National Energy Regulator of South Africa and Another v Senwes Limited and Another (3995/2020) [2024] ZAFSHC 173 (30 May 2024)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO

Case number: 3995/2020

In the matter between:

NATIONAL ENERGY REGULATOR OF SOUTH AFRICA

First Applicant

TSWELOPELE LOCAL MUNICIPALITY

Second Applicant

and

SENWES LIMITED

First Respondent

MEC FOR COOPERATIVE GOVERNANCE

AND TRADITIONAL AFFAIRS: FREE STATE PROVINCE Second Respondent

CORAM:

LOUBSER, J

HEARD ON:

26 FEBRUARY 2024

JUDGEMENT BY: LOUBSER, J

DELIVERED ON: 30 May 2024

[1] The First Applicant made application for condonation for the late filing of its answering affidavit in review proceedings launched earlier by the First Respondent in this Division. This application for condonation is opposed by the First Respondent. Later on, the Second Applicant also made application for condonation for the late delivery of its own answering affidavit in the review proceedings, which condonation application is likewise opposed by the First Respondent. The Third Respondent did not participate in the two condonation applications.

[2] For ease of reference, the First Applicant will be referred to as "NERSA", The Second Applicant will be referred to as the "Municipality", and the First Respondent will be referred to as "Senwes".

[3] Initially, NERSA, held the view that the review application should be heard simultaneously with the condonation application to save the Court's time and to save the legal costs of attending Court on two separate occasions. On the other hand, Senwes insisted that the condonation application be heard first and separately, because it was loath to incur the costs of consultation and preparing a replying affidavit in the review application before the admissibility of the answering affidavits of NERSA and the Municipality has been determined in the condonation applications.

[4] Since this dispute was causing an inordinate delay in the hearing of the review application, the matter became referred for case management by a Judge to expedite the further conduct of the matter to finality. The case management Judge then found that the condonation application was ripe for hearing, whilst the review application was not. To ensure that the review application also became ripe for hearing as soon as possible, it was ordered that the condonation application be determined first and separately from the review application. Hence the present application before the Court.

Factual Background

[5] On 19 October 2020 Senwes filed its review application. In terms of the Notice of Motion, it sought the review and setting aside of a resolution passed by the Municipality on 30 June 2020 to impose a monthly basic charge in respect of electricity provision to the Bultfontein grain silo of Senwes in the amount of R68 719.72 per month in respect of the period 1 July 2020 to 30 June 2021. Senwes further sought the review and setting aside of the approval granted by NERSA during 2020 to the Municipality to impose the monthly basic charge referred to. Senwes also sought ancillary relief in the form of a declarator to the effect that the basic electricity charge payable in respect of its silo, shall be that applicable to electricity consumers falling in the category of "bulk industrial" as defined in the Municipality's tariff policy, alternatively that the determination of the basic electricity charge be re-submitted to the Municipality and NERSA for re-determination.

[6] Further hereto, Senwes sought an order that the Municipality shall reimburse to it the difference between the basic electricity charge applicable to the category "bulk industrial", alternatively the basic charge determined upon re-submission thereof, and the basic electricity charge actually paid by Senwes, calculated from 11 July 2020.

[7] The Municipality and NERSA were also directed in the Notice of Motion to submit all records and documents related to the impugned resolution to the Registrar within 15 days, and to deliver their notice of opposition to the application within 15 days of service of the application. They were further required to deliver their opposing papers within 30 days after Senwes had filed a supplementary affidavit and/or amended Notice of Motion upon receipt of the records and documents sought.

[8] As things turned out, this Court was later called upon by Senwes to make an order compelling the Municipality, and to a certain extent NERSA, to submit all the records and documents it had sought in its Notice of Motion. This Court accordingly made such an order on 30 September 2021. Pursuant to the Court order, both the Respondents then complied and filed their records and documents by 3 November 2021. Senwes then proceeded to file its supplementary affidavit on 7 July 2022. In the supplementary affidavit it is mentioned that attempts were meanwhile made by Senwes to resolve the dispute with the Municipality, and to come to an amicable resolution, after Senwes had received the respective records from the Respondents. However, the negotiations with the Municipality have broken down and have come to an end. To this supplementary affidavit, Senwes attached a report received from Motla Consulting Engineers, setting out a more detailed proposal of how the Municipality had to calculate the basic charge.

