Masindi v Chemical Industries National Provident Fund and Others (16/24267) [2016] ZAGPJHC 360 (13 December 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 16/24267

Reportable: Yes

Of interest to other judges: No

Revised: No

13/12/2016

In the matter between

MASINDI MUKOSI JOYCE Applicant

And

CHEMICAL INDUSTRIES NATIONAL PROVIDENT FUND First Respondent

NBC FUND ADMINISTRATION SERVICES (PTY) LTD Second Respondent

ROLFES (PTY) LTD Third Respondent

JUDGMENT

EPSTEIN AJ:

1. The first respondent is a duly registered Fund as defined in the Pension Fund Act No. 24 of 1956 (“the Act”). The second respondent is licensed in terms of section 13B of the Act to conduct retirement fund administration services to the first respondent. The applicant was married to Mphedziseni Robert Masindi who was employed by the third respondent. Mr Masindi (“the deceased”), who passed away on 25 November 2013, was a member of the first respondent which is administered by the second respondent. The

applicant is the beneficiary of the death benefit payable in terms of the first respondent’s rules and it is common cause that she is entitled to receive the amount of R779, 192.01 from the first respondent. The second respondent is willing to facilitate the payment due by the first respondent to the applicant.

2. There are three essential issues in this application:

2.1. The first is whether the first and second respondents are obliged to make the payment due and owing to the applicant, into the trust account of the applicant’s attorneys of record;

2.2. the second is whether the first respondent is obliged to pay interest to the applicant on the capital sum with effect from one year after the deceased died; and

2.3. the third is the claim by the first and second respondents that the applicant’s attorneys pay the costs de bonis propriis.

3. The following was the relief sought in the notice of motion:

1. The Third Respondent be ordered to provide the First Respondent with all the necessary information regarding the death claim forms to enable computation of the death benefit became due for and on to the Applicant, within 5 (five) days of service of this Court Order on it;

2. The First Respondent be ordered to finalise the investigations for the purposes of identifying the dependants of the Deceased, within 5 days of receipt of the information stated in paragraph 1 above;

3. The First Respondent be ordered to provide the Applicant and 2nd Respondent with the accurate information detailing the benefit that became available for payment to the Applicant as a result of the Deceased’s death in terms of its registered the rules, within 5 (five) days of receipt of the information stated in paragraph 2 above;

4. The First Respondent be ordered to provide the Applicant and Second Respondent with the Board’s resolution detailing allocation of the benefit and the reasons considered by it for making the allocation, within 5 (five) days of receipt of the information in

paragraph 2 above;

5. The First Respondent be Ordered to pay the death benefit or such benefit allocated to the Applicant together with interest at 9% (nine per cent) per annum calculated from 26 November 2014, until date of full and final payment; within 5 day of paragraph 4 above,

6. That the Second Respondent be ordered and compelled effect payment of the amount referred to in paragraph 4 above, within 5 day of service of the Court Order, by means of electronic funds transfer into the Applicants’ attorneys: Qhali Attorneys Trust cheque Account number 6253 0674 169, FNB, Rosebank branch code 253 305, Reference number: MJM/ PEN 026

7. That the Respondents be ordered to pay the costs of this application, jointly and severally one paying the other to be absolved;

8. Further and/ or alternative relief

4. At the hearing, Mr Kela, who appeared on behalf of the applicant together with Mr Mkhize, stated that the reference (in paragraph 6 of the notice of motion) to “paragraph 4 above” was an error and should read “paragraph 5 above”. There was no objection to this amendment.

5. At the commencement of the argument, I asked Mr Kela to indicate which paragraphs in the notice of motion were still persisted in by the applicant. I made this enquiry because it was clear from supplementary affidavits filed that there had now been compliance with certain of the relief originally sought in the notice of motion. (The first and second respondents’ dispute that such compliance was brought about by the application in casu.) In response, Mr Kela informed me that relief was only being sought in terms of paragraphs 5, 6 and 7 of the notice of motion.

6. I was also informed at the commencement of the hearing that the third respondent had on 1 December 2016 served a notice of withdrawal of its opposition. It transpired that the third respondent had served an answering affidavit on the applicant’s attorneys on 28 November 2016. This had not been filed but was handed up at the hearing without objection from either the applicant or the first and second respondents.

