
regulations may be made containing guideline professional fees. It no longer provides that an
architect is entitled, in the absence of an agreement with a particular client, to the fees
prescribed in the tariff.
Architectural Profession Act 44 of 2000 s 34
The nature of the relationship between an architect and the employer is not one of service but
of work.
Marais v Bezuidenhout 1999 (3) SA 988 (W)
Fees: In order to recover fees for professional services rendered, an architectural professional
must allege and prove:
(a) that he or she is a registered architectural professional;
(b) the mandate and its terms;
Esbach v Steyn 1975 (4) SA 503 (A)

(c) the completion of the mandate according to its terms and in a proper and workmanlike
manner;
Nicolaides v Skordis 1973 (2) 730 (N)
Maw v Keith-Reed 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. The undertaking may be
express or implied. If nothing was said, the implication may be that fees would be payable in
terms of the guidelines. If in issue, the onus rests upon the plaintiff to prove that nothing was
said about fees.
Eaton & Louw v Arcade Properties (Pty) Ltd 1961 (4) SA 233 (T); 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 in terms of the building contract. The effect is that a
proper payment certificate is equivalent to an acknowledgement of debt signed by the
employer.
Smith v Mouton 1977 (3) SA 9 (W)
Rocade Developments (Pty) Ltd v Van Vüren & Trathen (Pty) Ltd 1997 (3) SA 494 (W) at
503
[Page 36]
In addition to any express authority, the professional has implied authority to do whatever is
normally and reasonably incidental to the performance of that which he or she has been
employed to do in the course of the contract.
Smith v Mouton 1977 (3) SA 9 (W) at 18
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) 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 that was done 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.
Mouton v Smith 1977 (3) SA 1 (A)
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) par 37
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, for
cancellation of the contract or fraud.
Thomas Construction (Pty) Ltd (in liq) v Grafton Furniture Manufacturers (Pty) Ltd 1988 (2)
SA 546 (A) at 562
A negligent or innocent misrepresentation by the contractor relating to the issuing of the

certificate is not a defence to a certificate.
Ocean Diners (Pty) Ltd v Golden Hill Construction CC 1993 (3) SA 331 (A) at 340E–G,
344B–G
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. The
building contract, which authorises the architect to issue the certificate, need not be attached
to the provisional sentence summons.
LTA Construction Ltd v KwaZulu-Natal Provincial Administration [1997] 1 All SA 503 (N);
1997 (1) SA 633 (N)
The certificate is often a condition precedent for 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) SA 121 (N)
Smith v Mouton 1977 (3) SA 9 (W) contains a summary of the rules relating to certificates,
which rules include the following:
(a) The architect is nominated by the employer and in issuing certificates acts as the agent
of the employer. The architect does not act as a quasi arbitrator.
Universiteit van Stellenbosch v JA Louw (Edms) Bpk 1983 (4) SA 321 (A)
[Page 37]
(b) The employer is bound by the act of the architect in issuing certificates. The signing
of a certificate is tantamount to the signing of an acknowledgement of debt.
(c) As a general rule, an employer may not dispute the correctness of a final certificate.
Ocean Diners (Pty) Ltd v Golden Hill Construction CC 1993 (3) SA 331 (A)
(d) The employer is bound to pay in accordance with the tenor of an interim certificate
issued in terms of the contract. 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) SA 344 (A)
Shelagatha Property Investments CC v Kellywood Homes (Pty) Ltd; Shelfaerie Property

Holdings CC v Midrand Shopping Centre (Pty) Ltd 1995 (3) SA 187 (A)
The architect is not entitled to bind the contractor by issuing a certificate reflecting an amount
due by the contractor to a sub-contractor, because the architect is not the contractor’s agent.
Cone Textiles (Pvt) Ltd v Mather & Platt (SA) (Pty) Ltd 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 (2) SA 1 (A)
Negligence on the part of the architectural professional gives rise to a claim for breach of
contract and not to a delictual claim.
In an action for damages, the employer must allege and prove:
(a) the mandate;
(b) its breach;
(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 concerning the issuing of a certificate.
Randcon (Natal) (Pty) Ltd v Florida Twin Estates (Pty) Ltd 1973 (4) SA 181 (D)
Extended liability: Architects and quantity surveyors may, in terms of professional

regulations, 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) SA 710 (A)
[Page 38]
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 sketch-plans 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.
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].
[Page 39]
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 said 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 said 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].
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
MALICIOUS PROSECUTION
POLICE
STATE LIABILITY
VICARIOUS LIABILITY
Parties: For the liability of the State for an unlawful arrest or detention, see:
Minister van Polisie v Gamble 1979 (4) SA 759 (A)
An arrest or detention must be constitutionally justified.
1996 Constitution s 35(1) and (2)
Minister of Correctional Services v Kwakwa [2002] 3 All SA 242 (A); 2002 (4) SA 455
(SCA)
Tobani v Minister of Correctional Services NO [2000] 2 All SA 318 (SE)
Mistry v Interim National Medical & Dental Council of South Africa [1997] 3 All SA 519
(D)
A breach of constitutional duties does not give rise to a claim for additional damages.
Fose v Min of Safety & Security 1997 (3) SA 786 (CC)

to delictual claims.
Cause of action: The cause of action in respect of unlawful arrest and detention is the actio
iniuriarum. It has, in the present context, certain special features which will be dealt with
below.
Whittaker v Roos & Bateman 1912 AD 92
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A)
[Page 40]
Wrongfulness: An arrest or detention is prima facie wrongful and unlawful. It is, therefore,
not necessary to allege or prove wrongfulness or unlawfulness. It is for the defendant to
allege and prove the lawfulness of the arrest or detention.
Brand v Minister of Justice 1959 (4) SA 712 (A) at 714
Minister of Law and Order v Hurley 1986 (3) SA 568 (A) at 587–589
Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A)
Stambolie v Commissioner of Police 1990 (2) SA 369 (ZSC)
Lombo v African National Congress [2002] 3 All SA 517 (SCA); 2002 (5) SA 668 (SCA) at
par 32
Thus, where police have arrested and detained a person, once the arrest and detention are
admitted, the onus of proving lawfulness rests on the State.
Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk)
An arrest without a warrant is lawful if, at the time of the arrest, the arresting officer had a
reasonable belief that the plaintiff had committed a schedule-one offence. The defendant has
to show not only that the arresting officer suspected the plaintiff of having committed an
offence, but that the officer reasonably suspected the plaintiff of having committed a
schedule-one offence.
Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk)
Manqalaza v MEC for Safety & Security, Eastern Cape [2001] 3 All SA 255 (Tk)
If the arrest took place pursuant to a warrant, the onus of proving wrongfulness of the arrest
rests upon the plaintiff.
Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie Noord-Transvaal 1972
(1) SA 376 (A) at 394
Minister van Polisie v Goldschagg 1981 (1) SA 37 (A)
A warrant in the proper form and issued by a duly authorised official would, for the arresting
officer, provide a complete defence.
Divisional Commissioner of SA Police Witwatersrand Area v SA Associated Newspapers

Ltd 1966 (2) SA 503 (A)
Prinsloo v Newman 1975 (1) SA 481 (A)
Once there is a lawful detention, that is, a detention by virtue of a court order, the
circumstances of the arrest leading to such detention cannot make the detention unlawful.
Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A); 1996 (1) SACR 314 (SCA)
Grootboom v Minister van Justisie [1997] 3 All SA 51 (SE)
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 (2) SA 503 (A) at 883–884
Although a magistrate is not called upon to consider a prosecutor’s conclusions with regard to
reasonable grounds for suspicion, it does not mean that the magistrate must not exercise a
discretion in deciding whether 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 (3) SA 877 (A) at 883–884
This statement is subject to the provisions of the right to just administrative action entrenched
in the Bill of Rights.
1996 Constitution s 33
[Page 41]
The principle that the defendant must justify an arrest without a warrant is also applicable
where the arrest allegedly took place in terms of a statutory authority.
Minister of Law and Order v Hurley 1986 (3) SA 568 (A)
Animus iniuriandi : In spite of the fact that the cause of action is the actio iniuriarum, a
plaintiff need not allege and prove the presence of animus iniuriandi – that is, an intention to
injure or an awareness of unlawfulness. Further, a defendant cannot escape liability by
alleging and proving its absence. The intention to arrest or detain suffices.
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 154–157
Tödt v Ipser 1993 (3) SA 577 (A) at 586G–I
An honest belief in the legality of the arrest or detention is no defence.
Tsose v Minister of Justice 1951 (3) SA 10 (A) at 18
Smit v Meyerton Outfitters 1971 (1) SA 137 (T)
Ramsay v Minister van Polisie 1981 (4) SA 802 (A) at 818
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 claim under the lex
Aquilia must be alleged and proved.
Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N); 1998 (2) SA 319 (N)
Bentley and another v McPherson [1999] 2 All SA 89 (E); 1999 (3) SA 854 (E)
Defences: Apart from placing the plaintiff’s factual allegations in issue, the only defence
available is justification – that is, that the arrest was lawful.
Use of force:
See : ASSAULT
Irregular warrant: Any member of the SA Police Services who acts under a warrant or
process which is bad in law on account of a defect in the substance or form thereof, if he or
she has no knowledge that such warrant or process is bad in law and regardless of whether
such defect is apparent on the face of the warrant or process, is exempt from liability in
respect of such act as if the warrant or process were valid in law.
South African Police Service Act 68 of 1995 s 55(1)
Arrest of wrong person: Any such member who, in terms of a warrant of arrest, is authorised
to arrest a person and who, in the reasonable belief that he or she is arresting such person
arrests another, is exempt from liability in respect of such wrongful arrest. Further, any
member who is called upon to assist in making such an arrest, or who is required to detain a
person so arrested, and who reasonably believes that the said person is the person whose
arrest has been authorised by the warrant of arrest is likewise exempt from liability in respect
of such assistance or detention.
Alternative claims: Wrongful arrest can be relied on as an alternative to malicious arrest.

However, the two causes of action should, as a matter of pleading, be kept separate and
distinct.
Tödt v Ipser 1993 (3) SA 577 (A) at 587A–C
See : MALICIOUS PROSECUTION
[Page 42]
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 said policemen were acting within the course and scope of their
employment as policemen of the South African Police Services.
4. As a result 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 (3) SA 577 (A) at 585–586.]
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 magistrate’s court.
6. Notwithstanding the foregoing, the defendant wrongfully, wilfully and with

the intention to injure, obtained a judgment in the Cape Town magistrate’s court (based on
the aforesaid judgment in the Bellville magistrate’s 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. By virtue of the foregoing, the plaintiff suffered grave distress and

inconvenience, was severely humiliated and was gravely injured in her dignity.
Claim – unlawful detention of goods
[From Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N); 1998 (2) SA
319 (N).]
1. At all times material hereto, the plaintiff was and is not liable to any of the
defendants in respect of customs duty, value added tax and accordingly, the seized goods
were and are not liable to forfeiture, seizure or detention in terms of the provisions of the
Customs Act 91 of 1964.
[Page 43]
2. The second and third defendants contend that:
2.1 the plaintiff’s name appears upon certain bills of lading in respect of other
shipments of goods (hereinafter referred to as “the other goods”) as the notify parties;
2.2 by virtue of being named as a notify party in the said bills of lading, the
plaintiff was deemed to be an importer of the other goods and as defined by section 1 of Act
91 of 1964 inasmuch as the plaintiff was a person beneficially interested in the other goods;
alternatively,
2.3 the plaintiff was itself a person who was so beneficially interested as defined
by the said section 1 Act 91 of 1964; further alternatively,
2.4 the plaintiff acted on behalf of a person who was so beneficially interested as
defined by the said section 1 of Act 91 of 1964.
3. The plaintiff disputes the correctness of the contentions of the second and third
defendants and avers that:
3.1 as a notify party whose name appeared on the bills of lading it was not a
person beneficially interested in the other goods so imported;
3.2 in any event, it was not a party to the transaction nor had any beneficial
interest in the other goods so imported within the meaning of the definition of “importer” in
section 1 of Act 91 of 1964.
4. In the premises the second, alternatively the third, alternatively the second and
third defendants acting through their duly authorised servants or agents wrongfully and
unlawfully seized and thereafter detained the said goods.
5. In the premises, the said goods are not liable to forfeiture within the meaning
of section 87(1) of Act 91 of 1964.
6. As a consequence the plaintiff has suffered damages in the sum of R14 885
340 and will continue to suffer damages in an amount of not less than R1,5 million per month
reckoned from 23 November 1996 to date of judgment.
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 on [date] at [place] by [name] in the
presence of the arresting officer.
Assault
Constitutional principles: The State has a constitutional obligation to protect individuals

from violence and 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)
Van Eeden (formerly Nadel) v Minister of Safety and Security [2002] 4 All SA 346 (SCA);
2003 (1) SA 389 (SCA)

Cause of action: An assault is a delict affecting a person’s bodily integrity. The cause of
action is, therefore, the actio iniuriarum.
Mabaso v Felix 1981 (3) SA 865 (A)

Bennett v Minister of Police 1980 (3) SA 24 (C) at 35
[Page 44]
In the case of a non-contumacious act (for example, an unauthorised surgical operation), the
cause of action is probably the actio legis Aquiliae – in which event, actual damages must be
claimed.
The case-law is not clear or consistent on this point.
Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T)
Wrongfulness: Physical interference is usually wrongful. It is for the plaintiff to establish

physical interference.
Wrongfulness is (normally) a legal issue which does not carry any onus.
Mabaso v Felix 1981 (3) SA 865 (A) at 874
The allegation of an “assault” implies wrongfulness.
Bennett v Minister of Police 1980 (3) SA 24 (C) at 34–35
Facts which indicate, prima facie and objectively, a wrongful act must be alleged and proved
by the plaintiff.
Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A)
Onus: Earlier doubts as to who bears the onus of proof have now been clarified.
Cf Matlou v Makhubedu 1978 (1) SA 946 (A)
The onus of alleging and proving an excuse for, or justification of, the assault rests on the
defendant. In Mabaso v Felix 1981 (3) SA 865 (A), it was suggested that the pleadings may
be so formulated as to place the onus on the plaintiff but the author cannot conceive of such a
situation and the suggestion cannot be reconciled with later case-law.
Cf Minister of Law and Order v Monti 1995 (1) SA 35 (A) at 39G–I
Parties: A defendant may be vicariously liable for an assault committed by another. A typical
example is the liability of the State for an assault committed by a policeman in the course of
his employment. In such a case, the relevant Minister is the nominal defendant representing
the State and the policeman involved is usually cited as the second defendant.
See : STATE LIABILITY

The State remains liable for the acts of a policeman where the assault was committed during
an arrest performed by the policeman pursuant to the exercise of a discretion to arrest.
Minister of Law and Order v Ngobo 1992 (4) SA 822 (A)
Animus iniuriandi : There can be no assault without an intention to injure,
Brown v Hoffman 1977 (2) SA 556 (NC)
and an allegation of assault implies such an intention (animus iniuriandi).
Bennett v Minister of Police 1980 (3) SA 24 (C) at 34–35
Groenewald v Groenewald [1998] 2 All SA 335 (A); 1998 (2) SA 1106 (SCA) at 1111–1112
It is for the defendant to allege and prove facts showing a lack of animus iniuriandi. Lack of
knowledge of wrongfulness is no defence.
Bennett v Minister of Police 1980 (3) SA 24 (C)
Damages: General damages need not be particularised.
Prinsloo v Du Plooy 1952 (4) SA 219 (O)
[Page 45]
Patrimonial damages can be claimed (even in the absence of contumelia) but must be
particularised.
Brown v Hoffman 1977 (2) SA 556 (NC)
Uniform rule 18(10)
A breach of constitutional duties does not give rise to a claim for additional damages.
Fose v Min of Safety & Security 1997 (3) SA 786 (CC)
Defences: If the defence is one of justification, it is inadvisable for the defendant to admit in
her or his plea to an “assault” on the plaintiff. The defendant should rather use a neutral word,
such as “striking”, which does not imply wrongfulness or animus iniuriandi.
Consent: Consent by the plaintiff to the act complained of falls to be decided according to

the principles of volenti non fit iniuria.
See : VOLENTI NON FIT INIURIA
Self-defence: The defendant must plead and prove:
(a) an unlawful attack, threatened or real, by the plaintiff;

(b) reasonable grounds for believing that the defendant was in physical danger;
(c) that the force used was, in the circumstances, necessary to repel the attack and
commensurate with the plaintiff’s aggression.
Mabaso v Felix 1981 (3) SA 865 (A) at 874
Minister of Law and Order v Milne 1998 (1) SA 289 (W) at 293
S v Makwanyane 1995 (3) SA 391 (CC) at par 138
Provocation: Provocation may mitigate damages but cannot justify an assault.
Winterbach v Masters 1989 (1) SA 922 (E)
Parental or quasi-parental authority: A parent has, at common law, the right to inflict
moderate and reasonable corporal punishment upon a child. The extent to which this right has
been affected by the 1996 Constitution is unclear. The relationship between a teacher and
pupil in respect of moderate and reasonable corporal punishment was similar.
Hiltonian Society v Crofton 1952 (3) SA 130 (A)
Cf Mabaso v Felix 1981 (3) SA 865 (A) at 876
Legislation (possibly also the Bill of Rights) now limits the teacher’s right to inflict corporal
punishment, and a breach of any provision prohibiting or limiting this right may expose a
teacher to a claim for damages for assault on the basis that the he or she exceeded a statutory
authority or acted in breach of a statutory prohibition.
Christian Education SA v Minister of Education 2000 (4) SA 757 (CC)
Ex parte Attorney-General, Namibia: In re Corporal Punishment by Organs of State 1991 (3)

SA 76 (NmSC)
Necessity: The defence of necessity may be relied on where force was necessary in order to
effect a lawful arrest or to prevent an escape from arrest.
Ex parte Minister of Safety and Security: In re: S v Walters 2002 (4) SA 613 (CC) par 53 and
54
Govender v Minister of Safety & 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 (4) SA 629 (A)
Malahe v Minister of Safety and Security [1998] 4 All SA 246 (A); 1999 (1) SA 528 (SCA)
[Page 46]
The Criminal Procedure Act 51 of 1977 provides that, if any person authorised under the Act
to arrest or to assist in arresting another 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, in order to effect the arrest, use such force as may in the
circumstances be reasonably necessary to overcome the resistance or to prevent the person
concerned from fleeing.
Criminal Procedure Act 51 of 1977 s 49(1)
The defendant must allege and prove:
(a) that the defendant acted lawfully; or
(b) that the defendant had reasonable grounds for suspecting the commission of an
offence by the plaintiff, on which grounds the defendant was by law entitled to arrest the
plaintiff;
(c) that the defendant attempted to arrest in a manner prescribed by law;
(d) that the plaintiff attempted to prevent or escape arrest; and
(e) that the force employed by the defendant was reasonably necessary to bring about the
arrest.
The rules regarding the use of force are these:
(a) Where arrest is called for, force may be used only where it is necessary in order to
carry out the arrest.
(b) Where force is necessary, only the least degree of force reasonably necessary to carry
out the arrest may be used.
(c) In deciding what degree of force is both reasonable and necessary, all the
circumstances must be taken into account, including the threat of violence the suspect poses
to the arrester or others, and the nature and circumstances of the offence the suspect is
suspected of having committed, the force being in proportion to all these circumstances.
(d) The shooting of a suspect solely in order to carry out an arrest is permitted in very
limited circumstances only.
(e) Ordinarily, such shooting is not permitted unless the suspect poses a threat of violence
to the arrester or others, or 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 carrying out the arrest, whether at that time or later.
(f) These limitations in no way detract from the rights of an arrester attempting to carry
out an arrest to kill a suspect in self-defence or in defence of any other person.
Ex parte Minister of Safety and Security: In re: S v Walters 2002 (4) SA 613 (CC)
Medical treatment: It is not advisable to allege that medical treatment given without the
informed consent of the patient amounted to an assault.
Broude v McIntosh 1998 (2) SA 555 (SCA) at 562–563; 1998 (3) SA 60 (SCA) at 67–68
[Page 47]
PRECEDENTS
1. On [date] at [place], the first defendant unlawfully assaulted the plaintiff by

[for example, 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. As a result 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. As a result 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 inasmuch as 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) at 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
burnt-down beer hall;
(ii) he/they shot the plaintiff from behind and in the back;
(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 in the vicinity of a

beer hall at Wood Street, Grahamstown a policeman shot the plaintiff with birdshot;
(ii) that subsequent to the plaintiff being shot as aforesaid, 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;
[Page 48]
(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, insofar 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 – as a result 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 co-detainees whilst in lawful custody and that he, as a result of
his injuries, died on 29 August 1997.
2. The plaintiff averred that 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 or Execution
See : MALICIOUS PROSECUTION
Attorneys
General: The relationship between an attorney and client is based on a contract of mandate.
Mort NO v Chiat [2000] 2 All SA 515 (C); 2001 (1) SA 464 (C)
It places fiduciary obligations upon the attorney.
Incorporated Law Society, Transvaal v Meyer 1981 (3) SA 962 (T) at 970
Eksteen v Van Schalkwyk 1991 (2) SA 39 (T)
An attorney has a duty of care towards the client, the court, the opponent and other third
parties. This duty does not readily admit of a clear definition.
Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos 1985 (4) SA 341
(T)
Pienaar v Pienaar 2000 (1) SA 231 (O)
Heg Consulting Enterprises (Pty) Ltd v Siegwart 2000 (1) SA 507 (C)
Pretorius v McCallum 2002 (2) SA 423 (C)
[Page 49]
Fees: An attorney who wishes to claim a fee from the client must allege and prove the
following:
(a) the contract (mandate);
(b) due and proper performance of the contract;
(c) an agreement as to the amount payable;
Kruger v Resnik 1955 (3) SA 378 (A)
Mnweba v Maharaj [2001] 1 All SA 265 (C)
(d) in the absence of an express term, the reasonable remuneration for the work done in
terms of an implied (tacit) term.
Taxation of an attorney and client bill is not a prerequisite for legal proceedings for the
recovery of fees.
Chapman Dyer Miles & Moorhead Inc v Highmark Investment Holdings CC [1997] 4 All SA
247 (D); 1998 (3) SA 608 (D)
Unless the fees have been agreed upon, the client may, by way of a special plea (which is
dilatory in nature), require the taxation of the bill. Only after taxation can the case then
proceed.
Benson v Walters 1984 (1) SA 73 (A)
Practitioners may not practice or act as practitioners on their own account or in partnership
unless they are in possession of a fidelity fund certificate. Practitioners who practice 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 1979 s 41
While it is not for the taxing master to decide the question of whether the client is liable to
the attorney, the taxing master may, during taxation, consider whether there is evidence to
show that the work was done and may disallow fees claimed for work not done.
Botha v Themistocleous 1966 (1) SA 107 (T)
Composting Engineering (Pty) Ltd v The Taxing Master 1985 (3) SA 249 (C)
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) at 287
Pactum de quota litis : An agreement to share the proceeds of a lawsuit is not necessarily
champertous and contrary to public policy. There is a distinction between an acceptable and
an objectionable pactum de quota litis. When a litigant is not in a financial position to fund
the litigation completely, such a cession agreement may be upheld as valid.
Headleigh Private Hospital (Pty) Ltd t/a Rand Clinic v Soller & Manning [1998] 4 All SA
334; 2001 (4) SA 360 (W)
Contingency Fees Act 66 of 1997
The mandate: An instructing attorney may, by instructing a correspondent, incur liability to

the correspondent.
Truter, Crous, Wiggill & Vos v Udwin 1981 (4) SA 68 (T)
The fact that an attorney has been appointed in a deed of sale to attend to the conveyancing
does not make the attorney a party to that agreement nor can the attorney become a party to it
by accepting the so-called benefit.
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A)
[Page 50]
The scope of the mandate depends on its express, tacit or implied terms. A mandate to
institute an action or to receive payment of the amount claimed does not necessarily imply a
mandate to settle the claim.
Goosen v Van Zyl 1980 (1) SA 706 (O)
Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A)
Hlobo v Multilateral Motor Vehicle Accidents Fund [2001] 1 All SA 322 (A); 2001 (2) SA
59 (SCA)
As a general 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 liq) 1968 (1) SA 717 (A)
Provisional sentence: An attorney is entitled to claim for a provisional sentence in respect of

an attorney and (own) client bill of costs, provided that the attorney can rely on a written
mandate signed by the client coupled with a duly taxed attorney and client bill.
Truter, Crous, Wiggill & Vos v Udwin 1981 (4) SA 68 (T) at 73
Gelb, Benjamin & Kaplan v Melzer 1987 (1) SA 917 (T)
Fidelity Guarantee Fund: The Attorneys, Notaries and Conveyancers Fidelity Guarantee

Fund was created by Chapter II of the Attorneys Act 53 of 1979. Its 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,
(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 where the attorney or an employee has acted as estate agent.
Attorneys Act 53 of 1979 s 26(a)
Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers Fidelity
Guarantee Fund 1981 (3) SA 539 (W)
Industrial & Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control
[1996] 4 All SA 295 (A) at 297; 1997 (1) SA 136 (SCA)
The Fund is also liable for pecuniary loss suffered as a result 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 1979 s 26(b)
In order to succeed, it is probably unnecessary to show that a fiduciary relationship existed

between the plaintiff and the attorney.
Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers Fidelity
Guarantee Fund 1981 (3) SA 539 (W)
Contra: British Kaffrarian Savings Bank Society v Attorneys, Notaries & Conveyancers
Fidelity Guarantee Fund Board of Control 1978 (3) SA 242 (E)
[Page 51]
An action cannot be instituted against the Fund unless the claimant has exhausted all
available legal remedies against the practitioner. The board may waive this requirement.
Basson v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control
1957 (3) SA 490 (C)
Peffers NO v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control
1965 (2) SA 53 (C)
Attorneys Act 53 of 1979 s 49(1)
No-one can claim against the Fund, without prior written notice no more than three months
after the claimant becomes aware of the theft or, by 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 (2) SA 577 (C) at 584–585
The claim for reimbursement is limited to the amount actually 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 1979 ss 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.
Negligence: The liability of an attorney towards a client for damages resulting from that
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 diligence
expected of an average practising attorney. An attorney may be held liable for negligence
even if he of she committed an error of judgement on matters of discretion, if the attorney
failed to exercise the required skill, knowledge and diligence.
Bruce NO v Berman 1963 (3) SA 21 (T)

Mouton v Mynwerkersunie 1977 (1) SA 119 (A)
Slomowitz v Kok 1983 (1) SA 130 (A)
Rampal (Pty) Ltd v Brett, Wills & Partners 1981 (4) SA 360 (D)
Bouwer v Harding [1997] 3 All SA 415 (SE); 1997 (4) SA 1023 (SE)
Jowell v Bramwell-Jones 1998 (1) SA 836 (W)
Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (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;
Dhooma v Mehta 1957 (1) SA 676 (D)
(e) that the damages were within the contemplation of the parties when the contract was
concluded.
Bruce NO v Berman 1963 (3) SA 21 (T)
[Page 52]
Extension of liability: A private company may conduct an attorney’s practice if, inter alia,
the memorandum of association provides that all present and past directors shall be liable
jointly and severally with the company for the company’s debts and liabilities contracted
during their periods of office.
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 towards a third party in respect of a negligent
misrepresentation made to that party. The third party will have to 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 (3) SA 184 (T)
Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos 1985 (4) SA 341
(T)
See : 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].
3. Plaintiff duly acted as the defendant’s attorney in the aforesaid 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 the sum of [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 in the amount of [amount] [detail].
6. Despite demand, the defendant has failed to pay the aforesaid sums to
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
therein 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].
[Page 53]
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 by him 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] specifically

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.
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 between them
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 an amount of
[amount] to [X].
9. Before [X] could repay the aforesaid 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. As a result of the defendant’s incorrect and negligent advice, the plaintiff
suffered damages in the amount of [amount]. [Detail]
Claim – against fidelity fund
1. Defendant is the Attorneys, Notaries and Conveyancers Fidelity Guarantee

Fund, established in terms of section 8 of Act 19 of 1941 read with 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].
[Page 54]
3. During or about the period [state period], the said [A] [or his clerk or servant]
stole the said money.
4. As a result 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 or refused to pay the aforesaid sum to the plaintiff as it was
obliged to do.
Special plea – of non-taxation
1. Defendant admits that the plaintiff performed certain professional services as

alleged.
2. Defendant denies that the amount of [Rx] claimed by the plaintiff constitutes a
fair and reasonable fee for the services rendered, or that the amount of [amount] allegedly
disbursed by the plaintiff constitutes reasonable disbursements in respect of the services
rendered.
3. Plaintiff has not presented a bill for taxation.
WHEREFORE defendant prays that plaintiff’s action be stayed, pending the taxation of his
bill of costs.
Auctions
ALIENATION OF LAND
ESTATE AGENTS
General: An auction sale is regulated by the conditions of the auction, and the party who bids
at such a sale is deemed to agree to those conditions.
Pledge Investments (Pty) Ltd v Kramer NO: In re Estate Selesnik 1975 (3) SA 696 (A)
Slabbert, Verster & Malherbe (Noord Vrystaat) (Edms) Bpk v Gellie Slaghuis (Edms) Bpk
1984 (1) SA 491 (O)
Frank R Thorold (Pty) Ltd v Estate late Beit 1996 (4) SA 705 (SCA)
The auctioneer may either act as principal or as agent. If it acts as principal, it may enforce
the contract in its own name. It would otherwise be for the seller to do so.
SWA Amalgameerde Afslaers (Edms) Bpk v Louw 1956 (1) SA 346 (A)
Certain of the conditions and terms of an auction may relate to the auctioneer, whereas others
may relate to the principal only.
Faure v Joubert NO 1979 (4) SA 939 (A)
The liability of the auctioneer depends on whether it acted as principal or as agent.
Alienation of land: In general, an alienation of land must be contained in a deed of

alienation, which must be signed by the parties thereto 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 1981 ss 2 and 3
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].
[Page 55]
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].
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 non-payment.
5. Plaintiff has been unable to obtain payment of any portion of the amount from
the purchaser.
6. As a consequence of the defendant’s aforesaid breach, the plaintiff sustained

damage in the amount of [Rx] made up as follows:
[detail]
• Bailment
• Bankers
• Bills of Exchange
• Breach of Contract
• Breach of (Marriage) Promise
• Bribery
• Building Contracts
Bailment
See : DEPOSIT
Bankers
Related subjects: CHEQUES
General: The relationship between a client and a banker is one of mandate, one of debtor and
creditor, and not a fiduciary one, although some of the duties of a banker are fiduciary in
nature.
ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA)
Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) at 288
If a client issues a cheque, the banker must pay according to its tenor (provided the client has
sufficient funds in the relevant account) and is entitled to debit the account of the client.
Big Dutchman (SA) (Pty) Ltd v Barclays National Bank Ltd 1979 (3) SA 267 (W) at 280
Volkskas Bpk v Johnson 1979 (4) SA 775 (C)
Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C)
Should the banker breach this contract, it may be held liable for damages resulting from such
breach. The claim is not delictual.
Volkskas Bpk v Van Aswegen 1961 (1) SA 493 (A)
Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C)
The extent of the damages depends on what was within the contemplation of the parties when
the contract was concluded. Only a businessman or trader can claim for injury to
creditworthiness. The reason for this is not clear.
Trust Bank of Africa Ltd v Marques 1968 (2) SA 796 (T)
[Page 56]
(The statement in Klopper v Volkskas Bpk 1964 (2) SA 421 (T) to the effect that damages for
contumelia can be claimed without allegations relating to a contumacious breach of contract
cannot be correct.)
See : INIURIA
The client has limited obligations towards its banker to assist the banker in performing its
mandate.
Holzman v Standard Bank Ltd 1985 (1) SA 360 (W)
Overdraft: A claim by a banker on an overdraft is simply a claim for moneys lent and
advanced, which moneys are repayable on demand.
See : INTEREST; LOANS
The banker must normally rely on terms 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 Bpk v Saunders 1997 (2) SA 192 (NC) at 203
ABSA Bank Ltd 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)
Banks often use certificates 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 (3) SA 375 (A)
Bankorp Ltd v Hendler 1992 (4) SA 375 (W)
Durr v ABSA Bank Ltd [1997] 3 All SA 1 (SCA); 1997 (3) SA 448 (SCA)
Reclaiming payment: A banker who wrongly pays a cheque to a third party may reclaim
such payment with the condictio sine causa; the condictio indebiti is inappropriate. It is
essential to establish that the third party was enriched. 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 (2) SA 279 (A)
Cf ABSA Bank Ltd v Standard Bank of SA Ltd [1997] 4 All SA 673 (SCA); 1998 (1) SA
242 (SCA)
A bank may permit its client to draw against uncleared effects and, if these are dishonoured,
the bank may reverse the credit.
(SCA)
Standard Bank of SA Ltd v Sarwan [2002] 3 All SA 49 (W)
Appropriation of payments: In the absence of an agreement to the contrary, the banker may
appropriate payments made according to the general rules.
Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liq) [1998] 1 All SA 413 (A);
1998 (1) SA 811 (A)
See : PAYMENT
Delictual liability: A bank may be liable for fraudulent or negligent misrepresentations. The
ordinary principles underlying these causes of action apply.
See : FRAUD; NEGLIGENT MISREPRESENTATION
Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A)
Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A)
(SCA)
[Page 57]
The prime example of a duty of care that does not arise from contract is the duty of a
collecting banker to the owner of a lost or stolen cheque to avoid causing the owner pure
economic loss by dealing negligently the cheque. This will be the case where the collecting
banker receives payment of a cheque from the paying banker on behalf of someone who is
not entitled to such payment. A typical case is where a cheque has been marked “not
transferable” and, in spite thereof, is credited by the collecting bank to the account of
someone other than the payee. The necessary facts to establish such duty must be alleged.
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) at 801
See : CHEQUES
The duty is owed to the “true” owner of the cheque 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,
and, in order to become owner, delivery with the intention of transferring ownership has to be
established.
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 (3) SA 556 (A) at 568–
570
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) at 1164B–E
This includes proof of damages, which damages 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 recognised that bankers are professionals who render
professional services.
Powell v ABSA Bank Ltd t/a Volkskas Bank [1997] 4 All SA 231 (SE) at 241; 1998 (2) SA
807 (SE) at 818
Columbus Joint Venture v ABSA Bank Ltd [2002] 1 All SA 105 (SCA); 2002 (1) SA 90
(SCA)
Collecting a cheque on behalf of a person not entitled to it is prima facie negligent.
Coetzee v ABSA Bank Bpk 1997 (4) SA 85 (T) at 90
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];
[Page 58]
(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 non-payment
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 said [name] is a wholesale supplier of goods to the
plaintiff.
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 (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.
[Page 59]
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) at 602–603. 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) at 441–442; and in Energy Measurements (Pty) Ltd v
First National Bank of SA Ltd [2002] 2 All SA 396 (W); 2001 (3) SA 132 (W) at 136. There
is a stated case in Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray 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].
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 said 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 said branch, notwithstanding that the said cheque did not bear the endorsement of the
plaintiff.
4.2 Thereafter, the said 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 said cheque, which, in the premises, it was entitled to do.
4.5 Thereafter, the said 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 said cheque and that it did not deal with the said 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 said 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 aforesaid sum of
[Rx].
[Page 60]
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 said 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, the said
Mrs G:
4.2.1 received the said 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 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 said 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 aforesaid 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 out of 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 at all times act in good faith and exercise reasonable care but is not
responsible for ensuring that depositors or account-holders have lawful title to cheques
collected.
Bills of Exchange
See : BANKERS, CHEQUES
[Page 61]
Breach of Contract
See : CONTRACT: BREACH OF
Breach of (Marriage) Promise
Jurisdiction: As will be indicated, the claim may have both a delictual and a contractual
element. If a court has jurisdiction on one ground, it will also have jurisdiction in respect of
the other cause of action.
Cause of action: An engagement is a contract to marry in the future. A breach of this promise
can give rise to two causes of action based on:
(a) breach of contract; and
(b) an iniuria.
Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) at 36
There is authority to the effect that, in awarding damages, it is not necessary for a court to
distinguish in its judgment between the contractual and delictual elements but that failure to
do so may cause difficulties on appeal if the higher court wishes to interfere with the award.
Bibi v Variawa 1965 (4) SA 675 (N)
The contract: The plaintiff must allege and prove a contract to marry.
Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) at 29
In this regard, it must be alleged whether the contract was oral, in writing or tacit, whether the
parties acted personally, and where the contract was entered into.
Uniform rule 18(6)
The breach: The plaintiff must allege and prove the breach of the contract, which consists of
a refusal to proceed with the marriage.
Wrongfulness of the breach: In respect of the contractual part of the claim, unilateral
repudiation is prima facie proof of the wrongfulness of the breach. It is for the defendant to
allege and prove facts of a sufficiently serious nature justifying such repudiation. Iusta causa
is, in this context, an elastic concept and the court has a wide discretion.
Bull v Taylor 1965 (4) SA 29 (A) at 35
Krull v Sangerhaus 1980 (4) SA 299 (E)
In respect of the delictual part of the claim, the plaintiff has to allege and prove that the
breach was wrongful.
Guggenheim v Rosenbaum 1961 (4) SA 21 (W) at 35
It is, however, difficult to perceive how, in the same action, the onus in respect of the same
fact can lie on both parties. It is submitted that a breach is at least prima facie wrongful (in
the delictual sense) and that the defendant ought to justify such breach.
Animus iniuriandi : The contractual liability of the defendant does not depend on fault. In
order to succeed with the delictual claim, the plaintiff must allege and prove that the breach
was “injurious or contumelious”.
Guggenheim v Rosenbaum 1961 (4) SA 21 (W) at 35
[Page 62]
Damages: Contractual damages normally consist of the loss of the financial benefits of the
marriage as well as the actual monetary loss or expenditure reasonably incurred. As with
other contractual damages, the plaintiff can succeed only if the damages flow directly from
the breach or if the damages fell within the contemplation of the parties when the contract
was entered into.
Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W)
Delictual damages of a general nature need not be particularised. The quantum depends on
the nature and degree of contumacy.
Donations: In the event of a cancellation, the guilty party must return to the innocent party
donations made with a view to the marriage. The guilty party cannot reclaim any donations.
Van Duyn v Visser 1963 (1) SA 445 (O)
Defences: The ordinary defences available in cases of breach of contract or iniuria are

available to the defendant. Two are noted.
Invalidity of the contract: If the contract to marry is invalid, the defendant has a valid
defence. A contract with a person who was already married at the time, which contract was
entered into on the understanding that the existing marriage would be dissolved, is void as
being contra bonos mores. If the plaintiff was unaware of the defendant’s existing marriage,
an action for damages may be brought against the defendant on the ground of an iniuria.
Claassen v Van der Watt 1969 (3) SA 68 (T)
Such ignorance on the plaintiff’s part must be pleaded by the plaintiff.
Iusta causa : Repudiation can be justified by facts serious enough to interfere wholly or

partly with the aims of marriage or with its anticipated happiness. It is for the defendant to
allege and prove iusta causa.
Krull v Sangerhaus 1980 (4) SA 299 (E)
Thelemann v Von Geyso 1957 (3) SA 39 (W)
M NO v M 1991 (4) SA 587 (D)
PRECEDENTS
Claim – based on a breach of promise

1. On [date] at [place], the plaintiff and the defendant orally agreed to marry each
other within a reasonable time or on [date].
2. On [date] at [place], the defendant repudiated the said agreement by orally

refusing to proceed with the marriage or by marrying [name].
3. The repudiation was wrongful and the defendant acted animo iniuriandi by
virtue of [set out facts that indicate contumacy, such as a non-appearance at the wedding
ceremony].
4. During the existence of the engagement, the plaintiff donated to the defendant
in contemplation of the marriage the following gifts: [give particulars].
5. By virtue of the defendant’s breach of the contract, the defendant is obliged to

return the aforesaid gifts but has failed to do so.
6. As a further result of the defendant’s breach of contract, the plaintiff suffered

damages in the amount [set out] calculated as follows:
(a) loss of financial benefits of the marriage [detail];
(b) wasted expenses incurred in respect of the wedding reception [detail].
[Page 63]
7. (a) It was within the contemplation of the parties at the conclusion of the
agreement that the plaintiff would resign from her post as [set out details] a month prior to
the marriage date.
(b) Pursuant thereto, the plaintiff did resign from her post on [date].
(c) As a result of the defendant’s breach of contract, the plaintiff lost her income
for [period] in the amount of [amount].
8. Plaintiff furthermore suffered damages in the amount of [sum] by reason of

the defendant’s contumacious breach of contract whereby the plaintiff’s personal dignity and
reputation were impaired.
(a) Return of [detail gifts].
(b) Payment of [amount] being damages.
Plea – of justification to claim for a breach of promise
1. Defendant admits that he repudiated the contract to marry on [date] at [place].
2. Defendant denies that the repudiation was wrongful or contumacious.
3. Defendant pleads that the repudiation was justified because [set out facts]:
(a) at the time of the agreement to marry, the defendant believed that the plaintiff
was a chaste woman;
(b) subsequent to the agreement, the defendant ascertained that the plaintiff was in
fact not a chaste woman having lived as man and wife with [name] during [period];
(c) defendant thereupon lawfully advised the plaintiff that, in view of the
foregoing, he no longer intended to marry her.
4. Defendant admits receipt of the said gifts but denies, in the light of the
foregoing, any obligation to return them to plaintiff.
Bribery
See : AGENCY
Building Contracts
See : LOCATIO CONDUCTIO OPERIS
• Carriers
• Cession
• Cheques
• Citations
• Close Corporations
• Co-debtors
• Companies
• Compromise
• Condictio Indebiti
• Condictio ob Turpem vel Iniustam Causam • Condictio sine causa
• Conditions
• Confidential Information
• Contract
• Contract: Breach of
• Contract: Cancellation of
• Contract: Damages
• Contracts for the Benefit of Third Parties (Stipulatio Alteri) •

Contributory Negligence
• Conventional Penalties
• Copyright Infringement
• Counterclaims (Claims in Reconvention)
• Credit Agreements
• Custom and Customary Law
Carriers
Related subject: ADMIRALTY CLAIMS
DEPOSIT
EXEMPTION CLAUSES
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 and, in the absence of any term dealing
with the matter, it is assumed that the carrier has a duty to exercise reasonable care in respect
of the goods entrusted to it. The provisions of the praetor’s edict de nautis, cauponibus et
stabularis apply, as far as carriers are concerned, only in respect of carriage on water and not
by land or air.
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A)
Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A)
Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 (3) SA 42 (A)
[Page 64]
The liability of an air carrier is affected by international conventions.
KLM Royal Dutch Airlines v Hamman [2002] 3 All SA 484 (W); 2002 (3) SA 818 (W)
Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd [2001] 2 All SA 506 (W); 2001 (4) SA
211 (W)
The onus of proving the terms of the contract rests on the plaintiff. Hence, should the carrier
allege that the contract contains a term limiting that carrier’s liability, the plaintiff bears the
onus of proving otherwise.
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 767
WJ Lineveldt (Edms) Bpk v Immelman 1980 (2) SA 964 (O)
Van Deventer v Louw 1980 (4) SA 105 (O)
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 in respect of the goods entrusted to it. The carrier then bears the
onus to show that the loss or damage occurred without its fault.
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 762
Such onus arises only after the plaintiff has established that the goods have indeed been
damaged and also the extent of the loss.
Alex Carriers (Pty) Ltd v Kempston Investments (Pty) Ltd 1998 (1) SA 662 (E) at 674
Praetor’s edict: If the edict does apply, the carrier is liable without fault, unless it can
establish that the loss or damage was the result of:
(a) a damnum fatale ;
(b) vis maior ;
(c) the sole negligence of the consignor; or
(d) an inherent vice or latent defect in the goods.
Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A)
OK Bazaars 1929 Ltd v Stern and Ekermans 1976 (2) SA 521 (C) at 529
It seems that any event which is unforeseen, unexpected or irresistible and which human
foresight cannot guard against may be raised as a defence.
Gabriel v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C) at 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 (2) SA 24
(SWA)
Exemption clauses: If there is an exemption clause – for instance, if the carriage 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 in order for her or him to be able to claim damages
successfully. This usually involves, at least, an allegation and proof of gross negligence.
Essa v Divaris 1947 (1) SA 753 (A)
PRECEDENTS

which plaintiff undertook to remove and convey defendant’s household effects from
[address] to [address].
[Page 65]
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

which defendant undertook to convey certain cattle belonging to plaintiff from [place] to
[place] for [amount].
2. It was a[n 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. As a result of defendant’s breach of the aforesaid term, plaintiff has suffered

damages of [amount] calculated as follows:
[detail].
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, particulars of which are as follows:
(a) on [date] and while defendant’s vehicle was en route, major flooding took
place on the road between [place] and [place];
(b) as a result 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
Citation: Magistrates’ Courts rule 6(5)(c) requires that, where the plaintiff sues as
cessionary, the summons must state the name, address and description of the cedent at the
date of the cession, and the date of the cession.
Contract of cession: A party relying on a cession must allege and prove the contract of
cession – ie, 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) SA 252 (A)
Johnson v Inc General Insurances Ltd 1983 (1) SA 318 (A)
This is done by the production in evidence of an apparently regular and valid cession,
whereupon the evidentiary burden shifts to the party disputing the cession.
Hippo Quarries (Tvl) (Pty) Ltd v Eardley 1992 (1) SA 867 (A) at 873
[Page 66]
The intention of a cession agreement must be to divest the cedent of her or his rights against
the debtor.
Skjelbreds Rederi AS v Hartless (Pty) Ltd 1982 (2) SA 710 (A)
Densam (Pty) Ltd v Cywilnat (Pty) Ltd 1991 (1) SA 100 (A)
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) SA 601 (A)

Contractual rights are not capable of cession if the contract, by its nature, involves a dilectus
personae (ie, such rights are personal to the creditor), or if the contract itself prohibits a
cession and the debtor has an interest in this prohibition.
Trust Bank of Africa Ltd v Standard Bank of SA Ltd 1968 (3) SA 166 (A)
Dettmann v Goldfain 1975 (3) SA 385 (A)
Smuts v Booyens; Markplaas (Edms) Bpk v Booyens [2001] 3 All SA 536 (A); 2001 (4) SA
15 (SCA)
Delivery: Only if the existence of the ceded right depends on that right’s incorporation in a
document – as is the case with negotiable instruments – is a cession incomplete without
delivery of the document.
Botha v Fick 1995 (2) SA 750 (A) at 778F–779B
In other cases, delivery of the document evidencing the right constitutes proof of a cession
but does not affect its validity.
Botha v Fick 1995 (2) SA 750 (A)
Cf Standard General Insurance Co Ltd v SA Brake CC 1995 (3) SA 806 (A)
Effect on locus standi : A cession of the interest in a claim destroys the cedent’s locus standi,
but a 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) SA 61 (A)
African Consolidated Agencies (Pty) Ltd v Siemens Nixdorf Information Systems (Pty) Ltd
1992 (2) SA 739 (C)
A cessionary in an out-and-out 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 can take the place
of the cedent by means of a formal substitution in terms of the rules of court.
Waikiwi Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd 1978 (1) SA 671 (A)
Brummer v Gorfil Brothers Investments (Pty) Ltd [1999] 2 All SA 127 (SCA); 1999 (3) SA
389 (SCA)
Cession in security of a debt: As a rule, a cessionary who holds a cession in security of a

debt is not entitled to recover directly from the debtor until such time as the debtor is in
default. The cession leaves a reversionary right with the cedent. Should the cedent pay the
cessionary in full, the ceded debt (or what is left of it) reverts to the cedent. As long as the
cession is current and the cedent is 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 in the cession and is thus entitled to sue the debtor. This is usually the position
where debts have been ceded to a bank in order to secure an overdraft: unless the overdraft
has been called up, the debtor remains entitled to claim from its debtors in its own name.
Leyds NO v Noord-Westelike Koöperatiewe Landboumaatskappy Bpk 1985 (2) SA 769 (A)
Marais NNO v Ruskin NO 1985 (4) SA 659 (A)
[Page 67]
Incledon (Welkom) (Pty) Ltd v Qwaqwa Development Corp Ltd 1990 (4) SA 798 (A)
Land- en Landboubank van Suid-Afrika v Die Meester 1991 (2) SA 761 (A) at 771
Ovland Managemant (Tvl) (Pty) Ltd v Petprin (Pty) Ltd 1995 (3) SA 276 (N)
PG Bison Ltd v Master of the High Court [2000] 1 All SA 363 (SCA); 2000 (1) SA 859 (A)
Aussenkehr Farms (Pty) Ltd v Trio Transport CC [2002] 3 All SA 309 (A); 2002 (4) SA 483
(SCA)
On-cession by a cessionary of a right ceded in security of a debt can take place only with the
consent of the first cedent.
Sechold Financial Services (Edms) Bpk v Gazankulu Ontwikkelingskorporasie Bpk [1997] 2

All SA 489 (A) at 497
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 (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 to establish these facts.
Trust Bank van Afrika Bpk v Oosthuizen 1962 (2) SA 307 (T)
(d) Any defence (except defences of a personal nature) the debtor would have had against
the cedent.
(e) The cession was effected with the object of depriving the debtor of the opportunity of
asserting a counterclaim against the cedent. In such a case, it must be shown that the
cessionary was a knowing party to this fraud.
LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A)
This last defence amounts to a dilatory plea in which a stay of the action is claimed, pending
the finalisation of an action against the cedent, and claiming that, thereafter, there be a set-
off.
In spite of the fraud, the cessionary does not become a party to the contract and the debtor has
no counterclaim against the cessionary.
Munira Investments (Pty) Ltd v Flash Clothing Manufacturers (Pty) Ltd 1980 (1) SA 326 (D)
Regional Factors (Pty) Ltd v Charisma Promotions 1980 (4) SA 509 (C)
Beukes v Claassen 1986 (4) SA 495 (O)
Counterclaims: As stated, a cession does not make the cessionary a party to the contract
between the debtor and the cedent. The debtor is, therefore, not entitled to base a
counterclaim on the contract against the cessionary.
Van Zyl v Credit Corp of SA Ltd 1960 (4) SA 582 (A)
PRECEDENTS
Claim – on ceded debt
1. [Set out in full the indebtedness to the cedent].
2. On [date], the cedent in writing ceded his right to his 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].
[Page 68]
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 his indebtedness to him.
Cheques
Related subject: BANKERS

Procedure: A cheque is a liquid document and provisional-sentence procedure is available in
the high court and in magistrates’ courts, on a claim based on a cheque.
Uniform rule 8
Magistrates’ Courts rule 14A
Claim on a dishonoured cheque against the drawer: A plaintiff claiming on a dishonoured

cheque must allege and prove the following facts:
(a) That it is the legal holder of the cheque.
Trust Bank van Afrika Bpk v Bendor Properties Ltd 1977 (2) SA 632 (T)
This requires that the plaintiff be in lawful possession of the cheque
Ganie v Parekh 1962 (4) SA 618 (N)
in one of the following capacities:
(i) As payee. Where the plaintiff’s name differs from that indicated on the
cheque, the plaintiff may make an appropriate allegation to link itself to that name – for
example, by alleging and proving that the name on the cheque is the plaintiff’s trade name.
Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Self-Arc (Pty) Ltd 1986
(4) SA 488 (T)
(ii) As the 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 (1) SA 547 (T)
(b) That the document is a cheque.
Hiles v Venter 1983 (4) SA 22 (T)
H & F Spares Centre (Pty) Ltd v Grand Prix Spares 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) SA 23 (A)
Jachris (Pty) Ltd v Fourie 1984 (4) SA 501 (T)
(d) That the cheque was duly presented for payment

Bills of Exchange Act 34 of 1964 s 54
Abraham v Du Plessis 1962 (3) SA 162 (T)
Nampak Products Ltd t/a Nampak Flexible Packaging v Sweetcor (Pty) Ltd 1981 (4) SA 919
(T)
[Page 69]
or that presentment was dispensed with.
Rovic Noordkaap v Roux 1980 (4) SA 59 (O)
Commercial Union Trade Finance v Republic Bottlers of SA (Pty) Ltd t/a Booth’s Bottle
Store 1992 (4) SA 728 (D)
Presentment may take place through the clearing-house system.
Navidas (Pty) Ltd v Essop, Metha v Essop 1994 (4) SA 141 (A)
(e) That the cheque was dishonoured.
Moraitis v De Canha 1984 (1) SA 420 (W)
(f) That notice of dishonour was given in terms of section 46,
Pine Designs (Pty) Ltd v Abt 1976 (3) SA 795 (O)
or dispensed with for a reason set out in section 48 (which is usually the position if
the bank dishonoured the cheques).
Braz v Afonso [1997] 4 All SA 428 (SCA); 1998 (1) SA 573 (SCA)
Claim against an endorser: A claim against an endorser requires that the identity of the
drawer of the cheque be alleged. In addition, the allegation must be made that the defendant
endorsed such cheque.
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 can be raised against any holder, including a
holder in due course:
(a) No-one is liable unless he or she signed the document in the capacity in which the
defendant is being sued.

(b) Forgery is also an absolute defence. The onus is on the plaintiff to disprove the
defence because the defendant is simply denying its signature.
Lansdown NO v Wajar 1973 (4) SA 329 (T)
It is no longer a defence that an agent exceeded a mandate in signing the cheque.
Defences between immediate parties: The drawer of a cheque is entitled to raise against the
payee of a cheque any defence he or she could have raised in respect of the underlying
transaction between the parties. For instance, if the cheque was given in payment under a
contract and the contract is validly cancelled, the drawer can rely on these facts but must
allege and prove them.
Froman v Robertson 1971 (1) SA 115 (A)
A defendant may also rely on rectification of the document – 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) SA 620 (A)
Marshall v Bull Quip (Pty) Ltd 1983 (1) SA 23 (A)
See : RECTIFICATION
Holder in due course: Only absolute defences are available against a holder in due course.
Bills of Exchange Act 34 of 1964 s 36 read with s 37
Ramsukh v Diesel-Electric (Natal) (Pty) Ltd [1997] 3 All SA 209 (A); 1997 (4) SA 242
(SCA)
[Page 70]
There is a presumption that a holder is one in due course.
If a defendant proves, or if it is admitted, that the issuing or subsequent negotiation of a

cheque was tainted with fraud or illegality, the plaintiff will bear the onus of proving that,
after such fraud or illegality, he or she gave value in good faith for the cheque.
Bills of Exchange Act 34 of 1964 s 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 a number of
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) if the bank pays the cheque, if it is crossed generally, to someone than a bank;
or
(ii) if the bank pays 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 which apply if the cheque has been altered and the bank acts 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 has paid as aforesaid, the drawer
also has no further liability to the true owner of the cheque.
The onus of proving, for purposes of section 79, that the payment was made in good faith and
without negligence rests on the bank.
Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) at 394D–E
Trans-Atlantic Equipment (Pty) Ltd v Minister of Transport of the Republic of South Africa
[2002] 1 All SA 298 (T); 2002 (2) SA 167 (T)
Standard Bank of SA Ltd v Nair (Bissessur, Third Parties) 2001 (1) SA 998 (D)
A bank acting both as collecting and paying banker is entitled to the protection of the section
79.
Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) at 397D–E
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 which do not render such bank
liable to the true owner under sections 78 or 79,
[Page 71]
(d) the true owner is, if he or she 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.
The plaintiff under a claim in terms of section 81(1) bears the onus of alleging and proving its
elements.
APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) at 1163J–
1164B
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) at
202
The defendant must have possessed the cheque. In this regard, 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)
For the purposes of section 81, obtaining a cheque by means of false pretences amounts to
theft.
831 (SCA)
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 [1998] 1 All SA 1 (SCA)
The duty of care is owed to the “true” owner of the cheque 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 and, in order for the cheque’s holder to become its owner, delivery with the intention
of transferring ownership has to be established.
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd 1995 (3) SA 556 (A) at 568–
570
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 such cheque. If that person fails
to do so, he or she is liable to the owner of the cheque under section 81(1).
Optimprops 1030 CC v First National Bank of SA [2001] 2 All SA 24 (D)
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.
[Page 72]
2. Plaintiff duly presented the cheque for payment on [date] and the cheque was
dishonoured by non-payment, 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 aforesaid sum of [amount].
5. A copy of the face and reverse side of the said 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”.
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.
Cf Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A)
831 (SCA)
The Godfather v Commissioner for Inland Revenue 1993 (2) SA 426 (N)
Plea – in terms of Act 34 of 1964 section 79
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 (3) SA 574 (W).]
Citations
Related subject: LOCUS STANDI
General: Initiating processes must, in terms of the court rules, describe properly the parties to
the litigation. 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. Although it is
usual to do so, it is not necessary to restate the citation in the particulars of claim or
declaration.
Natural persons: Magistrates’ Courts rule 6(5) and Uniform rule 17(4) prescribe the
requirements in similar but not identical terms.
Magistrates’ Courts rule 6(5) states that a summons must:
(a) show the surname of the defendant by which the defendant is known to the plaintiff,
the defendant’s sex and residence or place of business, and, where known, the first name or
initials, occupation and, in the case of a woman, her marital status, and, if the defendant is
sued in a representative capacity, the capacity in which the defendant is sued;
[Page 73]
(b) show the first name, surname, sex, occupation and place of residence of the plaintiff;
(c) where the plaintiff sues as a cessionary, show the name, address and description of the
cedent at the date of the cession, and the date of the cession;
(d) where the plaintiff sues in a representative capacity, state the capacity in which he or
she sues.
Uniform rule 17(4) requires that every summons must set forth:
(a) the name (including, where possible, the first name or initials) by which the defendant
is known to the plaintiff, the defendant’s residence or place of business and, where known,
occupation and, if sued in any representative capacity, such capacity. The summons must also
state the defendant’s sex and, if the defendant is a female, her marital status;
(b) the full names, sex and occupation and the residence or place of business of the
plaintiff, and, where the plaintiff sues in a representative capacity, such capacity. If the
plaintiff is a female, the summons shall state her marital status.
In so far as these rules require that the marital status of females must be stated, they can be
ignored on constitutional grounds.
Nedcor Bank Ltd v Hennop 2003 (3) SA 622 (T) at 626
Close corporation: A close corporation is a juristic person with full legal capacity.
Close Corporations Act 69 of 1984 s 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.
Companies Act 61 of 1973 s 65
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 its registered address
or (in the case of a defendant) the 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 he or she is 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 must 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.
Companies Act 61 of 1973 s 386(4)(a)

Fundstrust (Edms) Bpk (in likwidasie) v Marais [1996] 3 All SA 574 (C); 1997 (3) SA 470
(C)
Shepstone & Wylie v Geyser NO [1998] 3 All SA 349 (A); 1998 (3) SA 1036 (SCA)
[Page 74]
This practice is not generally accepted and should be avoided.
Ex parte Liquidator Vautid Wear Parts (Pty) Ltd (in liquidation) 2000 (3) SA 96 (W) at 103
Executors and trustees: The duly appointed executor is the legal representative of the
deceased estate, and proceedings by or against the estate must be in the name of the executor
acting in this official capacity.
Du Toit v Vermeulen 1972 (3) SA 848 (A)
Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (SCA)
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.
In any proceedings against the State, the minister of the department concerned should be
cited as the nominal defendant or respondent. This also applies to a member of the Executive
Council of a province.
State Liability Act 20 of 1957 s 2
Jayiya v MEC for Welfare, EC Government [2003] 2 All SA 223 (SCA) para 5
Action may also be instituted or defended in the name of the State.
Die Regering van die Republiek van Suid-Afrika v Santam Versekeringsmaatskappy Bpk
1964 (1) SA 546 (W)
Partners, firms and unincorporated bodies: Any two or more persons claiming or being sued
as co-partners may sue or be sued in the name of the firm of which they were co-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 such a 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)
Magistrates’ Courts rule 54
Cf Uniform rule 14
A partnership, firm or an association may sue or be sued in its name and a plaintiff suing a
partnership or a firm need not state the names of the partners.
A voluntary association for gain is not a valid legal entity if it has more than twenty
members, and has no legal standing.
Mitchell’s Plain Town Centre Merchants Association v McLeod [1996] 3 All SA 297 (A);
1996 (4) SA 159 (SCA)
Public corporations: Public corporations are usually created by special statute. Their

corporate status and the establishing statute ought to be stated.
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 further particulars are not known to the
plaintiff of [address].
[Page 75]
Close corporations
The plaintiff [defendant] is J Smith CC, a close corporation, incorporated in terms of the
Close Corporations Act 69 of 1984, with its registered office at [address] OR with its
principal place of business within the jurisdiction of this court at [address].
Companies
The plaintiff [defendant] is J Smith & Co (Pty) Ltd, a company with limited liability,
incorporated in terms of the Companies Act 61 of 1973, 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 Republic of South Africa, herein represented by the Minister
of [department], acting in her/his official capacity.
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].
Public corporations
The plaintiff [defendant] is the South African Inventions Development Corporation, a body
corporate established by section 2 of the Inventions Development Act 31 of 1962.
The plaintiff [defendant] is Telkom SA Ltd, a public company contemplated in section 3(1)
of the Post Office Act 44 of 1958.
The plaintiff [defendant] is Transnet Ltd, a public company incorporated in terms of the
Legal Succession to the South African Transport Services Act 9 of 1989 read with the
Companies Act 61 of 1973.
Close Corporations
Related subject: COMPANIES
Citation: A close corporation is a juristic person with full legal capacity.
Muller v Coca-Cola Sabco (SA) (Pty) Ltd 1998 (2) SA 824 (SE)
It must sue and be sued in its own name.
See : CITATIONS
[Page 76]
Jurisdiction: Any high court or magistrate’s 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. For instance, a high court
has jurisdiction over a close corporation “residing or being in and in relation to all causes
arising” within that court’s area of jurisdiction.
Close Corporations Act 69 of 1984 s 19(1)(a)
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 her or his 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 her or his 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.
Section 23(2): In terms of this section, any member of, or any other person on behalf of, a
close corporation who
(a) issues or authorises the issue of any notice or official publication of the corporation,
or signs or authorises to be signed on behalf of the corporation any bill of exchange,
promissory note, endorsement, cheque or order for money, goods or services; or
(b) issues or authorises the issue of any letter, delivery note, invoice, receipt or letter of
credit of the corporation,
without
(i) the name, or registered literal translation thereof, and
(ii) the registration number
of the corporation being mentioned therein, in accordance with the requirements of the
section, that person is liable to the holder of the bill of exchange, promissory note, cheque, or
the order for money, goods or services for the amount thereof, unless the amount is duly paid
by the corporation.
Durity Omega (Pty) Ltd v Gauteng Civils CC 2000 (1) SA 165 (T)
G & C Construction v De Beer [2000] 1 All SA 540 (T); 2000 (2) SA 378 (T)
Stafford t/a Natal Agriculture Co v Lions River Saw Mills (Pty) Ltd [1999] 1 All SA 275 (N);
1999 (2) SA 1077 (N)
[Page 77]
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 such act or omission; or
(b) any economic benefit derived by her or him by reason of such act or omission.
Section 42(3)(b): Where 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, at the option of the corporation, voidable.
Where the corporation chooses not to be bound, a court may, on application by any interested
person, if such court is of the opinion that, in the circumstances, it is fair to order that such a
contract shall nevertheless be binding on the parties, give an order to that effect and may
make any further order which it may deem fit.
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.
TJ Jonck BK h/a Bothaville Vleismark v Du Plessis NO 1998 (1) SA 971 (O)
Du Plessis NO v Oosthuizen 1999 (2) SA 191 (O)
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)
Commissioner for SARS v Mendes [2001] 2 All SA 316 (SE); 2001 (4) SA 934 (SE)
Section 43: A member of a corporation is liable to the corporation for loss caused by her or
his failure, in the carrying on of the business of the corporation, to act with the degree of care
and skill that may reasonably be expected from a person of such member’s knowledge and
experience.
This liability is not incurred if the relevant conduct was preceded or followed by the written
approval of all the corporation’s members, provided that they were or are cognisant of all the
material facts.
PRECEDENTS
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 A Blaikie & Co (Pty) Ltd t/a FT Building Supplies Manaba, a
company duly registered and incorporated according to law and carrying on business at Main
Road, Manaba, KwaZulu-Natal.
2. The defendant is CJ, an adult male whose full and/or further particulars are to
the plaintiff unknown of [address].
3. At all relevant times the defendant was a member of Roofking Building

Supplies CC (the “CC”).
4. On 15 December 1992 the plaintiff obtained judgment against the CC in the

Transvaal Provincial Division of the Supreme Court of South Africa for payment of an
amount of R33 165,70 plus interest and costs as appears from annexure “A” hereto.
5. On 17 March 1993 the CC was finally liquidated.
[Page 78]
6. During or about May 1992 the defendant ordered or caused to be ordered

certain building materials from the plaintiff in the name of the CC. The materials were
delivered to and used at the premises [address], the property of the defendant.
7. At the time of the said order the CC was unable to pay its debts. At least, it
was unable to pay the plaintiff in respect of the said materials.
8. In particular an unpaid balance of R33 165,70 in respect of the said materials

remained after the liquidation of the CC. The judgment mentioned in paragraph 4 of the
plaintiff’s particulars of claim was given in respect of this unpaid balance.
9. The defendant was at all material times aware of the CC’s inability to pay its
debts, alternatively, the defendant ought reasonably have been aware thereof.
10. In acting as aforesaid, the defendant also grossly abused the juristic
personality of the CC to obtain building materials from the plaintiff without paying,
alternatively, as a creditor of the CC, obtained an undue preference.
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 not to be regarded as such, but as a venture of the defendant

personally; and/or
11.2 the defendant is declared to be personally liable for payment of the amount of
R33 165,70 reflected in annexure “A” hereto.
12. Subsequent to such liquidation, an enquiry was held at Pretoria on 17 July
1995 into the affairs of the CC in terms of the Close Corporations Act 69 of 1984 as read
with the Insolvency Act 24 of 1936.
13. As a result of certain admissions made by the defendant at such enquiry, the
defendant is liable personally to repay to the plaintiff the said amount of R33 165,70 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 Close Corporations Act 69 of
1984.
14. Notwithstanding demand, defendant fails and/or refuses and/or neglects to

effect payment of the said sum.
WHEREFORE the plaintiff claims
1. Orders in terms whereof:
1.1 Roofking Building Supplies CC (in liquidation) is in respect of the obligations

arising out of the order of Court (annexure “A” to the particulars of claim) not to be regarded
as such, but as a venture of the defendant personally; and/or
1.2 the defendant is declared to be personally liable for payment of the amount of
R33 165,70 reflected in annexure “A” to the particulars of claim.
2. Judgment for payment of R33 165,70.
3. Interest a tempore morae.
4. Costs of suit.
5. Further and/or alternative relief.
Co-debtors
A claim against co-debtors must state whether their liability is joint, or joint and several. The
nature of the liability can depend on a question of law (for example, the liability of ex-
partners) or a question of fact (for example, the terms of a contract).
If the liability is joint, all the debtors have to be joined and each debtor is liable for her or his
share only.
Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O) at 158
[Page 79]
If the liability is joint and several, the plaintiff may join all the debtors or choose a target. A
plaintiff may also choose the target at a later stage – for example, when applying for
judgment. If judgment is granted against one such debtor, it must be stated that such
judgment 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) SA 618 (D) at 623
Conversely, the general principle is that, if several creditors become jointly entitled to certain
rights, there is a presumption that each creditor may sue the debtor for that creditor’s pro rata
share.
Chrysafis v Katsapas 1988 (4) SA 818 (A)
If a claim is wrongly based on joint and several liability where the true liability is joint only,
such claim is not excipiable, because it amounts to a plus petitio.
Van Diggelen v De Bruin 1954 (1) SA 188 (SWA) at 195 (doubtful)
PRECEDENTS
Prayers
WHEREFORE plaintiff claims against both defendants, jointly and severally, the one paying
the other to be absolved, payment of [amount].
WHEREFORE 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 ex-partner].
WHEREFORE the plaintiff claims against the defendants, jointly, delivery of [detail].
Companies
CLOSE CORPORATIONS
Citation: See : CITATION
Legal representation: Only an attorney and an advocate duly instructed by an attorney may

represent a company in the high court. A director of that company cannot enter appearance on
its behalf or appear on its behalf.
Yates Investments (Pty) Ltd v Commissioner for Inland Revenue 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))
A member of a company may on behalf of the company initiate proceedings against any past
or present director or officer of that company, where the company has suffered loss or
damages or has been deprived of a benefit as a result of a wrong, breach of trust or faith
committed by such director or officer. The member must first apply to court for the
appointment of a curator ad litem to act for the company and must show that the company is
unwilling to initiate the proceedings itself. The appointed curator ad litem will then act for the
company.
Joseph Forman Holdings (Pty) Ltd v Forim Holdings [1999] 3 All SA 204 (W)
[Page 80]
Mandate: It must be proved that the person purporting to bind the company had the authority
to do so. Once proved, if the exercise of the authority depends on some internal act, a bona
fide third party can assume that there has been compliance with such internal act.
CJ Mathebula t/a Nxolwane Bottle Store v University of the North [1998] 3 All SA 477 (T)
A party contracting with a company may obviously also rely on an ostensible authority.
See : AGENCY
Personal liability in terms of section 424(1): If it is shown, on application to a court, 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, that 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.
Pressma Services (Pty) Ltd v Schuttler 1990 (2) SA 411 (C)
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)
In order to hold someone liable under section 424(1), the following has to 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; and
(2) the person concerned must
(a) have been a party to the carrying on of the business; and
(b) have 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)
The onus rests on the plaintiff-creditor to prove the existence and quantity of its claim.
Retail Management Services (Edms) Bpk v Schwartz 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)
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) SA 464 (W)
[Page 81]
Piercing the corporate veil: Directors and officers of a company may incur personal liability
and the so-called corporate veil may be pierced where fraudulent use is made of the fiction of
legal personality.
Lategan NO v Boyes 1980 (4) SA 191 (T)
It is necessary to show that the defendant was a party to the fraud.
Howard v Herrigel NO 1991 (2) SA 660 (A) at 674
Personal liability can be attributed to someone who misuses or abuses the principle of
corporate personality. This is especially so if there is an element of fraud or other similar
conduct 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 (4) SA 790 (A) at 802–
804
(The pleadings in this case are quoted in the judgment of first instance: 1993 (2) SA 784 (C).)
There must at least be some misuse or abuse of the distinction between the corporate entity
and those who control the company, which results in an unfair advantage being afforded to
the latter.
Hülse-Reutter v Gödde [2002] 2 All SA 211 (A); 2001 (4) SA 1336 (SCA)
Derivative action: It has not been settled whether a shareholder may, by virtue of a derivative
action, sue on behalf of a company if a wrong was committed against that company by
directors and shareholders who are in the majority and, so, control the company and if such
wrong involves conduct which is either fraudulent or ultra vires.
Francis George Hill Family Trust v SA Reserve Bank 1992 (3) SA 91 (A)
Shareholders have no action on behalf of the company against third parties.
Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C)
Liability under section 50: If a director or officer of a company (or any person on its behalf)
signs or authorises a bill of exchange, cheque and the like on behalf of a company and the
name of the company is not mentioned on the document, as required by section 50, such a
person is liable to the holder of the instrument unless the company duly makes payment
against such instrument.
Epstein v Bell 1997 (1) SA 483 (D)
Pre-incorporation contracts: In order to rely on a pre-incorporation contract, it must be

alleged and proved that:
(a) the contract was in writing;
(b) the person making it professed to act as an agent or trustee for the proposed company;
(c) one of the company’s objects at the time of its registration was the adoption or
ratification of the contract;
(d) the company in fact did ratify or adopt the contract after registration.
Unless the contract otherwise provides, the so-called agent incurs no personal liability on the
contract, pending the incorporation or ratification of the contract.
Nine Hundred Umgeni Road (Pty) Ltd v Bali 1986 (1) SA 1 (A)
Visser v Van Tonder 1986 (2) SA 500 (T)
[Page 82]
If the person did not profess to act as agent or trustee but acted as principal, the contract will
be a contract for the benefit of a third party (stipulatio alteri) and which can be adopted by the
company even if the formalities of section 35 have not been complied with.
McCullogh v Fernwood Estate Ltd 1920 AD 204
See : CONTRACTS FOR THE BENEFIT OF THIRD PARTIES
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 Act amended the position materially.
Under this provision, once a contract has been entered into by a company, no reliance can be
placed by the company or 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, in
other words, even if beyond the company’s capacity, 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 can still be placed on the fact that the contract was ultra vires the
agreed objects of the company.
Financial assistance to purchase shares – section 38: A company may not, directly or
indirectly, in any manner provide financial assistance for the purpose of, or in connection
with, a purchase or subscription made or to be made to any person of, or for any shares in. the
company or, where the company is a subsidiary company, of its holding company.
This provision is subject to certain exceptions. For instance, a company whose main business
is the lending of money may lend moneys for such a purpose in the ordinary course of its
business.
Peters NO v Schoeman [2001] 1 All SA 155 (A); 2001 (1) SA 872 (SCA)
A contract affected by the prohibition is void.
Lipschitz NO v UDC Bank Ltd 1979 (1) SA 789 (A)
PRECEDENTS
Claim – for director’s fees
1. Defendant is [name], a company with limited liability, duly incorporated in

terms of the company laws of the Republic of South Africa, with registered office at
[location] and principal place of business within the jurisdiction of this court at [location].
2. In terms of [article] of defendant’s articles of association, the remuneration

payable to each director was fixed at the sum of [amount] per annum, payable at the end of
each financial year.
3. On [date], plaintiff was appointed a director of defendant company and he

served in that capacity from [date] to [date].
4. The company’s financial year ended on [date], but, despite demand, defendant
failed to pay to plaintiff the remuneration due to him for the above period, being the amount
of [amount].
Claim – based on pre-incorporation contract
1. On [date] at [place], plaintiff entered into a written deed of sale with one [X],
who acted as trustee for a company to be formed.
[Page 83]
2. In terms of the written deed, a copy of which is attached hereto and marked
“A”, plaintiff sold to the company certain immovable property situate at [location] for the
sum of [amount].
3. Thereafter, the said [X] duly formed defendant company which was registered
on [date].
4. At the time of registration, one of defendant’s objects was the adoption or

ratification of the deed of sale.
5. On [date], defendant ratified and adopted the deed of sale.
6. In terms of [clause] of Annexure “A”, defendant was obliged to pay to

plaintiff the sum of [amount] on [date], but has failed to do so.
Claim – against trustee for a company to be formed
1. On [date] at [place], plaintiff entered into a written deed of sale with defendant
who was then acting in his capacity as trustee for a company to be formed.
2. In terms of the aforesaid deed, a copy of which is attached hereto and marked
“A”, plaintiff sold to defendant certain immovable property situate at [address] for the sum of
[amount].
3. In terms of [clause] of Annexure “A”, defendant undertook to be personally

liable in terms of Annexure “A” if a company were not formed within [state period] of the
signing of Annexure “A”, or if the company, once formed, failed to ratify or adopt Annexure
“A” within [state period] of its incorporation.
4. Despite the effluxion of [state period], defendant has failed to register a

company, and, in the premises, defendant is personally liable for the obligations of the
proposed company in terms of Annexure “A”.
5. In terms of [clause] of Annexure “A”, an amount of [amount] was due and

payable to plaintiff on [date].
6. Despite demand, defendant has failed or refused to pay such amount to

plaintiff.
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 duly proved his claim against [X] for [amount] and the claim was
duly 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;
since
(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. As a result of the foregoing fraud or recklessness, plaintiff suffered damages

[detail].
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 in the sum of [amount].
[Cf Fourie v Braude 1996 (1) SA 610 (T).]
[Page 84]
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.
4. Accordingly, the particulars of claim disclose no cause of action against the

curators.
[See : Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C).]
Claim – based on section 50 of Act 61 of 1973
1. The plaintiff is the holder and drawee of a cheque drawn on behalf of [X]
(Pty) Ltd in the sum of [Ry]. A copy of the cheque is annexed hereto.
2. The defendant, a director of [X], signed the cheque on its behalf.
3. The manner in which [X’s] name was rendered on the cheque does not comply
with the provisions of section 50 of the Companies Act 61 of 1973, in the following respects:
[detail].
4. The company has failed to honour the cheque or to pay the amount due in
terms of the cheque.
5. The defendant is accordingly liable to pay to plaintiff the said amount.
Claim – based on section 424(1) of Act 61 of 1973
[From Kalinko v Nisbet [2002] 3 All SA 294 (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 R12 883 140,00, alternatively R2 040 986,32, was reflected in

the books of C in favour of M.
3. Valid and enforceable claims of C against M in an amount 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 the period July 1999 to February

2000 whilst the defendants knew of such insolvency.
5. C failed to appoint competent and able staff to manage and direct the day-to-
day running of its affairs.
6. No stocktaking of the stock of C took place between April 1999 and February
2000.
7. No accounts and audited statements were compiled or kept for the business of
C for the period during or about July 1999 to February 2000.
8. C operated without sufficient stock on hand.
9. Without due and proper authorisation being given, C abandoned its business.
Compromise
Related subjects: RES IUDICATA

TENDER BY A DEFENDANT
TENDER IN FULL AND FINAL SETTLEMENT
Definition: A compromise or settlement (transactio) is a contract the purpose of which is to

prevent or avoid or put an end to litigation. Whether embodied in an order of court or not, it
has the effect of res iudicata.
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd 1978 (1) SA
914 (A)
Georgias v Standard Chartered Finance Zimbabwe Ltd 2000 (1) SA 126 (ZS) at 138–139
It is, therefore, an absolute defence to an action based on the original claim.
[Page 85]
Contract: A compromise is a substantive contract which exists independently of the cause

that gave rise to the compromise. Being a contract, the general rules of pleading a contract
apply.
Compromise and novation: In the case of novation, the parties replace one valid contract
with another valid one. Therefore, if the original contract is subsequently shown to be invalid,
the novated contract will be of no effect. A contract of compromise, on the other hand, is not
affected by the invalidity of the original obligation.
Dennis Peters Investments (Pty) Ltd v Ollerenshaw 1977 (1) SA 197 (W)
Weltmans Custom Office Furniture (Proprietary) Limited (in liquidation) v Whistlers CC

[1997] 3 All SA 467 (C)
Authority to compromise: A legal practitioner may have the ostensible authority to

compromise a claim.
59 (SCA)
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.
Not only can the original contract not be relied on, but the parties are also not entitled to go
behind the compromise and raise defences to the original cause of action when sued on the
compromise.
Van Zyl v Niemann 1964 (4) SA 661 (A)
A term providing that, should the terms of compromise not be complied with by one of the
parties, the other may rely on the original cause of action can be express or implied and can
be in the form of either a resolutive or a suspensive condition.
Crause v Ocean Bentonite Co (Edms) Bpk 1979 (1) SA 1076 (O)

Defences: A compromise may be set aside on the ground that it was fraudulently obtained
Rowe v Rowe [1997] 3 All SA 503 (A); 1997 (4) SA 160 (SCA)
or on the ground 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.
914 (A)
Wilson Bayly Holmes (Pty) Ltd v Maeyane 1995 (4) SA 340 (T)
See : MISTAKES
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 into a written agreement

in terms of which the dispute [detail] between the parties was settled. A copy of the
agreement is annexed hereto.
[Page 86]
2. Defendant has failed to comply with the terms of the deed of settlement.
3. In terms of the deed of settlement, plaintiff is entitled, in the event of

defendant’s failure to comply with the terms, at his 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 of the settlement agreement is annexed hereto.
2. Plaintiff did not reserve his rights to proceed on the original cause of action.
Condictio Indebiti
Related subjects: ADMINISTRATION OF DECEASED ESTATES

BANKERS
CONDICTIO SINE CAUSA
ILLEGAL CONTRACTS
General: 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
to the extent that the receiver was enriched at the claimant’s expense.
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A)
Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C) at 396
The person entitled to bring the action is the one who, in law, is considered to have made the
payment or the transfer.
Bowman NO v Fidelity Bank Ltd [1997] 1 All SA 317 (A); 1997 (2) SA 35 (SCA)
The condictio indebiti is also used to reclaim performance made in terms of an invalid
contract where invalidity is due to a failure to comply with prescribed formalities.
Enocon Construction (Pty) Ltd v Palm Sixteen (Pty) Ltd 1972 (4) SA 511 (T)
Elements: The essential allegations are that:
(a) the defendant must be enriched;
(b) the plaintiff must be impoverished;
(c) the defendant’s enrichment must be at the expense of the plaintiff; and
(d) the enrichment must be unjustified or sine causa.
McCarthy Retail Ltd v Shortdistance Carriers CC [2001] 3 All SA 236 (A); 2001 (3) SA 482
(SCA)
These aspects are discussed in more detail:
(a) The transfer or payment was made in the bona fide and reasonable, but mistaken,
belief that it was owing.
ABSA Bank Ltd v Leech [2001] 4 All SA 55 (A); 2001 (4) SA 132 (SCA)
(b) The transfer must have been made sine causa. It must have been indebite in the widest
sense – that is, there must have been no legal or natural obligation to make it: for example, an
ultra vires payment.
Frame v Palmer 1950 (3) SA 340 (C)
Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd [1996] 3 All SA
1 (A); 1996 (4) SA 19 (SCA)
[Page 87]
(c) The error must be a reasonable error.
Rahim v Minister of Justice 1964 (4) SA 630 (A) at 634
This means that the mistake must be excusable in the circumstances of the case.
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A)
There are exceptions to this requirement, especially in relation to payments made on

behalf of others.
(d) The property being reclaimed, from a legal point, was transferred to the defendant.
For example, if an agent receives the money or object on behalf of the principal, the action
lies against the principal and not against the agent even though the latter may have been
enriched by receiving it.
Minister van Justisie v Jaffer 1995 (1) SA 273 (A)
Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A)
(e) Where restitution is claimed on the ground that the transfer was made involuntarily,
the plaintiff must allege that it was made as the result of an unlawful threat and that the
payment was made under protest.
Kruger v Sekretaris van Binnelandse Inkomste 1973 (1) SA 394 (A)
Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A)
In such a case, error does not have to be alleged or established.
Commissioner for Inland Revenue v First National Industrial Bank Ltd 1990 (3) SA 641 (A)
(f) If the claim arises from performance in terms of an invalid contract, the plaintiff must
tender to restore all benefits received under that contract and must allege that the defendant is
unwilling or unable to perform its part of the invalid bargain.
Carlis v McCusker 1904 TS 917
Botes v Toti Development Co (Pty) Ltd 1978 (1) SA 205 (T)
This rule does not apply where the plaintiff’s claim is based on a rei vindicatio or if
the contract is void for, say, vagueness.
Patel v Adam 1977 (2) SA 653 (A)

(g) The property or money reclaimed must have been transferred or paid by the plaintiff
or the plaintiff’s agent.
Klein NO v SA Transport Services 1992 (3) SA 509 (W)
(h) The enrichment must have been at the expense of the plaintiff and not some third
party.
1 (A); 1996 (4) SA 19 (SCA)
(SCA)
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) SA 202 (A) at 224
Non-enrichment: A defendant may plead non-enrichment as a defence. However, once a

transfer indebite has been established, the onus is on the defendant to prove that the transfer
did not, in fact, 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 Ltd [1997] 4 All SA 673 (A); 1998 (1) SA 242
(SCA)
[Page 88]
A defendant who disposed of the thing may rely on the disposal as evidence of non-
enrichment and, in addition, must allege and prove that the disposal was bona fide.
Le Riche v Hamman 1946 AD 648
Van Zyl v Serfontein 1992 (2) SA 450 (C)
A party who receives money or goods, knowing such money or goods to be indebite, cannot
deal therewith as if he or she were owner thereof. The true owner of the money or goods is
probably liable in damages for any loss or deterioration caused by her or his negligence.
African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A)
at 711–712
If both parties have performed fully in terms of an invalid agreement, the condictio indebiti
will no longer be available because the enrichment was not unjust.
Wilken v Kohler 1913 AD 135 at 144
In the case of an illegal contract, the par delictum rule may apply.
See : ILLEGAL CONTRACTS

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 his 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 grant his 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 his 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.
WHEREFORE 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.
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 said sum to defendant.
3. The amount was not owing to defendant.
4. Defendant nevertheless appropriated the moneys.
WHEREFORE plaintiff claims repayment of [amount].
Condictio ob Turpem vel Iniustam Causam
See : ILLEGAL CONTRACTS
[Page 89]
Condictio sine Causa
Related subject: CONDICTIO INDEBITI

Relationship with condictio indebiti : The condictio sine causa can be brought where the
condictio indebiti is inapplicable. It is not simply an alternative to the latter. An example of
the application of the condictio sine causa is where an executor pays to A a legacy belonging
to B. B is entitled to recover from A, irrespective of an excusable or other error by the
executor.
Requirements: In order to succeed with this type of claim, 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) enrichment of the defendant by the receipt of the money or goods at the expense of
the plaintiff. In assessing whether defendant has been enriched by the payment, account must
be taken of any performance rendered by defendant which was juridically connected with the
receipt of the money or goods;
(d) that the plaintiff was impoverished.
Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C)
B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A)
(SCA)
Non-enrichment: See : CONDICTIO INDEBITI
PRECEDENTS
Claim – based on condictio sine causa
1. Plaintiff is the holder of a savings account at [X] Bank.
2. On [date] and at [place], the said bank in error paid the sum of [Ry] to the
defendant from the said account.
3. The said sum was neither due nor owing to the defendant.
4. The defendant was enriched unjustly by [Ry] at the expense of the plaintiff.
Conditions
Related subject: CONTRACT

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.
Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A)
Design & Planning Service v Kruger 1974 (1) SA 689 (T) at 695
Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A) at 676
Premier, Free State v Firechem Free State (Pty) Ltd [2000] 3 All SA 247 (SCA); 2000 (4) SA
413 (SCA)
[Page 90]
Something does not become a condition merely by being given that name.
Webb v Davis NO [1998] 2 All SA 584 (A); 1998 (2) SA 975 (SCA)
The distinction 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 who relies
on a breach of that contract.
Kate’s Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd [1997] 4 All
SA 185 (A); 1998 (1) SA 235 (SCA)
See : CONTRACT
As to proof of a condition precedent as an exception to the parol evidence rule, see
Thiart v Kraukamp 1967 (3) SA 219 (T)
Conditions precedent: The term “condition precedent” is used in different contexts to mean

different things. It can refer to a truly suspensive condition or to a material term (that is, 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 condition: Pending the fulfilment of a suspensive condition, there is no contract

between the parties.
Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A)
First National Bank of SA Ltd v Lynn NO [1996] 1 All SA 229 (SCA); 1996 (2) SA 339 (A)
This does not mean that any party may prevent the fulfilment of the condition. As indicated,
the party wishing to rely on the contract has to allege and prove the fulfilment of the
suspensive condition.
The fulfilment of a suspensive condition after the lapse of a reasonable time, or after the time
limit imposed, does not give rise to a binding obligation.
Dirk Fourie Trust v Gerber 1986 (1) SA 763 (A)
Melamed v BP Southern Africa (Pty) Ltd [2000] 1 All SA 342 (W); 2000 (2) SA 614 (W)
Resolutive condition: The fulfilment of a resolutive condition terminates an existing

obligation. A party wishing to rely on such termination must allege and prove the fulfilment
of the resolutive condition.
Supposition 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) SA 21 (A)
An incorrect unilateral assumption relating to a past or present fact amounts to a unilateral

mistake which does not affect the contract. A common assumption, unless elevated to a term
of the agreement, likewise does not affect the contract.
Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA 264 (SCA)
Onus: A claim based on a contract is to be put within the four corners of the agreement. A
proper setting out of the cause of action requires an averment of the fulfilment of such
conditions as the agreement might attach to the obligation sought to be relied upon. These
conditions must be of the nature of [Page 91] prerequisites for the coming into existence of an
obligation or its enforceability, such as conditions precedent, suspensive conditions or terms,
reciprocal obligations of which prior or simultaneous fulfilment is required, and the like. In
other words, a litigant relying on a contract which is subject to a condition has to plead and
prove the condition and its fulfilment.
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 defendant and not by the plaintiff.
United Canners Ltd v Deepfreezing & Preserving (Pty) Ltd; Standard Canners & Packers Ltd
v Deepfreezing & Preserving (Pty) Ltd 1960 (1) SA 852 (C) at 859
Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A); 1997 (2) SA 337 (SCA)
Fictional fulfilment: Where a party to a contract prevents the 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) SA 373 (A)
Venter Agentskappe (Edms) Bpk v De Sousa 1990 (3) SA 103 (A)
The party alleging fictional fulfilment must allege and prove:
(a) the non-fulfilment of the condition; and
(b) that the breach of duty by the defendant was committed with the intention of
frustrating that condition’s fulfilment.
As to the nature of the intention,
Whyte v Da Costa Couto 1985 (4) SA 672 (A) at 680
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 defendant bears the onus of alleging and
proving the absence of such causal link.
Thanolda Estates (Pty) Ltd v Bouleigh 145 (Pty) Ltd [2001] 1 All SA 141 (W); 2001 (3) SA
196 (W)
The onus to establish that, in spite of the breach, the condition would still not have been
fulfilled rests, arguably, on the defendant.
Waiver: A party, in whose exclusive favour a suspensive condition exists, may waive the
condition’s fulfilment before the agreed cut-off 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) SA 241 (A)
Trans-Natal Steenkoolkorporasie Bpk v Lombaard 1988 (3) SA 625 (A) at 640
The ordinary rules relating to proof of a waiver apply.
See : WAIVERS
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) SA 686 (A)
[Page 92]
PRECEDENTS
Claim – alleging fulfilment of a suspensive condition
1. On [date] at [place], plaintiff and defendant entered into a written contract. A

copy is annexed hereto.
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
1. to 3. [As before.]
4. It was a tacit term of the agreement that defendant would apply within a
reasonable time to the master for his 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 grant his consent within the period of [state period], the contract would lapse.
4. The master did not give his consent 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 in terms of . . .
4. The property did not have the supposed water rights.
5. Defendant therefore denies that the agreement created any valid obligations.
Confidential Information
Related subject: RESTRAINT OF TRADE
Essentials: Confidential information can be protected by an interdict and a claim for

damages. The essential allegations are:
Cf Van Castricum v Theunissen 1993 (2) SA 726 (T) at 730
Waste Products Utilisation (Pty) Ltd Wilkes 2003 (2) SA 515 (W) at 570
(a) The plaintiff must have a quasi-proprietary or legal interest in the confidential
information.
Gordon Lloyd Page & Associates v Rivera [2000] 4 All SA 241 (A); 2001 (1) SA 88 (SCA)
[Page 93]
(b) The information must have the necessary quality of confidentiality.
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T)
SA Historical Mint (Pty) Ltd v Sutcliffe 1983 (2) SA 84 (C)
Cambridge Plan AG v Moore 1987 (4) SA 821 (D)
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 is known
to a restricted number of persons;
(iii) objectively, of economic value to the plaintiff.
Alum-Phos (Pty) Ltd v Spatz [1997] 1 All SA 616 (W) at 623
(c) A relationship, usually contractual, between the parties which imposes a duty on the
defendant to preserve the confidence of the information. The most common example of such
a relationship is that between employer and employee.
Multi Tube Systems (Pty) Ltd v Ponting 1984 (3) SA 182 (D)
Aercrete SA (Pty) Ltd v Skema Engineering Co (Pty) Ltd 1984 (4) SA 814 (D) at 822
International Executive Communications Ltd t/a Institute for International Research v
Turnley [1996] 3 All SA 648 (W); 1996 (3) SA 1043 (W) at 1052
Motion Transfer & Precision Roll Grinding CC v Carsten [1998] 4 All SA 168 (N)
A plaintiff may also rely on the fact that the defendant is a trade rival and has
obtained information in an improper manner.
Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968
(1) SA 209 (C)
(d) The defendant must have had knowledge of the confidentiality of the information and
its value.
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 191
(e) Improper possession or use of the information, whether as a springboard or otherwise.
(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 as a whole and, particularly, the specification relating to

[specify] constitute trade secrets and/or confidential knowledge and know-how 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 learnt of
the aforesaid process and specification.
5. First defendant terminated his employment with plaintiff on [date].
[Page 94]
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 therefrom, defendants continue to infringe

the rights of plaintiff to its process and specification.
(a) An order interdicting defendants from using the following process and specification,
namely [detail] for the purposes of manufacturing [item].
(b) An order interdicting defendants from selling or disposing, in the course of trade or
otherwise, all [items] still in their possession made by means of the said process.
Contract
Parties: It must appear ex facie the particulars of claim that the plaintiff and the defendant
are the parties to the contract.
Representation: It is necessary to state whether a contract was concluded by the parties

thereto or by agents acting on their behalf. The identities of such agents must be also be
stated.
Uniform rule 18(6)
See : AGENCY
Place: It must be stated where the contract was concluded.
Uniform rule 18(6)
Date: It is necessary to state when the contract was concluded.
Uniform rule 18(6)
Express contracts: If reliance is placed on a contract expressly concluded, it is not necessary

to state that the contract is an express contract since, in the absence of any other allegation, it
will be assumed that it is such a contract.
Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A)
Uniform rule 18(6) requires that it be stated whether the contract is written or oral. If the
contract is a written one, a true copy thereof or of that part of the contract upon which
reliance is placed must be annexed to the particulars of claim.
Vorster v Herselman 1982 (4) SA 857 (O)

When a plaintiff bases the cause of action on a document and annexes part of that 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 (3) SA 423 (A) at 429
Tacit contracts: If a party intends to rely on a tacit contract, it is necessary to plead that fact.
If an express contract is alleged, the pleader may not lead evidence to prove a tacit contract.
Roos v Engineering Fabricators (Edms) Bpk 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)
[Page 95]
One can plead a tacit contract as an alternative to an express contract.
In order to establish a tacit 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,
contract on the terms alleged. It must be proved that there was agreement.
Standard Bank of SA Ltd v Ocean Commodities Inc 1983 (1) SA 276 (A) at 292
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A)
Mühlmann v Mühlmann 1984 (3) SA 102 (A) at 123–124
Bezuidenhout v Otto 1996 (3) SA 339 (W) at 342–343
SA 313 (C)
The party alleging a tacit contract must catalogue and prove the unequivocal conduct and
circumstances from which the tacit contract is to be deduced, and must also allege the terms
of the contract.
Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) at 267
First National Bank of Southern Africa Ltd v Richards Bay Taxi Centre (Pty) Ltd [1999] 2
All SA 533 (N)
In order to prevent absolution, the plaintiff must produce evidence of conduct of the parties
that justifies a reasonable inference that the parties intended to, and did, 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)
Agreement and contract: An agreement is not necessarily a contract. If there is any doubt, the
party relying on the agreement must prove that an agreement was intended to be a contract –
that is, that the intention was to give rise to legal relations.
Government of the Self-Governing Territory of KwaZulu v Mahlangu 1994 (1) SA 626 (T) at
635
Dilokong Chrome Mines (Edms) Bpk v Direkteur-Generaal, Departement van Handel &
Nywerheid 1992 (4) SA 1 (A)
Terms – onus: A party alleging a contract must allege and prove those terms (express or
tacit) of the agreement he or she seeks to be enforce.
McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A)
Badenhorst v Van Rensburg 1985 (2) SA 321 (T) at 335
Proof of the terms of the contract includes proof of the anterior question of whether both
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)
at par 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 may prove that the
defendant signed the document in its completed form.
Da Silva v Janowski 1982 (3) SA 205 (A)
The onus of proving the terms of the agreement may involve the proof of a negative – for
example, proving that the parties did not agree on an additional term alleged by the
defendant.
Kriegler v Minitzer 1949 (4) SA 821 (A)
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A)
[Page 96]
The rule is the same where the defendant alleges that a naturalia of the type of contract
concluded was varied by agreement when the contract was entered into.
Robin v Guarantee Life Assurance Co Ltd 1984 (4) SA 558 (A) at 567
Tacit terms: A party intending to rely on a tacit term in a contract may, additionally, have
disprove the allegation that an express agreement was reached on this aspect.
Nel v Nelspruit Motors (Edms) Bpk 1961 (1) SA 582 (A)
Hamilton-Browning v Denis Barker Trust [2001] 1 All SA 618 (N); 2001 (4) SA 1131 (N)
A party seeking to place on a document on which reliance is placed a construction which

differs from the clear prima facie meaning of that document has to plead the circumstances
relied on for this construction.
Société Commerciale de Moteurs v Ackermann 1981 (3) SA 422 (A)
It is not, however, necessary to plead reliance on surrounding circumstances where the

meaning of the document is uncertain or ambiguous or where the other party contends that it
bears a meaning other than its prima facie meaning. The court must be satisfied that there is
uncertainty or ambiguity as to the proper construction of the contract.
Dorman Long Swan Hunter (Pty) Ltd v Karibib Visserye Ltd 1984 (2) SA 462 (C) at 476
The aforementioned 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 can be inferred. The rule
relates presumably not to “implied” but to “tacit” terms.
But see: Bezuidenhout v Otto 1996 (3) SA 339 (W) at 343
As for the distinction between implied and tacit terms, see:
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506
(A)
Delfs v Kuehne & Nagel (Pty) Ltd 1990 (1) SA 822 (A)
An implied term usually arises by operation of law, whilst a tacit term is an unexpressed
provision of the contract which provision derives from the common intention of the parties,
as inferred from the express terms of the contract and from the surrounding circumstances.
The test for tacit terms is dealt with in
(T) at 327
At the exception stage, the test is whether the term could reasonably be implied.
Lanificio Varam SA v Masurel Fils (Pty) Ltd 1952 (4) SA 655 (A) at 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) SA 610 (N)
Implied terms: If a party intends to rely on a term implied by law in a contract, the implied
term must be pleaded 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 legal question of whether the term is to be
implied.
See, in general: Sishen Hotel (Edms) Bpk v SA Yster & Staal Industriële Korp Bpk 1987 (2)
SA 932 (A) at 948–949
[Page 97]
Parol evidence: Terms which, in terms of the parol evidence rule, cannot be proved, may not
be pleaded unless a rectification of the contract is sought.
Offer and acceptance: As a general rule, it is not necessary to plead the offer and its
acceptance. It may be necessary, if the offer and acceptance are contained in different
documents. It may also be necessary where the offer or the acceptance may be a matter of
dispute.
CGEE Alsthom Equipments et Enterprises Electriques v GKN Sankey (Pty) Ltd 1987 (1) SA
81 (A) at 90
If reliance is placed on the tacit acceptance of an offer, it is necessary to allege such tacit
acceptance and to allege and prove the basic facts on which the party relies in order to
substantiate such acceptance.
Clegg v Groenewald 1970 (3) SA 90 (C)
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.
Where the parties are shown to have been ad idem as to the material terms of a contract, the
onus of proving that the parties agreed that the effectiveness of the agreement would depend
on the execution of a written document rests on the party alleging this condition.
Woods v Walters 1921 AD 303
Lambons (Edms) Bpk v BMW (Suid-Afrika) (Edms) Bpk [1997] 3 All SA 327 (SCA); 1997
(4) SA 141 (A)
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)
Conditions: See : CONDITIONS, EXCEPTIO NON ADIMPLETI CONTRACTUS,

TENDER
Breach: If reliance is placed on a breach of a contract, that breach must be alleged and
proved.
WD Russell (Pty) Ltd v Witwatersrand Gold Mining Co Ltd 1981 (2) SA 216 (W) at 218
See : CONTRACT: BREACH OF
Damages: See : CONTRACT: DAMAGES, CONVENTIONAL PENALTIES
PRECEDENTS
Claim – based on an oral contract
1. At [place] on [date], plaintiff and defendant entered into an oral contract.
2. Plaintiff acted personally and defendant was duly 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.
[Page 98]
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 entered into 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 did repair 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 co-owners of the farm [name] as
a result of the bequest of the late [name].
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. As a result 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 entered into a written contract.
2. A copy of the contract is annexed hereto.
3. Plaintiff was represented by [name] and defendant was represented by [name].
4. The terms of the contract that are 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. As a consequence, a written contract was entered into between the parties on

[date] at [place] having the following material terms: [detail].
Contract: Breach of
Related subjects: CONTRACT: CANCELLATION OF

CONTRACT: DAMAGES
CONVENTIONAL PENALTIES
MORA
REPUDIATION
SPECIFIC PERFORMANCE
[Page 99]
Contract: Cancellation of
Related subjects: CONTRACT
CONTRACT: DAMAGES
MORA
REPUDIATION
A party wishing to rely on the cancellation of a contract must allege and prove:
(a) a breach of the contract;
(b) that the right to cancellation has accrued because, for example, the breach was
material; or
Singh v McCarthy Retail Ltd t/a McIntosh Motors [2000] 4 All SA 487 (A); 2000 (4) SA 795
(SCA
that the contract has a cancellation clause (lex commissoria) and its provisions (such
as prior notice) have been complied with strictly;
Van Zyl v Rossouw 1976 (1) SA 773 (NC)
De Wet NO v Uys NO 1998 (4) SA 694 (T) at 706
Kragga Kamma Estates CC v Flanagan 1995 (2) SA 367 (A)
(c) that clear and unequivocal notice of rescission was conveyed to the other party (unless
the contract dispenses with such notice).
Swart v Vosloo 1965 (1) SA 100 (A)
Miller & Miller v Dickinson 1971 (3) SA 581 (A)
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A); 2001 (2)
SA 284 (SCA) at par 29
The innocent party is entitled either to cancel the contract and claim for a declaratory order
that the contract had been cancelled properly, or to claim for a judicial cancellation.
Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A)
The mere fact that a defendant gives reasons for the denial that the cancellation was unlawful
does not detract from the plaintiff’s onus to prove the “unlawful” cancellation relied on.
Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (A) at 712
The cancelling party has no obligation to tender restitution and it is for the guilty party to
claim it if he or she is entitled thereto.
See : TENDER BY A PLAINTIFF
Cancellation for a wrong reason does not invalidate the cancellation, provided that the
innocent party can allege and prove a valid ground, even if that ground was not known to that
party at the time of cancellation.
Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C)
Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) at 832
While the right to cancel must be exercised within a reasonable time, mere delay does not
result in the loss of that right.
Mahabeer v Sharma NO 1985 (3) SA 729 (A)
Once a party has elected to cancel or not to cancel, the election is final and may not be
reversed. The onus rests on the party alleging an election to allege and prove it.
Thomas v Henry 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)
See : ELECTION
[Page 100]
Whether an innocent party has made an election to cancel is a question of fact to be decided
on the evidence.
Peters NO v Schoeman [2001] 1 All SA 155 (A); 2001 (1) SA 872 (SCA) at par 12
An innocent party who is uncertain of her or his rights in respect of the other party’s breach
may claim in the alternative, provided that the alternatives are not inconsistent. These
alternatives are the following:
(a) Cancellation; alternatively, if the contract was not properly cancelled, damages.
(b) Cancellation with damages and/or restitution; alternatively, if the contract was not
properly cancelled, 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.
Myers v Abramson 1951 (3) SA 438 (C)
Custom Credit Corporation (Pty) (Ltd) v Shembe 1972 (3) SA 462 (A)
It is not possible to claim performance and, in the alternative, to rely on a prior cancellation
of the contract, because these alternatives are inconsistent.
Salzwedel v Raath 1956 (2) SA 160 (E)
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. If a creditor relies, in an action, on
a forfeiture clause, it cannot again 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)
PRECEDENTS
Claim – for restitution, alternatively, damages

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].

