MEC for Mpumalanga Provincial Government of Public Works and Another v Blue Cloud Investment (Pty) Ltd (A39/2021) [2023] ZAMPMBHC 36 (10 July 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION (MAIN SEAT)

Case Number: A39/2021

1. REPORTABLE: YES

2. OF INTEREST TO OTHER JUDGES: YES

3. REVISED.

DATE:10 JULY 2023

SIGNATURE

[SIGNED]

In the matter between:

MEC OF MPUMALANGA PROVINCIAL GOVERNMENT OF FIRST APPELLANT

PUBLIC WORKS

DIRECTOR GENERAL: PUBLIC INFRASTRUCTURE SECOND APPELLANT

OF THE DEPARTMENT OF PUBLIC WORKS

And

BLUE CLOUD INVESTMENT (PTY) LTD

RESPONDENT

This judgment was handed down electronically by circulation to the parties' representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10:00 on 10 JULY 2023.

JUDGMENT

Coram: KGOELE J et MASHILE J

Kgoele J

1. The appeal stems from an action that was instituted by the respondent in the Reginal Court (trial Court) against the appellants claiming an amount of R 3006 270.71 as arrear rental which was due and payable by the appellant. The trial Court ordered the appellants

to pay this amount with interest at the rate of 10% a tempore morae to the date of payment. The appeal is directed at the whole of this order.

2. The appellants also filed a condonation application for noting the appeal out of time. The respondent opposed both the appeal and

the condonation application. I choose to deal with condonation later in the judgment.

3. The claim arises from a lease agreement (the agreement) that was concluded by the parties on the 14th of July 2017. The commencement date and the original terms of the agreement, including some of which were later amended through an addendum thereto, were common caused between the parties. The only issue that was in dispute was whether the appellant was in default of the agreement. In their plea, the appellants denied that they were in default. It is important to note at the onset that at the time when the matter was case managed, both parties indicated to the Court that was case managing the matter that they were ready for trial.

4. The problem arose at the commencement of the trial as a result of the appellants’ legal representative making an unexpected

application for postponement from the bar. The reasons advanced were that the documents that could prove that payments were made were not at hand including the witnesses. This application was refused and the trial Court directed the matter to proceed. As a result, the judgment of the trial Court was based solely on the pleadings before it and the evidence of Mr Wesley Tendaupenyu who testified on behalf of the respondent.

5. His evidence summarised is that the agreement was for the respondent to provide 9000 square meters of office accommodation, which the respondent did. The initial date of occupation was 1 April 2019, which date was subsequently changed to 1 November 2019 through

an addendum. He testified further that the appellants at the time when the action was instituted, occupied only 7620 square meters of the office space provided by the respondent and also, paid for the actual space occupied. He stood firm that the respondent is only claiming for the amount that remained unpaid which is the difference between the space provided as per the agreement and the actual space occupied by the appellants. He lastly indicated that the respondent cannot explain why the appellants are not occupying the entire accommodation space provided, as the appellants are best suited to proffer that explanation.

6. During cross-examination, he was quizzed about clause 6.2 of the original agreement which provides for a phased-in occupation and

further that accommodation will be paid for occupied spaces. In his answer to this question, he gave a context of how the events that led to the two agreements being concluded unfolded, which context in the main formed the basis of his answer to the effect that the appellants were to pay for the entire accommodation spaces provided. He indicated that the reason why clause 6.2 was included in the initial agreement was that the construction as agreed initially had to be done in phases, but that that did not mean that unoccupied space would remain in perpetuity. This, according to him, is the reason why an addendum was signed once the building was fully completed. The rental charged for the full occupation only started in November after the addendum was signed, his explanation continued, because the appellants promised during the various meeting held and the correspondence exchanged between the parties which informed the terms of the addendum, that they will occupy the full 9000 square meters provided by the end of October 2019.