[9] On 23 August 2022 NERSA presented Senwes with a notice in terms of Rule 35(12) and (14), requiring it to produce for inspection certain documents and/or tape recordings for the purpose of pleading. This request also included all the source documents relied on by Motla Consulting Engineers in preparing the more detailed proposal of how the Municipality had to calculate the basic charge. Senwes provided the required documents for inspection on 26 September 2022.

[10] The answering affidavit of NERSA in the review application was then filed on 4 May 2023, together with the present application for condonation for the late filing of the answering affidavit. Here it needs mentioning that NERSA, who was unaware of the negotiations, had got wind by 6 April 2022 that Senwes and the Municipality were in negotiations to settle the review application out of Court, and it made enquiries in this regard. Two months later, on 6 June 2022, Senwes notified NERSA by e-mail that the negotiations with the Municipality have come to an end and that an amicable resolution could not be found.

[11] On 23 May 2023 the Municipality followed suit and it also filed its answering affidavit to the application for a review. This was followed by a substantive application for condonation by the Municipality on 8 September 2023. In terms of the Notice of Motion, it sought condonation "insofar as it may be necessary" for the late institution of the condonation application, and secondly, "insofar as it may be necessary", for condonation for the late delivery of the Municipality's answering affidavit to the review application.

Condonation affidavits

[12] As already mentioned, NERSA filed its answering affidavit in the review application on 4 May 2023. In this affidavit NERSA refers to the reasons why condonation for the late filing of the affidavit should be granted. Those reasons boil down to the following: The application for review was launched on 19 October 2020 by Senwes. On 15 September 2021 Senwes filed an application to compel NERSA and the Municipality to file their respective records. NERSA then filed its records on 29 September 2021, it says. On 4 October 2021 this Court granted an order compelling the Municipality to file its record, which it then did on 3 November 2021.

[13] In March 2022 Senwes and the Municipality entered into negotiations with a view of settling the review application out of Court. These settlement negotiations suspended the progression of the review proceedings. On 6 June 2022 the attorneys of Senwes communicated the collapse of these negotiations to NERSA. Senwes then filed its supplementary affidavit on 7 July 2022. On 24 August 2022 NERSA filed a notice in terms of Rule 35 (12) and (14), requiring Senwes to produce certain specified documentation which form the basis of the case of Senwes. On 26 September 2022 Senwes served its answer to this notice. Meanwhile, NERSA had sought an expert opinion from Acacia Economics. Because of the delay in the response of Senwes to the Rule 35 (12) and (14) notice, the Acacia report became only finalised by the end of 2022.

[14] NERSA goes on to say that the review matter is complex, and that the process of finalising the answering affidavit has taken longer because of the issues involved, the consultations with the experts as well as the delay in the provision of crucial information by Senwes. There is a prospect of success for NERSA in the review, while there is no prejudice to Senwes because of the late filing. It is in fact NERSA that stands to suffer prejudice should condonation not be granted. If condonation is not granted, NERSA will be denied an opportunity to adequately respond to the issues raised by Senwes in the review proceedings, it concludes.

[15] On 10 May 2023 Senwes filed its notice of intention to oppose the application for condonation of NERSA. This was followed by the answering of Senwes to the condonation application, which was filed on 26 May 2023. In this answering affidavit, Senwes stated the following: Condonation must be applied for as soon as possible and delays in applying for condonation are not acceptable. An applicant for condonation must set out fully and cogently the explanation for the delay, which explanation must cover the entire period of the delay, and must be reasonable and acceptable. The question of prejudice to an applicant for the condonation does not even arise if he is unable to demonstrate an acceptable reason for the delay. In the absence of an acceptable explanation for the late application, the prospects of success in the main proceedings do not even fall to be considered.