An order for the return to plaintiff of motor vehicle [description]; alternatively, for an order
for the payment of [amount].
[Page 101]
Claim – for declaratory order
1. On [date], the parties entered into 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 committing any breach of contract.
3. Defendant breached the agreement in the following respects: [detail].
4. Plaintiff gave defendant due notice as required by [clause] but, despite the fact
that [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.
WHEREFORE plaintiff claims an order declaring the agreement, Annexure “A”, to have
been validly cancelled.
Contract: Damages
Related subjects: CONTRACT: CANCELLATION
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 (for example, that the other party was in mora); or
(T) at 348
repudiation of the contract;
Novick v Benjamin 1972 (2) SA 842 (A)
(c) that the claimant has suffered damages;
Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA 228
(A)
Thompson v Scholtz [1998] 4 All SA 526 (A); 1999 (1) SA 232 (SCA)
(d) a causal link between the breach and damages;
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 687
Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards Inc [1998] 4 All SA 281 (SCA);
1998 (4) SA 1182 (SCA)
(e) that the loss was not too remote.
In this regard, there are two principles. First, the damages must flow naturally and
generally from the kind of breach of contract in question in the sense that, because the law
presumes that such damages fell within the contemplation of the parties as a probable result
of the breach, they are not regarded as being too remote. These are called general or intrinsic
damages.
Second, if the damages do not fall within the first category, they will not be regarded
as being too remote if, in the special circumstances attending the conclusion of the contract,
the parties actually or presumptively contemplated that such damages would probably result
from the breach. These are called special or extrinsic damages.
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A)
Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A)
Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (A);

2001 (4) SA 551 (SCA)
[Page 102]
Cancellation: It is not a requirement that the contract be cancelled in order that a claim for
reliance loss be sustained.
Mainline Carriers (Pty) Ltd v Jaad Investments CC [1997] 3 All SA 451 (C); 1998 (2) SA
468 (C)
Damages: In respect of damages, the following rules apply:
(a) Damages are usually, but not always, assessed as at the date of 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) at par 76
(b) 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)
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.
(c) This rule does not necessarily apply if restitutionary or restitutional damages are
claimed – for example, when the contract has been cancelled. In such event, a negative inter
esse may be claimed – that is, the plaintiff may claim to be placed in the position in which he
or she would have been had no contract been concluded.
Probert v Baker 1983 (3) SA 229 (D)
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)
(d) Where there are several ways in which a defendant might have performed her or his
contractual obligation, damages for a breach are to be assessed on the assumption that the
defendant would have performed it in the way least profitable to the plaintiff and most
beneficial to the defendant.
Bellairs v Hodnett 1978 (1) SA 1109 (A) at 1140
(e) Where a party seeks to employ a special method of calculating damages, the onus
rests on that party to satisfy the court that such method is the appropriate one in the
circumstances of the case.
Katzenellenbogen Ltd v Mullin 1977 (4) SA 855 (A)
(f) If the contact provides for a method for the determination of damages, such a method
– depending on the terms of the contract and the Conventional Penalties Act 15 of 1962 –
must or may be used.
Mufamadi v Dorbyl Finance (Pty) Ltd 1996 (1) SA 799 (A)
Iniuria : As far as damages for an injurious breach of contract are concerned,
See : INIURIA
Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours [1998] 3 All SA 57 (W); 1998 (4) SA
802 (W)
[Page 103]
Contractual defences: If the defendant, who is prima facie liable for damages resulting from
the breach of the contract, wishes to rely on a contractual provision exonerating her or him
from liability, he or she is, in effect, confessing and avoiding and is saddled with the onus of
establishing the defence by bringing her- or himself within the terms of the provision
concerned.
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 such 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 in order to mitigate damages.
Soar h/a Rebuilds for Africa v JC Motors 1992 (4) SA 127 (A) at 135
Tender: If the claim for damages is unaccompanied by a restitution claim because of the
cancellation of the contract, a tender by the claimant is not necessary.
Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd 1951 (1) SA 312 (C)
Baker v Probert 1985 (3) SA 429 (A)
See : TENDER BY PLAINTIFF
PRECEDENTS
Claim – for special damages
1. On [date] at [place], plaintiff and defendant entered into 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. As a result of defendant’s breach, plaintiff could not plough his 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 his 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 his farming venture.
[Page 104]
7. Plaintiff’s loss of income as a result of the failure of his 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 (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.
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 his
election to terminate the contract on [date] at [place] by [method of notification].
Claim – for damages on the basis of negative interest
[From Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC [1997] 3 All SA 451 (C)
par [8]; 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, taking into account 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 paragraph 3.3 and 3.4 above and also 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 at all times
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.
[Page 105]
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 has 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.
Contracts for the Benefit of Third Parties (Stipulatio Alteri)
A stipulatio alteri is a contract between two parties (say, A and B) that is designed to enable a
third party (say, C) to come into a contractual relationship with B (the promissor). The
contract between A and B obliges B to make an offer to C. By accepting that offer, B is
bound to C and A drops out of the arrangement.
Crookes NO v Watson 1956 (1) SA 277 (A) at 291
If C wishes to rely on 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 thereto and be entitled to claim from B.
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) at 172
Total SA (Pty) Ltd v Bekker NO 1992 (1) SA 617 (A) at 625
Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W)
The fact that C may gain an advantage from a contract between A and B does not
suffice. The parties may, for their own convenience, agree that B must render performance to
C without their having the intention to create a right of action on behalf of C against B;
Barnett v Abe Swersky & Associates 1986 (4) SA 407 (C)
Protea Holdings Ltd v Herzberg 1982 (4) SA 773 (C) at 779
(c) acceptance by C of the benefit. Such acceptance must be communicated to B and

must comply with the ordinary rules relating to the acceptance of an offer.
Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A)

Defences: B may rely on any contractual defence available but, more particularly, on the fact
that the contract between A and B had been cancelled before acceptance by C,
Ex parte Orchison 1952 (3) SA 66 (T)
or that the benefit was not accepted within a reasonable, or within the allotted, time. After C’s
acceptance, the other parties cannot undo C’s benefit.
Adenia Eiendomme (Edms) Bpk v LPD Ondernemings BK [1997] 3 All SA 85 (T)
[Page 106]
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 hereto.
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 said immovable property but
defendant refuses to pay plaintiff the sum of [amount].
(b) Interest [amount].
Claim – by stipulator
1. On [date] at [place], plaintiff and defendant entered into 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 hereto.
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 his right of election, defendant, in

breach of his agreement, sold the property to [name].
4. The property has not yet been transferred to [name].

WHEREFORE plaintiff claims an interdict restraining defendant from passing transfer of the
said property to [name], and costs.
[Note that the purchaser must be joined.]
Contributory Negligence
Related subjects: JOINT WRONGDOERS
LEX AQUILIA
MOTOR VEHICLE ACCIDENTS
THIRD PARTY PROCEDURE
VOLENTI NON FIT INIURIA
General: A defendant faced with a delictual claim may, in the plea, request an apportionment
of damages based on the contributory negligence of the plaintiff.
Apportionment of Damages Act 34 of 1956 s 1
Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (A);

2001 (4) SA 551 (SCA)
This defence must be pleaded and the appropriate relief of apportionment must be claimed in
the plea. However, if the issue was fully canvassed, the court may order apportionment in the
absence of proper pleadings.
AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A)
Gibson v Berkowitz [1997] 1 All SA 99 (W); 1996 (4) SA 1029 (W)
[Page 107]
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) SA 764 (A)
The Act only allows apportionment in cases where the claimant was at fault. It does not, for
instance, include the negligence of the claimant’s spouse, to whom he or she is married in
community of property.
Labuschagne v Cloete 1987 (3) SA 638 (T)
Post-delictual negligence of a plaintiff may interrupt causation.
Gibson v Berkowitz [1997] 1 All SA 99 (W); 1996 (4) SA 1029 (W)

Dolus : This defence is not available if the plaintiff’s claim is based on a delict intentionally
committed, such as an 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 Lloyd-Gray Lithographers (Pty) Ltd [2000] 4 All SA 393
(A); 2000 (4) SA 915 (SCA)
However, if there is dolus on both sides, the defence may be available.
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a Volkskas
Bank 1997 (2) SA 591 (W) at 606E
Onus: It is for the defendant to allege and prove that the plaintiff was negligent and that this
negligence was causally connected to the damages suffered by the plaintiff.
South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A)
Union National South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A)
Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw & Collins Afslaers

(Edms) Bpk [1997] 1 All SA 473 (A); 1997 (1) SA 592 (A)
Third parties: A defendant may also join an alleged joint wrongdoer and claim a contribution
from her or him. The defendant must allege and prove that the third party is liable with the
defendant, in delict, to the plaintiff.
Wapnick v Durban City Garage 1984 (2) SA 414 (D)
This joinder may be done conditionally on a finding that the defendant is, in fact, liable to the
plaintiff.
Gross v Commercial Union Assurance Co Ltd 1974 (1) SA 630 (A)
PRECEDENTS
Plea
Defendant denies that he was negligent as alleged or in any other way. In the alternative 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;
[Page 108]
(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;
(e) she was negligent in not wearing her seat belt and her negligence caused or
contributed to her damages.
Prayer
WHEREFORE defendant prays:
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.
Conventional Penalties
Related subjects: CONTRACT: DAMAGES
CREDIT AGREEMENTS
Penalty clauses: An agreed penalty or pre-estimate of damages for the breach of a contract is
enforceable in any competent court.
Conventional Penalties Act 15 of 1962 s 1
It follows that the party wishing to enforce such a term need only allege and prove the term
and a breach falling within the scope of the term.
A defendant may, in defence to the claim, plead for a reduction of the penalty.
Matthews v Pretorius 1984 (3) SA 547 (W)
Forfeiture clauses: A stipulation whereby it is provided that, upon withdrawal from an

agreement by a party thereto under circumstances specified in that agreement, any other party
to that agreement may forfeit the right to claim restitution of anything performed in terms of
the agreement, or will remain liable for some performance, has the same effect as a penalty
clause. This means that the innocent party can enforce it but that the guilty party may claim
restitution or may resist a claim for additional performance.
The forfeiture referred to in section 4 is of a limited nature: it does not include the forfeiture
of a right to payment. In other words, if the guilty party is to forfeit a contractual payment or
performance by the innocent party, the guilty party is not entitled to claim that amount (or
any lesser amount), irrespective of the prejudice suffered by the innocent party.
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 actually suffered but what prejudice the creditor suffered. In
determining the extent of the prejudice, the court has to take into consideration not only the
creditor’s proprietary interest, but also every other rightful interest that may have been
affected by the act or omission in question.
A penalty stipulation does not relieve any party of the duty to mitigate damages he or she
might have suffered.
Courtis Rutherford & Sons CC v Sasfin (Pty) Ltd [1999] 3 All SA 639 (C)
[Page 109]
A reduction can 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 was, in fact, an agreed liquidation of damages.
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) at 438
Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 29
Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A)
Further, a reduction is possible if the payment or forfeiture is a consequence of a breach of

the contract only.
Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A)
Onus: A party claiming a reduction has to allege and prove that the penalty is
disproportionate to the prejudice suffered by the creditor. This involves proving the actual
prejudice.
Chrysafis v Katsapas 1988 (4) SA 818 (A)
National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v International Liquor
This onus can be discharged with reference to the allegations contained in the pleadings of
the party attempting to enforce the clause, in view of the fact that a court can raise the issue
mero motu (probably in unopposed matters only).
Smit v Bester 1977 (4) SA 937 (A) at 942
Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A)
It is, however, inadvisable to rely on the possibility that the court may raise the matter mero
motu.
Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A) at 474–475
Accumulation of remedies: The Act prevents a creditor from recovering, in respect of an act

or omission which is the subject of a penalty stipulation, both the agreed penalty and the
damages or, except where the relevant contract expressly (ie, clearly) so provides, damages in
lieu of the agreed penalty.
Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A) at 795
Credit agreements: The provisions of this Act may not be invoked in so far as they are in
conflict with a provision of the Credit Agreements Act 75 of 1980.
See : CREDIT AGREEMENTS
PRECEDENTS
Claim – for liquidated damages
1. [Set out the contract].
2. In terms of 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 has failed to pay the said 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.
[Page 110]
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 said penalty stipulation represents rental for a period
of one year and pleads that it is out of proportion to the prejudice suffered by plaintiff as a
result of defendant’s default, in that plaintiff did re-let the premises immediately to a suitable
tenant at the same rental for a period exceeding the remaining period of the lease. [Detail].
3. Defendant further pleads that plaintiff did not suffer any other damages as a
result of defendant’s default.
WHEREFORE 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 duly 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 pre-estimate of damages the monies paid by the purchaser.
6. The said 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, subsequent to the cancellation of the sale, defendant sold
the land to [name] for the sum of [amount] thereby mitigating in full any damages he may
have suffered as a result of the cancellation of the deed of sale and that, therefore, the penalty
is out of proportion to the prejudice suffered by defendant by reason 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.
Payment of the sum of [amount] or such lesser amount as this court considers equitable.
Copyright Infringement
Related subjects: DESIGNS
UNLAWFUL COMPETITION
Statute: Copyright is governed by the Copyright Act 98 of 1978. The Act is also applicable
to works made before its commencement.
Copyright Act 98 of 1978 s 43
Appleton v Harnischfeger Corporation 1995 (2) SA 247 (A)
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 delictual claims.
[Page 111]
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.
The 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 1978 s 24(1)
Biotech Laboratories (Pty) Ltd v Beecham Group PLC [2002] 3 All SA 652 (A); 2002 (4) SA
249 (SCA)
(b) the exclusive licensee or sub-licensee (after due notice to the owner).
The 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. This
involves proving that:
(a) the work is an “original” work;
Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A)
Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd [1998] 1 All SA 123 (SCA);
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 1978 s 2(1) read with the definitions in s 1(1)
Golden China TV Game Centre v Nintendo Co Ltd [1996] 4 All SA 667 (SCA); 1997 (1) SA
405 (A)
(c) except in the case of a broadcast or a programme-carrying signal, the work has been
written down, recorded or otherwise reduced to material form;
(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 1978 s 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.

Such infringment entails the “copying” of the plaintiff’s work.
In order 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) SA 276 (A)
Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd [1998] 1 All SA 123 (SCA);
1998 (2) SA 968 (SCA)
The exclusive right to perform certain acts in respect of the particular work vests in the owner
of the copyright.
Copyright Act 98 of 1978 ss 5 to 11B
[Page 112]
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.
Dolus or culpa are not elements of direct infringement.

Indirect infringement: An essential element of indirect infringement is dolus. Dolus in this
context consists of the importation, sale or distribution of unauthorised copies of the work,
provided that the defendant knew that the making of the article concerned:
(a) constituted an infringement of copyright; or
(b) would have constituted such an infringement had the article been made in the
Republic.
Presumptions: Section 26 affects the onus by creating presumptions that
assist a plaintiff in establishing her or his case. 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.
The relief: The owner of copyright is entitled to the following relief in the event of a breach
of copyright:
(a) Damages, which could include exemplary or punitive damages.
Metro Goldwyn-Mayer 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
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 does not have to have suffered
damages in order to be entitled to this relief.
Copyright Act 98 of 1978 s 24(1A)
Morris v Benson and Hedges 2000 (3) SA 1092 (W)
For the purposes of determining the amount of damages or a reasonable royalty, the court
may direct an enquiry to be held and may prescribe such procedures for the conducting of the
enquiry as it considers necessary.
Copyright Act 98 of 1978 s 24(1B)

An exclusive licensee and an exclusive sub-licensee are entitled to the same remedies as if
the licence were an assignment. These rights and remedies are concurrent with the rights and
remedies of the owner of the copyright.
Defences: A defendant who establishes that he or she was unaware of the subsistence of the
copyright claimed and had no reasonable grounds for suspecting it will not be mulcted in
damages.
[Page 113]
The Act creates a number of exceptions to a claim for copyright infringement – for example,
copying that was reasonably necessary for the purposes of research or private study, or use of
a work for the purposes of judicial proceedings. These exceptions must, on general principles,
be alleged and proved by the defendant.
Copyright Act 98 of 1978 ss 12 to 19B
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 times relevant hereto, second defendant was the managing director of
first defendant and was in effective charge and control of first defendant.
3. At all times relevant hereto, 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 aforesaid original work was made.
5. The aforesaid original work was first published in the Republic of South
Africa on [date].
6. At all times relevant hereto, plaintiff was the proprietor of the aforesaid
copyright in the original work, pursuant to a written assignment from the said author, and still
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. The aforesaid conduct by defendants is not authorised by plaintiff.
11. In the premises, the conduct of defendants constitutes infringement of the

copyright in the original work.
12. Defendants, at all times relevant hereto, bore knowledge of the fact that such
conduct constituted infringement as aforesaid.
[Note: Knowledge is not a prerequisite in the case of cinematograph films or in the case of
direct copying.]
13. The aforesaid unlawful conduct of defendants has caused plaintiff damage in
the sum of [amount].
14. Plaintiff apprehends upon reasonable grounds that defendants will not desist
from their said unlawful conduct unless 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 114]
Counterclaims (Claims in Reconvention)
Court rules: Magistrates’ Courts Rule 20, Uniform Rule 18
Purpose: Where reciprocal claims between parties exist, the proper course is to adjudicate on
them all simultaneously and to arrive at a decision as to who is, on balance, the really
successful party and, consequently, the true creditor.
Du Toit v De Beer 1955 (1) SA 469 (T)

The advantages for a defendant of proceeding by way of counterclaim instead of by way of
an independent action are, first, that the decision on the plaintiff’s claim is kept in 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 (1) SA 747 (A) at 764
The second point must be qualified for magistrates’ courts: Where 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 stay is made or if such application is dismissed, the court may
dismiss the counterclaim to the extent that it exceeds the court’s jurisdiction.
Magistrates’ Courts rule 20(5) and (6)
Esterhuizen v Holmes 1947 (2) SA 789 (T)
Form: A counterclaim is, in form, the same as 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)
Magistrates’ Courts rule 20(2)
It is customary to state, in the claim in reconvention, 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 referred to as before. It is also customary to incorporate, by way of
reference, allegations contained in the pleadings of the plaintiff in convention as well as
allegations made in the plea.
Ribeiro v Santam Ltd [1996] 2 All SA 47 (W); 1996 (3) SA 1035 (W)
The action in convention and the action in reconvention are two separate and distinct actions,
in spite of the fact that they are usually 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 (2) SA 795 (W)
Matyeka v Kaaber 1960 (4) SA 900 (T)
Time: A defendant who counterclaims must deliver the claim in reconvention together with
the plea.
Uniform rule 24(1)
Uniform rule 24(1) allows for delivery of a counterclaim at a later stage, with the plaintiff’s
or the court’s permission. The same principle applies to magistrates’ courts.
Sekhoto v Qwa Qwa Auto Industries CC Panel Beaters & Spray Painters 1998 (1) SA 164
(O)
[Page 115]
If the proper formulation of the counterclaim depends on future and possibly uncertain
contingencies, the use of a counterclaim may be inappropriate.
Metje & Ziegler Ltd v Stauch, Vorster & Partners 1972 (4) SA 679 (SWA)
Cf Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd 1970 (1) SA
228 (A)
Need for a counterclaim: If a defendant wishes to set off an unliquidated claim against the
plaintiff’s claim, the defendant is obliged to proceed by way of counterclaim because only a
liquidated claim can be pleaded by way of a set-off.
(A)
Muller v Botswana Development Corporation Ltd [2002] 3 All SA 663 (SCA); 2003 (1) SA
651 (SCA)
In such an event, the defendant must, in the plea, refer to the fact of the counterclaim and
must request that judgment in respect of the claim, or any portion thereof, which would be
extinguished by the counterclaim, be postponed until judgment on the counterclaim.
Judgment on the claim, either in whole or in part, must thereupon be so postponed, unless the
court, upon application, orders otherwise.
Uniform rule 22(4)
Types of counterclaim:
(a) The relief claimed in the counterclaim may be unrelated to the relief claimed in the
claim in convention. It may not lead to the liquidation of an unliquidated amount and an
eventual set-off. The court may, in the exercise of its discretion, in this case grant judgment
on the claim in convention (if it is admitted), especially if the claim in convention will be
frustrated by a counterclaim which has no bearing on the main claim – for instance, where the
plaintiff claims for ejectment and the defendant counterclaims for the value of improvements
to the leased property.
Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk 1984 (3) SA 760 (N); 1986 (1) SA
448 (A)
Cf D-Jay Corpn CC v Investor Management Services (Pty) Ltd [1996] 4 All SA 650 (W);
2000 (2) SA 755 (W)
(b) The counterclaim may serve to make liquid an illiquid claim which can be set off
against the claim in convention.
Uniform rule 22(4)
The court has, nevertheless, the discretion to grant judgment on the claim in
convention, especially where 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)
It may be different in the magistrates’ courts where rule 20(7) provides that, where
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 pari passu.
(c) The counterclaim may be for an amount smaller than that in the claim.
Du Toit v De Beer 1955 (1) SA 469 (T)
Uniform rule 22(4)
[Page 116]
In such an event, the court will normally grant judgment for the plaintiff on the
admitted part of her or his claim and the action will then proceed on the disputed part.
Uniform rule 22(4)
Baking Investments (Pty) Ltd v Britz 1978 (3) SA 1067 (T)
(d) The counterclaim may be conditional on the failure of the claim in convention.
Uniform rule 24(4)
(e) The counterclaim may be conditional on the failure of the defence of the defendant in
convention.
Uniform rule 24(4)
SA Onderlinge Brand v Van den Berg 1976 (1) SA 602 (A)
(f) A counterclaim to a counterclaim, but not in magistrates’ courts.
Levy v Levy 1991 (3) SA 614 (A)
Mala fide cession: If a claim is ceded with the intention of depriving the debtor of her or his
right to raise a counterclaim by way of reconvention, the defendant may, in her or his plea to
the claim by the cessionary, pray that judgment on the cessionary’s claim be postponed until
final judgment is given in the defendant’s action against the cedent on the intended
counterclaim.
Goodwin Stable Trust v Duohex (Pty) Ltd [1996] 2 All SA 558 (C); 1998 (4) SA 606 (C)
See : CESSION
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 before.
4. [Set out cause of action of counterclaim.]
WHEREFORE defendant claims:
(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 of this amount 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.
WHEREFORE 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 that, in any event, 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.
[Page 117]
WHEREFORE 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].
WHEREFORE 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 in regard to 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 such damages of such amount as this honourable court may deem just and
equitable.
Credit Agreements
[Text prepared by Adv André Gautschi SC, Johannesburg.]
INTEREST
LOANS
Scope of the Credit Agreements Act: Sales and leases of movables are governed either by the
Credit Agreements Act 75 of 1980 (“CAA”) or by the common law. The CAA applies to:
(a) both sales and leases;
Credit Agreements Act 75 of 1980 s 1 sv “credit agreement”
(b) such credit agreements only as are determined by the relevant minister by notice in
the Gazette.
Credit Agreements Act 75 of 1980 s 2(1)
The CAA does not apply to credit agreements in terms of which:
(a) goods are purchased or hired for the sole purpose of:
(i) selling or leasing them; or
(ii) using them in connection with mining, engineering, construction, road

building or a manufacturing process.
The party seeking to rely on the proviso to section 2(1) bears the onus of proving the
purpose for which the agreement was concluded. It is the purpose of the purchaser that is
relevant and it is not necessary that the seller should have knowledge of the purchaser’s
intention;
Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) at 909F–G
Parker v Dorbyl Finance (Pty) Ltd 1997 (1) SA 862 (SCA) at 867A–C
(b) the State is the credit grantor.
Credit Agreements Act 75 of 1980 s 2(1) proviso
[Page 118]
The CAA applies to corporeal movables only. A business as a going concern is not a
corporeal movable.
Smit and Venter v Fourie 1946 WLD 9
Accordingly, section 84(1) of the Insolvency Act 24 of 1936, which creates a hypothec over
property delivered in terms of an instalment sale transaction as defined in section 1 of the
CAA, is not applicable to the sale of a business.
A-Team Drankwinkel BK v Botha en ’n Ander NNO 1994 (1) SA 1 (A) at 17A–B
The categories of movables, the sale or lease of which is governed by the CAA, are listed in
government notices.
Formalities: Certain formalities are necessary in order to ensure a valid credit agreement

governed by the CAA:
(a) the agreement must be in writing and signed;
Credit Agreements Act 75 of 1980 s 5(1)(a)
(b) certain further information must be included in, or excluded from, the agreement.
Credit Agreements Act 75 of 1980 ss 5 and 6
Types of credit agreements: A credit agreement usually takes one of two forms:
(a) The supplier sells to the financial institution which, in turn, leases or sells to the credit
receiver. Here, the relevant credit agreement is concluded directly between the financial
institution (the credit grantor) and the credit receiver.
(b) The supplier sells or leases to the credit receiver by way of a credit agreement and the
supplier thereafter cedes its rights in the agreement to a financial institution. Here, the
financial institution as cessionary becomes the credit grantor.
This distinction between these types of agreement is of importance where the credit receiver
wishes to enforce her or his rights. A credit receiver suing the supplier or cedent for
restitution should join the cessionary as a party to the proceedings.
Erasmus v Fourwill Motors (Edms) Bpk 1975 (4) SA 57 (T)
Jurisdiction: The magistrates’ courts have special jurisdiction in respect of action on or

arising out of any credit agreement.
Magistrates’ Courts Act 32 of 1944 s 29(1)(e)
The magistrates’ courts do not have jurisdiction on the basis that the cause of action arose
wholly within their districts, unless the credit receiver concerned, at the relevant time, no
longer resides in the Republic.
Credit Agreements Act 75 of 1980 s 21
This is a right which the credit receiver cannot waive.
Standard Credit Corporation Ltd v Bester 1987 (1) SA 812 (W) at 814D–F
Essentials: The cause of action is contractual in nature and the essential allegations for a
claim in contract must be made.
If the credit agreement prima facie falls within the ambit of the CAA or of the Usury Act 73
of 1968 and it is relevant whether such Act is applicable, the plaintiff must plead sufficient
facts to show that the relevant Act is not applicable.
Botha v Potch Motors (Edms) Bpk 1963 (1) SA 279 (T)
Credit Corporation of SA Ltd v Swart 1959 (1) SA 555 (O)
[Page 119]
For instance, a vehicle designed to seat more than fifteen persons does not fall under the
CAA.
Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA)
Cf Dorbyl Vehicle Trading & Finance Co (Pty) Ltd v Klopper 1996 (2) SA 237 (N)
KO Motors CC v Gilindoda [1999] 3 All SA 517 (E); 1999 (4) SA 251 (E)
In so far as the credit agreement contains reciprocal obligations, the credit grantor must allege
that it has performed or tendered to perform its obligations in terms of the agreement.
See : EXCEPTIO NON ADIMPLETI CONTRACTUS

The remedies available to the plaintiff on breach of contract will usually be determined by the
terms of the agreement.
A plaintiff may not allege that the agreement subsists and, in the alternative, that it has been
cancelled.
Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 469
It is, however, possible to plead facts that would entitle the plaintiff to cancel the contract and
to plead in the alternative that, if such facts are not correct, the plaintiff is entitled to specific
performance.
Jardin v Agrela 1952 (1) SA 256 (T)
Clarke Brothers & Brown (1913) Ltd v Truck & Car Co Ltd 1952 (3) SA 479 (W)
It is also possible to allege that the contract was cancelled and, in the alternative, that, if it is
found that the contract was not properly cancelled, reliance may be placed on the contract
itself.
Deposit and period of the agreement: Where the agreement is governed by the CAA, it must
be alleged, having regard to section 6(5) of that Act, that the initial payment or initial rental
(as the case may be) has been paid or that the necessity for such payment is exempted by the
regulations under the CAA.
Marais v Standard Credit Corporation Ltd 2002 (4) SA 892 (W)
A credit agreement is invalid if the initial payment or initial rental prescribed by regulation is
not paid.
Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 689B 694A–B
Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279C–D
A credit agreement assumes validity once the initial payment or initial rental is paid, even if
such payment occurs some time after conclusion of the agreement, provided that neither party
has sought to avoid the agreement prior to such payment.
Credit Agreements Act 75 of 1980 s 6(5) read with s 1 sv “initial payment” and “initial
rental”
Van der Westhuizen v BOE Bank Bpk 2002 (1) SA 876 (T)
A credit agreement which exceeds the prescribed period is invalid.
Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) at 905G–H 913C–D
Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279C–D
The regulations create an exemption from the requirements as to minimum initial payment
(or initial rental) and maximum period.
Regulation 4 of Government Notice R401 dated 27 February 1981, as amended
Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279D–E
[Page 120]
The onus rests on the party seeking to rely on the exceptions created by the regulations.
Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) at 279E
Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) at 905J
Specific performance: Where the plaintiff wishes to rely on an acceleration clause, such a

clause must be pleaded.
Cf Hugo NO v Durbach 1961 (2) SA 780 (O)
Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 (4) SA 450 (D)
The plaintiff should allege that the claim does not conflict with section 14.
Where the agreement is governed by the Usury Act 73 of 1968, a rebate should be given and
pleaded, if such rebate is due (see below).
Rescinding or cancelling the agreement, return of the goods and damages: The plaintiff must
plead the term (if any) entitling it to cancel or must allege facts which would entitle it to
cancel – such as mora when time is of the essence, or a breach going to the root of the
contract, or repudiation.
Where the plaintiff claims return of the goods, it is necessary to allege that a notice in terms
of section 11 was given.
Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA) at 68D
First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd 1988 (4)
SA 924 (W)
The credit grantor is entitled to attach the goods prior to the expiry of 30-day notice period.
The goods must be kept safe, pending the resolution of the dispute between the parties.
BMW Financial Services SA (Pty) Limited v Mogotsi [1999] 4 All SA 415 (W); 1999 (3) SA
384 (W)
The credit grantor must make out a proper case, and not rely on mere generalised allegations,
in order to enable the court to exercise its discretion.
BMW Financial Services (SA) (Pty) Ltd v Rathebe [2002] 2 All SA 571 (W); 2002 (2) SA
368 (W)
The credit grantor need not allege or prove that the notice reached the credit receiver and the
notice need not have reached the defendant to be valid.
Marques v Unibank Ltd [2000] 4 All SA 146 (W); 2001 (1) SA 145 (W)
It is unnecessary to plead compliance with section 11 where the credit receiver repudiated the
agreement or where the credit grantor has already retaken possession without judicial
intervention.
Babha v Bothner & Sons Ltd 1951 (1) SA 12 (T)
Trust Bank van Afrika Bpk v Eales 1989 (4) SA 509 (T)
Mdakane v Standard Bank of South Africa Ltd [1998] 3 All SA 1 (W); 1999 (1) SA 127 (W)
Maswanganyi v First National Western Bank Ltd 2002 (3) SA 365 (W)
A credit grantor may recover her or his goods by means of the rei vindicatio, thus relying
simply on her or his ownership. Any plea regarding the existence of an agreement would
have to be met by way of a replication.
Chetty v Naidoo 1974 (3) SA 13 (A)
See : VINDICATION
In the case of a claim for repossession following cancellation of the agreement, the plaintiff
must either tender repayment of the amounts already paid or claim a declaration of forfeiture
if entitled to do so in terms of the credit agreement.
Underhay v Human 1959 (1) SA 567 (O)
[Page 121]
Damages recoverable by the credit grantor for breach of contract will normally be determined
by the terms of the contract or, where the contract is silent, by the general principles of
contract. However, certain provisions of the CAA and of the Usury Act must be borne in
mind:
(a) Where the agreement is an instalment sale agreement, the CAA makes provision for
the manner in which the value of the goods is to be determined.
(b) In the case of a leasing transaction, there is no obligation to give credit for the value
of the goods, save where the credit grantor sells or leases the goods for an amount which
exceeds the money value thereof.
Usury Act 73 of 1968 s 6K
(c) When the market or money value of goods is relevant, the statutes allow the deduction
of certain costs incurred by the credit grantor.
Credit Agreements Act 75 of 1980 s 16(1)(b)
Usury Act 73 of 1968 s 6K(3)
(d) Where the parties have agreed that the valuation of the goods by a certain valuer will
be final and binding, a claim for damages based on such a valuation will be a liquidated claim
and susceptible to summary judgment.
Leymac Distributors Ltd v Hoosen 1974 (4) SA 524 (D)
Cf Western Bank Ltd v Meyer; De Waal; Swart 1973 (4) SA 697 (T) at 701–702
(e) When the agreement is governed by the Usury Act, a rebate should be given and
pleaded, if such rebate is due (see below).
Relief claimable: In the case of an instalment sale transaction, the court may order the return
of the goods on condition that the amount owing by the credit receiver be reduced by an
amount equal to the value of the goods or that the credit receiver be paid the excess of such
value over the amount owing.
It is competent to claim specific performance and, in the event of the defendant’s failing to
comply within the stated time with the terms of the order for specific performance, an order
for cancellation and damages.
Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)
Ras v Simpson 1904 TS 254 at 256
Nedcor Bank Ltd v D & A Transport (Gauteng) CC 2001 (4) SA 74 (W)
It is submitted that it is permissible to claim relief by way of a two-stage procedure: return of

the goods, and, after the goods have been recovered and valued and/or sold, damages as
determined at that stage.
Cf Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T)
Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)
The prayers for damages are usually postponed at the first hearing.
Some courts allow the plaintiff, in the case of a default judgment, to establish by way of
affidavit the damages, at the second stage.
Credit Corporation of SA Ltd v Bosman 1958 (3) SA 845 (T)
Cf Havenga v Parker 1993 (3) SA 724 (T)
Abraham v City Council of Cape Town 1995 (2) SA 319 (C)
This practice has not been followed by all courts.
Trust Bank van Afrika Bpk v Krause 1959 (1) SA 574 (O)
[Page 122]
Where the agreement so provides, a claim must be made for a declaration of forfeiture of the
instalments or rentals already paid if the plaintiff wishes to retain them.
Underhay v Human 1959 (1) SA 567 (O)
Where the credit receiver agreed to pay attorney and client costs in the case of a breach, the
onus is on the credit receiver to show why that scale should not apply.
South African Permanent Building Society v Powell 1986 (1) SA 722 (A)
Ancillary and interim relief: Where the seller sues for return of goods which are the subject-
matter of an instalment sale agreement, the court has wide powers to have the goods valued
or protected pending the termination of the main proceedings.
The credit grantor may include in the summons a notice prohibiting any person from using or
removing the goods in question, which notice has the effect of an interdict on any person
having knowledge thereof.
At common law, the interim attachment of the goods pending the outcome of vindicatory or
quasi-vindicatory proceedings is well known.
Loader v De Beer 1947 (1) SA 87 (W)
The credit grantor is not entitled to an interim attachment order unless the credit agreement is
first cancelled, since, as a general rule, the credit receiver is entitled to possession and use as
long as the contract subsists.
Steyn’s Foundry (Pty) Ltd v Peacock 1965 (4) SA 549 (T)
Cf Sarann Furnishers (Pty) Ltd v Brink NO 1966 (3) SA 48 (N)

Where the CAA applies, the credit grantor may not claim interim attachment of the goods
before notice has been given under section 11 and before the period of 30 days has expired.
First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd 1988 (4)
SA 924 (W)
Cf Santambank Bpk v Dempers 1987 (4) SA 639 (O)
Defences: Since the claim is contractual in nature, the usual contractual defences are
available to the defendant.
A credit agreement which does not comply with the formalities prescribed by section 5(1)
“shall not merely for that reason be invalid”.
The same applies to contracts which do not comply with the provisions of the Usury Act.
Usury Act 73 of 1968 s 3(8)
The provisions of the Conventional Penalties Act 15 of 1962 may not be invoked in so far as
they are in conflict with a provision of the CAA.
A plea that the claim contains usurious interest will not defeat the claim. A plaintiff is entitled
to abandon so much of the interest element of the claim as may be usurious.
McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W)
If the defendant alleges that usurious interest is claimed by or has been paid to the plaintiff,
the court, if so requested, must before granting judgment afford the defendant the opportunity
of examining the plaintiff, unless it [Page 123] appears to the court that the examination is
impracticable or that the defendant’s allegation is prima facie without foundation.
Usury Act 73 of 1968 s 11
Adfin (Pty) Ltd t/a Rand Trust v Fashion Shoe Centre (Pty) Ltd 1990 (4) SA 371 (C)
1166 Roodekrans CC and others v Nedcor Bank Ltd [2001] 2 All SA 666 (W)
See : LOANS
The Usury Act and finance charges: The Usury Act regulates the limitation and disclosure of
finance charges in credit agreements.
Where the credit receiver defaults, the credit grantor’s claim for interest (“finance charges”)
is limited to:
(a) finance charges on the balance of the principal debt (as defined in section 1) which is
owing from time to time, for the period commencing on the date on which the credit grantor
pays or tenders the principal debt and terminating on the accelerated date for payment;
Credit Agreements Act 75 of 1980 s 5(1)(c)
Ex parte Minister of Justice 1978 (2) SA 572 (A) at 589–595
(b) additional finance charges on the amount which is owing but not paid, for the period
commencing on the day following the agreed date for payment and terminating on the date of
payment.
Credit Agreements Act 75 of 1980 s 5(1)(d) read with s 4
Ex parte Minister of Justice 1978 (2) SA 572 (A) at 596–597
Additional finance charges are calculated at the rate at which finance charges were initially
calculated. This follows as a matter of law and need not be agreed to by the credit receiver.
Premier Finance Corporation (Pty) Ltd v McKie 1979 (3) SA 1308 (T)
The effect of section 5(1)(c) is to prevent the credit grantor from claiming “unearned” finance
charges from the credit receiver. This is usually reflected in a “rebate” or “reduction of
finance charges” given to the credit receiver. The accurate method of calculating the rebate
due is to calculate the finance charges due and/or paid for each month of the agreement. The
simpler calculation – which is more favourable to the credit receiver and, accordingly,
unobjectionable – is to reduce the total finance charges pro rata according to the unexpired
period of the agreement – that is, the unexpired period after the date of acceleration. For
example, where A is the total finance charges in terms of the agreement, B is the total period
of the agreement in months, and C is the unexpired period of the agreement after the date of
acceleration in months, the rebate due is:
Ex parte Minister of Justice 1978 (2) SA 572 (A) dealt with specific performance and
accordingly affords no direct guideline with regard to claims for damages. Where the claim
for damages is liquidated by, for instance, a certificate or an agreement to accept the
valuation of the goods as final and binding, it is submitted that the “accelerated date for
payment” will simply be replaced by the due date for payment in accordance with the
agreement. Where the claim is illiquid, it is suggested that the equivalent date of the
“accelerated date for payment” will be the date of judgment and that the rebate should be
calculated as at that date.
[Page 124]
Both the principal debtor and the surety are entitled to claim a statement of information from
the creditor, in terms of section 10(2).
Varvarigos v Fidelity Bank Ltd 1989 (4) SA 384 (W)
PRECEDENTS
Claim – for specific performance
1. 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 annexed hereto and marked “A”.
2. The material terms of the agreement of lease are the following:
(a) [payments];
(b) [acceleration clause];
(c) [interest];
(d) [scale of costs];
(e) [and so on].
3. Plaintiff has performed its obligations in terms of the agreement of lease.
4. Defendant has paid the initial rental and has paid certain further rentals.
5. In breach of the agreement of lease, defendant has [state nature of breach].
6. Accordingly, plaintiff is entitled to immediate payment of the full balance

outstanding, being the sum of [Rx].
7. Defendant is entitled to a reduction of finance charges of [Ry].
8. In the premises, defendant is indebted to plaintiff in the sum of [Rx–Ry].
9. Payment of the aforesaid amount of [Rx–Ry] will not place plaintiff in a better
financial position than that which plaintiff would have been in if defendant had carried out
his obligations in terms of the agreement of lease.
WHEREFORE plaintiff claims . . .
Claim – for repossession and damages
1. On [date] at [place], plaintiff and defendant concluded a written instalment

sale agreement in terms of which plaintiff sold to defendant a certain motor vehicle. A copy
of the instalment sale agreement is annexed hereto and marked “A”.
2. The material terms of the instalment sale agreement were the following:
(a) [payments];
(b) [reservation of ownership];
(c) [breach clause entitling cancellation, repossession, forfeiture and damages];
(d) [interest];
(e) [scale of costs];
(f) [and so on].
3. Plaintiff has performed its obligations in terms of the instalment sale

agreement.
4. In breach of the instalment sale agreement, defendant has [state nature of

breach].
5. Despite due demand in terms of section 11 of Act 75 of 1980, defendant failed

to remedy the said breach within the required 30 days’ period, in consequence of which
plaintiff hereby cancels the instalment sale agreement.
6. In the premises:
(a) plaintiff is entitled to repossess the goods;
(b) plaintiff is entitled to an order declaring the amounts paid by defendant to be

forfeited in favour of plaintiff;
[Page 125]
(c) plaintiff is entitled to recover from defendant an amount calculated by

deducting from the total purchase price the deposit and instalments paid, such value as the
goods may have upon their return to plaintiff, and such reduction of finance charges to which
defendant may be entitled.
7. Plaintiff will be unable, until the return of the goods to it and the subsequent
determination of the value thereof, to determine the amount due to it in terms of paragraph
6(c) above.
(a) An order directing defendant to return forthwith the motor vehicle, being
[description], to plaintiff and, failing compliance therewith within such time as may be
directed by the above honourable court, authorising and directing the sheriff to take the said
vehicle into his possession and to deliver the same to plaintiff.
(b) An order declaring the amounts paid by defendant to be forfeited in favour of

plaintiff.
(c) That judgment for the amount to which plaintiff may be entitled in terms of paragraph
6(c) above, together with interest thereon, be postponed sine die, pending the return of the
goods to plaintiff, the subsequent determination of the value thereof, and the subsequent
calculation of the amount to which plaintiff is entitled.
Claim – for damages (goods already recovered)
1. 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 annexed hereto and marked “A”.
2. The material terms of the agreement of lease were the following:
(a) [payments];
(b) [breach clause entitling cancellation, repossession, forfeiture and damages];
(c) [interest];
(d) [scale of costs];
(e) [and so on].
3. Plaintiff has performed its obligations in terms of the agreement of lease.
4. Defendant has paid the initial rental and has paid certain further rentals.
5. In breach of the agreement of lease, defendant has [state nature of breach].
6. In consequence of the aforesaid breach of contract, plaintiff cancelled the

agreement of lease.
7. The arrear rentals as at the date of cancellation of the agreement of lease

amount to [Rx].
8. The total rentals which would have fallen due after the cancellation of the
agreement of lease amount to [Ra].
9. (a) Plaintiff has received possession of the vehicle from defendant,

defendant having voluntarily returned the vehicle to plaintiff.
(b) The vehicle was subsequently sold for [Rb], being in excess of the fair market
value of the vehicle at the time of recovery of possession thereof by plaintiff.
10. In consequence of the aforesaid breach of contract and subsequent cancellation

of the agreement of lease, defendant is obliged to pay the following amounts to plaintiff:
(a) arrear rentals as at the date of cancellation of the agreement of lease, being the
amount of [Rx];
(b) damages calculated in accordance with the provisions of the agreement of
lease, being the amount of [Ra–Rb], which amount is calculated as follows:
Total rentals which would have fallen due after the date of cancellation [Ra]
Less the value of the goods [Rb]
[Ra–Rb]
11. The reduction of finance charges to which defendant may be entitled in terms
of the provisions of the Usury Act 73 of 1968 will be calculated as at the date of judgment
and deducted from the damages aforesaid.
[Page 126]
(a) Payment of the sum of [Rx].
(b) Interest on the said sum of [Rx] at the rate of [percentage] per annum from the [day
after the date of cancellation] to the date of payment.
(c) Payment of the sum of [Ra–Rb], less such reduction of finance charges to which
defendant may be entitled, calculated as at the date of judgment.
(d) Interest on the said sum in prayer (c) at the rate of [percentage] per annum from the
date of judgment to the date of payment.
Custom and Customary Law
Indigenous law: Any court may take judicial notice of the law of a foreign state and of
indigenous law, in so far as such law can be ascertained readily and with sufficient certainty.
Law of Evidence Amendment Act 45 of 1988 s 1
Otherwise, indigenous law has to be proved as custom. In cases between blacks, a party may
rely on indigenous law but has to allege and prove the:
(a) tribal connection of the two litigants;
(b) particular system of indigenous law applicable; and
(c) relevant principles which are applicable.
Maisela v Kgolane NO [2000] 1 All SA 658 (T); 2000 (2) SA 370 (T)
These rules must not be in 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)
Custom as a rule of law: Customs observed within a community may harden into rules of
law. The force of such customs has its origin in the convictions and tacit acceptance of the
community concerned. In order 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; and
(d) be certain.
Van Breda v Jacobs 1921 AD 330
Trade usage: Trade usage may form an implied or tacit term of an agreement. It may be
implied even if one of the parties was unaware of its existence. The implication must
nevertheless be necessary and not merely reasonable. The requirements relating to proof of a
custom are equally applicable.
Bertelsmann v Per 1996 (2) SA 375 (T) at 382–383
Onus: The party wishing to rely on either custom or trade usage has to plead and prove such
custom or usage.
Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA 642 (C) at 464
PRECEDENTS
Claim
1. Plaintiff is an advocate.
2. Defendant is an attorney.
[Page 127]
3. Defendant engaged the plaintiff‘s professional services on behalf of the

defendant’s client.
4. Defendant in so doing acted on the instructions of the client.
5. Plaintiff duly performed the mandate according to his instructions.
6. Plaintiff rendered accounts to the defendant in respect of the said work.
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 said 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: Delictual
• Deceased Estates
• Declaration of Rights
• Defamation • Defamation: Defences
• Delict
• Deposit
• Designs • Divorce
• Donation
• Duress
Damages: Delictual
Related subjects: CONTRACT: DAMAGES
CONTRIBUTORY NEGLIGENCE
INIURIA (for sentimental damages)
LEX AQUILIA
POSSESSORS: DAMAGES CLAIMS BY
WORKMEN’S COMPENSATION
General: It is for the plaintiff to allege and prove the damages suffered as a result of the
defendant’s wrongful act. A plaintiff claiming for 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 (2) SA 1 (A)

Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (SCA) at par 22
See : MOTOR VEHICLE ACCIDENTS
A defendant who, in the plea, admits liability for payment of damages but for a lesser amount
than that claimed, need not particularise the admission; nor does such admission attract any
onus.
Turners Asbestos Products (Pvt) Ltd v G Straw & Son (Pvt) Ltd 1974 (3) SA 286 (R)
Difficulties of proving damages: If damages are difficult to determine or cannot be assessed

with certainty, the plaintiff will be entitled to judgment upon production of all the evidence
that can reasonably be produced to enable the court to assess the quantum of damage.
Hersman v Shapiro & Co 1926 TPD 367 at 367–379
Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A)
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (A); 1997 (4) SA 399 (SCA)
Sentrachem Bpk v Wenhold 1995 (4) SA 312 (A)
Venter v Bophuthatswana Transport Holdings (Edms) Bpk [1997] 2 All SA 257 (A); 1997 (3)
SA 374 (SCA)
De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA)
Actuarial calculations: Actuarial calculations provide a guideline only and a court is not tied
down by them.
Lambrakis v Santam Ltd 2000 (3) SA 1098 (W)
[Page 128]
“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) SA 814 (A) at 835
Signature Design Workshop CC v Eskom Pension & Provident Fund 2002 (2) SA 488 (C)
Measure of damages: A plaintiff is entitled to recover from the wrongdoer the amount by
which the plaintiff’s patrimony was diminished as a result of the wrongdoer’s conduct.
Trotman v Edwick 1951 (1) SA 443 (A)
Ranger v Wykerd 1977 (2) SA 976 (A)

Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at 917
The measure of damages is the value of the article to the owner and that value is determined
as the value of such article on the day of the delict.
In order to prove that amount, the plaintiff may, in respect of damage to an article, prove the
reasonable cost of repairs to that article in order to restore it to its original state,
Ranger v Wykerd 1977 (2) SA 976 (A) at 992
or the difference between the pre-delict value and the post-delict value.
Smit v Saipem 1974 (4) SA 918 (A)
De La Rey’s Transport (Edms) Bpk v Lewis 1978 (1) SA 797 (A)
The plaintiff is entitled to the lesser of the two amounts and has to show that the measure
chosen is the correct one under the circumstances.
Albertus v Jacobs 1975 (3) SA 836 (W)
Ngubane v SA Transport Services 1991 (1) SA 756 (A) at 784–785
The fact that the plaintiff, in the pleadings, relied on one of these methods does not
necessarily disqualify her or him from proving the amount of damages via the other method.
Joubert v Santam Versekeringsmaatskappy Bpk 1978 (3) SA 328 (T)
(It is unlikely that the defendant would have been taken by surprise, because of the
requirement of expert summaries.)
In respect of the complete loss of an article, the plaintiff must establish its market or
replacement value at the date of the delict.
The assessment of the damages suffered requires that one does not have regard to the
detrimental consequences of the delict, nor to the advantageous results of such delict.
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:

(a) actual pecuniary loss – for example, medical expenses and loss of earnings;
(b) pain and suffering;
[Page 129]
(c) actual pecuniary prospective loss – for example, future medical expenses and loss of
future earnings;
(d) actual pecuniary loss of an earnings capacity.
Actual loss implies that there must be a diminution of the plaintiff’s estate.
Rudman v Road Accident Fund [2002] 4 All SA 422 (SCA); 2003 (2) SA 234 (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 particulars of the claim in such a manner as to enable
the defendant to estimate the quantum. 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 have to be estimated).
Thompson v Barclays Bank, DCO 1965 (1) SA 365 (W)
Durban Picture Frame Co (Pty) Ltd v Jeena 1976 (1) SA 329 (D)
Simmonds v White 1980 (1) SA 755 (C)
Bell, Van Niekerk & Van Niekerk v Oudebaaskraal (Edms) Bpk 1985 (1) SA 127 (C)
Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a LH
Marthinusen 1992 (4) SA 466 (W)
Minister van Wet & Orde v Jacobs 1999 (1) SA 944 (O)
For the purpose of making a tender, a defendant is entitled to know the true nature of the
plaintiff’s claim. The rule does not contemplate that a defendant can sit back and expect to be
supplied with all the information that [Page 130] might be required in order to make an
adequate tender. he defendant is not entitled to an “advance abridged edition” of plaintiff’s
evidence.
Simmonds v White 1980 (1) SA 755 (C)
It should be noted that 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 prove that the amount claimed by the plaintiff does
not represent the true amount for which the defendant is liable, because of a failure by the
plaintiff to have prevented the accumulation of loss. Reliance on such a failure requires a
positive allegation to that effect and is one that 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 what the damages are.
Van Almelo v Shield Insurance Co Ltd 1980 (2) SA 411 (C)
Jayber (Pty) Ltd v Miller 1980 (4) SA 280 (W)
Krugell v Shield Versekeringsmaatskappy Bpk 1982 (4) SA 95 (T)
A court should not be astute in holding that the defendant has discharged this onus.
De Pinto v Rensea Investments (Pty) Ltd 1977 (4) SA 529 (A)

The test is one of reasonableness.
Smit v Abrahams 1994 (4) SA 1 (A) at 11–12
Collateral benefits: Generally, any compensation a plaintiff receives from a collateral source,

wholly independent of the wrongdoer, does not operate to reduce the damages recoverable.
Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) at 168
The exact limits of this rule cannot be stated succinctly. For instance, ascertaining a
plaintiff’s loss due to an infringement of earning capacity, every benefit (i) under the contract
of employment and (ii) 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, in general, insurance payments 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 (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 as a result of a person’s death, no insurance
money, pension or benefit which has been or will or may be paid as a result of the death, may
be taken into account.
Assessment of Damages Act 9 of 1969 s 1
Inquiry into damages: Except for patent and copyright cases (where special provisions apply)
a plaintiff is not entitled to claim an inquiry into damages. The plaintiff must allege the
quantum of damages in the particulars of claim.
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) at 328
Rectifier & Communication Systems (Pty) Ltd v Harrison 1981 (2) SA 283 (C)
A plaintiff who, in addition to a declaratory order or an interdict, claims damages, alleges an

inability, existing at that stage, to quantify the damages may claim that the action be
postponed in order that the question of the damages [Page 131] suffered may be investigated
and determined by the court. If the parties are unable to reach agreement regarding the future
conduct of the case, any party may apply in terms of Uniform rule 33(5) for directions.
Loss of support: See : LOSS OF SUPPORT.
Interest: For interest on damages, see: INTEREST.
Deceased Estates
See : ADMINISTRATION OF DECEASED ESTATES

Declaration of Rights
The 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
such person cannot claim relief consequent upon the determination.
Supreme Court Act 59 of 1959 s 19(1)(a)(iii)
The present provision differs somewhat from its antecedent and some of the older decisions
dealing with the subject are no longer fully applicable.
Court: Only the high court may grant a declaration of rights.
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 can be utilised.
Claimants must set out their contentions as to their alleged right, and what interest they have
in the right.
Electrical Contractors’ Association SA v Building Industries Federation SA (2) 1980 (2) SA

516 (T)
Interested person: It is an essential requirement that there be an interested person upon whom
the declaration will be binding. That does not mean that there must be an existing dispute.
Ex parte Nell 1963 (1) SA 754 (A)
Preston v Vredendal Co-Operative 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 & Security 1997 (3) SA 514 (CC)
It is not the function of a court to act in a consulting or advisory capacity. It may, however, in
appropriate circumstances, base a declaration of right on assumed facts.
Compagnie Interafricaine de Travaux v SA Transport Services 1991 (4) SA 217 (A) at 230
All interested parties must be joined.
Stadsraad van Randburg v Ludorf NO 1984 (3) SA 469 (W)
[Page 132]
“Right”: A court cannot grant a declaration as to a fact. The declaration must relate to a right.
The persons who have such a right are those in whom the right inheres or against whom it
avails.
Electrical Contractors’ Association SA v Building Industries Federation SA (2) 1980 (2) SA

516 (T)
The right or obligation can be in existence, in futuro or contingent. The word “contingent” is
used in the sense of “not vested”. This means that the order may be granted before the cause
of action arises.
Suid-Afrikaanse Onderlinge Brand- en Algemene Versekeringsmaatskappy Bpk v Van den

Berg 1976 (1) SA 602 (A)
Discretion: If the court is satisfied that the claimant is an interested person and that there is
an existing, future or contingent right or obligation, the court’s discretion arises as to whether
or not it should issue a declaration.
Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A)
South African Mutual Life Assurance Society v Anglo-Transvaal Collieries Ltd 1977 (3) SA
642 (A)
In considering whether to exercise its discretion in favour of issuing a declaratory order, the
court may have regard to whether:
(a) there is an existing dispute;
(b) the order will be binding; and
(c) the claimant can claim other, and consequential, relief.
Ex parte Nell 1963 (1) SA 754 (A)
Mahomed v Mahomed 1976 (3) SA 151 (T)
Safari Reservations (Pty) Ltd v Zululand Safaris (Pty) Ltd 1966 (4) SA 165 (D)
Declaratory relief may be granted under the prayer for alternative relief.
Luzon Investments (Pty) Ltd v Strand Municipality 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.
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 entered into 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].
[Page 133]
3. Defendant alleges that the option is void because of non-compliance with the
provisions of section 2 of the Alienation of Land Act 68 of 1981 in that the property is not
identifiable from the document.
4. Plaintiff alleges that the option is not void for the reason stated or for any
other reason.
WHEREFORE 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
Bill of rights: The Bill of Rights initially created a great deal of uncertainty in the field of
defamation since it protects conflicting rights, namely that 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 to determine the ranking in the field
of defamation is difficult. Many of the problems have been solved by recent judgments of the
Supreme Court of Appeal and the Constitutional Court.
National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA)
Khumalo v Holomisa 2002 (5) SA 401 (CC)
Parties: A trading corporation is entitled to claim for general and actual damages caused by
defamatory statements injuring its reputation as a business. A non-trading corporation can, in
general, similarly sue for defamation if the statement concerning the way it conducts its
affairs is calculated to cause it financial prejudice.
Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A)
Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A)
Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 460
Even judges can sue.
Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A)
As can political bodies.
Argus Printing & Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A)
African National Congress v Inkatha Freedom Party [1999] 3 All SA 47 (W)
On the other hand, the State and its organs cannot be defamed;
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)
although its officers (for example, ministers) can be defamed.
SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A)

to delictual claims. If a defendant is amenable to the jurisdiction of a court, that court has
jurisdiction in respect of a defamation published outside its jurisdiction.
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) SA 755 (C) at 759
[Page 134]
Cause of action: The actio iniuriarum protects, in this case, the dignity of the plaintiff. The
action has, in relation to defamation, certain special characteristics which will be dealt with
hereinafter.
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, “or more or less those words” (or some similar
qualification), were used. Their effect and meaning are a matter for the court to decide, but
the plaintiff must prove the words spoken or words bearing a similar meaning that are
substantially the same.
International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A) at 613–614
Moyse v Mujuru 1999 (3) SA 39 (ZSC)
De Villiers v Schutte 2001 (3) SA 834 (C) at 837–839

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 a specification of the defamatory passages.
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C)
The question is then whether the document as a whole is defamatory.
Depending on the length and nature of the document, failure to specify the defamatory
passages may render the pleading vague and embarrassing.
Deedat v Muslim Digest 1980 (2) SA 922 (D) at 928
Where the statement is defamatory per se, a plaintiff may attach a particular meaning in the
form of a “quasi innuendo” to it and point to its sting. The plaintiff need not allege a sting
but, once a sting is alleged, the plaintiff is bound to that sting and may not rely on any other.
Marais v Steyn 1975 (3) SA 479 (T) at 486
Demmers v Wyllie 1978 (4) SA 619 (D) at 622
If the words published are, according to the defendant, materially different from those alleged
by the plaintiff, a defence based on the former 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) SA 1 (RA)
De Villiers v Schutte 2001 (3) SA 834 (C)
Wrongfulness: As a general rule, it can be accepted that publication of a defamatory

statement is prima facie wrongful. 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 the facts that dispel
wrongfulness – for example, truth and public interest.
Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 769–780
Publication: The plaintiff must allege and prove publication of the defamatory statement.
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, as a general rule, only those persons whose identities have been
pleaded may be called as witnesses to prove the publication. The purpose of the rule is to
prevent the defendant from being taken by surprise.
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4) 1955 (2) SA 40 (W)
Mograbi v Miller 1956 (4) SA 239 (T)

[Page 135]
If the name of the person to whom the publication was made is unknown, such fact must be
alleged.
Pillay v Naidoo 1916 WLD 151
If publication takes place in a publicly distributed document, it is not necessary to list the
name or names of readers because it is factually presumed that publication did take place.
There can be no publication unless or until the addressee understands the defamatory nature
of the statement.
Vermaak v Van der Merwe 1981 (3) SA 78 (N)
The re-publication by the same person of a defamatory statement does not necessarily create
a new cause of action, but may aggravate the damages.
Mograbi v Miller 1956 (4) SA 239 (T)
The re-publication thereof by a third person will, however, create a separate cause of action
against the latter.
Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) at 565
It is advisable to state where the defamatory statement was published.
Rieseberg v Berry 1914 TPD 561
Reference to plaintiff: The general rule is: “In every defamation action the plaintiff must
allege and prove that the defamatory words were published of and concerning him. So too, in
a case of a so-called class or group libel, the plaintiff can only succeed if it is proved at the
trial that the matter complained of, though expressed to be in respect of the class or group of
which he is a member, is in fact a publication thereof and concerning him personally.”
SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) at 810
The usual allegation is that the words were published “of and concerning the plaintiff”.
If the plaintiff is not directly referred to by name in the statement, special 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 to be applied is whether the ordinary reasonable man hearing or reading the utterance
would be likely to apply it to the plaintiff.
Sauls v Hendrickse 1992 (3) SA 912 (A)

This is an objective question, capable of determination at the exception stage, of “whether the
words (pleaded) are reasonably capable of conveying to the reasonable reader, having
average intelligence and knowledge” that the defamatory article refers to the plaintiff.
SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) at 811
A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C)
Defamatory nature of the statement: Although the plaintiff must allege that the statement was
defamatory, 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) at 703–704
Sindani v Van Der Merwe [2002] 1 All SA 311 (A); 2002 (2) SA 32 (SCA)
The matter can be decided on exception.
Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) at 20
Johnson v Beckett 1992 (1) SA 762 (A)
Mangope v Asmal 1997 (4) SA 277 (T)
[Page 136]
If the words complained of are capable of having a defamatory meaning in their ordinary
sense, a cause of action is disclosed and that cause of action does not cease to be disclosed if
the pleader, in paraphrasing the words, adds something in excess of their ordinary meaning.
New Age Press Ltd v O’Keefe 1947 (1) SA 311 (W)
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) at 1226
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) SA 562 (W)
Political matters: The fact that the plaintiff is a political or public figure does not affect the
onus.
Khumalo v Holomisa 2002 (5) SA 401 (SCA)
See : DEFAMATION DEFENCES
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) SA 1 (A) at 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 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 but is not debarred from
relying on the ordinary meaning if such meaning is defamatory per se.
New Age Press Ltd v O’Keefe 1947 (1) SA 311 (W)
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
If a plaintiff relies on a secondary meaning, evidence is necessary because the plaintiff must
prove the special circumstances by reason whereof the published matter would, to those
aware of those circumstances, bear the secondary meaning relied upon. The plaintiff must
also prove that there were persons, among those to whom the publication was made, who
were aware of the special circumstances and to whom it can, therefore, be inferred that
publication was likely to have conveyed the imputation relied upon.
Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W)
Unie Volkspers Bpk v Rossouw 1943 AD 519 at 524
Sutter v Brown 1926 AD 155 at 166
Falsity: Falsity is not a matter to be alleged or proved by the plaintiff, because the

defamatory nature of a statement does not dependent on its falsity.
Sutter v Brown 1926 AD 155 at 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 (5) SA 401 (SCA) par 43
[Page 137]
The truth of the statement may affect the quantum of damages.
Animus iniuriandi : Animus iniuriandi has two elements, namely the intent to defame and
knowledge of wrongfulness.
SAUK v O’Malley 1977 (3) SA 394 (A)
A plaintiff who must allege animus iniuriandi is assisted by a presumption that the
publication of a defamatory statement takes place animo iniuriandi. Thus, the defendant bears
the onus of disproving this position.
See : DEFAMATION DEFENCES
If the defamation was committed by a member of the public media (for example, the press,
radio or television), the plaintiff need not allege or prove animus iniuriandi. The defendant is
entitled to plead and prove the lack of animus iniuriandi, provided the defendant was not
negligent in publishing the utterance in question.
Marais v Groenewald [2000] 2 All SA 578 (T); 2001 (1) SA 634 (T)
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)
Apology: While it is not competent to order a defendant to publish an apology, an order

making payment of damages subject to the failure to apologise is possible.
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W)
Damages: The plaintiff need not give particulars relating to the quantification of general
damages or provide particulars in respect of the plaintiff’s reputation, standing in the
community, character or the extent of the publication.
Simmonds v White 1980 (1) SA 755 (C) at 758
Although not a rule of pleading, a rule of practice requires that a defendant give notice, prior
to the trial, of an intention to lead evidence, in mitigation of damages, on the general
character or reputation of the plaintiff.
Klisser v SA Associated Newspapers Ltd 1964 (3) SA 308 (C)
Thole v Minister of Justice 1967 (3) SA 531 (D)
For the factors relevant in determining the quantum of damages, see:
SA Associated Newspapers Ltd v Samuels 1980 (1) SA 24 (A)

Buthelezi v Poorter 1975 (4) SA 608 (W)
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd [2001] 1 All SA 425 (A); 2001 (2) SA
242 (SCA)
The plaintiff may also claim for actual patrimonial loss, in which event the principles
applicable to proof of damages apply.
Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A)
See : DAMAGES: DELICTUAL
Where the plaintiff claims damages in respect of two separate defamatory publications,
damages ought to be apportioned in the pleadings. If the two publications are of the same
statement, this rule does not apply.
Argus Printing & Publishing Co Ltd v Rutland 1953 (3) SA 446 (C)
[Page 138]
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 general 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. As a result of the defamation, plaintiff has been damaged in his reputation and
has suffered damages in the amount of [amount].
WHEREFORE 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. As a result 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 law-abiding citizen;
(b) a coward; and
(c) without moral fibre.
[Page 139]
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.
Claim – alleging innuendo
1. The said article stated, inter alia, of plaintiff that “he is, oh, so honest”.
2. In the context of the article as a whole, 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.
Claim –alleging innuendo
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).]
Exception – non-defamatory 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 particulars of claim, therefore, do not disclose a cause of action.
Defamation: Defences
Related subjects: DEFAMATION

Denial of defamation: A defendant who sets up the defence that the words complained of,
although prima facie defamatory, were used in a non-defamatory sense, is obliged to plead
the meaning which must be assigned to them, as well as the special circumstances on which
reliance is placed in support of this non-defamatory meaning.
National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984
Marais v Steyn 1975 (3) SA 479 (T) at 484–485
[Page 140]
In such event, the onus would, presumably, rest on the defendant to prove these special
circumstances.
The defendant is under no obligation to particularise the denial of the plaintiff’s construction
of the statement.
Brett v Schultz 1982 (3) SA 286 (SE)
Similarly, the defendant, in denying an innuendo, is not obliged to provide her or his own
interpretation of the statement or any extrinsic facts relating to it.
National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984
Absence of animus iniuriandi – public media: As has been indicated before, a member of the
public media can rely on the absence of animus iniuriandi in order to escape liability for a
defamatory publication disseminated via the media, provided the defamatory publication was
not disseminated negligently.
Animus iniuriandi – denial: A bare denial of animus iniuriandi by a defendant does not
suffice because the onus is on the defendant. It is not enough to allege that the publication
was lawful.
SAUK v O’Malley 1977 (3) SA 394 (A) at 403
Brett v Schultz 1982 (3) SA 286 (SE) at 292
Animus iniuriandi – onus: On proof by the plaintiff that the defamatory words were used by
the defendant and that they referred to the plaintiff, there is a rebuttable presumption that they
were used wilfully and knowingly and that the object of their use was to defame the plaintiff
– that is, that their publication was wrongful and that the defendant acted animo iniuriandi.
The onus is then on the defendant to establish some lawful justification or excuse for the
publication or establish the absence of an intention to injure the plaintiff.
Marais v Groenewald [2000] 2 All SA 578 (T); 2001 (1) SA 634 (T)
Categories: Although, in the past, certain “stereotyped defences” to rebut the presumption

referred to above were used, such terminology is no longer technically necessary and the
defence of absence of animus iniuriandi can be established without reference to them. If one
of these defences is specifically pleaded, it will fall to be dealt with according to established
principles.
Jest: The defendant must show that the defamatory statement was made in jest and was, in
the circumstances, so understood and could not reasonably have been understood in a
defamatory sense.
Rixa: If defamatory words are spoken in sudden anger provoked by the plaintiff, it may
constitute a defence.
Benson v Robinson & Co (Pty) Ltd 1967 (1) SA 420 (A) at 426
This can be pleaded in the alternative to a denial of the words used or to a plea of
justification.
Wood NO v Branson 1952 (3) SA 369 (T)
Lichtenburg Garage (Pty) Ltd v Gerber 1963 (4) SA 395 (T)
[Page 141]
Lack of knowledge of wrongfulness (“afwesigheid van

wederregtelikheidsbewussyn”): Knowledge of wrongfulness is an element of animus
iniuriandi and lack thereof is part of the defence. Whether it is a defence if the lack of
knowledge is the result of negligence, is a moot point.
Denial of wrongfulness: It is for the defendant to allege and prove that the defamation was
not wrongful. The real question is whether making the statement was reasonable and,
therefore, justifiable. It is advisable to cast the defence in one or other of the traditional
moulds.
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 Mails 1928 AD 190
Yazbek v Seymour [2000] 2 All SA 569; 2001 (3) SA 695 (E)
It is not necessary for the truth of every word used to be proved literally.
Smit v OVS Afrikaanse Pers Bpk 1956 (1) SA 768 (O)
It is sufficient for a statement to be substantially true in every material part.
Johnson v Rand Daily Mails 1928 AD 190 at 505–506
Verwoerd v Paver 1943 WLD 153
“Anything that does not add to the sting need not be justified.”
Yusaf v Bailey 1964 (4) SA 117 (W) at 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 taken into
account.
It is not a matter for exception.
Kemp v Republican Press (Pty) Ltd 1994 (4) SA 261 (E)
Public media privilege: A defendant who cannot establish the truth of a defamatory
statement can nevertheless rely on the reasonableness of the publication of the statement as a
defence.
The defendant must allege and prove that he or she had reason to believe in the truth of the
statement, took reasonable steps to verify its correctness, and that it was reasonable, in all the
circumstances of the case, to have published it.
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 so have been understood by a reasonable hearer;
(b) the comment was fair. It need not necessarily have been impartial or well balanced.
“Fair” is used in the vague sense “that it does not exceed certain limits”;
[Page 142]
(c) the facts commented on were truly stated; and
(d) the matter was of public interest.

Crawford v Albu 1917 AD 102
Marais v Richard 1981 (1) SA 1157 (A)
Johnson v Beckett 1992 (1) SA 762 (A)
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 in the course of litigation. The
test is an objective one and the court will judge by the standard of the reasonable man, having
regard to the relationship between the parties and the surrounding circumstances.
Borgin v De Villiers 1980 (3) SA 556 (A) at 577
242 (SCA)
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) SA 654 (A)
Herselman NO v Botha 1994 (1) SA 28 (A) at 35
Qualified privilege – rebuttal: The plaintiff may rebut the defence by alleging (in her or his
replication) and proving:
(a) that the statement did not have some foundation in the evidence or circumstances
surrounding the case, that it was not germane; or
(b) malice, that is an indirect or improper motive.
May v Udwin 1981 (1) SA 1 (A)
Alternatives: More than one defence may be pleaded but it is normally necessary to plead
them in the alternative. Problems may arise in presenting the evidence because evidence in
respect of one defence may be inadmissible in respect of another.
Strydom v Fenner-Solomon 1953 (1) SA 519 (E) at 527
A plea stating that, in so far as the words are statements of fact, they are true and, in so far as
they are expressions of opinion, they constitute fair comment on a matter of public interest is
not excipiable.
Van der Hoven v Erasmus 1922 TPD 1

A plaintiff is entitled to know whether the defendant is setting up a defence of justification or
fair comment or both. This is why a so-called “rolled-up plea” – that is, a plea combining
justification and fair comment in 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) SA 585 (W) at 588
Malice: Even if the defendant shows circumstances that provide a justification for the
statement, such defence will fail if it is proved that the defendant nevertheless intended to
injure the plaintiff’s reputation. The presence of “malice” or “express malice” may, therefore,
be relevant in this regard.
May v Udwin 1981 (1) SA 1 (A) at 18–19
Joubert v Venter 1985 (1) SA 654 (A)
[Page 143]
The protection afforded by the defence of fair comment will be forfeited if the publisher of
the words acted with malice or an improper motive.
Crawford v Albu 1917 AD 102
The plaintiff bears the onus in this regard.
Cf Joubert v Venter 1985 (1) SA 654 (A)
PRECEDENTS
Claim – 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.
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 in essence 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 in the course of a
judgment and the statement was germane to the issue in the case; or
(a) the statement was not a statement of fact but a comment concerning a matter of public
interest, namely the finances of a public body;
(b) the comment was fair in the circumstances;
(c) 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 – ie, not caring whether
the content of such articles were true or false. The facts upon which the defendants will rely
in this context are [detail];
(c) the defendants were not negligent in publishing any of the articles. The facts upon
which the defendants will rely in this context are [detail];
(d) in view of the facts alleged, the publications were objectively reasonable;
(e) the articles were consequently published without animus injuriandi.
[See National Media Ltd v Bogoshi [1998] 4 All SA 347 (SCA); 1998 (4) SA 1196 (SCA).]
Replication – to plea
1. It is admitted that the statement was made by defendant in his capacity as

magistrate in the course of 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.
[Page 144]
3. It is denied that defendant did act lawfully or without the alleged intent and
plaintiff alleges that defendant made the statement maliciously having special regard to a
dispute concerning [detail] between plaintiff and defendant which dispute has no bearing on
the matter heard by defendant.
Delict
See : DAMAGES: DELICTUAL, INIURIA, LEX AQUILIA

Deposit
Related subjects: EXEMPTION CLAUSES
The depositor’s claim: A depositor’s claim against the depository can be either for the return
of the thing deposited or for its value. The depositor must allege and prove:
(a) the contract of deposit;
(b) delivery of the thing to the depository;
(c) the value of the thing (if this is claimed in the alternative or otherwise).
Non-return 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
If no contractual relationship existed between the parties, the abovementioned rules do not
apply and the cause of action will have to be the actio legis Aquiliae.
United Building Society v DI Stone (Pty) Ltd 1988 (4) SA 795 (E) at 800
The 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 and damaged; and
(i) in the case of a gratuitous deposit, the absence of gross negligence; or
Transitional Local Council of Randfontein v ABSA Bank [2000] 2 All SA 134 (W); 2000 (2)
SA 1040 (W)
(ii) in the case of a deposit for remuneration, that the destruction or damage
occurred without fault;
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)
[Page 145]
In the case of a dispute as to the existence of such a clause as part of the contract of
deposit, it will be for the depositor to replicate and to prove that the clause was not a term of
the contract.
Yeats v Hoofwegmotors 1990 (4) SA 289 (NC)
(3) SA 110 (NC)
If the claim is in delict and the defendant wishes to rely on the exemption clause, the
position is different in that it will then be for the defendant to allege and prove the exemption
clause.
Durban’s Water Wonderland (Pty) Ltd v Botha [1999] 1 All SA 411 (A); 1999 (1) SA 982
(SCA)
The scope of protection given by such a clause is a matter of interpretation.
The depositor may plead that the clause does not protect the depository because, for
example, of fraud;
Essa v Divaris 1947 (1) SA 753 (A)
King’s Car Hire (Pty) Ltd v Wakeling 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) SA 964 (O)
Gross negligence: The term is not capable of precise definition. It is something less than a
conscious risk-taking but must involve a departure from the standard of the reasonable man
such that it can be categorised as extreme.
Transnet Ltd t/a Portnet v The Owners of the MV ‘Stella Tingas’ [2003] 1 All SA 286 (SCA)
at par 7
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 146]
Designs
Related subjects: COPYRIGHT
UNFAIR COMPETITION
Statute: The Designs Act 57 of 1967 dealing with the registration and protection of designs
was replaced by the Designs Act 195 of 1993. Provision is now made for two categories of
designs, namely aesthetic designs and functional designs.
An aesthetic design under the 1993 Act is defined in terms similar to those used to define
“design” in the 1967 Act, namely 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.”
Robinson v D Cooper Corp of SA (Pty) Ltd 1984 (3) SA 699 (A)
A functional design means “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 usually artistic works and are protected by the
provisions of the Copyright Act 98 of 1978. There is, however, a limitation in the Copyright
Act concerning the protection of artistic works of which works three-dimensional
reproductions have been made available to the public, if such authorised reproductions
primarily have a utilitarian purpose and are made by an industrial process.
Copyright Act 98 of 1978 s 15A
Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd [2002] 4 All SA 67 (SCA); 2003
(1) SA 31 (SCA)
Apart from this, the advantage of a registered design is that it gives, not unlike a patent, a
monopoly: it is 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.
Unless protected by registration, a design has very little common-law protection.
Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134 (A); 1997 (1) SA 416 (SCA)
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 1993 ss 20 and 35(1)
Infringement: A registered design is infringed by the making, importing, using or disposing

of any article included in the class in which the design is registered, embodying the registered
design or a design not substantially different from the registered design.
Designs Act 195 of 1993 s 20(1)
Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd 1984 (3) SA 681 (A)
[Page 147]
Defences: The Act provides for special defences in the case of design in the form of an
integrated circuit topography.
Onus: There is a presumption that a registered design is valid. It follows that the plaintiff
must prove the 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. The plaintiff can, in this regard,
utilise a certificate from the registrar.
Designs Act 195 of 1993 ss 39 and 40
Relief: The relief to which a plaintiff is entitled is an interdict, 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 sub-licensee in respect of the registered design concerned).
Cf Morris v Benson and Hedges 2000 (3) SA 1092 (W)
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 who will have to allege and prove the particular statutory
ground of invalidity relied upon.
Designs Act 195 of 1993 s 31
Registrar: In spite of Brudd Lines (Pty) Ltd v Badsey (1) 1973 (3) SA 972 (T), it is submitted
that it is not necessary to join the Registrar of Designs if the validity of the design registration
is attacked in infringement proceedings. The Registrar was, for instance, not joined in Schultz
v Butt 1986 (3) SA 667 (A).
Cf Designs Act 195 of 1993 s 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 been manufacturing [metal

frames for trap doors] the shape and configuration of which is 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. As a result 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 148]
(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.
(b) 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 in the nature of a spare part for a vehicle.
2. The design was neither new nor not commonplace in the art in question
[detail].
Divorce
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 custody of the children by any factual averments
that support the implied conclusion that the interests of the children require that custody be
awarded to, say, the plaintiff.
The marriage: The plaintiff must allege and prove a valid and existing marriage. The best
evidence of the conclusion of a marriage is a marriage certificate issued by the relevant
authorities.
Jurisdiction: A divorce action may be instituted in a high court or in a divorce court

established under section 10 of the Administration Amendment Act 9 of 1929. No other court
has jurisdiction in divorce matters.
The plaintiff must allege and prove that the court has jurisdiction by virtue of one or other of
the following grounds of domicile or residence.
Jurisdiction – domicile: The parties to the action (or any one of them) must have been
domiciled in the area of jurisdiction of the court on the date on which the action was
instituted.
Divorce Act 70 of 1979 s 2(1)(a)
The domicile may be either a domicile of origin, a domicile of choice or one of proximity.
Eilon v Eilon 1965 (1) SA 703 (A)
Grindal v Grindal 1997 (4) SA 137 (C)
Domicile Act 3 of 1992 ss 1 and 2
[Page 149]
Jurisdiction – residence: The parties (or any one of them) must have been ordinarily resident
in the area of jurisdiction of that 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 1979 s 2(1)(b)
Jurisdiction – counterclaim: A court which has jurisdiction in relation to a claim also has
jurisdiction in respect of a claim in reconvention or a counter-application in the divorce
action concerned.
Divorce Act 70 of 1979 s 2(2)
Jurisdiction – other issues: The Divorce Act does not confer jurisdiction other than in
divorce proceedings and matters incidental thereto. For instance, it does not confer
jurisdiction in commercial disputes between the parties that do not arise from the marriage
relationship itself. For example, a court is not entitled to adjudicate on an alleged partnership
contract between spouses married out of community of property where the defendant husband
is no longer resident in South Africa.
Rousalis v Rousalis 1980 (3) SA 446 (C)
Marital regime: The marital regime is determined by the lex domicilii at the time of the
marriage.
Sperling v Sperling 1975 (3) SA 707 (A)
For the purposes of this note, it is assumed that the lex domicilii is South African law.
Children: The plaintiff must allege whether there are dependent and minor children. It is
proper to make allegations in regard to the welfare of these children since a decree of divorce
cannot be granted until the court is satisfied that the provisions made or contemplated with
regard to the welfare of any minor or dependent child of the marriage are satisfactory or are
the best that can be effected in the circumstances. Also, a decree of divorce cannot be
granted, if an enquiry was instituted by the Family Advocate, until the court has considered
the report and recommendations.
A party wishing to claim sole guardianship ought to make allegations supporting this claim.
It is not customary to make allegations in the body of the particulars of claim relating to the
amount of maintenance required. Maintenance is claimed without any antecedent.
Family advocate: There must be compliance with the regulations promulgated in terms of the
Mediation in Certain Divorce Matters Act 24 of 1987. The regulations were published under
Government Notice R2385 in Government Gazette 12781 of 3 October 1990 and have been
amended. The court may nevertheless condone any non-compliance.
Divorce Act 70 of 1979 s 5A
Grounds of divorce: The plaintiff must allege and prove the grounds on which a decree of
divorce may be granted. Where time, date and place or any other person’s identity is relevant
or involved, details thereof must be given in the relevant pleading.
Uniform rule 18(8)
[Page 150]
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 to the marriage 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 of the irretrievable breakdown of the marriage, evidence that:
(i) 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;
(ii) the defendant has committed adultery and that the plaintiff finds it
irreconcilable with a continued marriage relationship; or
(iii) the defendant has, in terms of a sentence of court, been declared an habitual
criminal and is undergoing imprisonment as a result of such sentence.
This provision has little, if any, practical value or effect.
Ground of divorce – mental illness: A court may grant a decree of divorce on the ground of
the mental illness of the defendant if it is satisfied that the defendant in terms of the Mental
Health Act 18 of 1973:
(i) has been admitted as a patient to an institution in terms of a reception order;
(ii) is being detained as a State patient at an institution or other place specified by

the Minister of Correctional Services; or
(iii) is being detained as a mentally ill convicted prisoner at an institution,
and that the defendant has, for a continuous period of at least two years immediately prior to
the institution of the divorce action, not been discharged unconditionally as such a patient,
State patient or mentally ill prisoner.
The plaintiff must also allege and prove that there is no reasonable prospect that the
defendant will be cured of the mental illness. For this, the evidence of two psychiatrists is
required, one of whom is appointed by the court. Their evidence is usually given, with the
prior leave of the court, by way of affidavit.
Before the institution of the action on this ground, an application for the appointment of a
curator ad litem and for the appointment by the court of a psychiatrist ought to be made.
Divorce Act 70 of 1979 s 5(1) and (3)
Ground of divorce – Unconsciousness: The plaintiff must allege and prove the following
facts:
(i) that, by reason of a physical disorder,
(ii) the defendant is in a state of continuous unconsciousness;
(iii) that the defendant’s unconsciousness has lasted for a continuous period of at
least 6 months prior to the institution of the divorce action; and
(iv) that there is no reasonable prospect that the defendant will regain
consciousness.
[Page 151]
Once again, it is advisable to apply, before institution of the action, for the appointment of a
curator ad litem and for the appointment of a neurologist or neurosurgeon.
Maintenance for spouse: A claim for payment of maintenance to one spouse normally has no
antecedent in the body of the particulars of claim.
The factors relevant in determining whether maintenance should be ordered and what the
amount should be are: 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 break-down 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 lump sum of maintenance may be awarded instead of periodic payments.
Zwiegelaar v Zwiegelaar [2001] 1 All SA 261 (A); 2001 (1) SA 1208 (SCA)
Settlement agreements: If a settlement is reached between the parties prior to the institution
of the action, it is proper to allege the conclusion of that agreement and to attach a copy
thereof to the particulars of claim. It is usually incorporated in the decree of divorce and
forms part of the order.
Tshetlo v Tshetlo [2000] 4 All SA 375 (W); 2000 (4) SA 673 (W)
Lebeloane v Lebeloane [2000] 4 All SA 525 (W); 2001 (1) SA 1079 (W)
Proprietary claims:
(a) Division of the joint estate is claimed without any allegations relating to the fact that
the parties do, in fact, have joint assets. Evidence is normally led in this regard. In view of the
fact that a division of the joint estate is a natural consequence of a divorce if a marriage is in
community of property, the prayer may be superfluous.
(b) Specific performance of any outstanding obligation created by an antenuptial contract

claimed, must be based on allegations relating to the terms of the contract and the defendant’s
failure to comply with them.
(c) Redistribution of assets can be claimed.
Divorce Act 70 of 1979 s 7(3) to (6)
It will be necessary for a plaintiff to make allegations that support such a

redistribution of assets.
As to the approach of a court in such cases, see:
Beaumont v Beaumont 1987 (1) SA 967 (A)
Kritzinger v Kritzinger 1989 (1) SA 67 (A)
(d) Forfeiture of patrimonial benefits can be claimed.
Divorce Act 70 of 1979 s 9
The court will 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.
Wijker v Wijker 1993 (4) SA 720 (A)
These factors have to be particularised.
Matyila v Matyila 1987 (3) SA 230 (W), overruled on other aspects by Wijker v Wijker 1993
(4) SA 720 (A)
[Page 152]
The claim is not competent if the divorce is granted on the grounds of mental illness
or continuous unconsciousness of the defendant.
See also: Matrimonial Property Act 88 of 1984 ss 9 and 10
(e) A division of any accrual, if applicable, may be claimed.
Divorce Act 70 of 1979 s 3 and 8
Reeder v Softline [2000] 4 All SA 105 (W); 2001 (2) SA 844 (W)
(f) A claim to pension benefits may be claimed.
Divorce Act 70 of 1979 s 7(7) and (8)
Ex Parte Randles: In re King v King [1998] 2 All SA 412 (D)
(g) The 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.
Mühlmann v Mühlmann 1984 (1) SA 97 (A)
The right of recourse between spouses in respect of moneys expended for household
necessaries is, because of section 23 of the Matrimonial Property Act, no longer of any
practical consequence.
Particulars: 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)
Religious constraints: If it appears to a court in divorce proceedings that, despite the decree
of divorce, the spouses, or either one of them, will, by reason of the prescripts of their
religion, or of the religion of either one of them, not be free to remarry unless the marriage is
also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the
spouse concerned is removed, the court may refuse to grant a decree of divorce unless the
court is satisfied that the spouse within whose power it is to have the marriage so dissolved or
the said barrier so removed, has taken all the necessary steps to have the marriage so
dissolved or the barrier to the remarriage of the other spouse removed, or the court may make
any other order that it finds just.
Divorce Act 70 of 1979 s 5A by s 1 of Act 95 of 1996
Amar v Amar [1999] 2 All SA 376 (W); 1999 (3) SA 604 (W)
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, preferably, their names and dates of birth.] They are still minors and are presently in
plaintiff’s [defendant’s] care.
[Page 153]
(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.
(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 : CITATIONS for detail.
2. The defendant is [full names], a [sex] [occupation] residing at [address]
3. Alternatives relating to the nature of the marriage
Post-nuptial 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.
[Page 154]
[set out reasons]
Mental illness as grounds for divorce
(a) Defendant has, in terms of a reception order dated [date] issued in terms of
Act 18 of 1973, 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].]
(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.
applicable].
(e) Costs of suit.
Claim – divorce and specific performance of the provisions of the antenuptial
2. The defendant is [full names], a [sex] [occupation] residing at [address]
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.)
[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.
[Page 155]
(b) Custody of the minor children born of the marriage.
applicable].
(e) An order that defendant comply with the antenuptial contract by [specify].
(f) Costs of suit.
Claim for redistribution – alternative to par 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.
(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
WHEREFORE plaintiff claims a decree of divorce incorporating the provisions of the
agreement annexed hereto.
Donation
A true donation is an agreement whereby the donor, motivated by pure liberality, undertakes
to give to a donee a gift without receiving, having received or expecting to receive any
advantage in return for it.
Remuneratory and reciprocal donations may have the appearance of donations but are not
true donations: 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 (4) SA 257 (A)
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.
Avis v Verseput 1943 AD 331
De Jager v Grunder 1964 (1) SA 446 (A)
(Whether the onus is a true onus or merely an evidentiary one or a rule of logic was debated
in three judgments of the full court in Barkhuizen v Forbes 1998 (1) SA 140 (E).)
Formalities: An executory donation is an agreement to give something in the future and an

executed donation is one which has already been completed. Any executory donation must be
in writing and the deed of donation must be signed by the donor or by a person acting on the
donor’s written authority, [Page 156] which authority was granted by the donor in the
presence of two witnesses. These formalities do not apply to an executed donation or to a
remuneratory or reciprocal donation.
A donation of “land” as defined in the Alienation of Land Act 68 of 1981 must also comply
with the formalities laid down in the 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 where the donation
was subject to a modus and the donee has breached the modus.
Benoni Town Council v Minister of Agricultural Credit & Land Tenure 1978 (1) SA 978 (T)
(Further, as to modus and an exception based thereon, see Coertzen v Gerard NO 1997 (2)
SA 836 (O).)
Spouses: Donations between spouses are no longer prohibited.
Matrimonial Property Act 88 of 1984 s 22
Rens v Gutman NO [2002] 4 All SA 30 (C)
The innocent spouse may recover a donation which was made by one spouse married in
community of property without the consent of the other.
Bopape v Moloto [1999] 4 All SA 277 (T); 2000 (1) SA 383 (T)
Donatio mortis causa : A donatio mortis causa is a donation made in contemplation of death.
It has to be executed with the same formalities as a testamentary disposition.
Jordaan v De Villiers 1991 (4) SA 396 (C)
It is revocable by the donor during his or her lifetime. There is a presumption that a gift was
made inter vivos and not mortis causa.
Keeve v Keeve NO 1952 (1) SA 619 (O)
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, namely [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 has refused to deliver the said items to plaintiff.
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 a certain immovable property situate at [location]. A copy of
the deed is attached hereto and marked “A”.
2. The property was duly 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 rent
received in respect of the property to the maintenance and education of one [X].
(b) Defendant has failed to apply the rent or any portion thereof to the
maintenance and education of the said [X].
[Page 157]
4. In the premises, plaintiff was entitled to revoke the donation and did so on
[date].
5. Despite the aforesaid revocation, defendant has failed or refused to return the
immovable property to defendant.
(a) An order confirming the revocation of the donation.
(b) An order directing defendant to retransfer the property into plaintiff’s name.
Duress
General: A contract concluded as a result of duress can be voided. The party wishing to rely
on duress must allege and prove:
(a) a threat of considerable evil to the person concerned or to her or his family which
threat induced a fear;
(b) that the fear was reasonable;
(c) that the threat was of an imminent or inevitable evil;
(d) that the threat or intimidation was unlawful or contra bonos mores;
(e) that the contract was concluded as a result of the duress.
Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) at 306
Savvides v Savvides 1986 (2) SA 325 (T) at 330
BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) at par 36
Duress by third parties: A party relying on duress exerted by a party other than a party to the
contract must allege and prove that the other party to the contract knew of the duress or
procured the act through the agency of the party who exercised the duress.
Malilang v MV Houda Pearl 1986 (2) SA 714 (A) at 731
Contra bonos mores : The question of whether a jural act concluded under the threat of
criminal prosecution is voidable on the ground that the duress is contrary to good morals is
moot. The correct approach appears to be to enquire whether, in the circumstances of the
case, the threat was contrary to good morals.
Oos-Transvaalse Koöperasie Bpk v Heyns 1986 (4) SA 1059 (O)

BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) at par 52
Economic duress: The English-law doctrine of economic duress does not appear to form part
of our law except in the context of admiralty law.
Van den Berg & Kie Rekenkundige Beamptes v Boomprops 1028 BK 1999 (1) SA 780 (T)
Malilang v MV Houda Pearl 1986 (2) SA 714 (A)
Duress of goods: Where improper pressure was exerted through duress of goods – that is,
where someone was by an unlawful detention of goods made to pay a sum not due – it will be
necessary to allege and prove that such payment was accompanied by an unequivocal protest
at the time of payment.
Hendricks v Barnett 1975 (1) SA 765 (N)
Kapp v TC Valuta (Pty) Ltd 1975 (3) SA 283 (T)
Cf Commissioner for Inland Revenue v First National Industrial Bank Ltd 1990 (3) SA 641
(A)
[Page 158]
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), acting through his duly
authorised agents, demanded from plaintiff payment of duty in an amount of [Rx] in respect
of the articles set out in the annexure hereto and threatened to confiscate such articles unless
the amount was paid.
4. Plaintiff thereupon, in order to release such articles and under protest

expressly made to the aforesaid agents, paid the amount to them 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].
Claim – 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 set forth, he is not liable thereunder.
2. At the time of giving the undertaking, plaintiff was in possession of
defendant’s motor vehicle by virtue of an agreement of hire between the parties, and plaintiff
unlawfully threatened that, in the event of defendant’s refusing to give the aforesaid
undertaking, plaintiff would destroy defendant’s motor vehicle.
3. Defendant, in the reasonable and bona fide belief that plaintiff would, in fact,
carry out his threat and for the purpose of recovering possession of his motor 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.
• Electricity
• Employment Contracts
• Encroachment
• Engineers
• Enrichment • Estate Agents
• Estoppel
• Eviction or Ejectment
• Exceptio non adimpleti Contractus • Exceptions
• Exchange
• Expropriation
Electricity
Related subject: VELD FIRES
General: In any civil proceedings against an “undertaker” (as defined) arising out of damage
or injury caused by induction or electrolysis or in any other manner by means of electricity
generated or transmitted by or leaking from the plant or machinery of any undertaker (that is,
the seller of electricity), such damage or injury is presumed to have been caused by the
negligence of the undertaker, unless the contrary is proved.
Electricity Act 41 of 1987 s 26
Grootboom v Graaff-Reinet Municipality 2001 (3) SA 373 (E)
The effect of the provision appears to be that negligence is part and parcel of the plaintiff’s
cause of action and that it must still be alleged and particularised.
Cf Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C) at 295A
The defendant must allege and prove the absence of negligence.
Cf HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
[2000] 4 All SA 545 (A); 2001 (4) SA 814 (SCA)
The repealed Electricity Act 40 of 1958 made provision for strict liability, and cases
thereunder must be read in that light.
Cf Dlakela v Transkei Electricity Supply Commission [1997] 3 All SA 301 (Tk); 1997 (4)
SA 523 (Tk)
[Page 159]
PRECEDENTS
Claim – for damages caused by shock
1. Defendant is an undertaker in terms of the provisions of the Electricity Act 41

of 1987.
2. Defendant is the owner of an electrical power line that traverses 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 said damage was caused by the negligence of the defendant, who, by
reason of its ownership and control of the said 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 posed a danger were situated at a safe height above the ground.
Employment Contracts
Related subject: VICARIOUS LIABILITY
General: Most employment contracts are regulated by statute and industrial agreements.