7. The trial Court considered this explanation amongst other things and concluded that as the appellants conceded during the trial that they only paid for the 7620 square meters occupied by them, the respondent’s claim of the difference between the two

(unoccupied and occupied spaces) as pleaded in its particulars of claim was justified. It, therefore, found that the respondent

successfully proved its claim.

8. Aggrieved by this order the appellants approached this Court, hence the appeal. The appeal is centered on the misdirection of the

trial Court when according to the appellants, it:

a) proceeded with the action in the absence of the appellants’ witnesses, despite an application for postponement;

b) granted a judgment that could not have been competently granted in favour of the respondent because the particulars of claim did not disclose any cause of action based on a breach of contract;

c) adjudicated the matter when the claim was stillborn because the respondent had not at that time served a notice in terms of Section 3 of the Institution of Legal Proceedings Against Certain Organs of the State Act, 40 of 2004.

9. For a proper analysis of these grounds, it is important to set out at the onset the legal principles that govern these grounds.

10. A Court entertaining an application for a postponement exercises a discretion. It is a discretion in the narrow sense. The appellant

needs to establish that the Magistrate exercised the power conferred upon him capriciously or upon a wrong principle or did not bring his unbiased judgment to bear on the questions or did not act for substantial reasons[1].

11. The Supreme Court of Appeal (SCA) has once more restated the basic tenet of our law that the law constrains a Court to decide only the issues that the parties raised for a decision[2]. It borrowed the following passage from Wallis JA in Fischer and Another v Ramahlele[3] wherein he stated:

“Turning then to the nature of civil litigation in our adversarial system it is for the parties, either in the pleadings or affidavits, which serve the function of both pleadings and evidence, to set out and define the nature of their dispute and it is for the court to adjudicate upon those issues. That is so even where the dispute involves an issue pertaining to the basic human rights guaranteed by our Constitution, for “it is impermissible for a party to rely on a constitutional complaint that was not pleaded”. There

are cases where the parties may expand those issues by the way in which they conduct the proceedings. There may also be instances

where the court may mero motu raise a question of law that emerges fully from the evidence and is necessary for the decision of the case. That is subject to the proviso that no prejudice will be caused to any party by its being decided. Beyond that it is for the parties to identify the dispute and for the court to determine that dispute and that dispute alone.” [own Emphasis added]

12. A Court of Appeal will only interfere and change a trial Court’s finding if the Court`s conclusion is convinced to be wrong. The probabilities need to favour the appellant for the appellant to succeed with the Appeal.[4]

13. The object of pleadings is to define issues; and parties will be kept strictly to their pleading where any departure would cause prejudice or prevent full enquiry. But within those limits the court has wide discretion. For pleadings are made for the court, not the court for pleadings. Where a party has every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instant, there is no justification for interference by an Appellate Tribunal merely because the pleadings of the opponent has not been as explicit as might have been.[5] It is the duty of the court to determine what the real issues between the parties are, and provided no possible prejudice can be caused to either party, to decide the case on the real issues.[6]

14. It must be emphasized from the beginning of the analysis of the grounds of appeal that this is an appeal, which stems from an action that proceeded by way of a trial before the trial Court. Simply put, evidence was led in addition to the pleadings that were before the trial Court.

15. Before us, the appellants relied heavily on clause 6.2 of the original lease agreement to advance an argument that the agreement

was that the appellants will only be liable for payment of rental and parking bays for occupied accommodation spaces for a particular

period, which shall also be phased in. The submission made in this regard is that the appellants paid for the occupied accommodation

space, and cannot be held liable for the unoccupied ones in terms of this clause, therefore they are not in default of payment.

16. A further bow was added to this argument that, the respondent is instead claiming for unoccupied accommodation spaces as specifically stated in the invoices attached to the particulars of claim and the evidence adduced during the trial, which was not the case that was pleaded by it in the particulars of claim. According to the appellants, the judgment ought not to have been granted in favour

of the respondent despite the fact that they failed to file an exception before the trial started. This is so, the argument continued, because a party is not permitted to plead a case, and during the trial give evidence that is not supported by the pleadings. In essence, the appellants argued that the evidence of the respondent contradicts the terms of the agreement they are relying on including the case they pleaded, therefore, the trial Court should have dismissed the respondent’s action as there was no cause of action pleaded and even proven at the trial.

