Avenge (Africa) Limited (formerly Grinaker- LTA Limited) and Others v Dube Tradeport (Association Incorporated Under Section 21) and Others (1482/2007)  ZAKZHC 80 (26 September 2008)
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IN THE HIGH COURT OF SOUTH AFRICA
NATAL PROVINCIAL DIVISION
AVENGE (AFRICA) LIMITED
(formerly GRINAKER-LTA LIMITED) First Applicant
BELISAMA PROPERTIES (PTY) LTD Second Applicant
BLUECREST INVESTMENTS 101 (PTY) LTD Third Applicant
BRIDOON TRADE AND INVEST 170 (PTY) LTD Fourth Applicant
CATWALK INVESTMENTS 616 (PTY) LTD Fifth Applicant
CRESCENDO MANAGEMENT SERVICES (PTY) LTD Sixth Applicant
GOLDEN DIVIDENT 285 (PTY) LTD Seventh Applicant
MALTOY INVESTMENTS (PTY) LTD Eighth Applicant
QACIA VENTURES (PTY) LTD Ninth Applicant
SIYAZI INVESTMENT HOLDINGS (PTY) LTD Tenth Applicant
SOUTHERN PALACE INVESTMENTS 353 (PTY) LTD Eleventh Applicant
UNDER THE BOARDWALK PROPERTIES 5 (PTY) LTD Twelfth Applicant
UNICUS BUSINESS SOLUTION (PTY) LTD Thirteenth Applicant
DUBE TRADEPORT (ASSOCIATION INCORPORATED
UNDER SECTION 21) First Respondent
THE GOVENRMENT OF THE PROVINCE OF
KWAZULU NATAL Second Respondent
AIRPORTS COMPANY SOUTH AFRICA LIMITED Third Respondent
GROUP FIVE CONSTRUCTION (PTY) LIMITED Fourth Respondent
WBHO LIMITED Fifth Respondent
MVELAPHANDA HOLDINGS Sixth Respondent
ILEMBE CONSORTIUM Seventh Respondent
 This is an interlocutory application to compel the production of certain documents in review proceedings instituted by the applicants.
 The applicants which comprise the INDIZA GROUP bade for construction and maintenance of the King Shaka International airport. So did the seventh respondent whose members are the fourth, fifth and sixth respondents.
 The first respondent conceptualised the project comprising the construction of the King Shaka International Airport coupled with a trade zone, support zone and an agricultural zone and other ancillary developments [“the project”]. The second respondent as sole shareholder in the first respondent established and capitalized the first respondent as a trading entity to undertake the development of the project. The first respondent instituted the bidding process for the project.
 The third respondent was to undertake the development of the airport and was to be the party to contract via a single Engineering Procurement and Construction [EPC] contract designated by the first respondent as a design and construction contract, and a separate maintenance service contract for the project with the successful bidder as principal for the airport and as agent for the first respondent and the joint venture comprising the first and third respondents [ACSA].
The bidding process
 A request for pre-qualification document was issued by the first respondent. Parties who wished to qualify as bidders were invited to respond to the document. The bidders would be pre-qualified by the first respondent on the basis of their profile. The pre-qualified bidders were invited to submit bids to the first respondent in response to a document issued by the first respondent, a request for proposals [RFP] with a view to being considered for appointment as a ‘preferred bidder’. Bids which complied with the RFP would be forwarded for detailed evaluation by an evaluation committee. The first respondent would then appoint the preferred bidder and a reserve bidder, following the evaluation of the bids. The preferred bidder would enter into negotiations with the object of concluding a contract in respect of the project; and the contract would be concluded between the successful bidder and the third respondent. The applicants and the seventh respondent were appointed as pre-qualified bidders. They subsequently submitted bids in response to the RFP with a view to being considered as the preferred bidder. What was required of them in that regard was provided for in terms of Clause 6.1 of the RFP as follows:
‘As a minimum requirement, bidders shall submit a compliant bid that substantially and materially meets the essential minimum requirements. [“EMR”]’
Such requirements as stated under Clause 6.3 of the RFP consist of –
‘(a) essential minimum technical requirements;
essential minimum B-BBEE requirements;
essential minimum commercial requirements; and
essential minimum legal requirements.’
The seventh respondent was appointed as the preferred bidder. The applicants’ bid was declared to be non- compliant on the basis that it did not comply with the essential minimum requirements.
