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Last Updated: 17 October 2005
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
Case No 459/04
In the matter between:
TELEMATRIX (PTY) LTD
t/a MATRIX VEHICLE TRACKING
Appellant
and
ADVERTISING STANDARDS AUTHORITY SA
Respondent
Coram: HARMS, CAMERON, VAN HEERDEN, MLAMBO JJA and CACHALIA AJA
Heard: 22 AUGUST 2005
Delivered: 9 SEPTEMBER 2005
Subject: Delict – wrongfulness – liability of adjudicating body for negligent incorrect decisions
J U D G M E N T
HARMS JA:
[1] At stake is the liability for damages of the respondent, the
Advertising Standards Authority of SA (‘the ASA’), to
an advertiser
who suffered a loss because of an incorrect decision by one of its organs. The
ASA filed an exception against the particulars
of claim of the plaintiff (the
present appellant) in which the ASA pertinently raised the question whether such
a negligent decision,
which prohibited the publication of two advertisements,
and which gave rise to pure economic loss can be ‘wrongful’ in
the
delictual sense. ‘Pure economic loss’ in this context connotes loss
that does not arise directly from damage to the
plaintiff’s person or
property but rather in consequence of the negligent act itself, such as a loss
of profit, being put to
extra expenses, or the diminution in the value of
property.[1] In the court below
Snyders J upheld the exception and found that the plaintiff’s particulars
of claim did not disclose a cause
of
action.[2] Later she granted leave to
appeal to this court.
[2] The plaintiff’s particulars of claim, with
annexures, runs to 158 pages and contains a full exposition of the events
surrounding
the Directorate’s decision. In addition we were provided with
the ASA’s Code of Advertising Practice and Procedural Guide and the
parties prudently were content that regard could be had to it even though it
does not form part of the pleadings. The case
does not therefore have to be
decided on bare allegations only but on allegations that were fleshed out by
means of annexures that
tell a story. This assists in assessing whether or not
there may be other relevant evidence that can throw light on the issue of
wrongfulness. I mention this because, relying on the majority decision in
Axiam Holdings Ltd v Deloitte &
Touche,[3] the plaintiff
argued that it is inappropriate to decide the issue of wrongfulness on exception
because the issue is fact bound. That
is not true in all cases. This court for
one has on many occasions decided matters of this sort on exception. Three
important judgments
that spring to mind are Lillicrap, Indac and
Kadir.[4] Some public policy
considerations can be decided without a detailed factual matrix, which by
contrast is essential for deciding negligence
and causation.
[3] Exceptions
should be dealt with sensibly. They provide a useful mechanism to weed out cases
without legal merit. An over-technical
approach destroys their utility. To
borrow the imagery employed by Miller J, the response to an exception should be
like a sword
that ‘cuts through the tissue of which the exception is
compounded and exposes its
vulnerability.’[5] Dealing with
an interpretation issue, he added:
‘Nor do I think that the mere
notional possibility that evidence of surrounding circumstances may influence
the issue should
necessarily operate to debar the Court from deciding such issue
on exception. There must, I think, be something more than a notional
or remote
possibility. Usually that something more can be gathered from the pleadings and
the facts alleged or admitted therein.
There may be a specific allegation in the
pleadings showing the relevance of extraneous facts, or there may be allegations
from which
it may be inferred that further facts affecting interpretation may
reasonably possibly exist. A measure of conjecture is undoubtedly
both
permissible and proper, but the shield should not be allowed to protect the
respondent where it is composed entirely of conjectural
and speculative
hypotheses, lacking any real foundation in the pleadings or in the obvious
facts.’[6]
[4] The ASA,
according to the particulars of claim, is an independent body set up and
sponsored by the advertising industry to ensure
that the industry’s system
of self-regulation works ‘in the public interest’. The ASA has a
self-contained code
that is based on an internationally accepted model and
determines its terms of reference and defines its scope of authority.
