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Last Updated: 8 June 2005
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO:
238/04
Reportable
In the matter between
TRANSNET LIMITED
Appellant
and
LEON RUBENSTEIN
Respondent
Coram: MPATI, ZULMAN, MTHIYANE, CLOETE, LEWIS JJA
Heard: 13 May
2005
Delivered: 1 Junie 2005
Summary: Where
parties to a contract agree that it is terminable on the happening of a
specified future event, a tacit term that it
is terminable on reasonable notice
cannot, in the absence of evidence as to the parties’ intention, and the
precise formulation
of the term, be read into the contract.
JUDGMENT
LEWIS JA
[1] The principal issue in this appeal, and indeed the only one
argued before this court, is whether a tacit term should be read into
a contract
allowing either of the parties to terminate it by giving reasonable notice. The
contract itself is not silent on the question
of its duration. It states that it
will come to an end on the happening of a future event – privatisation of
the ‘Blue
Train’, one of the businesses of the appellant, Transnet
Limited.
[2] The respondent, Mr Leon Rubenstein, brought an urgent
application in the Johannesburg High Court for various orders relating to
a
contract between him and Transnet, entitling him to the exclusive right to
operate a jewellery boutique on two trains, known as
the Blue Train, operated by
Transnet. The relief sought was a declaratory order that the contract was still
in existence and that
Rubenstein was entitled to operate the boutique until
privatisation of the Blue Train; and that Transnet be interdicted from
purporting
to cancel the contract and from denying him access to the boutique.
Alternatively, if the court were to find that the contract was
terminable on
reasonable notice, Rubenstein asked for an order that such notice be not less
than six months.
[3] The court of first instance decided that the contract
was terminable on the giving of six months’ notice, but ordered Transnet
to pay only 50 per cent of Rubenstein’s costs. An appeal to the full court
(the High Court, Johannesburg), against both the
order that the contract was
terminable on notice, and against the costs order, succeeded. It is against the
decision of the full
court that this appeal lies with special leave of this
court.
[4] It is common cause that the express terms of the contract are set
out in a letter written to Rubenstein on 14 July 1999 by the
operations manager
of the Blue Train, and which is annexed to the founding affidavit. The letter
deals inter alia with stock control,
receipt of payments for items sold,
accommodation on the Trains for Rubenstein and his staff, shop facilities and
the determination
of a management fee. The clause in issue, paragraph (j) of the
letter, states that the management fee will ‘form the basis
for the
contract; the duration of which is to extend to the final date of
privatization’. (My emphasis.)
[5] It is also not disputed that
Rubenstein ran the jewellery business on the Blue Train successfully, making a
profit not only for
himself but also for Transnet. He discovered, however, in
April 2001 that Transnet had published invitations to tender for the operation
of the jewellery boutique. He demanded that the invitations be withdrawn. His
demand was ignored and he accordingly launched an urgent
application for an
interdict prohibiting Transnet from proceeding with any tender process. A rule
nisi was granted calling on Transnet
to show cause why the interdict should not
be made final.
[6] Before any final interdict could be granted the parties
embarked on negotiations to settle the litigation, and there was talk
about
entering into a new agreement. The rule was discharged, and Transnet was ordered
to pay the costs. Rubenstein continued to
run the boutique, and the parties
continued to talk about a more comprehensive contract. A draft produced by
Transnet in October
2001 was considered unacceptable by Rubenstein. Transnet
threatened Rubenstein that if no new contract were concluded by 31 January
2002,
it would give two months’ notice of termination. It gave such notice on 14
February 2002, advising that Rubenstein’s
‘services’ would be
terminated with effect from 15 April 2002. That prompted the urgent application
currently under consideration.
[7] Transnet, as I have said, does not deny
the existence or the terms of the contract alleged by Rubenstein. But in an
affidavit
filed in support of the answering affidavit, a Ms Borotho, the
executive manager of the division (Luxrail) which runs the Blue Train,
it was
alleged that the parties had ‘accepted’ that privatization was due
to take place by the end of 1999. When it became
clear that that would not
happen ‘the parties agreed to regulate the appointment and services
provided by [Rubenstein] in terms
of extensions’. In fact there were
several internal memoranda of Transnet, annexed to Borotho’s affidavit,
that indicated
that as far as Transnet was concerned the contract required
extension. But this was never communicated to Rubenstein and before this
court
it was not contended that the contract had come to an end, nor that
Rubenstein‘s business or services continued by virtue
of any
extension.