Review proceedings and notice of application to compel
 The applicants, subsequent to the appointment of the seventh respondent as the preferred bidder launched a review application, and on 30 August 2007 caused a notice in terms of Rule 53(1) to be served on respondents which requires the respondents to deliver as part of the record of the proceedings sought to be reviewed various documents itemised on such notice. In a letter of 19 October 2007 attorneys acting for the seventh respondent expressed preparedness to provide applicants with portions of the bid documents which relate to the performance guarantee and the design of the land side access as issues complained of as being non-compliant in the bid of the seventh respondent.
The applicants’ contention is that the issues are not confined to the performance guarantee and the design of the land side access and, in reply referred to other issues, and persisted that the complete bid document be furnished.
In terms of paragraph 10 of the applicants’ founding affidavit by Clive Dominic Elliot Rumsey (“Rumsey”) the documents to be provided by the first, second and third respondents are those represented in the notice’s
alternatively to paragraph 2.1, the
documents in paragraph 2.1 (sic) to 2.6 [Evidently ‘2.1’ should read ‘2.2’];
paragraph 4.3 and 4.4;
The applicants abandoned paragraph 1.
 As to their respective stances on the application, the first respondent has filed an affidavit purportedly to elucidate the issues from the perspective of a party responsible for the design and implementation of the bidding process and to present evidence not otherwise available to the court, and to state that it abides the decision of the court save with regard to the costs relief sought against it; and it in turn seeks a costs order against the applicants jointly and severally. The second respondent aligns itself with the views expressed by both the first and third respondents; the third respondent likewise abides the decision of the court and does not seek an order for costs against the applicants; the seventh respondent opposes the application mainly on the basis that –
“all the documents which are relevant to the review have been supplied to the applicants”
The seventh respondent refers to documents already supplied as reflected on annexure “GRI”. It also contends that the bid document contains confidential information which relates to the seventh respondent’s confidential intellectual property and trade secrets with regard to its suppliers. It also identifies various documents as being irrelevant.
The first respondent in its letter dated 28 September 2007 agreed to make certain documents available subject to any claim that the seventh respondent may have and which it may assert for confidentiality. The first respondent’s letter of 19 October 2007 expresses preparedness “to provide [applicants] with the portions of the bid documents” which related to the issue of “the performance guarantee and the design of the land side access.”
 The issues brought by applicants on review are whether –
‘8.1 there was procedurally unfair action in that –
8.1.1 the first respondent advised the seventh respondent of the alleged shortcomings in the applicants’ bid and invited it to make representations as to whether the first respondent should exercise its discretion to exclude the applicants from the tender process;
8.1.2 the seventh respondent’s bid was non-compliant in respect of the following:
220.127.116.11 the performance bond and liquidated damages requirements;
18.104.22.168 technical requirements, including passenger terminal design;
22.214.171.124 changes made to the EPC contract terms;
8.1.3 the price and net present value of the seventh respondent’s bid was substantially higher than that of the applicants’ bid.
8.2 The applicants’ bid did not substantially and materially comply with the Essential Minimum Requirements in regard to:
8.2.1 the B-BBEE requirement in that a 50% procurement spend was offered as against a 70% requirement;
8.2.2 an EPC Performance Guarantee of 5% was offered while a 10% guarantee was required;
8.2.3 the requirement that changes could not be made to the Fidic EPC/Turnkey contract terms which would result in a substantial and material deviation and change of risk allocation was not complied with;
8.2.4 the requirements of unforeseen difficulties (clause 4.12, Extensions of time (clause 8.4) and unfulfilled obligations (clause 126.96.36.199) were amended contrary to the essential minimum requirements.’
In what follows I deal with the various claims of the applicants as set out in various paragraphs of Rumsey’s affidavit:
 Hereunder the applicants sought an order for delivery of
“the third respondent’s tender regulations”
As earlier stated the request for these documents was abandoned.
 The applicants seek an order for delivery of –
“the complete bid document submitted by the seventh respondent.”
It is contended by the applicants that the record dispatched to the registrar is not complete, and that there are further documents; they require those documents to be produced.
It is apparently those documents of which the complete bid document is a constituent component which are required. Alternative thereto, specific parts of the seventh respondent’s bid document are sought.