Advertisers
such as the plaintiff are ‘indirectly bound’ to observe
the code because their advertising agents belong to a constituent
member of the
ASA. The main purpose of the code is to protect consumers and to ensure fair
play among advertisers. Its procedural
guide provides for the lodging of
complaints and the method of disposition.
[5] The facts that gave rise to
the plaintiff’s claim for damages of some R6.5m are these. A competitor,
Netstar (Pty) Ltd,
lodged a complaint against an advertisement campaign ran by
the plaintiff. After receiving written submissions from both parties
the
Directorate, whose function this was, upheld one ground of complaint and ordered
the immediate withdrawal of the offending advertisements.
The plaintiff complied
grudgingly but appealed to the ASA’s internal appeal body, namely the
Advertising Industry Tribunal,
which upheld the appeal, basically because the
complainant during the appeal hearing withdrew the particular objection on which
the
Directorate’s decision was based.
[6] Against that background the
plaintiff in summary alleged that the Directorate ought to have been aware that
its ruling would have
far-reaching implications for the plaintiff, who was bound
to comply with the ruling, and that such a ruling could cause the plaintiff
to
suffer damages. The implication of these allegations is that the plaintiff was a
foreseeable plaintiff and the loss was foreseeable.
Further, the Directorate
–
‘owed the plaintiff a duty of care to consider and arrive at a
decision
(i) without negligence;
(ii) in a manner which is fair, justifiable and reasonable;
(iii) within the ambit of the terms of the complaint; and
(iv) in a manner that is not arbitrary.’
[7] This duty of
care, the plaintiff’s pleading asserts, was breached because in arriving
at its decision and in publishing
and communicating it, the Directorate acted
–
‘(a) negligently in that the part of the ruling upholding the
complaint ought not reasonably to have been arrived at, not being
justifiable or
reasonable in any respect;
(b) outside the ambit of the terms of the
complaint in that the basis upon which the complaint was upheld had not been
part of the
complaint;
(c) arbitrarily, not having called for nor having
received representations or submissions in respect of the issue upon which the
Directorate ruled against the [plaintiff].’
[8] The premise of the
exception was that the ruling of the Directorate, in the circumstances alleged,
did not amount to a wrongful
act that could have given rise to a delictual claim
and that the ASA did not breach any duty owed by it to the plaintiff.
[9] If
regard is had to the documents incorporated into the pleadings, the complaints
listed in (b) and (c) have no factual basis.
The Directorate upheld the
complaint because it found that the plaintiff was promoting its product (an
electronic vehicle tracking
system) by capitalising ‘on the fear
factor’, contrary to clause 3.1 of the code that provides that
‘advertisements
should not without justifiable reason play on fear.’
The problem is that instead of mentioning clause 3.1 the complainant had
relied
in its original submission to the ASA on a non-existent clause 2.1. The
plaintiff itself perceived that this was a typographical
error, pointed it out
to the Directorate, quoted clause 3.1, and made its submissions on that basis.
The procedural guide in any
event requires of the Directorate, if ‘the
sections of the Code to which the complaint relates’ are not identified in
the complaint lodged with it, to consider the complaint in terms of the sections
of the code it regards as relevant, and to deal
with the complaint as if it had
been lodged in terms of those sections.
[10] Counsel for the plaintiff
strenuously objected to our having regard to the totality of the pleadings and
wished to confine the
court to a consideration of the facts alleged in the body
of the particulars of claim in isolation. His objection was ill-founded.
Pleadings must be read as a whole and in deciding an exception a court is not
playing games, blindfolding itself.[7]
In any event, as will become apparent, these allegations, even if meritorious,
make no difference to the case.
[11] In spite of a spate of judicial
pronouncements on ‘wrongfulness’ by different panels of this court,
all stating more
or less the same in more or less the same terminology a
restatement using the words of others is sometimes inevitable. This is because,
depending on the issues in the case, different matters have to be emphasised.