[16] Senwes further provided a chronology of the proceedings and emphasized the fact that its supplementary founding affidavit was filed on 7 July 2022, meaning that the dies for the filing of the answering affidavit of NERSA had already expired on 19 Augustus 2022. However, the Acacia report of NERSA was only finalised on 17 November 2022, while the answering affidavit was sent electronically to the attorneys of Senwes on 5 May 2023. The answering affidavit of NERSA was consequently filed 178 days out of time. NERSA dismally failed to provide acceptable reasons for such excessive delay and leaves long periods of time unexplained, with special reference to the period between 17 November 2022, when the Acacia report was finalised, and 3 May 2023, when the answering affidavit had been deposed to. This represents a period of almost 6 months. This delay of 6 months had occurred after NERSA consulted their experts and obtained their report dated 17 November 2022. The consultation with experts could therefore not have delayed the answering affidavit.

[17] Further to this, NERSA offered no explanation for its failure to apply for condonation timeously. For this reason, the prospects of success on the merits do not even fall to be considered by the Court, Senwes says. Likewise, the issue of prejudice to NERSA should condonation be refused, also does not arise for consideration, because of the lack of a plausible and acceptable explanation for the excessive delay in filing the answering affidavit. Senwes itself will be prejudiced if condonation is granted, because it will then have to consult with experts to prepare a replying affidavit in response to the answering affidavit. This will incur further costs for Senwes.

[18] Lastly, Senwes points out that the negotiations with the Municipality could not have any bearing whatsoever on the late filing of the answering affidavit. This is so, because the period for the filing of an answering affidavit had only commenced on 8 July 2022, that is the day following the filing of the supplementary founding affidavit by Senwes. This date came after the negotiations terminated, Senwes says. If condonation is refused, NERSA would suffer no prejudice at all, because if the relief is granted as sought in the review application, it will affect only the Municipality.

[19] NERSA filed a replying affidavit on 6 July 2023, denying that Senwes would suffer any prejudice should condonation for the late filing be granted. Senwes was going to incur the costs of consulting with experts and the filing of a replying affidavit in any event, irrespective of whether NERSA's answering affidavit was filed timeously or not, it says. It further denies that there was not a sufficient explanation for the failure to file the answering affidavit between 17th November 2022 to the 3rd of May 2023. In this period, there was a pending request by NERSA for the source documents from the expert of Senwes, and there was also ongoing requests by NERSA for a referral of the matter for case management, which requests were opposed by Senwes. Interestingly enough, Senwes did not raise the request of NERSA for outstanding documents and how it impacted on the delay in finalising the answering affidavit.

[20] After the negotiations between Senwes and the Municipality fell through, NERSA had to consult different stakeholders in order to reconsider the matter. This also took time. Further in its replying affidavit NERSA deals at some length with its prospects of success in the review application, and concludes that the prospects of success and the lack of prejudice on the part of Senwes tilt the case in favour of granting the application for condonation.

[21] The Municipality filed its answering affidavit in the review application on 23 May 2023. In that affidavit it indicated that it would seek condonation for the late filing thereof. The application for condonation was only filed on 8 September 2023. In that application the Municipality contends that the application only became necessary when this Court issued the case management directive on 23 August 2023. In that directive Senwes was ordered to file its replying affidavit in the review application within 20 days should the condonation application of NERSA succeed.

[22] The Municipality further says that following the breakdown in negotiations on 11 April 2022, Senwes proceeded to file its supplementary founding affidavit, also out of time. It contends that Senwes has not been prejudiced by the Municipality's delay, and that it is in the interests of justice that condonation for the late delivery of the answering affidavit be granted. The public interest will also be better served if the answering affidavit of the Municipality is allowed. It is further pointed out that the impugned decision of the Municipality to adopt certain electricity tariffs, was approved by NERSA. Since the review application was launched by Senwes, it has refused to pay its municipal accounts and it is now in arrears in a substantial sum, the Municipality says. This refusal of Senwes has clear adverse implications for the fiscus.

[23] In response to this application of the Municipality, Senwes only filed a notice of its intention to oppose the application for condonation. It is stated in this notice that Senwes "shall rely on legal argument only" for its opposition to the condonation application. Consequently, no answering affidavit was filed by Senwes in the application.

[24] At the hearing of the applications, counsel representing Senwes emphasized the ordinary principles underlying applications for condonation, and submitted that those principles favour the dismissal of the applications. The respective counsel for NERSA and the Municipality, on the other hand, focused on the interests of justice and the unreasonable opposition to the applications displayed by Senwes.