See : Labour Relations Act 66 of 1995
Some statutes extend or limit the rights of the parties to such an agreement.
Basic Conditions of Employment Act 75 of 1997
Agricultural Labour Act 147 of 1993
Employment Equity Act 55 of 1998
Jurisdiction: Subject to the Constitution and the jurisdiction of the Labour Appeal Court, the
Labour Court has exclusive jurisdiction in respect of all matters in terms of the Basic
Conditions of Employment Act, and the Labour Court has concurrent jurisdiction with the
civil 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.
Basic Conditions of Employment Act 75 of 1997 s 77
Issues flowing from the Labour Relations Act also fall under the exclusive jurisdiction of the
Labour Court.
Implied terms: A 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 provisions of the Act; or
(c) a term of the contract of employment is more favourable to the employee than the
basic condition of employment.
Basic Conditions of Employment Act 75 of 1997 s 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 (2) SA 171 (T)
[Page 160]
The employee must allege non-payment of the wages claimed, and it is for the employer to
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 the failure to do so is raised by the employer in the plea, the employees
will have to prove that they did so supply or tender their services.
Prins v Universiteit van Pretoria 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 (2) SA 943 (A)
Every employee has the right not to be:
(a) unfairly dismissed; or
(b) subjected to unfair labour practice.
Labour Relations Act 66 of 1995 s 185
It follows from this that every disputed dismissal has to de dealt with through the machinery
prescribed by this Act.
Termination of employment: A contract may be terminated on notice, provided the required

period of notice is given or the employer pays the employee the prescribed wages for that
period.
Basic Conditions of Employment Act 75 of 1997 ss 37 and 38
Onus: It is for the employee to establish the contract of employment and the subsequent
dismissal. It is for the employer to allege and prove facts justifying the dismissal – for
example, the employee’s act of misconduct.
Where the dismissal is based on facts amounting to conduct which justifies 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 (3) SA 214 (A) at 221
Pleadings in 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 the
nature of a plea and which must contain information as as set out in (a) to (d) above.
Labour Court r 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].
[Page 161]
Alternatively:
(a) it was an implied term of the agreement that defendant would pay to plaintiff a
fair and reasonable remuneration for the services so performed;
(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, fails to pay plaintiff’s salary for the month of [specify], namely an amount of
[amount].
[Approved in Prins v Universiteit van Pretoria 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 from April 1993 to 14 August
1993 and received a monthly salary of R10 000 together with a motor vehicle allowance of
R2 000 for the months April 1993 to July 1993.
2. On or about 14 August 1993, the defendant unlawfully repudiated the said

agreement by purporting to terminate it unilaterally.
3. The plaintiff refused and refuses to accept such repudiation.
4. The plaintiff has since 14 August 1993 tendered and hereby tenders to work
for the defendant as a medical practitioner as he undertook to do.
5. The plaintiff demanded payment, as he was entitled to, for 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 said sum of
R12 000.
7. The plaintiff’s salary of R10 000 and motor vehicle allowance of R2 000 for
September 1993 has now fallen due.
WHEREFORE, tendering to continue his employment with the defendant as a medical
practitioner, the plaintiff claims:
(a) judgment in the sum of R24 000 (in respect of the months August and September
1993);
(b) judgment in the sum of R12 000 in respect of each month, in arrears, from October
1993 to date of judgment or February 1994, whichever is the earlier;
(c) costs of suit.
Encroachment
A plaintiff who wishes to claim relief consequent to an encroachment onto property must
allege and prove:
(a) ownership of the property encroached upon; and
(b) that the defendant has erected a structure or building partly on the plaintiff’s property
and partly on the adjoining property.
Smith v Basson 1979 (1) SA 559 (W)
The plaintiff may then claim for either the removal of the encroachment or for damages
suffered as a result of such encroachment. In the latter event, the court may order the plaintiff
to transfer the portion encroached upon to the defendant against payment of damages.
Meyer v Keiser 1980 (3) SA 504 (D)
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. In such a
plea, the material facts on which the allegation of the injustice is based must be set out.
Rand Waterraad v Bothma 1997 (3) SA 120 (O)
[Page 162]
The defendant may not claim a transfer of the property encroached upon against payment of
its value.
Meyer v Keiser 1980 (3) SA 504 (D)
The defendant may also oppose the removal of the encroachment if the plaintiff knowingly
allowed that encroachment. The rule that a plaintiff who did not protest, within one year and
one day of becoming aware thereof, against 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 the sum of [amount].
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 the sum of [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 very similar to that of architects. Reference
should be made to ARCHITECTS and the Engineering Profession Act 46 of 2000.
Enrichment
See : CONDICTIO INDEBITI
NEGOTIORUM GESTIO
Estate Agents
ALIENATION OF LAND
General: An estate agent who wishes to claim commission must allege and prove:
(a) compliance with the provisions of section 26 of the Estate Agency Affairs Act
relating to the required fidelity fund certificates and fidelity insurance;
Estate Agency Affairs Act 112 of 1976 s 34A
Maree v Botha 1992 (3) SA 230 (T)
[Page 163]
(b) a mandate to find a purchaser or seller.
Botha v Smit 1976 (4) SA 885 (A)
Baring Eiendomme BK v Roux [2001] 1 All SA 399 (SCA)
The mandate is normally given by the seller, but that is not necessarily the case. A
mandate may be express or implied.
SA 313 (C)
As a general rule, the mandate does not entitle the agent to conclude a contract on
behalf of the principal or to receive moneys on the principal’s behalf;
Bird v Sumerville 1961 (3) SA 194 (A)
(c) due performance of the mandate. What due performance is depends on the terms of
the mandate.
Phillips v Aida Real Estate (Pty) Ltd 1975 (3) SA 198 (A)
In the absence of special terms, it involves:
(i) an introduction by the agent of a purchaser to the seller;
Vanarthdoy (Edms) Bpk v Roos 1979 (4) SA 1 (A)
(ii) establishing that the purchaser was, when the contract was signed, willing and
able to purchase the property.
Beckwith v Foundation Investment Co 1961 (4) SA 510 (A)
Ronstan Investments (Pty) Ltd v Littlewood [2001] 3 All SA 127 (A); 2001 (3) SA 555
(SCA)
This does not apply where commission is claimed from the buyer;
Aida Uitenhage CC v Singapi 1992 (4) SA 675 (E)
(iii) establishing that a valid contract of sale was concluded;
Brayshaw v Schoeman 1960 (1) SA 625 (A)
(iv) establishing that the introduction was the effective cause (causa causans) of
the contract;
Van Aswegen v De Clercq 1960 (4) SA 875 (A)
Van Heerden v Retief 1981 (1) SA 945 (A)
Nach Investments (Pty) Ltd v Knight Frank SA (Pty) Ltd [2001] 3 All SA 295 (SCA)
(d) the commission payable. This depends on the terms of the mandate. If nothing was
said, the plaintiff may rely on an implied term to the effect that the commission was payable
according to the generally accepted tariff.
SA 313 (C)
The agent may base the claim for commission on a provision in the sale if such provision was
a stipulatio alteri and the agent accepted the benefit.
Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A)
See : CONTRACTS FOR THE BENEFIT OF THIRD PARTIES
Claim – against Board: A claim may be laid against the Estate Agents Board for pecuniary
loss suffered by reason of the theft of trust money by an estate agent, the failure of an estate
agent to deposit trust money in a trust account or to keep such money until the estate agent is
lawfully entitled to it or instructed to make payment therefrom to any person.
Estate Agency Affairs Act 112 of 1976 s 18
Cf Estate Agents Board v Mahadeo 1991 (3) SA 49 (N)
[Page 164]
In order for a plaintiff to succeed against the Board, it has to prove that the agent concerned
was an estate agent within the definition in section 1(a) or 1(c)(ii) of the Estate Agency
Affairs Act.
Estate Agents Board v Swart [1998] 4 All SA 373 (T); 1999 (1) SA 1097 (T)
Every action against the Board in respect of the fund 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 theft or failure or
by the exercise of reasonable care should have become aware of such theft or failure, given
notice in writing to the Board of such claim;
(b) the claimant has, within six months after a written demand was sent to her or him by
the Board, furnished to the Board such proof as the Board may reasonably require.
One cannot, without the permission of the Board, commence any action against the Board,
unless and until the claimant has exhausted all relevant rights of action and other legal
remedies available against the estate agent in respect of whom the claim arose and against all
other persons liable in respect of the loss suffered by the claimant.
Estate Agency Affairs Act 112 of 1976 s 19(1)
Interest is payable at the Board’s discretion.
Estate Agency Affairs Act 112 of 1976 s 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 1976 s 20
Sole agency: If the agent’s claim is based on a sole authority to sell and on a breach thereof
by the seller, the claim will normally be one for damages for breach of contract and the agent
will then have to allege and prove the breach and the damages suffered. This involves proof
that the agent would have been able to effect a valid sale.
De Coning v Monror Estate & Investment Co (Pty) Ltd 1974 (3) SA 72 (E)
The Firs Investment Ltd v Levy Bros Estates (Pty) Ltd 1984 (2) SA 881 (A)
Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Pty) Ltd 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 said property.
5. As a direct result of this introduction, [X] purchased the aforesaid property at a

purchase price of [amount]. [A copy of the deed of sale is annexed hereto.]
[Page 165]
6. Plaintiff was the effective cause of the sale and, in the premises, plaintiff 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[n implied] 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 agents in the [specify] area for transactions of this nature is [percentage] of
the purchase price.
Claim – for commission upon fulfilment of condition precedent
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. [Par 6 et seq as before.]
Cf Jurgens Eiendomsagente v Share 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 plaintiff ’s name.
5. Plaintiff fulfilled this obligation on [date] by entrusting to [X], in his capacity

as estate agent, the said sum.
6. [X] stole the said amount 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 his 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 effect 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] by

virtue of defendant’s breach of contract.
[Page 166]
Estoppel
VINDICATION
General: The essence of the doctrine of estoppel by representation is that a person is

precluded or estopped from denying the truth of a representation previously made by her or
him to another person if the latter, believing in the truth of the representation, acted thereon to
her or his detriment.
Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A) at 291
Onus: If a party wishes to rely on estoppel, that party must plead it and prove its essentials.
Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) at 260
(SCA)
Estoppel raised by a plaintiff: Estoppel is not a cause of action. A plaintiff can, therefore, not
rely on it in the claim nor can a defendant rely thereon in a counterclaim.
Rosen v Barclays National Bank Ltd 1984 (3) SA 974 (W) at 983
Sodo v Chairman, African National Congress, Umtata Region [1998] 1 All SA 45 (Tk)
If the plaintiff wishes to rely on estoppel, it must be pleaded in the replication in reply to the
defendant’s plea where reliance is placed upon the true facts.
Mann v Sidney Hunt Motors (Pty) Ltd 1958 (2) SA 102 (G)
If the plaintiff is, at the inception of the litigation, aware of the true facts, the plaintiff must
base the case in the particulars of claim on the facts as represented to the plaintiff. If the
defendant then pleads the true facts, the plaintiff may rely on estoppel in the replication.
Estoppel raised by a defendant: A defendant may, in defence, raise estoppel in the plea.
De Klerk v Old Mutual Insurance Co Ltd 1990 (3) SA 34 (E) at 41
Essentials: The essentials for estoppel are:
(a) a representation by words or conduct of a certain factual position.
Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A) at 761
Road Accident Fund v Mothupi [2000] 3 All SA 181 (A); 2000 (4) SA 38 (SCA)
Where a party relies on a representation by conduct, it must be shown that the

representation was clear and unequivocal and that the party reasonably understood the
representation in the sense alleged.
B & B Hardware Distributors (Pty) Ltd v Administrator, Cape 1989 (1) SA 957 (A)
To constitute an estoppel, the representation must be unambiguous;
Southern Life Association Ltd v Beyleveld NO 1989 (1) SA 496 (A)
(b) that the party acted on the correctness of the facts as represented.
Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (A) at 743
There must, therefore, have been a causal connection between the representation and
the act. Such proof includes proof that the reliance was not actuated by some external
influence or factor other than the misrepresentation.
Stellenbosch Farmers’ Winery Ltd v Vlachos t/a Liquor Den [2001] 3 All SA 577 (A); 2001
(3) SA 597 (SCA)
[Page 167]
(c) that the party so acted or failed to act, to her or his detriment;
Peri-Urban Areas Health Board v Breet NO 1958 (3) SA 783 (T) at 790
Autolec Ltd v Du Plessis 1965 (2) SA 243 (O)
ABSA Bank Ltd v De Klerk [1998] 4 All SA 674; 1999 (1) SA 861 (W)
(d) that the representation was made negligently. The requirement of negligence is not
always an essential element. If, 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 upon was:
(i) made by the owner of the movable concerned;
(ii) to the effect that the person who disposed of the plaintiff’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) at 452
Pretorius v Loudon 1985 (3) SA 845 (A)
Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 (3) SA 188 (A) at 198–
199
Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk [1996] 2 All SA 225 (A);
1996 (3) SA 273 (A) at 284–285
Info Plus v Scheelke [1998] 2 All SA 509 (SCA) at 516–517; 1998 (3) SA 184 (SCA)
Caldeira v Ruthenberg [1999] 1 All SA 519 (A); 1999 (4) SA 37 (SCA)
(e) that the person who made the representation could bind the defendant by means of a
representation.
This means that a representation by A that he 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.
It is different if B represented that A could act on B’s behalf.
(SCA)
Invalid acts: Estoppel cannot be used to make legal what otherwise would be illegal and
cannot replace statutory requirements for the validity of contracts.
Trust Bank van Afrika Bpk v Eksteen 1964 (3) SA 402 (A)
Strydom v Die Land- & Landboubank van SA 1972 (1) SA 801 (A) at 815
Philmatt (Pty) Ltd v Mosselbank Developments CC [1996] 1 All SA 296 (A); 1996 (2) SA 15
(SCA)
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 his
ownership for the following reasons:
(a) on [date], plaintiff by words [set out] and by conduct [set out] negligently
represented to defendant that one [X] was the owner of the motor vehicle;
[Page 168]
(b) defendant accepted as correct this representation and acted thereon when [X]
presented the vehicle to him as a trade-in on a vehicle which [X] intended to purchase from
defendant;
(c) in so doing, defendant acted to his detriment and accepted the said vehicle as
part payment for the purchase of a vehicle [describe] by [X].
Plea – similar
3. Plaintiff entrusted the vehicle to X Motors, a well-known 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-in-trade, 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 his

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 (3) SA 184 (SCA); [1998] 2 All SA 509 (SCA) at 516a–f
Replication – to a plea denying that defendant’s alleged agent was authorised
1. Plaintiff persists in his allegations 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.
(d) Acting as aforesaid, defendant represented to plaintiff that [X] was still his
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 or Ejectment
Related subject: LEASES
POSSESSORS: DAMAGES CLAIMS BY VINDICATION
WARRANTY AGAINST EVICTION
Statutory protection: The Constitution and a number of statutes affect the right to eject an
“unlawful” occupier of land and these have to be taken into account before proceeding
against any given occupier. The statutes are dealt with below in a limited fashion.
Causes of action: Ejectment of an occupier of premises can be obtained by means of:
(a) the rei vindicatio. In such event, reliance is placed on the plaintiff’s ownership and the
defendant’s possession of the property; or
(b) a possessory claim.
[Page 169]
Under the present heading, only the second ground is discussed. It should, however, be read
with VINDICATION.
Possessory claim: The plaintiff need not allege and prove any title to the property from
which the defendant is to be evicted under this cause of action.
Ebrahim v Pretoria Stadsraad 1980 (4) SA 10 (T)
Boompret Investments (Pty) Ltd v Paardekraal Concession Store (Pty) Ltd 1990 (1) SA 347
(A) at 351
The plaintiff must, however, allege and prove:
(a) the right of the defendant to possess, for example, the terms of the agreement between
the parties, which was derived from the plaintiff;
Boshoff v Union Government 1932 TPD 345
(b) a valid termination of the right to possess;
Schnehage v Bezuidenhout 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);
(d) damages (if any) suffered as a result of the holding over.
See : LEASES
If the cause of action is not related to a cancelled contract, reliance must be placed on a
superior (usually statutory) right.
Vumane v Mkize 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;
(a) optionally, cancellation or confirmation of the cancellation of the underlying

agreement;
(c) damages, if any suffered.
Extension of Security of Tenure Act 62 of 1997: The object of the Act is to protect against
eviction a class of impecunious tenants (“occupiers”) in rural and semi-rural land who have
acquired their tenancy with the consent of the landowner. An “occupier” is defined to mean 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 excluding:
(a) a person using or intending to use the land in question mainly for industrial, mining,
commercial or commercial farming purposes, but including a person who works the land
himself or herself and does not employ any person who is not a member of his or her family;
and
(b) a person who has an income in excess of the prescribed amount;

A plaintiff must allege and prove that the defendant falls within one of the two
exceptions and also that the defendant did not occupy with consent.
Extension of Security of Tenure Act 62 of 1997 s 3(4)–(5)
[Page 170]
The Act also 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 such in terms of any law. Since there is a
presumption that the land occupied falls under the provisions of the Act, a plaintiff has to
allege and prove that the Act does not apply.
Extension of Security of Tenure Act 62 of 1997 s 2
The jurisdiction of the High Court to grant eviction orders under the Act is limited.
Mkangeli v Joubert [2002] 2 All SA 473 (A); 2002 (4) SA 36 (SCA)
Khumalo v Potgieter [2001] 3 All SA 216 (A); 2001 (3) SA 63 (SCA)
A court may make an order for the eviction of an occupier if:
(a) the occupier’s right of residence has been lawfully terminated in terms of section 8;
Conradie v Hanekom [1999] 2 All SA 525 (LCC); 1999 (4) SA 491 (LCC)
(b) the occupier has not vacated the land within the period of notice given;
(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.
Howarth v Schoeman [2001] 4 All SA 405 (LCC)
Depending on whether the occupier occupied since or before 4 February 1997, the
powers of the court in granting an eviction order are differently circumscribed.
Extension of Security of Tenure Act 62 of 1997 ss 10–13
Pitout v Mbolane [2000] 2 All SA 377 (LCC)
A court may nevertheless 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 such land.
Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA); 2003 (1) SA 113 (SCA)
The Act does not apply to persons who are occupiers in terms of the Extension of Security of
Tenure Act or to persons whose informal right to land is protected by the Interim Protection
of Informal Land Rights Act 31 of 1996.
[Page 171]
Fourteen days before the hearing of the eviction proceedings, the occupier and the local
municipality must be given the prescribed notification of such proceedings.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 s 4
Cape Killarney Property Investment (Pty) Ltd v Mahamba [2001] 4 All SA 479 (A); 2001 (4)
SA 1222 (SCA)
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 1998 s 5
The court has a discretion in ordering eviction and, in this regard, there are various prescribed
factors that have to be taken into account.
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 s 4(6)–
(8)
Provided the procedural requirements have been met, the owner is entitled to approach the
court on the basis of 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 situated at [address].
2. In terms of the aforesaid 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 aforesaid

agreement.[Detail basis 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. As a result of defendant’s continued occupation of the property, plaintiff is

suffering damages in the amount of [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: TENDER BY 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 the
defendant’s obligation to perform has not yet arisen because of the lack of performance by
the plaintiff.
Grand Mines (Pty) Ltd v Giddey NO 1999 (1) SA 960 (A)
[Page 172]
It can apply only where the plaintiff’s performance has to precede the defendant’s or where
both have to perform at the same time.
Mörsner v Len 1992 (3) SA 626 (A)
The exceptio is usually a temporary remedy but may be a permanent one where 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.

BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A)
Sequence of performance:
(a) Where a contract imposes reciprocal obligations upon the parties, performance and
counter-performance should generally take place at the same time.
RM Van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C)
601 (A); 1996 (4) SA 950 (A)
This applies to all types of reciprocal contracts and not only to building contracts and
the like.
Thompson v Scholtz [1998] 4 All SA 526 (A); 1999 (1) SA 232 (A)
In the case of a sale, the delivery of the merx and payment of the purchase price are
ordinarily reciprocal and concurrent.
Andrews v Lidaks 1971 (1) SA 892 (W)
(b) Certain types of contract form an exception to this rule. Thus, a lessor of property
must usually perform before rental can be demanded and a building contractor must, in
principle, perform first.
(c) The parties may, by agreement, vary the order of performance of their obligations.
(d) It is essentially a matter of interpretation to establish whether the obligations are so

closely linked as to be mutually dependent, rendering the principle of reciprocity applicable.
601 (A); 1996 (4) SA 950 (A)
Onus: A plaintiff claiming performance of contractual obligations must, if the obligations are
dependent upon each other, allege and prove one of the following:
(i) that the plaintiff has properly performed its part of the bargain;
(ii) that the plaintiff is excused from performance by reason of, for example,
impossibility of performance;
(iii) a tender (a willingness and ability) by the plaintiff to perform its side of the
bargain; or
(iv) that the defendant has accepted defective performance.
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) at
419
Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd 1979 (2) SA 56 (A)

Turnley [1996] 3 All SA 648 (W); 1996 (3) SA 1043 (W) at 1047–1050
Ter Beek v United Resources CC 1997 (3) SA 315 (C)
[Page 173]
It is, however, for the defendant to allege non-performance and to provide

sufficient detail to enable the plaintiff to disprove the allegations and, in a suitable case, the
defendant may have to begin with the leading of evidence.
HA Millard & Son (Pty) Ltd v Enzenhofer 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

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 his tender of delivery of the watch against payment of the
purchase price.
WHEREFORE, tendering as aforesaid, plaintiff claims payment of [amount].
Claim – with tender of payment
1. On [date] at [place], the parties entered into a written agreement, a copy of

which is attached hereto and marked “A”, in terms of which plaintiff purchased from
defendant the fixed property situate at [address] for the purchase price of [amount].
2. Plaintiff hereby tenders to defendant the balance of the purchase price in the
sum 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 said balance is secured by means of a bank guarantee.
3. In the premises, defendant is obliged to pass transfer of the property to

plaintiff but, despite demand, has failed or refused to do so.
Plea – of non-performance
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 the
sum of [amount] before or simultaneously with defendant’s performance.
2. Plaintiff has not made any payment of the said sum, nor has he tendered to do
so.
WHEREFORE defendant prays that plaintiff’s claim be dismissed with costs.
Exceptions
Uniform rule 23 provides for two kinds of exceptions in the High Court, namely:
(a) an exception on the basis that a pleading is vague and embarrassing; and
(b) an exception where a pleading lacks averments which are necessary to sustain an
action or defence.
Trope v SA Reserve Bank 1993 (3) SA 264 (A)
[Page 174]
An exception based on the first ground must be preceded by a notice affording the opponent
the opportunity of removing the cause of complaint. The Magistrates’ Courts rules
distinguish between exceptions against a summons and exceptions against a plea. As far as a
summons is concerned, an exception may be noted on the grounds that:
(a) the summons does not disclose a cause of action;
(b) the summons is vague and embarrassing;
(c) the summons does not comply with the requirements of Magistrates’ Courts rule 5 or
6 (concerning the formal requirements of a summons);
(d) the summons has not been properly served;
(e) the copy of the summons served on the defendant differs materially from the original.
In the case of a plea, the grounds are that the plea:
(a) does not disclose a defence to the plaintiff’s claim;
(b) is vague and embarrassing;
(c) does not comply with the requirements of Magistrates’ Courts rule 19 (concerning the
formal requirements of a plea).
Grounds: Whenever an exception is taken to any pleading, the grounds on which the

exception is founded must be stated clearly and concisely.
Uniform rule 23(3)
Prayer: An exception must end with a prayer praying for the deletion of the offending
allegations or for the dismissal of the action or defence. The usual order is to uphold the
exception and to grant the respondent leave to amend the pleading within a specified period.
General: The purpose of an exception alleging that a pleading lacks averments, which are
necessary to sustain an action or defence, is to dispose of the leading of evidence at the trial.
Such an exception must go to the root of the claim or defence. An exception cannot be taken
to a declaration or particulars of claim on the ground that it does not support one of several
prayers arising out of one cause of action because the unjustifiable prayer amounts to a plus
petitio and its deletion cannot affect the amount of evidence to be led.
It is appropriate to except if the point of law raised will dispose of the case in whole or in
part. An exception should not be taken to particular sections of a pleading unless they are
self-contained and amount to a separate claim or defence.
Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A)
Dharampul Transport (Pty) Ltd v Dharampal 1956 (1) SA 700 (A)
On the other hand, where the same claim is based on alternative causes of action, an
exception can be taken against one or more of the alternatives.
Du Preez v Boetsap Stores (Pty) Ltd 1978 (2) SA 177 (NC)
An exception is generally not the appropriate procedure to settle questions of interpretation

because, in cases of doubt, evidence may be admissible at the trial stage relating to
surrounding circumstances which evidence may clear up the difficulties.
Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A)
[Page 175]
So, too, the question of whether a contract is void for vagueness does not readily fall to be
decided by way of exception.
Lewis v Oneanate (Pty) Ltd 1992 (4) SA 811 (A) at 817–818
An exception based on the ground that the pleading is ambiguous cannot succeed unless, on
every interpretation, no cause of action or defence is disclosed. The proper remedy would be
to except on the basis that the pleading is vague and embarrassing.
Callender-Easby v Grahamstown Municipality 1981 (2) SA 810 (E)

Wilson v SAR&H 1981 (3) SA 1016 (C)
An exception is decided on the allegations of the respondent only and cannot be used to solve
a factual dispute. A party who excepts need not file a further pleading until the exception has
been disposed of.
Uniform rule 23(4)
PRECEDENTS
Exception – to particulars of 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 did sign as seller was acting as
defendant’s agent and was so appointed in terms of a written authority signed by defendant.
Exception – to part of a claim
Defendant hereby excepts to plaintiff’s particulars of 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) plaintiff’s first alternative claim is a claim for damages based upon defendant’s
alleged innocent misrepresentation;
(b) plaintiff’s first alternative claim is not based on the aedilitian actions or a dictum et
promissum;
(c) there is in law no claim for damages suffered as a result of an innocent

misrepresentation.
WHEREFORE 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;
(c) defendant’s plea of payment to the cedent after the cession and with knowledge
thereof does not constitute a defence in law.
WHEREFORE plaintiff claims that the exception be upheld with costs and defendant’s plea
be dismissed with costs.
[Page 176]
Exchange
To determine whether a contract to deliver an article and pay money is one of exchange or
sale, the primary consideration is the intention of the parties, which is to be inferred from the
circumstances and terms of the transaction.
Hoeksma v Hoeksma 1990 (2) SA 893 (A)
Where the main consideration is the payment of money, the transaction is normally one of
sale. If money is not the main consideration, it is normally one of exchange.
Wastie v Security Motors (Pty) Ltd 1972 (2) SA 129 (C)
Terblanche v Archdeacon 1979 (3) SA 201 (T)
Mountbatten Investments (Pty) Ltd v Mahomed 1989 (1) SA 172 (D)
If the value of a trade-in at an agreed price is the determining factor, the contract is one of
sale.
Bouwer v Adelford Motors (Pty) Ltd 1970 (4) SA 286 (E)
There are few differences between the law of sale and the law of exchange. It must be noted,
however, that the property of another cannot be bartered.
Pennefather v Gokul 1960 (4) SA 42 (N)
On the other hand, the aedilitian actions for latent defects 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)
See : LATENT DEFECTS
Any 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) SA 628 (W)

PRECEDENTS
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 said motorcycle to defendant, but
defendant has refused to accept the said tender and to deliver the motorcar to plaintiff.
WHEREFORE, tendering as aforesaid, plaintiff claims delivery of motor vehicle [registration

number].
Expropriation
[Based on the contribution of Mr Justice Hartzenberg to the third edition of this work.]
The 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 has to be determined is prescribed by the Expropriation Act 63 of
1975 (as amended) and the Bill of Rights.
1996 Constitution s 25(3)
[Page 177]
The forum: If, in the event of expropriation, the parties cannot agree on the amount of
compensation payable, the compensation can be determined either by:
(i) arbitration;
Expropriation Act 63 of 1975 s 14(7)
(ii) or the High Court.
Invalid expropriation: A purported expropriation is void ab initio if the expropriating

authority exceeds its powers, and may be voidable where, although professing to expropriate
for a purpose permitted by the relevant Act, the expropriating authority expropriates with an
ulterior motive. It may also be void if the description of the property is not sufficiently clear
to identify it.
Voorslag Ontwikkelingskorp (Edms) Bpk v Administrateur, Transvaal 1974 (3) SA 563 (T)
Provinsiale Administrasie, Kaap die Goeie Hoop v Swart 1988 (1) SA 375 (C)
It is not uncommon for the plaintiff to claim that the notice of expropriation be set aside and,
in the alternative, that the compensation be determined.
Parties: The plaintiff is the expropriatee of a property or a right who claims compensation
and actual financial loss due to the expropriation.
Cf Expropriation Act 63 of 1975 s 1 sv “owner”
The defendant, who is the expropriator, can be one of a number of authorities or bodies, such
as, inter alia, the central government, usually represented by the relevant Minister, provincial
governments, local authorities, and other bodies established to promote matters of public
importance.
The officials of the Department of Community Development perform the administrative

functions of the Community Development Board.
Community Development Act 3 of 1966 s 10
A notice of expropriation in terms of which the Community Development Board expropriates

property, therefore, emanates from the offices of the Department of Community
Development. The correct defendant to cite in such an event is the Community Development
Board, a statutory body corporate.
Date of notice of expropriation: The market value of the expropriated property has to be

determined as at the “date of notice”.
Expropriation Act 63 of 1975 s 12(1)(a)(i)
The date of notice is the date on which a notice of expropriation is delivered, tendered or
posted to a person or published in the Gazette.
Expropriation Act 63 of 1975 ss 1, 7(3) and 7(5)
Market value: A fixed property has, at the date of its expropriation, a single market value
which is to be determined by valuing the property as such without reference to the particular
owner.
Pienaar v Minister van Landbou 1972 (1) SA 14 (T) at 20
In order 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 or the expropriator. They are deemed to
be fully informed as to all the attributes of the property, both positive and 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) at 384
[Page 178]
When a portion of a property is expropriated, compensation therefor may be determined by
valuing the property as a whole before expropriation and valuing the remainder after
expropriation. The difference between the two amounts will be the compensation payable as
the market value. 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. When the
market value of a property is determined by way of valuation, various factors have to be
taken into account. No allowance is to be made for the fact that the property had been taken
without the consent of the owner; that the special suitability of the property for the purpose
for which it is required by the expropriator is to be disregarded unless it would have sold in
the open market for that purpose; that enhancement due to unlawful use is to be disregarded;
that improvements after the date of notice are to be disregarded; that no allowance is to be
made for unregistered rights or indirect damage or for anything done with the object of
obtaining compensation; that 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; that regard must be had to the fact that the expropriatee has
benefited from works erected by the state, and enhancement of the remainder of the
expropriated property, as a result of the purpose of the expropriation (in the case of a partial
taking), to compensation paid for un-registered rights, pertaining to the property in question,
and benefits or disadvantages resulting from the expropriation in terms of the Water Act 54
of 1956 (which Act has been replaced by the National Water Act 36 of 1998).
Cf Randburg Town Council v Kerksay Investments (Pty) Ltd [1997] 4 All SA 121 (A); 1998
(1) SA 98 (SCA)
Onus: If there is no dispute as to the potentialities of the property, the court, as “super”
valuer, is to determine the value of the property in terms of section 12(1)(a)(i) of the
Expropriation Act. There is no onus on the plaintiff to prove the value. Where, however, the
expropriatee alleges that there is a special potential for which the notional purchaser would
have paid and that aspect is in dispute, there is an onus on the expropriatee to allege and
prove that the purchaser would have taken that alleged potential into account in paying for
the property. Otherwise that particular potential will be disregarded in valuing the property.
Thanam NO v Minister of Lands 1970 (4) SA 85 (D) at 88
Bonnet v Department of Agricultural Credit & Land Tenure 1974 (3) SA 737 (T) at 744–745
Loubser v SA Spoorweë & Hawens 1976 (4) SA 589 (T) at 608–613
Cf De Villiers v Stadsraad van Mamelodi 1995 (4) SA 347 (T)
When the expropriatee claims actual financial loss, it is necessary to prove a direct causal
connection between the expropriation and the alleged financial loss.
Expropriation Act 63 of 1975 s 12(1)(a)(ii)

Davis v Pietermaritzburg City Council 1989 (3) SA 765 (A)
Benede Sand Boerdery (Edms) Bpk v Virginia Munisipaliteit 1992 (4) SA 176 (A)
Kangra Holdings (Pty) Ltd v Minister of Water Affairs [1998] 3 All SA 227; 1998 (4) SA
330 (A)
Solatium: When land is expropriated, a solatium on a sliding scale is to be added to the

market value of the land.
[Page 179]
Compensation in regard to a right: Unregistered rights terminate on the date of expropriation

and there is no obligation on the state to pay compensation for such rights. The exceptions are
certain leases, contracts of sale and rights of retention
Expropriation Act 63 of 1975 s 22 read with s 9(1)
When a right is expropriated, the expropriatee may claim for “actual financial loss” only and
not for inconvenience. A solatium is also payable by the expropriator when a right is
expropriated.
Interest: Interest in respect of the unpaid portion of the market value of the property is to be
paid as from the date on which the expropriator takes possession of the property. Interest is
not payable on the solatium.
Community Development Board v Mahomed NNO 1987 (2) SA 899 (A) at 910
Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A)
PRECEDENTS
Claim – for compensation payable as a result 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] (“the property”).
4. By notice of expropriation, defendant expropriated the property. The notice of

expropriation was served on plaintiff on [date] (“the date of notice of expropriation”).
5. The open-market value of the property at the date of notice of expropriation

was [Rx].
6. As a result of the expropriation, plaintiff suffered actual financial loss in an
amount 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 section
8(3) or 8(5)] on the portion of the market value determined in terms of section 12(1)(a) not
yet paid to plaintiff.
9. The parties failed to reach agreement as to the amount of compensation

payable to plaintiff.
10. On [date], defendant paid an amount of [Rw] to plaintiff in terms of section

12(1)(a)(i).
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) that interest be payable on [Rx–Rw] as from [the date mentioned in paragraph 8], at
the rate provided for in section 12(3), until date of payment.
Claim – for compensation in terms of section 12(1)(b) of Act 63 of 1975 where a right has
been expropriated
1. Plaintiff is A.
2. Defendant is B.
[Page 180]
3. Plaintiff was at all relevant times [set out the right which has been
expropriated – for example, the registered holder of the mineral rights in respect of the
property known as . . .].
4. By notice of expropriation, defendant expropriated plaintiff’s mineral rights.

The notice of expropriation was served on plaintiff on [insert the date of service of the
notice].
5. As a result of the expropriation, plaintiff suffered actual financial loss and was
inconvenienced to an amount of [Rx].
6. The parties could thus far not agree on the amount of compensation payable to
plaintiff in terms of section 12 of Act 63 of 1975.
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; or
in the premises, the purported expropriation is voidable and ought to be set

aside.
That the expropriation of the property [describe] be declared null and void; or
That the expropriation of the property [describe] be declared null and void and be set aside.
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].
4. Ad paragraph 7. Defendant admits that he is obliged to pay a solatium to

plaintiff in terms of section 12(2) but denies that the amount thereof is [Rz].
(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 the payment 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.
[Page 181]
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].
WHEREFORE 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 each and every allegation in this paragraph.
• Foreign Judgments • Fraud
Foreign Judgments
General: Although a judgment of a foreign court will be recognised by our courts without the
need for formal proceedings in this country, such a judgment can 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 does not have the power to investigate the merits of a case determined in
a foreign court, even though the result of the case is vastly different from that which would
have been achieved in our courts or the reasoning of the foreign court is patently defective.
Duarte v Lissack 1973 (3) SA 615 (D) at 622
Eden v Pienaar [2000] 3 All SA 632 (W); 2001 (1) SA 158 (W)
A party aggrieved by a decision of a foreign court must resort to the appellate or review
proceedings available in the foreign country.
Procedure: A party in whose favour a foreign court granted a 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 regarded as irrefutable proof of the indebtedness of the
defendant. The plaintiff is entitled to apply for provisional sentence but may institute
proceedings by way of an action or by way of a notice of motion.
Jones v Krok 1995 (1) SA 677 (A) at 685
Essential allegations: The plaintiff in an action for recognition must allege and prove that:
(a) the court in which the new proceedings are brought has jurisdiction over the person of
the defendant;
(b) in terms of local law, the foreign court had 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)
Supercat Inc v Two Oceans Marine CC [2001] 3 All SA 1 (C); 2001 (4) SA 27 (C)
[Page 182]
(c) the foreign judgment was, in terms of the relevant foreign law, a final judgment and
not merely an interlocutory or a provisional judgment.
Jones v Krok 1995 (1) SA 677 (A) at 689
It does not matter whether or not the merits of the case had been decided – for example,
whether or not the judgment was granted by default.
Gabelsberger v Babl 1994 (2) SA 677 (T)
The foreign judgment must be properly authenticated, and it is advisable to annex a copy to
the particulars of claim. In provisional sentence proceedings, a copy must be annexed to the
summons. 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 (3) SA 521 (C)
Defences: A defendant is not entitled to re-open the merits of the foreign judgment and
order. The defendant can dispute the essential allegations that the plaintiff has to prove.
(a) A substantial defence, which 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. A court will not easily criticise the procedural rules of foreign countries and will not
measure their fairness by reference to local equivalents, but it 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 (3) SA 615 (D)
Eden v Pienaar [2000] 3 All SA 632 (W); 2001 (1) SA 158 (W)
It appears from these authorities that the onus is on the defendant to establish that the
judgment was obtained contrary to the principles of natural justice.
See also: Jones v Krok 1996 (1) SA 504 (T) at 515
(b) The fact that a judgment is subject to an appeal, or that an appeal is pending, does not
affect such judgment’s finality. The respondent may, however, place facts before the court to
enable it to exercise a discretion in the respondent’s favour to stay the proceedings.
Jones v Krok 1996 (1) SA 504 (T) at 692
(c) A foreign judgment given in relation to an act or transaction which is connected with
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 1978 s 1
PRECEDENTS
Claim – based on a foreign judgment
1. On [date], plaintiff instituted an action against defendant based upon a contract

between the parties entered into on [date] at [place] in the [identify court] in [identify
country].
2. The said court was a court of competent jurisdiction to hear and determine
plaintiff’s claim by virtue of the fact that the contract was entered into and defendant was
domiciled in that country when the said proceedings were instituted.
[Page 183]
3. The said court granted a final judgment in favour of plaintiff in the sum of
[amount] on [date]. A copy of the order is annexed hereto.
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.
Payment of the sum of [amount].
Plea – lack of jurisdiction
1. Defendant denies that the said [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 into 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.
Fraud
Related subjects: ACTIO PAULIANA
ESTOPPEL
INNOCENT AND NEGLIGENT MISREPRESENTATION
INJURIOUS FALSEHOODS
JUDGMENTS: SETTING ASIDE
General: A party wishing to rely on fraud must not only plead it but also prove it clearly and
distinctly.
Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 689
The onus is the ordinary civil onus, bearing in mind that fraud is not easily inferred.
Essentials: The essential allegations for a claim or defence based on fraud are the following:
Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A)
Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A) at 1145
Dantex Investment Holdings (Pty) Ltd v Brenner NNO 1989 (1) SA 390 (A)
(a) A representation by the other party or his agent.
The representation usually concerns a fact, but may also relate to an opinion said to be
held but in fact not held,
Feinstein v Niggli 1981 (2) SA 684 (A)
Aldeia v Coutinho 1997 (4) SA 295 (O)
and may consist of a non-disclosure.
Stainer v Palmer-Pilgrim 1982 (4) SA 205 (O)
The principal’s liability for the fraud of an agent is not dependent upon the principal’s
own fraudulent conduct or knowledge.
Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 (4) SA 363 (A)
A representation by a party unrelated to the party to the litigation is irrelevant.
(b) Fraud (dolus directus or eventualis): This involves knowledge by the representor or
the principal that the representation is false.
Ruto Flour Mills (Pty) Ltd v Moriates 1957 (3) SA 113 (T)
[Page 184]
It is not sufficient to allege that the representation was “false” because this means 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)
This element also encompasses the intention by the representor or the agent that the
representee will act on the representation.
(c) Causation: That the representation induced the representee so to act.
Bill Harvey’s Investment Trust (Pty) Ltd v Oranjegezicht Citrus Estates (Pty) Ltd 1958 (1)
SA 479 (A)
Hulett v Hulett 1992 (4) SA 291 (A) at 310–311
Thompson v S A Broadcasting Corporation [2001] 1 All SA 329 (A)
(d) If damages are claimed, that the representee suffered damages as a result of the fraud.
As to the measure of damages, see:
De Jager v Grunder 1964 (1) SA 446 (A)
Ranger v Wykerd 1977 (2) SA 976 (A)
Colt Motors (Edms) Bpk v Kenny 1987 (4) SA 378 (T)
(e) If reliance is placed on a fraudulent non-disclosure, facts giving rise to the duty to
disclose must be set out.
Hoffman v Moni’s Wineries Ltd 1948 (2) SA 163 (C) at 168
914 (A) at 924
It is also necessary to show that the duty to disclose was deliberately breached in order to
deceive.
Ozinsky NO v Lloyd 1992 (3) SA 396 (C) at 418
Fraud in contract: If the fraud led to the conclusion of a contract, cancellation of such
contract may be claimed.
Service v Pondart-Diana 1964 (3) SA 277 (D)
On the other hand, the innocent party may elect to keep the contract alive and claim damages.
The innocent party is entitled to base the claim either on the contract or in delict. It makes a
difference to the measure of damages to be applied.
Prima Toy Holdings (Pty) Ltd v Rosenberg 1974 (2) SA 477 (C)
Hunt v Van der Westhuizen 1990 (3) SA 357 (C)
If cancellation of the contract is claimed, restitution must be tendered.
Van Schalkwyk v Griesel 1948 (1) SA 460 (A)
See: TENDER: BY A PLAINTIFF

It is not possible to contract out of liability for fraudulent misrepresentation.
Wells v SA Alumenite Co 1927 AD 69
Fraud and passing of ownership: If an owner parts with ownership as a result of a fraudulent
misrepresentation, the transaction is voidable and ownership will pass and the property
cannot be vindicated in the hands of an innocent third party.
Dalrymple, Frank & Feinstein v Friedman (2) 1954 (4) SA 649 (W)
Setting aside judgment on the ground of fraud: See : JUDGMENTS: SETTING ASIDE
[Page 185]
Exceptio doli : Fraud, as a defence, can be raised with the exceptio doli. An example is
where a party places a particular construction upon a document and thereby induces another
to enter into a contract. The inducer may not, thereafter, rely on the proper construction of the
document but is bound to the construction represented to the other party.
Sampson v Union & Rhodesia Wholesale Ltd (in liq) 1929 AD 468
Rand Bank Ltd v Rubenstein 1981 (2) SA 207 (W)
The exceptio doli generalis died a sudden death. The exceptio cannot be used to regulate
contractual relationships on the ground that the court considers that one party drove a hard or
harsh bargain.
Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A)
Bank of Lisbon & SA Ltd v De Ornelas 1988 (3) SA 580 (A)
Liability of an agent: An agent, in addition to the principal, is liable for damages caused by
the agent’s fraud. This 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) SA 599 (C)
PRECEDENTS
Claim – for cancellation
1. On [date] at [place], defendant represented to plaintiff that a certain motor

vehicle [registration number] was a 1996 model [describe] motor car.
2. When making this representation, defendant knew it to be false in that he

knew that it was in fact a 1992 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 in excess of 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. As a result of defendant’s misrepresentation as aforesaid, 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 the sum of [amount].
1. On [date] at [place], defendant, during the course of 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 hereto 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 aforesaid negotiations and before the conclusion of the contract
between the parties, defendant became aware of the falsity of the representations;
alternatively, after the negotiations and before the conclusion of the contract
between the parties, the circumstances changed to the knowledge of defendant so that, at the
time of contracting, the true facts were as set out above.
[Page 186]
(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 as
aforesaid.
(d) Despite this duty, defendant intentionally failed so to inform plaintiff.
6. As a result of defendant’s misrepresentation, plaintiff suffered damages in the

sum of [amount] made up as follows:
[detail]
I
• Illegal Contracts
• Impossibility of Performance
• Iniuria • Injurious Falsehoods
• Innocent Misrepresentation
• Insolvency • Insurance
• Interest
• Interpleaders
Illegal Contracts
General : An illegal contract must be distinguished from, first, a contract that is invalid
because of non-compliance with statutory formalities and, second, an unenforceable contract.
Contra bonos mores: A contract is illegal if it is against public policy or good morals.
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)
Reeves v Marfield Ins Brokers CC 1996 (3) SA 766 (A)
De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA)
In its modern guise, public policy is also rooted in the Constitution and the fundamental
values enshrined therein.
Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA); 2002 (6) SA 21 (SCA) par 18
Brisley v Drotsky 2002 (4) SA 1 (SCA)
Contrary to law: A contract prohibited by common law or by statute is illegal. However, a

contrary intention may appear from the statute. The prohibition may be express or implied.
Swart v Smuts 1971 (1) SA 819 (A)
ABSA Insurance Brokers (Pty) Ltd v Luttig NO [1997] 3 All SA 267 (A); 1997 (4) SA 229
(SCA)
For a case of supervening illegality, see
Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A) at 1205; [1997]
1 All SA 11 (A)
Effect: An illegal contract is unenforceable (ex turpi causa non oritur actio). This rule is
absolute and has no exceptions, even if 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)
Pleading: A court may raise the question of illegality mero motu if such 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.
A party wishing to rely on illegality must plead it.
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 Oos-Vrystaat Kaap Koöperasie Bpk [2000] 3 All SA 301 (A)
[Page 187]
If reliance is placed on an illegality flowing from a particular section of a statute, reference to

the particular provision must be made in the relevant pleading or the defence must be so
formulated that it is sufficiently clear on which statutory provision reliance is placed.
If the illegality does not appear ex facie the transaction but arises from surrounding
circumstances, the circumstances founding such illegality must be pleaded and the party
relying on the facts must prove them.
Yannakou v Apollo Club 1974 (1) SA 614 (A) at 623–624
Restitution: A party who has performed – whether in whole or in part – in terms of an illegal
contract may reclaim such performance with the condictio ob turpem vel iniustam causam.
First National Bank of South Africa Ltd v Perry NO [2001] 3 All SA 331 (A); 2001 (3) SA
960 (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. It is not only the person
who receives with knowledge of the illegality but also one who learns of such illegality while
still in possession who is liable to the plaintiff;
(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 fails to perform her or his part of the “bargain”.
Albertyn v Kumalo 1946 WLD 529 535

If the contract is invalid (but not illegal), the cause of action is the 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) SA 158 (T)
Bhyat’s Departmental Store (Pty) Ltd v Dorklerk Investments (Pty) Ltd 1975 (4) SA 881 (A)
It is then for the plaintiff to allege and prove facts that will enable the court to come to the her
of his assistance because justice and public policy so require.
Jajbhay v Cassim 1939 AD 537
Kelly v Wright, Kelly v Kok 1948 (3) SA 522 (A)
Visser v Rousseau NO 1990 (1) SA 139 (A)
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
2. On [date], plaintiff paid a deposit of [amount] to defendant and took

occupation of the house.
[Page 188]
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 to that effect.
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 enter into 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 said

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 said sum would be contrary to the
interests of public policy and would amount to a grave injustice to the plaintiff.
WHEREFORE plaintiff persists in his claim.
Claim – relaxation of par delictum rule
[From Henry v Branfield 1996 (1) SA 244 (D) at 251–252.]
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,
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 of the said sum, 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.
[Page 189]
Impossibility of Performance
Initial impossibility: If, objectively speaking, performance of a contract is at its inception

impossible, 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) SA 393 (W)
Bekker NO v Duvenhage 1977 (3) SA 884 (E)
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) SA 579 (A) at 585
Bischofberger v Van Eyk 1981 (2) SA 607 (W)
Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG 1996 (4) SA 1190 (A) at 1205; [1997]
1 All SA 11 (A)
A debtor cannot rely on a supervening impossibility of performance that arose after mora.
Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours [1998] 3 All SA 57 (W); 1998 (4) SA
802 (W)
Performance may be reclaimed by means of the condictio sine causa.
Hughes v Levy 1907 TS 276
See : CONDICTIO SINE CAUSA
Partial impossibility: The creditor has a choice between accepting partial or defective

performance or cancelling the contract.
Bedford v Uys 1971 (1) SA 549 (C)

Joubert v Bester 1977 (4) SA 560 (T)
Temporary impossibility: A 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 the final impossibility is inevitable.
World Leisure Holidays (Pty) Ltd v Georges 2002 (5) SA 531 (W)
Fault: The party relying on the impossibility of performance presumably bears the onus of
alleging and proving that the impossibility is not her or his own fault.
Grobbelaar NO v Bosch 1964 (3) SA 687 (E)
Algoa Milling Co Ltd v Arkell & Douglas 1918 AD 145
PRECEDENTS
Claim
1. On [date] at [place], the parties entered into 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 his farm known as [name], being agricultural land as defined by Act 70 of 1970.
2. The sale involved a subdivision of agricultural land within the meaning of Act
70 of 1970.
[Page 190]
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 terminated.
6. Prior to the termination of the agreement, plaintiff gave possession of the said
farm to defendant in terms of the agreement.
7. Because of the termination of the agreement, defendant is now obliged to

vacate the farm.
An order for the eviction of defendant from the farm [name].
See now the Subdivision of Agricultural Land Act Repeal Act 64 of 1998.
Iniuria
Related subjects: ARREST AND DETENTION
ASSAULT
DEFAMATION
Cause of action: The actio iniuriarum grants relief for an impairment of the person, dignity
or reputation of the plaintiff, which impairment is committed wrongfully and animo
iniuriandi (intentionally).
Gosschalk v Rossouw 1966 (2) SA 476 (C) at 490
Minister of Police v Mbilini 1983 (3) SA 705 (A)
Sokhulu v New Africa Publications Ltd t/a “The Sowetan Sunday World” [2002] 1 All SA
255 (W); 2001 (4) SA 1357 (W)
Under the Bill of Rights, it is no longer possible to draw a sharp distinction between the
causes of action for impairment of reputation and the sense of self-worth.
Khumalo v Holomisa 2002 (5) SA 401 (CC) at par 27
A plaintiff must allege and prove impairment of the relevant aspect of personality relied on.
Bennett v Minister of Police 1980 (3) SA 24 (C) at 37
Privacy: Typical of the right protected is that of privacy.
National Media Ltd v Jooste [1996] 2 All SA 510 (A);1996 (3) SA 262 (A)
An invasion of privacy can 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) SA 451 (A) at 462
A few examples illustrate the principle:
(a) a bigamous marriage or an engagement by a married person;
Snyman v Snyman 1984 (4) SA 262 (W)
Arendse v Roode 1989 (1) SA 763 (C)
(b) a degrading, humiliating or ignominious insult not amounting to defamation;
Brenner v Botha 1956 (3) SA 257 (T)
(c) the unauthorised use of a person’s photograph in a humiliating manner;
La Grange v Schoeman 1980 (1) SA 885 (E)
(d) the unauthorised disclosure of a person’s medical state by a physician; and

Jansen van Vuuren v Kruger 1993 (4) SA 842 (A)
[Page 191]
(e) the 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)
Bodily integrity: Another right protected is the right to bodily integrity, which incorporates
the right to mental well-being.
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 145–146
Parties: Although iniuria is generally the infringement of the right of personality of a natural

person, it need not be so. A corporation, for instance, has a right to privacy and another to a
good name.
Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 460–461
One spouse has no claim against the other spouse for damages based on the actio iniuriarum.
C v C 1958 (3) SA 547 (SR)
A master may be liable for an iniuria committed by a servant, provided the necessary
requirements for vicarious liability are present.
The cause of action expires with the death of the injured party prior to litis contestatio. A
cessionary has no right of action because the right cannot be ceded.
Government of RSA v Ngubane 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 merely to allege that the
act was wrongful.
Cf Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C)
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 the special circumstances
that make them wrongful.
Ciliza v Minister of Police 1976 (4) SA 243 (N) at 248

Once an act amounts prima facie to an infringement of a right of personality, the defendant
must, as a general rule, justify the infringement. This means that the defendant must allege
and prove the facts that give rise to such justification.
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) at 153
Animus iniuriandi : In the normal course, a plaintiff seeking damages based on the actio
iniuriarum is required to allege and prove animus iniuriandi – ie, the intention to injure the
plaintiff. The averment of animus iniuriandi can be implied from other allegations and need
not be an express averment.
Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A)
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) SA 24 (C)
On the other hand, an allegation of animus iniuriandi may not suffice. The facts pleaded must
be sufficient to lead to a reasonable inference of animus iniuriandi.
[Page 192]
The test for determining the reasonableness of the inference is an objective one.
Dolus eventualis is sufficient. It is not customary or advisable to allege the type of dolus
relied on.
Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W)
In spite of the fact that, in principle, the plaintiff bears the onus of proving animus iniuriandi,
a defendant cannot place this allegation in dispute by a mere denial. The defendant must go
further and allege the factual basis for the absence of animus iniuriandi.
Ramsay v Minister van Polisie 1981 (4) SA 802 (A)
Boswell v Union Club of SA (Durban) 1985 (2) SA 162 (D)
Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 856
The absence of a “wederregtelikheidsbewussyn” is seldom (if at all) a defence.
Ramsay v Minister van Polisie 1981 (4) SA 802 (A) at 818
Malice: Although it used to be customary to allege malice, it is wrong to do so, because the
motive of the defendant is irrelevant. All that is required is the legal intent to injure.
Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A) at 104
In the context of a claim based on malicious proceedings, it can be assumed that malice must
still be alleged and proved.
Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196
See : MALICIOUS PROCEEDINGS
Such a claim can be justified on the basis that legal proceedings can only be instituted
wrongfully if malice is present. (However, in Prinsloo v Newman 1975 (1) SA 481 (A), it
was assumed that, in the context of malicious proceedings, malice is the same as animus
iniuriandi.)
Breach of a contract: A breach of contract is not per se an iniuria. However, it can be if the
breach is accompanied by contumelia.
National Media Ltd v Jooste [1996] 2 All SA 510 (A);1996 (3) SA 262 (A)
Bull v Taylor 1965 (4) SA 29 (A)
Jockie v Meyer 1945 AD 354
It follows that a plaintiff must allege and prove additional facts that establish an iniuria.
Ndamse v University College of Fort Hare 1966 (4) SA 137 (E)
Edouard v Administrator, Natal 1989 (2) SA 368 (D) at 391
An doubtful exception is the rule that a trader may claim general damages with the actio
iniuriarum if a banker, by dishonouring cheques, causes damage to the trader’s
creditworthiness.
Klopper v Volkskas Bpk 1964 (2) SA 421 (T)
Damages: The main purpose of the actio iniuriarum is to recover sentimental damages. It is

not necessary to quantify these damages for the purposes of pleadings.
Patrimonial loss caused by an iniuria can 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 (1) SA 702 (W) at 704
[Page 193]
In an action based on an injuria in which the plaintiff claims special damages, the requisites
for a claim under the actio legis Aquiliae must be alleged and proved.
Minister of Finance v EBN Trading (Pty) Ltd [1997] 3 All SA 481 (N) at 487; 1998 (2) SA
319 (N)
As to apportionment of damages in the case of a delict intentionally caused, see:

CONTRIBUTORY NEGLIGENCE
An amende honorable is not a competent relief. But see
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W)
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 Falsehoods
Related subject: FRAUD
LEX AQUILIA
NEGLIGENT MISREPRESENTATION
Cause of action: An intentionally false statement concerning the plaintiff, which statement
causes the plaintiff patrimonial loss or damages, grounds an action for damages. The claim is
based on the lex Aquilia.
Schultz v Butt 1986 (3) SA 667 (A) at 678
The difference between this cause of action and one based on fraud lies basically therein that,
in the case of fraud, a misrepresentation is made to the plaintiff whereas, in the case of
injurious falsehoods, the misrepresentation made is of or about the plaintiff’s or defendant’s
business. It is a species of unlawful competition.
General rules of pleading: The false statement, in order to ground the action, does not have
to be defamatory, although it must have been published to others of and concerning the
plaintiff. The general rules of pleading relating to defamation claims apply – for example, the
plaintiff must set out the words alleged to have been used by the defendant and is not entitled
merely to state their effect.
International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A) at 613
Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C)
Essential allegations: The plaintiff must allege and prove that:
(a) the defendant has by word or conduct (or both) made a false representation to others
concerning the plaintiff;
(b) the defendant knew the representation to be false;
[Page 194]
(c) the plaintiff suffered damages as a result of the representation – for example, through
the loss of business;
(d) the false representation is the cause of the loss;
(e) the defendant intended to cause the plaintiff loss by the false representation.
Helios Ltd v Letraset Graphic Art Products (Pty) Ltd 1973 (4) SA 81 (T) at 89
Abakor v Crafcor Farming t/a Riversdale Feedlot 2000 (1) SA 973 (N)
If the claim is for an interdict only, fault need not be alleged or established by the claimant.
Aetiology Today CC v Van Aswegen 1992 (1) SA 807 (W)
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W)
R & I Laboratories (Pty) Ltd v Beauty Without Cruelty International 1990 (3) SA 746 (C)
Falsity: An allegation of ‘falsity’ does not carry with it the implication that the defendant
knew of the falsity. Knowledge of such falsity must be alleged specifically.
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, even if false, is
not necessarily actionable. It may amount to no more than puffing.
Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd 1970 (1) SA 454 (T)
Animus iniuriandi : The statement that animus iniuriandi must be established, is not

acceptable.
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 1951–1952, 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 in causing cancer
amongst smokers.
4. The said 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. As a result of the statement and subsequent rumour, the public has desisted
from purchasing [MAX] cigarettes and plaintiff was consequently obliged to cease the
marketing thereof.
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 (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.
[Page 195]
3. The said 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, in particular, plaintiff.
5. The said misrepresentation by defendant diverts custom from plaintiff and

plaintiff suffers damages as a consequence thereof.
An order interdicting defendant from representing in the course of trade that its Monte Carlo
Baby Duck is a sparkling wine.
[Based on Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C).]
Innocent Misrepresentation
General: While an innocent misrepresentation which induced a party to agree to be bound by

a contract may be relied on by that party in order to avoid that contract, it does not give rise
to a claim for damages.
Cockroft v Baxter 1955 (4) SA 93 (C)
Fitt v Louw 1970 (3) SA 73 (T)
If the contract is a sale, the aedilitian remedies are available – that is, a price reduction or a
cancellation and restitution.
Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A)
Other innocent misrepresentations do not provide a cause of action.
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 by the defendant’s agent;
(d) which is material;
(e) which was intended to induce the person to whom it was made to enter into the
transaction; and
(f) that the representation did in fact induce the contract (causation).
Novick v Comair Holdings Ltd 1979 (2) SA 116 (W) at 149
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 a certain [description] motor vehicle for the
sum of [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.
[Page 196]
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. By reason of the foregoing, plaintiff cancelled the sale on [date] at [place] per
letter and tendered to return the vehicle to defendant against repayment of the purchase price.
WHEREFORE plaintiff claims, repeating the tender:
Repayment of [amount].
Insolvency
Related subject: ACTIO PAULIANA
Parties: Legal proceedings by or against an insolvent estate are to be in the name of the

trustee. The trustee requires the authority of the master or of the creditors in order to litigate.
If not properly authorised, the proceedings will not be invalid – however, the trustee runs the
risk of having to pay the costs personally.
Insolvency Act 24 of 1936 s 73(1)
Patel v Paruk’s Trustee 1944 AD 469
Smith NO v Hattingh 1984 (2) SA 660 (C)
If a trustee fails to take any steps to set aside any disposition of property under section 26, 29,
30 or 31 of the Insolvency Act, or for the recovery of compensation or a penalty under
section 31, the proceedings may be taken by any creditor in the name of the trustee against an
indemnification given to the trustee for all the costs of the proceedings.
Insolvency Act 24 of 1936 s 32(1)
Volkskas Bpk NO v Barclays Bank (DC & O) 1955 (3) SA 104 (T)
SA Board of Executors & Trust Co Ltd (in liq) v Gluckman 1967 (1) SA 534 (A)
An insolvent may sue or be sued in her or his own name, without reference to the trustee of
the estate, in any matter relating to status or any right, in so far as it does not affect the estate.
Insolvency Act 24 of 1936 s 23

Grevler v Landsdown NNO 1991 (3) SA 175 (T)
Marais v Engler Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais 1998 (2) SA
450 (E) at 453–454
Lapsing of proceedings: Any civil legal proceeding instituted, before the sequestration of the
estate, against a debtor lapses upon the expiration of three weeks from the date of the first
meeting of the creditors in that estate, unless the claimant gave notice of an intention to
continue with the proceedings.
Proceedings do not lapse as a result of the vacation, removal, resignation or death of a trustee.
Discretion: While sections 26, 29, 30 and 31 are formulated in a way which creates the
impression that a court has a discretion, the court, in fact, has to grant the relief if the relevant
section is applicable to the facts of the case.
Gunn NNO v Barclays Bank, DCO 1962 (3) SA 678 (A)
Disposition: The Act defines “disposition” as meaning any transfer or abandonment of rights

to property and including a sale, lease, mortgage, pledge, [Page 197] delivery, payment,
release, compromise, donation or any contract therefor, but not including a disposition in
compliance with an order of court.
Dabelstein v Lane and Fey NNO [2001] 1 All SA 532 (SCA); 2001 (1) SA 1222 (SCA)
Disposition without value: A disposition of property not made for value may be set aside in
terms of section 26. The plaintiff must allege and prove:
(a) a disposition made by the insolvent of property;
Langeberg Koöperasie Bpk v Inverdoorn Farming & Trading Co Ltd 1965 (2) SA 597 (A)
(b) that the disposition was not made for value;
Commissioner for Inland Revenue v Bowman NO 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 is, provided the disposition took place
within two years of the sequestration, that, immediately after the disposition was made, the
assets of the insolvent still exceeded the liabilities.
Voidable preferences: The court may set aside a disposition as a voidable preference in terms
of section 29.
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 (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 above another;
Standard Finance Corp of SA Ltd (in liq) v Greenstein 1964 (3) SA 573 (A)
Ensor NO v Nedbank Ltd 1978 (3) SA 110 (D)
(e) that, immediately after the making of the disposition, the liabilities of the debtor
exceeded the value of her or his assets.
Lipschitz v Landmark Consolidated (Pty) Ltd 1979 (2) SA 482 (W) at 492–495
The only statutory defence available to a defendant is to allege and prove that:
(a) the disposition was made in the ordinary course of business; and
Hendriks NO v Swanepoel 1962 (4) SA 338 (A)
Ensor NO v Rensco Motors (Pty) Ltd 1981 (1) SA 815 (A)
(b) the disposition was not intended to prefer one creditor above another.
Pretorius NO v Stock Owners’ Co-operative Co Ltd 1959 (4) SA 462 (A)
Gert de Jager (Edms) Bpk v Jones NO & McHardy NO 1964 (3) SA 325 (A) at 331
[Page 198]
Undue preferences: The court may set aside a disposition as an undue preference in terms of
section 30. 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 one of her or his creditors above another.
(See authorities quoted earlier.)
Cooper NO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA)
Collusive disposition: The court may set aside a collusive transaction and disposition in
terms of section 31 if:
(a) the insolvent had entered into a collusive transaction with another;
Gert de Jager (Edms) Bpk v Jones NO & McHardy NO 1964 (3) SA 325 (A)
(b) whereby he or she disposed;
(c) of property belonging to her or him;
(d) in a manner which had the effect either of prejudicing creditors or of preferring one of
these creditors above another.
In this instance, the following relief is available:
(a) payment of any loss caused to the estate by the disposition;
(b) a penalty which may be equal to the benefit the defendant could have derived from
the disposition;
(c) forfeiture of the defendant’s claim against the insolvent estate.
Voidable sale of business: The matter is regulated by section 34.
Silverstream Investments (Kranskop) CC v Ronbo Automotive CC [1996] 3 All SA 216 (D);

1997 (1) SA 107 (D)
Kelvin Park Properties CC v Paterson NO [2001] 1 All SA 18 (SCA); 2001 (3) SA 31 (SCA)
See the precedent below for the elements.
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 the sum of [amount] by way of donation.
3. The aforesaid payment constituted a disposition as intended in section 26 of

Act 24 of 1936.
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.
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].
[Page 199]
Claim – setting aside disposition without value made 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 the sum of [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 aforesaid is liable to be set aside in terms of

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
against him for money lent and advanced.
3. Immediately after the payment, the liabilities of the insolvent exceeded the
value of his assets [detail] and the payment had the effect of preferring defendant above the
other creditors of the said insolvent.
4. In the premises, the aforesaid 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 his indebtedness to defendant for moneys lent and advanced to him by
defendant.
4. The aforesaid payment was made by the insolvent with the intention of
preferring defendant above his 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

Claim – relating to collusive transaction
1. [As above.]
2. On [date], the insolvent and defendant entered into 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
therein, for the sum of [amount]. A copy of the agreement is attached hereto.
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.
4. As both the insolvent and defendant were aware, the insolvent was not
indebted to defendant in any sum arising from any cause and the said agreement was a
collusive agreement entered into between them with the intention of defrauding and
prejudicing the insolvent’s creditors.
5. The business, stock, fixtures and fittings were, pursuant to the agreement,
delivered to defendant on [date], and he paid the insolvent the sum of [amount] and two of
the monthly instalments.
[Page 200]
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 a sum of [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 said business and the delivery to the plaintiff of the stock in trade,
fixtures and fittings therein.
(c) An order declaring defendant to forfeit any claim he may have 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 therein, to defendant for the sum of [amount]
under a written agreement, Annexure “A” attached hereto, and transferred it to defendant on
[date].
3. The insolvent at no time published 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 therein to the plaintiff.
Insurance
The insurer: An insurance contract may be concluded only by a person registered as an

insurer either under the provisions of the Long-term Insurance Act 52 of 1998 or the Short-
term Insurance Act 53 of 1998. A claim based on an insurance policy ought, therefore, to
allege that the insurer is a registered insurer in terms of either Act.
Insurable interest: It is sometimes said that, unless the insured has an insurable interest, the
contract is unenforceable because it is a wagering contract and that the absence of an
insurable interest may be a good defence
Gutman NO v Standard General Insurance Co Ltd 1981 (4) SA 114 (C)
The other view is that the absence of an insurable interest is not a defence per se but only an
element in determining whether the contract is one of insurance or one of wager.
Phillips v General Accident Insurance Co (SA) Ltd 1983 (4) SA 652 (W)
Steyn v AA Onderlinge Assuransie Assosiasie Bpk 1985 (4) SA 7 (T)
Irrespective of which view is correct, there seems to be no reason why an insured has to
allege or prove an insurable interest. If, however, the insurance cover is for damages suffered,
the insured will have to allege and prove the [Page 201] loss suffered and, incidentally, the
insurable interest. The extent of the insurable interest will be the extent of the loss suffered.
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)
Interpretation: The ordinary rules relating to the interpretation of contracts apply to the

interpretation of insurance policies.
Lehmbecker’s Earthmoving & Excavators (Pty) Ltd v IGI Ltd 1984 (3) SA 513 (A)
Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A) at 38
Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London [2002] 4 All SA 355
(SCA); 2003 (2) SA 440 (SCA)
The contra proferentem rule is often invoked.
Price v IGI Ltd 1983 (1) SA 311 (A)
Forfeiture clauses are restrictively interpreted.
Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A)
Subrogation: An insurer who has indemnified an insured has the right to step into the
insured’s shoes without cession and to bring an action against a third party (the person who
caused the insured’s loss) in the name of the insured and without the latter’s knowledge or
consent.
Commercial Union Ins of SA Ltd v Lotter [1999] 1 All SA 235 (A); 1999 (2) SA 147 (SCA)
at 154
Duty to disclose: There is a duty on both the insured and the insurer to disclose to each other,
prior to conclusion of the contract, every fact relative and material to the risk and the
assessment of the premium. This duty relates to material facts of which the parties had actual
or constructive knowledge prior to conclusion of the contract. A breach of the duty entitles
the aggrieved party to avoid the contract. The duty as here formulated has replaced the
jettisoned concept of uberrima fides.
Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A) at 432
President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk 1989 (1) SA 208 (A)
A party relying on such non-disclosure must allege and prove that:
(a) the fact was not communicated to that party;
Fransba Vervoer (Edms) Bpk v IGI Ltd 1976 (4) SA 970 (W) at 977
(b) the fact was within the knowledge of the insured;
(c) the undisclosed fact was material – that is, a reasonable man would, on consideration
of the relevant facts of the particulars case, have considered the undisclosed fact as being
reasonably relative to the risk and to the assessment of the premium.
Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A) at 435
Causation: The basic approach to questions of causation applies to this field, subject,

possibly, to the provisions of the particular insurance policy.
Napier v Collett 1995 (3) SA 140 (A)
[Page 202]
Condition precedent: So-called conditions precedent that are normally contained in insurance

policies are usually not suspensive conditions at all but merely ordinary terms of the policy. It
is not for the insured to allege compliance or fulfilment of these ‘conditions’: but it is for the
insurer to allege and prove a breach of such conditions and a cancellation as a result of the
breach.
Marine & Trade Insurance Co Ltd v Van Heerden NO 1977 (3) SA 553 (A)
Penderis & Gutman NNO v Liquidators, Short-Term Business, AA Mutual Ins Assocn Ltd
1992 (4) SA 836 (A)
In the case of a true suspensive condition, the insured, in order to rely on the insurance
contract, must allege and prove fulfilment of the contract.
Warranties: An insured’s reply to the questions set out in the proposal form may form the
basis of the contract and may constitute warranties made by her or him as to the accuracy of
the answer. If the insured’s reply proves to be inaccurate, the insurer may repudiate the
contract even if the insured was completely innocent and bona fide. It all depends on the
terms of the contract.
Heslop v General Accident, Fire & Life Assurance Corp Ltd 1962 (3) SA 511 (A)
A long-term or a short-term policy is not invalidated, the obligation of the insurer is not
excluded or limited, and the obligation of the owner of the policy is not to be increased on
account of any untrue representation made to the insurer, regardless of whether such
representation is warranted to be true, unless the incorrectness of the representation is of such
a nature as to be likely to have materially affected the assessment of the risk under the policy
at the time of issue or any reinstatement or renewal thereof.
Long-term Insurance Act 52 of 1998 s 59(1)
Short-term Insurance Act 53 of 1998 s 53(1)
Qilingele v SA Mutual Life Assurance Society 1993 (1) SA 69 (A)
Clifford v Commercial Union Insurance Co of SA Ltd 1998 (4) SA 150 (SCA)
Liberty Life Association of Africa Ltd v de Waal NO 1999 (4) SA 1177 (SCA)
A representation, also in this context, is a pre-contractual statement and not a term of the
contract. The exception to the common-law rule created by this provision does not apply to
warranties that are not based on such a representation.
South African Eagle Insurance Co Ltd v Norman Welthagen Investments (Pty) Ltd 1994 (2)
SA 122 (A)
It is for the insurer to allege and prove a breach of a warranty.
Rouwkoop Caterers (Pty) Ltd v IGI Ltd 1977 (3) SA 941 (A)
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) SA 330 (A) at 334
(SCA); 2003 (2) SA 440 (SCA)
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 remains on the plaintiff
to prove that the death was caused by an accident and to exclude the probability of suicide.
There is no onus upon the defendant (the insurer) to prove suicide.
Aegis Insurance Co Ltd v Consani NO 1996 (4) SA 1 (A); [1996] 3 All SA 547 (A)
[Page 203]
When the promise (the insurance cover) is qualified by exceptions, the question of whether
the plaintiff need prove facts which negative their application depends on whether the
exception qualifies the whole of the promise or whether it 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, a
plaintiff cannot make out a prima facie case, unless he or she brings him- or herself within the
promise as qualified. On the other hand, if the exception merely excludes particular classes,
the onus rests on the insurer. It is all a question of interpretation.
Rabinowitz NNO v Ned-Equity Insurance Co Ltd 1980 (1) SA 403 (W)
(SCA); 2003 (2) SA 440 (SCA)
The onus on one party may be the same as that on the other with the result that the onus
resting on the insurer may be of no practical consequence, on the facts of the case.
Rabinowitz NNO v Ned-Equity Insurance Co Ltd 1980 (1) SA 403 (W) at 430
Insolvency of insured: Whenever an insurer is obliged to indemnify an insured in respect of

any liability incurred by the latter toward a third party, the third party, on the sequestration of
the insured’s estate, is entitled to recover from the insurer the amount of the insured’s liability
to the third party, which amount may not exceed the maximum amount for which the insurer
has bound itself to indemnify the insured.
Le Roux v Standard General Versekeringsmaatskappy Bpk 2000 (4) SA 1035 (SCA)
Coetzee v Attorneys’ Insurance Fidelity Fund [2002] 4 All SA 509 (SCA); 2003 (1) SA 1
(SCA)
Fraudulent claims: Even in the absence of a forfeiture clause, the fact that the claim is tainted
with fraud is a complete answer to the claim.
Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A) at 756
A fraudulent claim makes the contract voidable but does not affect accrued claims.
It is for the insurer to allege and prove that the claim was fraudulent and to prove the
consequent repudiation of the claim.
Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk 1974 (2) SA 450 (A)
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 said policy of insurance was of full force and effect during [state period].
[Page 204]
4. (a) During [state period], the said 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 said 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) In the bona fide and reasonable but mistaken belief that defendant was entitled
to payment of the sum of [amount] in terms of the policy of insurance referred to in
paragraph 3 above, plaintiff paid defendant the said sum.
(b) Notwithstanding demand, defendant fails to repay plaintiff the said sum of
[amount].
Claim – for compliance of 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 Act . . . .
2. On [date] at [place], the parties entered into a written agreement of insurance,

in terms of which defendant undertook to insure plaintiff’s motor car, being [describe],
against the risks mentioned in the contract, one of them being the theft of the vehicle. A copy
of the agreement of insurance is attached hereto 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 into a
written agreement of insurance.
3. Plaintiff is not in possession of a copy of the aforementioned written

agreement of insurance, 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 aforementioned written 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;
[Page 205]
(c) “bodily injury” was defined as follows:
bodily injury shall mean injury which is caused by accidental means and
which within twenty-four 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 aforesaid 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 written agreement of insurance and, at the time of his death, the agreement was operative
and effective.
8. Plaintiff in her capacity aforesaid duly gave defendant written notice, in terms
of the provisions of the written agreement of insurance, of her claim for payment of the
amount 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 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 of 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.
Plea – of material non-disclosure
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 said 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
Agreed interest: If parties agreed on a rate of interest or if the rate is regulated by trade
custom, those facts must be alleged and proved.
When interest begins to run: There is generally no obligation to pay interest until the debt
becomes due and payable.
Schenk v Schenk 1993 (2) SA 346 (E) at 351
It is necessary to allege when the interest claimed began to run. The cause of action for
interest may flow from an express or implied stipulation for interest – ie, if the debtor is in
mora ex re. In the absence of such a term, interest begins to run only if the debtor is in mora
ex persona, which requires a demand. Service of the summons may serve as a demand.
Turner & Wright v Versatile Pump & Foundry Works (Pty) Ltd 1953 (3) SA 556 (T)
Commissioner for Inland Revenue v First National Industrial Bank Ltd 1990 (3) SA 641 (A)
at 654
Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (SCA);

2001 (4) SA 551 (SCA) at par 80–86
[Page 206]
If reliance is placed on a demand, the fact of the demand and its date must be alleged.
Standard Bank of SA Ltd v Lotze 1950 (2) SA 698 (C)
Prescribed rate of interest: A prescribed rate of interest is provided for in section 1 of the
Prescribed Rate of Interest Act 55 of 1975. The rate is prescribed by the Minister of Justice
and applies “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.”
List v Jungers 1979 (3) SA 106 (A)
The court may, on the ground of special circumstances relating to the particular debt, order
otherwise.
Prescribed Rate of Interest Act 55 of 1975 s 1
Such decision is at the court’s discretion.
Volkskas Beleggingskorp Bpk v Oranje Benefit Society 1978 (1) SA 45 (A) at 60

Cf 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) at 508
Compound interest: Compound interest can be claimed if an agreement to that effect is

alleged. Interest may also be claimed on unpaid interest which was due and payable.
Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A)
Interest on judgment debt: Every judgment debt bears interest from the day on which the
judgment debt is payable, unless the judgment or order states otherwise.
“(1) Every judgment debt which, but for the provisions of this subsection, would
not bear any interest after the date of the judgment or order by virtue of which it is due, shall
bear interest from the day on which such judgment debt is payable, unless that judgment or
order provides otherwise.
(2) Any interest payable in terms of subsection (1) of Act 55 of 1975 may be
recovered as if it formed part of the judgment debt on which it is due.
(3) In this section “judgment debt” means a sum of money due in terms of a
judgment or an order, including an order as to costs, of a court of law, and includes any part
of such a sum of money, but does not include any interest not forming part of the principal
sum of a judgment debt.”
The word “payable” in subsection (1) means “due and payable”.
Schenk v Schenk 1993 (2) SA 346 (E)
Administrateur, Transvaal v JD van Niekerk en Genote BK 1995 (2) SA 241 (A)
In duplum rule: Interest may not exceed the amount of the outstanding capital.
LTA Construction Bpk v Administrateur, Transvaal 1992 (1) SA 473 (A)
This is the basic rule and obtains irrespective of whether the interest has been capitalised by
agreement. There is, however, an exception to the rule: the in duplum rule is suspended by
pending litigation. But, once judgment has been granted, additional interest may run until it
reaches the double of the capital amount outstanding in terms of the judgment.
Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811
(SCA) at 834; [1998] 1 All SA 413 (SCA)
If a plaintiff’s claim is based on a capitalised amount of capital and interest, it is unnecessary

to establish that the claim does not infringe the rule. If the defendant raises the matter in the
plea, it will be for the plaintiff to establish non-infringement.
F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk [1998] 4 All
SA 480 (SCA); 1999 (1) SA 515 (SCA)
[Page 207]
Usury: In any event, the interest claimed may not exceed that allowed by the Usury Act 73
of 1968.
C & T Products (Pty) Ltd v MH Goldschmidt (Pty) Ltd 1981 (3) SA 619 (C)
Unliquidated and damages claims: At common law, claims which were not liquidated did not
bear interest.
Union Government v Jackson 1956 (2) SA 398 (A) at 412
The common law has been replaced by the introduction of section 2A into the Act by Act 7 of
1997. See, in general,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)
“(1) Subject to the provisions of this section the amount of every unliquidated debt
as determined by a court of law, or an arbitrator or an arbitration tribunal or by agreement
between the creditor and the debtor, shall bear interest as contemplated in section 1 of Act 7
of 1997.
(2) (a) Subject to any other agreement between the parties the interest
contemplated in subsection (1) of Act 7 of 1997 shall run 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.
(b) In the case of arbitration proceedings and subject to any other agreement
between the parties, interest shall run from the date on which the creditor takes steps to
commence arbitration proceedings, or any of the dates contemplated in paragraph (a),
whichever date is the earlier.
(3) The interest on that part of a debt which consists of the present value of a loss
which will occur in the future shall not commence to run until the date upon which the
quantum of that part is determined by judgment, arbitration or agreement and any such part
determined by arbitration or agreement shall for the purposes of Act 7 of 1997 be deemed to
be a judgment debt.
(4) Where a debtor offers to settle a debt by making a payment into court or a
tender and the creditor accepts the payment or tender, or a court of law awards an amount not
exceeding such payment or tender, the running of interest shall be interrupted from the date
of the payment into court or the tender until the date of the said acceptance or award.
(5) Notwithstanding the provisions of Act 7 of 1997 but subject to any other law
or an agreement between the parties, a court of law, or an arbitrator or an arbitration tribunal
may make such 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.
(6) The provisions of section 2(2) of Act 7 of 1997 shall apply mutatis mutandis
to interest recoverable under this section.”
“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 thereof.
Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161 (SCA);

2001 (4) SA 551 (SCA)
Appropriation of payments: Payments on an interest-producing debt must first be applied to

the interest accrued and only thereafter in reduction of the capital.
Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811
(SCA); [1998] 1 All SA 413 (SCA)
[Page 208]
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 within the contemplation of the parties at the time of contracting or flowed naturally
from the breach.
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 777G–
779E
Cf Thoroughbred Breeders’ Association of SA v Price Waterhouse [2001] 4 All SA 161

(SCA); 2001 (4) SA 551 (SCA)
Suspension of interest: A pending appeal does not suspend the running of interest.
General Accident Versekeringsmaatskappy SA Bpk v Bailey NO 1988 (4) SA 353 (A)
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
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.
(a) Interest on the amount of [Rx] at the prescribed rate of [percentage] per annum as
from [date] to date of payment; or
(b) Interest on the amount of [Rx] at the agreed rate of [percentage] per annum as from
[date] to date of payment; or
(c) Interest on the amount of [Rx] at the prescribed rate of [percentage] per annum as
from date of judgment to date of payment.
Interpleaders
General: The interpleader procedure enables a party who is, or may be, the subject of adverse
claims by two or more parties to have the competing claims decided between the claimants
and, thereby, to protect the interpleader applicant against costs. The matter is dealt with
exhaustively in Uniform rule 58.
Parties: An interpleader applicant may be a defendant, a prospective defendant or a sheriff

who has attached property in execution.
Each claimant must deliver particulars of claim and the court may then order which claimant
will be the plaintiff and which the defendant.
Uniform rule 58(6)
[Page 209]
Interpleader notice: The interpleader notice must:
(a) state the nature of the liability, property or claim which is the subject-matter of the
dispute;
(b) call upon the claimants to deliver, within the time stated in the notice, being not less
than 14 days from the date of service thereof, particulars of their claims; 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 the latter’s decision as
to the applicant’s liability or to 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;
(c) is willing to deal with, or act in regard to, the subject-matter of the dispute as the court
may direct.
Uniform rule 58(4)
Payment and delivery: The applicant must simultaneously:
(a) pay the money which is the subject of the conflicting claims to the registrar; or
(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 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.
Particulars of claim: Each claimant must file particulars of her or his claim. The content of
such particulars depends on the nature of the claim. The purpose of this statement is to
acquaint the opponent with the tenor of the case so that such opposing party can decide
whether 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) SA 863 (C)
Free State Consolidated Gold Mines (Operations) Bpk v Sam Flanges Mining Supplies BK
1997 (4) SA 644 (O)
Uniform rule 58(5)
Court order: The court may, depending on the circumstances of the case, 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 (4) SA 644 (O) at 656
[Page 210]
PRECEDENTS
See: ACTIO AD EXHIBENDUM; VINDICATION.
Interpleader notice
In as much as:
(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] on the ground that 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 subsequent to the date of this notice.
[Based on Government of the Republic of South Africa v Midkon (Pty) Ltd 1984 (3) SA 552
(T) at 564–565.]
• Joint Ownership
• Joint Wrongdoers • Judgments: Foreign
• Judgments: Setting aside • Jurisdiction
Joint Ownership
General: Where property is owned in joint ownership, each co-owner has an undivided share
in the thing owned and a right to share it. The various shares need not be equal. Every co-
owner is entitled to use the joint property reasonably and in proportion to its share. A co-
owner is entitled to its proportionate share of profits derived from the property through, for
example, the letting of the property. One co-owner is obliged to account to the other and
bears the onus of proving that it is released from the duty to account.
Pretorius v Botha 1961 (4) SA 722 (T)
Termination of joint ownership: As a general rule, every co-owner is entitled to have the co-
ownership terminated with the actio communi dividundo.
Robson v Theron 1978 (1) SA 841 (A)
A party claiming termination of co-ownership has to allege and prove:
(a) the existence of joint ownership;
(b) a refusal by the other to agree to a termination of the joint ownership, an inability to
agree in respect of the method of termination, or an agreement to terminate but a refusal to
comply with the terms of the agreement;
Ntuli v Ntuli 1946 TPD 181
[Page 211]
(c) facts upon which the court can exercise its discretion as to how to terminate the joint
ownership. The general rule is that the court will follow the method that is fair and equitable
to both parties. Examples of such methods include a division of the property, if that can be
done physically and legally;
Badenhorst v Marks 1911 TPD 144
a sale by public auction and a division of the nett amount;
Estate Rother v Estate Sandig 1943 AD 47
an allocation of the property to the one co-owner subject to payment of compensation

to the other co-owner; and
a private auction restricted to the co-owners and a division of the nett amount.
Kruger v Terblanche 1979 (4) SA 38 (T)
Ancillary relief: The action may also be used to claim ancillary relief – for example,
expenses incurred by one of the parties in connection with the joint property – or a claim to a
share of the profits derived from the property.
Robson v Theron 1978 (1) SA 841 (A) at 857
Rademeyer v Rademeyer 1968 (3) SA 1 (C)
Defences: The defendant may rely on an agreement between the parties not to subdivide
within a given period on an agreement between them as to the particular 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 by virtue of the provisions of the Subdivision of

Agricultural Land Act 70 of 1970.
5. Plaintiff has, at all times and with the consent of defendant, lived on and used
the farm. Defendant has shown no interest therein.
6. Plaintiff tenders to pay to defendant the sum of [amount] being half the value
of the farm against registration of defendant’s share in plaintiff’s name.
But see the Subdivision of Agricultural Land Act Repeal Act 64 of 1998 (not yet in
operation).
(a) An order that the co-ownership 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.
[Page 212]
Joint Wrongdoers
See : CONTRIBUTORY NEGLIGENCE
Judgments: Foreign
See : FOREIGN JUDGMENTS
Judgments: Setting Aside
The general principle is that a court that has duly pronounced a final judgment or order has
no authority to correct, alter or supplement the judgment or order. The basic reason is that,
upon pronouncement, the court becomes functus officio, its jurisdiction in the case has been
fully and finally exercised and its authority over the subject-matter has ceased.
Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A)
Judgment by default: The rules of court provide for the setting aside by way of application of
a judgment granted where the defendant was in default.
Uniform rule 31(2)(b)
The high court has, apart from the power granted by the rule, a common-law power to set
aside a judgment granted by default. In such event, the procedural limitations of the rule do
not apply and the common-law rules relating to the setting aside of other final orders also do
not apply in all respects.
De Wet v Western Bank Ltd 1979 (2) SA 1031 (A)
Uniform rule 42: This rule provides for the setting aside of a final order granted under
special circumstances. The prescribed procedure is by way of application and a discussion of
the rule falls outside the scope of this work.
Setting aside under the common-law procedure: It appears to be settled that the procedure
available to a party in setting aside a final order includes application and not only action
proceedings.
De Wet v Western Bank Ltd 1977 (4) SA 770 (T) at 776
Motor Marine (Edms) Bpk v Thermotron 1985 (2) SA 127 (SE)
Santos Erec v Cheque Discounting Co (Pty) Ltd 1986 (4) SA 752 (W)
Grounds: The main ground under the common law for setting aside a final judgment is fraud
to which the successful litigant was a party.
Makings v Makings 1958 (1) SA 338 (A)
The fraud must be of such a nature as to entitle the other party to restitution in integrum at
common law.
De Wet v Western Bank Ltd 1977 (4) SA 770 (T)
As a general rule, a iustus error, even if induced by a non-fraudulent misrepresentation by the

successful litigant, does not provide a cause of action for setting aside the judgment.
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163

[Page 213]
Essentials: In order to succeed in a claim for setting aside a final judgment because of fraud,
a plaintiff must allege and prove that:
(a) the successful party (or someone to his or her knowledge) gave incorrect evidence or
misled the court or the other party in some other way;
(b) fraud had been committed; and
(c) such fraud was material – that is, had the court known the true facts, it would have
given a judgment different from the judgment it gave.
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163
Rowe v Rowe [1997] 3 All SA 503 (SCA); 1997 (4) SA 160 (SCA)
Parties: A party claiming a rescission of a judgment need not have been a litigant in the
original matter but must establish an interest in the matter sufficiently direct and substantial
which interest 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) SA 409 (C)
Correction of an order: A court may correct, alter or supplement its order under certain
special circumstances. The recognised circumstances are:
(a) to supplement the order in respect of accessory or consequential matters, such as costs
and interest;
(b) to clarify the order;
(c) to correct a clerical, arithmetical or similar error so as to give effect to the true
original intention;
(d) if an order as to costs was made without argument, to reconsider that part of the order.
Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A)
S v Wells 1990 (1) SA 816 (A)
PRECEDENTS
Claim – to set aside a judgment fraudulently obtained
1. On [date], this honourable court ordered the present plaintiff to pay the present
defendant the sum of [amount], being damages suffered by defendant as a result of plaintiff’s
alleged adultery during [period] with one [name], the defendant’s alleged wife, during the
subsistence of their marriage, and costs.
2. Unbeknown to plaintiff, the court of [specify] had on [date] issued an order of
divorce in the defendant’s favour. That court had jurisdiction to grant the divorce and its
order was a final order.
3. Defendant, at all material times, was aware that the said court had validly
dissolved the marriage between him and his said alleged wife prior to the date of the alleged
adultery.
4. Defendant fraudulently failed to disclose this fact to this honourable court at

the trial as he was in duty bound to do.
5. Defendant acted with the intention of misleading this honourable court and
inducing it to believe that defendant and his said alleged wife were still married to each other
when the alleged adultery occurred.
6. Had this honourable court been aware of the fact that the said marriage
between defendant and his said alleged wife had already been lawfully dissolved, it would
not have awarded any damages in defendant’s favour against plaintiff, but it was induced to
do so by reason of defendant’s aforesaid fraudulent conduct.
That the order of this honourable court in [case number] given against plaintiff in favour of
defendant on [date] be set aside.
[Page 214]
Jurisdiction
The plaintiff: A plaintiff must allege and prove in all instances 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 (4) SA 287 (N)
SOS-Kinderdorf International v Effie Lentin Architects 1991 (3) SA 574 (Nm)
Jasat v Interim National Medical and Dental Council [1998] 4 All SA 289 (N); 1999 (1) SA
156 (N)
In the ordinary course of events, save in magistrates’ courts, it is not necessary to make any
specific allegation concerning jurisdiction, provided that the underlying facts establishing
jurisdiction are set out. For instance, once it is alleged that the defendant resides within the
area of jurisdiction of the court, that is a sufficient prima facie allegation of jurisdiction for
purposes of section 19(1)(a) of the Supreme Court Act 59 of 1959. Likewise, an allegation
that the delict was committed within the area of jurisdiction is sufficient to bring the case
under the other part of the provision, namely that a high court has jurisdiction in relation to
all causes “arising” within its jurisdiction.
In magistrates’ courts, however, the summons must set out sufficient facts establishing not
only that the particular court has jurisdiction over the person of the defendant, but also in
relation to the cause of action.
The defendant: The absence of jurisdiction may be raised by a defendant (depending on the

circumstances) by way of a special plea or by way of an exception.
Dusheiko v Milburn 1964 (4) SA 648 (A)
Spie Batignolles SA v Van Niekerk 1980 (2) SA 441 (NC)
A defendant, who does not raise the absence of jurisdiction prior to litis contestatio, is
deemed to have submitted to the court’s jurisdiction in the high court.
Muller v Möller 1965 (1) SA 872 (C)
A fuller discussion of the rules relating to jurisdiction falls outside the scope of this work.
PRECEDENTS
Special plea – alleging absence of jurisdiction
Defendant denies that this honourable court has jurisdiction to grant a divorce by virtue of the
fact that neither party is domiciled within its area of jurisdiction, the parties being domiciled
at [place].
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
(b) defendant is not ordinarily resident within the area of its jurisdiction but resides at
[address].
[Page 215]
• Latent Defects
• Lateral Support
• Leases
• Lex Aquilia
• Liens • Lis Alibi Pendens
• Loans
• Loan for Use (Commodatum)
• Locatio Conductio Operis (Letting and Hiring of Work) • Locus

Standi
• Loss of Support
Latent Defects
A seller may be held liable for latent defects in the object sold, depending on the facts, with
the actio empti, the actio redhibitoria or the actio quanti minoris. Relief may be claimed in the
alternative.
Le Roux v Autovend (Pty) Ltd 1981 (4) SA 890 (N)
Actio empti: Damages (with or without cancellation of the contract) for latent defects can be
claimed with the actio empti. (The other two actions do not entitle the purchaser to damages.)
This normally means that the plaintiff’s case must be based on a breach of contract. The
presence of latent defects does not per se amount to a breach of contract. The purchaser must
not only allege and prove that the object had a defect which was latent, but also one or other
of the following:
(a) The seller expressly or impliedly warranted the absence of defects or the presence of
the qualities lacking in the object sold. This involves proof of a term of the contract.
Minister van Landbou-Tegniese Dienste v Scholtz 1971 (3) SA 188 (A)
(b) The seller was the manufacturer of the article or a merchant or dealer who publicly
professed to have attributes of skill and expert knowledge in relation to the kind of thing sold.
This is really a manifestation of a tacit term.
Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha 1964 (3) SA 561 (A)
Langeberg Voedsel Bpk v Sarculum Boerdery Bpk 1996 (2) SA 565 (A)
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd [2002] 2 All SA 525 (A); 2002 (2) SA 447
(SCA)
(c) The seller concealed defects of which he or she knew, or knowingly represented their
absence. This is simply fraud in another form.
Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A)
See further CONTRACT: DAMAGES for the other elements of the claim.
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 that
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 (2) SA 846 (A)
(b) the defect existed at the time of sale;
Seboko v Soll 1949 (3) SA 337 (T) at 350
(c) the defect was latent – ie, it was not visible or discoverable upon inspection;
(d) the purchaser was unaware of the defect. The allegation that the defect was latent
implies this element;
Cullen v Zuidema 1951 (3) SA 817 (C)
[Page 216]
(e) objectively speaking, the purchaser would not have purchased the object had he or she
known of the defect;
(f) the purchaser is willing and able to effect restitution or that there are sufficient
grounds why restitution should be excused.
Hall-Thermotank Natal (Pty) Ltd v Hardman 1968 (4) SA 818 (D)
Actio quanti minoris : A purchaser who is unable to prove the last two elements of the actio
redhibitoria is nevertheless entitled to claim a price reduction with the actio quanti minoris.
This reduction is the difference between the purchase price of the object and the value of the
object with its defect.
Labuschagne Broers v Spring Farm (Pty) Ltd 1976 (2) SA 824 (T)
It is, therefore, necessary to allege and prove the actual value of the article sold.
Grosvenor Motors Border Ltd v Visser 1971 (3) SA 213 (E)
Sarembock v Medical Leasing Services (Pty) Ltd 1991 (1) SA 344 (A)
If the sale was one by measure, the price reduction will be proportional.
Welgemoed v Sauer 1974 (4) SA 1 (A)
Voetstoots clause: The seller may rely on a voetstoots clause as a defence to relief under the
aedilitian actions. The voetstoots clause is no defence in the event of fraudulent non-
disclosure. The purchaser must allege and prove that the seller was aware of the latent defect
when the contract was concluded, that he or she deliberately concealed such defect, bore a
duty to disclose and failed so to disclose.
Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A) at 870
Van der Merwe v Meades 1991 (2) SA 1 (A)
Fraud does not remove the voetstoots clause from the contract: the seller remains entitled to
rely on it to the extent that he or she acted honestly.
Truman v Leonard 1994 (4) SA 371 (SE)
Exceptio quanti minoris : Although a defendant, in the plea to a claim for payment of the
purchase price, may rely on a price reduction, the so-called 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. In the ordinary instance, quanti minoris
must be claimed in a counterclaim.
Davenport Corner Tea Room (Pty) Ltd v Joubert 1962 (2) SA 709 (D)
Manufacturer: The liability of the manufactuer is aquilian.
See : LEX AQUILIA
Wagener v Pharmacare Ltd; Cutting v Pharmacare Ltd [2003] 2 All SA 167 (SCA)
PRECEDENTS
Claim – for cancellation or price reduction

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.
[Page 217]
4. At the time of the sale, the motor vehicle suffered from the following latent
defects, namely [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 to the above, 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.
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
1. On [date] at [place], the parties entered into an oral agreement of sale in terms
of which plaintiff purchased from 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. As a result of the defects, the tractor was not fit to plough the said fields and
was substantially unfit for any farm work.
7. By virtue of the latent defects and defendant’s breach of warranty relating
thereto, plaintiff is entitled to cancel the agreement between the parties, which he hereby
does, and he tenders return of the tractor to defendant.
8. As a result of defendant’s breach of contract as aforesaid, plaintiff has suffered

damages in the amount of [amount], made up as follows:
[detail].
Lateral Support
A landowner has a common-law right to lateral support for her or his land from the 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.
Wrongfulness: The removal of lateral support is not, as such, a wrongful act. Liability only
arises once damage to the plaintiff’s property takes place. For that reason, every subsidence
gives rise to a fresh cause of action.
Oslo Land Co Ltd v The Union Government 1938 AD 584 at 592
Gijzen v Verrinder 1965 (1) SA 806 (D)
[Page 218]
Subsidence: The plaintiff is entitled to relief, not only in the case of a subsidence, but also in
the event of erosion caused by a disturbance of the natural surroundings of the ground.
Fault: Fault is not an element of the action and the plaintiff is entitled to damages without
alleging or proving fault. Absence of fault is, probably, no defence.
Foentjies v Beukes 1977 (4) SA 964 (E)
Relief: Damages and an interdict are claimable. Neither claims for prospective damages nor
a mandatory interdict to prevent a future subsidence is available to the plaintiff.
John Newmark & Co (Pty) Ltd v Durban City Council 1959 (1) SA 169 (N)
PRECEDENT
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. As a result of the removal of this lateral support, plaintiff’s land subsided

along its western boundary and plaintiff suffered damages in the amount of [amount]
calculated as follows:
[detail].
Leases
Related subjects: EVICTION OR EJECTMENT
The contract: A party relying on a contract of letting and hiring must allege and prove a
contract containing at least the following essential terms:
(a) an undertaking by the lessor to deliver a thing to the lessee;
(b) an agreement between the parties that the lessee will have temporary use and
enjoyment of the thing; and
(c) an undertaking by the lessee to pay rent.
Genac Properties Jhb (Pty) Ltd v NBC Administrators CC 1992 (1) SA 566 (A)
Benlou Properties (Pty) Ltd v Vector Graphics (Pty) Ltd 1993 (1) SA 179 (A)
Hurwitz NNO v Table Bay Engineering (Pty) Ltd 1994 (3) SA 449 (C)
Engen Petroleum Ltd v Kommandonek (Pty) Ltd [2001] 1 All SA 636 (W); 2001 (2) SA 170
(W)
Formalities: There are no formalities for the validity of leases.
Rental Housing Act 50 of 1999 s 5(1)
A long lease of land (excluding a lease covered by the Rental Housing Act) is not valid
against certain third parties unless that lease has been registered or, if it is not registered, the
third party had, at the relevant time, knowledge of the lease.
Formalities in respect of Leases of Land Act 18 of 1969 s 1
[Page 219]
Statutory rights: The Rental Housing Act contains provisions regulating the relationship
between landlords and tenants. These leases are deemed to contain a number of clauses that
may not be amended or waived.
Rental Housing Act 50 of 1999 ss 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, in the prescribed manner, lodge a
complaint with the Tribunal concerning an unfair rental practice.
Rental Housing Act 50 of 1999 s 13
Arrear rental: A lessor claiming arrear rental must allege:
(a) the contract;
(b) fulfilment of the lessor’s duties in terms of the contract, especially the duty to deliver
the thing to the lessee;
(c) non-payment of the rent.
The plaintiff bears the onus of proof, except that it will be for the lessee to allege and prove
payment.
Ramnath v Bunsee 1961 (1) SA 394 (N)
Ejectment:
See : EVICTION OR EJECTMENT; VINDICATION
Cancellation: A lessor relying on cancellation of the contract must allege and prove the
breach of the contract. For instance, a lessor who relies on a late payment of rent bears the
onus of proving that the payment was late.
The lessor must also allege and prove her or his right to cancel the lease. If there is no
cancellation clause (lex commissoria) in the contract, mora and a proper cancellation must be
shown.
Goldberg v Buytendach Boerdery Beleggings (Edms) Bpk 1980 (4) SA 775 (A)
Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A)
Distinct Investments (Pty) Ltd v Arhay CC; Bloom v Das Neves [1997] 2 All SA 513 (W)
A material breach of contract may also lead to cancellation.
Spies v Lombard 1950 (3) SA 469 (A)
The lessor must also allege and prove cancellation – ie, the election to cancel – and timely
notification to the tenant.
Brits v Coetzee 1967 (3) SA 570 (T)

In spite of the fact that the contract has been cancelled, the lessor is still entitled to claim the
rent accrued before termination of the contract.
Bester v Van Zyl 1972 (4) SA 580 (T)
Damages: A lessor who claims damages on the ground of the lessee’s failure to return the let
property in the condition in which it was delivered, must allege and prove that the property
was damaged during the currency of the lease. The lessee may escape liability if he or she
alleges and proves that the damage was not caused by her or his fault.
Nel v Dobie 1966 (3) SA 352 (N)
The same principle applies to a claim based on the lessee’s failure to return the property at
all. It is for the lessee to prove that the let object was not lost as a result of her or his
negligence.
Manley Van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai Safaris &
Film Productions (Pty) Ltd 1977 (2) SA 416 (A)
[Page 220]
Where a plaintiff claims damages resulting from the defendant’s failure to return the property
in the same condition in which the latter received it, it is not sufficient to allege and prove the
cost of the repair of the property. It may be necessary to allege and prove facts showing that
plaintiff suffered actual financial loss – for example, a deterioration in the market value of the
property.
Isep Structural Engineering & Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981 (4)
SA 1 (A)
Dubitante: Mostert NO v Old Mutual Life Assurance Co (SA) Ltd [2001] 4 All SA 250 (A);
2001 (4) SA 159 (SCA)
As part of the damages, the lessor may 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 unlettable or if the only rental obtainable is not one 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)
Holding over: If, when the contract comes to an end, the lessee fails to return the thing let,
the lessor is entitled to claim damages for holding over. There is some authority that suggests
that the amount of damages would be the same as the agreed rental. This position is not
necessarily correct. 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, in fact. lettable.
Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd 1985 (1) SA 248
(W)
The effect of the holding over may be 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)
Counterclaims: A lessor’s claim for ejectment cannot be stayed by a counterclaim for, for
example, compensation for improvements, because such a counterclaim has no bearing on the
main claim.
Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk 1984 (3) SA 760 (N); 1986 (1) SA
448 (A)
Palabora Mining Co Ltd v Coetzer 1993 (3) SA 306 (T)
A claim for rental in respect of a lease which is current may be stayed by means of a
counterclaim for damages whilst the lessee is still in occupation of the property.
Ntshiqa v Andreas Supermarket (Pty) Ltd 1997 (1) SA 184 (Tk) and, on appeal to the full
court, 1997 (3) SA 60 (Tk)
Thompson v Scholtz [1998] 4 All SA 526 (A); 1999 (1) SA 232 (SCA)
Rent-controlled premises: The Rent Control Act 80 of 1976 has been repealed by the Rental
Housing Act. Unfair practices under the Act are dealt with by the Rental Housing Tribunals.
Landlord’s hypothec: The lessor has a hypothec over the goods of third parties on the leased
premises as security for outstanding rental, if the following can be established:
(a) the goods must be on the leased premises with the knowledge and consent of the third
party;
[Page 221]
(b) the lessor must be unaware of the fact that the goods are owned by the third party;
(c) the goods must have been brought onto the property for the use of the lessee; and
(d) the goods must have been intended to remain on the premises indefinitely.
Paradise Lost Properties (Pty) Ltd v Standard Bank of SA (Pty) Ltd 1997 (2) SA 815 (D)
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 situate at [address] at a monthly rental of
[amount]. A copy of the deed of lease is attached hereto 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 the rental for the months of
[specify] to [specify].
4. In terms of clause [number] of Annexure “A”, plaintiff is entitled, upon non-

payment of rental, to cancel the agreement upon 14 days’ notice.
5. Notice in terms of clause [number] was given to defendant on [date], a copy of

which notice is attached hereto 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.
Claim – for damages caused by lessee
1. On [date] at [place], the parties entered into an oral agreement of lease in

terms of which plaintiff let to defendant his house situate at [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 the

termination thereof, defendant would return the house to plaintiff in the same condition as it
was upon delivery thereof 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 to him, the house having been damaged in the following respects:
[detail].
5. As a result of defendant’s failure as aforesaid, plaintiff suffered damages in
the amount of [amount], calculated as follows:
[detail].
[Page 222]
Lex Aquilia
Related subjects: CONTRIBUTORY NEGLIGENCE
DAMAGES
NEGLIGENCE
STATUTORY DUTY OR AUTHORITY: BREACH OF
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 of the
defendant.
Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd 1978 (4) SA 901 (N)
Its principles also apply to a claim for damages suffered as a result of bodily injuries to or the
death of another person (for example, a breadwinner).
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)
Wrongful act or omission: Liability depends on the wrongfulness of the act or omission of

the defendant.
The plaintiff must allege facts from which wrongfulness can be inferred. If wrongfulness can
be implied from the allegation that the defendant negligently caused the plaintiff damage, it is
not customary to allege separately that the act or omission was wrongful. This is usually the
case where physical damage was caused. If, on the other hand, wrongfulness cannot be
inferred from the nature of the loss suffered, which will be the case if the plaintiff claims for
a loss resulting from an omission or for pure economic loss, the defendant’s legal duty
towards the plaintiff must be defined and the breach alleged.
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 378
Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd 1985 (1) SA 475 (A) at
496–498
Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (N) at 757
Trope v SA Reserve Bank 1992 (3) SA 208 (T)

Minister of Law and Order v Kadir 1995 (1) SA 303 (A)
BoE Bank Ltd v Ries [2002] 2 All SA 247 (A); 2002 (2) SA 39 (SCA)
Wrongfulness can manifest itself in different ways – for example, as the breach of a:
(a) common-law right;
Osborne Panama SA v Shell & BP SA Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A) at
900
(b) particular statutory duty; or
Callinicos v Burman 1963 (1) SA 489 (A) at 497–498
Da Silva v Coutinho 1971 (3) SA 123 (A)
Dorland v Smits [2002] 3 All SA 691 (C); 2002 (5) SA 374 (C)
(c) duty of care.
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A)
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A)
[Page 223]
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 the State’s failure to do so may
give rise to liability.
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
SA 431 (SCA)
Van Eeden (formerly Nadel) v Minister of Safety and Security [2002] 4 All SA 346 (SCA);
2003 (1) SA 389 (SCA)
Duty of care: If the duty of care relied on is a general one owed to the public as a whole (for
example, the duty on every driver not to drive a vehicle at an excessive speed), it need not be
specifically pleaded. It is sufficient to allege that the driver was negligent in so acting.
If a specific breach of duty (for example, a banker’s duty to the plaintiff who is not a client,
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) at 450
For examples, see

Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A)
Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) at 83
Barlow Rand Ltd v Lebos 1985 (4) SA 341 (T)
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A)
The inquiry into the existence of the legal duty is discrete 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)
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 depending on all the circumstances
of the case.
Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 27
The plaintiff must allege and prove the act or omission on which the cause of action is based.
Omissions: Liability for an omission no longer arises only where the plaintiff alleges and
proves that the defendant, by a prior positive conduct, created a potential risk of harm and
thereafter failed to take reasonable steps to prevent the risk’s materialising.
Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A)
Cape Town Municipality v Bakkerud [2000] 3 All SA 171 (A); 2000 (3) SA 1049 (SCA)
The question is whether the defendant had a legal duty towards the plaintiff to act.
Minister van Polisie v Ewels 1975 (3) SA 590 (A)
Minister of Law and Order v Kadir 1995 (1) SA 303 (A)
SA 431 (SCA)
Van Eeden (formerly Nadel) v Minister of Safety and Security [2002] 4 All SA 346 (SCA)
The general norm is that, where conduct takes the form of an omission, such conduct is prima
facie lawful.
ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA); 2003 (1) SA 176 (SCA)
[Page 224]
Negligence: The plaintiff must allege and prove that the defendant was negligent.
Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T)
This subject is dealt with in detail under NEGLIGENCE.