[12] The first principle of the law of delict, which is so easily forgotten
and hardly appears in any local text on the subject, is,
as the Dutch author
Asser points out, that everyone has to bear the loss he or she
suffers.[8] The Afrikaans aphorism is
that ‘skade rus waar dit val.’ Aquilian liability provides for an
exception to the rule and,
in order to be liable for the loss of someone else,
the act or omission of the defendant must have been wrongful and negligent and
have caused the loss. But the fact that an act is negligent does not make it
wrongful[9] although foreseeability of
damage may be a factor in establishing whether or not a particular act was
wrongful.[10] To elevate negligence
to the determining factor confuses wrongfulness with negligence and leads to the
absorption of the English
law tort of negligence into our law, thereby
distorting it.[11]
[13] When
dealing with the negligent causation of pure economic loss it is well to
remember that the act or omission is not prima
facie wrongful
(‘unlawful’ is the synonym and is less of a euphemism) and that more
is needed.[12] Policy considerations
must dictate that the plaintiff should be entitled to be recompensed by the
defendant for the loss suffered[13]
(and not the converse as Goldstone J once
implied[14] unless it is a case of
prima facie wrongfulness, such as where the loss was due to damage caused to the
person or property of the
plaintiff). In other words, conduct is wrongful if
public policy considerations demand that in the circumstances the plaintiff has
to be compensated for the loss caused by the negligent act or omission of the
defendant.[15] It is then that it
can be said that the legal convictions of society regard the conduct as
wrongful,[16] something akin to and
perhaps derived from the modern Dutch test ‘in strijd . . . met hetgeen
volgens ongeschreven recht in
het maatschappelijk verkeer betaamt’
(contrary to what is acceptable in social relations according to unwritten
law).[17]
[14] To formulate the
issue in terms of a ‘duty of care’ may lead one astray. It cannot be
doubted that the ASA owed a
duty towards the plaintiff to consider and arrive at
a decision without negligence, in a manner that was fair, justifiable and
reasonable,
and within the ambit of the complaint, but it does not follow that a
failure to have done so created an obligation to compensate.
To illustrate:
there is obviously a duty – even a legal duty – on a judicial
officer to adjudicate cases correctly and
not to err negligently. That does not
mean that a judicial officer who fails in the duty, because of negligence, acted
wrongfully.
Put in direct terms: can it be unlawful, in the sense that the
wronged party is entitled to monetary compensation, for an incorrect
judgment
given negligently by a judicial officer, whether in exercising a discretion or
making a value judgment, assessing the facts
or in finding, interpreting or
applying the appropriate legal principle? Public or legal policy considerations
require that there
should be no liability, ie, that the potential defendant
should be afforded immunity against a damages claim, even from third parties
affected by the judgment.[18] As
Botha JA said in somewhat similar
circumstances:[19]
‘That
is not to say that the local authority need not exercise due care in dealing
with applications; of course it must, but
the point is that it would be contrary
to the objective criterion of reasonableness to hold the local authority liable
for damages
if it should turn out that it acted negligently in refusing an
application, when the applicant has a convenient remedy at hand to
obtain the
approval he is seeking. To allow an action for damages in these circumstances
would, I am convinced, offend the legal
convictions of the
community.’
[15] Stating that there are no general rules determining
wrongfulness and that it always depends on ‘the facts of the particular
case’ is accordingly somewhat of an
overstatement[20] because there are
also some ‘categories fixed by the
law’.[21] For example, since
the judgment in Indac,[22]
which held that a collecting bank owes a legal duty to the owner of a cheque, it
is well-nigh impossible to argue that a collecting
bank has no such
duty,[23] and all that may remain is
to consider whether vis-à-vis the particular plaintiff the duty
existed.[24] However, as public
policy considerations change, these categories may change, whether by expansion
or contraction.[25]
[16] Many
policy considerations can be determined without evidence, but if evidence is
required, it has to be ‘relevant’,
ie, relevant to policy
considerations.[26] As Nugent JA
said,[27]
‘When determining
whether the law should recognise the existence of a legal duty in any particular
circumstances what is called
for is not an intuitive reaction to a collection of
arbitrary factors but rather a balancing against one another of identifiable
norms.’