17. All the arguments relied upon to sustain this ground flounders for several reasons. First, it is surprising why the issue relating

to the pleadings is brought up at this juncture. The issue that the pleadings or particulars of claim do not disclose a cause of action is normally brought by way of an exception before the pleadings are closed. This, the appellant failed to do. Unfortunately, we are way beyond the stage where an exception could be raised. What baffles one`s mind is if the appellants are bona fide in raising this issue, why was it not properly raised at an opportune time and instead, chose to plead to the particulars of claims which according to them did not disclose a cause of action? The appellant does not offer any plausible reason for this except to say that they still can raise this issue on appeal. They also had an opportunity to request further particulars before the pleadings closed if the pleadings were vague to their understanding but missed this opportunity as well.

18. In my view, and as it will become clearer later in the judgment, the reason is simply that the particulars of claim as couched by the respondent disclosed a cause of action hence they were able to formulate a plea. Unfortunately, the formulation of a plea creates an impression that they understood the cause of action whereupon the claim was based; that the particulars of claim were clear to them; and they knew exactly the case they were to meet, hence they articulated their plea as follows: “The defendants specifically deny that they have are in default with payment of the rental as alleged.”

19. In an about turn and as depicted in their condonation application, the appellants seemingly want to renege from this plea as they belatedly want to blame the preparation by their legal representatives then for the anomaly they purport to decry. They now claim that “their plea was filed hastily without proper consultation and evaluation of the matter thereby filing a bare denial.” The reasoning demonstrates that this explanation is an afterthought to try and salvage their case through the back door. Instead of assisting the appellants’ case, it exacerbates it as the explanation buttresses the fact that the appellants were in a state of amnesia for a considerable time because they lost another opportunity of addressing this lackadaisical conduct when they once again indicated in the pre-trial minutes which were drawn in preparation for the actual trial that they were ready to proceed. It is clear that even if one can try to lean a little bit backward to accommodate this explanation, which this Court is not prepared to do, the appellants are clearly the masters of their own demise. But there are stronger reasons why their arguments cannot succeed as will be seen hereunder.

20. Leaving the issue of the proper procedure having not been followed by the appellants aside, one need not be a rocket scientist to fathom that the respondent relies on a breach of contract for its claim. The terms of the original lease agreement were pleaded in paragraph 5 of the particulars of claims. The changes that were later brought by the addendum were introduced by way of an amendment.[7] It is of utmost importance to note that this addendum was initially referred to as Annexure “B” in paragraph 7 of the original particulars of claims before the amendments to the pleadings were introduced.[8] The averments that the addendum was concluded by the parties were again made in paragraph 4.2 of the amended particulars of claims. It is also clear that the amount claimed only starts in November 2019, a date that coincides with the date of commencement of the lease agreement amended by the addendum. The computation of the amount in default was dealt with in paragraph 6 of the particulars of claims in a scheduled format depicting what amount is owed and for which period, the total thereof being at the end. From the Schedule of payment that was made in paragraph 6, it is clear that the total amount claimed is equal to the one depicted in Annexure “C” as referred to in paragraph 7 of the amended particulars of claim, wherein invoices are attached and which in particular, indicates in clear uncertain terms that the amount claimed is for ‘unoccupied’ spaces of the 9000 square meters of the rented accommodation.

21. All of the above fly against the arguments of the appellants that the particulars of claim of the respondent did not disclose a breach of contract; when it was breached; how the amount owed was computed; and whether the amount claimed was for occupied or unoccupied accommodation spaces.