[8] Ponnan J, in the court of first instance, came to the
conclusion that the contract was terminable on notice, but that the period
of
notice given was inadequate. He made an order declaring that the notice of two
months was ‘unreasonably short’ and
that Transnet ‘was obliged
to give the applicant six months’ notice of cancellation . . . such notice
to operate with
retrospective effect to 14 February 2002’. The contract
would thus terminate with effect from 15 August 2002. He ordered Transnet
to pay
only 50 per cent of Rubenstein’s costs, censuring the latter as being
responsible for the urgency of the application.
[9] The learned judge of
first instance reasoned as follows in regard to reading the contract subject to
the right of the parties
to terminate on reasonable notice:
‘On a
conspectus of the factual matrix before me, privatization of the Blue Train has
become an uncertain future event. It is
quite clear that the perception of the
parties at the time that they contracted with each other was that privatization
would occur
shortly thereafter. A period of almost three years has since
elapsed. That the contract would endure for as long as it already has,
could not
have been the common intention of the parties. It is thus reasonable to infer
that they did not intend to bind themselves
indefinitely, but rather
contemplated termination by either party on reasonable notice. To hold otherwise
would be to permanently
bind them to each other and the contract when all they
contracted for was a temporary arrangement.’
[10] The appeal to the
full court succeeded, as I have said. Gildenhuys J (Schwartzman and Willis JJ
concurring) held that the implication
of a term that the contract was terminable
on reasonable notice was contrary to the express provision of the contract as to
its duration.
It was conceded by counsel for Transnet that the learned judge of
first instance should not have substituted his view of what constituted
reasonable notice for that of the parties, and thus no reliance was placed on
the right to six months’ notice.
[11] The court a quo, in concluding
that the contract was not terminable on notice, distinguished the case from
Trident Sales (Pty) Ltd v AH Pillman & Son (Pty)
Ltd[1] and Putco Ltd v TV and
Radio Guarantee Co (Pty) Ltd.[2]
In both those cases it was held that where the circumstances of an agreement
show that all that the parties intended was a temporary
arrangement, but the
contract was silent as to duration, it is reasonable to infer that they
contemplated termination on reasonable
notice.
[12] That was the approach too
of this court in Amalgamated Beverage Industries Ltd v Rond Vista
Wholesalers,[3] a decision
reported after the judgment of the full court was handed down. In Amalgamated
Beverage the court was asked to determine only whether reasonable notice had
been given, the respondent having conceded that although the
contract was silent
as to duration, it could be terminated on reasonable notice. Streicher JA
said[4] that whether a contract which
is silent on its duration is terminable on reasonable notice is a matter of
construction:
‘The question is whether a tacit term to that effect
should by implication be read into the contract. That would be the case
if the
common intention of the parties at the time when they concluded the contract,
having regard to the express terms of the contract
and the surrounding
circumstances, was such that, had they applied their minds to the question
whether the contract could be so terminated,
they would have agreed that it
could.’
[13] This case, on the other hand, is not silent on duration:
the contract terminates on the happening of an uncertain future event.
Moreover,
the tacit term contended for in this appeal was never pleaded let alone
formulated. There is no allegation of a tacit term
in the answering affidavit,
nor is there any evidence proffered by Transnet that would support the
implication of one. But counsel
for Transnet argued that it is necessary to read
in a term that if privatization did not occur, the contract would be terminable
on reasonable notice, because otherwise the parties would be locked in a
contract indefinitely, which was patently never their intention,
a point made by
Ponnan J in the court of first instance.
[14] The court a quo, on the other
hand, was of the view that there was no evidence that privatization had become
impossible or impracticable
or that it had been abandoned. That is indeed so. I
accept, without deciding, however, that there should be some mechanism for
bringing
the contract to an end if it becomes evident that privatization is not
going to occur. As counsel for Transnet argued, it is required,
as an organ of
state, when it contracts for goods or services, to ‘do so in accordance
with a system which is fair, equitable,
transparent, competitive and
cost-effective’.[5] That
requires it to invite tenders for the operation of the Blue Train boutiques.
While an exemption in respect of Rubenstein’s
business had apparently been
obtained, this situation could not continue indefinitely.