7. During the hearing I was also handed two letters in terms of which the third respondent offered R10,000 as a contribution towards the applicant’s costs on the basis that the applicant would withdraw the relief sought against the third respondent. This offer was accepted by the applicant’s attorneys in a letter dated 30 November 2016.

8. Henceforth in this Judgment, the first and second respondents will be referred to as (“the respondents”). References to the third respondent will be made where specifically necessary.

9. The following procedural chronology is relevant:

9.1. the founding affidavit was signed on 14 June 2016; the notice of motion was only signed on 12 July 2016;

9.2. the application was issued on 13 July 2016 and served on 21 July 2016;

9.3. the notice of intention to oppose was served on 5 August 2016;

9.4. the affidavit on behalf of the respondents was deposed on 29 August 2016;

9.5. the replying affidavit was deposed to on 17 September 2016;

9.6. the applicant’s supplementary affidavit was signed on 25 October 2016;

9.7. A supplementary answering affidavit was signed on behalf of the respondents on 18 November 2016; and

9.8. the applicant’s supplementary replying affidavit was deposed to on 22 November 2016.

10. The aforementioned history must be seen in the context of the common cause fact that on 18 October 2016, the respondents’ attorneys addressed a letter to the applicant’s attorneys. Paragraphs 2 and 3 of this letter read as follows:

2. Kindly inform your client that our Client has completed the investigation in terms of section 37C(1)(a) of the Pension Funds Act, 24 of 1956 (“the PFA”). To this end please find attached the Resolution of the Death Claims Sub-Committee of the Chemical Industries National Provident Fund held on 13 September 2016 and signed on 3 October 2016.

3. Kindly request your client to furnish our offices with her bank account details so that our clients’ administrator can

facilitate the payment of the fund credit amount of R779, 192.01 to your client.

11. The respondents’ attorneys also stated in this letter that the application was ill-conceived and premature. The applicant’s attorneys were requested to withdraw the application forthwith. They were further advised that the respondents claim costs de bonis propriis from the applicant’s attorneys.

12. Despite the tender of 18 October 2016 to make payment, this has not yet taken place and the applicant has not furnished her bank details. The case made out in the founding affidavit is that that the money due to the applicant should be paid into her attorney’s trust account. For this, the applicant and her attorneys rely upon a special power of attorney signed by the applicant in favour of her attorneys dated 25 April 2016. Clause 1 of the special power of attorney is specifically relied upon. It reads:

I, the undersigned,

MUKOSI JOYCE MASINDI

...

1. Do hereby nominate, constitute and appoint Qhali Attorneys... with Power of Substitution to be my lawful attorney in my name, place and stead, to receive payment and to investigate the circumstances

relating to the distribution of a death benefit following the death of Mphedziseni Robert Masindi Identity Number 501011 5515 086 who passed away on 25-11-2013 and as a result his membership in the chemical industries national RETIREMENT/PROVIDENT FUND was terminated.

13. Mr Kela argued that by virtue of the inter partes arrangement between the applicant and her attorneys, an obligation was thereby imposed upon the respondents to make payment to the applicant’s attorneys trust account, and the applicant was entitled to refuse the 18 October 2016 tender. Thus the relief sought in paragraph 6 of the notice of motion.

14. Mr Kela was unable to furnish authority for the proposition that a debtor is obliged to discharge a debt owing to a creditor by making payment to a designated third party at the instance of such creditor. Where a debt has been ceded – which is not the case in the present matter and which in any event is statutorily prohibited – a debtor who has been informed of the cession should pay the cessionary. If the debtor nevertheless pays the cedent, the debtor does so at his or her own risk and the debt will not be discharged.

15. Mr Kela nevertheless persisted in urging that the arrangement between the applicant and her attorneys, confirmed by the special power of attorney and the applicant’s affidavit, was the basis for the creation of an obligation imposed upon the respondents to make payment to the applicant’s attorneys. He argued that by refusing to make this payment, the respondents were in effect in breach of their obligations and that the applicant was entitled to the order sought in paragraph 6 of the notice of motion.