Causation: The plaintiff must allege and prove the causal connection between the negligent
act relied on and the damages suffered.
Minister of Police v Skosana 1977 (1) SA 31 (A)
Blyth v Van den Heever 1980 (1) SA 191 (A) at 208
Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1990 (4) SA 749 (N) at
755
Du Plessis NO v Phelps 1995 (4) SA 165 (C) at 171–172
De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA)
Damages will not be recoverable if they (and their extent or nature) were not foreseeable or
were too remote. This means that, even if it has been established, factual causation may not
be enough to establish liability. There still has to be legal causation.
Kruger v Van der Merwe 1966 (2) SA 266 (A)
Botes v Van Deventer 1966 (3) SA 182 (A)
Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A)
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700–701
Smit v Abrahams 1994 (4) SA 1 (A)
128 (A); 2000 (1) SA 827 (SCA)
Thoroughbred Breeders’ Association of South Africa v Price Waterhouse [2001] 4 All SA

161 (A); 2001 (4) SA 551 (SCA)
The course of the causal connection need not be foreseeable.
Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101 (A)
128 (A); 2000 (1) SA 827 (SCA) at para 22
If different negligent acts have caused different damage, each defendant is liable for the loss
caused by her or him only.
Minister of Communications & Public Works v Renown Food Products 1988 (4) SA 151 (C)
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, in any event, have occurred. The
defence is in the nature of a confession and avoidance.
Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA
455 (A); 1997 (1) SA 157 (A) at 170–171
Exemption clauses: A defendant may rely on a contractual exemption clause as a defence to

a delictual claim. In such a case, the defendant bears the onus of proving the terms of the
contract.
Durban’s Water Wonderland (Pty) Ltd v Botha [1999] 1 All SA 411 (A); 1999 (1) SA 982
(SCA)
128 (A); 2000 (1) SA 827 (SCA)
Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA); 2002 (6) SA 21 (SCA)
Damages: It is for the plaintiff to allege and prove the extent of the damages suffered.
For a full discussion, see : DAMAGES, MOTOR VEHICLE ACCIDENTS.
[Page 225]
PRECEDENTS
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 said collision was occasioned solely as a result of 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 an excessive speed under the prevailing
circumstances.
4. As a result of the said 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 pre-accident value of [amount] and the salvage value of
[amount] of the wreck.
5. Notwithstanding demand, defendant fails to pay plaintiff the sum of [amount].
Claim – for loss of production

1. On [date] at [place], while defendant was in the process of building a road, a
bulldozer, which was then being driven by an employee of defendant, acting within the
course and scope of his employment, cut certain electrical cables.
2. The incident described was caused by the negligence of the driver of the said
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 to paragraph 2 hereof, 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.
4. When the incident described, 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 said works was cut off for a period of [state
period];
(b) plaintiff suffered a loss of production and consequently suffered damages.
6. As a result of the foregoing, plaintiff ’s damages are calculated as follows:
Loss in production [detail].
7. In the premises, defendant is obliged to pay to plaintiff the sum of [amount].
[Based on Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371
(D).]
[Page 226]
Liens
Salvage and improvement liens: These liens provide dilatory defences against a rei
vindicatio. If successfully raised, the owner may not recover possession of the property from
a person who is lawfully in possession and who has an underlying valid enrichment claim,
unless and until the defendant has been compensated.
Singh v Santam Insurance Ltd [1997] 1 All SA 525 (SCA); 1997 (1) SA 291 (SCA)
A lien does not ground a cause of action.
Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A)
Nor does it entitle the possessor to use the object: he or she is entitled to hold it as security
only.
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)
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 have to be
given because the lien covers the lesser of the two amounts only;
(d) that the plaintiff’s enrichment is iniusta (unjustified);
(e) that there was no contractual arrangement between the parties (or a third person) in
respect of the expenses.
Oceana Leasing Services (Pty) Ltd v BG Motors (Pty) Ltd 1980 (3) SA 267 (W)
Wynland Construction (Pty) Ltd v Ashley-Smith 1985 (3) SA 798 (A)
1 (A); 1996 (4) SA 19 (SCA)
(SCA)
Debtor and creditor liens: This type of lien provides a similar defence but depends on a
debtor-creditor relationship between the parties. It differs from salvage and improvement
liens in the following respects:
(a) it can be enforced against a party to the contract only;
Wynland Construction (Pty) Ltd v Ashley-Smith 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) it may be used to recover or enforce payment of the contract price and nothing more.
The enrichment of the plaintiff is irrelevant.
Van Niekerk v Van den Berg 1965 (2) SA 525 (A)
A typical example of a debtor and creditor lien is the lien an attorney has over a client’s
documents.
Benson v Walters 1984 (1) SA 73 (A) at 89
Botha NO v EM Mchunu & Co 1992 (4) SA 740 (N)
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 (4) SA 780 (C)
[Page 227]
Discretion: A court has the discretion to order the release of the goods against provision of
security for the defendant’s claim.
Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd 1968 (1) SA 571 (A)
Peter Cooper & Company (Previously Cooper and Ferreira) v De Vos [1998] 2 All SA 237
(E)
Mancisco and Sons CC (in liq) v Stone 2001 (1) SA 168 (W)
Possession: Loss of possession destroys a lien, which is not revived by recovery of

possession.
Rand Bank Bpk v Regering van die RSA 1975 (3) SA 726 (A)
Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk 1979 (4) SA 467 (T)
PRECEDENT
Plea – alleging debtor and creditor lien
1. Defendant pleads that, on [date], plaintiff delivered the said motor vehicle to
defendant’s service station for the effecting of the following repairs thereto: [detail].
2. Defendant undertook orally to effect the said repairs to 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 duly 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 the sum of [amount], plaintiff has failed to pay
it.
6. By reason of the foregoing, defendant is entitled to retain possession of the

said motor car until payment of the sum of [amount].
WHEREFORE defendant prays that plaintiff’s claim for delivery of the said motor car be
stayed pending payment by plaintiff of the sum of [amount], and costs of suit.
Lis Alibi Pendens
Procedure: The defence that there are pending proceedings between the same parties is
preferably 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. There is,
however, authority to the effect that a defendant is obliged to plead over.
Papp v Legal & General Assurance Society Ltd 1966 (2) SA 113 (E)
See : SPECIAL PLEAS
A court is not entitled to raise the issue of lis pendens unless the defendant pleads it
specifically.
Kerbel v Kerbel 1987 (1) SA 562 (W)
The requisites: The party wishing to raise a lis pendens bears the onus of alleging and
proving the following:
(a) there must be litigation pending;
RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk 1981 (2) SA 141 (O)
Van As v Appollus 1993 (1) SA 606 (C)
[Page 228]
(b) the other proceedings must be pending between the same parties or their privies;
Marks & Kantor v Van Diggelen 1935 TPD 29
Cook v Muller 1973 (2) SA 240 (N)

(c) the pending proceedings must be based on the same cause of action;
Richtersveld Community v Alexkor Ltd 2000 (1) SA 337 (LCC)
Nestlé (SA) (Pty) Ltd v Mars Inc [2001] 4 All SA 315 (A); 2001 (4) SA 542 (SCA)
(d) the pending proceedings must be in respect of the same subject-matter. This does not
mean that the form of relief claimed in both proceedings must be identical.
Williams v Shub 1976 (4) SA 567 (C)
Whether the subject-matter is the same depends on a determination of the issues with
reference to the pleadings. The mere 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 & Development Corp (Pty) Ltd 1981 (1) SA 1219 (T) at 1231
Sikatele v Sikatele [1996] 1 All SA 445 (Tk)
Once the requisites have been established, a factual presumption arises that the second
proceeding is prima facie vexatious. The party who instituted the second proceeding then
bears the onus of convincing the court that the new proceeding is not vexatious. To do this,
that party must satisfy the court that, despite the fact that all the required elements are
present, the balance of convenience and equity are in favour of allowing the case to proceed.
Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T)
Geldenhuys v Kotze 1964 (2) SA 167 (O)
Ntshiqa v Andreas Supermarket (Pty) Ltd [1996] 3 All SA 154 (Tk); 1997 (1) SA 184 (Tk)
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 still pending and have not been disposed of.
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.
WHEREFORE defendant prays that plaintiff’s present action be stayed pending the final
determination of the action between the parties in this honourable court instituted on [date] as
well as an order that plaintiff pay defendant’s costs.
Replication – to a special plea of lis pendens
1. Plaintiff admits that he did institute 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 229]
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 the instant proceedings
is plaintiff’s ownership of the property and defendant’s occupation thereof and, in the
alternative, the cancellation of the lease between the parties by virtue of defendant’s
subsequent failure to make payment of the rentals on due date.
5. Plaintiff accordingly pleads that the instant proceedings are not vexatious and
that, since the issues to be decided are fairly simple, the balance of convenience and equity
are in favour of allowing the case to proceed.
WHEREFORE plaintiff prays that the special plea be dismissed with costs.
Loans
Related subjects: BANKERS
CREDIT AGREEMENTS
INTEREST
LOANS
Cause of action: In a claim based on a loan, the plaintiff must allege and prove:
(a) the contract of loan;
(b) that the money was advanced in terms of the loan;
(c) that the loan is repayable.
If no time for repayment was fixed, it is not necessary to allege that a reasonable time has
elapsed because such a loan is repayable on demand.
Damont NO v Van Zyl 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 a 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) SA 12 (D)
Cf Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A); 1997 (2) SA 337 (SCA)
at 352–353
It is not necessary to allege that a demand was made, unless, in terms of the contract, a
demand is a requirement for repayment.
Ridley v Marais 1939 AD 5
Interest: A loan normally bears interest at an agreed rate. Unless the rate has been set by law
or an agreement, interest is payable at the rate prescribed by the minister in terms of the
Prescribed Rate of Interest Act 55 of 1975. The court may, on the grounds of special
circumstances, order otherwise.
See : INTEREST
The right to recover interest and finance charges is limited by the provisions of the Usury Act
73 of 1968. A moneylender may not claim an amount higher than that calculated in terms of
the provisions of section 5. Save in respect of a debit balance in a cheque account with a
banking institution, finance charges may be stipulated for, demanded or received from a
borrower of [Page 230] money only if they have been disclosed in an instrument of debt
executed in respect of that transaction.
Usury Act 73 of 1968 s 2(9)
There are exceptions to this rule.
The Usury Act confers on a debtor the procedural benefit that judgment cannot be given
against her or him in favour of a plaintiff who does not submit her- or himself to examination
where the defendant alleges that payment of finance charges is claimed by the plaintiff at the
rate exceeding the one allowed by the Usury Act, unless it appears to the court that such
examination is impracticable or that the defendant’s allegation is prima facie without
foundation.
Usury Act 73 of 1968 s 11
There are two prerequisites for the operation of this section:

(a) the defendant must establish, on a balance of probabilities, that the proceedings are
for the recovery of a debt in pursuance of a money-lending transaction or credit transaction,
as defined in the Act; and
(b) the defendant must thereafter support the allegation concerning the excessive finance
charge-rate on a sufficient foundation of fact to render the allegation prima facie acceptable.
Laztex (Pty) Ltd v Telementry Equipment (Pty) Ltd 1976 (1) SA 74 (W)
If the plaintiff abandons that part of the claim which is in excess of what the Usury Act
permits, the defendant’s request for cross-examination will fall away.
McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W)
If finance charges have been calculated in advance, the plaintiff is obliged to give a credit to
the defendant.
PRECEDENTS
1. On [date] at [place], plaintiff lent and advanced to defendant the sum of

[amount] in terms of an oral agreement between them.
2. The aforesaid sum was, in terms of the agreement, repayable on [date],

together with interest thereon at [percentage] per annum to date of repayment.
3. Defendant failed to repay the aforesaid sum to plaintiff on due date and has
failed, since that date, to repay the aforesaid sum.
Special plea – in terms of section 11 of Act 73 of 1968
1. Plaintiff ’s claim is one for the recovery of a debt in pursuance of a money-

lending transaction.
2. Plaintiff has in his claim included a claim for finance charges at a rate of
[percentage] per annum, being in excess of the rate of [percentage] per annum allowed by Act
73 of 1968.
3. Defendant, therefore, prays for an order that plaintiff be called as witness to

prove his claim, that defendant be given an opportunity to examine plaintiff and that the
action be stayed pending the examination.
[Page 231]
Claim – for the repayment of a loan: no time stipulated for repayment

1. On [date] at [place], plaintiff lent and advanced to defendant the sum of
[amount].
2. No time was then stipulated when repayment of such loan had to be effected.
3. On [date], plaintiff duly demanded repayment of the said sum 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 in a

sum of [amount] together with interest payable thereon at [percentage] per annum as from
[date]. A copy of the said acknowledgement of debt is annexed hereto.
2. The capital amount, together with the interest thereon, became payable on
[date] but defendant has, despite demand, failed and neglected to pay either the said capital or
interest or any part thereof.
Plea – of non-numeratae pecuniae
1. Defendant admits that he signed the said written acknowledgement of debt.
2. Defendant admits that, on the date alleged, plaintiff agreed to lend to

defendant the sum of [amount] on the terms alleged.
3. Defendant denies that he at any time received any money whatsoever from
plaintiff pursuant to the said agreement and states that the said acknowledgement of debt was
signed by him in anticipation of the loan’s being made to him by plaintiff.
Loan for Use (Commodatum)
The rights and duties of the lender and borrower are very similar to those of a depositor and
depository. The notes under DEPOSIT apply, therefore, mutatis mutandis to this contract.
This contract must be distinguished from a loan for consumption where the thing lent need
not be returned, but only its kind.
Saridakis t/a Auto Nest v Lamont 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 the said [item], the value of
which is [amount] to plaintiff.

(a) Return of the said [item].
(b) Alternatively, in the event of defendant’s failing to return the said [item] within a time
to be fixed by this honourable court, payment of the value thereof, namely [amount].
[Page 232]
Locatio Conductio Operis (Letting and Hiring of Work)
Related subject: ARCHITECTS
CONTRACT
EXCEPTIO NON ADIMPLETI CONTRACTUS
Definition: Locatio conductio operis is a contract in terms of which one party (the locator or
contractor) has to produce a completed piece of work for the other (the conductor or
employer). Typical examples are building and engineering contracts and contracts for repairs
to the property of the employer.
Sifris NNO v Vermeulen Broers 1974 (2) SA 218 (T)
Toerien v Stellenbosch University 1996 (1) SA 197 (C) at 201
The contract: The plaintiff must allege and prove the terms of the contract relied on, even
doing so involves the proof of a negative: for example, if the defendant alleges that the
contract comprises x + y, whereas the plaintiff alleges that it comprises x only, the plaintiff
must prove that y is not a term of the contract).
Kriegler v Minitzer 1949 (4) SA 821 (A)
Van Rooyen’s Garage (Edms) Bpk v Wartington 1962 (1) SA 914 (T)
Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 94
The ordinary rules relating to the pleading of contracts are applicable.
The contract has three basic terms, namely terms relating to:
(a) the work to be performed;
(b) the remuneration payable; and
(c) the time for performance.
Cf Group Five Building Ltd v Min of Community Development 1993 (3) SA 629 (A)
The Housing Consumers Protection Act 95 of 1998: This Act contains provisions relating to
building contracts in respect of “homes”. These are defined as meaning (subject to some
ministerial prescription) any dwelling unit constructed or to be constructed by a homebuilder
for residential purposes or partially for residential purposes. The Act places an obligation on
a homebuilder 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.
The Housing Consumers Protection Act 95 of 1998 s 13(1)
It provides further that the agreement is be deemed to include a number of warranties for the
protection of the owner, including that the home will be constructed in a workmanlike
manner and will be fit for habitation.
The Housing Consumers Protection Act 95 of 1998 s 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 purpose of the works and will perform the work in a proper
and workmanlike fashion.
Colin v De Guisti 1975 (4) SA 223 (NC)
It may be that, if the employer supplies the material, the latter 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 (2) SA 1 (A)
[Page 233]
The remuneration: The plaintiff must allege and prove:
(a) that remuneration was, in terms of the contract, payable; and
(b) the amount of the remuneration payable.
As far as (a) is concerned, remuneration is payable if nothing was said about remuneration. It
is implied that, in those circumstance, the remuneration will be a reasonable one. It is, in the
case of a dispute, for the plaintiff to prove that nothing was said concerning remuneration. An
allegation by the defendant that the plaintiff undertook to do the work free of charge does not
place any onus on the defendant.
Dave v Birrell 1936 TPD 192
Inkin v Borehole Drillers 1949 (2) SA 366 (A)
Chamotte (Pty) Ltd v Carl Coetzee (Pty) Ltd 1973 (1) SA 644 (A) at 649
It may be prudent to rely, in the alternative to an agreed rate, 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 be unable to fix the rate and the plaintiff may fail.
Middleton v Carr 1949 (2) SA 374 (A) at 385–386
The claim for a reasonable remuneration based on an implied term should be distinguished
from such a claim based on unjust enrichment where allegations of enrichment and
acceptance of the benefits by the defendant must be made.
Inkin v Borehole Drillers 1949 (2) SA 366 (A)
A contract for performing work for a stipulated remuneration may be varied in such a manner
by the employer, and carried out by the contractor, that it can be said that the original contract
was tacitly replaced by a new one in terms of which the employee is entitled to a reasonable
remuneration. A contractor who, while performing a contract for a fixed remuneration,
receives and accepts instructions to carry out work which does not form part of the agreement
is entitled to a reasonable remuneration on the basis of a separate tacit agreement. The
applicable rate may be the same as that under the main contract.
(A)
Performance: The plaintiff must allege and prove that he or she has done all that he or she
was required to do in terms of the contract on which he or she sues.
Martin Harris & Seuns OVS (Edms) Bpk v Qwa Qwa Regeringsdiens [2000] 2 All SA 72
(A); 2000 (3) SA 339 (SCA)
The contractor is otherwise not entitled to recover the contract sum.
As a general rule, a contractor’s obligation to complete the work is an antecedent for the
defendant’s obligation to pay the contract sum. The plaintiff cannot, therefore, require
payment against performance.
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391
(A)Building contracts normally make provision for interim payments on certificates and the
certificate can form a cause of action if read with the contract.
See : ARCHITECTS
If the employer lawfully cancelled the contract, the contractor can no longer rely on a
certificate for payment.
Simmons NO v Bantoesake Administrasieraad (Vaaldriehoekgebied) 1979 (1) SA 940 (T)
[Page 234]
Late performance: A contractor who delivered the work and material in accordance with the
contract is entitled to recover the contract sum in spite of late delivery of performance. There
is no onus, in such event, on the contractor to prove that the owner has not suffered damages
as a result of the late performance. It is no defence to the claim of the contractor that the
owner might suffer damages as a result of the late performance. The owner will have to
quantify the damages suffered and, by way of counterclaim, set them off against the claim.
(A)
The onus then rests on the owner to prove the extent of the damages suffered. It follows that
the contractor’s claim is, under these circumstances, not one based on unjust enrichment.
Incomplete or defective performance: A contractor can recover payment even if the

performance was incomplete or defective. The plaintiff is, however, not entitled to recover
the contract sum. There are different possibilities.
Incomplete or defective performance without a 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
The reduced contract price is, as a general rule, 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 can still play a role. Consequently, although those
decisions in which it was held that a contractor who knowingly and wilfully, and without the
employer’s consent, departs from the terms of the contract or does not believe that the work
is complete is not entitled to a quantum meruit (for example, Hauman v Nortjé 1914 AD 293)
are still relevant, they can no longer be read to mean 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 which would make it equitable for the court to exercise its discretion in her or
his 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. It will then be deducted from the contract price.
434–435
[Page 235]
(While the principles involved have been stated in a large number of cases, BK Tooling
(Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) dealt with them
authoritatively.)
Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd 1984 (2) SA 24
(SWA)
Incomplete or defective performance with cancellation by the employer: Where the employer

lawfully cancels the contract, the contractor may claim compensation on the grounds of
unjust enrichment.
422–425
The contractor should then make out a case based on enrichment.
The court may nevertheless in the absence of the necessary allegations award compensation,
if the issue was fully canvassed.
MacFarlane v Crooke 1951 (3) SA 256 (C)
The obligation to compensate arises when the employer has, in fact, been enriched – for
example, where 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 will depend on the value of the advantage
derived by the employer from the work performed. It is generally calculated by reference to
the contract price and to the portion of the work that has been 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.
The plea: A defendant cannot merely deny the allegation that there was proper performance
by the contractor. The defendant must particularise the defects and may not at the trial,
without amendment, rely on any defect not so particularised.
Badenhorst v Prinsloo 1967 (1) SA 212 (O) at 215

A defendant wishing to dispute the quantum needed to rectify defects, may do so in the plea
without the need of a counterclaim. A defendant who proposes to claim damages for losses
flowing from defective performance must institute a counterclaim in which event the onus of
proving the damages will rest on the defendant.
(A)
Contractual defences: A defendant, who is prima facie liable for damages as a result of a
breach of the contract and who wishes to rely on a contractual provision creating an
exemption from liability, is, in effect, confessing and avoiding. He or she is saddled with the
onus of establishing the defence by bringing her- or himself within the terms of the provision
concerned.
Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd [1998] 4 All SA 117 (SCA) at 126;
1998 (4) SA 844 (SCA)
[Page 236]
PRECEDENT

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 aforesaid 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 said work is [Ry].
4. On [date], plaintiff duly completed the warehouse and, in so doing, fulfilled all
his 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
his obligations in terms of the agreement, plaintiff states that:
(a) he has materially fulfilled his obligations;
(b) defendant is utilising the warehouse;
(c) non-fulfilment of his obligations was unknown to plaintiff and he was

honestly of the belief that he had duly fulfilled his obligation;
(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].
Locus Standi
Related subject: CITATIONS
General: It must appear ex facie the pleadings that the parties thereto have the necessary
legal standing or locus standi in iudicio.
Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) at 575
Kommissaris van Binnelandse Inkomste v Van der Heever [1999] 3 All SA 115 (A) at par 10;
1999 (3) SA 1051 (SCA)
Minors: A minor may sue or be sued:
(a) in the name of her or his guardian as representing her or him, in which case the fact of
her or his representative capacity must be alleged;
(b) in her or his own name, assisted by her or his guardian;
[Page 237]
(c) in the absence of a guardian, in the name of a duly appointed curator ad litem, in
which event, the representative capacity must be stated;
(d) if he or she has been declared to be a major in terms of the Age of Majority Act 57 of
1972, in her or his own name.
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 her or his separate property;
(c) for the recovery of damages, other than damages for patrimonial loss, resulting from a
delict against her or him;
(d) in respect of a matter relating to her or his profession, trade or business.
Amalgamated Banks of South Africa Bpk v de Goede [1997] 2 All SA 427 (A); 1997 (4) SA
66 (SCA)
Where a debt is recoverable from a joint estate, the spouse who incurred the debt, or both
spouses jointly, may be sued therefor. Where a debt has been incurred for necessaries for the
joint household, the spouses may be sued jointly and severally therefor.
Matrimonial Property Act 88 of 1984 s 17(5)
Loss of Support
Related subjects: DAMAGES
LEX AQUILIA
Elements: A person wishing to claim damages consisting of loss of support due to the death
or injury of another must, in addition to the other ordinary elements of the lex Aquilia, allege
and prove:
(a) that that person had a legal duty to support the plaintiff by virtue of the requisite
degree of consanguinity or of a court order;
Barnes v Union & SWA Insurance Co Ltd 1977 (3) SA 502 (E)
Henery v Santam Versekeringsmaatskappy Bpk [1997] 3 All SA 100 (T)
(b) that the plaintiff is indigent;
Singh v Santam Insurance Co 1974 (4) SA 196 (D)
(c) that the person concerned actually maintained the plaintiff;

(d) that, in future, that person would have had a legal duty to continue with maintenance;
Van Vuuren v Sam 1972 (2) SA 633 (A)
(e) the actual loss suffered.
Santam Insurance Co Ltd v Fourie [1997] 1 All SA 590 (A); 1997 (1) SA 611 (SCA)
These rules do not govern the case of claims by dependants, namely spouses and children.
[Page 238]
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 thereto, contributed to
plaintiff ’s support [detail].
4. Plaintiff was at all material times, and still is, indigent as she is 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 the sum of [amount] per
month.
6. Due to defendant’s wrongful act, plaintiff has lost her right of support from the
deceased and has suffered damages in the sum of [amount] [detail].
• Malicious Proceedings
• Medical and Dental Practitioners • Mental Incapacity
• Misrepresentation
• Mistakes • Mora
• Motor Vehicle Accidents

Malicious Proceedings
STATE LIABILITY

Minister of Law and Order v Thusi 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 the delict, including that of animus iniuriandi.
Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A) at 135–136
Van der Merwe v Strydom 1967 (3) SA 460 (A) at 467
Groenewald v Minister van Justisie 1973 (2) SA 480 (O)
Setting the law in motion: The plaintiff must allege and prove that the defendant instituted
the proceedings – ie, that the defendant actually instigated or instituted them. The mere
placing of information or facts before the police, as a result of which proceedings are
instituted, is insufficient.
Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196–197
On the other hand, where an informer makes a statement to the police which is wilfully false
in a material respect, but on the basis of which no prosecution could have taken place, he or
she “instigates” a prosecution and may be personally liable.
Prinsloo v Newman 1975 (1) SA 481 (A) at 492
Lack of reasonable and probable cause: The plaintiff must allege and prove that the
defendant instituted the proceedings without reasonable and probable cause.
Reasonable and probable cause means an honest belief founded on reasonable grounds that
the institution of proceedings is justified. The concept involves both a subjective and an
objective element.
Prinsloo v Newman 1975 (1) SA 481 (A)
Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A)
Van der Merwe v Strydom 1967 (3) SA 460 (A)
[Page 239]
Malice and animus iniuriandi : In spite of what was said in Moaki v Reckitt & Colman
(Africa) Ltd 1968 (3) SA 98 (A), a plaintiff is well advised to allege and prove not only
animus iniuriandi but also malice.
Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) at 196
Thompson v Minister of Police 1971 (1) SA 371 (E)
Stambolie v Commissioner of Police 1990 (2) SA 369 (ZSC)
Malice is, in this context, probably an element relating to the wrongfulness of the act rather
than one relating to animus iniuriandi.
Termination of proceedings: The plaintiff must allege and prove that the proceedings were
terminated in her or his favour because this cause of action cannot be used to prejudge the
reasonableness of the proceedings that form the subject of the complaint.
Thompson v Minister of Police 1971 (1) SA 371 (E) at 373–375
Els v Minister of Law & Order 1993 (1) SA 12 (C)
Damages: The plaintiff may claim special damages, such as legal costs expended in
defending the prosecution or other proceedings.
Law v Kin 1966 (3) SA 480 (W)
Full particulars must be given of special damages but not of general damages suffered in
respect of contumelia. Courts take a serious view of these matters and may award substantial
damages.
Manase v Min 2003 (1) SA 567 (Ck)
Wrongful legal proceedings: A claim for malicious legal proceedings differs materially from
one based on wrongful legal proceedings. Examples of the latter include attachment or
execution of property or an arrest which is wrongful because such attachment, execution or
arrest took place without a writ or warrant. These cases have two special features: first, the
defendant must allege and prove the lawfulness of the execution or arrest and, second, the
absence of animus iniuriandi is no defence.
Cohen Lazar & Co v Gibbs 1922 TPD 146
Ramsay v Minister van Polisie 1981 (4) SA 802 (A)
Tödt v Ipser 1993 (3) SA 577 (A)
Meevis v Coetzee [1998] 2 All SA 602 (T)
Coetzee (Sheriff, Pretoria East) v Meevis [2001] 1 All SA 10 (A); 2001 (3) SA 454 (SCA)
Morkel v Kruger-Liptrot [2000] 4 All SA 623 (C)
Where a writ or warrant was issued but was invalid, the plaintiff must allege and prove that
such writ or warrant has been set aside.
Boshoff v Van Zyl 1938 CPD 464
Malicious insolvency or liquidation proceedings: A court discharging a provisional order of

sequestration may, if it is satisfied that the petition for sequestration is vexatious or malicious,
allow the debtor forthwith to prove any damages sustained by reason of the provisional order
and may award compensation as it deems fit.
[Page 240]
PRECEDENT
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 given.
3. As a result of defendant’s conduct, plaintiff was arrested and held in custody

for [number] days until he was prosecuted for theft in the magistrate’s court at [place] and
duly acquitted on [date].
4. Plaintiff suffered damages as a result of defendant’s conduct in the sum of

[amount], being the costs reasonably expended by plaintiff in defending himself against the
aforesaid charge, and [amount], being damages for contumelia, deprivation of freedom, and
discomfort suffered by plaintiff.
Medical and Dental Practitioners
Related subjects: ASSAULT
The contract: The legal relationship between a medical practitioner and a patient is created
by contract. The practitioner undertakes to render professional services and the patient
undertakes (normally) to pay for services rendered.
Registration: No person is entitled to practise the profession of a medical practitioner or

other health profession unless he or she is registered in terms of the Health Professions Act
56 of 1974.
Health Professions Act 56 of 1974 s 17(1)
No remuneration is recoverable in respect of any act especially pertaining to the profession of

a registered person when such act is performed by a person who is not authorised under the
Act to perform such act for gain.
Payment: In a claim for payment, the practitioner must allege and prove:
(a) the contract;
(b) performance of the mandate;
(c) the agreed remuneration or the usual charges;
(d) that a detailed account was furnished to the defendant within a reasonable period.
Determination of the reasonableness of fees: If the fee to be charged exceeds that usually
charged for such service, the practitioner must inform the patient in advance of the intended
fee and the usual fee.
A patient who disputes the fee may apply to the Medical Council for a determination of the
fee, which determination shall be final.
[Page 241]
Negligence: It is an implied term of the contract that the medical practitioner who undertakes
the treatment of the patient will exercise the reasonable skill and care of a practitioner in her
or his 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.
Buls v Tsatsarolakis 1976 (2) SA 891 (T)
Van Wyk v Lewis 1924 AD 438
Pringle v Administrator, Transvaal 1990 (2) SA 379 (W)
Streicher v Van Vuuren [2000] 4 All SA 306 (A)
Should the practitioner fail in her or his duty and the patient suffer damages in consequence
thereof, the practitioner is bound to compensate the patient for the damages caused by the
breach of contract.
Mukheiber v Raath [1999] 3 All SA 490 (A); 1999 (3) SA 1065 (SCA)
In order to succeed in a claim for damages, the patient will have to allege and prove:
(a) the contract;
(b) negligent breach thereof;
(c) causation;
(d) damages.
Blyth v Van den Heever 1980 (1) SA 191 (A)
Administrator, Natal v Edouard 1990 (3) SA 581 (A)
The mere fact that a medical treatment was unsuccessful or not as successful as it might have
been, or that the treatment administered did not have the desired effect, does not, on its own,
necessarily justify the inference of lack of diligence, skill or care on the part of the
practitioner.
Castell v De Greef 1993 (3) SA 501 (C) at 509F–J; 1994 (4) SA 408 (C) at 416
Duty to disclose: Whether a practitioner should disclose to a patient the dangers or risks

involved in a medical procedure depends on the circumstances of the case. A mere failure to
warn the patient does not necessarily constitute negligence.
Richter v Estate Hammann 1976 (3) SA 226 (C)
A medical practitioner is obliged to warn a patient consenting to treatment of any material

risk inherent in such treatment. A risk is material if, in the circumstances of the case:
(a) a reasonable person in the patient’s position would, if warned of the risk, be likely to
attach significance to it; or
(b) the practitioner is or should reasonably be aware that the particular patient would, if
warned of the risk, be likely to attach significance to it.
Castell v De Greef 1994 (4) SA 408 (C) at 426F–H
Assault: It was an accepted practice for a patient to rely on assault as a cause of action if a
practitioner treated her or him without her or hisconsent or informed consent. It is no longer
advisable to plead in this way
Broude v McIntosh 1998 (2) SA 555 (SCA) at 562–563; 1998 (3) SA 60 (SCA) at 67–68
In any event, defences to such a claim would include the inability of the patient to consent
due to an emergency situation.
Stofberg v Elliott 1923 CPD 148
Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T)
[Page 242]
Third parties: A medical practitioner may have a duty of care towards a non-patient and a
negligent breach of that duty may lead to an action for damages.
Magware v Minister of Health NO 1981 (4) SA 472 (Z)
Minister van Polisie v Ewels 1975 (3) SA 590 (A)
PRECEDENT
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 [for example, 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. As a result of defendant’s negligence, plaintiff experienced pain and suffering,

a 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].
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 (1) SA 237 (C) at 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, capable of managing the particular affair because her or his mind was such that
he or she could not understand and appreciate the jural act which he or she purported to
execute.
Tregea v Godart 1939 AD 16
Theron v AA Life Assurance Association Ltd 1995 (4) SA 361 (A) at 374–375
Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman NO [1997] 3 All SA 391 (A);
1997 (4) SA 302 (A)
Mental incapacity can be the result of a natural affliction or of intoxication. 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) 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.
[Page 243]
PRECEDENTS
Claim – to set aside a contract on ground of intoxication
1. On [date] at [place], plaintiff signed a written document, Annexure “A”

hereto, 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 said motor 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 affixed his signature, 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 said motor vehicle to

defendant and, had he been aware of the nature and contents of the document aforesaid, he
would not have signed it.
(a) An order declaring the said agreement null and void.
(b) Return of the said 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 of the said agreement, 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 said 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.
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.
[Page 244]
Misrepresentation
See : FRAUD, INNOCENT MISREPRESENTATION, NEGLIGENT

MISREPRESENTATION
Mistakes
Related subjects: CONDICTIO INDEBITI
CONTRACT
FRAUD
INNOCENT MISREPRESENTATION
Mutual mistake: A mutual mistake exists where each party to the alleged contract was
mistaken as to the other party’s intention. An example of a mutual mistake is where the
parties use an ambiguous word in their contract and each party attaches a different meaning
to that word. One party accordingly does not realise that her or his promise is misunderstood
by the other party. The party wishing to rely on a contract concluded under such
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) SA 69 (A)
Common mistake: Where parties reach an agreement which is based on a common

assumption of a present or past fact and that assumption is incorrect, the contract will be void.
Osman v Standard Bank National Credit Corp Ltd 1985 (2) SA 378 (C) at 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 is made dependent on the motive or
unless the requirements for a misrepresentation are present.
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;
(c) the subject-matter of the assumption was vital to the transaction – ie, had either party
been aware of the true position, the transaction would not have been entered into.
Dickinson Motors (Pty) Ltd v Oberholzer 1952 (1) SA 443 (A)
Luzon Investments (Pty) Ltd v Strand Municipality 1990 (1) SA 215 (C) at 228
Krapohl v Oranje Koöperasie Bpk 1990 (3) SA 848 (A) at 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 (3) SA 210 (T)
Du Toit v Atkinson’s Motors Bpk 1985 (2) SA 893 (A)
(3) SA 110 (NC)
[Page 245]
It is for the party alleging a unilateral error to allege and prove the facts necessary to avoid
the contract.
National & Overseas Distributors Corp (Pty) Ltd v Potato Board 1958 (2) SA 473 (A)
George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A)
Lake NNO v Caithness 1997 (1) SA 667 (E) at 672
ABSA Bank Ltd v The Master NNO [1998] 3 All SA 189 (N); 1998 (4) SA 15 (N)
Apart from the error, 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 which misleads the other party.
Du Toit v Atkinson’s Motors Bpk 1985 (2) SA 893 (A)
Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd 1986 (1) SA 303 (A)
59 (SCA)
Kentz (Pty) Ltd v Power [2002] 1 All SA 605 (W)
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 that representation; who was the misled party;
and whether a reasonable person would have been so misled.
Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A)
Prins v ABSA Bank Ltd [1997] 1 All SA 486 (C); 1998 (3) SA 904 (C)
An incidental mistake – ie, a mistake relating to the reasoning or motivation behind the
agreement only – is not iustus.
Diedericks v Minister of Lands 1964 (1) SA 49 (N)
A unilateral error caused by a misrepresentation renders the agreement voidable and not void.
Trollip v Jordaan 1961 (1) SA 238 (A)

PRECEDENTS
Claim – based on common mistake
of which plaintiff purchased from defendant a motor vehicle [registration number] for
[amount].
2. Plaintiff duly paid the purchase price on [date] and took delivery of the vehicle
on [date] at [place].
3. The contract was entered into 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.
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 as a result 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.
[Page 246]
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 into 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 defendant 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 at all times
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
CONTRACT: CANCELLATION OF INTEREST
Mora creditoris : A creditor may be in default if the contract requires the co-operation of the
creditor for performance by the debtor. Default arises automatically where the contract
contains a prescribed time for performance by the debtor and, by implication, for the
creditor’s co-operation. Default may also arise where the debtor calls on the creditor for the
required co-operation and the creditor fails to supply it within a reasonable time.
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)
Mora debitoris : A debtor is said to be in mora if the debtor is in default with performance.
The principles are set out below.
Mora ex re : A party to a contract is in mora ex re if the contract stipulates a time for
performance and the debtor fails to perform within the time limit.
Laws v Rutherford 1924 AD 261
Mora ex persona : The debtor is in mora ex persona if the contract stipulates no time for
performance but the creditor makes a demand on the debtor which:
(a) is clear and unequivocal;
Ponisammy v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A)
Kragga Kamma Estates CC v Flanagan 1995 (2) SA 367 (A)

Cf Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A); 2001
(2) SA 284 (SCA)
[Page 247]
(b) provides a fixed date, which date is reasonable, for performance; and
Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A)
(c) if applicable, contains an offer by the creditor to perform reciprocal obligations

simultaneously.
Hammer v Klein 1951 (2) SA 101 (A)
Linton v Corser 1952 (3) SA 685 (A)
Nel v Cloete 1972 (2) SA 150 (A)
Right to cancel: The fact that a debtor is in mora does not entitle the creditor to cancel the
contract. The creditor must, in addition, have an accrued right to cancel the contract. One of
the following alternatives must be present:
(a) The contract must have a cancellation clause (lex commissoria) entitling one party to
cancel if the other is in mora.
Venter v Venter 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 (1) SA 773 (NC)
Graham NO v Trackstar Trading 363 (Pty) Ltd [2003] 1 All SA 181 (SE) at para 58
(b) The contract must have a tacit cancellation term. This is the case when time is of the
essence of the contract. It must, therefore, be alleged that there is a tacit term which entitles
the creditor to cancel if the debtor fails to perform on time.
Greenfield Manufacturers Temba (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976
(2) SA 565 (A)
(c) A notice of intention to rescind can create a right to rescind. A further notice
rescinding the contract in terms of the first notice is required, unless it is incorporated into the
demand.
Microutsicos v Swart 1949 (3) SA 715 (A)
Nel v Cloete 1972 (2) SA 150 (A)
The notice must also provide for a reasonable time to perform.

Microutsicos v Swart 1949 (3) SA 715 (A)
(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) 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.
Miller & Miller v Dickinson 1971 (3) SA 581 (A)
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (A); 2001 (2)
SA 284 (SCA)
Reasonable time: A creditor wishing to rely on the lapse of a reasonable time must establish
what that period of time was.
Fluxman v Brittain 1941 AD 273
Cf Rustenburg Platinum Mines Ltd v Breedt [1997] 2 All SA 69 (A); 1997 (2) SA 337 (A) at
352–353
[Page 248]
PRECEDENTS
Claim – for cancellation where no lex commissoria in contract

which defendant sold to plaintiff a [describe] motor vehicle [registration number] for the
purchase price of [amount].
2. It was a material term of the agreement that delivery was to be effected on

[date].
3. Defendant failed to deliver the vehicle on due date and has not delivered it
since, in spite of the fact that plaintiff 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 annexed hereto as Annexure
“A”.
6. The time given to defendant to perform was a reasonable period.
7. Defendant failed to comply with the demand.

8. Plaintiff duly cancelled the agreement on [date] per letter, annexed hereto as
Annexure “B”.
Claim – for cancellation where lex commissoria in contract
1. On [date], the parties entered into a written agreement of sale in terms of

which plaintiff sold to defendant a dwelling house situate at [address]. A copy of the
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, despite the fact that [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.
Motor Vehicle Accidents
Related subjects: DAMAGES: DELICTUAL
LEX AQUILIA
WORKMEN’S COMPENSATION
Statutes: Claims for the payment of compensation for damages as a result of bodily injuries
or death caused by motor vehicle accidents are regulated by statute. Claims which arose prior
to 1 May 1986 fell to be considered in terms of the provisions of the Compulsory Motor
Vehicle Insurance Act 56 of 1972 and its regulations. The provisions of the Motor Vehicle
Accidents Act 84 of 1986 and its regulations applied from 1 May 1986 until they were
suspended by the agreement contained in the schedule to the Multilateral Motor Vehicle
Accidents Fund Act 93 of 1989 which came into operation on 1 May 1989. Since 1 May
1997, such claims have been regulated by the Road Accidents [Page 249] Fund Act 56 of
1996, which repealed both the 1986 and the 1989 Acts. In spite of the repeal, the provisions
of each Act apply in respect of incidents that took place during their lifetime.
Road Accidents Fund Act 56 of 1996 s 28
Multilateral Motor Vehicle Accidents Fund v Marambana [1996] 3 All SA 8 (A); 1996 (4)
SA 48 (A)
Cromhout v Multilateral Motor Vehicle Accidents Fund; Santam Ltd v Williams [1997] 4 All
SA 491 (A); 1998 (1) SA 563 (SCA)
In this note, the emphasis is on the provisions of Act 56 of 1996. For practical purposes, the
differences between these statutes are not always of any moment.
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 as a result of any bodily injury to her- 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 Accidents Fund Act 56 of 1996 s 17(1)
If a child is injured, the parent may sue, in her or his own name, for the medical expenses
incurred and also on behalf of the child in respect of its bodily injuries. The child may also
sue for both heads of damages, in its own name and duly assisted by its guardian.
Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A)
A plaintiff may rely on more than one cause of action flowing from the same event – for
example, a claim for personal injuries and one for a loss of support as result of the death of a
breadwinner in the same accident.
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)
If the plaintiff is a black widow, married by custom to the deceased, the availability of a
certificate issued in terms of section 31 of the Black Laws Amendment Act 76 of 1963 is a
condition precedent to the claim and must be pleaded.
Finlay v Kutoane 1993 (4) SA 675 (W)
Cf Road Accident Fund v Mongalo; Nkabinde v Road Accident Fund [2003] 1 All SA 72
(SCA)
Defendant: The action must be instituted against the Road Accidents 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)
Only if the Fund or its agent is unable to pay the plaintiff may the driver or owner of the
vehicle concerned be held liable to the plaintiff.
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.

Limitation of damages: Damages recoverable are limited by section 18. In essence, it limits
the amount of damages claimable by a person who was being conveyed for reward in the
motor vehicle, or who was being conveyed in the course of the business of the owner of that
motor vehicle or, in the case of an employee of the driver or owner of that motor vehicle, in
the course of employment, or for the purposes of a lift club where that motor vehicle is a
motor car.
[Page 250]
Exclusion of liability: Section 19 excludes liability in certain cases, namely:
(a) where the driver or owner of the vehicle did not cause the damage wrongfully and
negligently;
(b) where the loss or damage suffered was incurred whilst the person was being conveyed
for reward on a motorcycle;
(c) where the person who suffered the injuries was being conveyed in the motor vehicle
and is a member of the household or is responsible in law for the maintenance of the driver of
the motor vehicle concerned and was being conveyed in or on the motor vehicle.
The onus in respect of (a) rests on the plaintiff, and the defendant has to show that the
plaintiff falls within exceptions (b) or (c).
Bray v Protea Assurance Co Ltd 1990 (1) SA 776 (T) at 780
Dodd v Multilateral Motor Vehicle Accidents Fund [1997] 1 All SA 68 (A); 1997 (2) SA 763
(A)
Liability: 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, LEX AQUILIA, NEGLIGENCE
It is further necessary to allege and prove that the loss suffered was caused by or arose out of
the driving of the vehicle.
Protea Assurance Co Ltd v Matinise 1978 (1) SA 963 (A)
Mokoele v National Employers’ General Insurance Co Ltd 1984 (1) SA 27 (T)
Miller v Road Accident Fund [1999] 4 All SA 560 (W)
Presumptions: Section 20 creates certain presumptions regarding the driving of a motor

vehicle. 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 as a result of gravity or while it is stationary at that place or at a place to
which it moved from the first-mentioned 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 Accidents Fund Act 56 of 1996 s 1 sv “motor vehicle”
Chauke v Santam Ltd 1997 (1) SA 178 (A)
Norris v Road Accident Fund [2001] 4 All SA 321 (A)
Mutual & Federal Insurance Co Ltd v Day [2001] 4 All SA 6 (SCA); 2001 (3) SA 775 (SCA)
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.
The prior demand: The particulars of claim must also contain an averment that the claim for
compensation, as required, 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)
[Page 251]
The form must comply in substance with the requirements of the Act and regulations.
Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A)
SA Eagle Insurance Co Ltd v Pretorius [1998] 1 All SA 131 (A); 1998 (2) SA 656 (SCA)
SA Eagle Insurance Co Ltd v Van der Merwe NO [1998] 2 All SA 527 (A); 1998 (2) SA
1091 (SCA)
Non-compliance must be specifically pleaded by the defendant.
Nkisimane v Santam Insurance Co Ltd 1978 (2) SA 430 (A) at 439
If the Fund or the agent does not, within sixty 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.

Cf Malokoane v Multilateral Motor Vehicle Accidents Fund [1998] 4 All SA 486 (A); 1999
(1) SA 544 (A)
Plea: The following pleas are fairly standard:
(a) a plea of prescription;
Moloi v Road Accident Fund [2000] 4 All SA 576 (SCA); 2001 (3) SA 546 (SCA)
(b) denial of negligence;
(c) contributory negligence;
(d) the joinder or conditional joinder of another.
Hanekom v Multilateral Motor Vehicle Accidents Fund (De Lange, Third Party) [1997] 4 All
SA 691 (T); 1998 (1) SA 634 (T)
PRECEDENTS
Claim – against Road Accidents Fund for damages that arose before the Act 56 of 1996
1. The plaintiff is [describe].
2. The defendant is the Road Accidents Fund, a legal person incorporated in

terms of the Road Accidents Fund Act 56 of 1996, with its principal place of business at
[describe].
3. In terms of section 2(2) of Act 56 of 1996, the defendant took over all the
rights and obligations of the Multilateral Motor Vehicle Accidents Fund which ceased to
exist as from 1 May 1997.
4. The claim herein set out was, prior to 1 May 1997, the responsibility of the
Multilateral Motor Vehicle Accidents Fund pursuant to the provisions of the regulations
promulgated in terms of the Multilateral Motor Vehicle Accidents Fund Act 93 of 1989
5. 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).
6. As a result, the plaintiff, who was a pedestrian, was injured when the two
vehicles collided with her.
7. The collision was caused by the sole negligence of the first insured driver,
who was negligent in one or more of the following respects:
(a) he made a right-hand turn in the face of oncoming traffic at a stage when it
was dangerous or inopportune to do so;
(b) he failed to keep a proper lookout;
[Page 252]
(c) he drove too fast under the prevailing traffic conditions;
(d) he failed to apply the brakes of the vehicle timeously or at all.
8. In the alternative to paragraph 7, 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].
9. In the further alternative to paragraphs 7 and 8, the collision was caused by the
negligence of both said drivers.
10. As a result, the plaintiff sustained the following bodily injuries: [detail].
11. Particulars of the nature and extent of these injuries are set out in the medico-
legal report of Dr QR, which report is annexed hereto.
12. As a result of these injuries sustained by the plaintiff, she:
(a) Was hospitalised. [detail].
(b) Had to undergo medical treatment. [detail].
(c) Will have to undergo further medical treatment. [detail].
(d) Suffered a loss of income. [detail].
(e) Will suffer a loss of income in future. [detail].
(f) Suffered a loss of amenities of life. [detail].
(g) Will suffer a further loss of amenities of life. [detail].
(h) Experienced pain and suffering.
(i) Will experience further pain and suffering [detail].
(j) Is disfigured. [detail]
(The particulars appear from the annexed report of Dr QR.)
13. As a further result, the plaintiff suffered damages in the amount of [Rx],
calculated as follows:
(a) Non-provincial-hospital expenses.

(b) Future non-provincial-hospital expenses.
(c) Medical expenses.
(d) Future medical expenses.
(e) Loss of earnings.
(f) Future loss of earnings.
(g) General damages for pain, suffering, loss of amenities of life and
disfigurement.
14. The plaintiff has complied with the provisions of Act 56 of 1996 relating to
time notices and time periods and the prescribed period has elapsed.
(a) Payment of [Rx].
(b) Interest thereon at the prescribed rate from 14 days after the date of judgment.
(c) Costs.
Claim – against Road Accidents Fund
2. The defendant is the Road Accidents Fund, a legal person incorporated in

terms of the Road Accidents Fund Act, 56 of 1996, with its principal place of business at
[describe].

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.
who was negligent in one or more of the following respects: [detail].

respects: [detail].
[Page 253]
10. As a result of these injuries sustained by the plaintiff, she: [as before].
calculated as follows: [as before].
12. In the event of its being found that the collision was due to the sole negligence
of the second insured driver, the plaintiff’s claim is limited to R25 000,00 and excludes any
claim for general damages in terms of section 18(1) of Act 56 of 1996.
(a) Payment of [Rx], alternatively, R25 000,00.
(b) Interest thereon at the prescribed rate from 14 days after the date of judgment.
(c) Costs.
Claim – against Road Accidents Fund and third party
2. The first defendant is the Road Accidents Fund, a legal person incorporated in
terms of the Road Accidents Fund Act 56 of 1996, with its principal place of business at
[describe].
3. The second defendant is CD [detail].

motor vehicle with registration number [detail], driven by the second defendant.
5. As a result, the plaintiff, who was a passenger of the second defendant, was
injured when the two vehicles collided.
who was negligent in one or more of the following respects: [detail].

respects: [detail].
11. As a result of these injuries sustained by the plaintiff, she: [as before].
calculated as follows: [as before].
13. In the event of its being found that the collision was due to the sole negligence
of the second defendant, the plaintiff’s claim against the first defendant is limited to
R25 000,00 and excludes any claim for general damages in terms of section 18(1) of Act 56
of 1996 and the second defendant is liable for any shortfall.
(a) Against first defendant, payment of [Rx]; alternatively, payment of R25 000,00.
(b) Against second defendant, in the event of judgment against first defendant of
R25 000,00, payment of [Rx–R25 000,00].
(c) Interest thereon at the prescribed rate from 14 days after the date of judgment.
(d) Costs.
[Page 254]
Claim – against agent of Road Accidents Fund
2. The defendant is [describe], a duly appointed agent of the Road Accidents

Fund, appointed in terms of section 8 of the Road Accidents Fund Act 56 of 1996, with its
principal place of business at [describe].
[As before.]
Claim – general
1. Plaintiff is [name], an adult male machine operator who resides at [address]

and who was born on [date].
2. Defendant is [name] Insurance Company Limited, a company duly

incorporated with limited liability according to the company laws of the Republic of South
Africa which has its principal place of business within the area of jurisdiction of this
honourable court at [address].
3. At all times material hereto and more particularly on [date], defendant was an
appointed agent within the meaning of the Road Accidents Act 56 of 1996.
4. On [date] at [place], vehicle X, which was being driven by [name], collided

with plaintiff who was a pedestrian.
5. The aforesaid collision was caused exclusively by the negligence of the driver
of the vehicle who was negligent in one or more of the following respects: [detail].
6. As a result of the collision, plaintiff sustained the following bodily injuries:

[detail].
7. As a result of the injuries sustained in the collision, plaintiff has suffered

damages in the amount of [amount] which is calculated as follows:
(a) hospital expenses – [amount]
(b) estimated future medical expenses – [amount]
(c) loss of earnings – [amount]
(d) general damages inclusive of loss of earning capacity, pain and suffering, loss
of amenities of life and permanent disability – [amount]
8. The nature and extent of the injuries described in paragraph 6 above are set out
in a medico-legal report dated [date] drawn by an orthopaedic surgeon [name]. The report is
annexed hereto and marked “A”.
9. As a result of the injuries sustained in the collision, plaintiff:
(a) experienced pain and suffering;
(b) suffered a loss of amenities of life;
(c) suffered a 15% loss of earning capacity;
(d) has been disfigured and disabled.
10. The nature, effect and duration of the pain and suffering, loss of amenities of
life, loss of earning capacity, disfigurement and disability are set out in Annexure “A” hereto.
11. (a) The sum of [amount] in respect of hospital expenses has been
calculated in the manner set out in Annexure “B” hereto.
(b) Estimated future medical expenses are calculated as follows:
Surgery [for example, to the cervical spine] – [amount]

Provision for conservative therapy over [for example, 15 years, at [Rx] per
annum] – [amount]
[total]
(c) The sum of [amount] in respect of loss of earnings has been calculated over a
period of [state period] from [date] to [date] at a weekly wage of [amount].
(d) The amount claimed in respect of general damages, which is inclusive of loss
of earnings capacity, pain and suffering, loss of amenities of life, disfigurement and
permanent disability, is a global figure. It is not reasonably practicable to apportion to each of
these subheadings of damages a specified portion of the amount claimed.
[Page 255]
12. Due notice, as prescribed, has been given to defendant and the prescribed
period has since elapsed.
13. In the premises, defendant is liable to compensate plaintiff in the aforesaid

sum [amount] which amount or any portion thereof defendant has failed to pay.
WHEREFORE plaintiff prays for judgment as follows:
(a) Payment of the amount [Rx].
(b) Interest on the amount claimed at the rate of [percentage] per annum, calculated 14
days from date of judgment to date of payment.
Claim – limited by section 18(1)(a) of Act 56 of 1996
At the time of the accident aforesaid:
1. The plaintiff was a passenger in the aforementioned vehicle and was being
conveyed on the said vehicle in the course of the business of the owner of the said motor
vehicle, namely [name of owner].
2. Alternatively to paragraph 1, plaintiff was being conveyed in the course of his

employment as servant of the owner of the said vehicle, namely [name of owner].
Plea – of contributory negligence
1. Defendant denies each and every allegation therein contained as if herein so

set out and, in particular, 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, which is still denied, then and in that event defendant denies that his negligence
was the cause of the collision. The collision 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 by the above honourable court that the driver was
negligent and that his negligence was a cause of the collision, all of which is still denied, then
and in that event defendant avers that plaintiff was also negligent and that his negligence
contributed to the collision. Particulars of plaintiff’s negligence are set out in the preceding
subparagraph.
Plea – of contributory negligence – seatbelt
1. First defendant denies each and every allegation therein contained as if herein
so set out and denied.
2. First defendant avers that the aforesaid collision occurred as a result 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 to paragraphs 1 and 2 above and in the event of its being held
by the above honourable court that the driver of the said motor vehicle was negligent, which
is still denied, then and in that event 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 in motor vehicle [registration number] and that she reasonably
ought to have made use of the seatbelt;
(b) the aforesaid negligent omission by plaintiff was a cause of or contributed to

the extent of the injuries which she sustained in the aforementioned collision.
Counterclaim – conditional counterclaim against second plaintiff
1. The parties in reconvention are referred to as in convention.
2. This counterclaim is against second plaintiff and is conditional upon

defendant’s defence to first plaintiff ’s action failing.
[Page 256]
3. At approximately [time] on [date] and on the main road [location], motor

vehicle [registration number] driven by second plaintiff overturned whilst the mechanical
horse and trailer [registration numbers] were in the process of overtaking the said motor
vehicle.
4. In the event of its being held by the above honourable court that:
(a) the driver of the insured vehicles was negligent,
(b) his negligence contributed to the collision,

(c) second plaintiff sustained bodily injuries in the collision,
(d) first plaintiff suffered damages as a result of the said injuries,
(e) defendant is liable for the said damages,
defendant avers that:
(i) the said collision was occasioned partly by the negligence of second plaintiff,
who was negligent as is set out in defendants’ plea;
(ii) second plaintiff is a joint wrongdoer in terms of the provisions of Act 34 of

1956;
(iii) second plaintiff is obliged to make a contribution to defendant in respect of

any amount which defendant may pay to first plaintiff in respect of the said damages;
(iv) second plaintiff disputes his liability for a contribution.
(a) An order declaring that second plaintiff is obliged to contribute to any amount which
defendant is obliged to pay first plaintiff.
(b) An order determining the amount of the contribution.
Special plea – prescription
1. Plaintiff ’s claim arose as a result of a motor vehicle collision, which occurred

on [date].
2. Plaintiff ’s summons was served on defendant herein on [date].
3. Plaintiff ’s claim, in so far as it relates to paragraph [paragraph number] of the

particulars of claim, prescribed prior to the issue of summons in terms of the provisions of
[set out statutory provision.]
WHEREFORE defendant prays that that portion of plaintiff ’s claim which prescribed as set
out, above, be dismissed with costs.
• Negligence
• Negligent Misrepresentation • Negotiorum Gestio (Unauthorised

Administration)
• Novation • Nuisance
Negligence
LEX AQUILIA
General: Negligence is usually a requirement for delictual liability and that is the focus of
this head.
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 sufficient to allege negligence alone. The particular grounds of negligence must be
detailed.
Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C)
SA Fish Oil Producers’ Association (Pty) Ltd v Shipwrights & Engineers Holdings Ltd 1958
(1) SA 687 (C)
If a plaintiff relies on a breach of duty of care, her or she must set out the facts that could or
should have been foreseen by the defendant.
Whitney Erf Thirteen (Pty) Ltd v Loth Lorien Waste Paper Dealers 1978 (3) SA 832 (W)
Minister of Defence v Mkhatswa [1997] 3 All SA 376 (W)
Beurain h/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921 (O)
[Page 257]
Nature of onus: The onus is on the plaintiff to establish that a reasonable person (diligens
paterfamilias) in the position of the defendant:
(i) would foresee the reasonable possibility of the conduct’s (whether an act or
omission) injuring another’s person or property, and causing that person patrimonial loss;
(ii) would take reasonable steps to guard against such occurrence, and
(iii) that the defendant failed to take such reasonable steps.
Kruger v Coetzee 1966 (2) SA 428 (A)
128 (A); 2000 (1) SA 827 (SCA)
Kruger v Carlton Paper of SA (Pty) Ltd [2002] 2 All SA 351 (A); 2002 (2) SA 335 (SCA)
SA 431 (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 (SCA); 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 so-called doctrine of res ipsa loquitur applies where 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 an explanation. There is
no onus on the defendant to establish the correctness of the explanation. This does not mean
that the defendant can rely on mere theories or hypothetical suggestions.
Arthur v Bezuidenhout & Mieny 1962 (2) SA 566 (A)
Madyosi v SA Eagle Insurance Co Ltd 1989 (3) SA 178 (C) at 188; 1990 (3) SA 442 (A)
Macleod v Rens [1997] 1 All SA 143 (E); 1997 (3) SA 1039 (E)
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: If the plaintiff establishes that the defendant was negligent, the
defendant bears the onus of alleging and proving negligence on the part of the plaintiff before
an apportionment of damages can take place.
Presumptions of negligence: If there is a statutory presumption of negligence against the

defendant such that the plaintiff need not prove negligence, it is, as a general rule, not
necessary for the plaintiff to allege negligence, provided that facts are alleged that show the
applicability of the presumption.
South African Railways & Harbours v Du Preez 1953 (1) SA 81 (C)
Regard should, however, be had to the discussion under VELD FIRES where, under similar
circumstances, another approach is adopted.
Imperitia culpae adnumeratur : If a skilled person’s diligence is to be determined, the

measure against which it is to be tested is the general level of skill [Page 258] and diligence
possessed and exercised at the time by members of the 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)
Thoroughbred Breeders’ Association of South Africa v Price Waterhouse [2001] 4 All SA

161 (A); 2001 (4) SA 551 (SCA)
Meaning of gross negligence: See MV Stella Tignas: Transnet Ltd t/a Portnet v Owners of
the MV Stella Tignas 2003 (2) SA 473 (SCA).
PRECEDENTS
See : LEX AQUILIA, MOTOR VEHICLE ACCIDENTS
Claim – pure economic loss
[From Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd [1996] 1 All SA 383 (T) at
385a–386h; 1996 (2) SA 393 (T) at 396C–398C.]
1. For a number of 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 at all times 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. At all material times during the existence of the aforesaid 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 is 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;
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;
[Page 259]
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 said 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 as a result 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 either not
have sold the steel to the purchaser, or would have sold it to the purchaser on credit terms that
would have prevented the said loss.
Negligent Misrepresentation
INNOCENT MISREPRESENTATION
Extra-contractual misstatement: A negligent misstatement made in an extra-contractual

context or in a pre-contractual setting may give rise to a claim for damages under the actio
legis Aquiliae (see : LEX AQUILIA). The test for wrongfulness in both instances is the same.
The plaintiff must allege and prove:
(a) a representation or statement that
(i) was false;
Kern Trust (Edms) Bpk v Hurter 1981 (3) SA 607 (C) at 618
(ii) was wrongful – that is, that the defendant had a legal duty towards the plaintiff
not to make a misrepresentation or misstatement;
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)
McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C) at 726
[Page 260]
(iii) was made negligently – for example, that the defendant failed to take
reasonable care in establishing the correctness of the representation; and
(iv) caused the plaintiff patrimonial loss (provided that the damages are not too
remote);
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A)
(b) the extent of damages suffered.
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A)
Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A)
Cf Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (SCA)
Negligent misrepresentation giving rise to a contract: A party wishing to avoid a contract or

to claim damages because of negligent misrepresentation that gave rise to a contract must
allege and prove:
(a) that there was a representation
Schmidt v Dwyer 1959 (3) SA 896 (C)
Kern Trust (Edms) Bpk v Hurter 1981 (3) SA 607 (C)
(b) that such representation was false,
(c) that the representation was made by the defendant (or the defendant’s agent);
Karabus Motors (1959) Ltd v Van Eck 1962 (1) SA 451 (C)
(d) that the representation was material – that is, would have influenced a reasonable
person to enter into the contract;
Faulkner v Freeman 1985 (3) SA 555 (C)
(e) that the representation was intended to induce the person to whom it was made to
enter into the transaction;
Novick v Comair Holdings Ltd 1979 (2) SA 116 (W) at 150
(f) that the representation did, in fact, induce the contract;
Novick v Comair Holdings Ltd 1979 (2) SA 116 (W)

Cockroft v Baxter 1955 (4) SA 93 (C)
Hulett v Hulett 1992 (4) SA 291 (A) at 210–211
(g) if damages are claimed, the quantum thereof.
Circumstances determine the vital questions of unlawfulness and causation.
Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A) at 570
Silence as misrepresentation: The question is one of wrongfulness, similar to that of

omissions in the general context of delict. The duty to speak depends on community
convictions. It is not the norm that one contracting party has to inform the other about
everything known by the former. Parties are expected to speak when the information falls
within their exclusive knowledge and the information is such that the duty to communicate
would have been mutually recognised by honest persons.
McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C)
Relief: The relief claimable is:
(i) in the case of a sale, the relief available under the aedilitian remedies;
[Page 261]
(ii) cancellation of the contract and restitution;
Probert v Baker 1983 (3) SA 229 (D)
(iii) damages without the cancellation of the contract; or
(iv) cancellation and damages.
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 an
amount of [amount].
3. Defendant was, at all material times, the banker of [A] and provided the report
at the request and behest 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 the truth thereof, supplied goods to [A] on credit to an

amount of [Rx].
7. The representation was false in that [A] was then not in a sound financial
position and could not safely be trusted with goods on credit to the sum of [amount] but was
in insolvent circumstances and unable to pay plaintiff any amount
8. Defendant was negligent in making the representation because it did not make
proper inquiries as to the financial position of its client.
9. As a consequence of defendant’s representation, plaintiff has suffered

damages in an amount of [Rx] calculated as follows:
[detail].
Negotiorum Gestio (Unauthorised Administration)
[This text was originally written by Mr Justice DH Van Zyl.]
Definition: Negotiorum gestio (“management of affairs”) is the voluntary management by

one person (the gestor) of the affairs of another (the dominus) without the consent or
knowledge of the latter. Negotiorum gestio does not create a consensual obligation but
nevertheless gives rise to reciprocal rights and duties.
Virtually any act or activity that amounts to the conduct, administration or management of
another’s affairs may constitute negotiorum gestio. Examples are:
Amod Salie v Ragoon 1903 TS 100 (repairing of a leased building; preservation of goods or
protection of property)
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) (payment of a
debt)
[Page 262]
Essentials: The requisites for a claim arising from negotiorum gestio are the following:
(a) Management of the affairs of another. The affairs managed by the gestor must be
those of another.
Turkstra v Massyn 1959 (1) SA 40 (T) at 47
(b) Dominus unaware of management of affairs. The dominus must be ignorant of the
fact that her or his affairs are being managed.
Williams’ Estate v Molenschoot & Schep (Pty) Ltd 1939 CPD 360 at 369
Turkstra v Massyn 1959 (1) SA 40 (T) at 47
North West Arts Council v Sekhabi [1996] 3 All SA 361 (B)
A dominus, who is aware of the management of her or his affairs and does nothing
about it, is regarded as having tacitly authorised it.
(c) Animus negotia aliena gerendi. The intention to manage the affairs of another is
perhaps the most significant requisite for a claim based on negotiorum gestio. This includes
the intention to claim reimbursement for expenses necessarily or usefully incurred by the
gestor.
Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T) at 437
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) at 383
Maritime Motors (Pty) Ltd v Von Steiger 2001 (2) SA 584 (SE)
(d) Utiliter coeptum. The management of affairs should be conducted in a reasonable way
(utiliter coeptum), at least at the commencement of the gestio. The result of this is that a
claim will arise even if the gestio is ultimately unsuccessful. A gestor who employed an
unreasonable method does not have a claim for disbursements.
The actions: The actions arising from negotiorum gestio are the actio negotiorum gestorum
contraria and the actio negotiorum gestorum directa. The former is the action of the gestor for
the recovery of the necessary or useful expenses or disbursements made, or the damages
suffered by her or him, during the course of the gestio. The latter is available to the dominus
for purposes of exacting compliance by the gestor with her or his duties in respect of the
gestio. In cases where the requirements for a proper claim based on negotiorum gestio are not
present but a claim arising from unjustified enrichment may be instituted by the gestor, the
action is sometimes referred to as the actio negotiorum gestorum utilis or the “extended”
actio negotiorum gestorum.
ABSA Bank Ltd t/a Bankfin v Stander t/a CAW Paneelkloppers 1998 (1) SA 939 (C)
Relief claimable by the gestor : The rights of the gestor include:
(a) the right to be reimbursed for necessary and useful expenses;
Klug & Klug v Penkin 1932 CPD 401 at 404
New Club Garage v Milborrow & Son 1931 GWL 86 at 99–100

(b) the right to claim damages for lost interest or income;
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) at 387
(c) the right to be released from obligations incurred during the course of the gestio;
New Club Garage v Milborrow & Son 1931 GWL 86 at 100
(d) the right to exercise a lien in respect of the property of the dominus in her or his
possession pending satisfaction of the claim.
New Club Garage v Milborrow & Son 1931 GWL 86
[Page 263]
Relief claimable by the dominus : The duties of the gestor, which may be enforced by the
dominus, are:
(a) to complete the negotiorum gestio;
Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd 1968 (1) SA 571 (A) at 580
(b) to render an account of the management;
McEwen NO v Khader 1969 (4) SA 559 (N) at 562
(c) to deliver that which he or she has received from or which has otherwise accrued as a
result of the gestio;
Grant’s Farming Co Ltd v Attwell 9 HCG 91
(d) to make proper, diligent and reasonable performance of the gestio, failing which he or
she may incur liability for loss and damage resulting from her or his fault, including liability
for omissions. The standard of liability attaching to the gestor is the “ordinary diligence”
required of “a reasonably prudent person under the circumstances”.
Boyce NO v Bloem 1960 (3) SA 855 (T) at 866
Negotiorum gestio and unjustified enrichment: If the requirements of animus negotia aliena
gerendi or utiliter coeptum are not present, the gestor may still have a claim in the form of the
“extended” actio negotiorum gestorum (or actio negotiorum gestorum utilis) by virtue of the
unjustified enrichment of the dominus.
There are four main instances in which the gestor’s claim is limited to the extent of the
unjustified enrichment of the dominus. They are:
(a) where the gestor has managed the affairs of a minor;
Van Rensburg v Straughan 1914 AD 317 at 329–330

(b) where the gestor has knowingly managed another’s affairs with the intention of
benefiting himself alone (sui lucri causa);
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C)
(c) where the gestor manages the affairs of another in the mistaken but bona fide belief
that they are his own;
(d) where the affairs are managed contrary to the express wishes of the dominus.
B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) at 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] the sum of [amount] on

defendant’s account.
[Page 264]
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 inasmuch as his debt to
[name] became discharged.
4. Plaintiff intended at all times to be recompensed in respect of the payment

made.
Claim – where 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] by virtue of the fact that
defendant, who had sold the aforesaid business to plaintiff, and while trading as [name],
failed to pay his indebtedness to [name] in the sum of [amount].
3. In order to ensure the continuation of supply and to minimise his loss, plaintiff
paid to [name] the sum of [amount].
4. In so doing, plaintiff advanced the affairs of defendant inasmuch as his

indebtedness to [name] was discharged.
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 said 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 by him during his management of plaintiff’s
affairs.
Novation
Related subject: COMPROMISE
Novation and compromise: A contract of novation is a contract that extinguishes an existing

obligation and, at the same time, replaces it with a fresh obligation.
Acacia Mines Ltd v Boshoff 1958 (4) SA 330 (A)
Tauber v Von Abo 1984 (4) SA 482 (E)
Weltmans Custom Office Furniture (Proprietary) Limited (in liquidation) v Whistlers CC

[1997] 3 All SA 467 (C)
It presupposes the existence of a valid contract between the parties. A void debt or invalid
contract can, therefore, not be novated.
Gibson v Van der Walt 1952 (1) SA 262 (A)
Acacia Mines Ltd v Boshoff 1958 (4) SA 330 (A)
The validity of a compromise, on the other hand, is not dependent upon the validity of the
compromised obligation.
Onus: The party alleging the novation must allege and prove it. An intention to novate is not
presumed.
[Page 265]
The intention to novate 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).
Electric Process Engraving & Stereo Co v Irwin 1940 AD 220
French v Sterling Finance Corp (Pty) Ltd 1961 (4) SA 732 (A)
Lieberman v Santam Ltd 2000 (4) SA 321 (SCA)
An agreement which merely confirms the original obligation does not amount to a novation,
neither does the provision of a cheque or the acknowledgement of a debt.
Estate Liebenberg v Standard Bank of SA Ltd 1927 AD 502
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 normally more in the nature of a pactum de non
petendo and it is unlikely that such extension will amount to a novation.
Estate Liebenberg v Standard Bank of SA Ltd 1927 AD 502
Optima Fertilizers (Pty) Ltd v Turner 1968 (4) SA 29 (D)
PRECEDENT
Plea – of extinction of obligation

which plaintiff granted to defendant an option to purchase his property at [location] for a sum
of [amount]. A copy of the agreement is attached hereto and marked “A”.
2. On [date] at [place], the parties novated the aforesaid agreement by agreeing

in writing that plaintiff would be granted the right of pre-emption to purchase the said
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 hereto and marked “B”.
3. Defendant denies, therefore, that plaintiff was entitled to exercise the option
by accepting the offer contained in Annexure “A”.
Nuisance
Cause of action: A person who is in occupation of a piece 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.
Bloemfontein Town Council v Richter 1938 AD 195

Van der Merwe v Carnarvon Municipality 1948 (3) SA 613 (C)
Moskeeplein (Edms) Bpk v Die Vereniging van Advokate (TPA) 1983 (3) SA 896 (T)
East London Western Districts Farmers’ Association v Minister of Education & Development
Aid 1989 (2) SA 63 (A)
As to the test for determining whether a disturbance constitutes an actionable nuisance, see:
De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D)
Gien v Gien 1979 (2) SA 1113 (T)
Die Vereniging van Advokate (TPA) v Moskeeplein (Edms) Bpk 1982 (3) SA 159 (T)
[Page 266]
The test is an objective one. The standard applied is not that of a perverse, particular or
overscrupulous person but that of the normal person of sound and liberal tastes and habits.
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 (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)
Plaintiff: The plaintiff will be the owner or occupier of land whose rights of enjoyment are
infringed. No relief will be afforded a plaintiff whose occupation of the property affected by
the nuisance is unlawful.
Amod v Andrews Bakery (Pty) Ltd 1965 (2) SA 433 (T)
A municipality may sue in respect of a nuisance affecting its inhabitants generally.
Municipality of Stellenbosch v Levinsohn 1911 CPD 303
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 on her or his land may be
interdicted from allowing the property to be so used.
Porter v Cape Town City Council 1961 (4) SA 278 (C)
Flax v Murphy 1991 (4) SA 58 (W)
“Allow”, in this context, implies knowledge of and consent to the act of the third party.
Porter v Cape Town City Council 1961 (4) SA 278 (C)
Moller v SA Railways & Harbours 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) SA 102 (A)
Negligence: Where the plaintiff claims abatement of the nuisance by a final interdict, it is

necessary to allege and prove a clear right which is infringed or is in real danger of being
infringed.
Gien v Gien 1979 (2) SA 1113 (T)
Amod v Andrews Bakery (Pty) Ltd 1965 (2) SA 433 (T)
Proof of negligence is not necessary.
Relief: Damages will not be awarded for inconvenience, discomfort or annoyance.
Wynberg Municipality v Dreyer 1920 AD 439 at 452
Actual damages must be proved.
Turkstra Ltd v Richards 1926 TPD 276
An interdict remains an appropriate remedy.
Cf Chapmans Peak Hotel (Pty) Ltd v Jab and Annalene Restaurants CC t/a O’Hagans [2001]
4 All SA 415 (C)
[Page 267]
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) SA 510 (A)

It is not clear whether the onus rests on 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) SA 102 (A) at 107–109
Gien v Gien 1979 (2) SA 1113 (T) at 1121
(b) No reasonably practicable steps could have been taken to prevent the disturbance. The
onus rests on the defendant.
(c) The act was authorised by statute and could not be done without causing the
disturbance or prejudice complained of.
Union Government v Sykes 1913 AD 156
Reddy v Durban Corp 1939 AD 293
Johannesburg City Council v Vucinovich 1940 AD 365
The defendant bears the onus to plead and establish that the interference was
impossible to avoid and that such interference was the inevitable result of the exercise of the
defendant’s statutory powers.
Moller v SA Railways & Harbours 1969 (3) SA 374 (N)
See : STATUTORY AUTHORITY
(d) The defendant has, through prescription, obtained the right to perform the act.
Salisbury Municipality v Jooala 1911 AD 178
See : PRESCRIPTION
(e) The plaintiff delayed so long in instituting the proceedings that the enforcement of an
interdict would cause great inequity and would amount to unconscionable conduct.
Zuurbekom Ltd v Union Corp Ltd 1947 (1) SA 514 (A)
PRECEDENTS
Claim – for interdict based on a nuisance
1. Plaintiff is the owner and occupier of [give description].
2. Defendant is the owner (or occupier) of [give description].

3. Certain oak trees grow on defendant’s property, the branches of which
overhang the roof of plaintiff’s dwelling house.
4. These overhanging branches are a nuisance in that the leaves therefrom drop
into and 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 said nuisance, he refuses

to do so.
(a) An order directing defendant to abate the said nuisance by chopping off the branches
or in some other effective manner to prevent the leaves from dropping onto plaintiff’s
guttering and shingles.
[Page 268]
(b) An interdict against defendant to prevent the nuisance from recurring in future.
[Based on Malherbe v Ceres Municipality 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 [give description].
2. Defendant is occupying the adjoining property [give description] and is

conducting excavating activities thereon.
3. In the course of its activities, defendant uses certain 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.
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 the purpose of
manufacturing certain [detail] and that, in the process of such manufacture, there are times
when offensive odours are caused and that these do on occasions escape from the precincts of
defendant’s factory in spite of all reasonable steps’ having been taken to have them contained
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 in the
course of his manufacturing business and that they were and are so caused by defendant in
the reasonable exercise by him of his proprietary rights in the land on which his factory is
established, having particular regard to:
(a) the fact that the property is zoned for manufacturing noxious substances; and
(b) the fact that the manufacturing takes place in compliance with the provisions
of the Atmospheric Pollution Prevention Act 45 of 1965 (as amended from time to time).
• Options • Ownership
Options
A party wishing to rely on an exercised option must allege and prove the following:
(a) A valid option – that is, an offer contained in an agreement which, upon acceptance,
would give rise to a valid contract.
Venter v Birchholtz 1972 (1) SA 276 (A)
Van Jaarsveld v Ackermann 1975 (2) SA 753 (A)
Aris Enterprises (Finance) (Pty) Ltd v Waterberg Koelkamers (Pty) Ltd 1977 (2) SA 425 (A)
Kennedy v Botes 1979 (3) SA 836 (A)
(b) That the option was properly exercised. The exercise must comply with the ordinary
rules relating to the acceptance of an offer.
SA Yster & Staal Industriële Korp Bpk v Koschade 1983 (4) SA 837 (T)
Ficksburg Transport (Edms) Bpk v Rautenbach 1986 (2) SA 88 (O)
[Page 269]
It must also comply with the formalities prescribed in the option for its exercise.
Inrybelange (Edms) Bpk v Pretorius 1966 (2) SA 416 (A)
Kahn v Raatz 1976 (4) SA 543 (A)
Ficksburg Transport (Edms) Bpk v Rautenbach 1988 (1) SA 318 (A)
(c) That the option was still open for acceptance.
Cf Mittermeier v Skema Engineering (Pty) Ltd 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 dilectus
personae.
Dettmann v Goldfain 1975 (3) SA 385 (A)
Breach of the option: If the grantor of an option repudiates it, the following possibilities
exist:
(a) Prior to the exercise of the option, the grantee may interdict a transaction or transfer in
order to maintain the status quo in order to enable the grantee to claim delivery once the
option has been exercised. Before exercise of the option, the grantee may not claim
performance.
Krauze v Van Wyk 1986 (1) SA 158 (A)
(b) The grantee may accept the repudiation of the option and claim damages and 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 (3) SA 647 (A)
(c) The grantee may, after the exercise of the option, 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
Plea – on exercised option

1. On [date] at [place], defendant gave to [name] a written option to purchase
[item] for the sum of [amount]. A copy of the option is annexed hereto and marked “A”.
2. On [date], the said [name] in writing ceded the option to plaintiff. A copy of
the cession is annexed hereto and marked “B”.
3. On [date] at [place] and whilst the option was in full force and effect, plaintiff
duly exercised it by notifying defendant in writing thereof. A copy of the exercise of the
option is annexed hereto and marked “C”.
4. In spite of his tender of payment, defendant refuses to deliver the said [item]
to plaintiff.
WHEREFORE, tendering as aforesaid, plaintiff claims:
An order directing defendant to deliver the said [item] to plaintiff.
[Page 270]
Ownership
Related subjects: ACTIO AD EXHIBENDUM
ESTOPPEL
SALE
VINDICATION
Onus: A party who relies on ownership in an object must allege and prove such ownership.
Transfer of ownership of corporeal movable property requires delivery – ie, transfer of

possession of the property by the owner to the transferee – coupled with a real agreement
between the parties. The constituent elements of this agreement are the intention of the owner
to transfer ownership and the intention of the transferee to acquire it. Transfer of possession
can be either actual or constructive and an agent can act for either the owner or the transferee
or both.
Info Plus v Scheelke [1998] 2 All SA 509 (SCA); 1998 (3) SA 184 (SCA)
ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC [2003] 1 All SA 401 (SCA); 2003 (1) SA
401 (SCA)
Delivery may be by way of:
(a) traditio brevi manu;
Info Plus v Scheelke [1998] 2 All SA 509 (SCA); 1998 (3) SA 184 (SCA)
(b) traditio longa manu;

Eskom v Rollomatic Engineering (Edms) Bpk 1992 (2) SA 725 (A)
(c) constitutum possessorium;
Bank Windhoek Bpk v Rajie 1994 (1) SA 115 (A)
(d) symbolic delivery;
Botha v Mazeka 1981 (3) SA 191 (A)
(e) attornment
Caledon & Suid-Westelike Distrikte Eksekuteurs-Kamer Bpk v Wentzel 1972 (1) SA 270 (A)
Air-kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980 (3) SA 917 (A)
Reliance may be placed on the factual presumption of ownership arising from possession.
The onus lies on the party who seeks to rebut the presumption of ownership arising from the
possession of a thing.
Zandberg v Van Zyl 1910 AD at 302
Ruskin v Thiergen 1962 (3) SA 737 (A)
Hefer v Van Greuning 1979 (4) SA 952 (A) at 959
Unless the matter is raised by the other party on the pleadings, a purchaser who has paid the
price need not prove that a 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 (3) SA 930 (A) at 937
Ownership in immovable property can only be 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) 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)
[Page 271]
• Parties
• Partnerships
• Passing-Off
• Patents
• Payment
• Pleas
• Pledges
• Police • Possessors: Damages Claims by
• Possessors: Eviction
• Prayers
• Pre-emption
• Prescription: Acquisitive
• Prescription: Extinctive • Privacy
• Professional Liability
• Promissory Notes
• Provincial and Local Authorities
Parties
Related subjects: CITATION
LOCUS STANDI
Partnerships
Related subjects: ACCOUNTS
CITATION
JOINT OWNERSHIP
The contract: A party who relies on a partnership contract must allege and prove a contract
with the following essentials:
(a) each party must undertake to bring into the partnership money, labour or skill;
(b) a business is to be carried on for the joint benefit of all the parties; and
(c) the common object of making a profit.

Bester v Van Niekerk 1960 (2) SA 779 (A)
Purdon v Muller 1961 (2) SA 211 (A)
Pezzutto v Dreyer 1992 (3) SA 379 (A)
The contract may be express or implied. An example of the latter is a universal partnership
between spouses.
Mühlmann v Mühlmann 1984 (3) SA 102 (A)
Citation: The citation of partners is regulated by Uniform rule 14 and Magistrates’ Courts

rule 54.
See : CITATION
Liability: The following rules apply:
(a) The liability of partners is joint and several.
Bester v Van Niekerk 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 the partnership assets. The same
judgment will entitle execution against individual partners if the partnership assets are
insufficient.
Muller v Pienaar 1968 (3) SA 195 (A)
Standard Bank of SA Ltd v Pearson 1961 (3) SA 721 (E)
Herbst v Solo Boumateriaal 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 one or more of the partners.
Lee v Maraisdrif (Edms) Bpk 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, and the action
continues against the persons alleged by the plaintiff or stated by the partnership to have been
partners, as if sued individually.
Kirsch Industries Ltd v Vosloo & Lindeque 1982 (3) SA 479 (W)
(e) In spite of its dissolution, a partnership is deemed to remain in existence, as far as

creditors are concerned, until their claims have been discharged and, as far as partners are
concerned, for purposes of liquidation and distribution of the assets.
Van der Merwe v Sekretaris van Binnelandse Inkomste 1977 (1) SA 462 (A) at 472
Spie Batignolles SA v Van Niekerk 1980 (2) SA 441 (NC)
[Page 272]
Actio pro socio : The rules of the action between partners are these:
(a) During the existence of the partnership, action may be instituted by a partner against a
co-partner for specific performance in terms of the partnership agreement and fulfilment of
obligations arising out of the partnership agreement and business.
(b) Where the partnership agreement provides for or the parties subsequently agree upon
the dissolution of the partnership and the manner in which the partnership is to be liquidated
and wound up, specific performance in those terms may be claimed.
(c) Where neither the partnership agreement nor the subsequent agreement between the
partners provides for the dissolution of the partnership and the manner in which the
partnership is to be liquidated and wound up, this action may, in general and subject to any
stipulation for the duration of the partnership or any other relevant stipulation, be brought by
a partner in order to have a partnership liquidated and wound up. The court may appoint a
liquidator to realise the partnership assets for the purpose of liquidating the partnership debts
and in order to distribute the balance of the assets or their proceeds among the partners.
(d) Where a partnership has been dissolved, a partner may claim, against a co-partner,
distribution of any undistributed partnership assets.
Van Onselen NO v e Kgengwenyane 1997 (2) SA 423 (BSC)
It follows that partners are not, as regards partnership dealings, considered debtor and
creditor inter se until the partnership is wound up or until there is a binding settlement of
accounts. One partner has no right of action against another for the balance owing to her or
him until after final settlement of accounts. A partner must, therefore, allege a winding up or
a settlement of accounts before he or she can sue for moneys due.
Pataka v Keefe 1947 (2) SA 962 (A)
Ferreira v Fouche 1949 (1) SA 67 (T)
Narayanasamy v Venkatrathnam 1979 (3) SA 1360 (D)
Loots v Nieuwenhuizen 1997 (1) SA 361 (T)
If a liquidator has been appointed, a partner’s right to claim delivery of partnership property
from another partner comes to an end.
Van Tonder v Davids 1975 (3) SA 616 (C)
Anonymous partner: An anonymous partner is not liable for partnership debts.

SACCA Ltd v Olivier 1954 (3) SA 136 (T)
In order to qualify as such, the name of this partner may not be disclosed to the world at large
and he or she may not participate in the partnership’s business.
Mmabatho Food Corp (Pty) Ltd v Fourie 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.
[Page 273]
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.
Claim – for dissolution of partnership
1. On [date] at [place], the parties entered into a written agreement of

partnership. A copy of the aforesaid agreement is attached hereto and marked “A”.
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 whole of the partnership
assets, to liquidate the liabilities of the partnership, to prepare a final account and to pay to
plaintiff half the nett profits made by the partnership.
Claim – for appointment of a liquidator
1. On [date] at [place], the parties entered into a written partnership agreement. A

copy is attached hereto and marked “A”.
2. In terms of the agreement the parties have since [date] and to date hereof been
trading as partners under the style of [name] at [address].
3. Defendant breached the partnership agreement in that he [specify].
4. The aforesaid breach of contract was a material one and plaintiff was entitled
by virtue thereof 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.
(a) An order confirming the dissolution of the partnership.
(b) An order appointing a liquidator with authority to realise the whole of 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 into 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 by virtue of: [detail].
[Page 274]
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 in the
following way: [detail].
4. Despite demand, defendant refused to agree to dissolve the partnership or to

give effect to the aforesaid provisions relating to liquidation.
5. Plaintiff hereby tenders to carry out his obligations in terms of the agreement
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 grocer 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 said business but, from time to time, each
one, by mutual agreement, drew money from the profits of the business for his or her 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 said grocery business.
(b) An order dissolving the partnership as from [date].