[15] The question
is, however, what was intended by the parties should privatization not occur
within a particular, though unspecified,
period? Rubenstein’s
uncontradicted evidence was that he had not intended that the contract endure
only until the end of 1999:
he had invested in training staff, and in stock, and
would not have contracted on that basis. Borotho, for Transnet, said only that
she was advised that there was a common supposition that if privatization had
not occurred by the end of 1999, the contract with
Rubenstein would have to be
extended from time to time. As I have indicated, Rubenstein was never made aware
of these ‘extensions’
which were internal Transnet arrangements. And
the fact that Transnet representatives thought it necessary to authorise
‘extensions’
from time to time shows clearly that Transnet did not
intend that the contract was terminable on reasonable notice. There was thus
no
common underlying supposition or assumption as to the termination of the
contract should privatization not occur.
[16] And even if a tacit or implied
term as to termination should privatization not occur were to be inserted in the
contract, given
the express condition as to termination on privatization, how
would one formulate the term? Of course such a term can be formulated
in the
abstract. To give business efficacy to the contract one could suggest that there
must be inserted into the contract a term
that either party has the right to
terminate the contract on giving reasonable notice if privatization has not
occurred by the end
of 1999, although that would be contrary to the intention of
the parties as described in their affidavits. Or one could assume that
either
party would be entitled to terminate if privatization did not occur within a
reasonable time after the conclusion of the contract.
But as I have said, no
such term was pleaded or formulated by Transnet, and there is no evidence to
suggest that such an arrangement
was ever contemplated by the
parties.
[17] Transnet sought to rely on Wilkins NO v
Voges[6] in arguing that the term
should be imputed by having regard to what reasonable people would say was
needed to give effect to the
contract. This is in essence the expression of
tests that have been used for many decades in relation to the implication of a
tacit
term: would the ‘officious bystander’, when asked whether the
term is necessary, and not merely desirable, say ‘Of
course it is’;
or is the term necessary to give business efficacy to the
contract?[7] But while one may assume
that the parties are reasonable people, one must be astute not to ignore their
expressed intention. Thus
Nienaber JA states in
Wilkins:[8]
‘One
is certainly entitled to assume, in the absence of indications to the contrary,
that the parties to the agreement are typical
men of affairs, contracting on an
equal and honest footing, without hidden motives and reservations. But when the
facts show that
the one or the other had special knowledge, which would probably
have had a bearing on his state of mind, that fact simply cannot
be ignored. For
otherwise the enquiry as to the existence of the tacit term becomes a matter of
invention, not
intention.’[9]
[18] The
difficulty of formulating the kind of term contended for by Transnet (quite
apart from its failure to do so, or even to plead
its existence) is that it
could be in conflict with the express term as to duration. In Kelvinator
Group Services of SA (Pty) Ltd v
McCullogh[10] Nugent J pointed
out that a term, to be imputed, must not merely be reasonable or desirable, but
necessary, and that ‘there
can be no room for such a term if it would be
in conflict with the express provisions of the agreement’. The learned
judge
relied in this regard on South African Mutual Aid Society v Cape Town
Chamber of Commerce[11] where
Van Winsen JA said:
‘A term is sought to be implied in an agreement for
the very reason that the parties failed to agree expressly thereon. Where
the
parties have expressly agreed upon a term and given expression to that agreement
in the written contract in unambiguous terms
no reference can be had to
surrounding circumstances in order to subvert the meaning to be derived from a
consideration of the language
of the agreement only.’
[19] In my view,
therefore, especially given the absence of evidence as to what the parties
intended, it is not possible to impute
into the contract between the parties a
term that is in conflict with their express agreement as to its duration. This
is all the
more so since the evidence that we do have conflicts with the
proposition argued for by Transnet that the contract was terminable
on
reasonable notice.
[20] Lastly, the question of costs. Ponnan J considered
that Rubenstein was responsible for creating the urgency that led to the
application
being made on an urgent basis. He censured Rubenstein by awarding
only half his costs. The court below disagreed with the decision
and reversed
the order, allowing Rubenstein full costs.