[25] Now whenever condonation is sought, the Court has a discretion, to be exercised judicially, on a consideration of the facts of each case, and in essence it is a matter of fairness to both sides. In this process the Court will consider factors such as the efforts made towards compliance with the Rules, the degree of non-compliance (the length of the delay), the explanation therefor, the prospects of success, and the importance of the case. Such factors are not individually decisive, but must be weighed one against the other.[1]

[26] Thus, a slight delay and a good explanation for the delay may help to compensate for prospects of success which are not strong. Or the importance of the matter and strong prospects of success may tend to compensate for a long delay. At the same time, the respondent's interest in finality must not be overlooked.[2]

[27] In Grootboom v National Prosecuting Authority[3] the Constitutional Court held that the explanation must be reasonable enough to excuse the default. In Mulaudzi v Old Mutual Life Assurance Co (South Africa) Ltd and Others[4] the Supreme Court of Appeal held that what calls for an explanation is not only the delay in the timeous prosecution of the appeal, but also the delay in seeking condonation. An appellant should, whenever he realizes that he has not complied with a rule of the court, apply for condonation without delay. In Van Wyk v Unitas Hospital and Another[5] the Constitutional Court held that the explanation must be a full explanation for the delay, and it must cover the entire period of the delay. Moreover, the explanation given must be reasonable.

[28] It has also been stated authoritatively that the court will grant condonation when it is in the interests of justice to do so.[6] Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case.[7] In the Grootboom-case referred to, the Court stated that the concept of "interests of justice" is so elastic that it is not capable of precise definition. It includes the nature of the relief sought, the extent and the cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation of the delay, the importance of the issue to be raised in the intended proceedings, and the prospects of success. The ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors but it is not necessarily limited to those above. The particular circumstances of each case will determine which of these factors are relevant.[8]

[29] These are then the legal principles that govern the question of whether condonation should be granted or not. During argument,

counsel for NERSA and the Municipality made frequent reference to the recent judgement by Leech, AJ in Adcorp Fulfilment Services (Pty) Ltd v Prodigy Human Capital Architects (Pty) Ltd[9] to advance the point that the reasonableness of the opposition to an application for an indulgence should also be determined by the Court. A proper reading of that judgement, however, will show that the reasonableness of the opposition will only have a bearing on the costs to be awarded eventually.

Application of NERSA for Condonation

[30] NERSA's application appears to be marked by unique circumstances in which both NERSA and Senwes played a significant role. These circumstances caused the inordinate delay in the progress of the review application. In the review application, NERSA is not only joined as an interested party, but specific relief is sought against it. That relief, in terms of the Notice of Motion, is that the approval granted by NERSA to the Municipality to impose the impugned tariff policy on the levying of fees in respect of electricity provision, be reviewed and set aside. NERSA was also called upon to file with the Registrar within 15 days the records of its decision of approval. In terms of Rule 53 (4), Senwes could then file a supplementary affidavit within 10 days after receipt of the record from the Registrar. As will appear hereunder, these timeframes became clouded, to put it softly, by the events that

then followed.

[31] Since the record of NERSA's decision was not forthcoming, Senwes filed an application almost 12 months later in terms of Rule 30 A to compel the filing thereof. NERSA then filed the record on 29 September 2021. Instead of filing its supplementary affidavit within the next 10 days as far as the record of NERSA is concerned, Senwes entered into negotiations with the Municipality during March 2022 in order to settle the review application without the knowledge of NERSA. Up to this point, it is clear that both NERSA and Senwes had adopted an attitude of not complying with the provisions of Rule 53 and rather to take their own time in the process of the review application. The negotiations practically stalled the further proceedings in terms of the Rules.

[32] This attitude is confirmed by the fact that on 2 June 2022 NERSA requested from Senwes the source documents of the Metia report that it first relied on when it launched the review application. This happened approximately a year and a half after the application was filed. Apparently, NERSA needed those documents in order to arrange their own expert report and subsequent answering affidavit. Some four days later, on 6 June 2022, NERSA received the news that negotiations between Senwes and the Municipality had terminated unsuccessfully. Senwes then filed its supplementary affidavit on 7 July 2022.