(c) An order appointing a liquidator [and so on].
Passing-off
Related subjects: TRADE MARKS
Cause of action: A passing-off action protects the goodwill or reputation of a trader’s

business, merchandise or services against a false representation by a competitor to the effect
that the business, merchandise or service of the competitor is that of the plaintiff or that it is
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 (2) SA 916 (A)
1998 (3) SA 947 (SCA)
[Page 275]
Passing-off is a species of the broader delict of unlawful competition.
Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T)
at 1138
Jurisdiction: The ordinary principles relating to delictual claims apply.
1998 (3) SA 947 (SCA)
Parties: The goodwill must be that of the plaintiff. A distributor of goods manufactured by

another is not entitled to protection where the get-up is distinctive of the manufacturer’s
business and reputation.
Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd 1975 (4) SA 626 (W)
Salusa (Pty) Ltd v Eagle International Traders 1979 (4) SA 697 (C)
A plaintiff who has ceased to carry on business must show that her or his business or goods
retain the reputation or a residual renown. If this onus is discharged, a defendant relying on
the abandonment of this right must prove such abandonment.
Polakow Bros (Pty) Ltd v Gershlowitz 1976 (1) SA 863 (SE)
An instigator or accomplice is likewise liable.
Omega Louis Brandt et Frere SA v African Textile Distributors 1982 (1) SA 951 (T)
Trade mark infringement and passing-off: The distinction between these two actions is dealt
with under TRADE MARKS.
Misrepresentation: The plaintiff must allege and prove a misrepresentation by the defendant.
The test applied to determine whether a misrepresentation amounts to passing-off 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 another.
Such representation must be false and unauthorised. The typical case of passing-off is where
the defendant uses, adopts or imitates the trade name or get-up of the plaintiff’s business,
goods or services.
Policansky Bros Ltd v L & H Policansky 1935 AD 89
Truck & Car Co Ltd v Kar-N-Truk Auctions 1954 (4) SA 552 (A)
Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W)
Die Bergkelder v Delheim Wines (Pty) Ltd 1980 (3) SA 1171 (C)
Reputation or goodwill: It is necessary to allege and prove that the trade name, trade mark,
get-up or service mark was known in the market and that the plaintiff’s goods, business or
service acquired a public reputation or became distinctive from other, similar goods,
businesses or services.
1998 (3) SA 947 (SCA) at para [16]
SC Johnson & Son Inc v Klensan (Pty) Ltd t/a Markrite 1982 (4) SA 579 (T)
Pepsico Inc v United Tobacco Co Ltd 1988 (2) SA 334 (W)
Daimler Chrysler Aktiengesellschaft v Afinta Motor Corporation (Pty) Ltd [2001] 2 All SA
219 (T)
Consequently, where a trader uses a word in its ordinary meaning in connection with her or
his goods or business, or uses a trade or service mark or trade name which is a descriptive
term, it must be proved that, through use, such 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) at 938
[Page 276]
Where, however, a trader uses a fancy or invented name, it is difficult to avoid an inference
of passing-off if a rival uses that name.
Truck & Car Co Ltd v Hirschmann 1954 (2) SA 117 (E)
The same principles apply where the plaintiff seeks to protect the get-up of her or his goods.
Die Bergkelder v Delheim Wines (Pty) Ltd 1980 (3) SA 1171 (C)
Calculated to deceive or confuse: It is necessary to allege and prove that the defendant’s get-
up 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 products to that of the
defendant.
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A)
Confusion itself is not enough: it is essential that a causal connection between the
representation and the confusion be established.
Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd 1976 (2) SA 930
(A)
It is not necessary for a trader seeking relief to prove that anyone has actually been deceived
or confused, but a plaintiff who fails to prove actual confusion or deception runs a 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: Absence of proof of a common field of activity is not necessarily

fatal to a plaintiff’s claim; it is merely a factor which the court takes into account when
considering whether the defendant’s conduct is likely to lead to confusion between the
parties’ goods or business.
Philip Morris Inc v Marlboro Shirt Co SA Ltd 1991 (2) SA 720 (A)
Intention to deceive: The plaintiff need not show that the defendant intended to deceive.
Evidence of such intention may, however, indicate that the defendant considered that the
plaintiff’s trade mark, get-up 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 did not fail to
achieve her or his object in passing-off.
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (SCA); 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 get-up.
Kenitex Africa (Pty) Ltd v Coverite (Pty) Ltd 1967 (3) SA 307 (W)
Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1992 (2) SA 489 (A)
In a claim for an interdict, 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) SA 307 (W)
See : INJURIOUS FALSEHOODS
[Page 277]
It is also not necessary to prove actual prejudice. The probability of prejudice’s resulting
from the defendant’s persisting in the conduct complained of is sufficient.
It follows that it is no defence to a claim for an interdict to plead ignorance that the practice
complained of was calculated to deceive.
Damages: The plaintiff may recover damages for any loss suffered by means of the actio
legis Aquiliae.
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)
Such loss may result from either a diversion of custom from the business of the aggrieved
party or injury to the business reputation.
Account of profits: A claim for an account of profits is not competent.
See : ACCOUNTS
An interim order may be granted directing the keeping of an account of sales by the
defendant in order to enable the plaintiff to assess, at a later stage, the damages suffered.
John Waddington Ltd v Arthur E Harris (Pty) Ltd 1968 (1) SA 38 (T)
Delivery-up: The plaintiff may be entitled to prevent further passing-off by claiming, as

ancillary relief, an order for the handing over of the goods in question, so that the offending
mark or name may be removed or destroyed, or the handing over, for destruction, of
containers or advertising material bearing the offending mark or name.
Jafta v Minister of Law & Order 1991 (2) SA 286 (A)
Alternative causes of action: A passing-off action is often brought as an alternative to a

trade-mark-infringement action. An act of passing-off may also overlap with other types of
unlawful competition, such as contravention of a statutory provision, as in section 7 of the
Merchandise Marks Act 17 of 1941 or the Counterfeit Goods Act 37 of 1997. Where that is
the case, plaintiff may base her or his case in the alternative on a contravention of the relevant
statute.
Berman Bros (Pty) Ltd v Sodastream Ltd 1986 (3) SA 209 (A)
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A)
A get-up may also constitute an original artistic work protected in terms of the Copyright Act
98 of 1978. If it does, the plaintiff may base the claim on passing-off, infringement of
copyright or both and may claim the remedies provided for in the Copyright Act.
See : COPYRIGHT
For character merchandising, see
Federation Internationale de Football v Bartlett 1994 (4) SA 722 (T)
SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons [2003] 1 All SA 274 (SCA)
[Page 278]
Nevertheless, it is not legitimate to use some general notion of unlawful competition to create
an ersatz passing-off 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 passing-off
action are important in preventing the creation of impermissible monopolies.
Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A) at 453
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (A); 2001 (3)
SA 884 (SCA)
Doctrine of unclean hands: A plaintiff whose own get-up contains a material, false
representation may not be entitled to protection from passing-off.
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) SA 343 (A)
Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd 1976 (4) SA 218 (T)
A related principle is that passing-off cannot be used to protect a false reputation or a

misapprehension.
1998 (3) SA 947 (SCA)
Market-survey evidence: In order to prove reputation, a party may rely on market-survey

evidence, provided the survey is properly structured.
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd [1996] 4 All SA 1 (A);
1997 (1) SA 1 (A)
PRECEDENTS
Interdict – passing-off
1. Since or about [date], plaintiff has made continuous and extensive use of a
distinctive get-up in relation to toilet soap in South Africa.
2. The aforesaid distinctive get-up consists of a white wrapper upon which is

printed a device comprising the mark ACME printed in a distinctive style of lettering.
Annexed hereto as Annexure “A” is an example of plaintiff’s aforesaid distinctive get-up.
3. As a consequence of plaintiff’s aforesaid continuous and extensive use of the

distinctive get-up, plaintiff has built up a substantial reputation therein, such that members of
the public associate toilet soap, in relation to which the distinctive get-up is used, as toilet
soap emanating from plaintiff or as being connected in the course of trade with plaintiff.
[or]
The said get-up 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 said 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 to which a
get-up is being used comprising a pink wrapper upon which the word ACNE is used in a
distinctive style of lettering (hereinafter referred to as “the offending get-up”). Annexed
hereto as Annexure “B” is an example of the offending get-up.
5. The offending get-up is confusingly or deceptively similar to plaintiff’s

aforesaid distinctive get-up.
6. The aforesaid conduct of defendant is not authorised by plaintiff.

[Page 279]
7. The aforesaid 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 passing-off 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.
An interdict restraining defendant from passing-off its soap as that of plaintiff or as being
connected in the course of trade with plaintiff, by using, in regard thereto, the offending get-
up or any get-up which is confusingly or deceptively similar to plaintiff’s distinctive get-up.
Patents
Statute: Patents are governed by the Patents Act 57 of 1978. Only patent infringement
proceedings are by way of action and, for that reason, this title is limited to a discussion
thereof.
Jurisdiction: The court of the commissioner of patents is the only tribunal that has
jurisdiction in the first instance to hear and decide proceedings relating to any matter under
the Act.
Patents Act 57 of 1978 s 18
Precismeca Ltd v Melco Mining Supplies (Pty) Ltd 2003 (1) SA 664 (SCA)
The commissioner has, in connection with any proceedings before her or him, the same
powers and jurisdiction as a single judge has in a civil action.
Patents Act 57 of 1978 s 17(1)
Save as otherwise provided by the Act, the procedure followed in proceedings before the
commissioner must, as far as practicable, be in accordance with the law governing procedure
in civil cases in the Transvaal High Court, and, in default thereof and where no relevant
provision is made in the Act, the commissioner must act in the manner and on the principles
as are best fitted to ensure substantial justice and to give effect to and carry out the objects
and provisions of the Act.
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 Transvaal High Court.

Patent regulation 76
In view of the nature of the court of the commissioner, its proceedings cannot be reviewed.
Gentiruco AG v Firestone SA (Pty) Ltd 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.
Cf Schlumberger Logelco Inc v Coflexip SA 2000 (3) SA 861 (SCA)
Plaintiff: An infringement action can be instituted by:
(a) the patentee; or
(b) a licensee of right (but only after having called upon the patentee to do so, in which
event the patentee must be joined as a defendant).
Clifford Harris (Pty) Ltd v SGB Building Equipment (Pty) Ltd 1980 (2) SA 141 (T)
[Page 280]
Intervention as plaintiff: Notice must be given to every licensee under the patent in question
whose name is recorded in the register and any such licensee is entitled to join as co-plaintiff
and to recover any damages suffered as a result of the infringement.
Likewise, a joint patentee who institutes infringement proceedings must give notice thereof to
every other joint patentee, who may intervene as co-plaintiffs 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.
However, the sale of a patented article by or on behalf of a patentee or a licensee gives the
purchaser the right to use, offer to dispose and dispose of that article.
The patent: The plaintiff must allege and prove that the patent has been granted (not merely
applied for) and that it was at all relevant times in existence.
Continental Linen Co (Pty) Ltd v Kenpet Agency (Pty) Ltd 1986 (4) SA 703 (T)
It is practice, though unnecessary, to allege that the patent is valid. There is a presumption
that a registered patent is valid.
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 629
It is practice, but not essential, to attach a copy of the complete specification to the particulars
of claim.
Phillips Estate (Pvt) Ltd v Braunstein 1964 (3) SA 818 (SR)
The patent can 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. The practice in this regard is to plead one or more particular
instances of infringement which will be the subject of the evidence. In an action for
infringement of a patent, the court’s first step is one of interpretation. It has to ascertain the
nature and scope of the invention claimed, by construing the claims in question so as to
determine the invention’s essential constituent elements or integers.
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)
Sappi Fine Papers (Pty) Ltd v ICI Canada Inc 1992 (3) SA 306 (A)
A determination of the question of whether there is infringement turns on a comparison

between the article or process involved in the alleged infringement and the words of the
claims of the patent.
Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A)
Nampak Products Ltd v Man-Dirk (Pty) Ltd [1999] 2 All SA 543 (SCA); 1999 (3) SA 708
(SCA)
If the “pith and marrow” of the invention claimed are taken, it amounts to infringement.
Frank & Hirsch (Pty) Ltd v Rodi & Wienenberger AG 1960 (3) SA 747 (A)
Aktiebolaget Hässle v Triomed (Pty) Ltd [2002] 4 All SA 138 (SCA); 2003 (1) SA 155
(SCA)
[Page 281]
The onus rests on the plaintiff to prove that all the essential integers of a claim have been
taken.
Selero (Pty) Ltd v Chauvier 1982 (2) SA 208 (T)

Where the invention for which a patent is granted is a process of obtaining a new product, the
same product produced by someone else is deemed to have been obtained by that process,
unless the contrary is proved.
“Literal” infringement and infringement by taking the “pith and marrow” are not different
causes of action and one does not plead one or the other.
Relief: In an infringement action, relief may be obtained by way of:
(a) an interdict;
(b) delivery-up 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 (1) SA 805 (T)
If damages are claimed, the proceedings must be instituted by way of summons. The plaintiff
may claim an inquiry into the damages suffered as a result of the infringement and payment
of the amount of damages found to have been so suffered. It is, then, not necessary to specify
in the pleadings the amount of damages allegedly suffered or the manner in which damages
are computed.
Patent regulation 98
The measure of damages is delictual, and such damages can include a loss of profit in respect
of those articles that 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 calculated on the basis of a
reasonable royalty which would have been payable by a licensee or sub-licensee in respect of
the patent concerned.
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.

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 and each
particular statutory ground of invalidity relied on must be specially and separately pleaded,
and separately considered by the court.
Par Excellence Colour Printing (Pty) Ltd v Ronnie Cox Graphic Supplies (Pty) Ltd 1983 (1)
SA 295 (A) at 308
Although it is trite that each objection must be considered in isolation, evidence on one aspect
may be relevant to another.
Filta-Matix (Pty) Limited v Freudenberg [1998] 1 All SA 239 (A); 1998 (1) SA 606 (SCA)
[Page 282]
The attack of invalidity must, as far as possible, be directed towards the claims relied on by
the plaintiff, because some relief may be granted in respect of a partially valid patent.
Patents Act 57 of 1978 s 68
Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd 1983
(1) SA 709 (A)
But see McKelvey v Deton Engineering (Pty) Ltd [1997] 3 All SA 569 (A); 1998 (1) SA 374
(SCA)
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 hereto.
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. In order 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].

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
its aforesaid infringement unless restrained by an order of court.
8. The aforesaid conduct of defendant is causing plaintiffs damages, which

damages plaintiffs are not presently able to quantify.
WHEREFORE plaintiffs claim:
(a) An interdict restraining defendant from infringing the patent by importing and/or
disposing of Genep Plus.
(b) Delivery-up of all the infringing Genep Plus in the possession of defendant or under
its control.
(c) An inquiry into damages suffered by plaintiffs as a consequence of defendant’s

infringement.
[Based on the facts of Stauffer Chemical Co v Safsan Marketing 1987 (2) SA 331 (A).]
Plea – infringement
1. Defendant admits the correctness of 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.
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.
[Page 283]
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.
WHEREFORE 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 subject: BANKERS
CHEQUES
LOANS
TENDER: IN FULL AND FINAL SETTLEMENT
General: Payment is a bilateral juristic act.
Vereins- und Westbank AG v Veren Investments 2002 (4) SA 421 (SCA)
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 fact of
payment.
Pillay v Krishna 1946 AD 946 at 958
1998 (1) SA 811 (SCA)
Cheque: Payment by cheque is usually considered conditional payment, in that it is

conditional upon the cheque’s being honoured, unless the risk in the method of payment is for
the creditor’s account.
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A)
Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A)

Mannesmann Demag (Pty) Ltd v Romatex Ltd 1988 (4) SA 383 (D)
Appropriation of payment: Appropriation of payments operates inter partes when the debtor

intends to discharge the liability to the creditor, when more than one debt is owed by the
debtor to the creditor, and when the particular payment 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, where the debtor does not appropriate the payment to any particular debt, the
creditor is entitled to do so at the moment payment is made.
Douglas Green Bellingham v Green t/a Greens Bottle Recyclers [1997] 4 All SA 423 (A);
1998 (1) SA 367 (SCA)
[Page 284]
If capital and interest are owing in respect of the same indebtedness, a payment must be
credited first to the interest owing by the debtor and, there-after, if not exhausted, to the
capital owing.
1998 (1) SA 811 (SCA)
An enforceable debt is extinguished before an unenforceable one and, as between enforceable

debts, the more onerous debt is extinguished first. A debt secured by a deed of suretyship is
classified as an onerous debt, but a surety who has bound her- or himself up 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. Where none of the specific rules applies, the
various debts are settled proportionally.
Payment to 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.
Powell v ABSA Bank Ltd t/a Volkskas Bank [1997] 4 All SA 231 (SE); 1998 (2) SA 807
(SE)
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].
Pleas
Related subjects: SPECIAL PLEAS
REPLICATION
Rules of court: Pleas in the high court and the magistrates’ court are subject to similar rules,
save that, if the rules are not complied with in the high court, the plea is deemed to be an
irregular step.
Uniform rule 22(5) and 30
The basic obligation of a defendant is to:
(a) admit,
(b) deny, or
(c) confess and avoid,
all the material facts alleged in the plaintiff’s claim or to state which of the facts are not
admitted, and to what extent, and to state clearly and concisely all material facts on which the
defendant relies.
[Page 285]
It does not suffice to plead the legal result without a factual basis.
Uniform rule 22(2)
Radebe v Eastern Transvaal Development Board 1988 (2) SA 785 (A) at 793
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)
Admission: It is not necessary for any party in any civil proceedings to prove, and it is not
competent for any such party to disprove, any fact admitted on the record of such
proceedings.
Civil Proceedings Evidence Act 25 of 1965 s 15
Water Renovation (Pty) Ltd v Gold Fields of SA Ltd 1994 (2) SA 588 (A) at 605H
An admission in a plea can also not 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 on oath that the admission was made in error and that the plaintiff
will not suffer material prejudice if the amendment is granted.
Bellairs v Hodnett 1978 (1) SA 1109 (A) at 1150
Van Zyl and Maritz NNO v SA Special Risks Insurance Association 1995 (2) SA 331 (SE) at
339
The defendant may admit part of the plaintiff’s claim and dispute the balance without making
a tender for the admitted part. However, the plaintiff may be able to obtain judgment for the
admitted part.
Rumanal (Pty) Ltd v Hubner 1976 (1) SA 643 (E)
Denial: A denial of an allegation made by the plaintiff must be unambiguous.
FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A) at 542
It need not be particularised, unless the onus rests upon 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. If any explanation or qualification of a denial is necessary, it must
be pleaded.
Uniform rule 22(3)
Madyosi v SA Eagle Insurance Co Ltd 1990 (3) SA 442 (A)
If a fact is not unambiguously denied, it is deemed to be admitted.
ABSA Bank Ltd v IW Blumberg and Wilkinson 1997 (3) SA 669 (SCA) at 673–674
An allegation of fact by the plaintiff in the magistrates’ court, which allegation is inconsistent
with the plea, is deemed to have been denied.
It is a rule of practice in the high court, and a specific rule in the magistrates’ courts (rule
19(6)), that a bare denial of liability or a defence of general issues is not permissible.
Hillman Bros Ltd v Kelly & Hingle 1926 WLD 153
Lubbe v Bosman 1948 (3) SA 909 (A)
Williams v Williams 1971 (2) SA 620 (O)
It is said that a plea would infringe this rule if 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.
Britz v Weideman 1946 OPD at 144
A defendant may explain a denial by alleging that he or she has no knowledge of the facts
and, consequently, denies that fact.
Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd 1985 (3) SA 410 (C)
[Page 286]
A defendant may not simply state that he or she does not admit a fact. This is not regarded as
a denial.
Wilson v SAR&H 1981 (3) SA 1016 (C)
Material facts: The high court rule requires that the material facts on which the defendant
relies must be clearly and concisely stated. In addition, in the magistrates’ court, the nature of
the defence must be stated. It is doubtful whether this last requirement adds much. 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 – ie, rolled-up defences
are not permissible.
Davies v Lombard 1966 (1) SA 585 (W)
Confession and avoidance: See : SPECIAL PLEAS
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 that the plaintiff ’s claim be
stayed until the occurrence of the specific event. A plea may not be used to disguise a
counterclaim, although this is indirectly allowed. Examples are where a defendant prays for
an apportionment of damages, the reduction of a penalty, or rectification of a contract. In all
these instances, the relief sought is not relief independent from that sought by the plaintiff but
is in reduction or in qualification thereof.
See : PRAYERS
Pledges
A pledge is valid and perfected if it is based on:
(a) a valid principal obligation;
Kilburn v Estate Kilburn 1931 AD 501
Oertel NO v Brink 1972 (3) SA 669 (W)
(b) an agreement to pledge;
Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A)

(c) continued possession of the pledged article by the pledgee.
Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A)
Edwards v Van Zyl 1951 (2) SA 93 (C)
The pledgee is bound to take good care of the pledge and is responsible for all damage or
accidents. If he or she destroys the pledged article, he or she must make it good; if he or she
misuses it, he or she can be compelled to give security. When the debt is paid, the pledgee
must restore the thing pledged in a state no worse than that in which he or she received it.
Simon NO v Mitsui & Co Ltd [1996] 3 All SA 353 (W); 1997 (2) SA 475 (W)
A pactum commissorium, in the context of a pledge, is an agreement that, if the pledgor

defaults, the pledgee may keep the security as her or his own property. Such an agreement is
void.
Graf v Buechel [2003] 2 All SA 123 (SCA)
[Page 287]
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 his [state article pledged] as security for the sum of [amount]
being the amount then owing by plaintiff to defendant.
2. On [date], plaintiff repaid the said sum of [amount] to defendant.
3. Defendant has refused to redeliver the said [items] to plaintiff.
4. The value of [items] is [amount].
5. By reason of defendant’s refusal, plaintiff has been deprived of the use of the
said [items] from [date] to date hereof and has suffered a loss in the sum of [amount].
[Detail].
(a) Return of the said [items]; alternatively, payment of the sum of [amount].
(b) Payment of the sum of [amount].
Claim – for damages due to negligence
1. On [date] at [place], the parties entered into 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 duly paid the sum of [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 the sum of [amount].
Police
ASSAULT
STATE LIABILITY
VICARIOUS LIABILITY
Statute: The South African Police Service Act 68 of 1995 circumscribed, to an extent, the
liability of the police and provided for formalities before proceedings can be instituted
against the State or members of the Service.
South African Police Service Act 68 of 1995 s 57
This provision differed materially from that of the repealed section 32 of the Police Act 7 of
1958. For the history, see
Minister of Safety and Security v Molutsi 1996 (4) SA 72 (A)
Baldeo v Minister of Safety and Security, RSA [1998] 1 All SA 285 (D)
All this has now been replaced by the Institution of Legal Proceedings against Certain Organs
of State Act 40 of 2002.
[Page 288]
Possessors: Damages Claims by
Related subjects: EVICTION OR EJECTMENT
LEX AQUILIA
VINDICATION
General: The use of the term “trespass” to describe the wrongful disturbance of another’s
possession has fallen into disfavour.
Hefer v Van Greuning 1979 (4) SA 952 (A)
The right to claim damages because of damage to property is not limited to the owner of such
property. A bona fide possessor is entitled to claim damages as if he or she were the owner of
the property.
Swart v Van der Vyver 1970 (1) SA 633 (A) at 647
The right of the bona fide possessor so to claim has been extended to the hire-purchase
purchaser and to the legal occupier of property, which occupier is about to become the owner
of the property.
Vaal Transport Corp (Pty) Ltd v Van Wyk Venter 1974 (2) SA 575 (T)
Smit v Saipem 1974 (4) SA 918 (A)
These claims, which are claims under the lex Aquilia, entitle the plaintiff to claim patrimonial
loss. The ordinary principles of the lex Aquilia are applicable.
An owner of property may claim against a possessor for patrimonial damages suffered as a
result of unlawful possession, even if the owner never had possession of the property.
Hefer v Van Greuning 1979 (4) SA 952 (A)
It appears that 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) SA 390 (A)
The owner’s delictual claim for patrimonial loss caused by the unlawful occupation of her or
his land is still available, even though the right to claim eviction has been curtailed by
legislation.
Mkangeli v Joubert [2002] 2 All SA 473 (A); 2002 (4) SA 36 (SCA)
PRECEDENTS
Claim – by hire-purchase purchaser
1. Plaintiff is the hire-purchaser of vehicle [identify] in terms of a hire-purchase

agreement [particularise].
2. In terms of [claim] of the agreement, the risk relating to the vehicle passed to
plaintiff.
3. Defendant negligently [set out detail] damaged the vehicle by [particularise].
4. As a result of defendant’s wrongful and negligent act, plaintiff suffered

damages [detail].
Claim – by possessor
[Taken from Smit v Saipem 1974 (4) SA 918 (A) at 933E–H.]
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”.
[Page 289]
2. Plaintiff acquired civil possession of the erven on 10 February 1970, under

and by virtue of three separate deeds of sale entered into on 10 February 1970, 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 or about the month of January 1972, 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;
(d) changing the contours of the erven;
(e) blocking plaintiff’s access to the erven.
5. As a result 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 1 January 1990.
2. Defendant was in wrongful occupation of the property from 1 January 1990 to

31 December 1990.
3. Plaintiff only obtained occupation of the property on 1 January 1991.
4. Because of defendant’s wrongful occupation of the property, plaintiff suffered

damages. [Detail].
[See Hefer v Van Greuning 1979 (4) SA 952 (A).]
Possessors: Eviction
See : EVICTION OR EJECTMENT
Prayers
General: Every pleading must end with a prayer for the relief sought. The prayer must be
formulated with precision and must be consistent with the allegations of fact that precede it.
A plus petitio can be ignored.
Interest: See : INTEREST
Costs: Failure to include a prayer for costs does not disentitle a court from granting a costs
order, if the defendant appears and opposes the relief sought.
Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) at 632–633
Alternative relief: It is usual to insert a prayer for alternative relief. It is unnecessary because
it does not enable a court to grant relief that is inconsistent with the factual statements and the
terms of the express claim.
Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C)
A court is, in any event, empowered to grant similar or lesser relief than the relief sought.
Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272
Johannesburg City Council v Bruma Thirty-Two (Pty) Ltd 1984 (4) SA 87 (T)
[Page 290]
Pre-emption
Related subject: OPTIONS
General: A right of pre-emption is similar to a right of first refusal or to a right to repurchase

the object sold. It is of the essence of the right of pre-emption that the grantor undertakes not
to sell the object unless the grantee has been given a reasonable opportunity to purchase it at
the same price as that at which the grantor is prepared and willing to sell it to a third party.
Hartsrivier Boerderye (Edms) Bpk v Van Niekerk 1964 (3) SA 702 (T)
A right of pre-emption must be strictly construed as against the grantee.
Owsianick v African Consol Theatres (Pty) Ltd 1967 (3) SA 310 (A)
Bellairs v Hodnett 1978 (1) SA 1109 (A)
The grant of a pre-emptive right does not compel the grantor to sell the object at the behest of
the grantee. It merely compels the grantor to offer it for sale to the grantee if the grantor
intends selling it to a third party.
Interdict: The holder of a pre-emptive right may interdict the passing of transfer of the
object, should the grantor sell it to a third person without allowing the grantee the opportunity
of purchasing it. In such a case, the grantor must be joined as a party.
Le Roux v Odendaal 1954 (4) SA 432 (N)
Krauze v Van Wyk 1986 (1) SA 158 (A)
Specific performance: The grantee is also entitled to claim specific performance from the
grantor if the object has not yet been transferred to the third party.
893 (A)
Hirschowitz v Moolman 1983 (4) SA 1 (T); 1985 (3) SA 739 (A)
Cf Smuts v Booyens; Markplaas (Edms) Bpk v Booyens [2001] 3 All SA 536 (A); 2001 (4)
SA 15 (SCA)
Exercise of right: The grantee, by exercising the right of pre-emption, concludes the contract
of sale by means of a unilateral declaration of intent. He or she may then claim delivery from
a third party who, with knowledge of the right, took transfer of the subject-matter of the right.
893 (A)
PRECEDENTS
Claim – to enforce right of pre-emption
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
pre-emption 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 aforesaid vehicle, to offer it first to plaintiff.
3. Despite this agreement and in breach thereof, first defendant sold the aforesaid
vehicle to second defendant at the price of [amount].
[Page 291]
4. Before delivery of the vehicle to second defendant, plaintiff informed both

defendants that he was willing to purchase the aforesaid vehicle at the same price as paid
therefor by second defendant and tendered payment thereof.
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 has delivered it to second defendant, who took delivery of the vehicle, well
knowing of plaintiff’s rights.
WHEREFORE 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].
Claim – for interdict and enforcement of pre-emptive 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 hereto and marked “A”.
2. On [date], first defendant, in breach of the agreement and without giving

plaintiff the opportunity of exercising his right, entered into a written deed of sale with
second defendant in terms of which the latter purchased the said 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 pre-emption and, at the same time, tendered payment of the sum of [amount]. A copy
of the exercise of the right of pre-emption is annexed hereto and marked “B”.
(a) An order restraining first defendant from passing transfer of the said 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
Statutes: The Prescription Act 68 of 1969, which came into force on 1 December 1970,
applies to prescription that commenced to run from that date. If the required period expired
before this Act’s commencement, the Prescription Act 18 of 1943 applies. If the prescription
period began to run under the 1943 Act and expired after its repeal, the 1943 Act applies to
the period prior its repeal, and the 1969 Act applies to the remaining prescription period.
Prescription Act 68 of 1969 s 5
Prescription under the 1969 Act: A party claiming acquisitive prescription of a movable or
immovable object under this Act must allege and prove:
(a) civil possession – ie, possession as if he or she were the owner;
Pienaar v Rabie 1983 (3) SA 126 (A) at 134
Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A)
Minnaar v Rautenbach [1999] 1 All SA 571 (NC)

(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 pre-decessors in title, constitutes an
uninterrupted period of 30 years;
Cf Barker NO v Chadwick 1974 (1) SA 461 (D)
[Page 292]
(c) that the possession was exercised openly;
Cf Bisschop v Stafford 1974 (3) SA 1 (A)
(d) adverse user (this element is probably encompassed by the first element.)
Cf Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A)
Procedure: Prescription must be pleaded specifically.
The motion procedure prescribed in section 33 of the Deeds Registries Act 47 of 1937 for the
registration of land acquired by, inter alia, prescription is permissive and not obligatory.
Ex parte Glendale Sugar Millers (Pty) Ltd 1973 (2) SA 653 (N)
State land: As from 28 June 1971, State land is not capable of being acquired by any person
by means of prescription.
State Land Disposal Act 48 of 1961 s 3
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 has 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 hereof (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 said property.
3. In the premises, plaintiff has become 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] in the district of [state district].
2. Defendant is the owner of the adjoining farm [Y].
3. Against the title deeds of farm [X] is registered a servitude of right of way in
favour of farm [Y] in the following terms: [detail].
[Page 293]
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
Related subjects: STATE LIABILITY
Statutory provisions: The Prescription Act 68 of 1969 provides in chapter III 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 are of application to other
statutes which contain prescriptive periods, unless the words of those other statutes clearly
indicate the contrary.
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A)
Road Accident Fund v Smith NO [1998] 4 All SA 429 (A); 1999 (1) SA 92 (SCA)
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)
Some statutes prescribed pre-conditions in respect of prior notice and the time within which
litigation against certain public authorities or organs of State must be instituted, as well as
special prescriptive periods. These provisions have been replaced by the Institution of Legal
Proceedings against Certain Organs of State Act 40 of 2002.
Effect of prescription: A debt is extinguished by prescription after the lapse of the period
applicable in respect of that debt. This means, inter alia, that the debt cannot be revived, even
under the provisions relating to the interruption of prescription by the acknowledgement of
liability, unless such acknowledgement amounts to a new undertaking.
Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C)
Similarly, while a prescribed debt cannot be set off against any claim, payment of a
prescribed debt is regarded as valid payment of the debt and cannot be reclaimed.
Prescription Act 68 of 1969 s 10(3)
Procedure: A court may not, of its own motion, take notice of prescription. The proper way
of raising prescription in action proceedings is by way of a plea or special plea, not by way of
exception. The reason for this is that the plaintiff may have a valid answer to the allegation of
prescription, which may be raised in replication.
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571
(A)
See : SPECIAL PLEAS
A debtor (and, presumably, a creditor) is entitled to raise, by way of an action or application

for a declaratory order, the question of whether the debt has become prescribed.
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571
(A)
[Page 294]
The right to invoke prescription is not the sole prerogative of a defendant. It can be raised by
a person, other than the debtor, who has a real interest in the claim – for example, as a surety.
Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C)
The debt: Prescription extinguishes a debt. Although not defined, the term “debt” refers to
anything that is owed or due – ie, anything such as money, goods or services which one
person is under an obligation to pay or to render to another.
Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A)
It includes, generally, a debt owed to the State as well as debts of statutory origin.
Oertel NNO v Direkteur van Plaaslike Bestuur 1983 (1) SA 354 (A)
When prescription begins to run: The party who raises prescription must allege and prove the
date of the inception of the period of prescription.
Gericke v Sack 1978 (1) SA 821 (A)
As a general rule, prescription begins to run as soon as the debt is due.
Santam Ltd v Ethwar [1999] 1 All SA 252 (A); 1999 (2) SA 244 (SCA)
This means that the debt must be immediately claimable by the creditor in legal proceedings
and be one in respect of which the debtor is under an obligation to perform immediately.
Benson v Walters 1984 (1) SA 73 (A) at 82
Uitenhage Municipality v Molloy [1998] 1 All SA 140 (A); 1998 (2) SA 735 (SCA)
A debt, whether ex contractu, ex delicto or 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 such debt,
provided that a creditor who could have acquired the knowledge by exercising reasonable
care is deemed to have such knowledge.
Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika [2001] 1 All SA 107 (A);
2001 (1) SA 987 (SCA)
Van Immerzeel & Pohl v Samancor Ltd [2001] 2 All SA 235 (A); 2001 (2) SA 90 (SCA)
It is for the party raising prescription to 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 word “debt” does not refer to the
cause of action but, more generally, to the claim. The defendant may, in the 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 (1) SA 821 (A)
Drennan Maud & Partners v Town Board of the Township of Pennington [1998] 2 All SA
571 (SCA); 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;
[Page 295]
(b) certain other debts owed to the State – 15 years;
(c) debts arising from a negotiable instrument or notarial contract – six 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 (section 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 (2) SA 42 (O)
Typical examples are where the creditor is a minor, the debtor is outside the Republic, the
debt is the object of a dispute subjected to arbitration, or where 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 lapsed after the day on which the relevant impediment has ceased to exist.
Van Staden v Venter 1992 (1) SA 552 (A)
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 her or his agent; or
Pentz v Government of the RSA 1983 (3) SA 584 (A)
Aussenkehr Farms (Pty) Ltd v Trio Transport CC [2002] 3 All SA 309 (A); 2002 (4) SA 483
(SCA)
(b) the service on the debtor of any process whereby the creditor claims payment of the
debt.
Waiver of prescription: The right to rely on prescription can be waived.
Amendment of pleading: In amending a pleading, the question often arises as to whether the
amendment introduces another cause of action that has already been prescribed. If it does, the
amendment may be refused. In view of the fact that the plaintiff may have an answer to the
plea of prescription, it is under special circumstances only that an amendment can be refused
on this ground.
Cordier v Cordier 1984 (4) SA 524 (C)
Province of the Free State v Williams NO [2000] 2 All SA 172 (A); 2000 (3) SA 65 (SCA)
Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit
[2000] 2 All SA 115 (A); 2000 (2) SA 789 (SCA)
PRECEDENTS
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 296]
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 his claim has prescribed.
Replication
Plaintiff admits the allegations in paragraphs 1 and 2 of defendant’s special plea, but alleges
that:
(a) plaintiff attained his 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 : INIURIA
Professional Liability
See : The relevant discipline involved.
Promissory Notes
Related subjects: BANKERS
CHEQUES
Procedure: Since a promissory note is a liquid document, the provisional sentence procedure

is available.
Claim against the maker: A plaintiff claiming on a promissory note must allege and prove
that:
(a) the plaintiff is the legal holder;
(b) the defendant signed the note as promissor;
(c) the note is due and payable;
(d) if, in the body of the note, a place for payment is stated, presentment for payment at
that place did take place;
(e) the note was dishonoured by non-payment.
[Page 297]
Claim against an endorser: In a claim against an endorser, it must be alleged that:
(a) the plaintiff is the legal holder of the note;
(b) the defendant signed it as endorser;
(c) the note is due and payable;
(d) the note was duly presented for payment;
(e) the note was dishonoured by non-payment;

(f) notice of dishonour was given; or
(g) that notice of dishonour was dispensed with for a reason set out in section 48.
PRECEDENTS
Claim – against promissor
1. Plaintiff is the legal holder of a promissory note signed by defendant as

promissor and in terms of which defendant promised to pay to plaintiff on demand the sum of
[amount] at defendant’s place of business, being [specify]. A copy of the note is annexed
hereto.
2. On [date], plaintiff duly presented the note for payment at the aforesaid
address, but the note was dishonoured by non-payment.
3. Notice of dishonour is dispensed with in terms of section 48(2)(c)(iii) of Act

34 of 1964.
Claim – against endorser
1. Plaintiff is the legal holder of a promissory note made by one [name], in terms
of which [name] promised to pay to defendant or order the sum of [amount] on demand at
[place]. A copy of the note is annexed hereto.
2. Defendant duly endorsed and delivered the note to plaintiff.
3. Plaintiff duly presented the note for payment at [place] on [date] but it was
dishonoured by non-payment.
4. Notice of dishonour was duly given to defendant on [date] at [place] by

[name].
Provincial and Local Authorities
Related subjects: CITATIONS
PRESCRIPTION
STATE LIABILITY
• Quantity Surveyors
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) and reference should be made to ARCHITECTS.
[Page 298]
• Ratification
• Rectification
• Rei Vindicatio
• Replication • Repudiation
• Res Iudicata
• Restraint of Trade • Retention
• Roads
Ratification
General: Ratification is the validation of a juristic act concluded on a person’s behalf by

another who did not have authority to conclude such act. It is a unilateral act and, like any
other expression of will, it can be express or by conduct. The purported principal acquires no
rights and incurs no obligations unless and until the “principal” ratifies such act. Ratification
is retroactive in effect.
Vereins- und Westbank AG v Veren Investments 2002 (4) SA 421 (SCA)
Ratification is not possible in respect of any act which is in conflict with the common law or
a statutory provision.
Mathipa v Vista University 2000 (1) SA 396 (T)
An essential requirement for a valid ratification is that the principal must have intended to
adopt the unauthorised act of the agent done on her or his behalf, and that the intention must
be expressed with a full knowledge of all the facts or with the object of confirming the
agent’s action.
Ratification cannot affect vested rights.
Rectification
General: The object of rectification is to have a written contract conform to the common

intention of the parties. Rectification overrides the parol evidence rule.
Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (SCA); 2000 (1) SA 268 (SCA)
The summary of the essential allegations for rectification set out in Strydom v Coach Motors
(Edms) Bpk 1975 (4) SA 838 (T) is not in all respects satisfactory and the following
exposition is somewhat different.
Levin v Zoutendijk 1979 (3) SA 1145 (W)
Procedure: As a general rule, rectification should be sought by way of action. However, this
rule is not immutable.
Fourie’s Poultry Farm (Pty) Ltd v KwaNatal Food Distributors (Pty) Ltd (in liq) 1991 (4) SA
514 (N) at 527
Onus: A party who wishes to rely on rectification must claim rectification in the particulars
of claim, the plea or a counterclaim; and that party also bears the onus of proof.
Benjamin v Gurewitz 1973 (1) SA 418 (A) at 428
Lazarus v Gorfinkel 1988 (4) SA 123 (C) at 131
Rectification as a claim: The following facts must be alleged and proved:
(a) an agreement between the parties which was reduced to writing;
(b) that the written document does not correctly reflect the common intention of the
parties. This requires that the common continuing intention of the parties, as it existed when
the agreement was reduced to writing, be established. The common intention can be deduced
from an antecedent agreement, but this is not the only way in which it may be established;
Meyer v Merchants Trust Ltd 1942 AD 244
Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (A) at 503
City Council of the City of Durban v Rumdel Construction (Pty) Ltd [1997] 3 All SA 20 (D)
[Page 299]
(c) an intention by both parties to reduce the agreement to writing;
Meyer v Kirner 1974 (4) SA 90 (N) at 103
(d) a mistake in drafting the document.
Von Ziegler v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T) at 411
Neuhoff v York Timbers Ltd 1981 (4) SA 666 (T) at 674
The mistake may be the result of:
(i) a bona fide mutual error; or
(ii) an intentional act of the other party.
Von Ziegler v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T) at 411
(explaining Mouton v Hanekom 1959 (3) SA 35 (A))
It is not necessary to plead the cause of the mistake;
Offit Enterprises (Pty) Ltd v Knysna Development Co (Pty) Ltd 1987 (4) SA 24 (C)
(e) the actual wording of the agreement as rectified. It does not suffice to give the general
import of the common intention.
The relief is for rectification of the agreement, with or without consequential relief.
Rectification as a defence: A defendant may rely on rectification as a defence without having

to claim rectification. The facts necessary to establish rectification must be alleged in the plea
and the court is then asked in the course of the plea to adjudicate the matter on the basis of
the contract as rectified.
Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A) at 824
In spite of this, it remains advisable to counterclaim for rectification in all circumstances. If

rectification is sought through a counterclaim, the procedure for a claim should be adopted.
Whether a defendant can dispense with a counterclaim for rectification where the contract is,
in law, required to be in writing remains moot.
Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A)
Invalid contract: Where a contract is required by statute to be reduced to writing,

rectification is possible only if the document, on its face and before rectification, complies
with the provisions of the statute.
Magwaza v Heenan 1979 (2) SA 1019 (A)

Headermans (Vryburg) (Pty) Ltd v Ping Bai [1997] 2 All SA 371 (SCA); 1997 (3) SA 1004
(SCA)
Intercontinental Exports (Pty) Ltd v Fowles [1999] 2 All SA 304 (A); 1999 (2) SA 1045
(SCA)
Greathead v SA Commercial Catering & Allied Workers Union 2001 (3) SA 464 (SCA)
A contract which is invalid because of vagueness may, however, be rectified in order to

remove the vagueness if the underlying agreement did not suffer from the same defect. This
principle applies only if the contract is not required by statute to be in writing.
Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd [2002] 3 All SA 117 (A); 2002 (3)
SA 346 (SCA)
Non-variation clause: A non-variation clause is not a bar to a claim for rectification.
Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd 1980 (4) SA 271 (T)
[Page 300]
PRECEDENTS
Claim – for rectification of deed of sale
1. On [date] at [place], plaintiff (acting personally) and defendant (represented

by one [name]) entered into a written deed of sale in terms of which plaintiff purchased from
defendant the property known as plot 84 situate at [address] for the sum of [amount].
2. Plot 84 was pointed out by the aforesaid 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 so as to conform with the

common intention of the parties and has tendered against transfer into his name of plot 84 the
full purchase price and also 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.
WHEREFORE plaintiff, repeating his 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, VINDICATION
Replication
A replication in the high court or a reply in the magistrate’s court need be filed if necessary
only. It is necessary if:
(a) the plaintiff wishes to admit allegations contained in the plea; or
(b) the plaintiff wishes to confess and avoid allegations contained in the plea.
Typically, it is used by a plaintiff to raise estoppel.
Mann v Sidney Hunt Motors (Pty) Ltd 1958 (2) SA 102 (G)
A replication is not necessary if the plaintiff merely wishes to place in dispute the allegations
contained in the plea. The absence of a replication signifies a denial of all the allegations
contained in the plea.
A replication must:
(a) be consistent with the allegations contained in the particulars of claim;
(b) not set out a new cause of action;
(c) be in answer to, or a result of, the allegations contained in the plea.
If a plaintiff wishes to file a replication, it is not necessary to deal with all the allegations
made in the plea. However, unless there is a general joinder of issue in the replication, those
allegations that have not been traversed are deemed to have been admitted.
Uniform rule 25
Magistrates’ Courts rule 21.
[Page 301]
PRECEDENTS
Replication
1. Plaintiff admits paragraphs [specify] of defendant’s plea.
2. Plaintiff joins issue with defendant in respect of the other allegations

contained in the plea.
3. In the alternative to paragraph 2, and in the event of this honourable court’s
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].
Repudiation
Related subject: CONTRACT: BREACH
Onus: The repudiation or the anticipatory breach of a contract gives rise to a right to cancel
the contract. The party who asserts that the other party has repudiated the contract must allege
and prove the allegation.
Schlinkmann v Van der Walt 1947 (2) SA 900 (E) at 919
In order to rely on such repudiation, the innocent party must allege and prove:
(a) repudiation of a fundamental term of the contract – ie, conduct that exhibits
objectively a deliberate and unequivocal intention not to be bound any longer by the contract;
(b) an election to terminate, and
(c) communication of such election.
Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A)
Van Rooyen v Minister van Openbare Werke & Gemeenskapsbou 1978 (2) SA 835 (A)
Tuckers Land & Development Corp (Pty) Ltd v Hovis 1980 (1) SA 645 (A)
Culverwell v Brown 1990 (1) SA 7 (A)
Highveld 7 Properties (Pty) Ltd v Bailes [1999] 4 All SA 461 (A); 1999 (4) SA 1307 (A)
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd [2001] 1 All SA 581 (SCA); 2001
(2) SA 284 (SCA)
Relief: The following relief may be sought:
(a) restitution;
(b) damages, which will usually be assessed as at the agreed date for performance;
See : CONTRACT: DAMAGES
(c) specific performance of accrued rights.
Nash v Golden Dumps (Pty) Ltd 1985 (3) SA 1 (A)

PRECEDENTS
Claim – for damages and restitution
1. On [date] at [place], the parties entered into a written agreement, a copy of

which is attached hereto and marked “A”, in terms of which plaintiff sold [item] to defendant
for the sum of [amount].
[Page 302]
2. On [date], defendant informed plaintiff in writing that he was no longer

interested in purchasing the said [item]. A copy of the aforesaid 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

between the parties. The election was conveyed to defendant by letter dated [date].
5. As a result of defendant’s aforesaid repudiation, plaintiff suffered damages in

the sum of [amount] made up as follows:
[detail].
6. In terms of the agreement, plaintiff delivered to defendant three of the

aforesaid [items] and defendant paid the sum of [amount] in respect of the purchase price.
7. Because of the termination of the agreement, plaintiff is entitled to return of

the aforesaid [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 three [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
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 being demanded more than once.
African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) at 564
Wright v Westelike Provinsie Kelders Bpk [2001] 4 All SA 581 (C); 2001 (4) SA 1165 (C)
A related rule is that a party with a single cause of action is obliged to claim in one and the
same action whatever remedies the law accords upon that cause.
Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) at 472
Procedure: In spite of the fact that the defence was known at common law as an exceptio, it
cannot be raised by way of exception but must be raised in a plea or special plea. Unless the
facts on which the defence is based are admitted, the party raising the defence must lead
evidence to establish it.
Lowrey v Steedman 1914 AD 532
If the defence is not specifically pleaded, it is assumed that the defence was waived.
Blaikie-Johnstone v P Hollingsworth (Pty) Ltd 1974 (3) SA 392 (D) at 395
Onus: It is for the party who raises res iudicata to allege and prove all the elements
underlying the defence.
Hochfeld Commodities v Theron 2000 (1) SA 551 (O) at 566–567
Tradax Ocean Transportation SA v MV ‘Silvergate’ properly described as MV ‘Astyanax’

[1999] 3 All SA 175 (A); 1999 (4) SA 405 (SCA)
Final judgment: The judgment or order must be a final and definitive judgment or order on
the merits of the matter, and the judgment must be one of a competent court. For that reason,
an order given in interim interdict [Page 303] proceedings or an order that is subject to
variation or review because of changed circumstances cannot be relied on for this defence.
Le Roux v Le Roux 1967 (1) SA 446 (A) at 463
African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A)
CTP Ltd v Independent Newspapers Holdings Ltd 1999 (1) SA 452 (W)
An absolution order is not a final order.
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, however, apply to a
judgment in rem.
Le Roux v Le Roux 1967 (1) SA 446 (A)
Same thing on same ground: The cause of action in both cases must be the same, and the
same thing (relief) must have been claimed or may have been claimed in both cases.
Goldfields Laboratories (Pty) Ltd v Pomate Engineering (Pty) Ltd 1983 (3) SA 197 (W)
Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 551
Union Wine Ltd v E Snell & Co Ltd 1990 (2) SA 189 (C)
National Sorghum Breweries (Pty) Ltd t/a Vivo African Breweries v International Liquor
Distributors (Pty) Ltd [2001] 1 All SA 417 (SCA); 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) SA 548 (W)
Cf Jones v Krok 1995 (1) SA 677 (A)
Issue estoppel: A party to previous litigation is not only prevented from disputing the
correctness of a judgment in the sense that he or she may not again rely on the same cause of
action, but he or she is also prevented from disputing an issue decided by the previous court.
The rule is that, where the decision set up as res iudicata necessarily involved a judicial
determination of some question of law or issue of fact, in the sense that the decision could not
have been legitimately or rationally pronounced by the tribunal without, at the same time,
determining that question or issue in a particular way, such determination, though not
declared on the face of the recorded decision, is deemed to constitute an integral part of that
decision as effectively as if it had been made so in express terms.
Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) at 551–552
Horowitz v Brock 1988 (2) SA 160 (A)
Boland Bank Bpk v Steele 1994 (1) SA 259 (T)
Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A)
PRECEDENTS
Claim – 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 as a result of [detail] in [case number].
2. On [date], this honourable court in the said case dismissed plaintiff’s claim
with costs. A copy of the order is annexed hereto.
[Page 304]
3. Plaintiff’s present claim for payment of damages suffered as a result 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.
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.
Constitutionality: On the constitutionality of a restraint of trade, see:
Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain [1997] 4 All SA 650 (SE);
2001 (2) SA 853 (SE)
Coetzee v Comitis [2001] 1 All SA 538 (C); 2001 (1) SA 1254 (C)
Enforcement: A party wishing to enforce a restraint of trade agreement need only allege and
prove the agreement and its breach by the defendant. While the relief ordinarily sought is an
interdict, damages for breach of contract may also be claimed. There is a difference between
a restraint of trade agreement and an agreement regulating trade, although restricting it.
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)
Invalidity: A party wishing to be absolved from a restraint of trade agreement has to 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 (4) SA 874 (A) at 893
The factual basis for this allegation must be set out. A contract in restraint of trade must
protect some proprietary interest of the person who seeks to enforce it, before it will be
enforced. Such interest may take the form of trade secrets or confidential information or
goodwill or trade connections. This means that the restraint is enforceable unless the
defendant discharges the onus of proving that, at the time the enforcement is sought, the
restraint is directed solely to the restriction of fair competition with the covenantee, and that
the restraint is not, at that time, reasonably necessary for the legitimate protection of the
covenantee’s protectable proprietary interests, being goodwill or trade secrets.
Sibex Engineering Services (Pty) Ltd v Van Wyk 1991 (2) SA 482 (T)
In determining whether the agreement should be enforced, regard is had to the circumstances
then present and not to when the agreement was entered into.
The conflicting considerations are, on the one hand, that agreements ought to be honoured
and, on the other, 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.
Bonnet v Schofield 1989 (2) SA 156 (D)
Basson v Chilwan 1993 (3) SA 742 (A)
Townsend Productions (Pty) Ltd v Leech [2001] 2 All SA 255 (C); 2001 (4) SA 33 (C)
Bridgestone Firestone Maxiprest Ltd v Taylor [2003] 1 All SA 299 (N)
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 (3) SA 766 (A)
[Page 305]
If the restraint is too broad, it is for a plaintiff who wishes to enforce a lesser restraint to raise
divisibility as an issue, at least in the replication.
Sunshine Records (Pty) Ltd v Frohling 1990 (4) SA 782 (A) at 795–796
PRECEDENTS
Claim – for interdict
1. Plaintiff is an accountant carrying on his profession at [address].
2. On [date], plaintiff employed defendant as an articled clerk in terms of a

written agreement entered into between the parties personally. A copy of the agreement is
annexed hereto.
3. In terms of the agreement, defendant agreed not to carry on, within a period of
[number] years of ending his 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.
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 dated [date] entered into at [place], defendant

sold to plaintiff a general dealer’s business known as [name]. The parties acted personally. A
copy of the agreement is annexed hereto.
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, he would pay to plaintiff the sum of [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. As a consequence of such breach and in terms of the agreement, defendant is

indebted to plaintiff in a sum of [amount] as liquidated damages.
(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.
Retention
See : LIENS
[Page 306]
Roads
Related subjects: VIA NECESSITATE
VETUSTAS
Alternatives: In claiming a right of way over another’s property, consideration should be

given to the following possibilities:
(a) the enforcement of an existing registered servitude;
(b) the enforcement of an unregistered servitude to which the defendant is bound either
because the defendant is a party thereto or because of the doctrine of notice;
(c) vetustas;
(d) via necessitate; or
(e) public roads created in terms of the provisions of the respective provincial legislation.
De Beer v Coetzee 1956 (3) SA 263 (T)
Coetzee v De Beer 1959 (1) SA 690 (T)
Subdivision of land: If, upon the subdivision of a dominant tenement, the parties agree on a
route, the owner of the subdivided portion is entitled to the use of the servitude, as defined,
only and is not entitled to select an additional route over the servient tenement.
Smith v Mukheibir [2001] 3 All SA 141 (SCA); 2001 (3) SA 591 (SCA)
PRECEDENTS
Claim – declaring a road to be 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. The road does not traverse land proclaimed for the purpose of any law relating
to the mining for precious or base minerals or precious stones or land held by any person
under mining title.
6. On [date], defendant threatened to close the aforesaid road.
7. The location of the road is indicated on the annexed map.
An order declaring the road [location] to be a public road in terms of [state statutory
provision].
• Sale
• Sale of Land on Instalment
• Seduction
• Set-Off
• Setting Aside of Judgments
• Simulated Transactions
• Special Pleas
• Specific Performance • Spoliation
• State Liability
• Stated Cases
• Statutory Provisions
• Statutory Authority as a Defence to a Claim for Damages • Statutory
Duty or Authority: Breach
• Stockbrokers
• Suretyship
Sale
Related subjects: ALIENATION OF LAND
CONTRACT
LATENT DEFECTS
SALE OF LAND ON INSTALMENTS
WARRANTY AGAINST EVICTION
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;
[Page 307]
(b) on the thing purchased;
(c) on the price.
The general rules applicable to the pleading of contracts apply.
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 contract or
agree on some external, objective standard that makes it possible to determine the price
without further reference to them.
Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W)
If reliance is placed on a tacit term, it is normal to state that the agreement was that the price
would be the seller’s usual price.
Thing sold: The object sold must be identified or identifiable from the contract.
Clements v Simpson 1971 (3) SA 1 (A)
Kriel v Le Roux [2000] 2 All SA 65 (SCA)

Vermeulen v Goose Valley Investments (Pty) Ltd [2001] 3 All SA 350 (A); 2001 (3) SA 986
(SCA)
Claim for purchase price: A seller who claims for payment of the purchase price is claiming
for specific performance and must allege and prove:
(a) a valid contract of sale;
Horwitz v Hendricks 1928 AD 391
(b) that the purchase price is due and payable because:
(i) the goods have been delivered in conformity with the terms of the contract;
Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) at 537
(ii) of a tender, against payment, of delivery, in the particulars of 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 (4) SA 428 (T)
The seller’s claim is then for payment or payment against delivery, and, in the event of failure
to pay, for cancellation and damages.
Claim for delivery: A purchaser’s claim for delivery is also a claim for specific performance
and the purchaser must allege and prove:
(a) a valid contract of sale;
(b) that delivery is due because:
(i) the purchase price has been 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 : EXCEPTIO NON ADIMPLETI CONTRACTUS
The purchaser’s claim is for delivery or delivery against payment or, in the event of failure to
deliver, for cancellation and damages. Upon the breach of an obligation to deliver under a
contract of sale, the ordinary measure of damages is the excess over the contract price of the
goods sold of the price at which the purchaser could have replaced them in the relevant
market.
Desmond Isaacs Agencies (Pty) Ltd v Contemporary Displays 1971 (3) SA 286 (T)
[Page 308]
PRECEDENTS
Claim – for payment after delivery
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

which plaintiff sold to defendant two Kruger Rands at a selling price equal to the price quoted
by the [bank] for such Kruger Rands on [date], payable on delivery. A copy of the said
2. On [date], the [bank] quoted the selling price for Kruger Rands at [amount]
per coin.
3. In the premises, the purchase price of the two Kruger Rands is [amount].
4. Plaintiff tendered to deliver to defendant the two Kruger Rands against

payment of [amount] but defendant refused to accept delivery or to make payment.
WHEREFORE plaintiff, tendering as aforesaid, claims payment of [amount].
of which plaintiff purchased from 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 of Land on Instalment
Related subjects: ALIENATION OF LAND
CONTRACT
SALE
Statute: The sale of land on instalment is governed by the Alienation of Land Act 68 of
1981.
Scope of Act: The provisions of the Act apply to land used or intended to be used mainly for
residential purposes, thus excluding, inter alia, agricultural land.
Alienation of Land Act 68 of 1981 s 1 sv “land”
If, in any proceedings, it is alleged that land sold is used or intended to be used mainly for
residential purposes, it is presumed that the land is so used or is intended to be so used, 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.
[Page 309]
In addition, the contract must be drawn in the official language chosen by the purchaser
(section 5) and must contain a number of prescribed terms (section 6). In the event of non-
compliance with either section 5 or section 6, a court may, at the instance of the purchaser in
proceedings instituted within two years of the conclusion of the contract:
(a) declare the contract void ab initio;
(b) rectify the contract;
(c) reduce the rate of interest to a rate the court deems just and equitable; or
(d) grant alternative relief in its discretion.
Certain terms of a contract of the sale of land on instalment are of no force and effect – for
instance, terms prohibiting the purchaser from accelerating the discharge of the contract or
restricting the right to compensation for improvements.
Claim by a seller: A seller is, in the event of a breach of the contract on the part of the
purchaser, not entitled to enforce any provision of the contract for acceleration (or any other
penalty provision) in order to terminate the contract or to institute an action for damages,
unless the seller has notified the purchaser, by letter, of the breach concerned and demanded
of the purchaser that the breach be rectified, with which demand the purchaser has failed to
comply.

Thirty days’ notice must be given and the notice must contain a description of the alleged
breach of contract and an indication of the steps the seller intends to take if the breach is not
rectified.
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), provided that the land is registrable at that
time. 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 1981 s 11 read with ss 17 and 18; s 27
PRECEDENTS
Claim – setting aside contract
1. On [date] at [place], the parties entered into a written deed of sale in terms of
which defendant sold to the plaintiff the property known as [description] in the township of
[specify]. A copy of the deed of sale is attached hereto and marked “A”.
[Page 310]
2. In terms of Annexure “A”, the purchase price was payable in six equal
instalments, payable half-yearly, 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 of Act 68 of 1981, the contract had to contain, inter alia,
[detail].
5. Annexure “A” does not contain the said particulars and, therefore, does not
substantially comply with the provisions of section 6 of Act 68 of 1981.
6. Plaintiff has paid to defendant the sum of [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 said amount at [percentage] per annum.
Claim – for cancellation
1. On [date] at [place], the parties entered into a written contract of sale in terms
of which plaintiff sold to defendant his property situated at [location] within the jurisdiction
of this honourable court. A copy of the deed of sale is attached hereto and marked “A”.
2. In terms of Annexure “A”, defendant was obliged to pay to the plaintiff the
following instalments, namely [detail].
3. Plaintiff 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 him of his breach together with a demand that he rectify his breach by effecting
payment of the said instalment within 30 days of the [date] [being the date on which the
notice was sent]. A copy of the notice is attached hereto and marked “B”.
5. In terms of Annexure “B”, plaintiff stated that he 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.
(a) An order declaring that the contract of sale between the parties has been cancelled
properly.
(b) An order evicting defendant from plaintiff’s property situate at [location].
Seduction
Jurisdiction: The jurisdiction of the court is determined according to the principles applicable

to claims in delict.
Cause of action: The action for seduction is not founded on iniuria since consent is present
and, where there is consent, there can be no iniuria. The principle of volenti non fit iniuria is
also not applicable to this sui generis action.
Card v Sparg 1984 (4) SA 667 (E)
Virginity of plaintiff: The plaintiff must allege that, on the occasion of the sexual
intercourse, she was a spinster. An allegation that she was, at that time, unmarried, will not
suffice, because it does not imply that she was a spinster.
Claassen v Van der Watt 1969 (3) SA 68 (T)
[Page 311]
A spinster at the time of intercourse is presumed to have been a virgin. It is, therefore, not
necessary for the plaintiff to allege that she was a virgin. The onus rests on the defendant to
disprove her virginity.
Sager v Bezuidenhout 1980 (3) SA 1005 (O)
If the defendant relies, in support of his allegation that the plaintiff was not a virgin, on an
earlier act of intercourse, he should give particulars thereof.
Sexual intercourse: The plaintiff must allege and prove sexual intercourse. Corroboration is
not required.
Mayer v Williams 1981 (3) SA 348 (A)
Seduction: The plaintiff must allege that the defendant seduced her. By “seduction” is meant
the “leading astray of a woman from the path of virtue” and not the means, deceitful or
otherwise, by which it was achieved.
Once sexual intercourse is admitted or proved, it is presumed, unless the contrary is

established, that she “fell as a result of the man’s seductive efforts”.
The action will fail if the defendant proves that the plaintiff, although a virgin, was in fact the
seducer of the defendant.
Van der Merwe v Nel 1929 TPD at 551
If the sexual intercourse followed a customary union or a marriage by religious rites, the
plaintiff will be non-suited, unless it was falsely represented to her that the religious
ceremony constituted a valid marriage or that there was a promise to enter into a legally
binding marriage.
Pillai v Pillai 1963 (4) SA 838 (A)
Damages: The plaintiff is entitled to damages for her loss of virginity and for the impairment
of her marriage prospects.
Bensimon v Barton 1919 AD 13
Davel v Swanepoel 1954 (1) SA 383 (A) at 389

A seduced woman is presumed to have suffered damages as a result of her defloration. The
amount of such damages depends on the circumstances of the case.
Lourens v Van Biljon 1967 (1) SA 703 (T)
Her subsequent marriage may have a limited effect upon the quantum.
Davel v Swanepoel 1954 (1) SA 383 (A) at 389
Result of the seduction: If the plaintiff fell pregnant, she may claim, in addition to her
general damages, the lying-in expenses incurred in connection with the pregnancy, birth and
care of the child. She may also claim maintenance for herself for a period of confinement
before and after the birth of the child, the maintenance being for the benefit of the child. She
has no claim for her loss of earnings during this period.
Lourens v Van Biljon 1967 (1) SA 703 (T)
Card v Sparg 1984 (4) SA 667 (E)
[Page 312]
PRECEDENTS
1. Plaintiff is [name], a major spinster of [address].
2. On [date] at [place], defendant seduced and had sexual intercourse with

plaintiff.
3. As a result of the said intercourse, the plaintiff became pregnant and, on

[date], gave birth to a child, [name].
4. As a consequence of the seduction, plaintiff suffered damages in an amount of

[amount].
5. In giving birth to the child, plaintiff incurred lying-in, medical and nursing
expenses, and required maintenance during her confinement calculated as follows:
(a) lying-in expenses [amount];
(b) medical and nursing expenses [amount];
(c) maintenance for the period of confinement from [date] to [date] [amount].
Set-off
Related subjects: COUNTERCLAIMS
PAYMENT
Set-off: Set-off comes into operation when two parties are mutually indebted to each other
and both debts are liquidated and fully due. The one debt extinguishes the other pro tanto as
effectually as if payment had been made and can be regarded as a payment brevi manu.
Joint Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund 1969 (2) SA 78
(T)
Cf ABSA Bank Ltd v Standard Bank of SA Ltd [1997] 4 All SA 673 (A); 1998 (1) SA 242
(SCA)
Set-off operates ipso facto and not only after or as a result of the plea of set-off.
Great North Farms (Edms) Bpk v Ras 1972 (4) SA 7 (T)
Should the creditor claim payment, the defendant must plead and prove set-off in the same
way as a defence of payment. But, once set-off is established, the claim is regarded as
extinguished from the moment the mutuality of the debts existed.
Schierhout v Union Government (Minister of Justice) 1926 AD 286 at 290
Mahomed v Nagdee 1952 (1) SA 410 (A)
AAA Brick Co (Pty) Ltd v Coetzee [1996] 1 All SA 23 (B); 1996 (3) SA 578 (B)
Liquidated debts: Only a liquidated debt can be set-off. A defendant wishing 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 the judgment on the claim in reconvention.
See : COUNTERCLAIMS
Essentials: A party wishing to rely on set-off must allege and prove the following:
(a) the indebtedness of the plaintiff to the defendant;
(b) that the defendant’s debt is also due and legally payable;
Mahomed v Nagdee 1952 (1) SA 410 (A)
[Page 313]
(c) that both debts are liquidated debts. A debt is liquidated if:
(i) it is liquid in the sense that it is based on a liquid document;
(ii) it is admitted;
(iii) its money value has been ascertained; or
(iv) it is capable of prompt ascertainment;

Treasurer-General v Van Vuren 1905 TS at 582
Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 (C)
Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T)
Adjust Investments (Pty) Ltd v Wiid 1968 (3) SA 29 (O)
(d) that the reciprocal debt was owed by the plaintiff to the defendant.
Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA 598 (C)
An exception to this rule is that a surety or a co-principal debtor may, against the
creditor, rely on the defence that the debt of the principal debtor has been discharged by set-
off.
Miller v Muller 1965 (4) SA 458 (C)
Standard Bank of SA Ltd v SA Fire Equipment (Pty) Ltd 1984 (2) SA 693 (C)
Motani Lounge (Pty) Ltd v Standard Bank of SA Ltd 1995 (2) SA 498 (W)
PRECEDENTS
Claim – of set-off
1. Defendant admits that he was indebted to plaintiff in the amount claimed and
on the grounds stated.
2. Defendant pleads, however, that his indebtedness towards plaintiff was

extinguished by set-off by virtue of the following facts:
(a) on [date] at [place], defendant sold, in terms of an oral agreement, a table to

plaintiff in the sum of [amount];
(b) defendant duly delivered the said table on [date] at [place];
(c) plaintiff has not paid the purchase price which was, at all relevant times, fully
due and legally payable to defendant.
Setting Aside of Judgments
See : JUDGMENTS: SETTING ASIDE
Simulated Transactions
INSOLVENCY
Definition: A simulated transaction is, in essence, a dishonest transaction, in that the parties
to the transaction do not intend it to have amongst them the legal effect it purports to convey.
The purpose of the disguise is to deceive by concealing the real transaction.
Skjelbreds Rederi AS v Hartless (Pty) Ltd 1982 (2) SA 710 (A) at 733
Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A) at 611
[Page 314]
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)
Onus: Proof of a transaction is prima facie evidence that the transaction was not simulated. If
a party alleges that a transaction is simulated, that party must allege simulation and rebut the
prima facie inference. However, the ultimate onus rests on the party alleging the contract’s
non-simulated nature to prove the parties’ real intention and that the transaction is not
simulated. In the end, the court must be satisfied that there is a real intention, definitely
ascertainable, which differs from the simulated transaction.
Zandberg v Van Zyl 1910 AD 302 at 314
Cf EBN Trading (Pty) Ltd v Commissioner for Customs and Excise [2001] 3 All SA 117 (A);
2001 (2) SA 1210 (SCA)
PRECEDENTS
Claim – 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 the parties’ intention to enter into an agreement of
pledge.
3. Defendant alleges that he borrowed the sum of [amount] from plaintiff on

[date] at [place] and, since he was unable to repay plaintiff and in order to protect from
defendant’s other creditors the article allegedly sold, the purported sale 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
Definition: A special plea is one which, apart from the merits, raises some special defence
which is not apparent from the declaration and which either destroys or postpones the
operation of the cause of action.
Brown v Vlok 1925 AD 56
Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) at 760
If the defence is apparent from the declaration, it should be raised by way of exception. A
special plea may be in the nature of a plea in abatement or a dilatory plea, but its nature need
not be stated in either the heading of the plea or in its body.
Van der Westhuizen v Smit NO 1954 (3) SA 427 (SWA) at 430
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)
Magistrates’ courts: Rule 19(4) of the Magistrates’ Courts Rules requires that a defendant
admit, deny, or confess and avoid all the material facts alleged in the particulars of claim and
that he or she state clearly and concisely the nature of her or his defence and all the material
facts on which it is based. No separate provision is made for special pleas. A special plea
must, therefore, [Page 315] form part of the plea. It may be contained in a separate document
on a separate page and it may be entitled “Special Plea” but the defendant must plead to the
whole case.
Pretorius v Fourie NO 1962 (2) SA 280 (O)
Du Plessis v Doubells Transport (Edms) Bpk 1979 (1) SA 1046 (O)
Any party may then set the special plea down for a separate hearing but is not obliged to do
so.
High Court: Uniform rule 22(2) requires that a defendant admit or deny, or confess and
avoid all the material facts alleged in the combined summons or the declaration, or state
which of the facts are not admitted, and to what extent, and that he or she state clearly and
concisely all material facts on which he or she relies. It would, therefore, seem that a
defendant must plead to the merits when filing a special plea and that a defendant cannot
plead specially and, if that plea is unsuccessful, at a later stage plead to the merits.
David Beckett Construction (Pty) Ltd v Bristow 1987 (3) SA 275 (W)
This may cause difficulties in relation to pleading lis pendens, res iudicata and an arbitration
agreement. It is suggested that it is impractical to apply the rule literally.
Meyerson v Health Beverages (Pty) Ltd 1989 (4) SA 667 (C)
Cf Levy v Levy 1991 (3) SA 614 (A)
As a matter of practice, special pleas are normally embodied in a document separate from the
plea, but there is no objection to pleading the special defence in the course of the plea.
Relief: Absolution from the instance cannot be granted on a special plea. If unsuccessful, it is
dismissed; if successful, the action is either dismissed or stayed, depending on the nature of
the special plea.
Peacock v Marley 1934 AD 1
For an unusual order, see Comcorp (Pty) Ltd v Quipmor CC 1998 (2) SA 599 (D)
Precedents for special pleas are to be found under the relevant headings – for example,
ARBITRATION and LIS PENDENS.
Specific Performance
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) the rendering of an account in respect of which the claim does not exceed R100 000;
(b) the delivery or transfer of property, whether movable or immovable, not exceeding
R100 000 in value; and
(c) the delivery or transfer of property, whether movable or immovable, exceeding

R100 000 in value where the consent of the parties has been obtained.
[Page 316]
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.
Magistrates’ Courts Act 32 of 1944 s 46(2)(c)
Weepner v Kriel 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:
(a) allege and prove the terms of the contract;
(b) allege and prove compliance with any antecedent or reciprocal obligations or must
tender to perform them;
SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle 1955 (3) SA
541 (D)
RM Van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C)
(c) allege non-performance by the defendant;
(d) claim specific performance.
Discretion: Although a court will, as far as possible, give effect to a plaintiff’s choice to

claim specific performance, it has the discretion in a fitting case to refuse such relief and to
leave it to the plaintiff to claim damages. This discretion must be exercised judicially and is
not circumscribed by rules. Each case must be judged in the light of its own circumstances.
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 1951 (2) SA 371 (A)
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)
National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T)
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 697 (C)
It is for the defendant to allege and prove facts on which the court can and must exercise its
discretion in her or his favour.
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A)
Alternative relief: The plaintiff may (sometimes), in the alternative, claim the objective value
of the defendant’s performance in lieu of specific performance.
Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D)
The plaintiff may claim in the alternative:
(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.
The plaintiff is not obliged to follow this course and may institute a separate action once the
defendant does not comply with the court order.
Specific performance as an alternative: A plaintiff who has cancelled a contract but who is
uncertain as to 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)
[Page 317]
Election: An election by the plaintiff not to cancel or 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 : WAIVERS
PRECEDENTS
Claim – for specific performance

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 hereto and marked
“A”.
2. Plaintiff has duly 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.
Spoliation
General: Relief by way of the mandament van spolie is seldom claimed in action

proceedings, because of the urgency of these matter. A spoliation order is a final order and, if
the factual dispute may be such that it cannot be resolved in application proceedings, action
proceedings, depending on the circumstances, may be indicated.
Reck v Mills 1990 (1) SA 751 (A)
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 Act. In the case
of possession of immovables, it is not the market value that determines whether the matter
falls within the jurisdiction of the court but the value of the possession. In the case of
movables, the yardstick is the market value of the thing.
Magistrates’ Courts Act 32 of 1944 s 30(1)
Possession: The plaintiff must allege and prove that he or she was in peaceful and
undisturbed possession of the property.
Kgosana v Otto 1991 (2) SA 113 (W)

Possession 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 whether the defendant has a stronger right or claim to
possession. Actual physical possession, and not the right to possession, is protected.
Yeko v Qana 1973 (4) SA 735 (A)
Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director, Dept of Education & Culture
Services 1996 (4) SA 231 (C)
[Page 318]
Dispossession: The plaintiff must allege and prove an unlawful deprivation of possession by

the defendant. “Unlawful” in this context means a dispossession without the plaintiff’s
consent or without due legal process.
Sillo v Naude 1929 AD 21
Ntai v Vereeniging Town Council 1953 (4) SA 579 (A)
George Municipality v Vena 1989 (2) SA 263 (A)
Defences: In view of the fact that the merits of the plaintiff’s possession and the defendant’s
right to possession are not justiciable in proceedings for a mandament van spolie, there are no
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 (2) SA 388 (B)
The only exception, subject to the Constitution, is that of a statutory right to dispossess, in
which event the person who invokes the defence must establish that dispossession occurred
strictly within the limits of the statute.
Minister of Finance v Ramos 1998 (4) SA 1096 (C)
Counter-spoliation: 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)
Where the property is destroyed, a mandament van spolie is not an appropriate remedy.
Rikhotso v Northcliff Ceramics (Pty) Ltd [1996] 4 All SA 524 (W); 1997 (1) SA 526 (W)
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 his possession by placing

chains and locks on the gates leading to the said farm.
WHEREFORE 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 subject: CITATIONS
PRESCRIPTION
VICARIOUS LIABILITY
Contractual liability: Any claim which arises out of a contract lawfully entered into on behalf
of the State can be adjudicated by any competent court.
Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA
184 (Tk)
[Page 319]
Government of the Province of the Eastern Cape v Frontier Safaris (Pty) Ltd [1997] 4 All SA
500 (A); 1998 (2) SA 19 (SCA)
Kilian v Gauteng Provincial Legislature [1999] 1 All SA 84 (T)
59 (SCA)
Delictual liability: Any competent court can also adjudicate a claim arising out of any wrong
committed by any servant of the State acting in her or his capacity and in the scope of her or
his authority.
Aid 1989 (2) SA 63 (A)
Although there is a distinction between a servant acting within the scope of her or his
authority and a servant acting within the scope of her or his employment, both phrases have
come to be treated as being synonymous for the purposes of determing the liability of the
State.
Mhlongo NO v Minister of Police 1978 (2) SA 551 (A) at 567
Citation: In any proceedings instituted against the State or a provincial government, the
minister or the member of the executive council responsible for the department concerned
should be cited as nominal defendant or respondent.
Jayiya v MEC for Welfare, EC Government [2003] 2 All SA 223 (SCA) para 5
It is permissible to cite the Government of the Republic of South Africa as a party, and the
President may be cited in respect of acts done by her or him in her or his official capacity,
unless the act is one done pursuant to the advice of the cabinet. In this latter case, the
responsible minister must be cited.
See : CITATIONS
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002: This Act
regulates the prescription and harmonises the periods of prescription of debts for which
organs of state are liable and makes provision 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.
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; 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 2002 s 1(1)
Retrospectivity: The Act does not apply to any debt which was extinguished by prescription
before the Act’s date of commencement (28 November 2002). Any proceedings relating to a
debt which was not extinguished by prescription before that date and in respect of which any
legal proceedings were instituted before the Act’s commencement, must be continued and
concluded as if the Act had not been passed.
[Page 320]
Period of prescription: Chapter III of the Prescription Act applies to these debts. This means
that there is no distinction between these debts and other debts with regard to when
prescription begins to run, the period of prescription, delay in completion and interruption of
prescription.
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s 2
See : PRESCRIPTION
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 in question
written notice of the intention to institute the legal proceedings in question.
Such 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) such particulars of such debt as are within the knowledge of the creditor.
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 giving rise to the debt. However, a creditor must
be regarded as having acquired such knowledge as soon as that knowledge could have been
acquired by 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 2002 s 3(3)(a)
Condonation: If an organ of state relies on a creditor’s failure to serve the required notice,
the creditor may apply to a court having jurisdiction for condonation of such failure. 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 such notice; and
(c) the organ of state is not unreasonably prejudiced by the failure.
PRECEDENTS
Claim – absence 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 particulars of
claim, of the facts on which defendant’s alleged liability arose and of the particulars thereof
within six months of its occurrence.
[Page 321]
2. Plaintiff has failed to serve any such written notice and, in the premises, no
action can be founded by plaintiff based on the alleged negligence of the defendant.
WHEREFORE defendant prays that plaintiff’s claims be dismissed with costs.
Stated Cases
The 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 the adjudication of the court. The statement
must set forth:
(a) the facts agreed upon,
(b) the questions of law in dispute between the parties; and
(c) the parties’ contentions regarding those questions.
This statement must be divided into consecutively numbered paragraphs, and copies of all
documents necessary to enable the court to decide the questions must be annexed to it.
This rule does not have the effect of changing or disposing of the incidence of proof. The
court may draw inferences from these facts and documents and 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.
Uniform rule 33
PRECEDENTS
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:
(a) on 13 June 1977, whilst so detained, plaintiff was assaulted by members of the
South African Police;
(b) on 27 October 1977, whilst still thus detained, plaintiff was again assaulted by
members of the South African Police;
(c) at all material times referred to, the said members of the South African Police
were employed by defendant and were acting within the course and scope of their
employment;
(d) he suffered injuries as a result of the alleged assault and consequently suffered
damages as a result of such 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. A copy of which is annexed hereto,
marked “A”.
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.
[Page 322]
9. To defendant’s said special plea, plaintiff replied inter alia by averring the
following:
(a) 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 that plaintiff was
held in detention in terms of the said section until 28 July 1978;
(b) by reason of his detention, plaintiff was unable to obtain legal advice or to
institute the action whilst so detained;
(c) accordingly plaintiff was prevented by superior force, namely the fact of his
detention or, alternatively, the provisions of a law, namely the said section 6 of Act 83 of
1967, 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) SA 619 (A). The statutes referred to
have been repealed.]
Statutory Provisions
If a party wishes to rely on a statutory provision as part of a cause of action or defence, that
party must plead the provision relied upon.
Yannakou v Apollo Club 1974 (1) SA 614 (A)
Bekker v Oos-Vrystaat Kaap Koöperasie Bpk [2000] 3 All SA 301 (A)
However, it is not necessary in a pleading, even where the pleader relies on a particular
statute or section of a statute, to refer in terms to that statute or section, provided that the case
is formulated clearly. Put differently, it is sufficient if the facts from which the conclusion
can be drawn are pleaded that the provisions of the statute apply.
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A); 1997 (1) SA
710 (A)
A party relying in the relevant pleading on one statutory provision may not, without
amendment, thereafter rely on another provision.
Terblanche NO v Baxtrans CC 1998 (3) SA 912 (C)
Statutory Authority as a Defence to a Claim for Damages
LEX AQUILIA
NEGLIGENCE
General: An act which, although harmful to another person, is authorised by a statute is

justified and, consequently, lawful.
Union Government v Sykes 1913 AD 156 at 169
Where a statute interferes with common-law rights, loss resulting from such interference will
be compensated only if it can be proved that the act authorised by the legislature was
performed negligently, the implication being that reasonably practicable precautions should
be taken to minimise the extent of the interference.
Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163
Rhodes Fruit Farms Ltd v Cape Town City Council 1968 (3) SA 514 (C) at 518
Aid 1989 (2) SA 63 (A)
[Page 323]
Where a statutory exemption is pleaded, the particular section relied on need not be specified,
provided the case is formulated clearly.
Ketteringham v City of Cape Town 1934 AD 80 at 90
Botha v Guardian Assurance Co Ltd 1949 (2) SA 223 (G) at 227
See : STATUTORY PROVISIONS
Onus: The defendant bears the onus of pleading and proving that interference was impossible
to avoid and was the inevitable result of the defendant’s exercising of its statutory powers,
and, hence, that the interference was justified.
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.
Unreasonable conduct may be of two kinds, namely a 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 kinds of conduct and it is
debatable whether the second is not part and parcel of the first.
Moller v SA Railways and Harbours 1969 (3) SA 374 (N)
Diepsloot Residents’ and Landowners’ Association v Administrator Transvaal 1994 (3) SA

336 (A) at 345–347
Knop v Johannesburg City Council 1995 (2) SA 1 (A) at 24–27
Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd [1997] 1 All SA
455 (A); 1997 (1) SA 157 (A) at 164–166
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 said land.
3. Defendant pleads that it was inevitable and unavoidable in the building of the
road that the waste material referred to above should land on plaintiff’s farm.
4. In the premises, defendant denies that the spillage of waste material as

aforesaid was unlawful.
Replication – relying on authority 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, namely: [detail]
WHEREFORE the plaintiff persists in his claim.
Statutory Duty or Authority: Breach
General: Breach of a statutory duty may, depending on the circumstances and the

interpretation of the relevant statute:
(a) provide evidence of negligence in an action based on negligence;
(b) create a right of action for damages irrespective of negligence;
[Page 324]
(c) create a right of action for damages resulting from negligent conduct; or
(d) be the element of wrongfulness necessary to found an actio legis Aquiliae.
Callinicos v Burman 1963 (1) SA 489 (A)
Da Silva v Coutinho 1971 (3) SA 123 (A)
Simon’s Town Municipality v Dews 1993 (1) SA 191 (A) at 196
Under the present heading, we are concerned with (b) and (c). 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.
A distinction must be drawn between a mere breach of a statutory duty and a negligent breach
of such duty. The former can occur without negligence – as, for instance, when, before
acting, the person charged with the breach of duty took the best available advice. An
averment in a pleading that the defendant breached a stated statutory duty “wrongfully,
unlawfully and negligently” is, in the absence of any other indication in the pleading, not the
best method of indicating that reliance is being placed on negligence as distinct from the
mere breach itself of the stated statutory authority.
Callinicos v Burman 1963 (1) SA 489 (A)
Essentials: A party who relies 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 relied upon; and
(e) the breach is causally linked to the damage.
Da Silva v Coutinho 1971 (3) SA 123 (A) at 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 2001 (3) SA 1247 (SCA)
Items (a) and (b) are legal issues which depend on the interpretation of the statute involved.
Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718
Patz v Greene & Co 1907 TS 427
Concerning pleading a breach of a duty of care, see Knop v Johannesburg City Council 1995
(2) SA 1 (A) at 24–28
Negligence (fault): As indicated, negligence may or may not, depending on the terms of the
statute, be an essential element of the claim. 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. It is not necessary to foresee the loss.
Causation: The breach need not be the sole cause of the damage, provided it contributes
materially thereto.
PRECEDENTS
Claim – based on breach of a statutory duty
1. Defendant is the trustee of the insolvent estate of [name].
[Page 325]
2. The said insolvent was, at all material times, indebted to plaintiff in the sum of
[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 in the sum of [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 of Insolvency Act 24 of 1936.
7. In spite of the foregoing, defendant wrongfully, negligently and in breach of

his legal duty neglected and failed to apply the proceeds for the payment of plaintiff’s claim
but treated plaintiff’s claim as a concurrent claim and tendered her an amount of only
[amount] in respect of her preferent claim.
8. Defendant filed a final account in the estate which was confirmed on [date].
Thereafter, defendant distributed the difference to creditors, leaving only the sum of [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) SA 489 (A).]
[For a further precedent, see Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA
283 (A).]
Stockbrokers
Related subject: AGENCY
General: A stockbroker is any natural person who is a member, or who is an officer or

employee of a member, and who is authorised and qualified under the rules of the stock
exchange concerned to be a stockbroker. A member is any person who is qualified in terms of
those rules to carry on the business of buying and selling listed securities and who has been
admitted as a member of a stock exchange. The Stock Exchanges Control Act 1 of 1985
restricts the power to carry on the business of a stock exchange and to carry on the business
of buying and selling listed securities.
Stock Exchanges Control Act 1 of 1985 s 1 and s 3(1)
See, generally, Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A);
1997 (1) SA 710 (A)
(There are exceptions to this generalisation but they are not important for present purposes.)
Purchase of shares: The mandate of a stockbroking member who is instructed to purchase
shares on behalf of a client requires that member to buy such shares at the market price at the
time the order is to be executed and, thereafter, to register the shares in the client’s name.
Jeffery v Pollak & Freemantle 1938 AD 1
[Page 326]
The member does not act as the agent of the client since no contract is effected between the
buyer or seller of the shares and the client. By purchasing the shares in terms of a mandate,
the member will, on receipt of those shares, become their owner and is not under any
obligation to deliver to the client the identical scrip received from the seller but only an
equivalent scrip. The shares become the client’s property when the member allocates them to
the client by clearly identifying the scrip in the name of the client and by keeping the scrip
apart from all other scrips.
R v Klisser & Rosenberg 1949 (3) SA 807 (W) at 817
S v McPherson 1972 (2) SA 348 (E) at 363
Claim for payment: A member must allege and prove:
(a) that he or she is permitted to deal with scrips;
Mathews v Rabinowitz 1948 (2) SA 876 (W)
(b) the terms of the mandate;
(c) performance of the mandate.
Subject to exceptions, a statutory duty rests on the client to pay the purchase price of the
securities in cash against an offer of delivery of the securities, or within seven business days,
whichever is the shorter period.
Stock Exchanges Control Act 1 of 1985 s 22
If the client fails to pay within the prescribed period, the broker must sell:
(a) the securities for the account of the purchaser; and
(b) for the purchaser’s account so much of any other securities held by or to be delivered
to the stockbroker in respect of any transaction in connection with securities previously
entered into on behalf of the purchaser as may be necessary to realise an amount equal to the
amount still owing after the sale of the relevant securities in respect of the securities
purchased on behalf of the purchaser.
Sale of securities: The seller of securities is obliged to deliver them to the member within
seven days of the sale. Should the seller fail to do so, the stockbroker is obliged to buy the
securities for the account of the seller.
Repudiation of purchase: A purchaser of securities may repudiate the transaction if the

stockbroker fails to deliver the securities, provided that a written demand for delivery within
14 business days is made of the stockbroker.
PRECEDENTS
Claim – pursuant to a purchase of shares
1. Plaintiff is a member of the Johannesburg Stock Exchange.
2. On [date], the defendant instructed the plaintiff to purchase at the ruling price,
on his behalf, the following shares, namely: [detail].
3. On [date], plaintiff, acting in accordance with his instructions, purchased the

following shares on defendant’s behalf at the prices appearing alongside each share, being the
ruling price for that share on that day, namely:
Share [detail] Price [detail].
[Page 327]
4. On [date], plaintiff duly informed the defendant of the purchase of the shares
and offered delivery thereof to the defendant.
5. In the premises, defendant became obliged in terms of section 22(1) of Act 1

of 1985 to pay for the shares on or before [date] and he has failed to do so.
6. In terms of section 22(2), plaintiff sold the said shares at the market price
reigning on [date] and obtained the following prices namely:
Share [detail] Price [detail].
7. In the premises, the plaintiff received [amount] less for the shares than he had
paid for them and has suffered damages in that amount.
Suretyship
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:
(a) A valid contract of suretyship.
Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) at 291
This involves compliance with the provisions of the General Law Amendment Act 50
of 1956 – namely, that the terms of the contract are embodied in a written document signed
by or on behalf of the surety. The document must set out at least the identity of the creditor,
those of 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) SA 1 (A)
Du Toit v Barclays Nasionale Bank Bpk 1985 (1) SA 563 (A)
The terms of the deed of suretyship may be supplemented by means of the

incorporation of another document, thereby complying with the statutory requirement.
Industrial Development Corporation of SA (Pty) Ltd v Silver [2002] 4 All SA 316 (SCA);
2003 (1) SA 365 (SCA)
The agreement may be rectified if otherwise valid prima facie.
Intercontinental Exports (Pty) Ltd v Fowles [1999] 2 All SA 304 (A); 1999 (2) SA 1045
(SCA)
See : RECTIFICATION
(b) That the causa debiti is one in respect of which the defendant undertook liability. If
the surety renounced the exceptio non causa debiti, the onus of proving the non-existence of a
causa rests on the defendant, but the plaintiff must still allege the causa.
Dowson & Dobson Industrial Ltd v Van der Werf 1981 (4) SA 417 (C) at 431
The surety’s liability cannot exceed that of the principal debtor.
MAN Truck & Bus (SA) (Pty) Ltd v Singh (2) 1976 (4) SA 266 (N)
(c) The indebtedness of the principal debtor – that is, the amount and that it is due.
Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A)
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO 2002 (3) SA 752 (SCA)
Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C)
[Page 328]
A surety’s liability arises from the time the principal debtor is in default, provided an
enforceable claim is proved; and the debt of a surety, who is also a co-principal debtor,
becomes enforceable at the same time as the principal debt.
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 the principal debtor is not binding against the
surety. The creditor is not obliged to tender cession of action and security against payment of
the debt by the surety, although the creditor must effect such cession if so requested by the
surety.
Kroon v Enschede 1909 TS 374
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 (ie, must arise upon the obligation) and not one in personam (some personal privilege
granted to the debtor).
Ideal Finance Corp v Coetzer 1970 (3) SA 1 (A)
Muller v Botswana Development [2002] 3 All SA 663 (SCA); 2003 (1) SA 651 (SCA)
A typical example of a defence in rem is the extinction of the principal debt by prescription.
Jans v Nedcor Bank Ltd [2003] 2 All SA 11 (SCA)
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.
Defences relating to the deed of suretyship:
(a) Non-compliance with formalities: If the surety pleads non-compliance with the
statutory provisions relating to formalities, the question is one of law, if non-compliance
appears ex facie the document. Even if the alleged non-compliance does not appear ex facie
the document, the onus will still be on the creditor to prove proper compliance.
Stewart & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd 1981 (1)
SA 305 (W)
A typical example is where the document signed by the surety and accepted by the
creditor was incomplete when delivered, having blank portions relating to essential terms.
Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A)
Pizani v First Consolidated Holdings (Pty) Ltd 1979 (1) SA 69 (A)
Jurgens v Volkskas Bank Ltd 1993 (1) SA 214 (A)
(b) Joint suretyship intended: Where a joint suretyship was intended, the contract does
not come into being until all the proposed sureties have signed the document.
Nelson v Hodgetts Timbers (East London) (Pty) Ltd 1973 (3) SA 37 (A)
Industrial Development Corp of SA Ltd v See Bee Holdings (Pty) Ltd 1978 (4) SA 136 (C)
The intention has to be deduced from the terms of the document signed by the
defendant.
(c) Termination: Unless prohibited by the terms of the agreement, the surety may, by due
notice, terminate her or his liability in respect of future transactions.
Kalil v Standard Bank of SA Ltd 1967 (4) SA 550 (A)
Morgan v Brittan Boustred Ltd 1992 (2) SA 775 (A)
Tsaperas v Boland Bank Ltd [1996] 4 All SA 312 (A); 1996 (1) SA 719 (A)
The onus is on the defendant to prove termination.
[Page 329]
(d) Variation of the suretyship: The defendant may rely on a written variation of the deed
of suretyship duly signed and accepted by the creditor.
Oceanair (Natal) (Pty) Ltd v Sher 1980 (1) SA 317 (D)
Ferreira v SAPDC (Trading) Ltd 1983 (1) SA 235 (A)
The deed may be cancelled orally, but not so varied.
Visser v Theodore Sassen & Son (Pty) Ltd 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 must be specifically pleaded and is not available if
renounced. Someone who signs as surety and co-principal debtor renounces these benefits.
Gerber v Wolson 1955 (1) SA 158 (A)
Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A)
(f) Release: If the creditor acts in conflict with the agreement to the prejudice of the
surety, the surety may be released.
ABSA Bank Ltd v Davidson [2000] 1 All SA 355 (SCA); 2000 (1) SA 1117 (SCA)
Duburoro Investments (Pty) Ltd v Bock [2002] 3 All SA 571 (W)
It is for the surety to allege and prove this defence.
Claim by surety against principal debtor: A surety who discharged the main debt in full has a
claim against the principal debtor. The claim may be based on alternative bases:
(a) 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. He or she may then proceed against the
debtor on the ceded action, in which event he or she will have to allege and prove the cession
and the creditor’s case against the debtor. The right to cession is a benefit which the surety
may claim against the creditor. It is a dilatory plea requiring the creditor to effect this cession
pari passu with payment in full of the principal debt.
African Guarantee & Indemnity Co Ltd v Thorpe 1933 AD at 330
Barlows Tractor Co (Pty) Ltd v Townsend [1996] 2 All SA 105 (A); 1996 (2) SA 869 (A)
(b) A right of recourse: The surety has a right of recourse against the principal debtor,
regardless of whether the suretyship was entered into at the behest of the debtor.
Rossouw & Rossouw v Hodgson 1925 AD 97
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 one based on a contract of mandate,
either express or implied. The plaintiff must then allege the contract and the defendant’s
liability thereunder. If he or she stood surety without the defendant’s consent, the principal
debtor’s liability will be on the basis of negotiorum gestio. These two causes of action can be
claimed in the alternative.
Turkstra v Massyn 1959 (1) SA 40 (T)
See : NEGOTIORUM GESTIO
The surety must first discharge the debt in toto before proceeding against the principal debtor.
Proksch v Die Meester 1969 (4) SA 567 (A)
ABSA Bank Ltd v Scharrighuisen [2000] 1 All SA 318 (C); 2000 (2) SA 998 (C)
[Page 330]
Claim by surety against co-surety: The surety who has paid the principal debt in full has a
claim against the co-sureties for their share of the debt. It does not matter whether the sureties
bound themselves in the same document. 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 does not have any
further claim against the defendant in respect of that liability;
(b) that the debt was due and owing by the principal debtor;
(c) that the debt was covered by the contract of suretyship.
Asa Investments (Pty) Ltd v Smit 1980 (1) SA 897 (C)
The surety may not claim more from any surety than that surety’s proportionate share, and a
cession obtained from the creditor does not affect this rule.
Gerber v Wolson 1955 (1) SA 158 (A)

The contribution cannot be claimed until the extent of the ultimate burden, which the co-
sureties must share, has been established.
Fircone Investments (Pty) Ltd v Bank of Lisbon & SA Ltd 1982 (3) SA 700 (T)
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 (3) SA 106 (A)
The latter type of agreement need not be in writing and the special rules relating to suretyship
do not apply. Its effect depends on its terms.
Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 (2) SA 827 (A)
The same applies to a contract of indemnity or to an unreserved undertaking to pay the debt
of another.
Northern Assurance Co Ltd v Delbrook-Jones 1966 (3) SA 176 (T)
Peter Cooper & Co (Previously Cooper & Ferreira) v De Vos [1998] 2 All SA 237 (E)
PRECEDENTS
Claim – against principal debtor and surety
1. On [date] at [place], plaintiff entered into a written agreement with first

defendant in terms of which the latter undertook to clear a certain 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 annexed hereto and marked “A”.
2. Second and third defendants, in writing, on [date] at [place], bound themselves

as sureties and co-principal debtors with first defendant for the due and punctual performance
by first defendant of all his obligations under the agreement. A copy of the deed of suretyship
is annexed hereto and 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.
WHEREFORE plaintiff claims against defendants jointly and severally:
(b) Interest at the rate of [percentage], calculated from date of judgment.
[Page 331]
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 himself as surety and co-principal debtor with first defendant for and in
respect of first defendant’s aforesaid liability.
3. A copy of the deed of suretyship is annexed hereto and marked “A”.
4. First and second defendants failed to pay the indebtedness of first defendant.
WHEREFORE 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 hereto.
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 his 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.
WHEREFORE 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 an amount of [amount] [set

out the grounds].
2. On [date] at [place], plaintiff bound himself as surety and co-principal debtor,

on behalf of defendant, to the creditor in the sum of [amount] in the event of defendant’s
failing to pay on demand. A copy of the deed of suretyship is annexed hereto and marked
“A”.
3. Defendant failed to pay the sum of [amount] to the creditor.
4. On [date] at [place], plaintiff paid defendant’s indebtedness to the creditor in

terms of his obligations as surety.
5. Defendant is, therefore, obliged to reimburse plaintiff with the sum of

[amount].
Claim – for contribution by co-surety
1. Plaintiff and the two defendants jointly and severally became sureties and co-
principal debtors for the due payment by [name] of the sum of [amount] to [name].
2. A copy of the deed of suretyship is annexed hereto and marked “A”.
3. The principal debtor failed to pay the said sum to the creditor on due date or at
all.
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 his pro rata share of the
amount so paid.
(a) Payment by first defendant of [amount].
(b) Payment by second defendant of [amount].
[Page 332]
Plea – limitation of liability
[Taken from Snaid v Volkskas Bank Ltd 1997 (1) SA 239 (W).]
1. On or about 26 May 1984 and at Johannesburg the defendant signed a written

document termed “guarantee by an individual” in terms whereof the defendant bound herself
as surety and co-principal debtor unto and 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 in terms thereof would not exceed the sum of R10
000.
3. On or about 10 June 1990 and at Johannesburg the defendant effected payment
to the plaintiff in the sum of R10 000 being the total amount owing by the defendant to the
plaintiff in terms of the said 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 whatsoever.
Plea – release
[Taken from Fry v First National Bank of South Africa Ltd 1996 (4) SA 924 (C).]
1. Second defendant is a director of third defendant and at all material times was
duly authorised to represent third defendant.
2. At all times material hereto Developments (Pty) Ltd held a current account
with plaintiff’s Claremont branch
3. During 1988 and at Cape Town, plaintiff, duly represented by its Claremont
branch manager, Developments (Pty) Ltd, duly represented by first and second defendants,
first defendant personally, second defendant personally, and third defendant, duly represented
by the second defendant, entered into a partly oral and partly written composite agreement in
terms of which:
3.1 Plaintiff would lend Developments money on overdraft up to a certain limit.
3.2 First to fourth defendants would stand surety for such overdraft in the terms
pleaded by plaintiff in its particulars of claim.
3.3 Plaintiff would honour the cheques or other withdrawals by Developments as

ordered by any two of the signatures of first defendant or second defendant or one K.
4. In breach of the terms of paragraph 3.3 above, on 14 March 1991, plaintiff

advanced Developments (Pty) Ltd the sum of R150 000 on overdraft on the instruction of
first defendant only and without the knowledge or consent of second defendant or the said K.
5. The said advance on overdraft of R150 000 was accordingly not authorised
and plaintiff had no authority to make the said advance.
6. Plaintiff is accordingly not entitled to claim the said amount of R150 000 or
the interest which has accrued thereon (which is in excess of R13 504,94) from second or
third defendants.
• Tender: by a Defendant
• Tender: by a Plaintiff • Tender: in “Full and Final Settlement”