 In its answering affidavit deposed to by Rohan Persad (“Persad”) the first respondent expresses
“no objection to disclosing the whole of the Ilembe’s bid documents and allowing them to form part of the record, save for any claim that Ilembe may have and which it may assert for confidentiality.”
Re-iterating the seventh respondent’s right to confidentiality in respect of the documents concerned, the first respondent, in its answering affidavit, deposed to by Persad also stated:
“In those circumstances the first respondent is in the position of a stakeholder and must give Ilembe the opportunity to put its case with regard to confidentiality before the court if it chooses to do so.”
In a further re-iteration of confidentiality in respect of the seventh respondent’s bid document the first respondent stated:
“It is by reason of Ilembe’s claim of confidentiality that the first respondent abides the court’s decision with regard to the Ilembe bid documents but will not give them up as part of the record unless ordered to do so by the court or unless Ilembe consents thereto.”
The foregoing indicates the first respondent’s expressed preparedness to deliver the bid documents. From the foregoing the clear impression created is that the sole reason for withholding delivery of the documents is the claim to confidentiality which the seventh respondent may assert in respect of parts or all of the documents. In dealing with each of the paragraphs of the applicants’ notice seriatim in the answering affidavit, insofar as paragraph 2.1 is concerned, the foregoing is affirmed to be its attitude. It may be mentioned here that the first respondent in paragraph 29 of its answering affidavit correctly states that the documents sought under paragraphs which follow up to paragraph 2.6 in fact resort under paragraph 2.1.
 The second respondent aligns itself with the view expressed by the first and the third respondents and has stated its reliance on the affidavits delivered by the first and third respondents on all issues in this matter. In its response in respect of paragraph 2.1 the second respondent states that the documents are in first respondent’s possession,
The third respondent has no objection to allowing them forming part of the record subject to any claim that the seventh respondent may assert that all or some of such documents are confidential.
 Although the seventh respondent acknowledges that the applicants seek an order against the first, second and third respondents only, it has stated its intervention to be by reason of the fact that most of the documents referred to in the applicants’ notice in terms of Rule 53(1) formed part of the seventh respondent’s bid documents and on that basis it opposes the application to compel delivery of the documents. Adverting to paragraph 2.1 the seventh respondent “(denies) that the whole of the document is relevant to the review ….”.
 The seventh respondent’s view of this matter appears to overlook that if relevance is the criterion, it must be applied in respect of two issues taken on review; one relates to the decision of 24 November 2006 to exclude the applicants from the process on the basis that he did not comply with the EMR; the other relates to the decision of 15 December 2006 which concerns the appointment of the seventh respondent as the preferred bidder, bearing in mind that the basis of the applicants’ complaint is that the first respondent was guilty of procedural unfairness action in the manner in which the first respondent dealt with the seventh respondent’s compliance in regard to the performance guarantee and concept design, land side access and passenger terminal. So there are two issues. The corollary to this is that when it is considered whether such document as is sought is or not to be made available, regard must be had to the issue of its relevance in either of the two decisions. In regard to the issue of the EMR the seventh respondent’s bid is also relevant particularly in the light of it being common cause that both the applicants’ and the seventh respondent’s bid documents were found to be non-compliant to the EMR, and, in that regard, also relevant to the applicants’ contention that the seventh respondent’s non-compliant bid was nevertheless not rejected whereas the applicants’ non-compliant bid was rejected.
 The seventh respondent avers that –
“not everything contained in the seventh respondent’s bid document is relevant to its appointment as the preferred bidder.”
I am not unmindful of the case of Goodman and Others v Druker, N.O. and another1 where it was held:
“as the respondents had denied relevancy, …the court was not entitled to go behind that statement unless reasonably satisfied of the incorrectness of that denial.”
This dictum does not legitimise bald assertions of irrelevancy. If it were sufficient to make bald assertions that documents sought to be produced are irrelevant, without more, the purpose of Rule 53 would be defeated and its provisions would be rendered nugatory.
The seventh respondent does not state satisfactorily why parts of the document are irrelevant as a basis for stating that “not everything in the seventh respondent’s bid document is relevant to its appointment as the preferred bidder.” It begs the question why and for what purpose anything not relevant for the mind of the decision maker and to the quest for appointment as the preferred bidder would have been submitted. As submitted on behalf of the applicants the complete bid document is relevant as the preferred bidder could not have been validly appointed without consideration of its whole bid document.