22. It is trite law that pleadings must be read as a whole.[9] The Courts look at the allegations made by the plaintiff and any document upon which his/her cause of action may be based before a conclusion is reached that a claim is bad in law. One other tenet of the law relating to pleadings is that pleadings must contain facta probanda. In McKenzie v Farmers’ Co-operative Meat Industries Ltd the Appellate Division defined facta probanda as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact(being facta probantia), but every fact which is necessary to be proved.[10] Facta probantia on the other hand, are facts that are related to the facta probanda and are necessary to prove the facta probanda. Put differently, facta probantia are different pieces of evidence that must be led in order to prove the facta probanda. It is trite that only facta probanda must be pleaded. Facta probantia are led as evidence during trial.[11]

23. The interest of justice nevertheless requires that the particulars of claim be examined carefully to identify the factual allegations

relevant to each cause of action. Particulars of claim must be construed properly, even generously if ambiguous, as with exceptions,[12] to identify the material factual allegations advanced in respect of a particular cause of action. Very recently Gorven JA aptly summarised this principle in the following manner in Jugwanath v Mobile Telephone:[13]

“Put another way, judgment could be granted if the averments in those particulars of claim were proved.”

24. It is against this backdrop that I find that the assessment of the trial Court regarding the nature of the respondent's claims, the

essentialia of those claims, and the allegations made in the pleadings including the evidence adduced by the respondent’s

witness was sound. The claim as brought by the respondent on every interpretation and properly construed approach is that the respondent

claimed payment of a certain amount of money against the appellants, which amount was due in terms of the original agreement as amended by the addendum for the rental of unoccupied accommodation spaces. The appellants' case from its plea and during its initial address to Court was that it should be absolved from the claim as payment has already been effected. This was the case the trial Court needed to adjudicate upon. No other case or issue was raised by the parties that needed to be adjudicated upon. More on this later in the judgment.

25. It is also clear from the record of the proceeding that the trial Court dealt with this issue of no cause of action which has mutated in its form. In this appeal, as already stated above, arguments were raised that the evidence adduced by the respondent contradicts the plea of the respondent(plaintiff) and clause 6.2 of the original lease agreement. According to the appellants, the result of this contradiction is that the respondent’s claim did not at all disclose a cause of action and this anomaly could also not be cured by the evidence adduced during the trial, whereupon, the trial Court could not have arrived to a finding it made. This brings me to deal with this second bow added to this ground of appeal as indicated in para 16 of this judgment.

26. The contentions stem from the fact that it emerged during cross-examination, that the legal representative of the appellants ventured into a line of questioning that did not conform to its plea. He introduced clause 6.2 of the original agreement, which was not pleaded, which according to him talks about the phasing in of occupation of the building and the appellants being only liable to

pay for occupied accommodation spaces only. Despite the legal representative of the appellants in this appeal latching on to this

issue with so much vigor, I am not convinced that his arguments hold any water for the reasons that will follow hereunder.

27. It is best to quote the relevant portion of this clause as it is the centerpiece of the whole appeal.It reads: “Occupation of the building shall be done in phases and the Department shall only be responsible for payment of rental and parking bays occupied for a particular period.”

28. When it was so raised, the trial Court allowed the parties to thoroughly ventilate this issue through arguments from both legal representatives of the parties and through the evidence of the respondent’s witness as he was still under oath. The assumption

put to the witness by the legal representative of the appellants before the trial Court was that the appellants were not supposed to have paid for unoccupied spaces according to this clause. The respondent’s witness on the other hand stuck onto his gun

throughout the trial that the respondent’s claim on the pleadings was for unoccupied spaces. I do not find fault in the trial Court for having accepted the uncontroverted evidence elicited during cross-examination that when the addendum was signed, the building had been completed, which is why the addendum is silent on phasing in and on occupied or unoccupied spaces. Further that the clause, according to the evidence, was included in the original agreement at the time the building was still to be completed in phases.