[17] Since the present case deals with the wrongfulness of a
decision reached in a process that may properly be described as adjudicative,
it
will be useful to consider in more detail the immunity given to judicial
officers against damages claims. Johannes Voet in his
Commentary on the
Pandects 5.1.58 said (Gane’s translation somewhat
adapted):
‘But in our customs and those of many other nations it is
rather rare for the judge to [bear the responsibility for the outcome]
by ill
judging. That is because the trite rule that he is not made liable by mere lack
of knowledge or [lack of skill], but by fraud
only, which is commonly difficult
of proof. It would be a bad business with judges, especially lower judges who
have no skill in
law, if in so widespread a science of law and practice, such a
variety of views, and such a crowd of cases which will not brook but
sweep aside
delay, they should be held personally liable to the risk of individual suits,
when their unfair judgment springs not
from fraud, but from mistake, lack of
knowledge or [lack of skill].’
This statement reflects the current
legal position.[28]
[18] The
different judgments in R v Kumalo &
others[29] are in this regard
instructive. A chief, who had civil jurisdiction but did not have the necessary
jurisdiction to impose corporal
punishment, imposed it on the complainant for
contempt of his court. The chief and some others were then criminally charged
with
assault. Van den Heever JA thought that the chief was entitled to the
indemnity mentioned by Voet and in addition quoted an 1886
judgment of Lord de
Villiers[30] holding that judicial
officers are also not liable in damages in relation to administrative functions
performed by them in good faith
in the course of their duties. Hoexter JA,
speaking on behalf of the majority, confirmed the conviction on the ground that
the chief
knew that he was acting outside the terms of his judicial authority.
Schreiner JA also confirmed the conviction but on another ground,
namely that
the chief was personally instrumental in inflicting the punishment – his
intervention did not stop at the judicial
act. More of interest though is
Schreiner JA’s finding (concordant with that of van den Heever JA) that
the fact that the chief
had exceeded his jurisdiction on its own would not have
made him liable.[31] This, I would
suggest, in the ordinary course of things makes good sense because a wrong
assumption of jurisdiction does not differ
in kind from any other wrong
decision.
[19] The decisive policy underlying the immunity of the judiciary
is the protection of its independence to enable it to adjudicate
fearlessly.[32] Litigants (like
those depending on an administrative process) are not ‘entitled to a
perfect process, free from innocent [ie,
non mala fide]
errors’.[33] The threat of an
action for damages would ‘unduly hamper the expeditious consideration and
disposal’ of litigation.[34]
In each and every case there is at least one disgruntled litigant. Although
damages and the plaintiff are foreseeable, and although
damages are not
indeterminate in any particular case, the ‘floodgate’ argument (with
all its holes) does find application.
[20] Similar considerations apply to
the immunity afforded to arbitrators and quasi-arbitrators, ie, persons who
(usually by virtue
of a contract) are entrusted with an adjudicative function
that imposes on them a duty to act
impartially.[35]
[21] The facts
and conclusion in Matthews & others v
Young[36] provide a useful
analogy. Young was a member of a trade union. Membership was a precondition for
employment by the local municipality.
The trade union terminated his membership,
the municipality dismissed him, and he then sued the officials of the union for
damages.
The court held that the expulsion had been invalid because it was not
in terms of the union’s constitution. Jacob de Villiers
JA pointed out (at
507) that –
‘there is no onus upon a defendant until the
plaintiff has proved that a legal right of his has been infringed. Under the
lex Aquilia there is only an action for damnum injuria datum
– for pecuniary loss inflicted through a legal injury, and the defendant
is not called upon to answer the plaintiff's case
before the plaintiff has
proved both the pecuniary loss and that it directly results from what is, in the
eye of the law, an injuria.’