I am quite satisfied that the respondent’s denial in regard to relevancy is incorrect, and that it cannot be relied on.
 Cognizance is also taken of the following dictum in the case of Muller and Another v the Master and Others2
“(T)he premise that it is the whole record that has to be furnished whether or not it is relevant to the application for review is without warrant.”
This, I do not understand as prohibiting the furnishing of the whole record in appropriate circumstances.
 It is evident that the whole bid document has not been made available to the applicants either on grounds of relevancy or that it contains confidential information of the seventh respondent or that the requisite parts of the record had already been supplied. To the extent that the application is opposed on the basis that parts of the record have been supplied, acquiescence to such records being made available to the applicants is conveyed. There may, of course, be duplication in the process if such parts of the record are again supplied. That is of no moment if it is borne in mind that in September 2007 already, the seventh respondent’s bid documents had been compiled by the first respondent in apparent readiness for delivery to the applicants. In the letter dated 28 September 2007 the first respondent’s attorneys, in respect of the documents sought under paragraph 2.1, stated:
“We have obtained a copy of the seventh respondent’s bid document. This is a lengthy document comprising 19 separate files/bundles. We are presently copying these for you. These copies will be completed during the week.”
The first respondent then indicated an intention to withhold delivery of the record pending sanction by the seventh respondent or an order of court.
 What remains to be considered is the issue of confidentiality as asserted by the seventh respondent in respect of the documents sought. I do not know why the seventh respondent has not explained as to why any of the documents are confidential to remove the character of a vague bald statement in respect of his assertion in that regard. This, it appears to me, is not unlike what obtained in the case of Afrisun Mpumalanga (Pty) Ltd v Kunene N.O. and Others3 where, in the absence of sufficient detail, the court was not satisfied that there were trade secrets to be protected. In case this was no more than a sheer inability on the part of the respondent in an honest attempt to present its case in this regard, it may ensure fairness to address the issue of confidentiality by an appropriate order of court to the extent that some protection might need to be accorded in respect of documents under paragraph 2.1 or any other document to be furnished.
Paragraphs 2.2 to 2.6
 Although the applicants treated paragraphs 2.2 to 2.6 as alternative to the relief claimed under paragraph 2.1 it is common cause that they form part of the bid documents submitted by the seventh respondent as part of the documents sought in terms of paragraph 2.1 and I accordingly treat the claim for relief thereunder in what follows hereunder as part of paragraph 2.1.
The applicants seek under paragraph –
“2.2 the seventh respondent’s complete technical bid submission including the ‘concept design, land side access, passenger terminal’ complete with drawings, reports and calculations;
2.3 the bid documentation evidencing the seventh respondent’s offer to furnish security on the basis of a reducing balance performance guarantee and a cap of R750m on liability;
2.4 all documents in regard to the price submitted by the seventh respondent for the EPC and maintenance components and the “nett present value” calculation by the first to third respondents or their advisors, of the applicant’s and seventh respondent’s respect bids;
2.5 the seventh respondent’s B-BBEE offer including the contracting structure and documentation evidencing the seventh respondent’s BEE partners’ equity shareholding in whichever “vehicle” or “vehicles” the fourth, fifth, sixth and seventh respondents intent to use for purposes of performing the work making up the construction of the King Shaka International Airport;
2.6 the complete “marked up” Particular Conditions which the seventh respondent submitted with its bid.”
The seventh respondent states that the “relevant documents pertaining to paragraphs 2.2, 2.3 and 2.6 of the notice have been supplied to the applicants” and, on that basis, acquiescence to such documents being made available to the applicant is conveyed. The first respondent has prepared copies thereof.
As regards paragraph 2.4 of the notice, the seventh respondent states:
“The documents relating to the seventh respondent’s price are not relevant to the review … as it played no part in its appointment as preferred bidder.”
The reasons for this statement may be that at some stage in the process the first respondent issued a directive that the price would not be a consideration in relation to the RFP and compliance with the EMR. Of course both parties did bid on price and the applicants contend that their price was lower than the seventh respondent’s price and accordingly plead unfairness in that regard. The seventh respondent would be in no position to contend that the price and the net present value of the bids played no role in the appointment of the preferred bidder as he obviously did not participate in the adjudication process. Clearly, what is to be said on this issue is that it is inconceivable that a preferred bidder could be appointed in a multibillion or multimillion rand contract with total disregard to its bid’s price.