29. I must pause here to indicate that, as correctly found by the trial Court, the case for the appellants was (before the trial Court) and now before us, that indeed they paid for occupied spaces only. Therefore, the approach and the summary adopted by the trial Court that the respondent’s claim is for ‘the difference between the occupied and unoccupied spaces’ did not come as a surprise because as already indicated above, the fact that parties concluded an addendum was already addressed in the pleadings.[14] In addition to this, the averments that the building had already been concluded when the addendum was signed; that this is a reason why the addendum was introduced; that the phasing in was included in the original lease because the building was still yet to be completed; that the addendum superseded the original agreement; are all in my view facta probantia which were adduced as evidence before the trial Court of which the appellants failed to answer. The facta probantia are normally fact-based. The purpose of the matter going to trial is exactly for this purpose. Sight should also not be lost that, this issue was not only thoroughly ventilated during the proceeding, but a ruling regarding the introduction of this issue not pleaded by the appellants during cross-examination was also made in favour of the respondent by the trial Court.

30. In identifying the material issues relevant to the contractual claim of the respondent, reference must be had not only to the issues pleaded, but also to issues arising from the pleadings as widened by evidence.[15] A correct reflection of the pleadings read as a whole together with the Annexures, invoices including the evidence adduced to support them, reveals that there is no contradiction bemoaned by the appellants. In actual fact, it was the agreement to pay rent for a certain period for 9000 square meters that was an issue.

31. Even if one can lean a bit backward to try and accommodate the fact that the respondent’s evidence seems to contradict the

literal grammatical expression of the words as contained in clause 6.2 of the original agreement, the addendum catered for this kind of contingencies.The addendum provides for the payment for the full extension of the property. Of particular importance is that clause 4.2 thereof further provides that the addendum shall take preference in the event of any contradiction between its term and those of the original lease agreement. The latter part of this term, unfortunately, puts the final nail to the coffin of the appellants’ case as this clause, unfortunately, fortifies the averments made by the witness of the respondent that the addendum supersedes the original agreement. The record of the proceedings reveals that the trial Court was alive to all of these.

32. There is one further reason that was brought up by the legal representative of the respondent during the trial which deserves to be mentioned. It reveals that this alleged contradiction can be resolved through a proper interpretation of the contract or agreement between the parties. A grammatical, literal, and contextual interpretation of clause 6.2 which talks about the phasing in of occupation, reveals that this clause is not even relevant in this matter. The reasons are first, as argued by the legal representative of the respondent before the trial Court, that if one has regard to the original lease agreement in particular clause 2 thereof dealing with the definitions and interpretation of the words in the lease agreement, the word “Lessee” refers to the Mpumalanga Provincial Government, who is the first appellant in this matter,[16] who was represented by the Deputy Director General of Public Infrastructure of Department of Public Works, Roads, and Transport

during the signing of the agreement, the second appellant in this matter. It is important to indicate at this juncture that the

“Department” referred to in that clause is not the “Lessee” according to this agreement. Instead, the reference to the word “Department” is only found in the definition of the word “occupant”[17]. The definition of the word occupant further defers to item 13 of Schedule 1. I pause here to indicate that in my view reference to item 13 in that definition is a typing error because when you go to schedule 1[18], one finds the word “occupant” under item 12 instead of item 13, which comprises of the bank details of the Lesser. I therefore can safely conclude that the parties intended to refer to item 12. In item 12, the word ‘occupant’ clarifies who it relates to. It says “occupant” is the: “Department of Public Works, Roads and Transport and Other Departments”.

33. A further clause that assists in clarifying the word occupant and in particular strengthens this interpretation of the agreement is clause 18.7.3 which amongst others provides “………it being an explicit provision of this agreement that the Lessee may substitute one occupant with another at its own discretion taking into consideration the preferences (if any) of the Lesser.”[19] The upshot of all of the above tallies firstly with the argument of the legal representative of the respondent that clause 6.2 (phasing in of occupation and reference to unoccupied spaces) in this clause affects only the relationship of the Provincial Government and the Department(s).[20]