He held that the trade union had
not proceeded strictly in accordance with the rules of the society and that the
officials had no
jurisdiction, under the circumstances, to take the action they
did, but he held (at 507) –
‘to ignore the fact that they
purported to act as the properly constituted tribunal under the rules of the
association is to
disregard a material fact in the case for the defendants which
can hardly be considered irrelevant. A judge who purports to try a
case in which
he has no jurisdiction would not on that account be liable.’
The
comparison with a judicial determination was taken further in the conclusion (at
509-510):
‘In my opinion, therefore, in considering plaintiff's conduct
and in taking the resolution they took, the council purported
to act under the
rules of the society, and as in so doing they were performing functions
analogous to those performed by a judge,
they were acting in a quasi-judicial
capacity, and are, therefore under our law (Groenewegen, de Leg. Abr. Ad.
1.4.5.1; Voet 5. 1.58 in fine), as also, I understand, under the English
law, not liable for any damage provided they acted bona fide and in the
honest discharge of their duties. When once it is established that the
defendants were acting in such a capacity under
the rules of the society, to
which the plaintiff as a member must be taken to have given his full assent, the
onus would be upon him to prove that, in taking the resolution and in the
further steps they took, they did so not in pursuance of the
duty devolving upon
them as such council, but were actuated by some indirect or improper
motive.’
[22] Plaintiff’s counsel submitted that the outcome of
Matthews v Young depended on the fact that Young ‘as a member must
be taken to have given his full assent’ to the proceedings and absent
a
contractual relationship (like that created by joining a voluntary association),
the case is distinguishable from the present and
that the underlying principles
are inapplicable. I disagree. The contract in the form of the constitution of
the union was no doubt
a factor deemed relevant but it appears to me that the
true ratio of the judgment lies in the analogy drawn with judicial functions.
That is how Botha JA understood it in Knop when he said that the
observations that the trade union officials had performed discretionary and not
merely ministerial duties
and had acted in a quasi-judicial capacity constituted
steps in the reasoning which in the circumstances of the case were considered
to
be decisive on the issue of
wrongfulness.[37]
[23] Botha JA
(at 20C-F and 24I-J) in his judgment in Knop doubted the usefulness of
drawing a distinction between purely administrative and quasi-judicial decisions
in determining the question
of wrongfulness (thereby implying, I think, that an
incorrect administrative decision is not per se wrongful and that the
same approach may apply in relation to both types of decisions). In any event,
where a local authority has
to weigh up conflicting interests and exercise a
value judgment (at 30G) –
‘Linguistically and conceptually it can
be said that the Council is fulfilling a quasi-judicial function and exercising
a quasi-judicial
discretion.’
[24] Counsel stressed that the
mores of society have changed since 1922 and that constitutional values
have to be considered as part of the present-day mores. All this is true
but the question is rather whether there has been a change in public policy in
relation to the considerations that
underpin Matthews v Young. Reference
was made during argument to accountability, an important constitutional value
but the judiciary, at least, is still accountable
only to the law for their
decisions[38] and public
accountability, as far as organs of state are concerned, has not evolved into a
general liability for damages for imperfect
administrative
actions.[39]
[25] Whether an
organ of state is liable for damages because of negligent non-judicial decisions
with a statutory basis depends often
on the intention of the legislature and on
an interpretation of the statutory instrument concerned. This happened
ultimately in Knop, where a local authority approved a subdivision of
property contrary to the provisions of a town planning scheme. Realising its
mistake,
the municipality informed the applicant who then sued the local
authority for financial losses suffered as a result of the steps
he had taken
after the grant of the approval. Botha JA’s judgment first dealt at length
with the general principles underlying
delictual liability and he found that
considerations of convenience militate strongly against allowing an action for
damages, the
reason being that the threat of litigation would unduly hamper the
expeditious consideration and disposal of applications by a local
authority (at
33C-D). With that in mind he set out to interpret the statute in question in
order to determine whether the legislature
intended another result. He concluded
it did not (at 31D-E), an answer fortified by the fact that the legislation in
question provided
for an appeal procedure (at 31E-F). The importance of an
internal appeal procedure is that it may be indicative of an intention that
that
is the only available remedy for an incorrect decision. For an incorrect
decision on appeal there is then no remedy except a
judicial review.