Paragraph 2.5 of the notice requires no treatment in this judgment as both the seventh respondent and the applicants are ad idem that the issues in the documents under that paragraph are not relevant, there being no complaint raised there-anent.
 For the foregoing reasons there is, in my view, no warrant for withholding delivery of the record sought under paragraph 2.1 of the applicants’ notice, and contentions to the contrary must fail.
Hereunder the applicants seek to be furnished with
“the technical evaluation report of the applicant and the seventh respondent’s bids undertaken by the first to third respondents, or any of their appointed specialist local or international technical advisors.”
The first respondent’s answer to this claim is that there is no technical evaluation report on the applicants’ bid as the applicants’ bid was excluded at the stage of the EMR, and that there is such a report on the seventh respondent’s bid. It states that it has no objection to disclosing the report save insofar as it contains matters in respect of which the seventh respondent may wish to claim confidentiality. It abides the decision of the court subject to such claim of the seventh respondent.
Although the applicants argue that it is “highly unlikely that no technical report was prepared in respect of the applicants’ bid prior to the decision to exclude the applicants,” the applicants accept that if no technical report exists on the applicants’ bid, the first respondent cannot be ordered to furnish a document which does not exist.
 In asserting their claim to the delivery of the technical evaluation report on the seventh respondent’s bid the applicants point to the fact that according to the first respondent such report was reviewed, discussed and adopted by the evaluation committee on 28 November 2006, which predates the appointment of the seventh respondent as the preferred bidder on 15 December 2006.
 It is worthy of note that the first respondent issues contradictory attitudes on the disclosure of the record, one expressing no objection to such disclosure while in the same breath opposing such disclosure of the report as falling outside the ambit of the record, a contention which is at variance with the averments in paragraph 15 of its answering affidavit where it correctly states that
“the end date to documents forming part of the record must be the date at which the appointment [as preferred bidder] was made”
In paragraph 33 of the first respondent’s affidavit deposed to by Persad the evaluation report is stated as forming part of bundle “D” of the existing Rule 53 record. For purposes of determining whether or not the documents under paragraph 3.4 form part of the record, I think it is wrong to hold that if the technical report was generated after exclusion of the applicants but before the appointment of the seventh respondent as the preferred bidder, the report falls outside the ambit of the record. The fact that the process was broken into various phases does not detract from it being a single process set to culminate in the appointment of the preferred bidder followed by negotiations by the preferred bidder for conclusion and finally the conclusion of the contract. These proceedings are confined to the process up to the stage of the appointment of the preferred bidder as the review application was launched before the contract was awarded. Each of the various phases of the process constituted an essential and unseverable part of the process.
 In regard to the technical report the seventh respondent states that
“the applicant is only entitled to the evaluation report of the seventh respondent’s bid insofar as it relates to the complaints in the founding affidavit in the review application.”
No confidentiality is claimed. The technical evaluation report falls within the ambit of the record proper to furnish as a product of an indispensable process by which the seventh respondent’s complete bid was evaluated for appointment as the preferred bidder.
 Hereunder the applicants seek to be furnished with –
“correspondence and other documents exchanged between the first to the third respondents and the seventh respondent subsequent to the date upon which the seventh respondent’s bid was submitted relating to the seventh respondent’s offered performance guarantee and cap liability of R70m and “concept design, land side access, passenger terminal,” the price tendered by the seventh respondent for the EPC and maintenance contracts and any variations to the conditions and specifications set out in the bid document submitted by the seventh respondent.”
According to the first respondent the documents which predate the appointment of the seventh respondent as the preferred bidder, have, as part of the record been furnished to the applicants and the applicants have not made out a case for documents generated thereafter to be furnished. To this the applicants state that the applicants are entitled to such documents which are part of the record up to 15 December 2006. In this the applicants are correct; such documents form part of the record and are relevant. The seventh respondent’s contention to the contrary must fail. The applicants’ contention that they [applicants] are entitled to such further documents in terms of Rule 35(11) whenever they were generated, I shall deal with in the treatment of paragraph 4.4.