[33] If this filing on 7 July 2022 was to indicate the view of Senwes that compliance with the Rules was now to resume again, it is clear that Senwes itself failed to comply with the Rules in this very first step itself. The filing of the supplementary affidavit should have taken place within 10 days after receipt of the record, and the filing thereof was therefore late by twelve days. Notwithstanding, Senwes never applied for condonation for the late filing, and it can therefore be safely assumed that Senwes did not regard itself bound by the Rules any more at that stage. This becomes more glaring if regard is had to the fact that, according to the Municipality, the negotiations had already fallen through on 11 April 2022.

[34] On 1 August 2022 NERSA again requested the documents referred to above, and on 24 August 2022 it filed a notice in terms of Rule 35 (12) and (14) requiring Senwes to produce certain documentation. Senwes simply ignored this request and failed to respond to this notice. On 21 September 2022 NERSA filed a Rule 30 A notice informing Senwes that it would apply to Court for an order compelling Senwes to provide the required documentation should it fail to do so. On 26 September 2022 Senwes served its answer to the Rule 30 A notice.

[35] On 24 October 2022 NERSA proposed that the parties jointly agree to the case management of the review application by the Court in order to expedite the exchange of outstanding information between the parties. Although the Municipality was not opposed to this proposal, Senwes indicated on 17 November 2022 that it did not agree with the proposal. On the same day, an expert economist report by Acacia Economics on the comparisons and contentions made in the Metia report of Senwes, became available to NERSA. NERSA had requested this economist report earlier to assist it in the preparation of their answering affidavit in the review application.

[36] Unfortunately, as mentioned earlier, this answering affidavit of NERSA was only filed on 4 May 2023, together with the application for condonation for the late filing thereof. It speaks for itself that the delay from 17 November 2022 was excessive. The explanation of NERSA for this long delay is not convincing. It says that, since the matter is complex, the finalizing of the answering affidavit took longer because of the issues involved and the consultations with the experts. This explanation lacks detail and is extremely vague. At the same time, it is clear that by then both the parties had already abandoned the timeframes provided for in the Rules. Viewed objectively, Senwes had played a major role in the prior delays in the matter, and in the ignorance of the Rules throughout the whole process. In this sense it is strange that Senwes now suddenly insist on compliance with the Rules, while they themselves had shown little respect for the Rules and the speedy resolution of the review application throughout the whole process.

[37] The decision of this Court must be fair to both sides. It cannot be denied that NERSA does have prospects of success in the review application, since its stance is supported by an expert report. The matter is also of public importance, because the higher tariffs under scrutiny will have an effect downwards on consumers. Most importantly, should condonation not be granted, the Court of review will be deprived of all the information it needs to adjudicate the matter satisfactorily, while Senwes will benefit unfairly from a one-sided presentation of its case, which is of considerable public importance. There can be no doubt, in the unique circumstances of this application, that it is in the interests of justice to grant NERSA the condonation it seeks, despite the excessive delay in question and the unsatisfactory explanation therefor. Senwes can suffer no prejudice as a result. After all, the ultimate determination of what is in the interests of justice, must reflect due regard to all the relevant factors, and the particular circumstances of each case will determine which of these factors are relevant.

Application of the Municipality for Condonation

[38] Much of what has been set out above, also applies to the application of the Municipality and will not be repeated. The focus will rather fall on the conduct of the Municipality itself. It has already been mentioned that the Municipality filed its answering affidavit in the review application on 23 May 2023. In that affidavit it indicated its intention to seek condonation for the late filing of the answering affidavit, insofar as this may be required. It explains that the review application engages complex and technical issues which required lengthy consultations with experts. It also refers to the negotiations it had with Senwes to seek a settlement in the review application, which negotiations broke down on 11 April 2022. Senwes thereafter filed its supplementary affidavit far out of time, thereby confirming that the timelines imposed by Rule 53 had long ceased to apply, the Municipality says. Moreover, Senwes did not respond to the Municipality's answering affidavit at all.

[39] The Municipality also refers to the efforts made towards the end of 2022 to have the application case managed, which efforts came to naught. In the intervening period, however, it engaged the services of counsel for the purposes of preparing its answering affidavit, which was prepared during November 2022. During or about that time the appointment of the then acting municipal manager came to an end, and a new acting municipal manager had to take over the many tasks of his office, including the issue of the pending review application, it says. On 4 May 2023, the Municipality received NERSA's answering affidavit, and the new acting municipal manager then imposed upon the Municipality's legal manager that it would be appropriate to deliver an answering affidavit for the Municipality as well. For such purposes urgent consultations with counsel were held on 16 May 2023, and the draft answering affidavit settled. This explanation for the delay appears to be reasonable and acceptable, although the whole period of the delay is not covered satisfactorily.