16. The main ground upon which the respondents refused to make payment to the applicant’s attorneys is based on the provisions of section 37(A)(1) of the Act. This provides in relevant part as follows:

Save to the extent permitted by this Act, the Income Tax Act, 1962 (Act 58 of 1962), and the Maintenance Act, 1998 no benefit provided for in the rules of a registered fund... or right to such benefit, or right in respect of contributions made by or on behalf of the member, shall, notwithstanding anything to the contrary contained in the rules of such a fund, be capable of being reduced, transferred or otherwise ceded, or of being pledged or hypothecated, or be liable to be attached or subjected to any form of execution under a judgment or order of a court of law, or to the extent of not more than R3000 per annum, be capable of being taken into account in a determination fo a judgment debtor’s financial position in terms of section 65 of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), and in the event of the member or beneficiary concerned attempting to transfer or otherwise cede, or to pledge or hypothecate, such benefit or right, the fund concerned may withhold or suspend payment thereof.

17. Section 37(A)(4) provides:

(4)(a) Despite the provisions of this section, a fund may direct that a member’s or beneficiary’s benefit may be paid to a third party if that member or beneficiary provides sufficient proof that he or she is not able to open a bank account.

(b) Any such payment must be regarded as being a payment to that member or beneficiary.

18. In interpreting these provisions, regard must be had not only to the context within which the provisions appear, but also to their purpose.[1] The clear purpose behind these provisions is to safeguard the funds in the hands of the beneficiary; to protect him or her from being unduly induced or tempted or influenced to part with the benefit. Even the right to the benefit is ring-fenced by the legislature from the claims of creditors, and the benefit must remain in the hands of the beneficiary so that it cannot even be ceded or pledged or hypothecated.

19. In interpreting section 37A(4)(a), with reference to context and purpose, the legislature permits a Fund to make payment to a third party – in this instance the applicant’s attorneys – if the member or beneficiary provides sufficient proof that he or she is not able to open a bank account. The only possible interpretation is that if the member or beneficiary is able to open a bank account, then the funds must be paid to that person’s account only. Significantly, there is no statement or evidence in the applicant’s affidavits that she is unable to open a bank account.

20. Although Section 37A(4)(a) was only raised by Ms Freese on behalf of the respondents, in argument, it is a statutory provision of which a court can, and in fact must, take cognisance. A court cannot make an order in conflict with this provision. In other words even if the respondents were willing to make payment to the applicant’s attorneys’ trust account, this is precluded by law, absent sufficient proof that the applicant is unable to open a bank account.

21. For these reasons, the applicant cannot succeed in claiming the relief in paragraph 6 of the notice of motion, namely that the proceeds due and owing to the applicant, be paid into her attorneys’ trust account.

22. I turn to the claim for interest in paragraph 5 of the notice of motion.

23. In paragraph 5 of the notice of motion the applicant seeks interest on the capital amount at the rate of 9% per annum from 26 November 2014. The significance of this date is that the deceased died on 25 November 2013, and the applicant, relying on section 37C(1) of the Act, contends that the benefit should have been paid to her within 12 months of the death. This section provides as follows:

Notwithstanding anything to the contrary contained in any law or in the rules of a registered fund, any benefit (other than a benefit payable as a pension to the spouse or child of the member in terms of the rules of a registered fund, which must be dealt with in terms of such rules) payable by such a fund upon the death of a member, shall, subject to a pledge in accordance with section 19 (5) (b) (i) and subject to the provisions of sections 37A (3) and 37D, not form part of the assets in the estate of such a member, but shall be dealt with in the following manner:

(a) If the fund within twelve months of the death of the member becomes aware of or traces a dependant or dependants of the member, the benefit shall be paid to such dependant or, as may be deemed equitable by the fund, to one of such dependants or in proportions to some of or all such dependants.

24. It was not disputed that the third respondent, by whom the deceased was employed, did not notify the respondents that the deceased had died. The respondents only became aware of this when they were informed of the death in a letter from the applicant’s attorneys dated 26 April 2016.

25. It was argued on behalf of the applicant that once the deceased had died, contributions ceased. This, it was argued, should have triggered an enquiry from the respondents which, in turn, would have led them to find out that their member had died. Mr Kela argued that in the absence of an explanation, I should deem the respondents to have known that the member had died. Hence, so the argument went, the 12 months’ period within which to receive the application, investigate the claim and finalise it, commenced to run the day after his death. However, in the respondents’ supplementary answering affidavit it is stated that the respondents do not have systems to check whether or not payments in respect of all members are received on a monthly basis. Companies which belong to the Fund advise them of how many members’ contributions are paid for each month and these are allocated accordingly. If these employee numbers increase or decrease, no questions are asked, as long as the total amount received equates to the total number of employees contributing to the Fund. Absent notification of death, the respondents simply are not aware of any claims.