• Third-party Procedure • Trade Marks
• Trespass
Tender: By a Defendant
Related subjects: COMPROMISE
TENDER IN FULL AND FINAL SETTLEMENT
General: A defendant who wishes to compromise may tender, with or without admission of
liability, payment or performance of part of what is claimed. Such a tender may be contained
in the plea or may be made in accordance with the provisions of Uniform rule 34.
Tender in plea: The purpose of a tender in a plea is to protect the defendant against an order
as to costs since a tender made extracurially does not [Page 333] provide any protection
against costs, even if the plaintiff succeeds only in respect of the same amount or an amount
smaller than that tendered. In order 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 be 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) SA 259 (T) at 266
If a defendant pleads a tender (with or without admission of liability) for protection against
an order for costs, he or she will be held to the tender and judgment will be entered for the
amount of the tender, even if it is found that the defendant is not at all liable or is liable for a
lesser amount.
Bouwer v Stadsraad van Johannesburg 1979 (3) SA 37 (A)
Swanepoel v Swanepoel [1996] 3 All SA 440 (SE) at 445
It follows from this that a tender contained in a plea has very little practical advantage and
that a tender in terms of the court rule is to be preferred.
The provision of rule 34(10) that prohibits the disclosure to the court of a tender in terms of
the rules does not apply to an open tender pleaded.
Foord v Lake NNO 1968 (4) SA 395 (W)
A prior tender is not a defence to an action.
Aarwater (Edms) Bpk v Venter 1982 (3) SA 974 (T)
PRECEDENTS
Claim – 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].
WHEREFORE 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 subject: EXCEPTIO NON ADIMPLETI CONTRACTUS
Need for tender: Where a plaintiff sues on a contract and claims performance of the
defendant’s obligation under the contract, and where the right to such performance is
dependent upon the performance by the plaintiff of a reciprocal obligation due to the
defendant, it is necessary that the plaintiff should tender performance of this obligation to the
defendant in the claim.
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 1955 (3) SA
541 (D)
Normally, the tender should be made in the body of the relevant pleading but may be
contained in, or be inferred from, the prayers.
Lafrenz (Pty) Ltd v Dempers 1962 (3) SA 492 (A)
[Page 334]
Where a contract is to be set aside, even on the ground of fraud, the person seeking restitution
from the other party must tender to restore what he or she has obtained under the contract, so
that both parties may be placed in their original positions.
Marks Ltd v Laughton 1920 AD 12
Bonne Fortune Beleggings Bpk v Kalahari Salt Works (Pty) Ltd 1974 (1) SA 414 (NC)
Cash Converters Southern Africa (Pty) Ltd v Rosebud Western Province Franchise (Pty) Ltd
[2001] 3 All SA 179 (C); 2002 (1) SA 708 (C)
Simopoulos v Antoniou [2000] 4 All SA 427 (SE)

Tender dispensed with: If a defendant repudiates the obligation to perform, the whole
purpose of the tender falls away because the continuing repudiation amounts to a 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)
The fact that restitution is no longer possible without the fault of the plaintiff does not
disqualify the plaintiff from cancelling a contract.
(SCA)
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) SA 312 (C)
Tender: In “Full and Final Settlement”
Related subjects: COMPROMISE
PAYMENT
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 reason is that the
meaning of 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)
The debtor may raise the compromise as a complete answer to a claim for the balance of the
alleged debt.
Stieler v Kroch-Bou Aannemers Bpk [1997] 2 All SA 526 (W)
This is only possible if there is an existing dispute.
Karson v Minister of Public Works 1996 (1) SA 887 (E)
The cases on this subject are not altogether harmonious since the distinctions between an
offer of compromise, a tender and a payment are not always easy to discern or to apply in
practice.
Cf Andy’s Electrical v Laurie Sykes (Pty) Ltd 1979 (3) SA 341 (N)
Paterson Exhibitions CC v Knights Advertising and Marketing CC 1991 (3) SA 523 (A)
Onus: It is for the defendant to allege and prove the compromise. Where there is doubt, the
construction unfavourable to the defendant of the tender or offer will prevail.
Cecil Jacobs (Pty) Ltd v Macleod & Sons 1966 (4) SA 41 (N) at 47
[Page 335]
A compromise being a contract, the offer and its acceptance must be proved.
The offer of compromise (tender): As a general rule, the sending of a cheque “in full and
final settlement” of a debt amounts to an offer of compromise. It carries with it the implied
condition that, if the cheque is accepted (ie, banked), the claim is settled.
Odendaal v Du Plessis 1918 AD 470
Burt NO v National Bank of SA Ltd 1921 AD 59
Depending on the surrounding circumstances, the sending of such a cheque may amount to a
payment and not to an offer of compromise.
Harris v Pieters 1920 AD 644
The fact that the defendant, together with the offer, acknowledges all or part of the debt is
not, per se, inconsistent with an offer of compromise.
Van Breukelen v Van Breukelen 1966 (2) SA 285 (A)
Acceptance of tender: If the creditor accepts the payment, he or she thereby accepts the offer
of compromise. A creditor who does not wish to compromise must return the payment
tendered and sue for the full amount.
Van Breukelen v Van Breukelen 1966 (2) SA 285 (A) at 289
A creditor may not retain payment “without prejudice” to her or his rights.
Andy’s Electrical v Laurie Sykes (Pty) Ltd 1979 (3) SA 341 (N)
The defendant will also have to show that the person who accepted the payment had authority
to compromise the claim on behalf of the creditor.
Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A)
PRECEDENTS
Claim – 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.
Third-party Procedure
Related subject: MOTOR VEHICLE ACCIDENTS
General: The purpose of the third-party procedure is to enable a litigant to avoid a

multiplicity of actions concerning the same or related subject-matter. It is used principally to
complement the provisions of section 2 of the Apportionment of Damages Act 34 of 1956
and permits of conditional claims. Instead of using this procedure, a party is entitled in a
proper case to institute separate proceedings and to apply for a consolidation of the different
proceedings.
MCC Contracts (Pty) Ltd v Coertzen [1998] 4 All SA 503 (A); 1998 (4) SA 1046 (SCA)
[Page 336]
Procedure: A party (called a third party) who is not a party to an action may be made a party
thereto by following the procedure of Uniform rule 13. The substantial portion of the notice is
in the form of a particulars of claim and must state the nature and ground of the claim of the
party issuing the third-party notice against the third party.
Uniform rule 13(2)
The relief sought against the third party is either a contribution, an indemnification or a
declaratory order (sought on the basis that the question or issue in the main action is
substantially the same as a question or issue which has arisen or will arise between these two
parties).
It should be noted that the lis is between the party issuing the notice and the third party only.
There is no lis between the third party and any other party to the litigation.
Geduld Lands Ltd v Uys 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) at 110
It follows that a third-party 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) at 419
The third party may plead or except to the third-party notice as if he or she were a defendant
to the action and may also, by filing a plea or any other proper pleading, contest on any
ground the liability of the party issuing the notice, notwithstanding that such ground has not
been raised by the latter party. The third party is not entitled to institute a claim in
reconvention against any person other than the party issuing the notice.
Uniform rule 13(6)
A claim for damages against the third party, which claim would rise upon the success of the
plaintiff’s claim, is not a claim for an indemnity under this rule.
Dodd v Estate Cloete 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”.
[Page 337]
WHEREFORE 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 (1) SA 630 (A).]
Trade Marks
Related subjects: PASSING-OFF
Statute: 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, passing-off. One object of registration is to dispense with the proof of
reputation of a mark, which is necessary for passing-off. Registration of a mark under the Act
is required before proceedings can be instituted for trade-mark infringement under the Act.
However, the Act does not affect the rights of any person, at common law, to bring an action
based on passing-off.
Passing-off: Each of trade-mark infringement and passing-off should be kept in its own niche
because:
(a) infringement proceedings under the Act are directed at a comparison between the
registered trade mark as such and the allegedly offending mark as such, whereas, in passing-
off proceedings, the comparison is between the whole get-up of the goods as marketed by the
plaintiff and the whole get-up of the defendant’s goods;
Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Ltd 1976 (1) SA 530
(T)
The Upjohn Company v Merck 1987 (3) SA 221 (T)
(b) in the case of passing-off, the plaintiff must prove a reputation in the mark or get-up,
whereas, in trade-mark-infringement proceedings, the plaintiff’s reputation is irrelevant.
Jurisdiction: Trade-mark 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 1993 s 34(3)
A registered trade mark has effect only in the territory (country) where it is registered. The
sole exception is the protection under the Paris Convention given to a well-known trade
mark.
Trade Marks Act 194 of 1993 s 35
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd [1996] 4 All SA 1 (A);
1997 (1) SA 1 (A)
Any high court with competent civil jurisdiction can try an infringement action. As the situs
of the registry is in Pretoria, the Pretoria high court has sole jurisdiction to try any claim or
counterclaim for removal, amendment or variation of, or other relief affecting any entry in,
the register, unless one of these issues arises from or forms part of proceedings instituted in
another high court having jurisdiction in relation to the proceedings, 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)
[Page 338]
As a general rule, infringement proceedings are by way of notice of motion and not by way of
action. Damages must, however, be recovered by action.
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1978 (4) SA 696 (T)
The plaintiff: The plaintiff in a trade-mark-infringement action 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 and, if the proprietor fails or neglects to do so
within two months, the registered user may institute proceedings in her or his own name but
is obliged to join the proprietor as a nominal defendant.
The defendant: An action for infringement lies against any person who, without the
necessary authority, uses a mark contrary to the provisions of section 34(1).
Esquire Electronics Ltd v Executive Video 1986 (2) SA 576 (A) at 590
It should be noted that section 34(1) differs in some material respects from section 44(1) of
the repealed Trade Marks Act 62 of 1963 and that the earlier cases may not always be
applicable to the new provisions.
Trade mark registration: The plaintiff must allege and prove the existence of a trade-mark
registration. No right of action arises prior to registration.
Trade Marks Act 194 of 1993 s 33
Once registered, the owner is also entitled to damages which arose from acts performed after
advertisement of the acceptance of an application for registration, which acts, if performed
after registration, would amount to infringement of the registered mark.
Trade Marks Act 194 of 1993 s 34(3)(c) and (d)
Registration can be proved by a certificate of the registrar.
Infringement of trade mark: It is for the plaintiff to allege and prove infringement of the
trade mark. A trade mark can be infringed in three ways and it is necessary to distinguish
between them.
Infringement under section 34(1)(a): This provision represents the usual infringement case. It
is also the simplest to establish. The plaintiff must allege and prove:
(a) the 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 (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) 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.
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
Cointreau et Cie SA v Pagan International 1991 (4) SA 706 (A)
Abbott Laboratories v UAP Crop Care (Pty) Ltd [1999] 1 All SA 502 (C); 1999 (3) SA 624
(C)
Cowbell AG v ICS Holdings Ltd [2001] 4 All SA 242 (SCA); 2001 (3) SA 941 (SCA)
[Page 339]
Use of a genuine mark in connection with the plaintiff’s genuine goods is not an
infringement.
Television Radio Centre (Pty) Ltd v Sony 1987 (2) SA 994 (A)
Standard Bank of SA Ltd v United Bank Ltd 1991 (4) SA 780 (W)
Infringement under section 34(1)(b): The object of this cause of action is to protect a mark
against confusion if it is used in relation to similar goods or services, albeit not of the same
class in which the mark is registered. The plaintiff must allege and prove:
(a) the 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.
Infringement under section 34(1)(c): This provision protects a registered mark, well-known

in the Republic, against the taking of unfair advantage of the distinctive character or repute of
the mark. The plaintiff must allege and prove:
(a) the unauthorised use of a mark;

(b) which is identical or similar to a registered trade mark;
(c) which is well-known in the Republic;
(d) in the course of trade;
(e) in relation to any goods or services;
(f) that the use of the infringing mark is likely to take unfair advantage of, or be
detrimental to, the distinctive character or the repute of the registered trade mark, even if
there is no confusion or deception.
Bata Ltd v Face Fashions CC 2001 (1) SA 844 (SCA)
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 also 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 and, where the
infringing mark is inseparable or incapable of being removed from the material, an order that
all such material be delivered up to the proprietor;
(c) damages;
(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 1993 s 34(3) and (4)
[Page 340]
Non-infringement: A registered trade mark is not infringed by:
(a) any bona fide use by a person of her or his own name, the name of her or his place of
business, the name of any of her or his predecessors in business, or the name of any such
predecessor’s place of business.
(b) the use by any person of any bona fide description or indication of the kind, quality,
quantity, intended purpose, value, geographical origin or other characteristics of her or his
goods or services, or the mode or time of production of the goods or the rendering of the
services;
(c) the bona fide use of the trade mark in relation to goods or services where it is
reasonable to indicate the intended purpose of such goods, including spare parts and
accessories, and such services;
(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
thereof;
(e) the bona fide use by any person 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 in any manner in respect of or in relation to goods to be sold or
otherwise traded in, or services to be performed, in any place, or in relation to goods to be
exported to any market, or in any other manner in relation to which, having regard to any
conditions or limitations entered in the register, the registration does not extend;
(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 paragraphs (a), (b)
or (c) must be consistent with fair practice.
PRECEDENTS
Claim – trade mark 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 said registration is, and was at all times relevant hereto, 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 number 71/- as to be likely to deceive or cause
confusion.
5. The said use by defendant of the offending mark is use in relation to goods in
respect of which plaintiff’s aforesaid 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 trade mark number 71/-.
8. Plaintiff has suffered damage as a result of the infringement by defendant in

the sum of [amount]. [Detail].
9. Plaintiff apprehends upon reasonable grounds that defendant will continue

with its aforesaid unlawful infringement unless restrained by an order of court.
[Page 341]
(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 aforesaid 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] being damages.
[Based, in part, on Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 (A).]
Trespass
See : NUISANCE, POSSESSORS: DAMAGES CLAIMS BY
• Undue Influence • Unlawful Competition •

Usury
Undue Influence
Related subject: MENTAL INCAPACITY
Elements: A party to a jural act may avoid it and claim restitution on the ground that such act
was the result of undue influence. Such party must then allege and prove that:
(a) the other party acquired an influence over her or him;

(b) the influence weakened her or his resistance and made her or his will pliable;
(c) the other party used this influence in an unscrupulous manner in order to prevail upon
the other to agree to the transaction;
Hofer v Kevitt NO [1997] 4 All SA 620 (A); 1998 (1) SA 382 (SCA)
(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 (1) SA 483 (A)
Patel v Grobbelaar 1974 (1) SA 532 (A)
Cf BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C)
Special relationships: The existence of a special relationship between the parties does not
create any presumption of undue influence.
Miller v Muller 1965 (4) SA 458 (C) at 463
Tender: Since the relief sought is restitutional, the party relying on undue influence must
tender to restore anything received in terms of the transaction.
PRECEDENTS
Claim – for damages by client
1. Defendant was, at all material times, a registered medical practitioner

practising at [place].
2. Plaintiff was the registered owner of the property [describe].
[Page 342]
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, in particular, 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 a number of occasions, advised plaintiff to cause the property to
be registered in his name so that he would have control and be in a position 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 Competition
Related subjects: CONFIDENTIAL INFORMATION
INJURIOUS FALSEHOODS
PASSING-OFF
RESTRAINT OF TRADE
Cause of action: Competitive trading is unlawful if it involves a wrongful interference with

another trader’s rights and is actionable in terms of the lex Aquilia if it directly results in loss.
It is worthwhile repeating that it is not legitimate to use some general notion of unlawful
competition to create an ersatz passing-off with requirements less exacting than those
required by the common law. Some of the restraints that the common law places on the
passing-off action are important in preventing the creation of impermissible monopolies.
Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A) at 453
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd [2001] 4 All SA 235 (A); 2001 (3)
SA 884 (SCA)
There is no numerus clausus of acts that constitute unlawful competition. The best-known
are:
(a) trading in contravention of an express statutory prohibition;
See : STATUTORY DUTY OR AUTHORITY: BREACH

(b) fraudulent misrepresentations made by a rival trader as to her or his own business or
goods;
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C)
[Page 343]
(c) the publication by a rival trader of injurious falsehoods concerning the competitor’s
business;
(d) the passing-off by a rival trader of her or his own goods or business as being that of a
competitor;
See : PASSING-OFF
(e) the employment of physical assaults and intimidation designed to prevent a

competitor from pursuing her or his trade;
(f) the unfair use of a competitor’s fruits and labour;
Schultz v Butt 1986 (3) SA 667 (A)
Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968
(1) SA 209 (C)
(g) the misuse of confidential information in order to advance one’s own business
interests and activities at the expense of a competitor’s;
See : CONFIDENTIAL INFORMATION
(h) the inducement or procurement of a breach of contract: an action for damages (and, in
an appropriate case, for an interdict) will lie against any person who intentionally and without
justification induced or procured another to breach a contract made with any other person;
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 200
Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D)
(i) the interference with character merchandising rights.
Federation Internationale de Football v Bartlett 1994 (4) SA 722 (T)
Cf SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons [2003] 1 All SA 274 (SCA)
Wrongfulness: The test for wrongfulness is one of fairness and honesty, having regard to the
boni mores and the 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 (3) SA 667 (A) at 679 and cases there cited
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W)
Premier Hangers CC v Polyoak (Pty) Ltd [1997] 1 All SA 134 (SCA); 1997 1 416 (SCA)
Damages: For calculation and proof, see:
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd [1997] 2 All SA 672 (SCA); 1997 (4) SA 399
(SCA)
Usury
See : CREDIT AGREEMENTS, INTEREST, LOANS
• Veld Fires
• Vetustas
• Via Necessitate • Vicarious Liability
• Vindication • Volenti Non Fit Iniuria
• Voluntary Associations
Veld Fires
The National Veld and Forest Fire Act 101 of 1998 replaced the civil liability provisions of
the Forest Act 122 of 1984.
[Page 344]
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 1998 s 33
Cf Simon’s Town Municipality v Dews 1993 (1) SA 191 (A)
Cf Fire Brigade Services Act 99 of 1987 s 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 a loss suffered from a veld fire:
(a) which the defendant caused; or
(b) which started on or spread from land owned by the defendant.
This presumption does not apply if the defendant is a member of a fire-protection association
in the area where the fire occurred.
National Veld and Forest Fire Act 101 of 1998 s 34(1)
The presumption does not exempt the plaintiff from the onus of proving that any act or
omission by the defendant was wrongful.
Before the presumption can assist a plaintiff, the plaintiff must:
(a) allege and prove a wrongful act or omission by the defendant;
National Veld and Forest Fire Act 101 of 1998 s 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 fire-protection association in
the area where the fire occurred.
Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) at 84
Porritt v Molefe 1982 (3) SA 76 (A)
Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A)
The onus is then on the defendant to prove on a balance of probabilities:
(a) that it was not negligent in any of the respects alleged by the plaintiff; or
(b) if its conduct did fall short of the standards required of it, that such failings would
have had no effect on and, hence, would not have been relevant in relation to the harm
caused.
HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd [2000] 4 All SA 545
(SCA); 2001 (4) SA 814 (SCA)
Prinsloo v van der Linde 1997 (3) SA 1012 (CC)
Otherwise the onus is the same as in other delictual matter.
Cf Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd [2000] 1 All
SA 128 (SCA); 2000 (1) SA 827 (SCA)
[Page 345]
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 as a result of defendant’s negligence. [Detail grounds

of negligence.]
7. Defendant is not a member of a fire-protection association.
Vetustas
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 has a lawful origin. Once 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 general public.
Nel v Louw 1955 (1) SA 107 (C)
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 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;
(c) the origin of the use cannot be established.
Malherbe v Van Rensburg 1970 (4) SA 78 (C)
Oberholzer v Padraad van Outjo 1974 (2) SA 168 (SWA)
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
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.
[Page 346]
(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 general public.
Via Necessitate
Related subject: ROADS
Jurisdiction: Magistrates’ courts have jurisdiction to grant a right of way and also 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 1944 s 29(1)(c)
Cloete v Karee-Aar Landgoed Bpk [1997] 2 All SA 700 (NC); 1997 (3) SA 30 (NC)
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.
SA Yster & Staal Industriële Korp Bpk v Van der Merwe 1984 (3) SA 706 (A)
Naudé v Ecoman Investments 1994 (2) SA 95 (T)
Sanders NO v Edwards NO [2003] 1 All SA 108 (C)
The right of way arises only by virtue of the grant in terms of the court order. An order of
court is, therefore, essential to enable a party to enter the defendant’s property and to obtain
registration of the right of way.
Van Rensburg v Coetzee 1979 (4) SA 655 (A) at 671
Onus: A claimant must allege and prove:
(a) the particular need and the reason why a way of necessity must traverse the
defendant’s property;
(b) the width of the road claimed and the reason for that claim;
(c) a suitable route;
and 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 suffered. If the claim is for a road that will be used in emergency situations
only, no compensation is payable.
Van Rensburg v Coetzee 1979 (4) SA 655 (A)
Relief: The relief sought is for the registration of a right of way over the defendant’s
property against payment of compensation and costs of registration.
Van Rensburg v Coetzee 1979 (4) SA 655 (A) at 681
Although it is said that the particular route should not form part of the relief claimed, a
plaintiff is well advised to set out in the claim which route he or she alleges 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.
[Page 347]
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 said
highway, save by traversing defendant’s farm [Y].
6. Despite repeated requests, defendant has refused to allow plaintiff to traverse

his farm to reach the highway which is the nearest public road to the farm [X].
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 [name] in the district of [specify].
2. Defendant is the owner of farm [name] which adjoins plaintiff ’s said farm
along its northern boundary, as will more clearly appear from the map attached hereto and
marked “A”.
3. The nearest public road to plaintiff ’s farm is that running from [place] to
[place] and marked P–Q on Annexure “A”.
4. No other public road is within reasonable reach of plaintiff ’s farm.
5. The only access from plaintiff ’s farm to the said public road is over
defendant’s farm.
6. Plaintiff requires such access for his farming activities and for personal
reasons by himself, his family and others.
7. For his 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 by virtue thereof is worth [amount] and plaintiff hereby tenders payment of such
amount as well as payment of 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 Annexure “A”.
(a) An order that defendant take the necessary steps to register a right of way over his
farm [name] which right of way shall be [number] metres wide and over such route as the
honourable court may determine.
(b) Failing compliance by defendant with the aforesaid 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 effect registration of a right of way as aforesaid.
Vicarious Liability
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)
Employees: An employer is liable for damage occasioned by delicts committed by an

employee in the course and scope of that employee’s employment. The same principles apply
to analogous cases – for instance, 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, that the person who committed the delict was:
Stadsraad van Pretoria v Pretoria Pools 1990 (1) SA 1005 (T)
Cf Midway Two Engineering and Construction Services v Transnet Bpk [1998] 2 All SA 451
(A); 1998 (3) SA 17 (SCA) at 29
[Page 348]
(a) an employee of the defendant;
Gibbins v Williams, Muller, Wright & Mostert Ingelyf 1987 (2) SA 82 (T)
(b) that the employee performed the delictual act in the course and scope of her or his
employment;
(c) what the employee’s duties were at the relevant time.
Mkize v Martens 1914 AD 382

242 (SCA)
Disobedience: An employee who acts in defiance of an express instruction acts outside the
course and scope of her or his duties. Where subsequent negligence in completing tasks
within the course and scope of the duties causes damage to one who has associated her- 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 which was unauthorised and criminal, by abusing the
employment position the act may have no connection with the duties of the employee. 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) at 383
Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK 2002 (5) SA 475 (SCA)
Frolic of her or his own: The employer is not liable where the employee was engaged in a
frolic of her or his own or in doing something which he or she was permitted to do for her or
his own purposes but not employed to do for the employer,
Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A)
Minister of Law and Order v Ngobo 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)
unless it was incidental to her or his employment.
Viljoen v Smith 1997 (1) SA 309 (A)
The subjective intention of the employee is a relevant factor in determining whether he or she
acted within the course and scope of her or his employment.
Minister van Veiligheid en Sekuriteit v Japmoco 2002 (5) SA 649 (SCA) at 659
The fact that the act complained of took place while the servant was on duty does not provide
prima facie proof that it was committed in the scope and course of her or his duties.
Obotseng v Lebone 1994 (4) SA 88 (BG) at 92

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.
SAR&H v Dhlamini 1967 (2) SA 203 (D)
[Page 349]
A defendant who wishes to deny the employer-employee relationship should do so explicitly.
FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A)
Independent contractors: A principal is normally not liable for the acts of an independent
contractor.
Colonial Mutual Life Assurance Society Ltd v MacDonald 1931 AD 412
Midway Two Engineering & Construction Services BK v Transnet Bpk [1998] 2 All SA 451
(A); 1998 (3) SA 17 (SCA)
Where the work to be performed is per se dangerous, the principal may be held liable for her
or his own negligence in failing to take reasonable precautions to protect other persons,
including the servants of the contractor.
Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A)
Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A)
Stein v Rising Tide Productions CC [2002] 2 All SA 22 (C); 2002 (5) SA 199 (C)
In appropriate circumstances, a person may escape liability arising out of dangerous work, by
delegation to a properly qualified expert.
Rhodes Fruit Farms Ltd v Cape Town City Council 1968 (3) SA 514 (C)
PRECEDENTS
Claim – against a master for a delict committed by her or his servant
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] in that [See :
LEX AQUILIA].
4. As a result 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 : 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 OR EJECTMENT
INTERPLEADERS
Statutes: The right to vindicate has been curtailed substantially by social legislation which is
dealt with under EVICTION OR EJECTMENT.
[Page 350]
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 prior to the institution of the action or may dispose thereof after such institution.
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) SA 77 (A) at 82
Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A)
(b) that the defendant was in possession of this property at the time of the institution of
the action.
Graham v Ridley 1931 TPD 476

Wrongfulness: In view of the fact that the 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. If these allegations
are made, they do not draw any additional onus.
Krugersdorp Town Council v Fortuin 1965 (2) SA 335 (T)
Singh v Santam Insurance Co Ltd [1997] 1 All SA 525 (SCA); 1997 (1) SA 291 (SCA)
Relief: The relief available to a plaintiff is:
(a) the return of the possession of the property or, in lieu thereof, payment of its value
calculated on the day of the trial;
(b) delivery of all fruits (or payment of their value) that have accrued to the defendant if
the defendant was a mala fide possessor. If the defendant was bona fide, the plaintiff may
claim the delivery of the fruits (or payment of their value), provided those fruits have accrued
to the defendant after litis contestatio.
Mlombo v Fourie 1964 (3) SA 350 (T)
Defences:
(a) Denial of ownership, which creates no onus for the defendant since the plaintiff has to
prove 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 by the defendant. An allegation by a
plaintiff that the defendant had failed to return the property is a surplusage and draws no
onus.
Groenendijk v Tractor & Excavator Spares (Pty) Ltd 1978 (1) SA 815 (A)
(d) The bona fide disposal of possession is a complete defence.
Leal & Co v Williams 1906 TS 554
A disposal by the defendant with knowledge of plaintiff ’s claim to the property is, on
the other hand, wrongful and provides no defence. In such an instance, a plaintiff is entitled
to damages calculated on the basis of the value of the property at the date of disposal.
[Page 351]
(e) If the defendant wishes to rely on a right to possession (for example, a right to
possession 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 prove a valid termination of that right.
The onus resting on the plaintiff who makes such a concession includes an onus to
prove the term of the agreement that gives the right of cancellation.
If the plaintiff alleges or concedes a right of possession (for example, by virtue of a

lease) but the defendant denies that right and relies on another right of possession or on
another defence, the plaintiff need no longer prove the conceded right or its termination.
From a tactical point of view, it may be advisable for a plaintiff not to concede the
right in the particulars of claim but to deal with it, and with its termination, in the replication,
and then only in the alternative. The duty to begin will, at least, then rest on the defendant.
(f) A defendant who wishes 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 (1) SA 394 (A)
(iii) that the defendant relied on the representation in obtaining the property;
(iv) that the 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)
Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk [1996] 2 All SA 215 (A);
1996 (3) SA 273 (A) at 284
See : ESTOPPEL
Interpleader: A defendant who expects to be sued by others for delivery of the same thing
may issue an interpleader notice.
See : INTERPLEADERS
PRECEDENTS
1. Plaintiff is the owner of [property].
2. Defendant is in possession thereof.
[Page 352]
3. In the alternative to paragraph 2, and if it be found that defendant is no longer

in possessiosn 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 hire-purchase

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 hire-purchase agreement as
alleged by defendant.
2. In the alternative, plaintiff alleges that the said hire-purchase agreement is

void by virtue of [detail].
3. In the further alternative, plaintiff alleges that the hire-purchase 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 second-hand dealer [name] at
[place] on [date];
(b) the second-hand 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: CONTRIBUTORY NEGLIGENCE
LEX AQUILIA
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 can, however, be raised against most other claims, whether under the lex Aquilia, actio
iniuriarum or the actio de pauperie.
[Page 353]
Onus: The onus rests on the defendant to establish the defence.
Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) at 779
Rosseau v Viljoen 1970 (3) SA 413 (C) at 417
Essentials: The defendant must allege and prove that the plaintiff:
(a) had knowledge of the risk;
Alberts v Engelbrecht 1961 (2) SA 644 (T)

(b) appreciated the ambit of the risk; and
Durban City Council v SA Board Mills Ltd 1961 (3) SA 397 (A) at 406–407
(c) consented to the risk.
Waring & Gillow Ltd v Sherborne 1904 TS 340 at 340–344
Malherbe v Eskom 2002 (4) SA 497 (O)
Consent: The supervening injury must be sustained in consequence of a risk falling within

the ambit of the consent.
Consent can be express or implied and, if it can be shown that the plaintiff foresaw the risk of
injury and had knowledge and an appreciation of the danger, consent will be implied.
It is important to note that knowledge does not necessarily imply appreciation, nor are
knowledge and appreciation tantamount to consent.
General: 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 1944 1 KB 476, quoted in Stolzenberg v Lurie 1959 (2) SA 67
(W) at 73
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. The last-mentioned defence is, by reason of the Apportionment of
Damages Act 34 of 1956, only 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. The volenti defence entails a subjective inquiry related 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.
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.
[Page 354]
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 which does not possess juristic personality may
sue or be sued in its own name if its constitution grants it the power to litigate.
Uniform rule 14(2)
De Meillon v Montclair Society of the Methodist Church of SA 1979 (3) SA 1365 (D)
Interim Ward S 19 Council v Premier, Western Cape Province 1998 (3) SA 1056 (C)
Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council 2002

(6) SA 66 (T)
An association with the object of acquiring gain which consists of more than twenty persons
is illegal.
Mitchell’s Plain Town Centre Merchants Association v McLeod [1996] 3 All SA 297 (A);
1996 (4) SA 159 (A)
Incorporated association: An association having legal personality may sue and be sued in its
own name. Whether an association has legal personality depends on the nature of the
association, its constitution, its objects and activities.
Morrison v Standard Building Society 1932 AD 229
Contracts: An association is a creature of its constitution and can be bound to a contract

which is intra vires its constitution only.
McCarthy v Constantia Property Owners’ Association [1999] 4 All SA 1 (C); 1999 (4) SA
847 (C)
The association will be bound by a contract ultra vires its constitution where the other
contracting party was induced to enter into such contract by the fraudulent non-disclosure of
the fact that the contract would be ultra vires.
Oranje Benefit Society v Central Merchant Bank Ltd 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)
Absence of locus standi : The party relying on the locus standi of an association must make
the necessary allegations thereanent. Depending on the circumstances, lack of locus standi
may be raised by way of either an exception or a special plea.
Ahmadiyya AAIL (SA) v Muslim Judicial Council (Cape) 1983 (4) SA 855 (C)
• Waivers
• Warranty Against Eviction • Water
• Wild Animals • Wills
• Workmen’s Compensation
Waivers
The effect of the waiver of a right is to extinguish that right and the concomitant obligation.
Waiver is a question of fact.
Laws v Rutherford 1924 AD 261
[Page 355]
Onus: The onus rests on the party relying on waiver to allege and prove the waiver on a
balance of probabilities.
Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A)
Borstlap v Spangenberg 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 her or his rights should
be borne in mind. Clear evidence of a waiver is required.
Procedure: The defence of waiver must be pleaded. It is only under exceptional

circumstances that a court will consider the defence in the absence of a proper plea.
Montesse Township & Investment Corp (Pty) Ltd v Gouws NO 1965 (4) SA 373 (A)
Dale v Fun Furs (Pty) Ltd 1968 (3) SA 264 (O)
Decision to abandon right: The defendant must allege and prove a decision by the plaintiff to
abandon the right that is being asserted against the defendant.
Road Accident Fund v Mothupi [2000] 3 All SA 181 (A); 2000 (4) SA 38 (SCA)
This decision must have been conveyed to the defendant.
Traub v Barclays National Bank Ltd 1983 (3) SA 619 (A) at 634
The decision to abandon can be:
(a) an express abandonment of the right; or
(b) an implied abandonment. An implied abandonment is proved by conduct plainly

inconsistent with an intention to enforce the right now relied on.
Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A)
Borstlap v Spangenberg 1974 (3) SA 695 (A)
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, which right the plaintiff decided to
abandon.
Netlon Ltd v Pacnet (Pty) Ltd 1977 (3) SA 840 (A) at 873–874
An error in making the decision to waive can vitiate the waiver only if the error is of such a
nature that it would have vitiated a contract.
See : MISTAKES
Election: An election generally involves a waiver: one right is waived when a party chooses
to exercise another right which is inconsistent with the former.
Administrator, Orange Free State v Mokopanele 1990 (3) SA 780 (A)
Xenopoulos v Standard Bank of South Africa Ltd [2000] 2 All SA 494 (W); 2001 (3) SA 498
(W)
In the case of an election, the defendant bears the same onus as in the case of a waiver.
[Page 356]
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 elected one, he or she is
assumed to have abandoned all others. Such a situation may well arise where the choice lies
between two inconsistent remedies and the party commits her- or himself unequivocally to
one of them.
Where 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 by it constitutes a waiver of the right to cancel.
Administrator, Orange Free State v Mokopanele 1990 (3) SA 780 (A)
Delay: A delay in enforcing a right does not per se amount to a waiver.
Zuurbekom Ltd v Union Corp Ltd 1947 (1) SA 514 (A)
On the other hand, failure to cancel a contract within a reasonable time after the breach may
provide evidence of an election to abide by the contract.
Palmer v Poulter 1983 (4) SA 11 (T)
Mahabeer v Sharma NO 1983 (4) SA 421 (D)
Waiver after cancellation: A debtor can 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 clearly manifests an election not to cancel may constitute waiver of the right to cancel.
The position is different where the defendant relies on conduct subsequent to a valid
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 (2) SA 709 (N)
Pienaar v Southern Insurance Association Ltd 1983 (1) SA 917 (C)

Similarly, if a purchaser cancels the 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, or even uses them, does not necessarily amount to a waiver.
Thomas v Henry 1985 (3) SA 889 (A)
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 mere 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) SA 547 (W)
Waiver not permitted: No-one can renounce a right contrary to law or a right introduced not
only for her or his own benefit but in the public interest.
Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719 734–735
South African Co-operative Citrus Exchange Ltd v Director-General Trade and Industry
[1997] 2 All SA 321 (A); 1997 (3) SA 236 (SCA)
Non-variation clauses: If a contract cannot be amended due to a non-variation clause, a party

may nevertheless waive any right flowing from that contract.
Van As v Du Preez 1981 (3) SA 760 (T)
[Page 357]
The same applies where a statutory provision prevents the amendment of a contract unless
certain formalities have been complied with.
Venter v Birchholtz 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].
Warranty Against Eviction

A purchaser has, in the following circumstances, a claim against the seller for a breach of the
legally implied warranty against eviction:
(a) The purchaser must have been evicted. This does not necessarily mean a physical loss
but includes a case where an unassailable claim to the goods was compromised.
Lammers & Lammers v Giovannoni 1955 (3) SA 385 (A)
Olivier v Van der Bergh 1956 (1) SA 802 (C)
Sirius Motor Corporation v Kajee [1997] 2 All SA 159 (D)
(b) The purchaser must have given the seller proper notice of the proceedings, calling on
the seller for assistance in defending the case
Westeel Engineering (Pty) Ltd v Sidney Clow & Co Ltd 1968 (3) SA 458 (T)
York & Co (Pvt) Ltd v Jones NO (2) 1962 (1) SA 72 (SR)
and the purchaser must have conducted an unsuccessful virilis defensio against the
claim.
York & Co (Pvt) Ltd v Jones NO (1) 1962 (1) SA 65 (SR)
If no notice was given or no virilis defensio conducted, the purchaser will have to
establish that the claimant’s title was unassailable.
Lammers & Lammers v Giovannoni 1955 (3) SA 385 (A)
Garden City Motors (Pty) Ltd v Bank of the OFS Ltd 1983 (2) SA 104 (N)
Relief: An evicted purchaser may claim 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 (3) SA 734 (A)
Katzeff v City Car Sales (Pty) Ltd 1998 (2) SA 644 (C)
Where 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, which is due to circumstances that were not in the contemplation of the
parties or could not reasonably have been contemplated at the time of making the contract,
cannot be recovered.
Watt v Standard Bank National Industrial Credit Corp 1982 (2) SA 47 (D)
[Page 358]
If the warranty against eviction has been excluded, 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
purchaser to whom he sold and not to anyone else. Repayment of the price to the subsequent
seller who was evicted, or acceptance by the seller of the obligation tomake such repayment,
is equated with the seller’s (the original purchaser’s) own eviction.
Olivier v Van der Bergh 1956 (1) SA 802 (C)
PRECEDENTS

which plaintiff purchased from defendant a [describe] motor car.
2. On [date], defendant delivered the said motor car to plaintiff who, on the same
date, paid to defendant the full purchase price of [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
him to assist in defending the claim.
5. Despite request, defendant failed so 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].
Water
The Water Act 54 of 1956 Act has been repealed by section 163(1) of the
National Water Act 36 of 1998. Useful precedents cannot be given because the water law has
become an administrative matter. For precedents,
See : WATER in South African Encyclopaedia of Forms and Precedents
Wild Animals
Ownership: See : Horak NO v Smit [1999] 4 All SA 405 (T)

Liability for damage: The edictum de feris provides for compensation for damage done by
wild animals kept in captivity by a defendant. Whether negligence is part of the cause of
action appears to be a moot point.
Bristow v Lycett 1971 (4) SA 223 (RA)
Zietsman v Van Tonder 1989 (2) SA 484 (T)
A distinction is drawn between, on the one hand, the case of the introduction of wild animals
and, on the other, the case of wild animals naturally occurring [Page 359] on a piece of land.
An owner of ground who introduces a danger in the shape of wild or destructive animals or
noxious plants may be liable to others for damage if the animals stray and cause damage.
However, no duty rests on the owner of ground on which there are wild animals to prevent
such animals from leaving that ground.
Mbhele v Natal Parks, Game & Fish Preservation Board 1980 (4) SA 303 (D)
A defendant can escape liability by proving that the plaintiff was a trespasser, that the
damage was caused by the unlawful act of a third party, by a third party’s animal or by casus
fortuitus or vis maior.
Bristow v Lycett 1971 (4) SA 223 (RA)
PRECEDENTS
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. As a result of his injuries, plaintiff suffered damages in the amount of

[amount] calculated as follows:
[detail].
Wills
Disputes surrounding wills are normally not the subject of action proceedings and little is to
be said on the subject in this work.
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 also has an interest and, in general, whilst he or she has to be
joined, no relief is sought against the Master.
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 party alleging:
(a) forgery of the will;
Kunz v Swart 1924 AD 618
(b) lack of mental capacity on the part of the testator;
Tregea v Godart 1939 AD 16
Geldenhuys v Borman NO 1990 (1) SA 161 (E)
See : MENTAL INCAPACITY
(c) a failure to have complied with the prescribed statutory formalities;
Thaker v Naran 1993 (4) SA 665 (N)
Mdlulu v Delarey [1998] 1 All SA 434 (W)
carries the burden of proof.
[Page 360]
Interpretation: The interpretation of a will is normally dependent on legal argument only. In

such a case, application proceedings are indicated. The same applies where the admissible
evidence is common cause. If the admissible evidence is not common cause, action
proceedings ought to be followed. 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.
Rectification: A court may rectify a will if it appears ex facie the document to be a valid will.
Rectification may take place by the addition or deletion of words in order to give effect to the
true intention of the testator.
Ex parte Van der Spuy NO 1966 (3) SA 169 (T)
Van Zyl v Esterhuyse NO 1985 (4) SA 726 (C)
Welldon v Andrews 1982 (2) SA 44 (N)
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, in that he was at that time 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.
Workmen’s Compensation
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 new Act does not
differ much from that of the repealed Act. Its object is to provide, from a compensation 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. Compensation is payable by either the director-general or, in
the case of an employer individually liable, by that employer. The procedure to be followed
in claiming is laid down in the Act and falls beyond the ambit of this work. The provisions of
the Act are not applicable to all workmen or all employers but only to those falling within the
scope of these terms as defined in the Act. In this note, the focus is on the impact of the Act
on common-law relationships.
Accident: An “occupational injury” is a personal injury sustained as a result 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, or illness or the death of the employee.
Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 1
Rauff v Standard Bank Properties 2002 (6) SA 693 (W)
[Page 361]
Fault is not an element of the definition and an intentional wrong committed against the
employee is also included.
Langeberg Foods Ltd v Tokwe [1997] 3 All SA 43 (E) at 49
Right of employee to compensation: If an employee meets with an accident resulting in her

or his disablement or death, such employee is or the dependants of such employee are,
subject to the provisions of the Act, entitled to the benefits provided for and prescribed in the
Act.
Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 22(1)
Liability for payment of compensation: If an employee is entitled to compensation in terms

of the Act, the director-general or the individually liable employer, as the case may be, is
liable for the payment of such compensation.
Substitution of compensation for other legal remedies: No action lies by an employee, or any
dependant of an employee, for the recovery of damages in respect of any occupational injury
or disease resulting in the disablement or death of such employee against such employee’s
employer and no liability for compensation on the part of such employer arises save under the
Act.
Compensation for Occupational Injuries and Diseases Act 130 of 1993 s 35(1)
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2) SA
1 (CC)
Recovery of damages and compensation paid from third parties: If a third party – ie, 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 may also institute
action for damages against the third party; and
(b) the director-general may institute action (or intervene in the proceedings under (a))
against the third party for the recovery of compensation that the director-general is obliged to
pay in terms of the Act.
In awarding damages to an employee, a court must have regard to (ie, 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.
The overriding principles are that the third party is not liable for more than the amount the
employee could claim from her or him but for the Act and that the employee not entitled to
double compensation. At the same time, the total liability of the third party is not reduced by
virtue of this provision which merely deals with the division between the employee and the
director-general of the amount payable by the third party.
Bonheim v South British Ins Co Ltd 1962 (3) SA 259 (A)
Klaas v Union & SWA Insurance Co Ltd 1981 (4) SA 562 (A) at 583
Senator Versekeringsmaatskappy Bpk v Bezuidenhout 1987 (2) SA 361 (A)
Where the employee was partly negligent and apportionment of damages has to take place
under the Apportionment of Damages Act 34 of 1956, as between the employee and the third
party, the question of whether the whole amount payable to the employee must be deducted
from the damages awarded to him, and not merely the portion corresponding to the degree to
which the third party was at fault, is at present a moot point.
Ngcobo v Santam Insurance Co Ltd 1994 (2) SA 478 (T)
Maphiri v Road Accident Fund 2002 (6) SA 383 (W)
[Page 362]
Notice: The workman must, in accordance with the procedure laid down, notify the director-
general (or the employer individually liable) of the intention to institute proceedings against a
third party and inform the director-general if he decides to abandon or settle the claim.
Compliance with these requirements must be alleged in the particulars of claim.
Mutual & Federal Insurance Co Ltd v Kok 1985 (2) SA 225 (TkA)
PRECEDENTS
Claim – by workman under MVA Act
Follow precedents under MOTOR VEHICLE ACCIDENTS and add the following additional
allegations:
1. Plaintiff, at the time of the collision, was
(a) a workman as defined in Act 130 of 1993;
(b) injured in the course of his employment with [X], an employer as defined in
Act 130 of 1993.
2. Plaintiff received compensation in terms of Act 130 of 1993 for his injuries in
the sum of [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 Act 130 of 1993.
4. Plaintiff duly informed the director-general of his intention to institute these

proceedings.
5. Defendant is, therefore, liable to plaintiff in the sum of [Rx–Ry].
Table of Cases
A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
Page
1166 Roodekrans CC and others v Nedcor Bank Ltd [2001] 2 All SA 666 (W) 123
A Neumann CC v Beauty Without Cruelty International 1986 (4) SA 675 (C) 135
A-Team Drankwinkel BK v Botha en ’n Ander NNO 1994 (1) SA 1 (A) 118
AA Mutual Insurance Association Ltd v Nomeka 1976 (3) SA 45 (A) 106
AAA Brick Co (Pty) Ltd v Coetzee [1996] 1 All SA 23 (B); 1996 (3) SA 578 (B) 312
Aarwater (Edms) Bpk v Venter 1982 (3) SA 974 (T) 333
AB, Ex parte 1910 TPD 1332 19
Abakor v Crafcor Farming t/a Riversdale Feedlot 2000 (1) SA 973 (N) 194
Abbott v Von Theleman 1997 (2) SA 848 (C) 318
Abbott Laboratories v UAP Crop Care (Pty) Ltd
[1999] 1 All SA 502 (C); 1999 (3) SA 624 (C) 338
Abraham v City of Cape Town 1995 (2) SA 319 (C)121
Abraham v Du Plessis 1962 (3) SA 162 (T) 68
ABSA Bank Bpk v Coetzee [1998] 1 All SA 1 (SCA) 71
ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) 5, 55
ABSA Bank Bpk v Ons Beleggings BK [2000] 3 All SA 199 (A); 2000 (4) SA 27 (SCA) 57
ABSA Bank Bpk v Saunders 1997 (2) SA 192 (NC) 56
ABSA Bank Bpk h/a Volkskas Bank v Retief [1999] 1 All SA 68 (NC);
1999 (3) SA 322 (NC) 56
ABSA Bank Ltd v Boksburg Transitional Local Council
(Government of the Republic of South Africa Third Party) 1997 (2) SA 415 (W) 336
ABSA Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd
[2001] 1 All SA 1 (A); 2001 (1) SA 372 (SCA) 348
ABSA Bank Ltd v Davidson [2000] 1 All SA 355 (SCA); 2000 (1) SA 1117 (SCA) 329
ABSA Bank Ltd v De Klerk [1998] 4 All SA 674; 1999 (1) SA 861 (W) 167
ABSA Bank Ltd v Fouche [2002] 4 All SA 245 (SCA); 2003 (1) SA 176 (SCA) 223, 259,
260
ABSA Bank Ltd v IW Blumberg & Wilkinson
[1997] 2 All SA 307 (A); 1997 (3) SA 669 (SCA) 56, 166, 285
ABSA Bank Ltd v Leech [2001] 4 All SA 55 (A); 2001 (4) SA 132 (SCA) 86
ABSA Bank Ltd v Scharrighuisen [2000] 1 All SA 318 (C); 2000 (2) SA 998 (C) 329
ABSA Bank Ltd v Standard Bank of SA Ltd
[1997] 4 All SA 673 (A); 1998 (1) SA 242 (SCA) 56, 87, 312
245, 355
ABSA Bank Ltd v Van de Vyver NO [2002] 3 All SA 425 (A); 2002 (4) SA 397 (SCA) 334
ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC
[2003] 1 All SA 401 (SCA); 2003 (1) SA 401 (SCA) 270
262, 263
ABSA Bank Ltd t/a Volkskas Bank v Page [2002] 1 All SA 99 (A); 2002 (1) SA 617 (SCA)
284
ABSA Insurance Brokers (Pty) Ltd v Luttig NO
[1997] 3 All SA 267 (A); 1997 (4) SA 229 (SCA) 186
Acacia Mines Ltd v Boshoff 1958 (4) SA 330 (A) 264
Acs v Acs 1981 (2) SA 795 (W) 114
Adcock-Ingram Products Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) 275, 276,
277

105, 163
123, 230
Adidas Sportschuhfabriken Adi Dassler KG v Harry Walt & Co (Pty) Ltd
1976 (1) SA 530 (T) 337

Adjust Investments (Pty) Ltd v Wiid 1968 (3) SA 29 (O) 313
Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) 222, 260
Administrateur, Transvaal v JD van Niekerk en Genote BK 1995 (2) SA 241 (A) 206
Administrateur, Transvaal v Van der Merwe 1994 (4) SA 347 (A) 223
Administrator, Natal v Edouard 1990 (3) SA 581 (A) 241
Administrator, Orange Free State v Mokopanele 1990 (3) SA 780 (A) 355, 356
Aegis Insurance Co Ltd v Consani NO 1996 (4) SA 1 (A); [1996] 3 All SA 547 (A) 202
Aercrete SA (Pty) Ltd v Skema Engineering Co (Pty) Ltd 1984 (4) SA 814 (D) 93
Aetiology Today CC v Van Aswegen 1992 (1) SA 807 (W) 194
Africa Solar (Pty) Ltd v Divwatt (Pty) Ltd [2002] 3 All SA 369 (A); 2002 (4) SA 681 (SCA)
95
African Consolidated Agencies (Pty) Ltd v
Siemens Nixdorf Information Systems (Pty) Ltd 1992 (2) SA 739 (C) 66
African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd
1978 (3) SA 699 (A) 87, 88
African Farms & Townships Ltd v Cape Town Municipality 1963 (2) SA 555 (A) 302
African Guarantee & Indemnity Co Ltd v Thorpe 1933 AD 330 329
African Life Assurance Co Ltd v NBS Bank Ltd
[2000] 1 All SA 545 (W); 2001 (1) SA 432 (W) 59
African National Congress v Inkatha Freedom Party [1999] 3 All SA 47 (W) 133
African National Congress v Lombo [1997] 1 All SA 697 (A); 1997 (3) SA 187 (A) 354
African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A)
303
Afrisun Mpumalanga (Pty) Ltd v Kunene NO 1999 (2) SA 599 (T) 289
Afrox Healthcare Bpk v Strydom [2002] 4 All SA 125 (SCA); 2002 (6) SA 21 (SCA)
186, 224
Ahmadiyya AAIL (SA) v Muslim Judicial Council (Cape) 1983 (4) SA 855 (C) 354
Aida Uitenhage CC v Singapi 1992 (4) SA 675 (E) 163

Air-kel (Edms) Bpk h/a Merkel Motors v Bodenstein 1980 (3) SA 917 (A) 270
Akasia Road Surfacing (Pty) Ltd v Shoredits Holdings Ltd
[2002] 3 All SA 117 (A); 2002 (3) SA 346 (SCA) 299
Aktiebolaget Hässle v Triomed (Pty) Ltd
[2002] 4 All SA 138 (SCA); 2003 (1) SA 155 (SCA) 280
Alberts v Engelbrecht 1961 (2) SA 644 (T) 353
Albertus v Jacobs 1975 (3) SA 836 (W) 128
Albertyn v Kumalo 1946 WLD 529 187
Aldeia v Coutinho 1997 (4) SA 295 (O) 183
Alderson & Flitton (Tzaneen) (Pty) Ltd v EG Duffeys Spares (Pty) Ltd 1975 (3) SA 41 (T)
6, 7
Alex Carriers (Pty) Ltd v Kempston Investments (Pty) Ltd 1998 (1) SA 662 (E) 64
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506 (A) 96, 233
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1977 (4) SA 310 (T) 96, 101
Algoa Milling Co Ltd v Arkell & Douglas 1918 AD 145 189
Aliwal North Municipality v Crawford 1964 (1) SA 344 (A) 37
Alpha Trust (Edms) Bpk v Van der Watt 1975 (3) SA 734 (A) 357
Altech Data (Pty) Ltd v MB Technologies (Pty) Ltd 1998 (3) SA 748 (W) 32, 33
Alum-Phos (Pty) Ltd v Spatz [1997] 1 All SA 616 (W) 93
Amalgamated Banks of South Africa Bpk v de Goede
[1997] 2 All SA 427 (A); 1997 (4) SA 66 (SCA) 237
Amar v Amar [1999] 2 All SA 376 (W); 1999 (3) SA 604 (W) 152
Amavuba (Pty) Ltd v Pro Nobis Landgoed (Edms) Bpk
1984 (3) SA 760 (N); 1986 (1) SA 448 (A) 115, 220
Amod v Andrews Bakery (Pty) Ltd 1965 (2) SA 433 (T) 266
Amod Salie v Ragoon 1903 TS 100 261
Anderson Shipping (Pty) Ltd v Polysius (Pty) Ltd 1995 (3) SA 42 (A) 63
Andrews v Lidaks 1971 (1) SA 892 (W) 172
Andy’s Electrical v Laurie Sykes (Pty) Ltd 1979 (3) SA 341 (N) 334, 335
APA Network Consultants (Pty) Ltd v ABSA Bank Ltd 1996 (1) SA 1159 (W) 57, 71
Appleton v Harnischfeger Corporation 1995 (2) SA 247 (A) 110
Arend v Astra Furnishers (Pty) Ltd 1974 (1) SA 298 (C) 157
Arendse v Roode 1989 (1) SA 763 (C) 190
Argus Printing & Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A) 133, 135, 136
Argus Printing & Publishing Co Ltd v Inkatha Freedom Party 1992 (3) SA 579 (A) 133
Argus Printing & Publishing Co Ltd v Rutland 1953 (3) SA 446 (C) 137
Argus Printing & Publishing Co Ltd v Weichardt 1940 CPD 453 135
Aris Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A) 166
Aris Enterprises (Finance) (Pty) Ltd v Waterberg Koelkamers (Pty) Ltd
1977 (2) SA 425 (A) 268
Arthur v Bezuidenhout & Mieny 1962 (2) SA 566 (A) 257
Asa Investments (Pty) Ltd v Smit 1980 (1) SA 897 (C) 330
Ashbury Park (Pty) Ltd v Dawjee NO [2002] 1 All SA 137 (N) 28, 156
Aspeling NO v Joubert 1919 AD 1677
Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit
[2000] 2 All SA 115 (A); 2000 (2) SA 789 (SCA) 295
Associated SA Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd
1982 (3) SA 893 (A) 269, 290
Atkinson Oates Motors Ltd v Trust Bank of Africa Ltd 1977 (3) SA 188 (W) 7
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1978 (4) SA 696 (T) 338
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd
1981 (2) SA 173 (T) 93, 277, 343

Atteridgeville Town Council v Livanos t/a Livanos Brothers Electrical 1992 (1) SA 296 (A)
33
Attorney-General, Namibia: In re Corporal Punishment by Organs of State, Ex parte
1991 (3) SA 76 (NmSC) 45
Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund v Tony Allem (Pty) Ltd
1990 (2) SA 665 (A) 51
Aussenkehr Farms (Pty) Ltd v Trio Transport CC
[2002] 3 All SA 309 (A); 2002 (4) SA 483 (SCA) 67, 295
Autolec Ltd v Du Plessis 1965 (2) SA 243 (O) 167
Avis v Verseput 1943 AD 331 155
B & B Hardware Distributors (Pty) Ltd v Administrator, Cape 1989 (1) SA 957 (A) 166
B & H Engineering v First National Bank of SA Ltd 1995 (2) SA 279 (A) 56, 89, 263
Babha v Bothner & Sons Ltd 1951 (1) SA 12 (T) 120
Badenhorst v Marks 1911 TPD 144 211
Badenhorst v Prinsloo 1967 (1) SA 212 (O) 235
Badenhorst v Van Rensburg 1985 (2) SA 321 (T) 95
Bailes v Highveld 7 Properties (Pty) Ltd [1998] 3 All SA 205 (N); 1998 (4) SA 42 (N) 30
Baker v Probert 1985 (3) SA 429 (A)103
Baking Investments (Pty) Ltd v Britz 1978 (3) SA 1067 (T) 116
Baldeo v Minister of Safety and Security, RSA [1998] 1 All SA 285 (D) 287
Baldric Farms (Pty) Ltd v Wessels 1994 (3) SA 425 (A) 8
Bam v Dorbyl Vehicle Trading & Finance Co (Pty) Ltd 1995 (2) SA 65 (TkA) 119, 120
Bank of Lisbon & SA Ltd v De Ornelas 1988 (3) SA 580 (A) 185
Bank of Lisbon International Ltd v Venter 1990 (4) SA 463 (A) 109
Bank Windhoek Bpk v Rajie 1994 (1) SA 115 (A) 270
Bankorp Ltd v Hendler 1992 (4) SA 375 (W) 56

Barclays National Bank Ltd v Kalk 1981 (4) SA 291 (W) 192
Barclays National Bank Ltd v Thompson 1989 (1) SA 547 (A) 174
Barclays National Bank Ltd v Wall 1983 (1) SA 149 (A) 283
Baring Eiendomme BK v Roux [2001] 1 All SA 399 (SCA)163
Barker NO v Chadwick 1974 (1) SA 461 (D) 291
Barkhuizen v Forbes 1998 (1) SA 140 (E) 155
Barlow Rand Ltd v Lebos 1985 (4) SA 341 (T) 223
Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Lebos
1985 (4) SA 341 (T) 48, 52
Barlow Rand Ltd t/a Barlow Noordelike Masjinerie Maatskappy v Self-Arc (Pty) Ltd
1986 (4) SA 488 (T) 68
Barlows Tractor Co (Pty) Ltd v Townsend [1996] 2 All SA 105 (A); 1996 (2) SA 869 (A)329
Barnes v Union & SWA Insurance Co Ltd 1977 (3) SA 502 (E) 237
Page
Barnett v Abe Swersky & Associates 1986 (4) SA 407 (C) 105
Basil Read Sun Homes (Pty) Ltd v Nedperm Bank Ltd
[1999] 1 All SA 285 (A); 1999 (1) SA 831 (SCA) 71, 72
Basson v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund Board of Control
1957 (3) SA 490 (C) 51
Basson v Chilwan 1993 (3) SA 742 (A) 304
Bata Ltd v Face Fashions CC 2001 (1) SA 844 (SCA) 339
Bayer SA (Pty) Ltd v Frost 1991 (4) SA 559 (A) 260
Beaumont v Beaumont 1987 (1) SA 967 (A) 151
Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A) 238
Beckwith v Foundation Investment Co 1961 (4) SA 510 (A) 163
Bedford v Uys 1971 (1) SA 549 (C) 189
Beecham Group plc v Southern Transvaal Pharmaceutical Pricing Bureau (Pty) Ltd
1993 (1) SA 546 (A) 338
Bekazaku Properties (Pty) Ltd v Pam Golding Properties (Pty) Ltd
[1996] 1 All SA 509 (C); 1996 (2) SA 537 (C) 99
Bekker v Oos-Vrystaat Kaap Koöperasie Bpk [2000] 3 All SA 301 (A) 186, 322
Bekker NO v Duvenhage 1977 (3) SA 884 (E) 189
Bell, Van Niekerk & Van Niekerk v Oudebaaskraal (Edms) Bpk 1985 (1) SA 127 (C) 129
Bellairs v Hodnett 1978 (1) SA 1109 (A) 102, 285, 290
Benade v Boedel Alexander 1967 (1) SA 648 (O) 15
Benede Sand Boerdery (Edms) Bpk v Virginia Munisipaliteit 1992 (4) SA 176 (A) 178
Benjamin v Gurewitz 1973 (1) SA 418 (A) 298
Benlou Properties (Pty) Ltd v Vector Graphics (Pty) Ltd 1993 (1) SA 179 (A) 218
Bennett v Minister of Police 1980 (3) SA 24 (C) 43, 44, 190, 191
Benoni Town Council v Minister of Agricultural Credit & Land Tenure
1978 (1) SA 978 (T) 156
Bensimon v Barton 1919 AD 13 311
Benson v Robinson & Co (Pty) Ltd 1967 (1) SA 420 (A) 140
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 316
Benson v Walters 1984 (1) SA 73 (A) 49, 226, 294
Bentley and another v McPherson [1999] 2 All SA 89 (E); 1999 (3) SA 854 (E) 41
Bergkelder v Delheim Wines (Pty) Ltd 1980 (3) SA 620 (A) 69
Bergkelder, Die v Delheim Wines (Pty) Ltd 1980 (3) SA 1171 (C) 275, 276
Berman v Teiman 1975 (1) SA 756 (W) 29
Berman & Fialkov v Lumb [2002] 4 All SA 432 (C); 2003 (2) SA 677 (C) 49
Berman Bros (Pty) Ltd v Sodastream Ltd 1986 (3) SA 209 (A) 277, 338
Bertelsmann v Per 1996 (2) SA 375 (T) 126
Bester v Van Niekerk 1960 (2) SA 779 (A) 271
Bester v Van Zyl 1972 (4) SA 580 (T) 219

Bestuursraad van Sebokeng v M&K Trust & Finansiële Maatskappy (Edms) Bpk
1973 (3) SA 376 (A) 177
Beukes v Claassen 1986 (4) SA 495 (O) 67
Beurain h/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921 (O) 256
Beyleveld NO v Southern Life Association Ltd 1987 (4) SA 238 (C) 22
Bezuidenhout v Otto 1996 (3) SA 339 (W) 95, 96
Bezuidenhout NO v Eskom [2003] 1 All SA 411 (SCA); 2003 (3) SA 83 (SCA) 348
Bhyat’s Departmental Store (Pty) Ltd v Dorklerk Investments (Pty) Ltd
1975 (4) SA 881 (A) 187
Bibi v Variawa 1965 (4) SA 675 (N) 61
Big Dutchman (SA) (Pty) Ltd v Barclays National Bank Ltd 1979 (3) SA 267 (W)55
Bill Harvey’s Investment Trust (Pty) Ltd v Oranjegezicht Citrus Estates (Pty) Ltd
1958 (1) SA 479 (A) 184
Biotech Laboratories (Pty) Ltd v Beecham Group PLC
[2002] 3 All SA 652 (A); 2002 (4) SA 249 (SCA) 111
Bird v Sumerville 1961 (3) SA 194 (A) 163
Bischofberger v Van Eyk 1981 (2) SA 607 (W) 189
Bisschop v Stafford 1974 (3) SA 1 (A) 292
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979 (1) SA 391 (A) 172, 233, 234, 235
Blackie Swart Argitekte v Van Heerden 1986 (1) SA 249 (A) 50, 166, 335
Blaikie-Johnstone v P Hollingsworth (Pty) Ltd 1974 (3) SA 392 (D) 302
Bloemfontein Town Council v Richter 1938 AD 195 265
Blou Bul Boorkontrakteurs v McLachlan 1991 (4) SA 283 (T) 85
Blower v Van Noorden 1909 TS 890 24
Blue Circle Projects (Pty) Ltd v Klerksdorp Municipality 1990 (1) SA 469 (T) 34
Blue Lion Manufacturing (Pty) Ltd v National Brands Ltd

[2001] 4 All SA 235 (SCA); 2001 (3) SA 884 (SCA) 276, 278, 342
Blyth v Van den Heever 1980 (1) SA 191 (A) 224, 241
BMW Financial Services (SA) (Pty) Ltd v Mogotsi
[1999] 4 All SA 415 (W); 1999 (3) SA 384 (W) 120
BMW Financial Services (SA) (Pty) Ltd v Rathebe
[2002] 2 All SA 571 (W); 2002 (2) SA 368 (W) 120
BOE Bank Bpk v Van Zyl 2002 (5) SA 165 (C) 157, 341
BoE Bank Ltd v Ries [2002] 2 All SA 247 (A); 2002 (2) SA 39 (SCA) 222
Boland Bank Bpk v Steele 1994 (1) SA 259 (T) 303, 333
Bonheim v South British Ins Co Ltd 1962 (3) SA 259 (A) 361
Bonne Fortune Beleggings Bpk v Kalahari Salt Works (Pty) Ltd 1974 (1) SA 414 (NC) 334
Bonnet v Department of Agricultural Credit & Land Tenure 1974 (3) SA 737 (T) 178
Bonnet v Schofield 1989 (2) SA 156 (D) 304
Boompret Investments (Pty) Ltd v Paardekraal Concession Store (Pty) Ltd
1990 (1) SA 347 (A) 169
Bopape v Moloto [1999] 4 All SA 277 (T); 2000 (1) SA 383 (T) 156
Borcherds v Estate Naidoo 1955 (3) SA 78 (A) 15
Borgin v De Villiers 1980 (3) SA 556 (A) 142
Born v Born 1970 (4) SA 560 (C) 20
Borstlap v Spangenberg 1974 (3) SA 695 (A) 355
Boshoff v Union Government 1932 TPD 345 169
Boshoff v Van Zyl 1938 CPD 464 239
Boshoff t/a Etosha Meubelvervoerders v M Pupkewitz & Sons (Pty) Ltd
1984 (2) SA 24 (SWA) 64, 235
Bosman NO v Tworeck 2000 (3) SA 590 (C) 318
Boswell v Union Club of SA (Durban) 1985 (2) SA 162 (D) 192
Botes v Toti Development Co (Pty) Ltd 1978 (1) SA 205 (T) 87

Botes v Van Deventer 1966 (3) SA 182 (A) 224
Botha v Fick 1995 (2) SA 750 (A) 66
Botha v Guardian Assurance Co Ltd 1949 (2) SA 223 (G) 323
Botha v Mazeka 1981 (3) SA 191 (A) 270
Botha v Potch Motors (Edms) Bpk 1963 (1) SA 279 (T) 118
Botha v Smit 1976 (4) SA 885 (A) 163
Botha v Themistocleous 1966 (1) SA 107 (T) 49
Botha (now Griessel) v Finanscredit (Pty) Ltd 1989 (3) SA 773 (A)109
Botha NO v EM Mchunu & Co 1992 (4) SA 740 (N) 226
Bouwer v Adelford Motors (Pty) Ltd 1970 (4) SA 286 (E) 176
Bouwer v Harding [1997] 3 All SA 415 (SE); 1997 (4) SA 1023 (SE) 51
Bouwer v Stadsraad van Johannesburg 1979 (3) SA 37 (A) 333
Bowater v Rowley Regis Corp 1944 1 KB 476 353
Bowley Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd
[1996] 1 All SA 383 (T); 1996 (2) SA 393 (T) 258
Bowman NO v Fidelity Bank Ltd [1997] 1 All SA 317 (A); 1997 (2) SA 35 (SCA) 86,
87
Boyce NO v Bloem 1960 (3) SA 855 (T) 263
Brand v Minister of Justice 1959 (4) SA 712 (A) 40
Bray v Protea Assurance Co Ltd 1990 (1) SA 776 (T) 250
Brayshaw v Schoeman 1960 (1) SA 625 (A) 163
Braz v Afonso [1997] 4 All SA 428 (SCA); 1998 (1) SA 573 (SCA) 69
Breedt v Elsie Motors (Edms) Bpk 1963 (3) SA 525 (A) 184, 194
Brenner v Botha 1956 (3) SA 257 (T) 190
Brett v Schultz 1982 (3) SA 286 (SE) 140
Bridgestone Firestone Maxiprest Ltd v Taylor [2003] 1 All SA 299 (N) 304
Brisley v Drotsky 2002 (4) SA 1 (SCA) 186

Bristow v Lycett 1971 (4) SA 223 (RA) 358, 359
British Kaffrarian Savings Bank Society v Attorneys, Notaries & Conveyancers Fidelity
Guarantee Fund Board of Control 1978 (3) SA 242 (E) 50
Brits v Coetzee 1967 (3) SA 570 (T) 219
Britz v Weideman 1946 OPD 144 285
Brooklyn House Furnishers (Pty) Ltd v Knoetze & Sons 1970 (3) SA 264 (A) 226
Broude v McIntosh 1998 (2) SA 555 (SCA); 1998 (3) SA 60 (SCA) 46, 241
Brown v Hoffman 1977 (2) SA 556 (NC) 44, 45
Brown v Vlok 1925 AD 56 314
Bruce NO v Berman 1963 (3) SA 21 (T) 51
Brudd Lines (Pty) Ltd v Badsey (1) 1973 (3) SA 972 (T) 147
Brummer v Gorfil Brothers Investments (Pty) Ltd
[1999] 2 All SA 127 (SCA); 1999 (3) SA 389 (SCA) 66
Bruwer v Joubert 1966 (3) SA 334 (A) 20
Bull v Taylor 1965 (4) SA 29 (A) 61, 62, 192, 310, 311
Buls v Tsatsarolakis 1976 (2) SA 891 (T) 241
Burnkloof Caterers (Pty) Ltd v Horseshoe Caterers (Green Point) (Pty) Ltd
1976 (2) SA 930 (A) 275, 276
Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) 307
Burt NO v National Bank of SA Ltd 1921 AD 59 335
Buthelezi v Poorter 1975 (4) SA 608 (W) 137
Buthelezi v South African Broadcasting Corporation
[1998] 1 All SA 147 (D); 1997 (12) BCLR 1733 (D) 139
Buzzard Electrical (Pty) Ltd v 158 Jan Smuts Avenue Investments (Pty) Ltd
[1996] 3 All SA 1 (A); 1996 (4) SA 19 (SCA) 86, 87, 226
C v C 1958 (3) SA 547 (SR) 191

C & T Products (Pty) Ltd v MH Goldschmidt (Pty) Ltd 1981 (3) SA 619 (C) 207
Caldeira v Ruthenberg [1999] 1 All SA 519 (A); 1999 (4) SA 37 (SCA) 167
Calder-Potts v McMillan 1956 (3) SA 360 (E) 24
Caledon & Suid-Westelike Distrikte Eksekuteurs-Kamer Bpk v Wentzel
1972 (1) SA 270 (A) 270
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) 79
Callender-Easby v Grahamstown Municipality 1981 (2) SA 810 (E) 175
Callinicos v Burman 1963 (1) SA 489 (A) 222, 324, 325
Cambridge Plan AG v Moore 1987 (4) SA 821 (D) 93
Cape Killarney Property Investment (Pty) Ltd v Mahamba
[2001] 4 All SA 479 (A); 2001 (4) SA 1222 (SCA) 171
Cape Metropolitan Council v Graham [2001] 1 All SA 215 (A); 2001 (1) SA 1197 (SCA) 257
Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A) 81
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO
[2001] 1 All SA 627 (W); 2001 (2) SA 182 (W) 105
Cape Produce Co (PE) (Pty) Ltd v Dal Maso NO 2002 (3) SA 752 (SCA) 327
Cape Town Council v Benning 1917 AD 315 8
Cape Town Municipality v Bakkerud [2000] 3 All SA 171 (A); 2000 (3) SA 1049 (SCA) 223
Capital Estate & General Agencies (Pty) Ltd v Holiday Inns Inc
1977 (2) SA 916 (A) 274, 275, 276, 277
Card v Sparg 1984 (4) SA 667 (E) 310, 311
Carlis v McCusker 1904 TS 917 87
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC) 223
Carroll v Menzies 1961 (4) SA 672 (N) 19
Carter & Co (Pty) Ltd v McDonald 1955 (1) SA 202 (A) 348
Cash Converters Southern Africa (Pty) Ltd v Rosebud
Western Province Franchise (Pty) Ltd [2001] 3 All SA 179 (C); 2002 (1) SA 708 (C) 334
Castell v De Greef 1993 (3) SA 501 (C) 241
Castell v De Greef 1994 (4) SA 408 (C) 241
Caterham Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
[1998] 3 All SA 175 (A); 1998 (3) SA 947 (SCA) 94, 274, 275, 278
Caxton Ltd v Reeva Forman (Pty) Ltd 1990 (3) SA 547 (A) 133, 137
Cecil Jacobs (Pty) Ltd v Macleod & Sons 1966 (4) SA 41 (N) 334
CGEE Alsthom Equipments et Enterprises Electriques v GKN Sankey (Pty) Ltd
1987 (1) SA 81 (A) 97
Chamotte (Pty) Ltd v Carl Coetzee (Pty) Ltd 1973 (1) SA 644 (A) 233
Chapman Dyer Miles & Moorhead Inc v Highmark Investment Holdings CC
[1997] 4 All SA 247 (D); 1998 (3) SA 608 (D) 49
Chapmans Peak Hotel (Pty) Ltd v Jab and Annalene Restaurants CC t/a O’Hagans
[2001] 4 All SA 415 (C) 266
Chauke v Santam Ltd 1997 (1) SA 178 (A) 250
Chelsea West (Pty) Ltd v Roodebloem Investments (Pty) Ltd 1994 (1) SA 837 (C)32
Chetty v Naidoo 1974 (3) SA 13 (A) 120, 350, 351
Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163 212, 213
Christian Education SA v Minister of Education 2000 (4) SA 757 (CC) 45
Chrysafis v Katsapas 1988 (4) SA 818 (A) 79, 109
Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd
[2002] 2 All SA 525 (A); 2002 (2) SA 447 (SCA) 215
Ciliza v Minister of Police 1976 (4) SA 243 (N) 191
City Council of Pretoria v De Jager [1997] 1 All SA 635 (SCA); 1997 (2) SA 46 (SCA) 257
City Council of the City of Durban v Rumdel Construction (Pty) Ltd
[1997] 3 All SA 20 (D) 298

CJ Mathebula t/a Nxolwane Bottle Store v University of the North
[1998] 3 All SA 477 (T) 80, 168
Claassen v Van der Watt 1969 (3) SA 68 (T)62, 310
Clarke Brothers & Brown (1913) Ltd v Truck & Car Co Ltd 1952 (3) SA 479 (W) 119
Clarkson NO v Gelb 1981 (1) SA 288 (W) 14
Classen v Ann Fenwick Eiendomme Bpk 1996 (2) SA 99 (O) 108
Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) 24, 25
Clegg v Groenewald 1970 (3) SA 90 (C) 97
Clements v Simpson 1971 (3) SA 1 (A) 29, 307
Clifford v Commercial Union Insurance Co of SA Ltd 1998 (4) SA 150 (SCA) 202
Clifford Harris (Pty) Ltd v SGB Building Equipment (Pty) Ltd 1980 (2) SA 141 (T) 279
Cloete v Karee-Aar Landgoed Bpk [1997] 2 All SA 700 (NC); 1997 (3) SA 30 (NC) 346
Cockroft v Baxter 1955 (4) SA 93 (C) 195, 260
Coertzen v Gerard NO 1997 (2) SA 836 (O) 156
Coetzee v ABSA Bank Bpk 1997 (4) SA 85 (T) 57
Coetzee v Attorneys’ Insurance Fidelity Fund
[2002] 4 All SA 509 (SCA); 2003 (1) SA 1 (SCA) 203
Coetzee v Comitis [2001] 1 All SA 538 (C); 2001 (1) SA 1254 (C) 304
Coetzee v De Beer 1959 (1) SA 690 (T) 306
Coetzee (Sheriff, Pretoria East) v Meevis [2001] 1 All SA 10 (A); 2001 (3) SA 454 (SCA)
239
Coetzee & Sons v Smit 1955 (2) SA 553 (A)9, 11
Coetzer v Mosenthals Ltd 1963 (4) SA 22 (A) 22
Cohen Lazar & Co v Gibbs 1922 TPD 146 239
Cointreau et Cie SA v Pagan International 1991 (4) SA 706 (A) 338
Colin v De Guisti 1975 (4) SA 223 (NC) 232
Colonial Mutual Life Assurance Society Ltd v MacDonald 1931 AD 412 349
Colt Motors (Edms) Bpk v Kenny 1987 (4) SA 378 (T) 184
Columbus Joint Venture v ABSA Bank Ltd
[2002] 1 All SA 105 (SCA); 2002 (1) SA 90 (SCA) 57
Combustion Technology (Pty) Ltd v Technoburn (Pty) Ltd 2003 (1) SA 265 (C) 289
Comcorp (Pty) Ltd v Quipmor CC 1998 (2) SA 599 (D) 315
Commercial Careers College (Pvt) Ltd v Forest View (Pvt) Ltd 1979 (2) SA 402 (RA) 220
Commercial Union Ins of SA Ltd v Lotter
[1999] 1 All SA 235 (A); 1999 (2) SA 147 (SCA) 201
Commercial Union Trade Finance v Republic Bottlers of SA (Pty) Ltd t/a
Booth’s Bottle Store 1992 (4) SA 728 (D) 69
Commissioner for Customs & Excise v Standard General Ins Co Ltd
2001 (1) SA 978 (SCA) 293
Commissioner for Inland Revenue v Bowman NO 1990 (3) SA 311 (A) 197
Commissioner for Inland Revenue v First National Industrial Bank Ltd
1990 (3) SA 641 (A) 87, 157, 205
Commissioner for SARS v Mendes [2001] 2 All SA 316 (SE); 2001 (4) SA 934 (SE) 77
Commissioner of Customs & Excise v Bank of Lisbon International Ltd
1994 (1) SA 205 (N) 13
Community Development Board v Mahomed NNO 1987 (2) SA 899 (A) 179
Compagnie Interafricaine de Travaux v SA Transport Services 1991 (4) SA 217 (A) 131
Composting Engineering (Pty) Ltd v The Taxing Master 1985 (3) SA 249 (C) 49
Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A) 270, 350
Cone Textiles (Pvt) Ltd v Mather & Platt (SA) (Pty) Ltd 1981 (3) SA 565 (ZA) 37
Conradie v Hanekom [1999] 2 All SA 525 (LCC); 1999 (4) SA 491 (LCC)170
Conress (Pty) Ltd v Gallic Construction (Pty) Ltd 1981 (3) SA 73 (W) 32
Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd
[2002] 1 All SA 517 (C); 2002 (2) SA 580 (C) 115

Consolidated Frame Cotton Corp Ltd v Sithole 1985 (2) SA 18 (N) 23
Continental Illinois National Bank & Trust Co of Chicago v
Greek Seamen’s Pension Fund 1989 (2) SA 515 (D) 23
Continental Linen Co (Pty) Ltd v Kenpet Agency (Pty) Ltd 1986 (4) SA 703 (T) 280
Cook v Muller 1973 (2) SA 240 (N) 228
Cooper NO v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) 198
Cooper NO v South African Mutual Life Assurance Society
[2001] 1 All SA 355 (A); 2001 (1) SA 967 (SCA) 80
Cordier v Cordier 1984 (4) SA 524 (C) 295
Corlett Drive Estates v Boland Bank Bpk 1979 (1) SA 863 (C) 209
Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982 (4) SA 371 (D) 222, 225
Correira v Berwind 1986 (4) SA 60 (ZH) 2
Courtis Rutherford & Sons CC v Sasfin (Pty) Ltd [1999] 3 All SA 639 (C) 108
Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) 119, 183
Cowbell AG v ICS Holdings Ltd [2001] 4 All SA 242 (SCA); 2001 (3) SA 941 (SCA) 338
Crause v Ocean Bentonite Co (Edms) Bpk 1979 (1) SA 1076 (O) 85
Crawford v Albu 1917 AD 102 142, 143
Credit Corporation of SA Ltd v Bosman 1958 (3) SA 845 (T) 121
Credit Corporation of SA Ltd v Roy 1966 (1) SA 12 (D) 229
Credit Corporation of SA Ltd v Swart 1959 (1) SA 555 (O) 118
Cresto Machines (Edms) Bpk v Die Afdeling Speuroffisier SA Polisie Noord-Transvaal
1972 (1) SA 376 (A) 40
Crispette & Candy Co Ltd v Oscar Michaelis NO 1947 (4) SA 521 (A) 307, 333
Cromhout v Multilateral Motor Vehicle Accidents Fund; Santam Ltd v Williams
[1997] 4 All SA 491 (A); 1998 (1) SA 563 (SCA) 249
Crookes NO v Watson 1956 (1) SA 277 (A) 105

CTP Ltd v Independent Newspapers Holdings Ltd 1999 (1) SA 452 (W) 303
Cullen v Zuidema 1951 (3) SA 817 (C) 215
Cullinan v Noordkaaplandse Aartappelkernmoerkwekers Koöperasie Bpk
1972 (1) SA 761 (A) 67
Culverwell v Brown 1990 (1) SA 7 (A) 301
Cumes v Estate Cumes 1950 (2) SA 15 (C) 15
Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A) 100, 119, 121, 302
D Glaser & Sons (Pty) Ltd v The Master NO 1979 (4) SA 780 (C) 226
D-Jay Corpn CC v Investor Management Services (Pty) Ltd
[1996] 4 All SA 650 (W); 2000 (2) SA 755 (W) 115
Da Silva v Coetzee 1970 (3) SA 603 (T) 11
Da Silva v Coutinho 1971 (3) SA 123 (A) 222, 324
Da Silva v Janowski 1982 (3) SA 205 (A) 23, 95
Da Silva v Otto 1986 (3) SA 538 (T) 10
Dabelstein v Lane and Fey NNO [2001] 1 All SA 532 (SCA); 2001 (1) SA 1222 (SCA) 197
Daimler Chrysler Aktiengesellschaft v Afinta Motor Corporation (Pty) Ltd
[2001] 2 All SA 219 (T) 275
Dale v Fun Furs (Pty) Ltd 1968 (3) SA 264 (O) 355
Dale Street Congregational Church v Hendrickse 1992 (1) SA 133 (E) 5
Dali v Government of the Republic of South Africa [2000] 3 All SA 206 (A) 87
Dalinga Beleggings (Pty) Ltd v Antina (Pty) Ltd 1979 (2) SA 56 (A) 172, 233, 234
Dalrymple, Frank & Feinstein v Friedman (2) 1954 (4) SA 649 (W) 184
Damont NO v Van Zyl 1962 (4) SA 47 (C) 229
Dantex Investment Holdings (Pty) Ltd v Brenner NNO 1989 (1) SA 390 (A) 183, 288
Datacolor International (Pty) Ltd v Intamarket (Pty) Ltd
[2001] 1 All SA 581 (A); 2001 (2) SA 284 (SCA) 99, 246, 247, 301
Dave v Birrell 1936 TPD 192 233
Davehill (Pty) Ltd v Community Development Board 1988 (1) SA 290 (A) 179, 206
Davel v Swanepoel 1954 (1) SA 383 (A) 311
Davenport Corner Tea Room (Pty) Ltd v Joubert 1962 (2) SA 709 (D) 216
David Beckett Construction (Pty) Ltd v Bristow 1987 (3) SA 275 (W) 315
David Trust v Aegis Insurance Co Ltd [2000] 2 All SA 297 (A); 2000 (3) SA 289 (SCA) 21
Davies v Lombard 1966 (1) SA 585 (W) 142, 286
Davis v Pietermaritzburg City Council 1989 (3) SA 765 (A) 178
De Beer v Coetzee 1956 (3) SA 263 (T) 306
De Beer v Keyser [2002] 1 All SA 368 (A); 2002 (1) SA 827 (SCA) 97
De Beer v Rondalia Versekeringskorp van SA Bpk 1971 (3) SA 614 (O) 333
De Beer v Van der Merwe 1923 AD 378 345
De Charmoy v Day Star Hatchery (Pty) Ltd 1967 (4) SA 188 (D) 265, 266
De Coning v Monror Estate & Investment Co (Pty) Ltd 1974 (3) SA 72 (E) 164
De Franca v Exhaust Pro CC (De Franca Intervening)
[1996] 4 All SA 503 (SE); 1997 (3) SA 878 (SE) 76
De Jager v ABSA Bank Bpk [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) 186, 295,
356
De Jager v Grunder 1964 (1) SA 446 (A) 155, 184
De Klerk v ABSA Bank Ltd [2003] 1 All SA 651 (SCA) 127, 224
De Klerk v Old Mutual Insurance Co Ltd 1990 (3) SA 34 (E) 166
De La Rey’s Transport (Edms) Bpk v Lewis 1978 (1) SA 797 (A) 128
De Meillon v Montclair Society of the Methodist Church of SA 1979 (3) SA 1365 (D) 354
De Pinto v Rensea Investments (Pty) Ltd 1977 (4) SA 529 (A) 130
De Villiers v Galloway 1943 AD 4398
De Villiers v Schutte 2001 (3) SA 834 (C) 134
De Villiers v Stadsraad van Mamelodi 1995 (4) SA 347 (T) 178

De Wet v Western Bank Ltd 1977 (4) SA 770 (T) 212
De Wet v Western Bank Ltd 1979 (2) SA 1031 (A) 212
De Wet NO v Uys NO 1998 (4) SA 694 (T) 99
De Zwaan v Nourse 1903 TS 814 36
Deedat v Muslim Digest 1980 (2) SA 922 (D) 134
Delfante v Delta Electrical Industries Ltd 1992 (2) SA 221 (C) 32, 33
Delfs v Kuehne & Nagel (Pty) Ltd 1990 (1) SA 822 (A) 96
Demmers v Wyllie 1978 (4) SA 619 (D) 134
Dennis Peters Investments (Pty) Ltd v Ollerenshaw 1977 (1) SA 197 (W) 85
Densam (Pty) Ltd v Cywilnat (Pty) Ltd 1991 (1) SA 100 (A) 66
Desai v Mohamed 1976 (2) SA 709 (N) 356
Design & Planning Service v Kruger 1974 (1) SA 689 (T) 89
Desmond Isaacs Agencies (Pty) Ltd v Contemporary Displays 1971 (3) SA 286 (T) 307
Dettmann v Goldfain 1975 (3) SA 385 (A) 66, 269
Dexion Europe Ltd v Universal Storage Systems (Pty) Ltd
[2002] 4 All SA 67 (SCA); 2003 (1) SA 31 (SCA) 113, 146
Dharampul Transport (Pty) Ltd v Dharampal 1956 (1) SA 700 (A) 174
Dhlomo NO v Natal Newspapers (Pty) Ltd 1989 (1) SA 945 (A) 133
Dhooma v Mehta 1957 (1) SA 676 (D) 51
Di Giulio v First National Bank of SA Ltd 2002 (6) SA 281 (C) 55, 327
Diamond v Kernick 1947 (3) SA 69 (A) 244
Dickinson v SA General Electric Co (Pty) Ltd 1973 (2) SA 620 (A) 69
Dickinson Motors (Pty) Ltd v Oberholzer 1952 (1) SA 443 (A) 244
Diedericks v Minister of Lands 1964 (1) SA 49 (N) 245
Diemer v Solomon 1982 (4) SA 13 (C) 20
Diepsloot Residents’ and Landowners’ Association v Administrator Transvaal
1994 (3) SA 336 (A) 323

Dilokong Chrome Mines (Edms) Bpk v Direkteur-Generaal,
Departement van Handel & Nywerheid 1992 (4) SA 1 (A) 95
Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) 128
Dirk Fourie Trust v Gerber 1986 (1) SA 763 (A) 90
Distinct Investments (Pty) Ltd v Arhay CC; Bloom v Das Neves [1997] 2 All SA 513 (W)
219
Divisional Commissioner of SA Police Witwatersrand Area v
SA Associated Newspapers Ltd 1966 (2) SA 503 (A) 40
Dlakela v Transkei Electricity Supply Commission
[1997] 3 All SA 301 (Tk); 1997 (4) SA 523 (Tk) 158
Dodd v Estate Cloete 1971 (1) SA 376 (E) 336
Dodd v Multilateral Motor Vehicle Accidents Fund
[1997] 1 All SA 68 (A); 1997 (2) SA 763 (A) 250
Dominion Earthworks (Pty) Ltd v MJ Greef Electrical Contractors (Pty) Ltd
1970 (1) SA 228 (A) 101, 103, 115, 234, 235
Dorbyl Vehicle Trading & Finance Co (Pty) Ltd v Klopper 1996 (2) SA 237 (N) 119
Dorland v Smits [2002] 3 All SA 691 (C); 2002 (5) SA 374 (C) 222, 266
Dorman Long Swan Hunter (Pty) Ltd v Karibib Visserye Ltd 1984 (2) SA 462 (C) 96
Douglas Green Bellingham v Green t/a Greens Bottle Recyclers
[1997] 4 All SA 423 (A); 1998 (1) SA 367 (SCA) 283
Dowson & Dobson Industrial Ltd v Van der Werf 1981 (4) SA 417 (C) 327
Doyle v Board of Executors [1999] 1 All SA 309 (C); 1999 (2) SA 805 (C) 5
Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A) 5
Drennan Maud & Partners v Town Board of the Township of Pennington
[1998] 2 All SA 571 (SCA); 1998 (3) SA 200 (SCA) 294
Dreyer v Tuckers Land & Development Corp (Pty) Ltd 1981 (1) SA 1219 (T) 228
Du Plessis v Doubells Transport (Edms) Bpk 1979 (1) SA 1046 (O) 315
Du Plessis v Strydom 1985 (2) SA 142 (T) 35
Du Plessis NO v Oosthuizen 1999 (2) SA 191 (O) 77
Du Plessis NO v Phelps 1995 (4) SA 165 (C) 224
Du Preez v Boetsap Stores (Pty) Ltd 1978 (2) SA 177 (NC) 174
Du Toit v Atkinson’s Motors Bpk 1985 (2) SA 893 (A) 244, 245
Du Toit v Barclays Nasionale Bank Bpk 1985 (1) SA 563 (A) 327
Du Toit v De Beer 1955 (1) SA 469 (T) 114, 115
Du Toit v Vermeulen 1972 (3) SA 848 (A) 14, 74
Duarte v Lissack 1973 (3) SA 615 (D) 181, 182
Duburoro Investments (Pty) Ltd v Bock [2002] 3 All SA 571 (W) 329
Dun & Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd
1968 (1) SA 209 (C) 93, 343
Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) 21
Durban City Council v Association of Building Societies 1942 AD 27 131
Durban City Council v SA Board Mills Ltd 1961 (3) SA 397 (A) 353
Durban Picture Frame Co (Pty) Ltd v Jeena 1976 (1) SA 329 (D) 129
Durban’s Water Wonderland (Pty) Ltd v Botha
[1999] 1 All SA 411 (A); 1999 (1) SA 982 (SCA) 145, 224
Durity Alpha (Pty) Ltd v Vagg 1991 (2) SA 840 (A)23
Durity Omega (Pty) Ltd v Gauteng Civils CC 2000 (1) SA 165 (T) 76
Durr v ABSA Bank Ltd [1997] 3 All SA 1 (SCA); 1997 (3) SA 448 (SCA)56, 258
Dusheiko v Milburn 1964 (4) SA 648 (A) 214
Eagle Star Insurance Co Ltd v Willey 1956 (1) SA 330 (A) 202
East London Western Districts Farmers’ Association v Minister of Education &
Development Aid 1989 (2) SA 63 (A) 265, 319, 322
Eaton & Louw v Arcade Properties (Pty) Ltd 1961 (4) SA 233 (T); 1962 (3) SA 255 (A) 35
EBN Trading (Pty) Ltd v Commissioner for Customs and Excise
[2001] 3 All SA 117 (A); 2001 (2) SA 1210 (SCA) 314
Ebrahim v Pretoria Stadsraad 1980 (4) SA 10 (T) 169
Eden v Pienaar [2000] 3 All SA 632 (W); 2001 (1) SA 158 (W) 181, 182
Edouard v Administrator, Natal 1989 (2) SA 368 (D) 192
Edwards v Van Zyl 1951 (2) SA 93 (C) 286
Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman NO
[1997] 3 All SA 391 (A); 1997 (4) SA 302 (A) 242
Eileen Louvet Real Estate (Pty) Ltd v AFC Property Development Co (Pty) Ltd
1989 (3) SA 26 (A) 164
Eilon v Eilon 1965 (1) SA 703 (A) 148
Eksteen v Van Schalkwyk 1991 (2) SA 39 (T) 48
Electric Process Engraving & Stereo Co v Irwin 1940 AD 220 265
Electrical Contractors’ Association SA v Building Industries Federation SA (2)
1980 (2) SA 516 (T) 131, 132
Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A)
294
Elgin Engineering Co (Pty) Ltd v Hillview Motor Transport 1961 (4) SA 450 (D) 120
Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) 194, 343
Els v Minister of Law & Order 1993 (1) SA 12 (C) 239
Els NO v Jacobs 1989 (4) SA 622 (SWA) 15
Energy Measurements (Pty) Ltd v First National Bank of SA Ltd
[2002] 2 All SA 396 (W); 2001 (3) SA 132 (W) 59
Engen Petroleum Ltd v Kommandonek (Pty) Ltd
[2001] 1 All SA 636 (W); 2001 (2) SA 170 (W) 218
Engling v Bosielo 1994 (2) SA 388 (B) 318
Enocon Construction (Pty) Ltd v Palm Sixteen (Pty) Ltd 1972 (4) SA 511 (T) 86
Ensor NO v Nedbank Ltd 1978 (3) SA 110 (D) 197
Ensor NO v Rensco Motors (Pty) Ltd 1981 (1) SA 815 (A) 197
Epstein v Bell 1997 (1) SA 483 (D) 81
Erasmus v Davis 1969 (2) SA 1 (A) 127, 128, 224
Erasmus v Fourwill Motors (Edms) Bpk 1975 (4) SA 57 (T) 118
Erasmus v Venter 1953 (3) SA 828 (O) 22
Erf 3183/1 Ladysmith (Pty) Ltd v Commissioner for Inland Revenue 1996 (3) SA 942 (A)
314
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A) 283
Esbach v Steyn 1975 (4) SA 503 (A) 35
Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A) 70
Eskom v Rollomatic Engineering (Edms) Bpk 1992 (2) SA 725 (A) 270
Esquire Electronics Ltd v Executive Video 1986 (2) SA 576 (A) 338
Ess Kay Electronics Pte Ltd v First National Bank of Southern Africa Ltd
[2001] 1 All SA 315 (A); 2001 (1) SA 1214 (SCA) 348
Essa v Divaris 1947 (1) SA 753 (A) 64, 145
Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A) 127
Estate Agents Board v Mahadeo 1991 (3) SA 49 (N) 163
Estate Agents Board v Swart [1998] 4 All SA 373 (T); 1999 (1) SA 1097 (T) 164
Esterhuizen v Administrator, Transvaal 1957 (3) SA 710 (T) 44, 241
Esterhuizen v Holmes 1947 (2) SA 789 (T) 114
Eversmeyer (Pty) Ltd v Walker 1963 (3) SA 384 (T) 224, 256
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) 128, 222, 249
Ewing, McDonald & Co (Pty) Ltd v Heyns 1973 (3) SA 747 (NC) 68
Extel Industrial (Pty) Ltd v Crown Mills (Pty) Ltd
[1998] 4 All SA 465 (A); 1999 (2) SA 719 (SCA) 24, 334
F
F & I Advisors (Edms) Bpk v Eerste Nasionale Bank van Suidelike Afrika Bpk
[1998] 4 All SA 480 (SCA); 1999 (1) SA 515 (SCA) 186, 206
Fakroodeen v Fakroodeen NNO 1971 (3) SA 395 (D) 359
Fatti’s Engineering Co (Pty) Ltd v Vendick Spares (Pty) Ltd 1962 (1) SA 736 (T) 313
Faulkner v Freeman 1985 (3) SA 555 (C) 260
Faure v Britz NO 1981 (4) SA 346 (O) 16
Faure v Joubert NO 1979 (4) SA 939 (A) 54
Federation Internationale de Football v Bartlett 1994 (4) SA 722 (T) 277, 343
Fedgen Insurance Ltd v Leyds 1995 (3) SA 33 (A) 201
Feinstein v Niggli 1981 (2) SA 684 (A) 183, 184, 355
Fenhalls v Ebrahim 1956 (4) SA 723 (D) 13
Ferreira v Fouche 1949 (1) SA 67 (T) 272
Ferreira v SAPDC (Trading) Ltd 1983 (1) SA 235 (A) 329
Ficksburg Transport (Edms) Bpk v Rautenbach 1986 (2) SA 88 (O) 268
Ficksburg Transport (Edms) Bpk v Rautenbach 1988 (1) SA 318 (A) 269
Fidelity Guards Holdings (Pty) Ltd t/a Fidelity Guards v Pearmain
[1997] 4 All SA 650 (SE); 2001 (2) SA 853 (SE) 304
Field NNO v Compuserve (Pvt) Ltd 1991 (4) SA 490 (Z) 5
Filta-Matix (Pty) Limited v Freudenberg [1998] 1 All SA 239 (A);
1998 (1) SA 606 (SCA) 281
Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) 133, 190, 191
Finlay v Kutoane 1993 (4) SA 675 (W) 249
Fircone Investments (Pty) Ltd v Bank of Lisbon & SA Ltd 1982 (3) SA 700 (T) 330
Firestone SA (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A) 212, 213
Firs Investment Ltd, The v Levy Bros Estates (Pty) Ltd 1984 (2) SA 881 (A) 23, 164
First Consolidated Leasing and Finance Corporation Ltd v NM Plant Hire (Pty) Ltd
1988 (4) SA 924 (W) 120, 122