[21] Transnet argues that the
question of costs is a discretionary matter, and that the appeal court ought not
to have interfered
with the order. It is clear, however, that that court,
although it does not say so expressly, considered that Ponnan J had misdirected
himself. The judgment deals with the fact that Rubenstein, in his replying
affidavit, explained the reasons for delay, which related
largely to attempts to
settle the matter and to enter into a new contract. It was not essential for
Rubenstein to deal fully with
the question of delay in the founding affidavit
given that much of it was attributable to ongoing discussions with Transnet
about
the conclusion of a new contract. Transnet was not deprived of the
opportunity properly to prepare and file its answering affidavit.
The costs
order, intended to censure Rubenstein, was based on the assumption that the
application was brought on an urgent basis
only because of delay on the part of
Rubenstein. This was not the case, as was fully explained in the replying
affidavit. Thus there
was, with respect, a misdirection on the part of the
learned judge of first instance, and the court on appeal was entitled to
interfere
with the costs order as it did.
[22] Accordingly the appeal is
dismissed with costs.
C H Lewis
Judge of Appeal
Concur:
Mpati DP
Zulman JA
Mthiyane JA
CLOETE JA:
[23] I have had the advantage of reading the judgment by
my colleague, Lewis JA. I concur in the conclusion she has reached but I
approach the matter with a different emphasis. I also find it unnecessary to
consider whether a tacit term can be imputed to the
parties in view of the
express term of the contract relating to its duration; and if the appeal is
disposed of for the reasons set
out in this judgment, whatever is said on that
question would be obiter. Because the facts are set out fully in the judgment of
my
learned colleague, a brief summary will suffice for purposes of this
judgment.
[24] The respondent in this appeal is Mr Rubenstein, a
jeweller. He brought motion proceedings as a matter of urgency in the High
Court, Johannesburg, against the appellant, Transnet. Transnet owns the Blue
Train. Part of the relief claimed by Rubenstein in the
notice of motion was the
following:
‘2. Declaring that a contract exists between the applicant
[Rubenstein] and the respondent [Transnet], which entitles the applicant
to the
sole and exclusive right to operate a jewellery boutique and to sell jewellery
and other gift items on respondent’s
train known as the “Blue
Train”.
3. Declaring that the respondent bound itself to permit the
applicant to operate the aforesaid boutique until such time as the business
of
operating the Blue Train is privatised i.e. vests in a private organisation not
under the control of the State.’
[25] It has at all times been
common cause that a contract was concluded between Rubenstein and Transnet in
terms of which Rubenstein
was granted the right to operate a jewellery boutique
on the Blue Train. The prayers quoted above were refused by Ponnan J at first
instance, although alternative relief was granted to Rubenstein. On appeal, the
full court (Gildenhuys J, Schwartzman and Willis
JJ concurring) set aside the
order made but issued a declaratory order that the purported cancellation of the
contract between Rubenstein
and Transnet was invalid. That order presumably
satisfied Rubenstein as he has not sought to challenge it. Transnet has,
however,
appealed further with the special leave of this court.
[26] It
is common cause that the letter written on behalf of Transnet dated 14 July 1999
and which embodied the express terms of the
contract between the parties
provided that ‘the duration’ of the contract ‘is to extend to
the final date of privatisation’.
The Blue Train has not been privatised
yet and it is at present uncertain when this will occur.
[27] Counsel
representing Transnet submitted that Transnet was entitled to cancel the
contract on notice to Rubenstein because of
a tacit term permitting it to do so.
In the absence of such a tacit term Transnet’s appeal cannot
succeed.
[28] The fundamental problems facing Transnet are twofold. In
motion proceedings the affidavits constitute not only the evidence,
but also the
pleadings.[12] Transnet’s
answering affidavit is deficient in both respects.
[29] There is no
allegation in the answering affidavit that the contract contained the tacit term
for which Transnet’s counsel
contended ─ much less a formulation of
such a term. The high-water mark of Transnet’s case is the following
statement
in the affidavit of Ms Borotho, who is now (but was not at the time
when the contract with Rubenstein was concluded) the Executive
Manager of
Luxrail (which is part of Transnet and operates the Blue Train on its
behalf):
‘I have been advised and respectfully submit that the
appointment of the applicant to manage the boutiques was made on a supposition
common to both parties that the business of The Blue Train would be privatised
by the end of 1999. That supposition was mistaken
and The Blue Train was not
privatised as was assumed.’