26. Section 37C1(b) provides:

If the fund does not become aware of or cannot trace any dependant of the member within twelve months of the death of the member, and the member has designated in writing to the fund a nominee who is not a dependent of the member, to receive the benefit or such portion of the benefit as is specified in the member in writing to the fund, the benefit or such portion of the benefit shall be paid to such nominee...

27. Whilst section 37C(1) does not expressly state that the 12 month investigation period to trace the dependants of a deceased only commences once the Fund has obtained knowledge of the death of the deceased, the only logical interpretation of this section is that a Fund cannot comply with its obligation if the legislative requirement for its imposition, namely the death of a member, is not made known to the Fund. In Government Employees Pension Fund Provincial Government of Gauteng v Buitendag & Others[2] it was held that the employer in that matter had the obligation to provide the Fund with information pertaining to the dependents of the deceased. By implication, the employer had to inform the Fund of the death of the deceased as well.

28. The 12 month period could only have commenced to run from the time that the respondents became aware that the deceased had died, namely on 26 April 2016. The claim for interest is therefore without any merit.

29. What remains is the question of costs. For this purpose it is necessary to set out some relevant background.

29.1. I have already referred to the letter of 26 April 2016 from the applicant’s attorneys informing the respondents that the deceased had died. In fact, the respondents only became aware of the death of the deceased on 28 April when the letter reached the second respondent’s legal department.

29.2. Absent notification by the third respondent or another party, the fact that the respondents did not become aware of the deceased’s death earlier is not a result of any steps the respondents could or should have taken to acquire knowledge thereof.

29.3. On 4 May 2016 the second respondent wrote to the applicant’s attorneys advising that they were not aware of the deceased’s death. They advised that they required claim documentation, (which should have been, but was not, provided by the third respondent), to be completed by the applicant in order to allow the second respondent to commence their investigations in the matter. They clearly responded promptly to the notification of the deceased’s death within a few days of being advised thereof.

29.4. On 11 May, barely two weeks after notification had been given of the death of the deceased, the applicant’s attorneys wrote to the respondents noting “with dismay” that the respondents had “omitted or neglected to either provide information and/or make payment as requested.” They advised that they held instructions to proceed with an application to compel compliance with their demand of 26 April 2016. The attorneys further stated that they will commence to draft the necessary documents and seek an order on an attorney and client scale.

29.5. On 6 June, the demand was repeated, and the applicant’s attorneys advised that they held instructions to proceed with an application to compel.

29.6. On 9 June, the second respondent wrote to the applicant’s attorneys, referring to previous correspondence and noting they had still not received any claim forms.

29.7. Some five days later, the applicant signed her founding affidavit. The application was served on 21 July 2016. Coincidently, it was on 21 July 2016 that the respondents received the completed claims forms from the third respondent. After service of the application in this matter, the applicant’s attorneys were requested by the respondents’ attorneys to hold off on pursuing the litigation so as to save costs, given that the matter was receiving attention. No response to the request to hold off was received.

29.8. At the time of filing the answering affidavit, the respondents were still investigating the process. At that stage they understood that the beneficiaries of the deceased may be entitled to R181, 530.92. However, after investigations had been completed by 3 October 2016, the applicant was identified as the only beneficiary of the deceased benefit and the amount of the benefit was found to be R779, 192.01. Whilst the applicant contends that the increased amount was the result of her having brought this application, there is no substance to this. There is no reason to assume that the respondents’ investigations would not always have revealed the additional amount.