First National Bank of SA Ltd v Lynn NO [1996] 1 All SA 229 (SCA); 1996 (2) SA 339 (A)
90
First National Bank of SA Ltd v Quality Tyres (1970) (Pty) Ltd
1995 (3) SA 556 (A) 57, 71
First National Bank of SA Ltd v Perry NO [2001] 3 All SA 331 (A);
2001 (3) SA 960 (SCA) 187
First National Bank of SA Ltd v Richards Bay Taxi Centre (Pty) Ltd
[1999] 2 All SA 533 (N) 95
First National Bank of SA Ltd v Rosenblum
[2001] 4 All SA 355 (A); 2001 (4) SA 189 (SCA) 144
Fitt v Louw 1970 (3) SA 73 (T) 195
Flax v Murphy 1991 (4) SA 58 (W) 266
Fluxman v Brittain 1941 AD 273 229, 247
Foentjies v Beukes 1977 (4) SA 964 (E) 218
Food & Nutritional Products (Pty) Ltd v Neumann 1986 (3) SA 464 (W) 80
Foodworld Stores Distribution Centre (Pty) Ltd v Allie [2002] 3 All SA 200 (C) 134, 191,
193
Foord v Lake NNO 1968 (4) SA 395 (W) 333
Forellendam Bpk v Jacobsbaai Coastal Farms (Pty) Ltd 1993 (4) SA 138 (C) 345
Fose v Min of Safety & Security 1997 (3) SA 786 (CC) 39, 45
Foulds v Smith 1950 (1) SA 1 (A) 19, 20
Fourie v Braude 1996 (1) SA 610 (T)83
Fourie v CDMO Homes (Pty) Ltd 1982 (1) SA 21 (A) 90
Fourie’s Poultry Farm (Pty) Ltd v Kwanatal Food Distributors (Pty) Ltd (in liq)
1991 (4) SA 514 (N) 298
Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A) 328
FPS Ltd v Trident Construction (Pty) Ltd 1989 (3) SA 537 (A) 285, 349
Frame v Palmer 1950 (3) SA 340 (C)86

Francis George Hill Family Trust v SA Reserve Bank 1992 (3) SA 91 (A) 81
Frank & Hirsch (Pty) Ltd v Rodi & Wienenberger AG 1960 (3) SA 747 (A) 280
Frank R Thorold (Pty) Ltd v Estate late Beit 1996 (4) SA 705 (SCA) 54
Frankel Max Pollak Vinderine Inc v Menell Jack Hyman Rosenberg & Co Inc
[1996] 2 All SA 495 (A); 1996 (3) SA 355 (SCA) 34
Frankel Pollak Vinderine Inc v Stanton [1996] 2 All SA 582 (W) 7
Fransba Vervoer (Edms) Bpk v IGI Ltd 1976 (4) SA 970 (W) 201
Fredericks v Shield Insurance Co Ltd 1982 (2) SA 423 (A) 353
Free State Consolidated Gold Mines (Operations) Bpk v
Sam Flanges Mining Supplies BK 1997 (4) SA 644 (O) 209
French v Sterling Finance Corp (Pty) Ltd 1961 (4) SA 732 (A) 265
Froman v Robertson 1971 (1) SA 115 (A) 69
Fry v First National Bank of South Africa Ltd 1996 (4) SA 924 (C)332
Fundstrust (Edms) Bpk (in likwidasie) v Marais
[1996] 3 All SA 574 (C); 1997 (3) SA 470 (C) 73, 80
Fundstrust (Pty) Ltd (in liquidation) v Van Deventer
[1997] 1 All SA 644 (A); 1997 (1) SA 710 (A) 1, 37, 52, 322, 325
G & C Construction v De Beer [2000] 1 All SA 540 (T); 2000 (2) SA 378 (T) 76
GA Fichardt Ltd v The Friend Newspapers Ltd 1916 AD 1 194
Gabelsberger v Babl 1994 (2) SA 677 (T) 182
Gabriel v Enchanted Bed and Breakfast CC 2002 (6) SA 597 (C) 64
Galago Publishers (Pty) Ltd v Erasmus 1989 (1) SA 276 (A) 111
Ganie v Parekh 1962 (4) SA 618 (N) 68
Garden City Motors (Pty) Ltd v Bank of the OFS Ltd 1983 (2) SA 104 (N) 357
Gardens Hotel (Pty) Ltd v Somadel Investments (Pty) Ltd 1981 (3) SA 911 (W) 33
Geary & Son (Pty) Ltd v Gove 1964 (1) SA 434 (A)183, 193, 194
Geduld Lands Ltd v Uys 1980 (3) SA 335 (T) 336
Gelb, Benjamin & Kaplan v Melzer 1987 (1) SA 917 (T) 50
Geldenhuys v Borman NO 1990 (1) SA 161 (E) 359
Geldenhuys v Kotze 1964 (2) SA 167 (O) 228
Gemeenskapsontwikkelingsraad v Williams (1) 1977 (2) SA 692 (W) 270
Genac Properties Jhb (Pty) Ltd v NBC Administrators CC 1992 (1) SA 566 (A) 218
General Accident Ins Co SA Ltd v Summers; Southern Versekeringsassosiasie Bpk v
Carstens NO; General Accident Ins Co SA Ltd v Nhlumayo 1987 (3) SA 577 (A) 130
General Accident Versekeringsmaatskappy SA Bpk v Bailey NO 1988 (4) SA 353 (A) 208
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) 279, 280
George v Fairmead (Pty) Ltd 1958 (2) SA 465 (A) 245
George Municipality v Vena 1989 (2) SA 263 (A) 318
Georgias v Standard Chartered Finance Zimbabwe Ltd 2000 (1) SA 126 (ZS) 84
Gerber v Wolson 1955 (1) SA 158 (A) 329, 330
Gericke v Sack 1978 (1) SA 821 (A) 294
Gerolemou/Thamane Joint Venture v AJ Construction CC [1999] 3 All SA 74 (T) 33, 34
Gert de Jager (Edms) Bpk v Jones NO & McHardy NO 1964 (3) SA 325 (A) 197, 198
Gibbins v Williams, Muller, Wright & Mostert Ingelyf 1987 (2) SA 82 (T) 348
Gibson v Berkowitz [1997] 1 All SA 99 (W); 1996 (4) SA 1029 (W) 106, 107
Gibson v Van der Walt 1952 (1) SA 262 (A) 264
Gien v Gien 1979 (2) SA 1113 (T) 265, 266, 267
Gijzen v Verrinder 1965 (1) SA 806 (D) 217, 218
GK Breed (Bethlehem) (Edms) Bpk v Martin Harris & Seuns (OVS) (Edms) Bpk
1984 (2) SA 66 (O) 32
Glaston House (Pty) Ltd v Inag (Pty) Ltd 1977 (2) SA 846 (A) 215, 216
Glen Comeragh (Pty) Ltd v Colibri (Pty) Ltd 1979 (3) SA 210 (T) 244
Glendale Sugar Millers (Pty) Ltd, Ex parte 1973 (2) SA 653 (N) 292
Glofinco v ABSA Bank Ltd t/a United Bank 2001 (2) SA 1048 (W) 21
Glofinco v ABSA Bank Ltd t/a United Bank 2002 (6) SA 470 (SCA) 21, 80, 167
Godfather, The v Commissioner for Inland Revenue 1993 (2) SA 426 (N) 72
Godfrey v Campbell [1997] 1 All SA 395 (C); 1997 (1) SA 570 (C) 20, 347
Goldberg v Buytendach Boerdery Beleggings (Edms) Bpk 1980 (4) SA 775 (A) 219
Golden Cape Fruits (Pty) Ltd v Fotoplate (Pty) Ltd 1973 (2) SA 642 (C) 126
Golden China TV Game Centre v Nintendo Co Ltd
[1996] 4 All SA 667 (SCA); 1997 (1) SA 405 (A) 111
Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC
[2002] 2 All SA 551 (SCA); 2002 (1) SA 822 (SCA) 220
Goldfields Laboratories (Pty) Ltd v Pomate Engineering (Pty) Ltd 1983 (3) SA 197 (W) 303
Golf Estates (Pty) Ltd v Malherbe 1997 (1) SA 873 (C) 81, 84
Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd
1978 (1) SA 914 (A) 84, 85, 184
Goodricke & Son v Auto Protection Insurance Co Ltd (in liq) 1968 (1) SA 717 (A) 23,
50
Goodwin Stable Trust v Duohex (Pty) Ltd
[1996] 2 All SA 558 (C); 1998 (4) SA 606 (C) 33, 66, 116
Goosen v Van Zyl 1980 (1) SA 706 (O) 50
Gordon Lloyd Page & Associates v Rivera [2000] 4 All SA 241 (A);
2001 (1) SA 88 (SCA) 92, 95
Gore NO v Saficon Industrial (Pty) Ltd 1994 (4) SA 536 (W) 7
Gosschalk v Rossouw 1966 (2) SA 476 (C) 190
Govender v Minister of Safety & Security 2001 (4) SA 273 (SCA);
2001 (2) SACR 197 (SCA) 45
Govender v Standard Bank of SA Ltd 1984 (4) SA 392 (C) 86, 89
Government of RSA v Ngubane 1972 (2) SA 601 (A) 66, 191

Government of the Province of the Eastern Cape v Frontier Safaris (Pty) Ltd
[1997] 4 All SA 500 (A); 1998 (2) SA 19 (SCA) 319
Government of the Republic of South Africa v Midkon (Pty) Ltd 1984 (3) SA 552 (T) 210
Government of the Self-Governing Territory of KwaZulu v Mahlangu 1994 (1) SA 626 (T)
95
Gower v Killian 1977 (2) SA 393 (E)27
Graf v Buechel [2003] 2 All SA 123 (SCA) 286
Graham v Ridley 1931 TPD 476 350
Graham NO v Trackstar Trading 363 (Pty) Ltd [2003] 1 All SA 181 (SE) 247
Gralio (Pty) Ltd v DE Claassen (Pty) Ltd 1980 (1) SA 816 (A) 299
Grand Mines (Pty) Ltd v Giddey NO 1999 (1) SA 960 (A) 171
Grant’s Farming Co Ltd v Attwell 9 HCG 91 263
Great North Farms (Edms) Bpk v Ras 1972 (4) SA 7 (T) 312
Greater Johannesburg Transitional Metropolitan Council v ABSA Bank Ltd t/a
Volkskas Bank [1996] 4 All SA 278 (W); 1997 (2) SA 591 (W) 59, 107
Greathead v SA Commercial Catering & Allied Workers Union 2001 (3) SA 464 (SCA) 299
Greenfield Engineering Works (Pty) Ltd v NKR Construction (Pty) Ltd
1978 (4) SA 901 (N) 222
Greenfield Manufacturers Temba (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd
1976 (2) SA 565 (A) 247
Grevler v Landsdown NNO 1991 (3) SA 175 (T) 196
Grindal v Grindal 1997 (4) SA 137 (C) 148
Grobbelaar v Havenga 1964 (3) SA 522 (N) 27
Grobbelaar NO v Bosch 1964 (3) SA 687 (E) 189
Groenendijk v Tractor & Excavator Spares (Pty) Ltd 1978 (1) SA 815 (A) 350
Groenewald v Groenewald [1998] 2 All SA 335 (A); 1998 (2) SA 1106 (SCA) 44
Groenewald v Minister van Justisie 1973 (2) SA 480 (O) 238

Groenewald v Minister van Justisie 1973 (3) SA 877 (A) 40
Grootboom v Graaff-Reinet Municipality 2001 (3) SA 373 (E) 158
Grootboom v Minister van Justisie [1997] 3 All SA 51 (SE)40
Gross v Commercial Union Assurance Co Ltd 1974 (1) SA 630 (A) 107, 337
Gross v Pentz [1996] 4 All SA 63 (A); 1996 (4) SA 617 (A) 14, 17, 74
Grosvenor Motors Border Ltd v Visser 1971 (3) SA 213 (E) 216
Group Five Building Ltd v Min of Community Development 1993 (3) SA 629 (A)232
Guardian National Insurance Co Ltd v Van Gool NO 1992 (4) SA 61 (A) 249
Guggenheim v Rosenbaum (2) 1961 (4) SA 21 (W) 61, 62
Gunn NNO v Barclays Bank, DCO 1962 (3) SA 678 (A) 196
Gutman NO v Standard General Insurance Co Ltd 1981 (4) SA 114 (C) 200
H & F Spares Centre (Pty) Ltd v Grand Prix Spares 1986 (4) SA 974 (N) 68
HA Millard & Son (Pty) Ltd v Enzenhofer 1968 (1) SA 330 (T) 173
Hall & Sons Ltd v Kleinsmith 1963 (4) SA 320 (T) 7
Hall-Thermotank Natal (Pty) Ltd v Hardman 1968 (4) SA 818 (D) 216
Hamilton-Browning v Denis Barker Trust [2001] 1 All SA 618 (N); 2001 (4) SA 1131 (N)
96
Hammer v Klein 1951 (2) SA 101 (A) 247
Hanekom v Multilateral Motor Vehicle Accidents Fund (De Lange, Third Party)
[1997] 4 All SA 691 (T); 1998 (1) SA 634 (T) 251
Hargreaves v Anderson 1915 AD 519 23
Harris v Pieters 1920 AD 644335
Hartsrivier Boerderye (Edms) Bpk v Van Niekerk 1964 (3) SA 702 (T) 290
Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) 93, 121, 130, 131
Hassen v Post Newspapers (Pty) Ltd 1965 (3) SA 562 (W) 135, 136
Hauman v Nortjé 1914 AD 293 234

Havenga v Parker 1993 (3) SA 724 (T) 121
Hawker v Prudential Assurance Co of SA Ltd 1987 (4) SA 442 (C) 223
Haynes v King Williams Town Municipality 1951 (2) SA 371 (A) 316
Headermans (Vryburg) (Pty) Ltd v Ping Bai
[1997] 2 All SA 371 (A); 1997 (3) SA 1004 (A) 29, 299
Headleigh Private Hospital (Pty) Ltd t/a Rand Clinic v Soller & Manning
[1998] 4 All SA 334; 2001 (4) SA 360 (W) 49
Hefer v Van Greuning 1979 (4) SA 952 (A) 270, 288, 289
Heg Consulting Enterprises (Pty) Ltd v Siegwart 2000 (1) SA 507 (C) 48
Helios Ltd v Letraset Graphic Art Products (Pty) Ltd 1973 (4) SA 81 (T) 194
Hendricks v Barnett 1975 (1) SA 765 (N) 157
Hendriks NO v Swanepoel 1962 (4) SA 338 (A) 197
Henery v Santam Versekeringsmaatskappy Bpk [1997] 3 All SA 100 (T) 237
Henri Viljoen (Pty) Ltd v Awerbuch Bros 1953 (2) SA 151 (O) 78
Henry v Branfield 1996 (1) SA 244 (D) 188
Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) 355
Herbst v Solo Boumateriaal 1993 (1) SA 397 (T) 271
Herselman NO v Botha 1994 (1) SA 28 (A) 142
Hersman v Shapiro & Co 1926 TPD 367 127
Heslop v General Accident, Fire & Life Assurance Corp Ltd 1962 (3) SA 511 (A) 202
Highveld 7 Properties (Pty) Ltd v Bailes [1999] 4 All SA 461 (A); 1999 (4) SA 1307 (A) 301
Highveldridge Residents Concerned Party v Highveldridge Transitional Local Council
2002 (6) SA 66 (T) 354
Hiles v Venter 1983 (4) SA 22 (T) 68
Hillman Bros Ltd v Kelly & Hingle 1926 WLD 153 285
Hiltonian Society v Crofton 1952 (3) SA 130 (A) 45
Hippo Quarries (Tvl) (Pty) Ltd v Eardley 1992 (1) SA 867 (A) 65
Hirschowitz v Moolman 1983 (4) SA 1 (T); 1985 (3) SA 739 (A) 290
Histor Boerdery (Edms) Bpk v Barnard 1983 (1) SA 1091 (A) 63, 64
Hix Networking Technologies CC v System Publishers (Pty) Ltd
[1996] 4 All SA 675 (A); 1997 (1) SA 391 (SCA) 137
HL & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd 158, 344
Hlobo v Multilateral Motor Vehicle Accidents Fund
[2001] 1 All SA 322 (A); 2001 (2) SA 59 (SCA) 50, 85, 245, 319
Hlophe v Mahlalela 1998 (1) SA 449 (T) 126
Hochfeld Commodities v Theron 2000 (1) SA 551 (O) 302
Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd 1968 (1) SA 571 (A) 227, 263
Hoeksma v Hoeksma 1990 (2) SA 893 (A) 28, 176
Hofer v Kevitt NO [1997] 4 All SA 620 (A); 1998 (1) SA 382 (SCA) 341
Hoffman v Meyer 1956 (2) SA 752 (C) 32, 35, 37
Hoffman v Moni’s Wineries Ltd 1948 (2) SA 163 (C) 184
Hollandia Reinsurance Co Ltd v Nedcor Bank Ltd 1993 (3) SA 574 (W) 58, 72
Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd
1977 (3) SA 670 (A) 101, 102, 208, 215
Holz v Harksen 1995 (3) SA 521 (C) 182
Holzman v Standard Bank Ltd 1985 (1) SA 360 (W) 56
Homecraft Steel Industries (Pty) Ltd v SM Hare & Son (Pty) Ltd 1984 (3) SA 681 (A) 146
Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404 (C) 37, 256
Horak NO v Smit [1999] 4 All SA 405 (T) 358
Horowitz v Brock 1988 (2) SA 160 (A) 303
Horwitz v Hendricks 1928 AD 391 307
Howard v Herrigel NO 1991 (2) SA 660 (A) 81
Howarth v Schoeman [2001] 4 All SA 405 (LCC) 170
HT Group (Pty) Ltd v Hazelhurst [2003] 2 All SA 262 (C) 136

Hughes v Levy 1907 TS 276 189
Hugo v Gross 1989 (1) SA 154 (C) 29
Hugo NO v Durbach 1961 (2) SA 780 (O) 120
Hulett v Hulett 1992 (4) SA 291 (A) 184, 260
Hülse-Reutter v Gödde [2002] 2 All SA 211 (A); 2001 (4) SA 1336 (SCA)81
Hunt v Van der Westhuizen 1990 (3) SA 357 (C) 184
Hunt h/a Realty 1 Elk Estates v Dermann [1997] 4 All SA 665 (T) 304
Hurwitz NNO v Table Bay Engineering (Pty) Ltd 1994 (3) SA 449 (C) 218
Hushon SA (Pty) Ltd v Pictech (Pty) Ltd
[1997] 2 All SA 672 (A); 1997 (4) SA 399 (SCA) 127, 277, 343
Ideal Finance Corp v Coetzer 1970 (3) SA 1 (A) 328
Ierse Trog CC v Sulra Trading CC 1997 (4) SA 131 (C) 316
Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) 232
Incledon (Welkom) (Pty) Ltd v Qwaqwa Development Corp Ltd 1990 (4) SA 798 (A) 67
Incorporated Law Society, Transvaal v Meyer 1981 (3) SA 962 (T)48
Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) 57, 222, 223
Indrieri v Du Preez 1989 (2) SA 721 (C) 24
Industrial & Commercial Factors (Pty) Ltd v Attorneys Fidelity Fund Board of Control
[1996] 4 All SA 295 (A); 1997 (1) SA 136 (SCA) 50
Industrial Development Corp of SA Ltd v See Bee Holdings (Pty) Ltd
1978 (4) SA 136 (C) 328
Industrial Development Corporation of SA (Pty) Ltd v Silver
[2002] 4 All SA 316 (SCA) 30, 327
Info Plus v Scheelke [1998] 2 All SA 509 (SCA); 1998 (3) SA 184 (SCA) 167, 168, 270
Inkin v Borehole Drillers 1949 (2) SA 366 (A) 233
Inrybelange (Edms) Bpk v Pretorius 1966 (2) SA 416 (A) 269

Interaccess (Pty) Ltd v Van Dorsten [1999] 2 All SA 561 (C) 229
Intercontinental Exports (Pty) Ltd v Fowles
[1999] 2 All SA 304 (A); 1999 (2) SA 1045 (SCA) 299, 327
Inter-Continental Finance & Leasing Corp (Pty) Ltd v Stands 56 and 57 Industria Ltd
1979 (3) SA 740 (W) 22
Interim Ward S 19 Council v Premier, Western Cape Province 1998 (3) SA 1056 (C) 354
Turnley [1996] 3 All SA 648 (W); 1996 (3) SA 1043 (W) 93, 172
International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A)3, 224, 260
International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A) 134, 193, 194
International Tobacco Co (SA) Ltd v United Tobacco Co (South) Ltd (4)
1955 (2) SA 40 (W) 134
IPF Nominees (Pty) Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd, Third Party)
2002 (5) SA 101 (W) 336
Irish & Co Inc (now Irish & Menell Rosenberg Inc) v Kritzas 1992 (2) SA 623 (W) 34
Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A); 1996 (1) SACR 314 (SCA) 40
Isep Structural Engineering & Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd
1981 (4) SA 1 (A) 220
Jacana Education (Pty) Ltd v Fransden Publishers (Pty) Ltd
[1998] 1 All SA 123 (SCA); 1998 (2) SA 968 (SCA) 111
Jachris (Pty) Ltd v Fourie 1984 (4) SA 501 (T) 68
Jackson v SA National Institute for Crime Prevention 1976 (3) SA 1 (A) 44, 191
Jafta v Minister of Law & Order 1991 (2) SA 286 (A) 277
Jajbhay v Cassim 1939 AD 537 186, 187
Jameson’s Minors v Central SA Railways 1908 TS 575 352
Jans v Nedcor Bank Ltd [2003] 2 All SA 11 (SCA) 328

Janse van Rensburg v Grieve Trust CC
[1999] 3 All SA 597 (C); 2000 (1) SA 315 (C) 176, 195, 216
Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) 190, 192
Jardin v Agrela 1952 (1) SA 256 (T) 119, 316
Jasat v Interim National Medical and Dental Council
[1998] 4 All SA 289 (N); 1999 (1) SA 156 (N) 214
Jayber (Pty) Ltd v Miller 1980 (4) SA 280 (W) 130
Jayiya v MEC for Welfare, EC Government [2003] 2 All SA 223 (SCA) 74, 319
Jeffery v Pollak & Freemantle 1938 AD 1 325
Jockie v Meyer 1945 AD 354 192
Joel Melamed & Hurwitz v Cleveland Estates (Pty) Ltd 1984 (3) SA 155 (A) 49, 95, 105
Johaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A) 351
Johannesburg City Council v Bruma Thirty-Two (Pty) Ltd 1984 (4) SA 87 (T) 289
Johannesburg City Council v Television & Electrical Distributors (Pty) Ltd
[1997] 1 All SA 455 (A); 1997 (1) SA 157 (A) 224, 323
Johannesburg City Council v Vucinovich 1940 AD 365 267
Johannesburg Municipality v African Realty Trust Ltd 1927 AD 163 322
John v Road Accident Fund [1999] 4 All SA 355 (T); 2000 (1) SA 459 (T)250
John Newmark & Co (Pty) Ltd v Durban City Council 1959 (1) SA 169 (N) 218
John Waddington Ltd v Arthur E Harris (Pty) Ltd 1968 (1) SA 38 (T) 277
Johnson v Beckett 1992 (1) SA 762 (A) 135, 142
Johnson v Blaikie & Co (Pty) Ltd t/a FT Building Supplies
[1998] 2 All SA 38 (N); 1998 (3) SA 251 (N) 77
Johnson v Inc General Insurances Ltd 1983 (1) SA 318 (A) 65
Johnson v Jainodien 1982 (4) SA 599 (C) 185
Johnson v Rand Daily Mails 1928 AD 190 141
Johnston v Johnston NNO 1972 (3) SA 104 (RA) 15

Joint Municipal Pension Fund (Transvaal) v Pretoria Municipal Pension Fund
1969 (2) SA 78 (T) 312
Jones v Krok 1995 (1) SA 677 (A) 181, 182, 303
Jones v Krok 1996 (1) SA 504 (T) 182
Jonnes v Anglo-African Shipping Co (1936) Ltd 1972 (2) SA 827 (A) 330
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening)
1999 (2) SA 1 (CC) 361
Jordaan v De Villiers 1991 (4) SA 396 (C) 156
Jordaan v Krone Broers [1999] 3 All SA 57 (C) 11
Joseph Forman Holdings (Pty) Ltd v Forim Holdings [1999] 3 All SA 204 (W) 79
Joubert v Bester 1977 (4) SA 560 (T)189
Joubert v Combrinck 1980 (3) SA 680 (T) 12
Joubert v Santam Versekeringsmaatskappy Bpk 1978 (3) SA 328 (T) 128
Joubert v Venter 1985 (1) SA 654 (A) 142, 143
Joubert Street Investments (Pty) Ltd v Roberts 1943 TPD 141 144
Jowell v Bramwell-Jones 1998 (1) SA 836 (W) 51
Jowell v Bramwell-Jones [2000] 2 All SA 161 (A); 2000 (3) SA 274 (SCA) 51, 127,
260
JT Publishing (Pty) Ltd v Minister of Safety & Security 1997 (3) SA 514 (CC) 131
Jurgens Eiendomsagente v Share 1990 (4) SA 664 (A) 89, 105, 163, 165
Jurgens v Volkskas Bank Ltd 1993 (1) SA 214 (A) 328
Kahn v Raatz 1976 (4) SA 543 (A) 269
Kalil v Standard Bank of SA Ltd 1967 (4) SA 550 (A) 328
Kalinko v Nisbet [2002] 3 All SA 294 (W) 84
Kangra Holdings (Pty) Ltd v Minister of Water Affairs
[1998] 3 All SA 227; 1998 (4) SA 330 (A) 178

Kapp v TC Valuta (Pty) Ltd 1975 (3) SA 283 (T) 157
Karabus Motors (1959) Ltd v Van Eck 1962 (1) SA 451 (C) 260
Karson v Minister of Public Works 1996 (1) SA 887 (E) 334
Kate’s Hope Game Farm (Pty) Limited v Terblanchehoek Game Farm (Pty) Ltd
[1997] 4 All SA 185 (A); 1998 (1) SA 235 (SCA) 90, 91
Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd 1970 (2) SA 498 (A) 33, 298
Katzeff v City Car Sales (Pty) Ltd 1998 (2) SA 644 (C) 357
Katzenellenbogen Ltd v Mullin 1977 (4) SA 855 (A) 102
Kay v Kay 1961 (4) SA 257 (A) 155
Keeve v Keeve NO 1952 (1) SA 619 (O) 156
Kelly v Wright, Kelly v Kok 1948 (3) SA 522 (A) 187
Kelvin Park Properties CC v Paterson NO [2001] 1 All SA 18 (SCA);
2001 (3) SA 31 (SCA) 198
Kemp v Republican Press (Pty) Ltd 1994 (4) SA 261 (E) 141
Kenitex Africa (Pty) Ltd v Coverite (Pty) Ltd 1967 (3) SA 307 (W)276
Kennedy v Botes 1979 (3) SA 836 (A) 268
Kentz (Pty) Ltd v Power [2002] 1 All SA 605 (W) 245
Kerbel v Kerbel 1987 (1) SA 562 (W) 227
Kerbyn 178 (Pty) Ltd v van den Heever NO 2000 (4) SA 804 (W) 13
Kern Trust (Edms) Bpk v Hurter 1981 (3) SA 607 (C) 259, 260
Ketteringham v City of Cape Town 1934 AD 80 323
Keystone Trading Co v Die Verenigde &c Mij 1926 TPD 218 23
Kgosana v Otto 1991 (2) SA 113 (W) 317
Khoza v Netherlands Insurance Co of SA Ltd 1969 (3) SA 590 (W) 250
Khumalo v Holomisa 2002 (5) SA 401 (CC) 133, 136, 190
Khumalo v Potgieter [2001] 3 All SA 216 (A); 2001 (3) SA 63 (SCA) 170
Kilburn v Estate Kilburn 1931 AD 501 286

Kilian v Gauteng Provincial Legislature [1999] 1 All SA 84 (T) 319
King’s Car Hire (Pty) Ltd v Wakeling 1970 (4) SA 640 (N) 145
Kirsch Industries Ltd v Vosloo & Lindeque 1982 (3) SA 479 (W) 271
Kirsh v Pincus 1927 TPD 199 267
Klaas v Union & SWA Insurance Co Ltd 1981 (4) SA 562 (A) 361
Klein NO v SA Transport Services 1992 (3) SA 509 (W) 87
Klisser v SA Associated Newspapers Ltd 1964 (3) SA 308 (C) 137
KLM Royal Dutch Airlines v Hamman [2002] 3 All SA 484 (W); 2002 (3) SA 818 (W) 64
Klopper v Volkskas Bpk 1964 (2) SA 421 (T) 56, 192
Klug & Klug v Penkin 1932 CPD 401 262
Knop v Johannesburg City Council 1995 (2) SA 1 (A) 223, 323, 324
KO Motors CC v Gilindoda [1999] 3 All SA 517 (E); 1999 (4) SA 251 (E)119
Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 653 (A) 303
Kommissaris van Binnelandse Inkomste v Van der Heever
[1999] 3 All SA 115 (A); 1999 (3) SA 1051 (SCA) 236
Kommissaris van Binnelandse Inkomste v Willers 1994 (3) SA 283 (A) 17, 325
Kommissaris van Binnelandse Inkomste v Willers
[1999] 2 All SA 342 (A); 1999 (3) SA 19 (SCA) 13
Konstanz Properties (Pty) Ltd v Wm Spilhaus en Kie (WP) Bpk
[1996] 2 All SA 215 (A); 1996 (3) SA 273 (A) 167, 351
Kotze NO v Santam Insurance Ltd 1994 (1) SA 237 (C) 242
Kragga Kamma Estates CC v Flanagan 1995 (2) SA 367 (A) 99, 246
Krapohl v Oranje Koöperasie Bpk 1990 (3) SA 848 (A) 244
Krauze v Van Wyk 1986 (1) SA 158 (A) 269, 290
Kriegler v Minitzer 1949 (4) SA 821 (A) 95, 232
Kriel v Le Roux [2000] 2 All SA 65 (A) 29, 307
Kritzinger v Kritzinger 1989 (1) SA 67 (A) 151

Kroon v Enschede 1909 TS 374 328
Kroon Meule CC v Wittstock t/a JD Distributors; Wittstock t/a JD Distributors v
De Villiers 1999 (3) SA 866 (E) 34
Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha 1964 (3) SA 561 (A) 215
Krugell v Shield Versekeringsmaatskappy Bpk 1982 (4) SA 95 (T) 130
Kruger v Carlton Paper of SA (Pty) Ltd [2002] 2 All SA 351 (A); 2002 (2) SA 335 (SCA)
257
Kruger v Coetzee 1966 (2) SA 428 (A) 257
Kruger v Resnik 1955 (3) SA 378 (A) 49
Kruger v Sekretaris van Binnelandse Inkomste 1973 (1) SA 394 (A) 87
Kruger v Terblanche 1979 (4) SA 38 (T) 211
Kruger v Van der Merwe 1966 (2) SA 266 (A) 224
Krugersdorp Town Council v Fortuin 1965 (2) SA 335 (T) 350
Krull v Sangerhaus 1980 (4) SA 299 (E) 61, 62
Kunz v Swart 1924 AD 618 359
La Grange v Schoeman 1980 (1) SA 885 (E) 190
Labuschagne v Cloete 1987 (3) SA 638 (T) 107
Labuschagne Broers v Spring Farm (Pty) Ltd 1976 (2) SA 824 (T) 216
Lafrenz (Pty) Ltd v Dempers 1962 (3) SA 492 (A) 333
Lake NNO v Caithness 1997 (1) SA 667 (E) 245
Lambons (Edms) Bpk v BMW (Suid-Afrika) (Edms) Bpk
[1997] 3 All SA 327 (SCA); 1997 (4) SA 141 (A) 97
Lambrakis v Santam Ltd 2000 (3) SA 1098 (W) 127
Lammers & Lammers v Giovannoni 1955 (3) SA 385 (A) 357
Lanco Engineering CC v Aris Box Manufacturers (Pty) Ltd 1993 (4) SA 378 (D) 343
Land- en Landboubank van Suid-Afrika v Die Meester 1991 (2) SA 761 (A) 67
Langeberg Foods Ltd v Tokwe [1997] 3 All SA 43 (E) 361
197
Langeberg Voedsel Bpk v Sarculum Boerdery Bpk 1996 (2) SA 565 (A) 215
Langley Fox Building Partnership (Pty) Ltd v De Valence 1991 (1) SA 1 (A) 349
Lanificio Varam SA v Masurel Fils (Pty) Ltd 1952 (4) SA 655 (A) 96
Lansdown NO v Wajar 1973 (4) SA 329 (T) 69
Lascon Properties (Pty) Ltd v Wadeville Investment Co (Pty) Ltd
[1997] 3 All SA 433 (W); 1997 (4) SA 578 (W) 324
Lategan NO v Boyes 1980 (4) SA 191 (T) 81
Law v Kin 1966 (3) SA 480 (W) 239
Laws v Rutherford 1924 AD 261 246, 354
Lazarus v Gorfinkel 1988 (4) SA 123 (C) 298
Laztex (Pty) Ltd v Telementry Equipment (Pty) Ltd 1976 (1) SA 74 (W) 230
Le Riche v Hamman 1946 AD 648 88
Le Roux v Autovend (Pty) Ltd 1981 (4) SA 890 (N) 215
Le Roux v Le Roux 1967 (1) SA 446 (A) 303
Le Roux v Odendaal 1954 (4) SA 432 (N) 290
Le Roux v Standard General Versekeringsmaatskappy Bpk 2000 (4) SA 1035 (SCA) 203
Leal & Co v Williams 1906 TS 554 350
Lebeloane v Lebeloane [2000] 4 All SA 525 (W); 2001 (1) SA 1079 (W) 151
Lederman v Moharal Investments (Pty) Ltd 1969 (1) SA 190 (A) 192, 238, 239
Lee v Maraisdrif (Edms) Bpk 1976 (2) SA 536 (A) 271
201, 203
Leonard Light Industries (Pty) Ltd v Wright 1991 (4) SA 628 (W) 28, 176
Lester Investments (Pty) Ltd v Narshi 1951 (2) SA 464 (C) 313
Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A) 280

Lever v Purdy 1993 (3) SA 17 (A) 11
Levin v Zoutendijk 1979 (3) SA 1145 (W) 298, 299
Levy v Levy 1991 (3) SA 614 (A) 116, 315
Lewis v Oneanate (Pty) Ltd 1992 (4) SA 811 (A) 175
Leyds NO v Noord-Westelike Koöperatiewe Landboumaatskappy Bpk 1985 (2) SA 769 (A)

66
Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty) Ltd 1980 (4) SA 271 (T) 299
Leymac Distributors Ltd v Hoosen 1974 (4) SA 524 (D) 121
Liberty Life Association of Africa Ltd v de Waal NO 1999 (4) SA 1177 (SCA) 202
Lichtenburg Garage (Pty) Ltd v Gerber 1963 (4) SA 395 (T) 140
Liebenberg v ABSA Bank Ltd t/a Volkskas Bank [1998] 1 All SA 303 (C) 55
Liebenberg, Estate v Standard Bank of SA Ltd 1927 AD 502 265
Lieberman v Santam Ltd 2000 (4) SA 321 (SCA) 265
Lief NO v Dettmann 1964 (2) SA 252 (A) 65
Liley v Johannesburg Turf Club 1983 (4) SA 548 (W) 303
Lillicrap, Wassenaar & Partners v Pilkington Bros (SA) (Pty) Ltd
1985 (1) SA 475 (A) 2, 37, 128, 222, 241
Lind v Spicer Bros (Africa) Ltd 1917 AD 147 22
Lindsay v Stofberg NO 1988 (2) SA 462 (C) 16, 17
Linton v Corser 1952 (3) SA 685 (A)247
Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C)293, 294
Lipschitz v Landmark Consolidated (Pty) Ltd 1979 (2) SA 482 (W) 197
Lipschitz NO v UDC Bank Ltd 1979 (1) SA 789 (A) 82
Lipschitz NO v Wolpert & Abrahams 1977 (2) SA 732 (A) 2
Liquidator Vautid Wear Parts (Pty) Ltd (in liquidation), Ex parte 2000 (3) SA 96 (W) 74
List v Jungers 1979 (3) SA 106 (A) 206, 330
Loader v De Beer 1947 (1) SA 87 (W) 122

Loader v Dursot Bros (Pty) Ltd 1948 (3) SA 136 (T) 228
Lombo v African National Congress [2002] 3 All SA 517 (SCA); 2002 (5) SA 668 (SCA)
40
Loots v Nieuwenhuizen 1997 (1) SA 361 (T) 5, 272
Lorimar Productions Inc v Sterling Clothing Manufacturers (Pty) Ltd
1981 (3) SA 1129 (T) 275, 277
Loriza Brahman v Dippenaar 2002 (2) SA 477 (SCA) 10
Loubser v SA Spoorweë & Hawens 1976 (4) SA 589 (T) 178
Lourens v Van Biljon 1967 (1) SA 703 (T) 311
Louw v Louw 1965 (3) SA 852 (E) 20
Low v Consortium Consol Corpn (Pty) Ltd 1999 (1) SA 445 (A) 15
Lowrey v Steedman 1914 AD 532 302
LTA Construction Bpk v Administrateur, Transvaal 1992 (1) SA 473 (A) 206
LTA Construction Ltd v KwaZulu-Natal Provincial Administration
[1997] 1 All SA 503 (N); 1997 (1) SA 633 (N) 36
LTA Engineering Co Ltd v Seacat Investments (Pty) Ltd 1974 (1) SA 747 (A) 67, 114,
116
Lubbe v Bosman 1948 (3) SA 909 (A) 285
Lusizi v Transnet Ltd t/a Spoornet [2002] 3 All SA 635 (C) 23
Luxavia (Pty) Ltd v Gray Security Services (Pty) Ltd
[2001] 2 All SA 506 (W); 2001 (4) SA 211 (W) 64
Luzon Investments (Pty) Ltd v Strand Municipality 1990 (1) SA 215 (C) 132, 244
Lynco Plant Hire & Sales BK v Univem Versekeringsmakelaars BK 2002 (5) SA 85 (T) 201
M NO v M 1991 (4) SA 587 (D) 62
Maartens v Pope 1992 (4) SA 883 (N) 12
Mabaso v Felix 1981 (3) SA 865 (A) 43, 44, 45, 107
MacDonald, Forman & Co Ltd v Van Aswegen 1963 (3) SA 173 (O) 15
MacFarlane v Crooke 1951 (3) SA 256 (C) 235
Mackay v Legal Aid Board 2003 (1) SA 271 (SE) 49
Macleod v Rens [1997] 1 All SA 143 (E); 1997 (3) SA 1039 (E) 257
Macu v Du Toit 1983 (4) SA 629 (A) 45
Madrassa Anjuman Islamia v Johannesburg Municipality 1917 AD 718 324
Madyosi v SA Eagle Insurance Co Ltd 1989 (3) SA 178 (C); 1990 (3) SA 442 (A) 257, 285
Magna Alloys & Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) 304
Magware v Minister of Health NO 1981 (4) SA 472 (Z) 242
Magwaza v Heenan 1979 (2) SA 1019 (A) 299
Mahabeer v Sharma NO 1983 (4) SA 421 (D) 356
Mahabeer v Sharma NO 1985 (3) SA 729 (A) 99, 356
Mahomed v Kassim 1973 (2) SA 1 (RA) 134, 139, 141
Mahomed v Mahomed 1976 (3) SA 151 (T) 132
Mahomed v Nagdee 1952 (1) SA 410 (A) 312
Mainline Carriers (Pty) Ltd v Jaad Investments (Pty) Ltd CC
[1997] 3 All SA 451 (C); 1998 (2) SA 468 (C) 102, 104
Maisela v Kgolane NO [2000] 1 All SA 658 (T); 2000 (2) SA 370 (T) 126
Maja v SA Eagle Ins Co Ltd 1990 (2) SA 701 (A) 130
Makings v Makings 1958 (1) SA 338 (A) 212
Malahe v Minister of Safety and Security [1998] 4 All SA 246 (A);
1999 (1) SA 528 (SCA) 45
Malherbe v Ceres Municipality 1951 (4) SA 510 (A) 267, 268
Malherbe v Eskom 2002 (4) SA 497 (O) 353
Malherbe v Van Rensburg 1970 (4) SA 78 (C) 345
Malilang v MV Houda Pearl 1986 (2) SA 714 (A) 157
Mallinson v Tanner 1947 (4) SA 681 (T) 23
Malokoane v Multilateral Motor Vehicle Accidents Fund

[1998] 4 All SA 486 (A); 1999 (1) SA 544 (A) 251
MAN Truck & Bus (SA) (Pty) Ltd v Singh (2) 1976 (4) SA 266 (N) 327
Manase v Min 2003 (1) SA 567 (Ck) 239
Mancisco and Sons CC (in liq) v Stone 2001 (1) SA 168 (W) 227
Manderson t/a Hillcrest Electrical v Standard General Insurance Co Ltd
1996 (3) SA 434 (D) 201
Mangope v Asmal 1997 (4) SA 277 (T) 135
Manley Van Niekerk (Pty) Ltd (now Video Sound Studios (Pty) Ltd) v Assegai
Mann v Sidney Hunt Motors (Pty) Ltd 1958 (2) SA 102 (G)166, 300
Mannesmann Demag (Pty) Ltd v Romatex Ltd 1988 (4) SA 383 (D) 283
Manqalaza v MEC for Safety & Security, Eastern Cape [2001] 3 All SA 255 (Tk) 40
Maphiri v Road Accident Fund 2002 (6) SA 383 (W) 361
Marais NNO v Ruskin NO 1985 (4) SA 659 (A) 66
Marais v Bezuidenhout 1999 (3) SA 988 (W) 35
Marais v Engler Earthworks (Pty) Ltd; Engler Earthworks (Pty) Ltd v Marais
1998 (2) SA 450 (E) 196
Marais v Groenewald [2000] 2 All SA 578 (T); 2001 (1) SA 634 (T) 137, 140
Marais v Richard 1981 (1) SA 1157 (A) 142
Marais v Standard Credit Corporation Ltd 2002 (4) SA 892 (W) 119
Marais v Steyn 1975 (3) SA 479 (T) 134, 139
Maree v Botha 1992 (3) SA 230 (T) 162
Maree v Diedericks 1962 (1) SA 231 (T) 11
Marine & Trade Insurance Co Ltd v Van Heerden NO 1977 (3) SA 553 (A) 202
Maritime Motors (Pty) Ltd v Von Steiger 2001 (2) SA 584 (SE) 262
Marks & Kantor v Van Diggelen 1935 TPD 29 228
Marks Ltd v Laughton 1920 AD 12 334
Marques v Unibank Ltd [2000] 4 All SA 146 (W); 2001 (1) SA 145 (W) 120
Mars Inc v Candy World (Pty) Ltd 1991 (1) SA 567 (A) 236
Marshall v Bull Quip (Pty) Ltd 1983 (1) SA 23 (A) 68, 69
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) 36, 233, 246
Masinga v Minister of Justice, KwaZulu Government 1995 (3) SA 214 (A)160
Masters v Thalia Thain t/a Inhaca Safaris [1999] 4 All SA 618 (W); 2000 (1) SA 467 (W) 102
Masuku v Mdlalose [1997] 3 All SA 339 (A); 1998 (1) SA 1 (SCA) 314, 319, 348
Maswanganyi v First National Western Bank Ltd 2002 (3) SA 365 (W) 120
Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C) 99, 169, 351
Mathews v Rabinowitz 1948 (2) SA 876 (W) 326
Mathipa v Vista University 2000 (1) SA 396 (T) 298
Matlou v Makhubedu 1978 (1) SA 946 (A) 44
Matthews v Pretorius 1984 (3) SA 547 (W) 108
Matyeka v Kaaber 1960 (4) SA 900 (T) 114
Matyila v Matyila 1987 (3) SA 230 (W) 151
Maw v Keith-Reed 1975 (4) SA 603 (C) 35
May v Udwin 1981 (1) SA 1 (A) 142
Mayer v Williams 1981 (3) SA 348 (A) 311
Mbhele v Natal Parks, Game & Fish Preservation Board 1980 (4) SA 303 (D) 359
MCC Bazaar v Harris & Jones (Pty) Ltd 1954 (3) SA 158 (T) 187
MCC Contracts (Pty) Ltd v Coertzen [1998] 4 All SA 503 (A); 1998 (4) SA 1046 (SCA) 335
McCann v Goodall Group Operations (Pty) Ltd 1995 (2) SA 718 (C) 259, 260
McCarthy Retail Ltd v Shortdistance Carriers CC
[2001] 3 All SA 236 (A); 2001 (3) SA 482 (SCA) 86, 87, 89, 226
McCarthy v Constantia Property Owners’ Association
[1999] 4 All SA 1 (C); 1999 (4) SA 847 (C) 354

McCullogh v Fernwood Estate Ltd 1920 AD 204 82
McDonald’s Corporation v Joburgers Drive-Inn Restaurant (Pty) Ltd
[1996] 4 All SA 1 (A); 1997 (1) SA 1 (A) 278, 337
McEwen NO v Khader 1969 (4) SA 559 (N) 263
McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W) 122, 230
McKelvey v Deton Engineering (Pty) Ltd [1997] 3 All SA 569 (A); 1998 (1) SA 374 (SCA)
282
McNicol v Delport NO 1980 (4) SA 287 (W) 15
McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) 95
Mdakane v Standard Bank of South Africa Ltd
[1998] 3 All SA 1 (W); 1999 (1) SA 127 (W) 120
Mdlulu v Delarey [1998] 1 All SA 434 (W) 359
Meevis v Coetzee [1998] 2 All SA 602 (T) 239
Melamed v BP Southern Africa (Pty) Ltd [2000] 1 All SA 342 (W); 2000 (2) SA 614 (W)90
Mervis Brothers v Interior Acoustics 1999 (3) SA 607 (W) 33
Messina Associated Carriers v Kleinhaus [2001] 3 All SA 285 (A);
2001 (3) SA 868 (SCA) 347
Metiso v Padongelukfonds [2002] 1 All SA 291 (T); 2001 (3) SA 1142 (T)126
Metje & Ziegler Ltd v Stauch, Vorster & Partners 1972 (4) SA 679 (SWA)115
Metro Goldwyn-Mayer Incorporated v Ackerman [1996] 1 All SA 584 (SE) 112
Meyer NO v Transvaalse Lewendehawe Koöperasie Bpk 1982 (4) SA 746 (A) 197
Meyer v Keiser 1980 (3) SA 504 (D) 161, 162
Meyer v Kirner 1974 (4) SA 90 (N) 299
Meyer v Merchants Trust Ltd 1942 AD 244 298
Meyerson v Health Beverages (Pty) Ltd 1989 (4) SA 667 (C) 315
Mhaga v Min of Safety & Security [2001] 2 All SA 534 (Tk) 40
Mhlongo NO v Minister of Police 1978 (2) SA 551 (A) 319

Microutsicos v Swart 1949 (3) SA 715 (A) 247
Middleton v Carr 1949 (2) SA 374 (A) 23, 233, 235
Midway Two Engineering & Construction Services BK v Transnet Bpk
[1998] 2 All SA 451 (A); 1998 (3) SA 17 (SCA) 347, 349
Miele et Cie GmbH & Co v Euro Electrical (Pty) Ltd 1988 (2) SA 583 (A) 338
Miller & Miller v Dickinson 1971 (3) SA 581 (A) 99, 247
Miller v Muller 1965 (4) SA 458 (C) 313, 341
Miller v Road Accident Fund [1999] 4 All SA 560 (W) 250
Millman NO v Masterbond Participation Bond Trust Managers (Pty) Ltd
(under curatorship) [1997] 1 All SA 408 (C); 1997 (1) SA 113 (C) 328
Milne, Estate v Donohoe Investments (Pty) Ltd 1967 (2) SA 359 (A) 3, 32
Mineworkers Investment Co (Pty) Ltd v Modibane 2002 (6) SA 512 (W) 137, 193
Minister of Communications & Public Works v Renown Food Products
1988 (4) SA 151 (C) 224
Minister of Correctional Services v Kwakwa
[2002] 3 All SA 242 (A); 2002 (4) SA 455 (SCA) 39
Minister of Defence v Mkhatswa [1997] 3 All SA 376 (W) 256
Minister of Finance v EBN Trading (Pty) Ltd
[1997] 3 All SA 481 (N); 1998 (2) SA 319 (N) 41, 42, 44, 193, 239
Minister of Finance v Ramos 1998 (4) SA 1096 (C) 318
Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A) 223, 344
Minister of Justice v Hofmeyr 1993 (3) SA 131 (A) 39, 41, 44, 191, 192
Minister of Justice, Ex parte 1978 (2) SA 572 (A) 123
Minister of Law and Order v Hurley 1986 (3) SA 568 (A) 40, 41
Minister of Law and Order v Kadir 1995 (1) SA 303 (A) 222, 223
Minister of Law and Order v Milne 1998 (1) SA 289 (W) 45
Minister of Law and Order v Monti 1995 (1) SA 35 (A) 44, 47

Minister of Law and Order v Ngobo 1992 (4) SA 822 (A) 44, 348
Minister of Law and Order v Thusi 1994 (2) SA 224 (N) 238
Minister of Police v Mbilini 1983 (3) SA 705 (A) 190, 191, 348
Minister of Police v Skosana 1977 (1) SA 31 (A) 224
Minister of Safety and Security, Ex parte: In re: S v Walters 2002 (4) SA 613 (CC) 45,
46
Minister of Safety and Security v Molutsi 1996 (4) SA 72 (A) 287
Minister of Safety and Security v Van Duivenboden
[2002] 3 All SA 741 (SCA); 2002 (6) SA 431 (SCA) 43, 223, 257
Minister van Justisie v Jaffer 1995 (1) SA 273 (A) 87
Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A) 291
Minister van Landbou-Tegniese Dienste v Scholtz 1971 (3) SA 188 (A) 215
Minister van Polisie v Chetty 1977 (2) SA 885 (A) 11
Minister van Polisie v Ewels 1975 (3) SA 590 (A) 223, 242
Minister van Polisie v Gamble 1979 (4) SA 759 (A) 39, 44, 319
Minister van Polisie v Goldschagg 1981 (1) SA 37 (A) 40
Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101 (A) 224
Minister van Veiligheid en Sekuriteit v Japmoco 2002 (5) SA 649 (SCA) 348
Minister van Veiligheid en Sekuriteit v Phoebus Apollo Aviation BK
2002 (5) SA 475 (SCA) 348
Minister van Wet & Orde v Jacobs 1999 (1) SA 944 (O) 129
Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A)40
Minister van Wet en Orde v Ntsane 1993 (1) SA 560 (A); 1993 (1) SACR 256 (A)107
Minnaar v Rautenbach [1999] 1 All SA 571 (NC) 291
Mistry v Interim National Medical & Dental Council of South Africa
[1997] 3 All SA 519 (D) 39
Mitchell’s Plain Town Centre Merchants Association v McLeod

[1996] 3 All SA 297 (A); 1996 (4) SA 159 (SCA) 74, 354
Mittermeier v Skema Engineering (Pty) Ltd 1984 (1) SA 121 (A) 269
Mkangeli v Joubert [2002] 2 All SA 473 (A); 2002 (4) SA 36 (SCA) 170, 288
Mkize v Lourens 2003 (3) SA 292 (T) 215
Mkize v Martens 1914 AD 382 348
Mlombo v Fourie 1964 (3) SA 350 (T) 350
Mmabatho Food Corp (Pty) Ltd v Fourie 1985 (1) SA 318 (T) 272
Mnweba v Maharaj [2001] 1 All SA 265 (C) 49
Moaki v Reckitt & Colman (Africa) Ltd 1968 (1) SA 702 (W) 192
Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A) 191, 192, 239
Mobil Oil Southern Africa (Pty) Ltd v Mechin 1965 (2) SA 706 (A) 99
Mograbi v Miller 1956 (4) SA 239 (T) 134, 135
Mohamed v Jassiem 1996 (1) SA 673 (A) 135
Mokoele v National Employers’ General Insurance Co Ltd 1984 (1) SA 27 (T) 250
Molefe v Mahaeng [1998] 4 All SA 423 (A); 1999 (1) SA 562 (SCA) 257
Moller v SA Railways & Harbours 1969 (3) SA 374 (N) 266, 267, 323
Moloi v Road Accident Fund [2000] 4 All SA 576 (A); 2001 (3) SA 546 (SCA) 251, 293
355, 356
Montsisi v Minister van Polisie 1984 (1) SA 619 (A) 322
Moraitis v De Canha 1984 (1) SA 420 (W) 69
Morettino v Italian Design Experience CC [2000] 4 All SA 158 (W) 316
Morgan v Brittan Boustred Ltd 1992 (2) SA 775 (A) 328
Morkel v Kruger-Liptrot [2000] 4 All SA 623 (C) 239
Morris v Benson and Hedges 2000 (3) SA 1092 (W)112, 147
Morrison v Standard Building Society 1932 AD 229354
Mörsner v Len 1992 (3) SA 626 (A) 172

Mort NO v Chiat [2000] 2 All SA 515 (C); 2001 (1) SA 464 (C) 23, 48
Mosam v De Kamper 1964 (3) SA 794 (T) 15
Moses v Min for Safety & Security [2000] 1 All SA 89 (C); 2000 (3) SA 106 (C) 48
265, 267
Mostert NO v Old Mutual Life Assurance Co (SA) Ltd
[2001] 4 All SA 250 (A); 2001 (4) SA 159 (SCA) 102, 220
Motani Lounge (Pty) Ltd v Standard Bank of SA Ltd 1995 (2) SA 498 (W) 313
Motion Transfer & Precision Roll Grinding CC v Carsten [1998] 4 All SA 168 (N) 93
Motor Marine (Edms) Bpk v Thermotron 1985 (2) SA 127 (SE) 212
Motor Racing Enterprises (Pty) Ltd (in liquidation) v NPS Electronics Ltd
[1996] 4 All SA 601 (A); 1996 (4) SA 950 (A) 172
Mountbatten Investments (Pty) Ltd v Mahomed 1989 (1) SA 172 (D) 176
Mouton v Boland Bank Ltd [2001] 3 All SA 485 (SCA); 2001 (3) SA 877 (SCA) 77
Mouton v Hanekom 1959 (3) SA 35 (A) 299
Mouton v Mynwerkersunie 1977 (1) SA 119 (A) 51
Mouton v Smith 1977 (3) SA 1 (A) 36
Moyse v Mujuru 1999 (3) SA 39 (ZSC) 134
Mufamadi v Dorbyl Finance (Pty) Ltd 1996 (1) SA 799 (A) 102
Mühlmann v Mühlmann 1984 (1) SA 97 (A) 152
Mühlmann v Mühlmann 1984 (3) SA 102 (A) 95, 271
Mukheiber v Raath [1999] 3 All SA 490 (A); 1999 (3) SA 1065 (SCA) 241
Muller v Botswana Development [2002] 3 All SA 663 (SCA);
2003 (1) SA 651 (SCA) 115, 328
Muller v Coca-Cola Sabco (SA) (Pty) Ltd 1998 (2) SA 824 (SE) 75
Muller v Möller 1965 (1) SA 872 (C)214
Muller v Pam Snyman Eiendomskonsultante (Edms) Bpk

[2000] 4 All SA 412 (C); 2001 (1) SA 313 (C) 22, 95, 163
Muller v Pienaar 1968 (3) SA 195 (A) 271
Multi Tube Systems (Pty) Ltd v Ponting 1984 (3) SA 182 (D) 93
Multilateral Motor Vehicle Accidents Fund v Marambana
[1996] 3 All SA 8 (A); 1996 (4) SA 48 (A) 249
Multilateral Motor Vehicle Accidents Fund v Thabede 1994 (2) SA 610 (N) 96
Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd
1983 (1) SA 709 (A) 282
Municipality of Stellenbosch v Levinsohn 1911 CPD 303 266
Munira Investments (Pty) Ltd v Flash Clothing Manufacturers (Pty) Ltd
1980 (1) SA 326 (D) 67
Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality
1984 (1) SA 571 (A) 293
Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A) 174
Mutual & Federal Insurance Co Ltd v Day [2001] 4 All SA 6 (SCA);
2001 (3) SA 775 (SCA) 250
Mutual & Federal Insurance Co Ltd v Kok 1985 (2) SA 225 (TkA) 362
Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality 1985 (1) SA 419 (A) 201
MV Sea Joy, The: 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) 206, 207
MV Stella Tignas: Transnet Ltd t/a Portnet v Owners of the MV Stella Tignas
2003 (2) SA 473 (SCA) 258
Myburgh v Walters NO 2001 (2) SA 127 (C) 22
Myers v Abramson 1951 (3) SA 438 (C) 100
Nach Investments (Pty) Ltd v Knight Frank SA (Pty) Ltd [2001] 3 All SA 295 (SCA) 163
Namibian Minerals Corporation v Benguela Concessions Ltd

[1997] 1 All SA 191 (A); 1997 (2) SA 548 (A) 97
Nampak Products Ltd v Man-Dirk (Pty) Ltd
[1999] 2 All SA 543 (SCA); 1999 (3) SA 708 (SCA) 280
Nampak Products Ltd t/a Nampak Flexible Packaging v Sweetcor (Pty) Ltd
1981 (4) SA 919 (T) 68
Napier v Collett 1995 (3) SA 140 (A) 201
Narayanasamy v Venkatrathnam 1979 (3) SA 1360 (D) 5, 272
Nash v Golden Dumps (Pty) Ltd 1985 (3) SA 1 (A) 301
Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd
1990 (4) SA 749 (N) 222, 224
Natalse Landboukoöperasie Bpk v Fick 1982 (4) SA 287 (N) 214
National & Overseas Distributors Corp (Pty) Ltd v Potato Board 1958 (2) SA 473 (A) 245
National Brands Ltd v Blue Lion Manufacturing (Pty) Ltd 2001 (3) SA 563 (SCA) 338
National Chemsearch (SA) (Pty) Ltd v Borrowman 1979 (3) SA 1092 (T) 304
National Media Ltd v Bogoshi
[1998] 4 All SA 347 (SCA);
1998 (4) SA 1196 (SCA) 133, 134, 136, 137, 140, 141, 143, 192
National Media Ltd v Jooste [1996] 2 All SA 510 (A); 1996 (3) SA 262 (A) 190, 192
Distributors (Pty) Ltd [2001] 1 All SA 417 (A);
2001 (2) SA 232 (SCA) 100, 109, 121, 128, 303
National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984 139, 140
National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T) 316
Naudé v Ecoman Investments 1994 (2) SA 95 (T) 346
Navidas (Pty) Ltd v Essop, Metha v Essop 1994 (4) SA 141 (A) 69
NBS Bank Ltd v Cape Produce Co (Pty) Ltd
[2002] 2 All SA 262 (A); 2002 (1) SA 396 (SCA) 22, 56, 167
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) 29
Ncqula v Muller’s Book Shop 1960 (4) SA 300 (E) 23
Ndamse v University College of Fort Hare 1966 (4) SA 137 (E) 192
Ndlovu v Ngcobo; Bekker v Jika [2002] 4 All SA 384 (SCA);
2003 (1) SA 113 (SCA) 170, 171
Nedbank Ltd v Aldick 1981 (3) SA 1007 (D) 68
Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika
[2001] 1 All SA 107 (A); 2001 (1) SA 987 (SCA) 294
Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray Lithographers (Pty) Ltd
[2000] 4 All SA 393 (A); 2000 (4) SA 915 (SCA) 59, 107
Nedcor Bank Ltd v ABSA Bank 1995 (4) SA 727 (W) 14
Nedcor Bank Ltd v D & A Transport (Gauteng) CC 2001 (4) SA 74 (W) 121
Nedcor Bank Ltd v Hennop 2003 (3) SA 622 (T) 73
Nedcor Bank Ltd v Withinshaw Properties (Pty) Ltd 2002 (6) SA 236 (C) 220
Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) 134, 141, 142
Neethling v Klopper 1967 (4) SA 459 (A) 30
Nel v Cloete 1972 (2) SA 150 (A) 247
Nel v Dobie 1966 (3) SA 352 (N) 219
Nel v Drilec (Pty) Ltd 1976 (3) SA 79 (D) 304
Nel v Louw 1955 (1) SA 107 (C) 345
Nel v Nelspruit Motors (Edms) Bpk 1961 (1) SA 582 (A) 96
Nell, Ex parte 1963 (1) SA 754 (A) 131, 132
Nelson v Hodgetts Timbers (East London) (Pty) Ltd 1973 (3) SA 37 (A) 328
Neon & Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A) 329
Nestlé (SA) (Pty) Ltd v Mars Inc [2001] 4 All SA 315 (A); 2001 (4) SA 542 (SCA) 228
Netlon Ltd v Pacnet (Pty) Ltd 1977 (3) SA 840 (A) 355
Neuhoff v York Timbers Ltd 1981 (4) SA 666 (T) 299
New Age Press Ltd v O’Keefe 1947 (1) SA 311 (W) 136
New Club Garage v Milborrow & Son 1931 GWL 86 262
Ngcobo v Santam Insurance Co Ltd 1994 (2) SA 478 (T) 361
Ngubane v SA Transport Services 1991 (1) SA 756 (A) 128
Nicolaides v Skordis 1973 (2) 730 (N) 35
Nine Hundred Umgeni Road (Pty) Ltd v Bali 1986 (1) SA 1 (A) 81
Nkisimane v Santam Insurance Co Ltd 1978 (2) SA 430 (A) 251
NKP Kunsmisverspreiders (Edms) Bpk v Sentrale Kunsmis Korp (Edms) Bpk
1973 (2) SA 680 (T) 334
Norris v Road Accident Fund [2001] 4 All SA 321 (A) 250
North & Son (Pty) Ltd v Albertyn 1962 (2) SA 212 (A) 104
North West Arts Council v Sekhabi [1996] 3 All SA 361 (B) 262
Northern Assurance Co Ltd v Delbrook-Jones 1966 (3) SA 176 (T) 330
Novick v Benjamin 1972 (2) SA 842 (A) 101, 102, 301
Novick v Comair Holdings Ltd 1979 (2) SA 116 (W) 195, 260
NPC Electronics Ltd v S Taitz Kaplan and Company [1998] 1 All SA 390 (W) 3
Ntai v Vereeniging Town Council 1953 (4) SA 579 (A) 318
Ntshiqa v Andreas Supermarket (Pty) Ltd
[1996] 3 All SA 154 (Tk); 1997 (1) SA 184 (Tk) 220, 228
Ntshiqa v Andreas Supermarket (Pty) Ltd 1997 (3) SA 60 (Tk) 220
Ntuli v Ntuli 1946 TPD 181 210
Nuclear Fuels Corporation of SA (Pty) Ltd v Orda AG
1996 (4) SA 1190 (A); [1997] 1 All SA 11 (A) 186, 189
Nusca v Nusca 1995 (4) SA 813 (T) 5, 6
Nyoka v Legal Aid Board [1997] 4 All SA 593 (E) 32
O
O’Callaghan NO v Chaplin 1927 AD 310 10, 11
O’Connell, Manthe, Cragg & Partners v Charles 1970 (1) SA 7 (E) 36
Oakland Nominees (Pty) Ltd v Gelria Mining & Investment Co (Pty) Ltd
1976 (1) SA 441 (A) 167, 351
Oberholzer v Padraad van Outjo 1974 (2) SA 168 (SWA) 345
Obotseng v Lebone 1994 (4) SA 88 (BG) 348
Ocean Diners (Pty) Ltd v Golden Hill Construction CC 1993 (3) SA 331 (A) 36, 37
Oceana Leasing Services (Pty) Ltd v BG Motors (Pty) Ltd 1980 (3) SA 267 (W) 226
Oceanair (Natal) (Pty) Ltd v Sher 1980 (1) SA 317 (D) 329
Odendaal v Du Plessis 1918 AD 470 335
Odendaal v Van Oudtshoorn 1968 (3) SA 433 (T) 262, 263
Oelofsen NO v Cigna Insurance Co of SA Ltd 1991 (1) SA 74 (T) 205
Oerlikon SA (Pty) Ltd v Johannesburg City Council 1970 (3) SA 579 (A) 189
Oertel NNO v Direkteur van Plaaslike Bestuur 1983 (1) SA 354 (A) 294
Oertel NO v Brink 1972 (3) SA 669 (W) 286
Offit Enterprises (Pty) Ltd v Knysna Development Co (Pty) Ltd 1987 (4) SA 24 (C) 299
OK Bazaars 1929 Ltd v Stern and Ekermans 1976 (2) SA 521 (C) 64
Olitzki Property Holdings v State Tender Board 2001 (3) SA 1247 (SCA) 324
Olivier v Van der Bergh 1956 (1) SA 802 (C) 357, 358
Omega Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd
1978 (3) SA 465 (A) 147, 281
Omega Louis Brandt et Frere SA v African Textile Distributors 1982 (1) SA 951 (T) 275
Ongevallekommissaris v Santam Bpk [1998] 4 All SA 507 (A); 1999 (1) SA 251 (SCA) 128
Oosthuizen v Standard Credit Corporation Ltd 1993 (3) SA 891 (A) 117, 119, 120
Oos-Transvaalse Koöperasie Bpk v Heyns 1986 (4) SA 1059 (O) 157
Optima Fertilizers (Pty) Ltd v Turner 1968 (4) SA 29 (D) 265
Optimprops 1030 CC v First National Bank of SA [2001] 2 All SA 24 (D) 71

Optimprops 1030 CC v First National Bank of SA [2002] 4 All SA 582 (N) 71
Oranje Benefit Society v Central Merchant Bank Ltd 1976 (4) SA 659 (A) 354
Orchison, Ex parte 1952 (3) SA 66 (T) 105
Osborne Panama SA v Shell & BP SA Petroleum Refineries (Pty) Ltd 1982 (4) SA 890 (A)
222
Oslo Land Co Ltd v The Union Government 1938 AD 584 217
Osman v Standard Bank National Credit Corp Ltd 1985 (2) SA 378 (C) 244
Ovland Managemant (Tvl) (Pty) Ltd v Petprin (Pty) Ltd 1995 (3) SA 276 (N) 67
Owsianick v African Consol Theatres (Pty) Ltd 1967 (3) SA 310 (A) 290
Ozinsky NO v Lloyd 1992 (3) SA 396 (C); 1995 (2) SA 915 (A) 80, 184
Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) 109, 185
Padiachy v Motor Mecca JHB CC 2002 (4) SA 351 (W) 144
Palabora Mining Co Ltd v Coetzer 1993 (3) SA 306 (T) 220
Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd 1978 (2) SA 872 (A) 90
Palmer v Poulter 1983 (4) SA 11 (T) 356
Papp v Legal & General Assurance Society Ltd 1966 (2) SA 113 (E) 227
Par Excellence Colour Printing (Pty) Ltd v Ronnie Cox Graphic Supplies (Pty) Ltd
1983 (1) SA 295 (A) 281
Paradise Lost Properties (Pty) Ltd v Standard Bank of SA (Pty) Ltd 1997 (2) SA 815 (D) 221
Parekh v Shah Jehan Cinemas (Pty) Ltd 1980 (1) SA 301 (D) 32, 33
Parekh v Shah Jehan Cinemas 1982 (3) SA 618 (D) 79
Parker v Dorbyl Finance (Pty) Ltd 1997 (1) SA 862 (SCA) 117
Pataka v Keefe 1947 (2) SA 962 (A) 272
Patel v Adam 1977 (2) SA 653 (A) 29, 87
Patel v Grobbelaar 1974 (1) SA 532 (A) 341
Patel v Paruk’s Trustee 1944 AD 469 196

Paterson Exhibitions CC v Knights Advertising and Marketing CC 1991 (3) SA 523 (A) 334
Patz v Greene & Co 1907 TS 427 324
Payen Components SA Ltd v Bovic CC 1995 (4) SA 441 (A) 278, 342
Peacock v Marley 1934 AD 1315
Peffers NO v Attorneys, Notaries & Conveyancers Fidelity Guarantee Fund
Board of Control 1965 (2) SA 53 (C) 51
Penderis & Gutman NNO v Liquidators, Short-Term Business,
AA Mutual Ins Assocn Ltd 1992 (4) SA 836 (A) 202
Pennefather v Gokul 1960 (4) SA 42 (N) 176
Pentz v Government of the RSA 1983 (3) SA 584 (A) 295
Pentz v Gross 1996 (2) SA 518 (C) 14
Pepsico Inc v United Tobacco Co Ltd 1988 (2) SA 334 (W)275
Perdikis v Jamieson [2002] 4 All SA 560 (W); 2002 (6) SA 356 (W) 32
Pereira v Marine & Trade Insurance Co Ltd 1975 (4) SA 745 (A) 201, 202, 203
Peri-Urban Areas Health Board v Breet NO 1958 (3) SA 783 (T) 167
Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) 223, 349
Perumal v Govender 1997 (3) SA 644 (N) 161
Pete’s Warehousing and Sales CC v Bowsink Investments CC
[2000] 2 All SA 266 (E); 2000 (3) SA 833 (E) 96
Peter Cooper & Co (Previously Cooper & Ferreira) v De Vos [1998]
2 All SA 237 (E) 227, 330
Peters Flamman & Co v Kokstad Municipality 1919 AD 427 189
Peters NO v Schoeman [2001] 1 All SA 155 (A); 2001 (1) SA 872 (SCA) 82, 100
Pezzutto v Dreyer 1992 (3) SA 379 (A) 271
Pfeiffer v First National Bank of SA Ltd [1998] 3 All SA 397 (A); 1998 (3) SA 1018 (SCA)
283
PG Bison Ltd v Master of the High Court [2000] 1 All SA 363 (SCA);
2000 (1) SA 859 (A) 67
Phame (Pty) Ltd v Paizes 1973 (3) SA 397 (A) 195, 260
Pheasant v Warne 1922 AD 481 242
Philip Morris Inc v Marlboro Shirt Co SA Ltd 1991 (2) SA 720 (A) 276
Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A) 6, 7, 128,
350
Phillips v Aida Real Estate (Pty) Ltd 1975 (3) SA 198 (A) 163
Phillips v General Accident Insurance Co (SA) Ltd 1983 (4) SA 652 (W) 200
Phillips Estate (Pvt) Ltd v Braunstein 1964 (3) SA 818 (SR) 280
Philmatt (Pty) Ltd v Mosselbank Developments CC
[1996] 1 All SA 296 (A); 1996 (2) SA 15 (SCA) 29, 167
Philotex (Pty) Ltd v Snyman, Braitex (Pty) Ltd v Snyman 1998 (2) SA 138 (SCA) 80
Pick ’n Pay Stores Ltd v Teazers Comedy and Revue CC
[2000] 2 All SA 604 (W); 2000 (3) SA 645) (W) 270
Pienaar v Fortuin 1977 (4) SA 428 (T) 307
Pienaar v Maritz t/a JJ Coal Suppliers 1985 (1) SA 547 (T) 68
Pienaar v Minister van Landbou 1972 (1) SA 14 (T) 177
Pienaar v Pienaar 2000 (1) SA 231 (O) 48
Pienaar v Rabie 1983 (3) SA 126 (A)291
Pienaar v Southern Insurance Association Ltd 1983 (1) SA 917 (C) 356
Pieters v Botha 1989 (3) SA 607 (T) 10
Pillai v Pillai 1963 (4) SA 838 (A) 311
Pillay v Krishna 1946 AD 946 144, 283
Pillay v Naidoo 1916 WLD 151 135
Pine Designs (Pty) Ltd v Abt 1976 (3) SA 795 (O) 69
Pitout v Mbolane [2000] 2 All SA 377 (LCC) 170
Pizani v First Consolidated Holdings (Pty) Ltd 1979 (1) SA 69 (A) 328
Plaaslike Boeredienste(Edms) Bpk v Chemfos Bpk 1986 (1) SA 819 (A) 24
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) 338, 341
Pledge Investments (Pty) Ltd v Kramer NO: In re Estate Selesnik 1975 (3) SA 696 (A) 54
Polakow Bros (Pty) Ltd v Gershlowitz 1976 (1) SA 863 (SE) 275
Policansky Bros Ltd v L & H Policansky 1935 AD 89 275
Polysius (Pty) Ltd v Transvaal Alloys (Pty) Ltd 1983 (2) SA 630 (W) 33
Ponisammy v Versailles Estates (Pty) Ltd 1973 (1) SA 372 (A) 246, 247
Porritt v Molefe 1982 (3) SA 76 (A) 344
Porter v Cape Town City Council 1961 (4) SA 278 (C) 266
Porterstraat 69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
2000 (4) SA 598 (C) 313
Portion 1 of 46 Wadeville (Pty) Ltd v Unity Cutlery (Pty) Ltd 1984 (1) SA 61 (A) 66
Portwood v Svamvur 1970 (4) SA 8 (RA) 11
Post Newspapers (Pty) Ltd v World Printing & Publishing Co Ltd 1970 (1) SA 454 (T) 194
Posts and Telecommunications Corporation v Modus Publications (Pvt) Ltd
1998 (3) SA 1114 (ZHC) 133
Potchefstroomse Stadsraad v Kotze 1960 (3) SA 616 (A) 21
Potgieter v Smit 1985 (2) SA 690 (D) 10
Powell v ABSA Bank Ltd t/a Volkskas Bank
[1997] 4 All SA 231 (SE); 1998 (2) SA 807 (SE) 57, 59, 284
Powertech Industries Ltd v Mayberry [1996] 1 All SA 561 (W); 1996 (2) SA 742 (W) 1, 2
PPI Makelaars v Professional Provident Society of South Africa
[1997] 4 All SA 444 (A); 1998 (1) SA 595 (SCA) 337
Precismeca Ltd v Melco Mining Supplies (Pty) Ltd 2003 (1) SA 664 (SCA) 279
Preller v Jordaan 1956 (1) SA 483 (A) 341
Premier Finance Corporation (Pty) Ltd v McKie 1979 (3) SA 1308 (T) 123
Premier, Free State v Firechem Free State (Pty) Ltd

[2000] 3 All SA 247 (SCA); 2000 (4) SA 413 (SCA) 89
Premier Hangers CC v Polyoak (Pty) Ltd
[1997] 1 All SA 134 (A); 1997 (1) SA 416 (SCA) 146, 343
President Insurance Co Ltd v Yu Kwam 1963 (3) SA 766 (A) 293
President Versekeringsmaatskappy Bpk v Trust Bank van Afrika Bpk 1989 (1) SA 208 (A)
201
Pressma Services (Pty) Ltd v Schuttler 1990 (2) SA 411 (C) 80
Preston v Vredendal Co-Operative Winery Ltd
[2000] 4 All SA 492 (E); 2001 (1) SA 244 (E) 131
Pretorius v Botha 1961 (4) SA 722 (T) 210
Pretorius v Erasmus 1975 (2) SA 765 (T) 23
Pretorius v Fourie NO 1962 (2) SA 280 (O) 315
Pretorius v Loudon 1985 (3) SA 845 (A) 167
Pretorius v McCallum 2002 (2) SA 423 (C) 48
Pretorius NO v Stock Owners’ Co-operative Co Ltd 1959 (4) SA 462 (A) 197
Price v IGI Ltd 1983 (1) SA 311 (A) 201
Prima Toy Holdings (Pty) Ltd v Rosenberg 1974 (2) SA 477 (C) 184
Pringle v Administrator, Transvaal 1990 (2) SA 379 (W) 241
Prins v ABSA Bank Ltd [1997] 1 All SA 486 (C); 1998 (3) SA 904 (C) 245
Prins v Universiteit van Pretoria 1980 (2) SA 171 (T) 159, 160, 161
Prinsloo v Du Plooy 1952 (4) SA 219 (O) 44
Prinsloo v Newman 1975 (1) SA 481 (A) 40, 192, 238
Prinsloo v Shaw 1938 AD 570 266
Prinsloo v van der Linde 1997 (3) SA 1012 (CC) 344
Prinsloo v Woolbrokers Federation Ltd 1955 (2) SA 298 (N) 15
Probert v Baker 1983 (3) SA 229 (D)102, 261
Proksch v Die Meester 1969 (4) SA 567 (A) 329

Protea Assurance Co Ltd v Matinise 1978 (1) SA 963 (A) 250
Protea Holdings Ltd v Herzberg 1982 (4) SA 773 (C) 105
Provident Fund for the Clothing Industry v Attorneys, Notaries & Conveyancers
Fidelity Guarantee Fund 1981 (3) SA 539 (W) 50
Province of the Free State v Williams NO [2000] 2 All SA 172 (A);
2000 (3) SA 65 (SCA) 295
Provincial Building Society of SA v PR Wade & Co (Pty) Ltd (in liq) 1967 (1) SA 121 (N)
36
Provincial Government of the Eastern Cape and others v Contractprops 25 (Pty) Ltd
[2001] 4 All SA 273 (A); 2001 (4) SA 142 (SCA) 167
Provinsiale Administrasie, Kaap die Goeie Hoop v Swart 1988 (1) SA 375 (C) 177
Purdon v Muller 1961 (2) SA 211 (A) 271
Purser v Sales; Purser v Sales [2001] 1 All SA 25 (SCA); 2001 (3) SA 445 (SCA) 181
Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd 1985 (4) SA 809 (A) 99
Qilingele v SA Mutual Life Assurance Society 1993 (1) SA 69 (A) 202
Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272 289
Quenty’s Motors (Pty) Ltd v Standard Credit Corporation Ltd 1994 (3) SA 188 (A) 167
Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei
1993 (3) SA 184 (Tk) 318
R & I Laboratories (Pty) Ltd v Beauty Without Cruelty International 1990 (3) SA 746 (C)194
R v Klisser & Rosenberg 1949 (3) SA 807 (W) 326
Rabinowitz NNO v Ned-Equity Insurance Co Ltd 1980 (1) SA 403 (W) 203
Radebe v Eastern Transvaal Development Board 1988 (2) SA 785 (A) 285
Rademeyer v Rademeyer 1968 (3) SA 1 (C) 211
Rademeyer v Western Districts Council [1998] 2 All SA 547 (SE);

1998 (3) SA 1011 (SE) 266
Radiotronics (Pty) Ltd v Scott, Lindberg & Co Ltd 1951 (1) SA 312 (C) 103, 334
Rahim v Minister of Justice 1964 (4) SA 630 (A) 87
Ramnath v Bunsee 1961 (1) SA 394 (N) 219
Rampal (Pty) Ltd v Brett, Wills & Partners 1981 (4) SA 360 (D) 51
Ramsay v Minister van Polisie 1981 (4) SA 802 (A) 41, 192, 239
Ramsukh v Diesel-Electric (Natal) (Pty) Ltd
[1997] 3 All SA 209 (A); 1997 (4) SA 242 (SCA) 69
Rand Bank Bpk v Regering van die RSA 1975 (3) SA 726 (A) 227
Rand Bank Ltd v Rubenstein 1981 (2) SA 207 (W) 185
Rand Waterraad v Bothma 1997 (3) SA 120 (O) 161, 162
Randaree NNO v WH Dixon & Associates 1983 (2) SA 1 (A) 37, 232
Randbank Bpk v Santam Versekeringsmaatskappy Bpk 1965 (4) SA 363 (A) 24, 183
Randburg Town Council v Kerksay Investments (Pty) Ltd
[1997] 4 All SA 121 (A); 1998 (1) SA 98 (SCA) 178
Randcon (Natal) (Pty) Ltd v Florida Twin Estates (Pty) Ltd 1973 (4) SA 181 (D) 37
Randles, Ex parte: In re King v King [1998] 2 All SA 412 (D) 152
Ranger v Wykerd 1977 (2) SA 976 (A) 128, 184
Ras v Simpson 1904 TS 254 121
Rauff v Standard Bank Properties 2002 (6) SA 693 (W) 360
Reck v Mills 1990 (1) SA 751 (A) 317
Reckitt & Colman SA (Pty) Ltd v SC Johnson & Son SA (Pty) Ltd
1993 (2) SA 307 (A) 276, 277
Rectifier & Communication Systems (Pty) Ltd v Harrison 1981 (2) SA 283 (C) 5, 130
Reddy v Durban Corp 1939 AD 293 267
Reeder v Softline [2000] 4 All SA 105 (W); 2001 (2) SA 844 (W) 152
Reeves v Marfield Ins Brokers CC 1996 (3) SA 766 (A) 186, 304
Refrigerated Trucking (Pty) Ltd v Zive NO (Aegis Insurance Co Ltd, Third Party)
1996 (2) SA 361 (T) 201
Regal v African Superslate (Pty) Ltd 1963 (1) SA 102 (A) 266, 267
Regering van die Republiek van Suid-Afrika, Die v Santam Versekeringsmaatskappy Bpk
1964 (1) SA 546 (W) 74
Regering van die RSA v SA Eagle Versekeringsmaatskappy Bpk 1985 (2) SA 42 (O) 295
Regional Factors (Pty) Ltd v Charisma Promotions 1980 (4) SA 509 (C) 67
Registrateur van Aandelebeurse v Aldum h/a Onecor Group 2002 (2) SA 767 (SCA) 314
Reinecke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A) 132
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) 226
Rens v Coltman 1996 (1) SA 452 (A) 102
Rens v Gutman NO [2002] 4 All SA 30 (C) 156
Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) 89, 90, 202
Retail Management Services (Edms) Bpk v Schwartz 1992 (2) SA 22 (W) 80
Rhodes Fruit Farms Ltd v Cape Town City Council 1968 (3) SA 514 (C) 322, 349
Ribeiro v Santam Ltd [1996] 2 All SA 47 (W); 1996 (3) SA 1035 (W) 114
Richter v Estate Hammann 1976 (3) SA 226 (C) 241
Richtersveld Community v Alexkor Ltd 2000 (1) SA 337 (LCC) 228
Richtown Construction Co (Pty) Ltd v Witbank Town Council 1983 (2) SA 409 (T) 33
Ridley v Marais 1939 AD 5 229
Rieseberg v Berry 1914 TPD 561 135
Rikhotso v Northcliff Ceramics (Pty) Ltd [1996] 4 All SA 524 (W); 1997 (1) SA 526 (W)318
Ritch and Bhyat v Union Government (Minister of Justice) 1912 AD 719 356
Rizla International BV v L Suzman Distributors (Pty) Ltd
[1996] 2 All SA 414 (C); 1996 (2) SA 527 (C) 276
RM Van de Ghinste & Co (Pty) Ltd v Van de Ghinste 1980 (1) SA 250 (C) 172, 316
RMS Transport v Psicon Holdings (Pty) Ltd 1996 (2) SA 176 (T) 6
Road Accident Fund v Hansa [2002] 1 All SA 143 (A); 2001 (4) SA 1204 (SCA) 249
Road Accident Fund v Mongalo; Nkabinde v Road Accident Fund
[2003] 1 All SA 72 (SCA) 249
Road Accident Fund v Mothupi [2000] 3 All SA 181 (A); 2000 (4) SA 38 (SCA) 166, 355
Road Accident Fund v Smith NO [1998] 4 All SA 429 (A); 1999 (1) SA 92 (SCA) 293
Roberts Construction Co Ltd v Dominion Earthworks (Pty) Ltd 1968 (3) SA 255 (A) 94,
95, 96
Robin v Guarantee Life Assurance Co Ltd 1984 (4) SA 558 (A) 96
Robinson v D Cooper Corp of SA (Pty) Ltd 1984 (3) SA 699 (A) 146, 148
Robinson v Hay 1930 AD 444 307
Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 23
Robson v Theron 1978 (1) SA 841 (A) 210, 211, 272
Rocade Developments (Pty) Ltd v Van Vüren & Trathen (Pty) Ltd 1997 (3) SA 494 (W) 35
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C) 133, 134, 136
Rondalia Bank Bpk v Pieter Nel Motors (Edms) Bpk 1979 (4) SA 467 (T) 227
Ronstan Investments (Pty) Ltd v Littlewood
[2001] 3 All SA 127 (A); 2001 (3) SA 555 (SCA) 163
Roos v Engineering Fabricators (Edms) Bpk 1974 (3) SA 545 (A) 94
Rosen v Barclays National Bank Ltd 1984 (3) SA 974 (W) 166
Rosen v Ekon [2000] 3 All SA 24 (W); 2001 (1) SA 199 (W) 173
Rosenthal v Mastroguiseppe [2000] 4 All SA 295 (A) 344
Rosseau v Viljoen 1970 (3) SA 413 (C) 353
Rosseau NO v Cloete 1952 (3) SA 703 (C) 5
Rossouw & Rossouw v Hodgson 1925 AD 97 329
Rother, Estate v Estate Sandig 1943 AD 47 211
Rousalis v Rousalis 1980 (3) SA 446 (C) 149

Rouwkoop Caterers (Pty) Ltd v IGI Ltd 1977 (3) SA 941 (A) 202
Roux v Van Rensburg [1996] 3 All SA 499 (A); 1996 (4) SA 271 (SCA) 226
Rovic Noordkaap v Roux 1980 (4) SA 59 (O) 69
Rowe v Rowe [1997] 3 All SA 503 (A); 1997 (4) SA 160 (SCA) 85, 213
RSA Faktors Bpk v Bloemfontein Township Developers (Edms) Bpk 1981 (2) SA 141 (O)
227
Rudman v Road Accident Fund [2002] 4 All SA 422 (SCA); 2003 (2) SA 234 (SCA) 129
Rumanal (Pty) Ltd v Hubner 1976 (1) SA 643 (E) 285
Ruskin v Thiergen 1962 (3) SA 737 (A) 270
Rusmarc (SA) (Pty) Ltd v Hemdon Enterprises (Pty) Ltd 1975 (4) SA 626 (W) 275
Rustenburg Platinum Mines Ltd v Breedt
[1997] 2 All SA 69 (A); 1997 (2) SA 337 (SCA) 91, 247
Ruto Flour Mills (Pty) Ltd v Moriates 1957 (3) SA 113 (T) 183
S v Makwanyane 1995 (3) SA 391 (CC) 45
S v McPherson 1972 (2) SA 348 (E) 326
S v Wells 1990 (1) SA 816 (A) 213
SA Associated Newspapers Ltd v Estate Pelser 1975 (4) SA 797 (A) 133, 135
SA Associated Newspapers Ltd v Samuels 1980 (1) SA 24 (A) 137
SA Bantoetrust v Ross & Jacobz 1977 (3) SA 184 (T) 52
SA Board of Executors & Trust Co Ltd (in liq) v Gluckman 1967 (1) SA 534 (A) 196
SA Breweries Ltd v Ribeiro t/a Doc’s Liquor Merchants
[1999] 4 All SA 627 (W); 2000 (1) SA 803 (W) 265
SA Cooling Services (Pty) Ltd v Church Council of the Full Gospel Tabernacle
1955 (3) SA 541 (D) 316, 333
SA Eagle Insurance Co Ltd v Pretorius [1998] 1 All SA 131 (A); 1998 (2) SA 656 (SCA) 251
SA Eagle Insurance Co Ltd v Van der Merwe NO

[1998] 2 All SA 527 (A); 1998 (2) SA 1091 (SCA) 251
SA Fish Oil Producers’ Association (Pty) Ltd v Shipwrights & Engineers Holdings Ltd
1958 (1) SA 687 (C) 256
SA Historical Mint (Pty) Ltd v Sutcliffe 1983 (2) SA 84 (C) 93
SA Onderlinge Brand v Van den Berg 1976 (1) SA 602 (A) 116
SA Transport Services v Wilson NO 1990 (3) SA 333 (W) 32
SA Yster & Staal Industriële Korp Bpk v Koschade 1983 (4) SA 837 (T) 268
SA Yster & Staal Industriële Korp Bpk v Van der Merwe 1984 (3) SA 706 (A) 346
SACCA Ltd v Olivier 1954 (3) SA 136 (T) 272
Sackstein & Venter NNO v Greyling 1990 (2) SA 323 (O) 13
SAFA v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons
[2003] 1 All SA 274 (SCA) 277, 343
Safari Reservations (Pty) Ltd v Zululand Safaris (Pty) Ltd 1966 (4) SA 165 (D) 132
Safaris & Film Productions (Pty) Ltd 1977 (2) SA 416 (A) 219
Sage Life Ltd v Van der Merwe 2001 (2) SA 166 (W) 105
Sager v Bezuidenhout 1980 (3) SA 1005 (O)311
SAI Investments v Van der Schyff NO 1999 (3) SA 340 (N) 29
Salisbury Municipality v Jooala 1911 AD 178 267
Salusa (Pty) Ltd v Eagle International Traders 1979 (4) SA 697 (C)275
Salzwedel v Raath 1956 (2) SA 160 (E) 100
Sampson v Union & Rhodesia Wholesale Ltd (in liq) 1929 AD 468185
Sanders NO v Edwards NO [2003] 1 All SA 108 (C) 346
Sandown Park (Pty) Ltd v Hunter Your Wine & Spirit Merchant (Pty) Ltd
1985 (1) SA 248 (W) 220
Santam Bank Ltd v Voigt 1990 (3) SA 274 (E) 119, 120
Santam Insurance Co Ltd v Fourie [1997] 1 All SA 590 (A); 1997 (1) SA 611 (SCA) 237
Santam Insurance Co Ltd v Vorster 1973 (4) SA 764 (A) 107, 353
Santam Insurance Ltd v Cave 1986 (2) SA 48 (A) 33
Santam Ltd v Ethwar [1999] 1 All SA 252 (A); 1999 (2) SA 244 (SCA) 294
Santam Versekeringsmaatskappy Bpk v Byleveldt 1973 (2) SA 146 (A) 130
Santambank Bpk v Dempers 1987 (4) SA 639 (O) 122
Santos Erec v Cheque Discounting Co (Pty) Ltd 1986 (4) SA 752 (W) 212
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 697 (C) 316
Sapirstein v Anglo African Shipping Co (SA) Ltd 1978 (4) SA 1 (A) 327
Sappi Fine Papers (Pty) Ltd v ICI Canada Inc 1992 (3) SA 306 (A) 280
Sappi Manufacturing (Pty) Ltd v Standard Bank of South Africa Ltd
[1996] 4 All SA 487 (A); 1997 (1) SA 457 (A) 69
SAR&H v Dhlamini 1967 (2) SA 203 (D) 348
SAR&H v Edwards 1930 AD 3 10
SAR&H v Marais 1950 (4) SA 610 (A) 223
Sarann Furnishers (Pty) Ltd v Brink NO 1966 (3) SA 48 (N) 122
Sarembock v Medical Leasing Services (Pty) Ltd 1991 (1) SA 344 (A) 216
Saridakis t/a Auto Nest v Lamont 1993 (2) SA 164 (C) 231
Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A)186
Sasfin (Pty) Ltd v Jessop 1997 (1) SA 675 (W) 16, 17
Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd
t/a LH Marthinusen 1992 (4) SA 466 (W) 129
SAUK v O’Malley 1977 (3) SA 394 (A) 137, 140
Sauls v Hendrickse 1992 (3) SA 912 (A) 135
Savvides v Savvides 1986 (2) SA 325 (T) 157
Sayers v Khan [2002] 1 All SA 57 (C); 2002 (5) SA 688 (C) 29
SC Johnson & Son Inc v Klensan (Pty) Ltd t/a Markrite 1982 (4) SA 579 (T) 275
Scala Café v Rand Advance (Pty) Ltd 1975 (1) SA 28 (N) 21
Schenk v Schenk 1993 (2) SA 346 (E) 205, 206

Schierhout v Union Government (Minister of Justice) 1926 AD 286 312
Schlinkmann v Van der Walt 1947 (2) SA 900 (E) 301
Schlumberger Logelco Inc v Coflexip SA 2000 (3) SA 861 (SCA) 279
Schmidt Plant Hire (Pty) Ltd v Pedrelli 1990 (1) SA 398 (D) 316
Schmidt v Dwyer 1959 (3) SA 896 (C) 260
Schnehage v Bezuidenhout 1977 (1) SA 362 (O) 169, 219, 312, 351
Schuldes v Compressor Valves Pension Fund 1980 (4) SA 576 (W) 32
Schultz v Butt 1986 (3) SA 667 (A) 147, 193, 342, 343
Scott v Golden Valley Supermarket [2002] 3 All SA 1 (A); 2002 (6) SA 297 (SCA) 74
Scott v Poupard 1971 (2) SA 373 (A)91
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd
[2000] 1 All SA 128 (A); 2000 (1) SA 827 (SCA) 223, 224, 257, 344
Seboko v Soll 1949 (3) SA 337 (T) 215
Sechold Financial Services (Edms) Bpk v Gazankulu Ontwikkelingskorporasie Bpk
[1997] 2 All SA 489 (A) 67
Sekhoto v Qwa Qwa Auto Industries CC Panel Beaters & Spray Painters
1998 (1) SA 164 (O) 114
Selero (Pty) Ltd v Chauvier 1982 (2) SA 208 (T) 281
Senator Versekeringsmaatskappy Bpk v Bezuidenhout 1987 (2) SA 361 (A) 361
Senekal v Trust Bank of Africa Ltd 1978 (3) SA 375 (A) 56, 327
Sentrachem Bpk v Wenhold 1995 (4) SA 312 (A) 127
Sentrakoop Handelaars Bpk v Lourens 1991 (3) SA 540 (W) 22
Service v Pondart-Diana 1964 (3) SA 277 (D) 184
Seton Co v Silveroak Industries Ltd 2000 (2) SA 215 (T) 34
Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) 101
Shelagatha Property Investments CC v Kellywood Homes (Pty) Ltd; Shelfaerie Property
Holdings CC v Midrand Shopping Centre (Pty) Ltd 1995 (3) SA 187 (A) 37
Shenfield v Murgatroyd 1954 (2) SA 241 (N) 35
Shepstone & Wylie v Geyser NO [1998] 3 All SA 349 (A); 1998 (3) SA 1036 (SCA) 73
Shield Insurance Co Ltd v Booysen 1979 (3) SA 953 (A) 251
Sibex Engineering Services (Pty) Ltd v Van Wyk 1991 (2) SA 482 (T) 304
Sidali v Mpolongwana 1990 (4) SA 212 (C) 30
Sifris NNO v Vermeulen Broers 1974 (2) SA 218 (T) 232
Signature Design Workshop CC v Eskom Pension & Provident Fund 2002 (2) SA 488 (C)
128
Sikatele v Sikatele [1996] 1 All SA 445 (Tk)228
Sillo v Naude 1929 AD 21 318
Silverstream Investments (Kranskop) CC v Ronbo Automotive CC
[1996] 3 All SA 216 (D); 1997 (1) SA 107 (D) 198
Siman & Co (Pty) Ltd v Barclays National Bank Ltd 1984 (2) SA 888 (A) 56, 260
Simmonds v White 1980 (1) SA 755 (C) 129, 130, 133, 137
Simmons NO v Bantoesake Administrasieraad (Vaaldriehoekgebied) 1979 (1) SA 940 (T)

233
Simon NO v Mitsui & Co Ltd [1996] 3 All SA 353 (W); 1997 (2) SA 475 (W) 286
Simon’s Town Municipality v Dews 1993 (1) SA 191 (A) 324, 344
Simopoulos v Antoniou [2000] 4 All SA 427 (SE) 334
Sindani v Van Der Merwe [2002] 1 All SA 311 (A); 2002 (2) SA 32 (SCA) 135
Singh v McCarthy Retail Ltd t/a McIntosh Motors
[2000] 4 All SA 487 (A); 2000 (4) SA 795 (SCA 99
Singh v Santam Insurance Co 1974 (4) SA 196 (D) 237
Singh v Santam Insurance Ltd [1997] 1 All SA 525 (A); 1997 (1) SA 291 (SCA) 226, 350
Sirius Motor Corporation v Kajee [1997] 2 All SA 159 (D) 357
Sishen Hotel (Edms) Bpk v SA Yster & Staal Industriële Korp Bpk 1987 (2) SA 932 (A) 96
Skjelbreds Rederi AS v Hartless (Pty) Ltd 1982 (2) SA 710 (A) 66, 313
Slabbert, Verster & Malherbe (Noord Vrystaat) (Edms) Bpk v