A supposition, to have legal effect, must
translate into a mistake, a misrepresentation, a term or a condition (and the
term or condition
may be express or tacit). This court said in Van Reenen
Steel (Pty) Limited v Smith
NO[13]:
‘[8] Assumptions or suppositions can have many forms and have
different effects depending upon the circumstances. An assumption
relating to a
future state of affairs
“relates to an agreement which is in operation
and its recognition would have a direct bearing upon one of the terms of the
agreement. Such a supposition is indistinguishable from a
condition,”
usually a resolutive condition, perhaps also a condition
precedent or an ordinary term of the contract. The use of the word
“supposition”
or “assumption” instead of
“condition” in this context is not conducive to clear
thinking.
[9] Assumptions may also relate to present or past facts. If
unilateral, one is back to the effect of a unilateral mistake on a contract.
If
common, unless elevated to terms of the agreement, they invariably amount to no
more than the reasons for contracting (on those
terms) or, expressing the same
idea, common mistakes relating to a motive in entering into the agreement
(“dwaling in beweegrede”).
Whether or not a motive leading up to an
agreement is based upon an assumption of fact, it remains a motive. A party
cannot vitiate
a contract based upon a mistaken motive relating to an existing
fact, even if the motive is common, unless the contract is made dependent
upon
the motive, or if the requirements for a misrepresentation are present. The
principle is as stated in African Realty Trust Ltd v Holmes 1922 AD 389
at 403:
“But as a Court, we are after all not concerned with the
motives which actuated the parties in entering into the contract, except
insofar
as they were expressly made part and parcel of the contract or are part of the
contract by clear implication.” ’
The allegations made by
Borotho accordingly do not go far enough. In the absence of an allegation by
Transnet that the agreement between
the parties contained a tacit term entitling
Transnet to cancel it, a defence based on such tacit term cannot succeed. Nor is
it
for this court to formulate such a tacit term when Transnet has failed to do
so.
[30] Furthermore Transnet delivered no affidavit deposed to by the
employee(s) who had negotiated with Rubenstein and who had knowledge
of what the
agreement was, to the extent to which (if at all) it was not embodied in the
letter of 14 July 1999. The existence of
a tacit term is primarily a question of
fact (as opposed to a term which is implied by operation of law); and the
decision in Wilkins NO v
Voges,[14] which was much relied
upon by Transnet’s counsel, makes it clear at 136I-137A and 141C-E that
this is so even where the court
is dealing with a tacit term which is imputed to
the parties. The advice given to Borotho, whatever it source, was therefore
hearsay
and inadmissible and her submission is nothing more than argument
without a factual foundation. The argument advanced by Transnet’s
counsel
suffers from the same defect. In response to the passage in Borotho’s
affidavit quoted above Rubenstein said in his
replying affidavit:
‘I
emphatically deny that there was a common supposition that privatisation would
take place by the end of 1999. Nor was it
ever suggested that my rights to
operate the boutique were in any way affected because privatisation had not
occurred by the end
of 1999. I state that the year 1999 was never mentioned as a
material time with respect to my contract.’
There is no admissible
evidence ─ indeed, no evidence at all ─ to contradict this
assertion; and it is not so improbable
that it falls to be rejected even
although uncontradicted.[15] What
Rubenstein might have said if faced with an allegation that the contract between
the parties contained a tacit term entitling
Transnet to terminate it on notice,
and evidence in support of such an allegation, is a matter of pure
conjecture.
[31] Borotho did say in her affidavit:
‘Transnet has
been forced to deal with this matter on the basis of unreasonable time frames
fixed by the applicant, without
due regard to Transnet’s procedure or
rights and interests as to the time period for the filing of its notice of
intention
to oppose and answering affidavit. It has been deprived of an adequate
opportunity to obtain confirmatory affidavits from persons
who have knowledge of
certain crucial aspects of this case.’
But Transnet did take a week
longer than the time period fixed by Rubenstein for the filing of its answering
affidavit; and no attempt
was made by Transnet to have the matter postponed so
that further affidavits could be delivered. Nor did Transnet aver that the
person(s)
who negotiated and concluded the contract with Rubenstein were no
longer available to it, and seek to have the matter referred to
oral evidence in
terms of Uniform Rule of Court 6(5)(g) so that Rubenstein could be
cross-examined. On the contrary, Transnet was
content to argue the application,
and both appeals, on the papers as they stood.