[26] To
sum up: In different situations courts have found that public policy
considerations require that adjudicators of disputes
are immune to damages
claims in respect of their incorrect and negligent decisions. The overriding
consideration has always been
that, by the very nature of the adjudication
process, rights will be affected and that the process will bog down unless
decisions
can be made without fear of damages claims, something that must impact
on the independence of the adjudicator. Decisions made in
bad faith are,
however, unlawful and can give rise to damages claims.
[27] What remains for
consideration is whether a decision of a body such as the ASA should be denied
immunity. The only aspect raised
on the plaintiff’s behalf was the fact
that the plaintiff was not a member of the ASA but was nevertheless
‘indirectly
bound’ by its rulings because its advertising agent was
a member of a constituent body of the ASA. In Matthews v Young, counsel
reminded us, by joining the union Young bound himself to its process. The answer
is really this. If the plaintiff was not
legally bound to the ruling through
those whose services it engaged, the plaintiff could have ignored the
ASA’s decision but,
if it chose to abide by it, its loss would have been
caused by its election and not by the incorrect decision. By engaging the
services
of someone who is a member of a professional organisation, one has to
accept the consequences of that person’s professional
rules and standards.
[28] An incorrect decision which was arrived at negligently during an
adjudicative process which purports to serve the public interest
cannot in my
judgment be regarded as being unlawful. This applies even if the process is not
based on legislation or contract and
the principle is hence not dependent on
consent. The public policy considerations mentioned in relation to the immunity
of the judiciary
apply equally. The process in this case purported to serve the
public good and incorrect decisions, some based on wrong legal concepts,
and
others involving the erroneous exercise of a discretion or value judgment, some
because of mistaken factual findings, are to
be expected and have to be accepted
by those affected by them, directly or indirectly.
[29] The appeal is
dismissed with costs, including the costs of two counsel.
_____________________
L T C HARMS
JUDGE OF
APPEAL
AGREE:
CAMERON JA
VAN HEERDEN JA
MLAMBO
JA
CACHALIA AJA
[1] J Neethling, JM Potgieter and
PJ Visser Law of Delict 4 ed p 295 et seq; Stair Memorial Encyclopaedia
The Laws of Scotland (1996) vol 15 para
273.
[2] The judgment is reported:
2005 (2) SA 264 (W).
[3] SCA case
303/04 of 1 June 2005.
[4]
Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475 (A); Indac Electronics (Pty) Ltd v Volkskas Bank Ltd 1992
(1) SA 783 (A); Minister of Law and Order v Kadir 1995 (1) SA 303
(A).
[5] Davenport Corner Tea
Room (Pty) Ltd v Joubert 1962 (2) SA 709 (D)
715H.
[6] At 716C-E. Partially
quoted with approval in Gardner v Richardt 1974 (3) SA 768 (C)
773D-E.
[7] Cf Knop v
Johannesburg City Council 1995 (2) SA 1 (A)
26H-I.
[8] C Asser Handleiding
tot de beoefening van het Nederlands Burgerlijk Recht: Verbintenissenrecht 9
ed (1994) part III p 12: ‘In beginsel moet ieder de door hem zelf geleden
schade dragen.’
[9] Indac
Electronics (Pty) ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A) 793I-J;
Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)
para [12].