34. As indicated by the legal representative of the respondent during the trial, this means that the simple and businesslike logic that stems from the way the terms were couched is that the departments, who are described as the occupants are responsible for paying the appellants( Provincial Government) as long as they occupy the building. The appellants( Provincial Government) will then pay

the respondent as they are the Lessee. An important caveat is that when the addendum was signed, the evidence reveals that the lessee promised full occupation. As to why other offices remain unoccupied, as correctly indicated by the trial Court in its judgment towards the end of paragraph 5 that ‘the respondent(the plaintiff) cannot give an explanation for that,’ is in my view a correct approach, because it is the responsibility of the Provincial Government, the appellants, that the accommodation is occupied. This tallies with the four corners of the provision of clause 6.2 as it deals with the occupation of the building by the “Department”. Of importance is that it does not take away the fact that the lease agreement concluded with the Provincial Government was for the entire 9000 square meters.

35. The interpretation also tallies with the evidence of the witness of the respondent to the effect that, when the addendum was signed, the appellants(Provincial Government and not the Department(s) agreed to the fact that it will be able to occupy the 9000 square meters space by the date the addendum was signed, but that the appellants only paid for only the occupied the spaces, a point which they admitted, and not for the whole 9000 square meters agreed upon, that is why their claim is for the difference between the occupied and the unoccupied. This is the reason why their claim is for the unoccupied as depicted in the invoices. In my view, the

taking of occupation solely rested between the appellants and the Department(s) and has nothing to do with the respondent’s

entitlement to the rental of the full extent of the rented premises. The interpretation also tallies with the evidence that on signing the addendum, the building had been completed and the full extent was available for occupation.

36. Contrary to what the appellants’ legal representative argued that the invoices made the case of the respondent as pleaded and proved worse or contradicts it as they refer to unoccupied space, I find that the invoices indeed clarified and supported the claim the respondent pleaded and relied upon in this matter. Maybe it is worth repeating the fact that the party that signed the lease agreement is not the “Department” or “Departments”, but the Provincial Government, which is the party before the court. Quite rightly so, in my view, the “occupant” who is the Department or Departments are not a party to this litigation. It appears that the legal representative of the appellants in this appeal fundamentally misconstrued the pleaded case including the evidence led by the respondent before the trial Court. In this matter, it is not a case of an issue not having pleaded. An argument that it was inelegantly pleaded might be the correct approach, but the issue was pleaded.

37. To finally lay this issue to rest, I think it prudent to add that even if an argument can be raised that this issue only emerged during cross-examination and not pleaded, the decision in Van Mentz v Provident Assurance Corporation of Africa[21] is an authority relevant to that situation and would have still advanced the case of the respondent in this matter. It was said

therein that if the real issue emerges during the course of the trial, it will be proper to treat the issues as enlarged where this can be done without prejudice to the party against whom the enlargement is to be used. But in our case, this is not the case

either, even if one can say that this was the case, my view is that given the manner in which the trial was conducted, there can be no prejudice to the appellants.

38. There is therefore nothing in the record of the proceeding that points towards the fact that the conclusion the trial Court reached was clearly wrong and no other court could have arrived at. The finding that the respondent was able to prove its claim against

the appellants on a balance of probabilities cannot be faulted.

39. The ground relating to the refusal to grant a postponement of the matter was not seriously pursued by the appellants. I am of the

view that this is a correct stance by the appellants, as the question of whether the matter should be postponed or not involves an element of discretion on the part of the trial Court. There are no cogent reasons advance why this Court should find that it was capriciously exercised.

40. The ground relating to the notice in terms of section 3 was not raised in the appellants’ plea nor during the trial. The trial Court was therefore not requested to adjudicate on this issue. The appellants’ submission is that they are still entitled to raise it on appeal as it is a legal point and further that, the trial Court should have raised it mero- motu.