 The applicants also seek to be furnished with –
“all documents evidencing details of changes made by the seventh respondent subsequent to the award of the contract having been made to it in regard to the design including the ‘concept design, land side access, passenger terminal’: submitted by it as part of its bid”
The applicants seek such documents “within the context of the first respondent stating that those provisions in the bid were inadequate,”
 I find no basis for the applicants’ entitlement in this regard. When the review application was launched, although the seventh respondent had then been appointed as the preferred bidder, the contract referred to now in the relief sought had not yet been concluded. The applicants cannot demand documents which did not exist when the review application was launched. I find no warrant for the exercise of my discretion under Rule 35(11) in regard to any relief sought in respect of the period subsequent to the appointment of the seventh respondent as the preferred bidder on 15 December 2006. The applicants’ claim for relief under this paragraph of the notice must accordingly fail.
 Hereunder the applicants seek to be furnished with –
“the portions of the signed contract entered into between the first and/or second and/or third respondents with the seventh respondent reflecting the EPC and maintenance contract price, the performance guarantee, the total liability of the seventh respondent and the “concept design, land side access, passenger terminal and any material variation or deviations from the conditions and specifications set out in the bid of the seventh respondent.”
 For similar reasons as are furnished under paragraph  of this judgment the applicants claim for relief under paragraph  must fail.
 It will be apparent from the order I shall make that the applicants have achieved substantial success in this matter. The first respondent states that it abides the decision of the court. It would be fair to say that it blew hot and cold and vacillated between a neutral and an adversarial stance in which it vigorously opposed the application. The second respondent expressed its alignment with the views expressed by both the second and third respondents on the application. Its stance is certainly not non-adversarial given its support for the views of the first respondent on the application. The third respondent abided the decision of the court; and the seventh respondent’s stance was clearly adversarial. There is no reason why the costs should not follow the event.
 The following order is made:
[i] The first respondent is to furnish the following documents to the applicants within fifteen (15) days of the grant of this order:
(a) the complete bid document by the seventh respondent save for the B-BBEE component of the seventh respondent’s bid document.”
(b) the technical report of the seventh respondent’s bid undertaken by the first respondent or any of their appointed specialist local or international or technical advisors;
(c) correspondence and other documents exchanged between the first to third respondents and the seventh respondent subsequent to the date upon which the seventh respondent’s bid was submitted relating to the seventh respondent’s offered performance guarantee and a cap of liability of R750m and “concept design. land side access, passenger terminal”, and the price tendered by the seventh respondent for the Engineering Procurement and Construction contract and any variations to the conditions and specifications set out on the bid documents submitted by the seventh respondent.
[ii] (a) On the copy of each submitted document or in a separate
document the seventh respondent shall mark or record that part of the submitted document which it considers to be confidential;
(b) Save for the purpose of consulting with counsel or an independent expert, the applicants’ attorney shall not disclose to any other party, including the applicants, any part of the submitted documents in respect of which the seventh respondent claims confidentiality.
(c) Should the applicants dispute any claim to confidentiality and, in the event of the parties being unable to resolve such dispute, the applicants shall, on notice to the first and seventh respondents and any person or party having an interest therein, have the right to apply to a Judge in Chambers for a ruling on the issue.
(d) Should circumstances require, any party having an interest therein shall have the right to apply to a Judge in Chambers for an amendment to paragraphs [ii] (a), (b) and (c) of this order.
(e) The first, second and seventh respondents are ordered to pay the costs of this application.
Date of Hearing: 25 June 2008
Date of Judgment: 26 September 2008
Counsel for the applicants’: Adv BW Burman SC with Adv LJ Morrison
Instructed by: Routledge Modise Attorneys
c/o Stowell and Company
Counsel for the first respondent: Adv P Olsen SC
Instructed by: PKX Attorneys
Counsel for the second respondent: Adv R B G Choudree SC
Instructed by: The State Attorney
c/o Cajee Setsubi Chetty
Counsel for the third respondent: Adv G R Thatcher
Instructed by: Shepstone and Wylie
c/o Tomlinson Mnguni James
Counsel for the fourth, fifth, sixth and
seventh respondent: Adv J A Ploos van Amstel SC
Instructed by: Garlicke and Bousfield Incorporated
c/o Venn Nemeth and Hart
1 1961(4) SA 131 (W) at 137F
2 1991(2) SA 217 (N)
3 1999(2) SA 599(T) at 626I-J