[10] Government of
the RSA v Basdeo & another 1996 (1) SA 355 (A)
368H.
[11] There are a number of
informative articles dealing with wrongfulness that have been helpful by
Francois du Bois, Anton Fagan, Johan
Potgieter, JR Midgley, Jonathan Burchell
and Dale Hutchison in TJ Scott & Daniel Visser (ed) Developing Delict:
Essays in Honour of Robert Feenstra also published in the 2000 edition of
Acta Juridica.
[12] BOE
Bank Ltd v Ries 2002 (2) SA 39 (SCA) para
[12]-[13].
[13] Lillicrap,
Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd 1985
(1) SA 475 (A) 501G-H.
[14]
Quoted in International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680
(A) 694F-G. So, too, Davis J in Faircape Property Developers (Pty) Ltd v
Premier, Western Cape 2002 (6) SA 180 (C) 191 in
fine.
[15]Minister van Polisie
v Ewels 1975 (3) SA 590 (A) 597A-B: ‘dat die gelede skade vergoed
behoort te word’. Cf Olitzki Property Holdings v State Tender Board
& another 2001 (3) SA 1247 (SCA) para [12]; Pretorius en andere v
McCallum 2002 (2) SA 423 (C) 427E. See for a full treatment of the
proposition: Anton Fagan ‘Rethinking wrongfulness in the law of
delict’
2005 SALJ 90 at
107-108.
[16] Minister van
Polisie v Ewels 1975 (3) SA 590 (A)
597A-B.
[17] Asser op cit p
36-37.
[18] Local Transitional Council of Delmas & another v Boshoff (SCA case 302/04) 31 May 2005 unreported para [19].
[19] Knop v Johannesburg City
Council 1995 (2) SA 1 (A)
33D-E.
[20] Cape Town
Municipality v Bakkerud 2000 (3) SA 1049 (SCA) para
14.
[21] Tony Honore
Responsibility and Fault (1999) p 101 quoted in Olitzki Property
Holdings v State Tender Board & another 2001 (3) SA 1247 (SCA) para
[11].
[22] Indac Electronics
(Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783
(A).
[23] Cf Standard Bank of
SA Ltd v Harris & another NNO (JA du Toit Inc intervening) 2003 (2) SA
23 (SCA).
[24] Minister van
Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) para
[26].
[25] Minister van
Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA) para
[25].
[26] Indac Electronics
(Pty) Ltd v Volkskas Bank Ltd 1992 (1) SA 783 (A)
797F-G.
[27] Minister of
Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para
[21].
[28] Penrice v
Dickinson 1945 AD 6 at 14-15. Similar considerations apply to defamation
claims: May v Udwin 1981 (1) SA 1 (A)
19E-F.
[29] 1952 (1) SA 381
(A).
[30] The Cape of Good
Hope Bank v Fischer (1885-1886) 4 SC 368 at
375.
[31] At 386F-H. The
conclusion finds support in Matthews & others v Young 1922 AD 492 at
507 quoted later. English law may be different in this regard:
Halsbury’s Laws of England 4 ed reissue vol 33 para 620. But see
Abbott v Sullivan & others [1952] 1 All ER 226
(CA).
[32] Sutcliffe v
Thackrah & others [1974] 1 All ER 859 (HL)
862g-h.
[33] Logbro
Properties CC v Bedderson NO & others 2003 (2) SA 460 (SCA) para
[17].
[34] Knop v Johannesburg
City Council 1995 (2) SA 1 (A) 33C-D in another
context.
[35] Hoffman v Meyer
1956 (2) SA 752 (C); Sutcliffe v Thackrah & others [1974] 1 All
ER 859 (HL).
[36] 1922 AD
492.
[37] Knop v Johannesburg
City Council 1995 (2) SA 1 (A)
24E-G.
[38] Judges’
Charter in Europe para
2.
[39] Olitzki Property
Holdings v State Tender Board & another 2001 (3) SA 1247 (SCA).
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