41. This argument can summarily be dismissed by reference to the case of Fischer and Another v Ramahlele already quoted above. I find the legal principle espoused by Wallis JA as he then was in that matter to the effect that “a court can raise a question of law mero- motu that emerges from the evidence and is necessary for the decision of the case provided that there is no prejudice suffered by the other party and further that, beyond that, it is for the parties to identify the dispute, and for the court to determine that dispute and that dispute alone” apposite in this matter. This ground of appeal was not one of the disputes raised, it did not emerge from the evidence before the trial Court nor does it seem to have been necessary for the trial Court to decide on it. It must be noted that this is an issue which in terms of our law should have been properly raised before trial by way of a special plea. It

appears the appellant missed so many opportunities including this one to properly prepare and present their case, and now belated so, attempts to resuscitate it in an appeal. This is another demonstration that the case of the appellants keeps on mutating in

different forms as they continue to litigate. They cannot, unfortunately, be allowed to do that at the moment.

42. I now return to the issue of condonation. Nothing much needs to be said because the appellants' legal representative conceded that

if they are not good on merits, then the condonation application cannot succeed. This concession is correctly made given the finding

that I made above and nothing more needs to be said.

43. Costs should for obvious reasons follow the results. The respondent urged this Court to award costs on a punitive order of scale as according to him the total disregard of the Rules and procedure by the appellants warrants it. He requested that such costs should include the costs occasioned by the removal of the matter from the roll before the previous Court of Appeal. I am of the view that the reasons advanced by the respondents are not sufficient enough to warrant a punitive order of costs and furthermore, it will not be in the interest of justice that the appellant be mulcted with a punitive order of costs.

44. Consequently, the following order is made:

a) The appeal is dismissed with costs. Such costs to include the costs consequent upon the removal of the matter if any before the previous Court of Appeal.

A M KGOELE

JUDGE OF THE HIGH COURT

MPUMALANGA DIVISION MBOMBELA

I agree

B MASHILE

JUDGE OF THE HIGH COURT

APPEARANCES

FOR THE APPELLANT: WR MOKARE SC INSTRUCTED BY: THE STATE ATTORNEY FOR THE RESPONDENT: ADV HERMANN FOURIE INSTRUCTED BY: CHRISTO SMITH ATTORNEYS INC DATE HEARD: 17 MARCH 2023 JUDGMENT DATE: 10 JULY 2023

[1] Monong and Associates (PTy) Ltd v City of Cape – Town and Another 2011 (2) SA 90 (SCA) at page 92.

[2] Magistrate Commission and Others v Lawrence Case No 388/2020 [2021] ZASCA 165 (2 December 2021);2022(4) SA 107 (SCA) paragraph 78 and 79 .

[3] Fischer and another v Ramahlele & Others [2014] ZASCA 88; 2014 (4) SA 614 paragraph 13.

[4] Fourie v First National Bank Ltd and Another(548/2012)[2012] ZASCA 119; 2013 (1) 204 SCA, Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A).

[5] Shill v Milner 1937 AD 101 at 105.

[6] Robinson v Randfontein Estate Gold Mining Co.Ltd 1925 AD 173 at page 198.

[7] Amended particulars of claim dated 2 July 2022 which were not included in the appeal bundle but was submitted to this court by the respondent through email dated 8 March 2023.

[8] Paginated page 85 of the appeal record.

[9] Vermeulen V Gease Valley Investments (Pty)Ltd [2001] 3 All SA 350 (A) paragraph 7

[10] Mc Kenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at p 23

[11] JSS Industrial Coatings CC v Inyatsi Consruction(South Africa) Pty Ltd [2013]ZAGPJHC 209 paragraphs 6-7.

[12] First National Bank of southern Africa Ltd v Perry No and Others 2001 (3) SA 960 (SCA) paragraph 36.

[13] Jugwanath V mobile Telephone 2021 (4) All SA 346 paragraph 4.

[14] From paginated page 50-54 of the appeal record.

[15] Shill v Milner above at page 105

[16] Paginated page 89

[17] See paginated page 89

[18] See paginated page 109 “occupant” under para 12

[19] See paginated page 104

[20] See paginated page 63 and page 64

[21] Van Mentz v Provident Assurance Corporation of Africa Ltd 1961(1) SA 115(A) at 122