29.9. On 8 August 2016 the respondents’ attorneys wrote noting that the applicant had seen fit to serve an application. This letter set out the steps taken since notification of the death of the deceased on 26 April 2016 and recorded that unnecessary costs were being incurred by the applicant’s conduct. Importantly, the respondents’ attorneys also advised that the respondents cannot, and will not pay the funds into the applicant’s attorneys’ trust account, stating that “these need to be paid to the beneficiary directly”. They stated that if they made payment as demanded, the respondents would be in breach of their fiduciary duties to the member and his beneficiaries. The letter also stated that the claim forms had been received on 21 July 2016 and that the respondents were expediting the investigation into the applicant’s claim as they are enjoined to do by section 37C of the Act. They requested an undertaking from the applicant’s attorneys that they would hold off on pursuing the litigation until the investigations were complete. They stated that “(c)onducting this matter in any other manner will result in unnecessary costs” for the applicant.

29.10. On 18 October the respondents’ attorneys wrote to the applicant’s attorneys advising that the investigation had been completed and requesting the applicant’s bank details so that the payment of the fund credit amount of R779, 192.01 could be paid to the applicant. They requested the applicant’s attorneys to withdraw the application but advised that costs were being sought from the applicant’s attorneys de bonis propriis.

30. Despite the aforementioned, the applicant’s attorneys secured a date for the hearing of this application and persisted with the relief sought in the notice of motion. It was only at the hearing of this application that counsel, for the first time, informed the court, and the respondents for that matter, that they were no longer applying for the relief contained in paragraphs 1 to 4 of the notice of motion.

31. At the hearing the respondents applied for costs de bonis propriis. In argument, Ms Freese on behalf of the respondents referred to the judgment of Fabricius J in Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd & Others, Telkom SA Soc Ltd & Another v Blue Label Telecoms Ltd & Others[3] where the learned judge stated:

It is true that legal representatives sometimes make errors of law, omit to comply fully with the Rules of Court or err in other ways related to the conduct of the proceedings. This is an everyday occurrence. This does not however per se ordinarily result in the court showing its displeasure by ordering the particular legal practitioner to pay the costs from his own pocket. Such an order is reserved for conduct which substantially and materially deviates from the standard expected of the legal practitioners, such that their clients, the actual parties to the litigation, cannot be expected to bear the costs, or because the court feels compelled to mark its profound displeasure at the conduct of an attorney in any particular context. Examples are, dishonesty, obstruction of the interests of justice, irresponsible and grossly negligent conduct, litigating in a reckless manner, misleading the court, and gross incompetent and a lack of care.

32. Ms Freese submitted that the present matter is not an everyday ordinary occurrence. The applicant’s attorneys knowingly and recklessly, or at the very least grossly negligently, launched an application with no existing cause of action and to the detriment of their client. It was submitted that the applicant’s attorneys were mala fide.

33. Mr Kela handed up copies of seven cases, some of which are unreported and which were not referred to in the applicant’s heads of argument. They were produced during argument, and in some instances, courtesy copies were not even extended to the respondents’ counsel before they were even mentioned. Heads of argument with references to authorities have a specific purpose. It is not only in advance to inform the judge hearing the matter as to the issues and arguments in the case, it is also to afford the opposing parties the opportunity of considering the arguments and cases, and allowing them sufficient time to conduct any necessary research. Legal representatives arguing cases are not entitled to “fly by the seat of their pants” so to speak and set up moving targets.

34. Of course it happens that during preparation, after heads of argument have been served and filed, and sometimes even during a hearing, the legal representatives do come across cases of which they were unaware and which have a bearing on the particular matter. Reference to these cases should generally be allowed in the interests of justice; and courtesy copies should, where feasible, be extended to the opposing legal representatives. Sufficient time should be allowed to them, if required, to consider these cases. The late production of cases during argument in the present matter in the manner I have described above, is to be deprecated.

In Brown v Papadakis & Another NNO [4] Davis J said the following:

Mr Khan submits that he was given instructions to so pursue this course of action, but attorneys must surely apply a professional standard in deciding to do this. See the dictum of Innes CJ in Vermaak’s Executor to Vermaak’s Heirs 1909 TS 679 at 691. Applicants have rights, but the courts are not playthings, to be abused at the convenience of litigants who raise spurious, reckless arguments which jeopardise the integrity of the court, so as to postpone proceedings, when they, as in this case, have clear rights, which can protect any interest or rights which they may have.