[40] The formal condonation application was only filed on 8 September 2023. In the founding affidavit, the Municipality contends that the filing of the condonation application only became necessary after this Court handed down the case management order on 23 August 2023. Up to that date, the Municipality held the view that the condonation application would be pursued before the review Court. The case management order, however, put an end to that expectation, the Municipality says. It is for this reason that the application was filed so late. Viewed objectively, this explanation appears to be reasonable and acceptable.

[41] Senwes also did not file any opposing affidavits in the Municipality's formal condonation application. It only filed a notice of intention to oppose, stating that it would rely on legal argument only.

[42] In the circumstances, condonation should be granted for the late filing of the Municipality's answering affidavit, and for the same reasons pointed out in the condonation application of NERSA above. As in the case of NERSA, the timelines relating to the filing of papers in terms of Rule 53 had long ceased to apply when an answering affidavit had to be filed, and it is consequently difficult to comprehend how it can be alleged by Senwes that the answering affidavit should have been filed before a specified date. In addition, the Municipality has a reasonable prospect of success in the review application. There can also not be any prejudice to Senwes when condonation is granted. Above all, it is in the interest of justice to grant condonation to the Municipality.

Costs

[43] Only the question of costs remains. In circumstances where the timeframes no longer applied and where it had become imperative that the review application be determined as soon as possible, it was unfortunate that Senwes had opposed the condonation applications. Having done so, it had caused a further unnecessary delay in the review proceedings.

[44] On the other hand, it cannot be said that the opposition was unreasonable. Senwes probably had reason to believe that it would be successful because of the long time it took the two applicants to file their answering affidavits, the explanations therefor­ and the long time it took the Municipality to file the formal condonation application. This Court takes note of the view that the awarding of costs is a matter of fairness to both sides.[10] Also, that as a general rule, the applicant for an indulgence pays the costs of the application as well as the costs of any reasonable opposition thereto.[11] This will be reflected in the costs order the Court will make. In my view, in the unique circumstances of this case, punitive costs would not be just and equitable.

[23] In the premises, I make the following order:

1. The late filing of the First Applicant's answering affidavit is condoned.

2. The First Applicant shall pay the costs of its application, including the costs of the opposition thereto.

3. The late filing of the Second Applicant's answering affidavit is condoned.

4. The Second Applicant shall pay the costs of its application, including the costs of the opposition thereto.

5. The First Respondent shall file its replying affidavit to the two Applicants' answering affidavits within 20 Court days of receipt of this Order.

P.J LOUBSER, J

For the First Applicant:

Adv. P. Managa

Instructed by:

Mchunu Attorneys, Rosebank

c/o Poswa Inc, Bloemfontein

For the Second Applicant:

Adv. AS. Ayayee

Instructed by:

Majavu Attorneys, Kroonstad

c/o Rampai Attorneys, Bloemfontein

For the First Respondent:

Adv. M. G. Hitge

Instructed by:

Meyer, Van Sittert and Kropman, Klerksdorp

c/o Phatshoane Henney Attorneys, Bloemfontein

/roosthuizen

[1] S v Yusuf 1968 (2) SA 52 (AD) pp 53 - 54

[2] Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 D -F

[3] 2014 (2) SA 68 (CC) par. 23

[4] 2017 (6) SA 90 (SCA) par. 26

[5] [2007] ZACC 24; 2008 (2) SA 472 (CC) par. 22

[6] Grootboom v National Prosecuting Authority, ibid, par. 22; Van Wyk v Unitas Hospital and Another, ibid, par.20

[7] Van Wyk v Unitas Hospital and Another, ibid, par.20

[8] Grootboom v National Prosecuting Authority, ibid, par. 22

[9] ZAGP JHC 579 (26 May 2023)

[10] Ward v Salzer 1973 SA 701 (A) at 706 G

[11] HDS Construction {Pty) Ltd v Wait 1979 (2) SA 298 {E) at 302 B-C