Gellie Slaghuis (Edms) Bpk 1984 (1) SA 491 (O) 54
Slomowitz v Kok 1983 (1) SA 130 (A) 51
Smit and Venter v Fourie 1946 WLD 9 118
Smit v Abrahams 1994 (4) SA 1 (A) 130, 224
Smit v Arthur 1976 (3) SA 378 (A) 20, 27
Smit v Bester 1977 (4) SA 937 (A) 109
Smit v Meyerton Outfitters 1971 (1) SA 137 (T) 41
Smit v OVS Afrikaanse Pers Bpk 1956 (1) SA 768 (O) 141
Smit v Saipem 1974 (4) SA 918 (A) 128, 288
Smith v Basson 1979 (1) SA 559 (W) 161
Smith v KwaNonqubela Town Council [1999] 4 All SA 331 (A);
1999 (4) SA 947 (SCA) 23, 298
Smith v Mouton 1977 (3) SA 9 (W) 35, 36
Smith v Mukheibir [2001] 3 All SA 141 (SCA); 2001 (3) SA 591 (SCA) 306
Smith NO v Hattingh 1984 (2) SA 660 (C) 196
Smuts v Booyens; Markplaas (Edms) Bpk v Booyens
[2001] 3 All SA 536 (A); 2001 (4) SA 15 (SCA) 66, 290
Snaid v Volkskas Bank Ltd 1997 (1) SA 239 (W) 332
Snyman v Snyman 1984 (4) SA 262 (W) 190
Soar h/a Rebuilds for Africa v JC Motors 1992 (4) SA 127 (A) 103
Société Commerciale de Moteurs v Ackermann 1981 (3) SA 422 (A) 96
Sodo v Chairman, African National Congress, Umtata Region [1998] 1 All SA 45 (Tk) 166
Sokhulu v New Africa Publications Ltd t/a “The Sowetan Sunday World”
[2002] 1 All SA 255 (W); 2001 (4) SA 1357 (W) 190
Solomon NNO v De Waal 1972 (1) SA 575 (A) 10, 11
Sommer v Wilding 1984 (3) SA 647 (A) 269
Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A) 245
Sonia (Pty) Ltd v Wheeler 1958 (1) SA 555 (A) 99
SOS-Kinderdorf International v Effie Lentin Architects 1991 (3) SA 574 (Nm) 214
South African Co-operative Citrus Exchange Ltd v Director-General Trade and Industry
[1997] 2 All SA 321 (A); 1997 (3) SA 236 (SCA) 356
South African Eagle Insurance Co Ltd v Norman Welthagen Investments (Pty) Ltd
1994 (2) SA 122 (A) 202
South African Mutual Life Assurance Society v Anglo-Transvaal Collieries Ltd
1977 (3) SA 642 (A) 132
South African National Parks v Ras [2001] 4 All SA 380 (C); 2002 (2) SA 537 (C) 169
South African Permanent Building Society v Powell 1986 (1) SA 722 (A) 122
South African Railways & Harbours v Du Preez 1953 (1) SA 81 (C) 257
South British Insurance Co Ltd v Smit 1962 (3) SA 826 (A)107
Southern Life Association Ltd v Beyleveld NO 1989 (1) SA 496 (A) 22, 166
Sperling v Sperling 1975 (3) SA 707 (A) 149
Spie Batignolles SA v Van Niekerk 1980 (2) SA 441 (NC) 214, 271
Spies v Lombard 1950 (3) SA 469 (A) 219
Spindrifter (Pty) Ltd v Lester Donovan (Pty) Ltd 1986 (1) SA 303 (A) 245
Spoorbond, Die v SA Railways; Van Heerden v SA Railways 1946 AD 999 133
Stadsraad van Pretoria v Pretoria Pools 1990 (1) SA 1005 (T) 347
Stadsraad van Randburg v Ludorf NO 1984 (3) SA 469 (W) 131
Stafford t/a Natal Agriculture Co v Lions River Saw Mills (Pty) Ltd
[1999] 1 All SA 275 (N); 1999 (2) SA 1077 (N) 76
Stainer v Palmer-Pilgrim 1982 (4) SA 205 (O) 183
Stambolie v Commissioner of Police 1990 (2) SA 369 (ZSC) 40, 239
Standard Bank Factors Ltd v Furncor Agencies (Pty) Ltd 1985 (3) SA 410 (C) 285
Standard Bank Financial Services Ltd v Taylam (Pty) Ltd 1979 (2) SA 383 (C) 261, 262,
263
Standard Bank of SA Ltd v Coetsee 1981 (1) SA 1131 (A) 56, 183, 224
Standard Bank of SA Ltd v Essop
[1997] 3 All SA 117 (D); 1997 (4) SA 569 (D) 85
Standard Bank of SA Ltd v Lotze 1950 (2) SA 698 (C) 206
Standard Bank of SA Ltd v Nair (Bissessur, Third Parties) 2001 (1) SA 998 (D) 70
Standard Bank of SA Ltd v Ocean Commodities Inc 1983 (1) SA 276 (A) 95
Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd (in liq)
[1998] 1 All SA 413 (SCA); 1998 (1) SA 811 (SCA) 56, 206, 207, 283, 284
Standard Bank of SA Ltd v Pearson 1961 (3) SA 721 (E) 271
Standard Bank of SA Ltd v SA Fire Equipment (Pty) Ltd 1984 (2) SA 693 (C) 313
Standard Bank of SA Ltd v Sarwan [2002] 3 All SA 49 (W) 56
Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (A) 166
Standard Bank of SA Ltd v United Bank Ltd 1991 (4) SA 780 (W) 339
Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) 208, 259
Standard Credit Corporation Ltd v Bester 1987 (1) SA 812 (W) 118
Standard Finance Corp of SA Ltd (in liq) v Greenstein 1964 (3) SA 573 (A) 197
Standard Finance Corp of SA Ltd (in liq) v Langeberg Koöperasie Bpk
1967 (4) SA 686 (A) 91
Standard General Insurance Co Ltd v Dugmore NO
[1996] 4 All SA 415 (A); 1997 (1) SA 33 (SCA) 128, 130
Standard General Insurance Co Ltd v SA Brake CC 1995 (3) SA 806 (A) 66
Stanhope v Combined Holdings & Industries Ltd 1950 (3) SA 52 (E) 33
Stauffer Chemical Co v Safsan Marketing 1987 (2) SA 331 (A) 282
Stauffer Chemicals v Monsanto Co 1988 (1) SA 805 (T) 281
Steenberg v De Kaap Timber (Pty) Ltd 1992 (2) SA 169 (A) 344
Stein v Rising Tide Productions CC [2002] 2 All SA 22 (C); 2002 (5) SA 199 (C) 349
Stellenbosch Farmers’ Winery Ltd v Vlachos t/a Liquor Den

[2001] 3 All SA 577 (A); 2001 (3) SA 597 (SCA) 166
Stellenbosch Wine Trust Ltd v Oude Meester Group Ltd 1977 (2) SA 221 (C) 195, 342
Sterling Consumer Products (Pty) Ltd v Cohen [2000] 4 All SA 221 (W) 285
Stern NO v Standard Trading Co Ltd 1955 (3) SA 423 (A) 94
Stewart & Lloyds of SA Ltd v Croydon Engineering & Mining Supplies (Pty) Ltd
1981 (1) SA 305 (W) 328
Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) 160, 301
Steyn v AA Onderlinge Assuransie Assosiasie Bpk 1985 (4) SA 7 (T) 200
Steyn’s Foundry (Pty) Ltd v Peacock 1965 (4) SA 549 (T) 122
Stieler v Kroch-Bou Aannemers Bpk [1997] 2 All SA 526 (W) 334
Stocks & Stocks (Cape) (Pty) Ltd v Gordon NO 1993 (1) SA 156 (T) 34
Stocks & Stocks (Pty) Ltd v TJ Daly & Sons (Pty) Ltd
1979 (3) SA 754 (A) 63, 64, 96, 144, 145
Stocks Construction (OFS) (Pty) Ltd v Metter-Pingon (Pty) Ltd 1978 (4) SA 35 (T) 32
Stocks Construction (OFS) (Pty) Ltd v Metter-Pingon (Pty) Ltd 1980 (1) SA 507 (A) 33
Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director,
Dept of Education & Culture Services 1996 (4) SA 231 (C) 317
Stofberg v Elliott 1923 CPD 148 241
Stolzenberg v Lurie 1959 (2) SA 67 (W) 353
Streicher v Van Vuuren [2000] 4 All SA 306 (A) 241
Strijdom Park Extension 6 (Pty) Ltd v Abcon (Pty) Ltd
[1998] 4 All SA 117 (SCA); 1998 (4) SA 844 (SCA) 103, 235
Strydom v Coach Motors (Edms) Bpk 1975 (4) SA 838 (T) 298
Strydom v Die Land- & Landboubank van SA 1972 (1) SA 801 (A) 167
Strydom v Fenner-Solomon 1953 (1) SA 519 (E) 142
Suid-Afrikaanse Nasionale Lewensassuransiemaatskappy Bpk v Louw & Collins Afslaers
(Edms) Bpk [1997] 1 All SA 473 (A); 1997 (1) SA 592 (A) 107
Suid-Afrikaanse Onderlinge Brand- en Algemene Versekeringsmaatskappy Bpk v
Van den Berg 1976 (1) SA 602 (A) 132
Sun Couriers (Pty) Ltd v Kimberley Diamond Wholesalers
[2001] 2 All SA 646 (NC); 2001 (3) SA 110 (NC) 64, 145, 244
Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A) 109
Sunshine Records (Pty) Ltd v Frohling 1990 (4) SA 782 (A) 305
Supercat Inc v Two Oceans Marine CC [2001] 3 All SA 1 (C); 2001 (4) SA 27 (C) 181
Sutter v Brown 1926 AD 155 136
SVV Construction (Pty) Ltd v Attorneys, Notaries and Conveyancers
Fidelity Guarantee Fund 1993 (2) SA 577 (C) 51
SWA Amalgameerde Afslaers (Edms) Bpk v Louw 1956 (1) SA 346 (A) 22, 54
Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A) 292
Swanepoel v Minister van Veiligheid en Sekuriteit
[1999] 3 All SA 285 (T); 1999 (1) SA 549 (T) 191
Swanepoel v Swanepoel [1996] 3 All SA 440 (SE) 333
Swart v Honeyborne 1981 (1) SA 974 (C) 11
Swart v Smuts 1971 (1) SA 819 (A) 186
Swart v Van der Vyver 1970 (1) SA 633 (A) 288
Swart v Vosloo 1965 (1) SA 100 (A) 99, 219, 247
Swartz v Delport [2002] 2 All SA 309 (A) 257
Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk 1974 (2) SA 450 (A) 203
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) 109, 316
Tauber v Von Abo 1984 (4) SA 482 (E) 264
Tedco Management Services (Pvt) Ltd v Grain Marketing Board 1997 (1) SA 196 (ZSC) 71
Television Radio Centre (Pty) Ltd v Sony 1987 (2) SA 994 (A) 339
Ter Beek v United Resources CC 1997 (3) SA 315 (C) 172

Terblanche v Archdeacon 1979 (3) SA 201 (T) 176
Terblanche NO v Baxtrans CC 1998 (3) SA 912 (C) 322
Tesven CC v SA Bank of Athens [1999] 4 All SA 396 (SCA); 2000 (1) SA 268 (SCA) 298
Thaker v Naran 1993 (4) SA 665 (N) 359
Thanam NO v Minister of Lands 1970 (4) SA 85 (D) 178
Thanolda Estates (Pty) Ltd v Bouleigh 145 (Pty) Ltd
[2001] 1 All SA 141 (W); 2001 (3) SA 196 (W) 91
Thelemann v Von Geyso 1957 (3) SA 39 (W) 62
Theron v AA Life Assurance Association Ltd 1995 (4) SA 361 (A) 242
Thiart v Kraukamp 1967 (3) SA 219 (T) 90
Thole v Minister of Justice 1967 (3) SA 531 (D) 137
Thomas v Henry 1985 (3) SA 889 (A) 99, 356
Thomas Construction (Pty) Ltd (in liq) v Grafton Furniture Manufacturers (Pty) Ltd
1988 (2) SA 546 (A) 36
Thompson v Barclays Bank, DCO 1965 (1) SA 365 (W) 129
Thompson v Minister of Police 1971 (1) SA 371 (E)239
Thompson v S A Broadcasting Corporation [2001] 1 All SA 329 (A) 184
Thompson v Scholtz [1998] 4 All SA 526 (A); 1999 (1) SA 232 (SCA) 101, 172, 220
Thormahlen v Gouws 1956 (4) SA 430 (A) 8
Thoroughbred Breeders’ Association of SA v Price Waterhouse
[2001] 4 All SA 161 (SCA); 2001 (4) SA 551 (SCA) 2, 101, 106, 205, 207, 208, 224,
258
TJ Jonck BK h/a Bothaville Vleismark v Du Plessis NO 1998 (1) SA 971 (O) 77
Tobani v Minister of Correctional Services NO [2000] 2 All SA 318 (SE) 39
Tödt v Ipser 1993 (3) SA 577 (A) 41, 42, 239
Toerien v Stellenbosch University 1996 (1) SA 197 (C) 232
Tolstrup NO v Kwapa NO 2002 (5) SA 73 (W) 16

Tonkwane Sawmill Co Ltd v Filmalter 1975 (2) SA 453 (W) 2
Topaz Kitchens (Pty) Ltd v Naboom Spa (Edms) Bpk 1976 (3) SA 470 (A) 95
Total SA (Pty) Ltd v Bekker NO 1992 (1) SA 617 (A) 105
Total Support Management (Pty) Ltd v Diversified Health Systems (SA) (Pty) Ltd
2002 (4) SA 661 (SCA) 32
Townsend Productions (Pty) Ltd v Leech [2001] 2 All SA 255 (C); 2001 (4) SA 33 (C) 304
Tradax Ocean Transportation SA v MV ‘Silvergate’ properly described as MV ‘Astyanax’
[1999] 3 All SA 175 (A); 1999 (4) SA 405 (SCA) 302
Trans-Atlantic Equipment (Pty) Ltd v Minister of Transport of the
Republic of South Africa [2002] 1 All SA 298 (T); 2002 (2) SA 167 (T) 70
Trans-Natal Steenkoolkorporasie Bpk v Lombaard 1988 (3) SA 625 (A) 91
Transitional Local Council of Randfontein v ABSA Bank
[2000] 2 All SA 134 (W); 2000 (2) SA 1040 (W) 144
Transnet Ltd t/a Portnet v The Owners of the MV ‘Stella Tingas’
[2003] 1 All SA 286 (SCA) 145
Transvaal Alloys (Pty) Ltd v Polysius (Pty) Ltd 1983 (2) SA 653 (T) 33
Traub v Barclays National Bank Ltd 1983 (3) SA 619 (A) 355
Treasurer-General v Van Vuren 1905 TS 582 313
Tregea v Godart 1939 AD 16 242, 359
Triomf Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) 95
Trollip v Jordaan 1961 (1) SA 238 (A) 245
Trope v SA Reserve Bank 1992 (3) SA 208 (T) 222
Trope v SA Reserve Bank 1993 (3) SA 264 (A) 173
Trotman v Edwick 1951 (1) SA 443 (A) 128
Truck & Car Co Ltd v Hirschmann 1954 (2) SA 117 (E) 276
Truck & Car Co Ltd v Kar-N-Truk Auctions 1954 (4) SA 552 (A) 275
Truman v Leonard 1994 (4) SA 371 (SE) 216

Trust Bank of Africa Ltd v Marques 1968 (2) SA 796 (T) 55
Trust Bank of Africa Ltd v Standard Bank of SA Ltd 1968 (3) SA 166 (A) 66
Trust Bank van Afrika Bpk v Bendor Properties Ltd 1977 (2) SA 632 (T) 68
Trust Bank van Afrika Bpk v Eales 1989 (4) SA 509 (T) 120
Trust Bank van Afrika Bpk v Eksteen 1964 (3) SA 402 (A) 167
Trust Bank van Afrika Bpk v Krause 1959 (1) SA 574 (O) 121
Trust Bank van Afrika Bpk v Oosthuizen 1962 (2) SA 307 (T) 67
Trustees, Mitchell’s Plain Islamic Trust v Weeder [2001] 2 All SA 629 (C) 29
Truter, Crous, Wiggill & Vos v Udwin 1981 (4) SA 68 (T) 49, 50
Tsaperas v Boland Bank Ltd [1996] 4 All SA 312 (A); 1996 (1) SA 719 (A) 328
Tshetlo v Tshetlo [2000] 4 All SA 375 (W); 2000 (4) SA 673 (W) 151
Tsose v Minister of Justice 1951 (3) SA 10 (A) 41
Tuckers Land & Development Corp (Pty) Ltd v Hovis 1980 (1) SA 645 (A) 301
Tuckers Land & Development Corp (Pty) Ltd v Perpellief 1978 (2) SA 11 (T) 21, 22
Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd 1976 (4) SA 218 (T) 278
Turkstra Ltd v Richards 1926 TPD 276 266
Turkstra v Massyn 1959 (1) SA 40 (T) 262, 329
Turner & Wright v Versatile Pump & Foundry Works (Pty) Ltd 1953 (3) SA 556 (T) 205
Turners Asbestos Products (Pvt) Ltd v G Straw & Son (Pvt) Ltd 1974 (3) SA 286 (R) 127
Tweedie v Park Travel Agency (Pty) Ltd t/a Park Tours
[1998] 3 All SA 57 (W); 1998 (4) SA 802 (W) 102, 189
Uitenhage Municipality v Molloy [1998] 1 All SA 140 (A); 1998 (2) SA 735 (SCA) 294
Underhay v Human 1959 (1) SA 567 (O) 120, 122
Unie Volkspers Bpk v Rossouw 1943 AD 519 136
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T) 6
Union Free State Mining & Finance Corp Ltd v Union Free State Gold &
Diamond Corp Ltd 1960 (4) SA 547 (W) 356
Union Government v Jackson 1956 (2) SA 398 (A) 207
Union Government v Sykes 1913 AD 156 267, 322
Union National South British Insurance Co Ltd v Vitoria 1982 (1) SA 444 (A) 107
Union Wine Ltd v E Snell & Co Ltd 1990 (2) SA 189 (C) 303
United Building Society v DI Stone (Pty) Ltd 1988 (4) SA 795 (E) 144
United Canners Ltd v Deepfreezing & Preserving (Pty) Ltd; Standard Canners &
Packers Ltd v Deepfreezing & Preserving (Pty) Ltd 1960 (1) SA 852 (C) 91
United Watch & Diamond Co (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 409 (C) 213
Universal Stores Ltd v OK Bazaars (1929) Ltd 1973 (4) SA 747 (A) 72, 166
Universiteit van Stellenbosch v JA Louw (Edms) Bpk 1983 (4) SA 321 (A) 33, 36
Upjohn Company, The v Merck 1987 (3) SA 221 (T) 337
V Saitis & Co (Pvt) Ltd v Fenlake (Pvt) Ltd [2002] 4 All SA 50 (Z) 169
Vaal Reefs Exploration & Mining Co Ltd v Burger
[1999] 4 All SA 253 (A); 1999 (4) SA 1161 (SCA) 21
Vaal Transport Corp (Pty) Ltd v Van Wyk Venter 1974 (2) SA 575 (T) 288
Van Almelo v Shield Insurance Co Ltd 1980 (2) SA 411 (C) 130
Van As v Appollus 1993 (1) SA 606 (C) 227
Van As v Du Preez 1981 (3) SA 760 (T) 356
Van Aswegen v De Clercq 1960 (4) SA 875 (A) 163
Van Breda v Jacobs 1921 AD 330 126
Van Breukelen v Van Breukelen 1966 (2) SA 285 (A) 335
Van Castricum v Theunissen 1993 (2) SA 726 (T) 92
Van den Berg & Kie Rekenkundige Beamptes v Boomprops 1028 BK 1999 (1) SA 780 (T)
157
Van der Berg v Coopers & Lybrand Trust (Pty) Ltd

[2001] 1 All SA 425 (A); 2001 (2) SA 242 (SCA) 137, 142, 348
Van der Hoven v Erasmus 1922 TPD 1 142
Van der Merwe v Carnarvon Municipality 1948 (3) SA 613 (C) 265
Van der Merwe v DSSM Boerdery BK 1991 (2) SA 320 (T) 29
Van der Merwe v Meades 1991 (2) SA 1 (A)216
Van der Merwe v Nel 1929 TPD 551 311
Van der Merwe v Sekretaris van Binnelandse Inkomste 1977 (1) SA 462 (A) 271
Van der Merwe v Strydom 1967 (3) SA 460 (A) 238
Van der Spuy, Ex parte NO 1966 (3) SA 169 (T) 360
Van der Walt v Viviers 1955 (4) SA 10 (T) 20
Van der Westhuizen v Arnold [2002] 4 All SA 331 (SCA); 2002 (6) SA 453 (SCA) 358
Van der Westhuizen v BOE Bank Bpk 2002 (1) SA 876 (T)119
Van der Westhuizen v Smit NO 1954 (3) SA 427 (SWA) 314
Van der Westhuizen v Van der Westhuizen 1996 (2) SA 850 (C) 20
Van Deventer v Louw 1980 (4) SA 105 (O) 64, 145
Van Diggelen v De Bruin 1954 (1) SA 188 (SWA) 79
Van Duyn v Visser 1963 (1) SA 445 (O) 62
Van Eeden (formerly Nadel) v Minister of Safety and Security
[2002] 4 All SA 346 (SCA); 2003 (1) SA 389 (SCA) 43, 223
Van Heerden v Retief 1981 (1) SA 945 (A) 163
Van Heerden v Sentrale Kunsmis Korp (Edms) Bpk 1973 (1) SA 17 (A) 33
Van Hulsteyns Attorneys v Government of the RSA
[2002] 3 All SA 64 (A); 2002 (2) SA 295 (SCA) 71
Van Immerzeel & Pohl v Samancor Ltd [2001] 2 All SA 235 (A);
2001 (2) SA 90 (SCA) 102, 294
Van Jaarsveld v Ackermann 1975 (2) SA 753 (A) 268
Van Jaarsveld v Coetzee 1973 (3) SA 241 (A) 91

Van Metzinger v Badenhorst 1953 (3) SA 291 (T) 242
Van Niekerk v Jantjies [1996] 2 All SA 517 (E) 11
Van Niekerk v Van den Berg 1965 (2) SA 525 (A) 21, 226
Van Onselen NO v e Kgengwenyane 1997 (2) SA 423 (BSC) 272
Van Reenen Steel (Pty) Ltd v Smith NO 2002 (4) SA 264 (SCA) 90, 244, 245
Van Rensburg v Coetzee 1979 (4) SA 655 (A) 346
Van Rensburg v Straughan 1914 AD 317 235, 263
Van Rooyen v Du Plooy 1985 (1) SA 812 (T) 70
Van Rooyen v Minister van Openbare Werke & Gemeenskapsbou 1978 (2) SA 835 (A) 301
Van Rooyen’s Garage (Edms) Bpk v Wartington 1962 (1) SA 914 (T) 232
Van Schalkwyk v Griesel 1948 (1) SA 460 (A) 184
Van Schalkwyk v Van der Wath 1963 (3) SA 636 (A) 8
Van Staden v Venter 1992 (1) SA 552 (A) 295
Van Tonder v Davids 1975 (3) SA 616 (C) 272
Van Vuuren v Sam 1972 (2) SA 633 (A) 237
Van Wyk v Hermanus Municipality 1963 (4) SA 285 (C) 158
Van Wyk v Lewis 1924 AD 438 241, 258
Van Wyk v Rottcher’s Mills (Pty) Ltd 1948 (1) SA 983 (A) 30
Van Wyk v Van Wyk 1952 (1) SA 760 (N) 19
Van Zyl v Credit Corp of SA Ltd 1960 (4) SA 582 (A) 67
Van Zyl v Esterhuyse NO 1985 (4) SA 726 (C) 360
Van Zyl v Kotze 1961 (4) SA 214 (T) 9
Van Zyl v Niemann 1964 (4) SA 661 (A) 85
Van Zyl v Rossouw 1976 (1) SA 773 (NC) 99, 247
Van Zyl v Serfontein 1992 (2) SA 450 (C) 15, 88
Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds of London
[2002] 4 All SA 355 (SCA); 2003 (2) SA 440 (SCA) 201, 202, 203
Van Zyl NO v Maarman [2000] 4 All SA 212 (LCC); 2001 (1) SA 957 (LCC) 170
Van Zyl and Maritz NNO v SA Special Risks Insurance Association 1995 (2) SA 331 (SE)
285
Vanarthdoy (Edms) Bpk v Roos 1979 (4) SA 1 (A) 163
Varvarigos v Fidelity Bank Ltd 1989 (4) SA 384 (W) 124
Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A) 286, 313
Veiera v Van Rensburg 1953 (3) SA 647 (T) 11
Venter & Spain NNO, Ex parte: Fordom Factoring Ltd Intervening;
Venter & Spain v Povey 1982 (2) SA 94 (D) 73
Venter v Birchholtz 1972 (1) SA 276 (A) 268, 357
Venter v Bophuthatswana Transport Holdings (Edms) Bpk
[1997] 2 All SA 257 (A); 1997 (3) SA 374 (SCA) 127
Venter v Venter 1949 (1) SA 768 (A) 247
Venter Agentskappe (Edms) Bpk v De Sousa 1990 (3) SA 103 (A) 91
Ver Elst v Sabena Belgian World Airlines 1983 (3) SA 637 (A) 219, 247
Vereins- und Westbank AG v Veren Investments 2002 (4) SA 421 (SCA) 283, 298
Vereniging van Advokate (TPA), Die v Moskeeplein (Edms) Bpk
1982 (3) SA 159 (T) 265, 268
Vermaak v Du Plessis 1974 (4) SA 353 (O) 9
Vermaak v Khoza 1979 (1) SA 578 (N) 11
Vermaak v Van der Merwe 1981 (3) SA 78 (N) 135
Vermeulen v Goose Valley Investments (Pty) Ltd
[2001] 3 All SA 350 (A); 2001 (3) SA 986 (SCA) 29, 307
Verwoerd v Paver 1943 WLD 153 141
Viljoen v Federated Trust Ltd 1971 (1) SA 750 (O) 314
Viljoen v Smith 1997 (1) SA 309 (A)344, 348
Viljoen v Viljoen [2002] 2 All SA 143 (T) 318

Vision Projects (Pty) Ltd v Cooper Conroy Bell & Richards Inc
[1998] 4 All SA 281 (SCA); 1998 (4) SA 1182 (SCA) 101
Visse v Wallachs’ Printing & Publishing Co Ltd 1946 TPD 441 135, 136
Visser v Rousseau NO 1990 (1) SA 139 (A) 187
Visser v Schmidt NO 2001 (3) SA 810 (T) 16
Visser v Theodore Sassen & Son (Pty) Ltd 1982 (2) SA 320 (C) 329
Visser v Van Tonder 1986 (2) SA 500 (T) 81
Viviers v Kilian 1927 AD 449 19, 20
Volkskas Beleggingskorp Bpk v Oranje Benefit Society 1978 (1) SA 45 (A) 206
Volkskas Bpk NO v Barclays Bank (DC & O) 1955 (3) SA 104 (T)196
Volkskas Bpk v Barclays Bank (DC & O) 1952 (3) SA 343 (A) 278
Volkskas Bpk v Johnson 1979 (4) SA 775 (C) 55
Volkskas Bpk v Van Aswegen 1961 (1) SA 493 (A) 55
Von Ziegler v Superior Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T) 299
Voorslag Ontwikkelingskorp (Edms) Bpk v Administrateur, Transvaal 1974 (3) SA 563 (T)
177
Vorster v Herselman 1982 (4) SA 857 (O) 94
Vrystaat Motors v Henry Blignaut (Edms) Bpk
[1996] 1 All SA 249 (A); 1996 (2) SA 448 (A) 358
Vulcan Rubber Works (Pty) Ltd v SAR & H 1958 (3) SA 285 (A) 6
Vumane v Mkize 1990 (1) SA 465 (W) 169
Wagener v Pharmacare Ltd; Cutting v Pharmacare Ltd [2003] 2 All SA 167 (SCA) 216
Waikiwi Shipping Co Ltd v Thomas Barlow & Sons (Natal) Ltd 1978 (1) SA 671 (A) 66
Wallachs Ltd v Marsh 1928 TPD 531 136
Wapnick v Durban City Garage 1984 (2) SA 414 (D) 107
Ward v Barrett NO 1985 (2) SA 732 (N) 23

Waring & Gillow Ltd v Sherborne 1904 TS 340 353
Wassenaar v Jameson 1969 (2) SA 349 (W) 20, 27
Waste Products Utilisation (Pty) Ltd Wilkes 2003 (2) SA 515 (W) 92
Wastie v Security Motors (Pty) Ltd 1972 (2) SA 129 (C) 176
Water Renovation (Pty) Ltd v Gold Fields of SA Ltd 1994 (2) SA 588 (A) 285
Watt v Sea Plant Products Ltd [1998] 4 All SA 109; 1999 (4) SA 443 (C) 32
Watt v Standard Bank National Industrial Credit Corp 1982 (2) SA 47 (D) 357
Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645 (A) 111
WD Russell (Pty) Ltd v Witwatersrand Gold Mining Co Ltd 1981 (2) SA 216 (W)97
Webb v Davis NO [1998] 2 All SA 584 (A); 1998 (2) SA 975 (SCA) 90
Weber-Stephen Products Co v Alrite Engineering (Pty) Ltd 1992 (2) SA 489 (A) 276
Webster v Webster 1968 (3) SA 386 (T) 15
Wedge Steel (Pty) Ltd v Wepener 1991 (3) SA 444 (W) 208
Weepner v Kriel 1977 (4) SA 212 (C) 316
Welgemoed v Sauer 1974 (4) SA 1 (A) 216
Welldon v Andrews 1982 (2) SA 44 (N) 360
Wells v SA Alumenite Co 1927 AD 69 184
Weltmans Custom Office Furniture (Proprietary) Limited (in liquidation) v
Whistlers CC [1997] 3 All SA 467 (C) 85, 264
Westeel Engineering (Pty) Ltd v Sidney Clow & Co Ltd 1968 (3) SA 458 (T) 357
Western Bank Ltd v Meyer; De Waal; Swart 1973 (4) SA 697 (T) 121
Whitney Erf Thirteen (Pty) Ltd v Loth Lorien Waste Paper Dealers 1978 (3) SA 832 (W) 256
Whittaker v Roos & Bateman 1912 AD 92 39
Whyte v Da Costa Couto 1985 (4) SA 672 (A) 91
Wijker v Wijker 1993 (4) SA 720 (A) 151
Wilken v Kohler 1913 AD 135 88
Wilkens Nel Argitekte v Stephenson 1987 (2) SA 628 (O) 35

Williams v Harris 1998 (3) SA 970 (SCA) 8
Williams v Shub 1976 (4) SA 567 (C) 228
Williams v Williams 1971 (2) SA 620 (O) 285
Williams’ Estate v Molenschoot & Schep (Pty) Ltd 1939 CPD 360 262
Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) 86, 87
Willowvale Estates CC v Bryanmore Estates Ltd 1990 (3) SA 954 (W) 318
Wilson v SAR&H 1981 (3) SA 1016 (C) 175, 286
Wilson v Smith 1956 (1) SA 393 (W) 189
Wilson Bayly Holmes (Pty) Ltd v Maeyane 1995 (4) SA 340 (T) 85
Winterbach v Masters 1989 (1) SA 922 (E) 45
Withinshaw Properties (Pty) Ltd v Dura Construction Co (SA) (Pty) Ltd
1989 (4) SA 1073 (A) 33
WJ Lineveldt (Edms) Bpk v Immelman 1980 (2) SA 964 (O) 64, 145
Woerman NO v Masondo [2002] 2 All SA 53 (A); 2002 (1) SA 811 (SCA) 351
Wolpe v Gale 1980 (3) SA 259 (W) 14
Wolpert v Steenkamp 1917 AD 493 307
Wood NO v Branson 1952 (3) SA 369 (T) 140
Woodiwiss v Woodiwiss 1958 (3) SA 609 (D) 27
Woods v Walters 1921 AD 303 97
World Leisure Holidays (Pty) Ltd v Georges 2002 (5) SA 531 (W) 189
Wright v Westelike Provinsie Kelders Bpk [2001] 4 All SA 581 (C); 2001 (4) SA 1165 (C)
302
Wynberg Municipality v Dreyer 1920 AD 439 266
Wynland Construction (Pty) Ltd v Ashley-Smith 1985 (3) SA 798 (A) 226
Xenopoulos v Standard Bank of South Africa Ltd
[2000] 2 All SA 494 (W); 2001 (3) SA 498 (W) 355

Y
Yannakou v Apollo Club 1974 (1) SA 614 (A) 187, 322
Yates Investments (Pty) Ltd v Commissioner for Inland Revenue 1956 (1) SA 364 (A) 79
Yazbek v Seymour [2000] 2 All SA 569; 2001 (3) SA 695 (E) 141
Yeats v Hoofwegmotors 1990 (4) SA 289 (NC) 145
Yeko v Qana 1973 (4) SA 735 (A) 317
Yorigami Maritime Construction Co Ltd v Nissho-Iwai Co Ltd 1977 (4) SA 682 (C) 32
York & Co (Pvt) Ltd v Jones NO (1) 1962 (1) SA 65 (SR) 357
York & Co (Pvt) Ltd v Jones NO (2) 1962 (1) SA 72 (SR) 357
Yusaf v Bailey 1964 (4) SA 117 (W) 141
Zandberg v Van Zyl 1910 AD 302 270, 314
Zietsman v Van Tonder 1989 (2) SA 484 (T) 358
Zuurbekom Ltd v Union Corp Ltd 1947 (1) SA 514 (A) 267, 356
Zwiegelaar v Zwiegelaar [2001] 1 All SA 261 (A); 2001 (1) SA 1208 (SCA) 151
Zyp Products Co Ltd v Ziman Bros Ltd 1926 TPD 224 278
Table of Statutes
Page
Administration Amendment Act 9 of 1929
section 10 148
Administration of Estates Act 66 of 1965 15–16
section 35 15
section 35(7) 16
Admiralty Jurisdiction Regulation Act 105 of 1983 18
section 1 17
section 1(1)(g)19
section 1(1)(h)19
section 3(2)(a)–(e) 17
section 3(5)(a)–(f) 17
section 3(6) 18
section 3(7) 18
section 3(10) 19
section 6 18
Age of Majority Act 57 of 1972 237
Agricultural Labour Act 147 of 1993 159
Agricultural Land Act 70 of 1970 189
section 2
section 3 190
Alienation of Land Act 68 of 1981 28, 156, 176, 308, 310
section 1 308
section 2 29, 31, 54, 133
section 2(1) 22, 308
section 2(2A) 29, 31
section 3 31, 54
section 5 309
section 6 309–310
section 11 309
section 12(2) 309
section 15(1) 309

section 17 309
section 18 309
section 19(1) 309
section 19(2) 309
section 24 309
section 25 308
section 27 309
section 28(1) 30
section 28(2) 30
section 29 30
section 29A 29–31
Apportionment of Damages Act 34 of 1956 256, 295, 353, 361
section 1 106, 108
section 2 335
section 2(6)(b)295
Arbitration Act 42 of 1965 34
section 1 32
section 2
section 3(1) 33
section 6 32
section 31(1) 34
Architectural Professional Act 44 of 2000 35, 38
section 18 35
section 34 35
Assessment of Damages Act 9 of 1969
section 1 130
Atmospheric Pollution Prevention Act 45 of 1965 268

Attorneys Act 53 of 1979 50, 54
section 23(1) 52
section 25 53
section 26(a) 50
section 26(b) 50
section 41 49
section 45(2) 51
section 47(2) 51
section 48(1) 51
section 49(1) 51
section 49(2) 51
Attorneys Admission Amendment and Legal Practitioners’ Fidelity Fund Act 19 of 1941
section 8 53
Basic Conditions of Employment Act 75 of 1997 159
section 4 159
section 37 160
section 38 160
section 77 159
Bills of Exchange Act 34 of 1964 72
section 23 69
section 28(2) 70
section 36 69
section 37 69
section 44 69
section 45 69, 296–297
section 46 69, 297

section 48 69, 297
section 48(2)(c) 72
section 48(2)(c)(iii) 297
section 54 68
section 78 70
section 78(4) 70
section 79 70, 72
section 81 70–72
section 81(1) 70–71
section 81(3) 71
section 91 296–297
Black Laws Amendment Act 76 of 1963 249
Civil Proceedings Evidence Act 25 of 1965
section 15 285
Close Corporations Act 69 of 1984 75, 78
section 2 73, 75
section 7 76
section 19(1)(a) 76
section 23(2) 76
section 42 76
section 42(3)(a) 77
section 42(3)(b) 77
section 43 76–77
section 50 76
section 51 78
section 64 77–78
section 65 78
section 70 78
Community Development Act 3 of 1966
section 10 77
Companies Act 61 of 1973 75
section 35 81–82
section 38 82
section 50 81, 84
section 65 73
section 248 2
section 266 79
section 386 73
section 386(4)(a) 73
section 422(1) 83
section 424 77
section 424(1) 80, 83–84
Compensation for Occupational Injuries and Diseases Act 130 of 1993 360–362
section 1 360
section 22(1) 361
section 29 361
section 35(1) 361
section 37 361
Competition Act 89 of 1998 304
Compulsory Motor Vehicle Insurance Act 56 of 1972 248
Constitution of the Republic of South Africa 108 of 1996 45, 186, 319
section 25(3) 176
section 33 40
section 35(1) 39
section 35(2) 39
Contingency Fees Act 66 of 1997 49
Conventional Penalties Act 15 of 1962 102, 122
section 1 108
section 3 108, 110
section 4 108, 110
section 5 109, 122
Copyright Act 98 of 1978 110, 113, 146, 277
section 1(1) 111
section 2(1) 111
section 2(2) 111
section 3 111
section 3(2) 111
section 4 111
section 5–11B 111
section 12–19B 113
section 15A 146
section 23 111
section 23(1) 112
section 23(2) 112
section 24(1) 111
section 24(1A)112
section 24(1B)112
section 24(2) 112
section 24(3) 112
section 25 111–112
section 26 112
section 37 111
section 43 110
Counterfeit Goods Act 37 of 1997 277
Credit Agreements Act 75 of 1980 109, 117–119, 121
section 1 117–119
section 2(1) 117
section 4 123
section 5 118
section 5(1) 122
section 5(1)(a) 118
section 5(1)(c) 123
section 5(1)(d)123
section 5(2) 122
section 6 118
section 6(5) 119
section 6(6) 119
section 11 120, 122, 124
section 16 120
section 16(1)(b) 121
section 17 121
section 17(2) 122
section 18 122
section 21 118
Criminal Procedure Act 51 of 1977 43, 46
section 40(1)(a) 43
section 49(1) 46
Currency and Exchanges Act 9 of 1933
section 9 188
Customs Act 91 of 1964 42
section 1 43
section 87(1) 43
Deed Registries Act 47 of 1937
section 33 292
Designs Act 57 of 1967 146
Designs Act 195 of 1993 146
section 14(1) 148
section 14(5) 148
section 14(6) 148
section 20(1) 146
section 20(3) 147
section 31 147
section 31(2) 147
section 35(1) 146
section 35(3) 147
section 35(5) 147
section 39 147
section 40 147
Divorce Act 70 of 1979 149
section 2(1)(a) 148
section 2(1)(b)149
section 2(2) 149
section 3 152
section 4(1) 150
section 4(2) 150
section 5(1) 150
section 5(2) 150
section 5(3) 150
section 5A 149, 152
section 6(1) 149
section 6(3) 149
section 7(2) 151
section 7(3)–(6) 151
section 7(7) 152
section 7(8) 152
section 8 152
section 9 151
Domicile Act 3 of 1992
section 1 148
section 2 148
Electricity Act 40 of 1958 158
Electricity Act 41 of 1987 159
section 26 158
Employment Equity Act 55 of 1998 159
Engineering Profession Act 46 of 2000 162
Estate Agency Affairs Act 112 of 1976 50
section 1(a) 164
section 1(c)(ii)164
section 2 165
section 18 163
section 18(3) 165
section 19(1) 164
section 19(3) 164
section 20 164
section 23(1)
section 26 162
section 26(a) 164
section 26(b) 164
section 34A 162
Expropriation Act 63 of 1975 176
section 1 177
section 3(2) 177
section 7(3) 177
section 7(5) 177
section 8(3) 179
section 8(5) 179
section 9(1) 179
section 12 179–180
section 12(1)(a)(i) 177–180
section 12(1)(a)(ii) 178–180
section 12(1)(b) 179–181
section 12(2) 178–180
section 12(3) 179
section 12(5) 178
section 14(1) 177

section 14(7) 177
section 15 180–181
section 22 179
Extension of Security of Tenure Act 62 of 1997 169–170
section 2 170
section 3(4) 169
section 3(5) 169
section 8 170
section 9 170
section 10–13 170
section 15 170
Fire Brigade Services Act 99 of 1987
section 20 344
Forest Act 122 of 1984 343
General Law Amendment Act 62 of 1955
section 34 74
General Law Amendment Act 50 of 1956 327
section 5 22, 156
section 6 22
Health Professions Act 56 of 1974 240
section 17(1) 240
section 53(1) 240
section 53(2) 240
section 53(3) 240

section 59(1) 240
Housing Consumers Protection Act 95 of 1998 232
section 13(1) 232
section 13(2) 232
Insolvency Act 24 of 1936 78
section 15 239
section 23 196
section 26 196–199
section 29 196–197, 199
section 30 196, 198–199
section 31 196, 198, 200
section 32(1) 196
section 34 198, 259
section 34(1) 200
section 73(1) 196
section 75 196
section 76 196
section 84(1) 118
section 95 325
Institution of Legal Proceedings against Certain Organs of State Act
40 of 2002 287, 293, 319
section 156 203
section 1(1) 319
section 1(2) 319
section 2 320
section 3 320
section 3(1) 320
section 3(2) 320
section 3(3)(a) 320
section 3(4) 320
Interim Protection of Informal Land Rights Act 31 of 1996 170
Inventions Development Act 31 of 1962
section 2 75
Labour Relations Act 66 of 1995 159
section 185 160
Law of Evidence Amendment Act 45 of 1988
section 1 126
Leases of Land Act 18 of 1969
section 1 218
Legal Succession to the South African Transport Services Act 9 of 1989 75
Long-term Insurance Act 52 of 1998 200
section 59(1) 202
Magistrates’ Courts Act 32 of 1944
section 65 42
section 29(1)(c) 346
section 29(1)(e) 118
section 30(1) 317
section 74P(1) 42
section 74P(3) 42
Matrimonial Property Act 88 of 1984153

section 9 152
section 10 152
section 15 156
section 17 237
section 17(5) 237
section 21 153
section 22 156
section 23 152
Mediation in Certain Divorce Matters Act 24 of 1987 149
Mental Health Act 18 of 1973 150, 154
Merchandise Marks Act 17 of 1941
section 7 277
Motor Vehicle Accidents Act 84 of 1986 248–249
Multilateral Motor Vehicle Accidents Fund Act 93 of 1989 248–249, 251
National Veld and Forest Fire Act 101 of 1998 343
section 33 344
section 34(1) 344
section 34(2) 344
National Water Act 36 of 1998 178
section 163 358
Patents Act 57 of 1978 279
section 17(1) 279
section 18 279
section 19(1) 279
section 19(2) 279

section 45(1) 280
section 45(2) 280
section 49(4) 280
section 53(3) 279
section 65(1) 279
section 65(3) 281
section 65(4) 281
section 65(5) 280
section 65(6) 281
section 67(2) 281
section 68 282
section 73(1) 280
Police Act 7 of 1958
section 32 287, 321
Post Office Act 44 of 1958
section 3(1) 75
Prescribed Rate of Interest Act 55 of 1975 229
section 1 206
section 2 206
section 4 207
Prescription Act 18 of 1943 291
Prescription Act 68 of 1969 291, 293
section 1 292
section 5 291
section 6 292
section 7 293
section 10(3) 293

section 11 296
section 12(1) 294
section 12(3) 294
section 13 295–296
section 14 295–296
section 15 295
section 17 292–293
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act
19 of 1998 169–170
section 4 171
section 4(6)–(8) 171
section 5 171
Protection of Businesses Act 99 of 1978
section 1 182
Public Accountants’ and Auditors’ Act 80 of 1991 3–4
section 1 1
section 14 1
section 20 3
section 20(9) 2
section 20(11)(a) 2
section 21(2)(a) 1
Quantity Surveying Profession Act 49 of 2000 297
Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 34
Registration of Copyright in Cinematograph Films Act 62 of 1977 112
Rent Control Act 80 of 1976 220

Rental Housing Act 50 of 1999 218–220
section 4 219
section 5 219
section 5(1) 218
section 13 219
Road Accidents Fund Act 56 of 1996248–249, 251–254
section 1 250
section 2(2) 251
section 8 254
section 15(2) 249
section 17 249
section 17(1) 249
section 18 249
section 18(1) 253
section 19 250
section 20 250
section 21 249
section 23 251
section 24 250
section 24(5) 251
section 28 249
Short-term Insurance Act 53 of 1998 200
section 53(1) 202
South African Police Service Act 68 of 1995287
section 55(1) 41
section 55(2) 41
section 57 287
section 57(4) 287
State Land Disposal Act 48 of 1961
section 3 292
State Liability Act 20 of 1957
section 1 318–319
section 2 74, 319
Stock Exchange Control Act 1 of 1985 325
section 1 325
section 3(1) 325
section 22 326
section 22(1) 327
section 22(2) 327
section 25 326
section 29 326
Subdivision of Agricultural Land Act 70 of 1970 88, 211
section 2 29
section 3 29
Subdivision of Agricultural Land Act Repeal Act 64 of 1998 29, 88, 190, 211
Supreme Court Act 59 of 1959
section 19(1)(a)(iii) 131
Terrorism Act 83 of 1967
section 6 321–322
Trade Marks Act 62 of 1963

section 44(1) 338
Trade Marks Act 194 of 1993337
section 33 338
section 34(1) 338
section 34(1)(b) 339
section 34(2) 340
section 34(3) 337, 339
section 34(3)(d) 338
section 34(4) 339
section 35 337
section 38(4) 338
Usury Act 73 of 1968 118, 120–123, 125, 207, 229–230
section 2(9) 230
section 3(8) 122
section 5 229
section 6K 121
section 6K(3) 121
section 10(2) 124
section 11 123, 230
Water Act 54 of 1956 178, 358
Workmen’s Compensation Act 30 of 1941 360
Index
Page
Accountants and auditors
breach of contract 2
contributory negligence of plaintiff 2
damages
claim by client3
claim for 4
extended liability 1
generally accepted auditing standards 1
liability to third parties 2
contractual 2
non-contractual 2
negligence 1–2
contributory 2
excused for 2
in course of duties 4
negligent misrepresentation 2
public 1
remuneration 1
claim for 3
valuer 3
Accounts
claim against agent for 24

claim for delivery and debate 5–6
claim for delivery of 4
contractual obligation to render 5
debate 5
duty to render 4
essentials 5
failure to render 5
fiduciary relationship between parties 4–5
in an estate 6
order 6
prayer 6
inadequate 5
incomplete 5
list of disputed items 5
procedure 5
rendering
court order 5
right to receive 4
statutory duty to render 5
Actio ad exhibendum 6–8
cause of action6
conversion 7
damages
claim for 7–8
dolus eventualis 7
essentials 6–7
relief 7
payment of value
claim for 7
Actio aquae pluvae arcendae 8–9
abatement of mischief 8
actio (interdictum) quod vi aut clam 8
action 8
claim 9
damages 8
exceptions 8
general8
negligence 8
Actio de pastu
claim based on10
defence 10
essentials 9
grazing damages 9
negligence 10
quantification of damages 9
Actio de pauperie
actio legis aquiliae 12
claim based on12
contra naturam suam 11
contra naturam sui generis 10
damages 12
quantification 11
defences 11
essentials 10
negligence 11
plea 12
secundam naturam sui generis 11
trespass by plaintiff on property 11
plea based on 12
volenti non fit iniuria 12
plea to 12
Actio legis Aquiliae see Lex Aquilia
Actio Pauliana
essentials 13
extension of action 13
parties 14
sequestrated debtor 13
setting aside fraudulent disposition
claim 14
Administration of deceased estates
accounts accepted by master before executor obliged to pay 15
claim against executor on contract of deceased 16
claim of creditor against heirs16–17
completed administration 16
defence 16
condictio indebiti 15
creditors claims 15
against executor 15
against heir 15
condictio sine causa 15
disputed 15
damages against dismissed executor, claim 17
executor
claim for damages against 17
claim for damages by heir 17
delinquent 14
dismissed 17
legal representative of deceased 14
refusal to be joined in litigation 15
removal 15
maladministration 16
onus 15
plene administravit 16
parties 14
unjust enrichment of heirs 15
Admiralty claims 17–19
actions in personam 17
actions in rem against property 17
associated ships 18
bills of lading 18
charter parties 18
damages
claim for 18–19
essentials 18
jurisdiction 18
law applied 18
pleading 18
time limit 18
types of actions 17
Adultery 19–21
actio iniuariamum 19
animus iniuriandi 20
cause of action19
claim based on21
contumelia 20
damages
calculating 20
patrimonial 20
sentimental 20
degree of particularity 20
guilty spouse 19
condoned by plaintiff 20
jurisdiction 19
proof 20
wrongfulness 20
Agency
account 24
claim to render 25
agent as a party 22
architects 35
authority 22
implied 22
implied warranty of 24–25
implied warranty on claim 26
ostensible 22
bribery 24
change of status automatically terminates mandate 23
commercial bribery 24
commission 23
claim for 25
claim for forfeiture of 26
secret 23
contract of mandate 23
contracting in more than one capacity 21
damages against agent
claim for 25
deed of alienation of land 22
due performance of mandate 23
estoppel
replication 26–27
estoppel as defence 22
false representation 24
formalities 22
fraud against principal24
irrevocable mandate 23
mandate 21
obligations of agent 21
principal
claim against for breach of mandate 26
profits 23
ratification of unauthorised act 23

surety’s 22
termination of 23
undisclosed principal 23
vicarious liability 24
Alienation of affection
animus inuriandi 27
cause of action27
claim based on28
plea 28
damages 27
defences 28
degree of particularity 27
enticement 27
harbouring 27
ill treatment of spouse27
related cause of action27
wrongfulness 27
Alienation of land
agricultural property 29
alienation
definition 28
cancellation of deed 30
damages
claim 31
deed of alienation 29
extrinsic evidence establishing that it does not comply 29
formalities 29
full performance 30
incorporation by reference 30
invalid deed 30
invalidity
plea of 31
meaning 28
partial performance 30
payment
claim for 30–31
rectification 30
reinstatement of cancelled deed 30
revocation by purchaser 30
sale of land by public auction 29
variation of material term 30
waiver 30
Animals see Actio de pastu, Actio de pauperie, Wild animals
Arbitration
agreement
void 33
cancellation of contract 33
compliance with preconditions agreement 33
exception to claim brought in court of law 32
invalidity of agreement 33
jurisdiction 32
meaning 31
onus 32
party relying on arbitration clause 32

party resisting stay of court proceedings 32
proceedings
pleadings 34
special plea
dispute demarcated in the 33
stay of proceedings 32
dilatory plea 32
termination of agreement 33
void 33
Arbitration awards
binding nature of 34
made an order of court 34
rules applicable to 34
Arbitration clauses
applicable to dispute 33
effect of 32
existence of 32
special plea of 34
Arbitrators
function 32
Architects
certificate 36–37
claim for damages due to negligent issue of 38
interim 36
damages
action for 37
damages against architect

claim for 38
duty regarding potential risks 37
extended liability 37
fees 35
recovery 35
repudiation by employer 36
negligence 37
registration 35
relationship with clients 35
remuneration claim 38
repudiation by employer 36
Arrest and detention
actio iniuriarum 41
cause of action39
constitutional justification for 39
damages 41
claim for due to wrongful arrest and detention 42
special 41
defences 41
force, use of see Assault
jurisdiction 39
lawful arrest
plea 43
loss of freedom 41
malicious see Malicious proceedings
onus of proving lawfulness 40

parties 39
unlawful civil detention
claim 42
unlawful detention of goods 42–43
use of force see Assault
warrant 40
irregular 41
magistrate’s discretion 40
reasonable grounds for 40
wrong person 41
wrongfulness 40–41
Assault
actio iniuriarum 43
arrest 45
breach of constitutional duties 45
cause of action43
claim 47
based upon omission 48
consent 45
constitutional principles 43
corporal punishment by teacher 45
damages 44–45
claim for 47
general44
patrimonial 45
defences 45
jurisdiction 43
justification plea 47
lack of knowledge of wrongfulness 44
lawfulness of 45
medical treatment 46
necessity 45
non-contumacious act 44
onus of proof 44
parental or quasi-parental authority 45
parties 44
plea of justification 47
provocation 45
relationship between teacher and pupil 45
self-defence 45, 46
shooting suspect 46
state’s liability44
vicarious liability 44
wrongfulness 44
Attorneys
bill of costs
special plea for non-taxation 54
correspondent
claim against 52–53
damages against attorney
claim 53
duty of care 48, 52

extension of liability 52
fees 49
agreed amount49
claim 49
claim for agreed fees 52
claim for taxed fees 52
reasonable amount 49
taxation of bill 49, 50
fidelity fund certificates 49
fidelity guarantee fund 50–51
liabilities of 50
fiduciary obligations 48
mandate 49
termination 50
misrepresentation 52
misstatement 52
negligence 51
negligent representation 52
pactum de quota litis 49
provisional sentence 50
sharing proceeds of lawsuit 49
third-party liability 52
Auctioneers
as agent 54
as principal 54
breach of contract
claim for 55
commission
claim for payment of 54–55
liability 54
Auctions
alienation of land 54
conditions of 54
sale of land by public auction 54
Auditors see Accountants and auditors
Bailment see Deposit
Bankers
acting as both collecting and paying banker 70
acting in good faith 70
alternative claim 60
appropriation of payments 56
claim against 58
claim based upon failure to pay cheque according to its tenor 58
client obligations 56
collecting
creditworthiness, injury to 55
damages 58
extent of 55
liability for 55
delictual liability 56
duty of care 57
duty to owner of lost or stolen cheque 57
implied term to reverse credit
claim based on60
mandate 55
overdraft 56
claim based on57
debts ceded to secure 66
reclaiming payment 56
relationship with client 55
uncleared effects 56
Bills of exchange see Bankers, Cheques
Breach of contract see Contract
Breach of (marriage) promise
animus inuriandi 61
awarding damages 61
cause of action61
claim based on62–63
contract 61
damages 62
defences 62
delictual damages 62
donations 62
ignorance of existing marriage 62
iniuria 61
invalidity of contract 62
iusta causa 61, 62
jurisdiction 61
justification to a claim for a
plea 63
proof of breach 61
quantum of damages 62
unilateral repudiation 61
void contract 62
wrongfulness of breach 61
Bribery see Agency
commercial see Agency
Building contracts see Locatio conductio operis
Carriers
air 64
claim for damages against 65
claim for payment 64–65
contract term limiting liability 64
due performance 64
exemption clauses 64
liability for damage or loss of goods 63
loss or damage
onus 64
owners risk 64
plea to claim for damages against 65
praetor’s edict 64
remuneration claim 64
unforeseen events 64
Cession
citation 65
claim on ceded debt 67
contract of cession 65
proof of 65
contractual rights 66
counterclaims 67
debt ceded in part 67
defences 67
delictus personae 66
delivery of documents66
dilatory plea 67
evidentiary burden 65
intention of a cessionary agreement 66
limitations on 66
locus standi
effect on 66
negotiable instruments 66
plea for payment to cedent 68
security of a debt 66
suing in the name of the cedent 66
Cheques
alteration of 70
bearer 68
claim based on68
claim based on dishonoured cheque 71–72

claim based on section 81 of Act 34 of 1964 72
crossed 70
not negotiable 57, 70
defences 69, 70
absolute 69
between immediate parties 69
dishonoured 68–69
claim against drawer 68
endorsee 68
endorser
claim against 69
forgery69
fraud, tainted with 70
holder in due course 69–70
illegality 70
liability of bank 70
lost or stolen 57, 70
not transferable 57
obtaining by means of false pretences 71
owner of 57
payee 68
plea in terms of section 79 of Act 34 of 196472
presentment of68–69
presentment through clearinghouse system 69
rectification of document 69
signing
exceeding mandate in 69
personally or in representative capacity 69
statutory liability 70
stolen or lost 57, 70
person obtaining possession after 71
true owner 57, 71
Citations
associations 75
close corporations 73, 75
companies 73, 75
in liquidation 73, 75
executors and trustees 74
firms 74, 75
government and state officials 74, 75
incorporated bodies 74, 75
legal standing of parties 72
partnerships 74
natural persons 72, 74
public corporations 74, 75
summons 72–73
voluntary association 74
Close corporations
citation 75
claim based on section 64 of Act 69 of 1984 77–78
contract
failure of member to give notice of an interest 77

deregistration
members liability 77
derivative action 76
failure to act with degree of care and skill 77
fiduciary relationship
breach of duty 77
jurisdiction 76
juristic person 75
liability for reckless or grossly negligent trading 77
members conduct
written approval of all members 77
personal liability 76
Co-debtors
claim against 78
nature of liability 78
joint and several liability 79
joint liability 78
prayer 79
Companies
agent 81
cheque in contravention of section 50 of Act 61 of 1973 84
citation see Citations
claim based on section 50 of Act 61 of 1973 84
contract entered into by
ultra vires 82
corporate veil 81
curator ad litem 79
derivative action
exception 84
director’s fees
claim 82
director’s liability 81
financial assistance to purchase shares 82
fraud 80, 81
claim 84
fiction of legal personality 81
legal representation 79
liability under section 50 of Act 61 of 1973 81
liquidation 80
claim based on section 422(1) of Act 61 of 1973 83
mandate 80
members may initiate proceedings 79
memorandum of association 82
onus resting on plaintiff, creditor 80
ostensible authority 80
personal liability 80
piercing the corporate veil 81
pre-incorporation contracts 81
claim 82–83
stipulatio alteri 82
recklessness 80
shareholders action 81
trustees 81
claim against for company to be formed 83
ultra vires 82
Compromise
alleging a settlement
plea 86
authority to 85
breach of
claim based on85
contract 85
defences 85
absolute to action based on original claim 84
original causes of action 85
definition 84
fraudulently obtained 85
illegality 85
impossibility of performance 85
invalidity or original obligation 85
mistake 85
novation 85
original causes of action 85
res iudicata 84
setting aside 85
Condictio indebiti
action against principal 87
agent 87
burden of proof 87
condictio sine causa

relationship with 89
disposal of thing 88
elements 86–87
enrichment 86
at expense of plaintiff 87
not unjust 88
illegal contract88
invalid agreement 88
invalid contract 86, 87
reclaiming performance made in terms of 86
involuntary transfer 87
non-enrichment 87
plea as a defence 87
onus 87
par delictum 88
payment under protest87
payment wrongly made
claim 88
payments made on behalf of another 87
reasonable error 87
receipt of money/goods knowing that it is indebite 88
rei vindicatio 87
unlawful threat 87
void contract 87
claim based on88
Condictio ob turpem vel iniustam causam see Illegal contracts
Condictio sine causa see also Condictio indebiti

claim based on89
condictio indebiti
relationship with 89
reclamation of debt by banker56
requirements for claim 89
Conditions
assumptions 90
condition precedent 90, 91
demand as 91
fictional fulfilment
claim alleging 92
meaning 89
onus 89, 90
parole evidence rule
resolutive condition 89
plea relating to92
supposition 90
plea based on 92
suspensive 90
claim alleging fulfilment of 92
fulfilment 92
waiving fulfilment 91
term of a contract 89
distinguished from conditions89
waiver 91
proof of 91
Confidential information
damages
claim for 92
duty to preserve 93
employer and employee 93
improper possession or uses 93
interdict 92
claim for 93–94
legal interest in 92
protected by interdict 92
trade rival 93
Contract
agent 94
agreement and 95
breach of 98
cancellation clause 99
cancellation of99–100
compromise 85
conditions see Conditions, Exceptio non adimpleti contractus
correspondence
claim based on98
damages 101, 102
cancellation of contract 102
claim for 100
counterclaim 103
defences 103
iniuria 101
intrinsic damages 101
mitigation of damages103
natural damages
claim for 104
onus 101
negative interest
claim for damages on the basis of 104–105
purchaser’s damages 102
repudiation of contract 101
restitutional damages 102
restitutionary damages 102
special damages 101
claim for 103
tender 103
date 94
declaratory order 99
claim for 101
delay 99
election to cancel 99, 100
express 94
formalities 97
judicial cancellation 99
lex commissoria 99
material breach 99
notice of rescission 99
offer and acceptance 97
oral contract 94
claim based on97
plea to the claim 98
parole evidence rule 97
parties 94
party wishing to rely on 99
place 94
representation 94
restitution 99, 100
claim for 100
specific performance 100
tacit contract 94–95
claim alleging 98
consensus ad idem 95
unequivocal conduct 95
terms
implied 96
onus 95
proof of 95
tacit 96, 98
claim based on98
plea 98
unexpressed provision of contract 96
unilateral document 96
vagueness 97
written contract 94
claim alleging 98
proof 95
wrong reason 99
Contracts for the benefit of third parties (Stipulatio alteri)
beneficiary
claim by 106
defences 105
stipulatio alteri 105
stipulator
claim by 106
Contributory negligence
apportionment of damages 106
dolus 107
joinder 107
negligence
denial 107
post-delictual 107
onus 107
plea 107–108
prayer 108
third parties 107
volenti non fit iniuria 107
Conventional penalties
accumulation of remedies 109
credit agreements 109
disproportionate to prejudice suffered 109
forfeiture clauses 108
liquidated damages
claim for 109

onus 109
penalty clauses 108
plea to claim enforcing a penalty 110
prejudice suffered 108, 109
reduction of penalty 108–109
repayment
claim for 110
Copyright infringement
copying 111
copyright 111
damages 112
defences 112
defendant 111
dolus 112
exception to claim for 113
exclusive licensee 111
remedies 112
infringement of copyright 111
claim (literary work) 113
direct 112
indirect 112
infringing copies or plates 112
interdict 112
jurisdiction 110–111
legislation 110
literary work
claim for copyright infringement 113
owner of copyright 111
plaintiff 111
presumptions 112
proof of copyright 112
relief 112
royalty 112
tribunal 111
Counterclaims (Claims in reconvention)
advantages 114
conditional 116
plea 117
defence
plea relying on counterclaim as a 116–117
form 114
judgment in respect of the claim 115
jurisdiction 114
mala fide cession 116
need for 115
plaintiff’s rights 114
plea relying on counterclaim as a defence 116–117
purpose 114
reconvention
claim in 116
stay of action 114
time 114
types 115
unliquidated claim 115
Credit agreements
accelerated date for payment 123
acceleration clause 120
ancillary relief 122
attachment of goods 120
interim 122
attorney and client costs 122
cancelling 120
cause of action119
conventional penalties109
damages 121
claim for damages for goods already recovered 125–126
claim for repossession and damages 124–125
prayers for 121
defences 122–123
contractual 122
deposit 119
essentials 118–119
finance charges 123–124
additional 123
rebate 123
unearned 123
forfeiture of instalments already paid 122
formalities 118
initial payment 119

exceptions 119–120
interim relief 122
invalid 119
jurisdiction 118
notice 120
period of agreement 119
exceptions 119–120
reciprocal obligations 119
rei vindicatio 120
relief claimable 121
remedies on breach of contract 119
repossession 120
claim for repossession and damages 124–125
repudiation 120
rescinding 120
return of goods 120, 121
scope of the act 117–118
signed 118
specific performance 120, 121
claim for 124
types 118
usurious interest 122
usury act 120, 123
writing, in 118
Custom and customary law
claim 126–127
constitutional compliance 126

custom as a rule of law 126
foreign law 126
indigenous law 126
natural justice 126
public policy 126
trade usage 126
onus 126
Damages: Delictual
actual pecuniary loss 128
earnings capacity
prospective loss 129
actuarial calculations 127
admission 127
collateral benefits 130
complete loss of article 128
difficulties of proving 127
inquiry into damages 130–131
loss of support see Loss of support
measure of damages 128
“once and for all” rule128
pain and suffering 128
particularity of damages 129–130
particulars of claim 129
further 130

personal injury claims 128–129
plaintiff 127
quantum 127
Deceased estates see Administration of deceased estates
Declaration of rights
contingent right 132
contract
claim on a 132–133
court 131
declaratory relief 132
discretion 132
in futuro 132
interested person 131
procedure 131
right 132
will
claim in relation to a 132
Defamation
actio iniuriarum 134
apology 137
bill of rights 133
cause of action134
corporation 133
damages 137
defamatory nature of the statement 135–136

defences see Defamation: Defences
exception
non-defamatory allegation 139
falsity 136
group defamation 135
claim for 138
individual
claim against 138
innuendo 136
claim alleging 139
distinguished from implied meaning 136
interdicts 137
judges 133
jurisdiction 133
non-defamatory allegation
exception 139
parties 133
peregrinus 133
political bodies 133
political matters 136
public interest 134
public media
claim against member of 138
publication 134–135
re-publication 135
reference to plaintiff 135
secondary meaning 136

state and its organs 133
sting
alleging 134, 138
terms of statement 134
truth of statement 134
wrongfulness 134
Defamation: Defences
alternatives 142
animus iniuriandi
absence in public media 140
denial 140
onus 140
categories 140
denial 139–140
of wrongfulness 141
fair comment 141–142, 143
innuendo
denial 140
jest 140
justification
plea of 143
malice 142
qualified privilege 142
rebuttal 142
public interest 140
public media 140

privilege 141
plea of 143
replication to plea 143–144
rixa 140
secondary meaning
claim alleging 143
truth 141
wrongfulness
denial of 141
lack of knowledge of 141
Delict see Damages: Delictual, Iniuria, Lex Aquilia
Dental practitioners see Medical and dental practitioners
Deposit
absence of negligence
plea 145
damages 144
depositor’s claim 144
depositor’s defences 144–145
exemption clause 145
gross negligence 145
owner’s risk 144–145
clause 144–145
plea 145
return of article deposited 144
claim for 145
value of thing deposited 144
Designs
aesthetic design 146
invalidity plea 147
copyright 146
defences 147
design 147
rights 146
functional design 146
invalidity plea 147
infringement 146
claim 147–148
invalidity 147
of aesthetic design
plea 148
of functional design
plea 148
jurisdiction 146
onus 147
plaintiff 146
registrar 147
relief 147
statute 146
Detention see Arrest and detention
Divorce
accrual
division 152
alternatives 153
children 149
custody 148
sole guardianship 149
community of property
claim for divorce of marriage in 152–153
division of joint estate151
domicile
one party’s 153
family advocate 149
forfeiture of patrimonial benefits 151
grounds for divorce 149
irretrievable breakdown 150
mental illness 150, 154
unconsciousness 150–151, 154
jurisdiction 148
counterclaim 149
domicile 148
other issues 149
residence 149
lex domicilii 149
maintenance for spouse 151
lump sum 151
marital regime 149
marriage 148
out of community 153
plus accrual system 153
particulars 152
partnership agreements 152

pension benefits 152
post-nuptial contract 153
proprietary claims 151–152
redistribution of assets 151
religious constraints 152
residence
one party’s 153
settlement
agreements 151
claim where issues settled 155
specific performance of provisions of the antenuptial 151
claim 154–155
Donation
delivery
claim for 156
claim where delivery revoked156–157
donatio mortis causa 156
executory donation 155
formalities 155–156
land 156
meaning 155
motive of donor 155
reciprocal 155, 156
remuneratory 155, 156
revocation 156
spouses 156
Duress
contra bonos mores 157
economic distress 157
goods
duress of 157
recovery of money
claim 158
third parties, by 157
voidness due to duress
claim for 158
Electricity
damages caused by 158
shock
claim 159
injury caused by 158
negligence of undertaker 158
strict liability 158
Employment contracts
basic condition of employment 159
dismissal 160
onus 160
implied terms 159
jurisdiction 159
onus 160
pleadings in labour court 160
regulation of 159
repudiation 160
statutes 159
termination of employment 160
wages
claim for 159–160
expressly or impliedly agreed upon, claim 160–161
Encroachment
damages 161
ownership
proof of 161
payment
claim for 162
plea 162
removal of 161, 162
claim for 162
structure or building erected 161
transfer of portion encroached upon 161, 162
Engineers 162
Enrichment see Condictio indebiti, Negotiorum gestio
Estate agents
commission payable 163
claim 164
upon fulfilment of condition precedent 165
due performance of mandate 163
Estate Agents Board
claim against 163–164, 165
fidelity fund certificates 162
fidelity insurance 162

mandate 163
sole agency 164
claim for breach of 165
trust money 163
Estoppel
claim based on plaintiff’s ownership of motor vehicle 167–168
plea 167–168
denial that defendant’s alleged agent was authorised
replication 168
essence of doctrine 166
essentials 166
invalid acts
negligent representation 167
onus 166
pleas
claim based on plaintiff’s ownership of motor vehicle 167–168
replication to plea denying defendant’s alleged agent authorised 168
similar 168
raised by a defendant 166
raised by a plaintiff 166
unambiguous representation 166
Eviction or ejectment
cancellation of lease
claim for eviction after 171
causes of action 168
Extension of Security of Tenure Act 62 of 1997 169–170
eviction in terms of 170

impecunious tenants 169
possessory claim 168, 169
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
170–171
eviction procedures 171
rei vindicatio 168
relief 169
rural land 169
statutory protection 168
unlawful occupiers of land 170
Exceptio non adimpleti contractus
building contractor 172
defective performance172
delivery
claim with tender of 173
lack of performance by plaintiff 171–172
lessor of property 172
merx 172
sale and delivery of 172
non-performance 173
plea 173
onus 172
payment
claim with tender of 173
performance
acceptance of defective 172
defective 172
excused from 172
lack of 172
non-performance allegation 173
proper performance by plaintiff 172
willingness and ability 172
purchase price
payment of 172
reciprocal obligations 172
sequence of performance 172
variation of 172
temporary remedy 172
transfer of immovable property
tender of guarantees against 172
Exceptions
against plea 174
against summons 174
ambiguous pleading 175
amending pleading 174
averments necessary to sustain action/defence 173, 174
contract void for vagueness 175
deletion of offending allegations 174
dismissal of action/defence 174
general174–175
grounds 174
part of a claim
exception to 175
particulars of claim
exception to 175
plea 174
exception to 175
prayer 174
summons 174
vague and embarrassing pleading 173, 175
Exchange
aedilitian actions for latent defects 176
alienation of land 176
claim for performance176
trade-in
value 176
Expropriation
compensation
claim as result of expropriation of fixed property 179
determination 177
in regard to a right 179
date of notice of 177
delivery of notice 177
due notice of 177
financial loss 179
alleged 178
fixed property
claim for compensation 179
forum 177
interest179
invalid notice
claim for setting aside 180
invalidity 177
market value 177–178
determined on date of notice 177
portion of property 178
onus 178
parties 177
plea
expropriation of property 180
expropriation of right 181
validity of expropriation 181
portion of property 178
right
claim where right has been expropriated 179–180
compensation in regard to a 179
plea regarding expropriation of 181
unregistered 179
solatium 178, 179
statute 176
validity
plea 181
void 177
Foreign judgments
appeal 182
audi alteram partem 182
authentication of 182
claim based on a 182–183
contrary to natural justice 182
default judgment 182
defences 182
essential allegations 181
dispute 182
general181
jurisdiction 181
plea for lack of 183
merits of case determined by foreign court 181
notice of motion 181
procedure 181
Fraud
agent 183
liability 185
cancellation
claim for 185
causation 184
contract 184
damages 184
claim for 185–186
dolus
directus 183
eventualis 183
duty to disclose 184
exceptio doli 185
general183
mental element 184
non-disclosure 183, 184
onus 183
passing of ownership 184
setting aside judgment184
Illegal contracts
condictio indebiti 187
condictio ob turpem vel iniustam causam 187
contra bonos mores 186
contrary to law 186
effect 186
enrichment claim 187
ex turpi causa non oritur actio187
illegality
mero motu 186, 187–188
plea of 188
invalid contract
distinguished from 186
par delictum rule 187
claim for relaxation of188
plea for relaxation of 188
pleading 186
replication
relaxation of par delictum rule 188

restitution 187
supervening illegality 186
unenforceable 186
distinguished from 186
Immemorial usage see Vetustas
Impossibility of performance
claim 189
condictio sine causa 189
extinguished obligation 189
fault 189
initial 189
partial 189
reclamation of performance 189
restitution
claim 189
supervening 189
temporary 189
Indigenous law see Customs and customary law
Iniuria
amende honorable 193
animus iniuriandi 190, 191–192
bigamous marriage 190
bodily integrity 191
cause of action190
damages 192–193
apportionment 193
patrimonial loss 192
sentimental 192
special 193
death of injured party 191
dolus eventualis 192
identity of informer 191
impairment of reputation 190
insults 190
jurisdiction 191
malice 192
master and servant 191
medical state
unauthorised disclosure by physician 190
parties 191
photograph
unauthorised use in degrading manner 190
privacy 190–191
reasonableness of inference 192
right of personality 191
sense of self worth 190
spouses 191
verbal abuse
claim based on193
wrongfulness 190, 191–192
Injurious falsehoods
cause of action193
claim 194–195
essential allegations 193–194
falsity 193, 194
general rules of pleading 194
interdict 194
lex aquilia 193
puffing194
unlawful competition 193
Innocent misrepresentation 195–196
aedilitian remedies 195
claim for cancellation of contract 195–196
essentials 195
Insolvency
collusive disposition 198, 199–200
collusive transaction
claim relating to 199–200
discretion 196
disposition 196–197
collusive 198, 199–200
without value 197
claim setting aside disposition made more than two years before sequestration 199
claim setting aside disposition made within two years 198
lapsing of proceedings 196
parties 196
trustee 196
authority 196
indemnity 196
undue preferences 198
claim relating to 199
voidable preferences 197
claim setting aside 199
statutory defence 197
voidable sale of business 198
Insurance
causation 201
condition precedent 202
contra proferentem rule 201
death by accident 202
disclosure
duty to 201
material, plea of 205
non-disclosure 201
executor
claim under policy 204–205
for damages suffered 200
forfeiture clauses 201
fraudulent claims 203
indemnity paid
claim by insurer for recovery of 203–204
insolvency of insured 203
insurable interest 200–201

absence of 200
alleging and proving 200–201
extent of 201
insurer 200
registered 200
interpretation of insurance policies 201
material non-disclosure
plea 205
onus 202–203
promise qualified by exceptions 203
repudiation of contract by insurer 202
subrogation 201
suicide
proof 202
suspensive condition 202
terms of policy 202
claim for compliance of 204
uberrima fides 201
untrue representation made to insurer202
wagering contract 200
warranties 202
breach of
plea 205
Interest
agreed 205
appropriation of payments 207
capital reduction 207

compound 206
damages
claims 207
interest as 208
debt due and payable 205
demand 205–206
meaning 207
in duplum
plea 208
rule 206
judgment debt 206
prayer for 208
prescribed rate206
regulation by trade custom 205
suspension of 208
unliquidated claims 207
usury 207
when interest begins to run 205–206
Interpleaders
affidavit 209
court order 209
notice 209, 210
parties 208
payment and delivery 209
precedents see Actio ad exhibendum, Vindication
sheriff 208
J
Joint ownership
actio communi dividundo 210
ancillary relief 211
co-owner’s entitlement 210
defences 211
division of property 211
letting of property 210
shares 210
termination of 210–211
claim for 211
compensation to co-owner 211
private auction211
sale by public auction 211
Joint wrongdoers see Contributory negligence
Judgments: Foreign see Foreign judgments
Judgments: Setting aside
by default 212
claim setting aside judgment fraudulently obtained 213
common law procedure, under 212
correction of an order 213
essentials 213
final order 212
fraud 212, 213
functus officio 212
grounds 212
non-fraudulent misrepresentation 212

parties 213
restitution in integrum212
Uniform rule 42 212
Jurisdiction
absence of 214
special plea alleging 214
defendant 214
establishing 214
plaintiff 214
Latent defects
actio empti see also Contract damages 215
actio quanti minoris 216
actio redhibitoria 215–216
aedilitian actions 216
aquilian liability 216
cancellation
claim for 216–217
concealing defects 215, 216
exceptio quanti minoris 216
existed at time of sale 215
expert vendor 215
claim against 217
failure to disclose 216
manufacturer 216
price reduction 216

claim for 216–217
proof of term of contract 215
repayment of purchase price and interest 215
restitution 216
tacit term 215
unawareness of defect 215
Lateral support
artificial construction 217
claim for 218
common law right to 217
damages 218
erosion218
fault 218
liability 217
relief 218
removal of 217
subsidence 218
cause of action218
wrongfulness 217
Leases
arrear rental 219
material 219
cancellation 219
election to cancel 219
notification to tenant 219
rent accrued before termination 219

compensation for improvements 220
contract 218
counterclaims 220
damages 219–220
amount for holding over 220
claim for damages caused by lessee 221
ejectment see Eviction or ejectment, Vindication
failure to return let property 219
in condition which it was delivered 219, 220
formalities for validity of 218
goods of third party 220–221
holding over 220
landlord’s hypothec 220
long lease of land 218
market value deterioration 220
rent-controlled premises 220
rental
claim for arrear rental and cancellation 221
late payment 219
non-payment of rent 219
onus of proof 219
statutory rights 219
sub-letting 220
Letting and hiring of work see Locatio conductio operis
Lex Aquilia
arrest and detention claim 41
bodily injury 222

causation 224
foreseeability 224
cause of action222
confession and avoidance 224
damages
extent of damages suffered 224
death of breadwinner 222
duty of care 222, 223
economic loss 222
exemption clauses 224
foreseeability 224
liability depends on wrongfulness of act 222
motor vehicle
claim for damages to 225
negligence
see also Negligence 222, 223, 224
omissions
liability for 223
patrimonial loss 222
potential risk of harm 223
production
claim for loss of 225
wrongful act or omission 222–223
common-law right 222
duty of care 222
statutory duty 222
Liens
attorney’s lien over client’s documents 226
debtor and creditor liens 226
plea alleging 227
discretion 227
enrichment 226
possession 227
salvage and improvement liens 226
rei vindicatio 226
Lis alibi pendens
court not entitled to raise this issue 227
litigation pending 227
onus 228
pending proceedings
based on same cause of action 228
same subject matter 228
procedure 227
replication to a special plea of lis pendens 228–229
requisites 228
special plea 228
Loans
acknowledgement of debt
claim on 231
cause of action229
claim based on229
finance charges
right to recover 229–230
interest229
agreed rate 229
prescribed rate229
right to recover 229–230
non-numeratae pecuniae
plea 231
repayment
claim for 229, 230
claim for repayment when not time for repayment stipulated 231
lapse of reasonable time 229
on demand 229
special plea in terms of section 11 of Act 73 of 1968230
Loan for use (Commodatum)
distinguished from a loan for consumption 231
loss of things lent
claim for 231
Locatio conductio operis (Letting and hiring of work)
see also Architects, Contract, Exceptio non adimpleti contractus
building contracts 233
interim payments 233
completion of work 233
contractor prevented from 235
contract 232
basic terms of 232
building contracts in respect of homes 232
cancellation by employer 233, 235
reduced contract price 234
contractual defences 235

defective performance234
due to breach by employer 235
with cancellation by the employer 235
without cancellation by the employer 234
defects
cost of remedying 234
must be particularised 235
definition 232
Housing Consumers Protection Act 95 of 1998 232
incomplete or defective performance 234–235
due to breach by employer 235
plea 235
with cancellation by employer 235
without a cancellation by employer 234
interim payments in building contracts 233
materials suitable for purpose 232
payment
claim for 236
performance 233
defective 234
incomplete 234
late 234
quantum for rectification of defects 235
quantum meruit 234
remuneration 233
agreed rate 233
reasonable 233
reduced contract price 234
stipulated 233
terms
implied 233
unjust enrichment 234, 235
claim based on233
works 232
Locus standi see also Citations
curator ad litem 237
general236
joint estate
debt recoverable from 237
minors 236–237
spouses married in community of property 237
Locus standi iniudicio 236
Loss of support see also Damages, Lex Aquilia, Motor vehicle accidents
claim by parent for loss 238
elements 237
lex aquilia 237
parent
claim by 238
spouses and children 237
Malice see Malicious proceedings
Malicious proceedings see also Arrest and detention, State liability
animus inuriandi 238, 239

malice and 239
cause of action238
contumelia 239
damages 239
claim for 240
special 239
insolvency 239
jurisdiction 238
lack of reasonable and probable cause 238
malice
proof of 239
malicious insolvency or liquidation proceedings 239
setting the law in motion 238
termination of proceedings 239
writ or warrant 239
wrongful legal proceedings 239
wrongfulness of act 239
Mandament van spolie see Spoliation
Maritime claims see Admiralty claims
Marriage
breach of promise see Breach of (marriage) promise
Medical and dental practitioners see also Assault, Locatio conductio operis
assault 241
consent 241
contract 240
damages
claim for 242

duty of care 241, 242
duty to disclose 241
emergency situations 241
fees
determination of reasonableness of 240
dispute by patient 240
patient informed of intended 240
material risks inherent in procedure 241
negligence 241
payment 240
reasonable skill and care 241
registration 240
third parties 242
Medical treatment
informed consent 46
Mental incapacity
curator ad litem 242
insanity
claim to set aside agreement on grounds of 243
plea of 243
intoxication 242
claim to set aside contract on grounds of 243
plea of intoxication to claim under a contract243
natural affliction 242
onus 242
Minors
locus standi 236–237

Misrepresentation see Fraud, Innocent misrepresentation, Negligent misrepresentation
innocent see Innocent misrepresentation
Mistakes
ambiguous words 244
common 244
claim based on235
incidental 245
incorrect assumption 244
misrepresentation 244, 245
mutual 244
plea of 245
unilateral mistake 244–245
plea of 245
voidness of contract 244
Mora
cancellation 247
claim for cancellation where lex commissoria in contract 248
claim for cancellation where no lex commissoria in contract248
right to cancel 247
creditoris 246
debitoris 246
ex persona 246
ex re 246
reasonable time 247
rescission 247
notice of 247
Motor vehicle accidents

black widows 249
bodily injury 250
cause of action
more than one 249
child
injury of 249
claims 251–256
general254–255
limited by section 18(1)(a) of Act 56 of 1996 255
conditional counterclaim against second plaintiff 255–256
contributory negligence
plea of 255
damages 250
limitation of 249
death of breadwinner 249
defendant 249
driver of vehicle 249
jurisdiction 249
liability 250
exclusion of 250
loss of support 249
motor vehicle 250
personal injuries 249
plaintiff 249
plea 251
prescription
special plea 256

presumptions 250
prior demand 250
Road Accident Fund 249
claim against agent of 254
claim against, for damages that arose before the Act 56 of 1996 251–252
claim against RAF and third party 253
seatbelt
plea of contributory negligence 255
statutes 248–249
third party 249, 250
Negligence
accountants 1–2
breach of duty of care 256
diligens paterfamilias 257
economic loss, pure
claim 258–259
gross negligence
meaning 258
imperitia culpae adnumeratur 257
onus 256
nature of 257
particular grounds must be detailed 256
plaintiff, of 257
presumptions 257
res ipsa loquitur 257

Negligent misrepresentation
aedilitian remedies 260
causation 260
contract
cancellation 261
giving rise to 260
damages 261
claim for 261
extra-contractual misstatement 259
false representation or status 259, 260
material representation 260
relief 260
restitution 261
silence as misrepresentation 260
unlawfulness 260
wrongfulness 259, 260
Negotiorum gestio (Unauthorised administration)
account against gestor
claim for 264
actio negotiorum gestorum contraria 262
actio negotiorum gestorum directa 262
actio negotiorum gestorum utilis 263
actions 262
animus negotia aliena gerendi262, 263
completion of 263
damages
for lost interest and income 262
debt
claim for repayment of 263–4
definition 261
dominus unaware of management of affairs 262
essentials 262
lien 262
management of affairs of another 262
minor’s affairs263
obligations
release from during the course of the gestio 262
payment made in plaintiff’s own interest
claim 264
reimbursement for necessary and useful expenses 262
relief
claimable by the dominus 263
claimable by the gestor 262
repayment of debt paid
claim 263–4
unjustified enrichment 263
utiliter coeptum 262, 263
Novation
acknowledgement of debt 265
agreement confirming original obligation 265
compromise 264
extension of time agreement 265
extinction of obligation
plea 265
intention to novate 265
onus 264–265
pactum de non petendo 265
Nuisance
cause of action265–266
claim based on
plea to 268
damages 266
defendant 266
interdict
appropriate remedy 266
based on nuisance
claim 267–268
interdicting noise 268
claim 268
municipality may sue 266
negligence 266
plaintiff 266
relief 266–267
test determining whether disturbance is actionable 265–266
Options
acceptance
still open for 269
breach of 269
exercised
plea on269
granted or ceded 269
properly exercised 268
valid 268
Ownership
atonement 270
constitutum possesssorium 270
immovable property 270
onus 270
possession 270
symbolic delivery 270
traditio brevi manu 270
traditio longa manu 270
transfer of property 270
Parties see Citations, Locus standi
Partnership
account
claim for 272–273
actio pro socio 272
anonymous partner 272
citation 271
contract 271
creditors must sue partnership 271
dissolution 271
claim for 273
in terms of the agreement

claim 273–274
joint and several liability 271
liability 271
liquidator
claim for appointment of 273
universal partnership between spouses
claim in respect of 274
Passing off
account of profits 277
calculated to deceive or confuse 276
alternative 277–278
character merchandising 277
common field of activity 276
confusion 276
copyright infringement 277
damages 277
deception 276
delivery-up 277
doctrine of unclean hands 278
get-up of business, goods or services 275, 276, 277
copyright infringement 277
goodwill 274, 275
intention to deceive 276
interdict 276–277, 278–279
jurisdiction 275
market-survey evidence 278
misrepresentation 275
parties 275
protection afforded by action 274
reputation 274, 275
trade mark infringement 275
action 277
trade name 275, 276
use of 275
unlawful competition 275, 277
Patents
commissioner of patents 279
damages 281
defendant 280
delivery up 281
infringement 280
claim 282
plea 282
interdict 281
invalidity 281
counterclaim 282–283
onus 281
particulars statement 283
jurisdiction 279
territorial 279
literal infringement 281
onus 281
pith and marrow 280, 281
plaintiff 279
intervention as280
relief
statute 279
revocation
counterclaiming for 281
royalty 281
Payment
appropriation of 283–284
bilateral juristic act 283
cheque 283
deed of suretyship 284
enforceable debt 284
extinguished debts 284
general283
onus 283
plea of 284
third party 284
Pleas
admission 285
confession and avoidance 286
denial 285
material facts 286
obligations of defendant 284
prayers286
rules of court 284

Pledges
claim for damages due to negligence 287
claim for return of pledged article 287
pactum commissorium 286
valid and perfected 286
Police
statute 287
Possessors: Damages claims by
general288
hire-purchase purchaser 288
claim by 288
lex aquilia 288
new owner
claim by 299
patrimonial damages 288
possessor
claim by 288–289
unauthorised occupation 288
unlawful possession 288
Possessors: Eviction see Eviction or ejectment
Prayers
alternative relief 289
costs 289
general289
interest289
Pre-emption
enforcement
claim for interdict and291
general290
interdict 290
claim for interdict and enforcement
right of
claim to enforce 290–291
exercise of 290
specific performance 290
Prescription: Acquisitive
adverse user 292
ownership
claim 292
possession
civil 291
exercised openly 292
uninterrupted 291
procedure 292
servitudes 292
claim for cancellation of 292–293
state land 292
statutes 291
under 1969 Act 291–292
Prescription: Extinctive
amendment of pleading 295
debt 293, 294
exceptions to rule of prescription 294–295

extinguished 293, 294
period of prescription 294
defendant’s special plea 295–296
delay of completion 295
effect of prescription 293
interruption of 295
period of 294
plea
defendant’s special 295–296
procedure 293–294
replication 293, 296
statutory provisions 293
surety 294
waiver 295
when prescription begins to run
Privacy see Iniuria
Professional liability see Relevant profession
Promissory notes
claim against the maker 296
endorser
claim against 297
procedure 296
promissor
claim against 297
Provincial and local authorities see Citations, Prescription, State liability
Q
Quantity surveyors 297
Ratification
meaning 298
valid 298
Rectification
agreement
reduced to writing 298, 299
wording as rectified 299
claim, as a 298
common intention of parties 298
deed of sale 300
claim 300
defence, as a 299
general298
invalid contract 299
mistake in drafting document 299
non-variation clause 299
parole evidence rule 298
procedure 298
onus 298
Rei vindicatio see Actio ad exhibendum, Vindication
Replication 300–301
estoppel 300
Repudiation
claim for damages and restitution 301–302
damages 301
election to terminate 301
fundamental term of contract 301
onus 301
relief 301
restitution 301
specific performance of accrued rights 301
Res iudicata
absolution order 303
appeal 303
claim 303–304
final judgment 302–303
issue estoppel 303
onus 302
procedure 302
rebuttable presumption 302
same parties 303
same thing on same ground 303
Restraint of trade
absolution from 304
agreement regulating trade 304
constitutionality 304
damages 304
claim for 305
divisibility 305
enforcement 304
interdict 304
claim for 305

invalidity 304–305
public policy
contrary to 304
statute 304
unenforceable 304
Retention see Liens
Roads
public road
claim declaring road to be 306
right of way over another’s property 306
servitude 306
subdivision of land 306
Sale
contract 306–307
valid 307
damages 307
delivery
breach of obligation 307
claim for 307, 308
due 307
payment after delivery claim 308
payment against delivery claim 308
payment
after delivery claim 308
against delivery claim 308
price 307
purchase price
agreement 307
claim 307
due and payable 307
tacit term 307
thing sold 307
Sale of land on instalment
cancellation
claim for 310
formalities 308–309
purchaser
claim by 309
seller
claim by 309
setting aside contract
claim 309–310
statute 308
scope of Act 68 of 1981 308
Seduction
cause of action310
damages 311
claim for 312
jurisdiction 310
marriage
customary 311
religious rites, by 311
subsequent 311
meaning 311
plaintiff being seducing party 311
pregnancy 311
result of 311
sexual intercourse 311
spinster 310–311
virginity of plaintiff 310–311
Set-off
claim of 313
debt
due and payable 312
liquidated debts 313
reciprocal 313
indebtedness of plaintiff to defendant312
liquidated debts 312
Setting aside of judgments see Judgments: Setting aside
Simulated transactions
alleging
claim 314
definition 313
onus 313
Special pleas
definition 314
high court 315
magistrates’ court 314–315
onus 314
relief 315
separate hearing 315
Specific performance
alternative relief 316
specific performance as 316
claim for 317
damages
claim in the alternative for 316
discretion 316
election 317
jurisdiction 315
objective value of performance 316
onus 316
Spoliation
counter spoliation 318
defences 318
dispossession 318
final order 317
general317
jurisdiction 317
market value 317
possession 317
claim for 318
physical 317
unlawful deprivation of 318
relief 318
restoration 318
State liability
citation 319
condonation 320
contractual liability 318
debt due 320
delictual liability 319
extinguished debts 319
institution of legal proceedings against certain organs of state 319
notice of intended legal proceedings 320
claim for absence of notice 320–321
organ of state
meaning 319
prescription 319
period 320
retrospectivity 319
servant of the state 319
Stated cases 321
precedent 321–322
Statutory authority
common-law rights 322
exceeded by unreasonable conduct 323
negligence 323
onus 323
pleading statutory exemption 323
relying on statutory authority 323
claim 323
replication 323
Statutory duty or authority: Breach
causation 324
claim based on breach of a 324–325
essentials 324
negligence 323, 324
Statutory provisions 322
Stockbrokers
claim for payment 326
mandate 326
market price 325
meaning 325
purchase of shares 325
claim pursuant to 326–327
repudiation of purchase 326
sale of securities 326
scrip 326
Suretyship
accessory obligation 328
causa debiti 327
ceded action 329
claim
against principal debtor and surety 330–331
against surety 327, 331
by surety against co-surety 330
by surety against principal debtor 329, 331
for contribution by co-surety 331
defences
to the deed of surety ship 328–329
to the principal debt 328
exceptio non causa debiti 327
excussion and division 329
extinction of principal debt by prescription 328
guarantee 330
indebtedness of principal debtor 327
joint suretyship intended 328
liability
limitation plea 332
of surety 327, 328
non-compliance with formalities 328
release 329
plea 332
right to recourse 329
termination 328
valid contract of 327
variation of 329
Tender: By a defendant
general332
in plea 332–333
repeating a tender
claim 333
Tender: By a plaintiff
dispensed with334
in body of relevant pleading 333

need for tender 333–334
prayers333
repudiating obligation to perform 334
restitution 334
Tender: In full and final settlement
compromise 334, 335
offer of 335
effect 334
onus 334
tender
acceptance of 335
settlement
claim of 335
Third-party procedure
contribution 336
conditional claims 335
damages 336
indemnity 336
claim for 336–337
lis 336
procedure 335, 336
reconvention 336
relief 336
Trade marks
certificate of registration 338
confusion 338, 339

damages 339
deception 338, 339
defendant 338
defensive 339
fault 339
identical mark 338, 339
infringement 338
claim 340–341
under section 34(1)(a) of Act 194 of 1993 338
under section 34(1)(b) of Act 194 of 1993 339
under section 34(1)(c) of Act 194 of 1993 339
interdict 339
jurisdiction 337–338
non-infringement 340
Paris Convention 337
passing off 337
plaintiff 338
reasonable royalty 339
registration 338
relief 339
statute 337
unauthorised use 338
unfair advantage 339
Trespass see Nuisance, Possessors: Damages claims by
Unauthorised administration see Negotiorum gestio
Undue influence
damages
claim for damages by client 341–342
elements 341
special relationships 341
tender 341
Unlawful competition
breach of contract
inducement and procurement of 343
character merchandising rights interference 343
competitive trading 342
confidential information
misuse 343
damages 343
fraudulent misrepresentation 342
injurious falsehoods published 343
lex aquilia 342
passing off 342, 343
physical assaults and intimidation 343
trading in contravention of express statutory prohibition 342
unfair use of competitor’s fruits and labours 343
wrongfulness 343
Usury see Credit agreements, Interest, Loans
Veld fires
bad faith 344
claim 345
limitation of liability
member of fire protection association344
negligence 344
presumption of 344
onus 344
wrongful act or omission 344
Vetustas
claim 345–346
rebuttable presumption 345
Via necessitate
cause of action346
claim for a road
with offer of compensation 347
without offer of compensation 346–347
compensation 346
court order 346
jurisdiction 346
onus 346
relief 346
Vicarious liability
disobedience 348
employees 347
frolic of her or his own 348
independent contractor 349
master and servant
claim against master for delict committed by servant 349
plea to claim 349

onus 347
parent and child 347
Vindication
cause of action350
defences 250
delivery
claim for 351–352
of all fruits that have accrued 350
disposal of possession 350
essentials 350
estoppel 351
plea relying on 352
interpleader 351
ownership 350
denial 350
payment of value 350
possession 350
denial 350
plea relying on the right of 352
return of 350
right to351
rei vindicatio 350
relief 350
replication alleging cancellation of contract 352
statutes 349
wrongfulness 350
Volenti non fit iniuria

consent 353
contributory negligence 353
essentials 353
general353
knowledge 353
negligence 353
onus 353
parties 352
plea 353–354
risk 353
Voluntary associations
absence of locus standi 354
contracts 354
delict 354
incorporated association 354
unincorporated association 354
Waivers
acceptance 356
after cancellation 356
delay 356
election 355–356
non-variation clauses 356–357
not permitted 356
onus 355
plea 357
procedure 355
right
decision to abandon 355
knowledge of 355
Warranty against eviction
breach of legally implied 357
relief 357
repayment
claim for 358
successive sales 358
Water 358
Wild animals
damages
claim 359
edictum de feris 358
introduction of358
liability for damage 358–359
negligence 358
ownership 358
trespasser 359
Wills
claim 360
forgery359
interpretation 360
lack of mental capacity of testator 359
master of high court 359
onus 359
parties 359
prescribed statutory formalities
failure to comply with359
rectification 360
Workmen’s compensation
accident 360–361
claim by workman under MVA Act 362
compensation
recovery from third parties 361
right of employee to 361
liability for payment of compensation 361
substitution of compensation for other legal remedies 361
damages
apportionment of 361
recovery from third parties 361
negligence 361
notice 362
occupational injury 360
statute 360
third-party liability 361

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Amler's Precedents of Pleadings – 6th Edition

That is still true.

Supreme Court of Appeal

• Accountants and Auditors

• Actio Aquae Pluviae Arcendae

• Actio legis Aquiliae

• Administration of Deceased Estates

• Arrest and Detention

Accountants and Auditors

Related subjects: LOCATIO CONDUCTIO OPERIS

General: A public accountant is a person:

(a) engaged in public practice;

(b) who performs the functions of an accountant and auditor;

Public Accountants’ and Auditors’ Act 80 of 1991 s 1

Public Accountants’ and Auditors’ Act 80 of 1991 s 14

Extended liability: Registered accountants and auditors may form a company to engage in

Public Accountants’ and Auditors’ Act 80 of 1991 s 21(2)(a)

(b) the terms of the mandate;

(c) performance of the mandate; and

Lipschitz NO v Wolpert & Abrahams 1977 (2) SA 732 (A) at 741

Tonkwane Sawmill Co Ltd v Filmalter 1975 (2) SA 453 (W) at 454H–455C

(a) maliciously or pursuant to a negligent performance of its duties in

(b) expressing an opinion, or giving a certificate, or report, or statement, or certifying a

in the ordinary course of its duties.

Public Accountants’ and Auditors’ Act 80 of 1991 s 20(9)

A delictual claim would probably not be competent.

Cf Correira v Berwind 1986 (4) SA 60 (ZH)

Public Accountants’ and Auditors’ Act 80 of 1991 s 20(11)(a)

Claim – for remuneration

1. The plaintiff is a duly registered public accountant and auditor entitled to

2. Pursuant to and in accordance with an oral/written agreement entered into

Claim – for damages by client

1. On [date], the plaintiff engaged the services of the defendant, a public

5. In preparing this report, the defendant performed these duties incompetently

9. In consequence of the defendant’s breach of contract, the plaintiff suffered a

Claim – for damages

6. In consequence of the defendant’s actions, the plaintiff has suffered a loss of

Related subjects: AGENCY

(a) The basis of the right to receive an account.

The duty to render an account is dependent upon one of the following:

(ii) a contractual obligation to render an account; or

(iii) a statutory duty to render an account.

Rosseau NO v Cloete 1952 (3) SA 703 (C)

Loots v Nieuwenhuizen 1997 (1) SA 361 (T)

Doyle v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 (A)

Narayanasamy v Venkatrathnam 1979 (3) SA 1360 (D)

Field NNO v Compuserve (Pvt) Ltd 1991 (4) SA 490 (Z)

Nucsa v Nucsa 1995 (4) SA 813 (T)

Dale Street Congregational Church v Hendrickse 1992 (1) SA 133 (E)

Nusca v Nusca 1995 (4) SA 813 (T)

Claim – for delivery and debate of account

(c) [any other relevant details].

WHEREFORE the plaintiff prays for an order:

(b) Debate of the said account.

Prayer – account in an estate

[Cf Nusca v Nusca 1995 (4) SA 813 (T) at 820J–821C.]

Related subjects: CONDICTIO FURTIVA

Cause of action: The actio ad exhibendum is a delictual action which is normally instituted

Essentials: The plaintiff must allege and prove that:

(b) the defendant had been in possession of this property;

A defendant who disposes of a plaintiff’s property after the institution of an action in

Hall & Sons Ltd v Kleinsmith 1963 (4) SA 320 (T)

Aspeling NO v Joubert 1919 AD 167