[32] In short,
Transnet’s defence has no basis in fact or in law. The
appeal against
the order made by the full court on the merits accordingly falls to be
dismissed.
[33] Transnet’s appeal against the costs order made by
the full court must suffer the same fate. Rubenstein was deprived of
half of his
costs by Ponnan J, who held the view that Rubenstein had abused the process of
the court by the delay in bringing the
application. The full court set this
order aside and awarded Rubenstein all of his costs in the court of first
instance. The submission
on behalf of Transnet to this court was that there was
no basis upon which the full court could legitimately have interfered with
the
discretion exercised by the court of first instance. But there was. As the full
court pointed out, Ponnan J disregarded the explanation
for the delay given by
the respondent in his replying affidavit, in reply to the complaint raised by
Transnet in this regard in its
answering affidavit. Rubenstein’s
explanation, which there is no reason to doubt, is that he, on several occasions
personally
and in a letter written by his attorney, requested a meeting to
discuss the matter; and although Borotho indicated her willingness
to do so, she
never fixed a date for such a meeting despite an undertaking that she would.
Ultimately, Rubenstein’s attorney
wrote a letter requesting Transnet to
withdraw its purported notice of termination and that letter was simply ignored
by Transnet.
The application was then urgent because the date for cancellation
specified by Transnet was looming. Rubenstein cannot legitimately
be criticised
for attempting to settle the matter before resorting to litigation. Counsel
representing Transnet submitted that the
explanation given by Rubenstein should
have been in the founding affidavit. I disagree. It formed no part of his cause
of action
on the merits. It was also not incumbent upon him, when dealing with
the question of urgency in terms of Uniform Rule of Court 6(12),
to anticipate
the complainant made by Transnet.
[34] It is for these reasons I conclude
that the appeal should be dismissed.
______________
T D CLOETE
JUDGE OF APPEAL
Concur: Zulman JA
[1] 1984 (1) SA 433
(W).
[2] 1985 (4) SA 809
(A).
[3] 2004 (1) SA 538
(SCA).
[4] Para
13.
[5] Section 217(1) of the
Constitution.
[6] 1994 (3) SA 130
(A).
[7] Union Government (Minister of Railways and Harbours) v Faux Ltd 1916 AD 105; West End Diamonds Ltd v Johannesburg Stock Exchange 1946 AD 910; Mullin (Pty) Ltd v Benade Ltd 1952 (1) SA 211 (A); See also Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 532 in fin-533B, where Corbett AJA relied on a statement of Scrutton LJ in Reigate v Union Manufacturing Co [1918] 1 KB 592 (CA) at 605; 118 LT 479 (CA) at 483. See also Botha v Coopers & Lybrand 2002 (S) SA 347 (SCA) para 23 and Consol Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd [2004] 1 All SA 1 (SCA)
paras 50 and 51.
[8] At 141C-E.
[9] See also Barnabas Plein
& Co v Sol Jacobson & Son 1928 AD 25 at 31-32 where Stratford JA too
had regard to what an independent person would say about the necessity of
incorporating
the term in question, but also stated that the ‘true
view’ is that ‘you have to get at the intention of the parties
in
regard to a matter which they must have had in mind, but which they have not
expressed’. He considered therefore that one
had to have regard not only
to objective tests but also to what the parties claimed to have
intended.
[10] 1999 (4) SA 840
(W) at 844A-C.
[11] 1962 (1) SA 598 (A) at 615D-E. See Aymard v Webster 1910 TPD 123; Mullin (Pty) Ltd v Benade Ltd above at 215I-H; and Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A) at 175C; Alfred McAlpine & Son (Pty) Ltd above at 531E-F and Robin v Guarantee Life Assurance Co Ltd 1984 (4) SA 558 (A) at 567A-F.
[12] See eg Triomf
Kunsmis (Edms) Bpk v AE & CI Bpk 1984 (2) SA 261 (W) 269G-H and
Saunders Valve Co Ltd v Insamcor (Pty) Ltd 1985 (1) SA 146 (T)
149C.
[13] 2002 (4) SA 264 (SCA)
(footnotes omitted).
[14] 1994
(3) SA 130 (A) 136H-I.
[15] Some
of the decisions of this court on the point are collected in Kentz (Pty) Ltd
v Power [2002] 1 All SA 605 (W) paras [16] to [20].
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