In my view, this is a case where the court should say: Of course, litigants have rights; of course, courts must fastidiously respect

these rights; of course, all rights should be exhausted and an attorney should act as energetically as he or she may be able,

to protect these rights. But when the boundary is overstepped so grossly in circumstances where there is no legal basis, no precedent,

no serious evidential edifice on which to launch such an application (ie even on these vague affidavits could a recusal application ever be brought?), the court should say, you have overstepped the mark and have crossed a bridge in circumstances where an order of costs de bonis propriis must follow.

The application for leave to appeal is dismissed, together with costs including costs of two counsel on attorney and own client scale, to be awarded de bonis propriis.

35. Legal representatives should not be deterred from strongly advancing the cases of their clients, even when the prospects are dim. And it does not mean that when such arguments fail, and since they were conceived by the legal representatives, that a de bonis propriis order should follow. It is, however, different when totally untenable propositions are advanced or where cases are pursued precipitately in circumstances where this creates unnecessary and avoidable costs for litigants. It is imperative, in order to retain and preserve the integrity of the legal profession that legal representatives should discourage their clients from embarking upon or proceeding with litigation which is devoid of any merit whatsoever. The interests of the litigant are paramount and the only interests to consider when advising a client.

36. The applicant states in her founding affidavit that due to the “extraordinary delay by either first respondent finalising investigation/s or the second respondents having failed to make any payment, I was left with no option but to approach my attorneys of record herein in order to obtain legal assistance” (sic). She further states that it is her “humble view that the respondents have treated me with utmost disregard and prejudice which can only be remedied by seeking assistance by this Honourable Court”. However, the facts demonstrate the contrary. It is to be noted that it was not argued in the present matter that the respondents’ dragged their heels once they found out about the death of the deceased. As can be seen from the procedural history, they acted expeditiously. The Act provides for a year within which to complete investigations and ascertain the identity of the beneficiaries. In the present matter, payment was already tendered some six months after investigations commenced.

37. It is quite clear that the applicant’s attorneys were intent upon stampeding this matter into court. And as appears from portions of the applicant’s affidavit, she was fully supportive of this.

38. Nevertheless, the events from 18 October 2016 are disconcerting to say the least. From this date the respondents tendered to pay to the applicant her money. The application only proceeded before me for the relief in terms of prayers 5 and 6 only (although, as noted, the applicant’s legal representatives only informed the court and the respondents of this at the hearing). In regard to prayer 5, that is the claim for interest from 26 November 2014 (being one year after the deceased died), I have already found that the applicant misconceived the provisions of section 37C(1) of the Act. The 12 month period only commenced from 26 April 2016 at the earliest, and from that time onwards, the respondents expedited finalisation of the claim.

39. Paragraph 6 of the notice of motion is a claim for payment to be made into the applicant’s attorneys’ trust account. Not only were the applicant’s attorneys not entitled to insist upon this, but they have delayed the applicant from receiving her funds which have been available from 18 October 2016. They had a duty to their client to ensure that she received the money due to her as soon as it was tendered for payment, but they caused this to be delayed simply in order to ensure that the money is paid into their trust account. In so doing, the applicant’s attorneys have litigated in a reckless manner from the time the money was tendered on 18 October 2016. They demonstrated a lack of care for their client’s interests and caused her to incur unnecessary costs. In these circumstances I have concluded that it is appropriate that the applicant’s attorneys pay the respondents’ costs incurred from 18 October 2016 de bonis propriis.

40. I make the following Order:

(1) The application is dismissed with costs.

(2) The costs of the first and second respondents up to 18 October 2016 are to be paid by the applicant.

(3) The costs of the first and second respondents from 18 October 2016, including the costs of the hearing, are to be paid by the applicant’s attorneys de bonis propriis.

__________________________

H. EPSTEIN

ACTING JUDGE OF THE GAUTENG LOCAL DIVISION

HIGH COURT, JOHANNESBURG

Hearing: 07 December 2016

Judgment delivered: 13 December 2016

For Appellant:

Adv Z Kela appearing with Adv N Mkhize

Instructed by Qhali Attorneys

For Respondent:

Adv S. Freese

Instructed by Mervin Taback Inc

[1] Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA); and Bothma-Batho Transport (Edms) Bpk v Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA).

[2] [2007] 1 All SA 445 (SCA) at paragraph [20]

[3] 2014 (3) SA 265 (GP) at 289A-D

[4] 2009 (3) SA 542 (C) at 545J-546D