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[2012] ZAGPJHC 40
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Eleanor Mary Duncan t/a Inyati Financial Services v Bensure Financial Consultants (Pty) Ltd (A 5060/10) [2012] ZAGPJHC 40 (24 February 2012)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Appeal No: A 5060/10
Date:24/02/2012
In the matter between:
ELEANOR
MARY DUNCAN t/a INYATI FINANCIAL
SERVICES
........................
Appellant
and
BENSURE
FINANCIAL CONSULTANTS (PTY)
LTD
...........................................
Respondent
JUDGMENT
MEYER,
J
[1] The
respondent instituted action against the appellant in this Division
for the repayment to it of an amount of R250, 000.00,
which, it is
common cause, was received by her on 28 January 2008. The court
a
quo
granted
judgment in favour of the respondent and with its leave the appellant
now appeals.
[2] The
respondent forms part of the Bensure group of companies. Bensure
Holdings Ltd (‘Holdings’) is the holding company.
Bensure Insurance Underwriters Ltd (‘BIU’) is
inter
alia
a
short-term health insurance underwriter. One of its insurance
products is known as Medplus health insurance (‘Medplus’),
which is a so-called ‘top-up’ health insurance. Bensure
Management Service (Pty) Ltd (BMS) is a management company,
which
attended to all the administration work of BIU until Zenith Group
(Pty) Ltd (Zenith) took it over. The shareholding of BMS
was held by
Holdings and that of BIU and of the respondent by BMS. BIU operates
its medical insurance business through the appointment
of independent
intermediaries or brokers. BMS, and later on Zenith,
inter
alia
, on
behalf of BIU made payment to the intermediaries or brokers,
including the appellant, of the commission that they had earned.
[3] It
is convenient at the outset to refer to the witnesses who testified
in the court
a
quo
. The
appellant testified and she called as witnesses Messrs Gavin
Wagenaar, Robert Duncan, James Potgieter, Brent Navias, and
Misses
Christine Miller and Dawn Davids. Mr Wagenaar was a director of BIU
from 1 November 2001 until 29 November 2007, of BMS
from 27 June 2005
until 1 March 2008, and of the respondent from sometime during 2005
until 1 March 2008. He was the managing director
of BMS at all times
relevant to the present dispute between the parties. Mr Robert
Duncan occupied various positions during the
twelve year period that
he had been involved with the Bensure group of companies,
inter
alia
as
executive director of BMS and as executive and later on managing
director of BIU. His position was that of financial consultant
to
the Bensure group of companies during the period presently relevant
and he was,
inter
alia
,
responsible for legal, technical and actuarial matters. It appears
from the unchallenged evidence of Mr Wagenaar that Mr Duncan
was also
in charge of overseeing the services rendered to the Parmed Medical
Scheme (‘Parmed’) members. Medplus was
marketed to the
members of Parmed. Mr James Potgieter, who is a chartered accountant
registered with the South African Institute
for Chartered Accountants
and with the Independent Board of Auditors, was appointed by BMS as a
financial consultant to the Bensure
group of companies during 2006 or
2007, and such position was occupied by him throughout the period
which is presently relevant.
He was at all material times the group
accountant. Mr Brent Navias has been employed by BMS since 2001.
His evidence does not
assist in the determination of the issues
between the parties and nothing more need to be said about him. The
appellant acted
as intermediary or broker for BIU from 1 February
2007 until 30 January 2009. Ms Christine Miller acted as
intermediary or broker
for BIU from 1 March 2007 until 31 January
2008, except for the period 1 until about 19 September 2007. Ms Dawn
Davids has been
the Principal Officer of Parmed since January 2006.
The only witness called by the respondent is Mr Nicholas
Cunningham-Moorat.
He was ‘… tasked in late 2007 to
start looking into the affairs of the (Bensure) group of companies’.
He became
a director of Zenith.
[4] It
is common cause that BIU appointed Ms Christine Miller from 1 March
2007 ‘for an initial period of six months’
to manage the
Parmed members at a servicing commission of R7, 500.00 per month in
terms of a written independent intermediary agreement
that had been
concluded between her and BIU on 23 February 2007. This position
entailed the management of Medplus members who
were also Parmed
members (‘Parmed / Medplus members’).
It is also
common cause in terms of the pleadings as read with the exchange of
trial particulars and admissions recorded in the
pre-trial minute
that BIU appointed the appellant as an intermediary to market its
health insurance products and that she rendered
such intermediary
services to BIU pursuant to a written agreement that was concluded
between her and BIU on 23 February 2007, which
agreement was deemed
to have commenced on 1 February 2007 and of six months’
duration, and a further written agreement that
they concluded on 17
August 2007, which agreement was deemed to have commenced on 1 August
2007 and terminable
inter
alia
upon
thirty days written notice given by either party to the other (‘the
written agreement dated 17 August 2007’).
[5] It
is also undisputed in terms of the pleadings as read with the
exchange of trial particulars and admissions recorded in the
pre-trial minute that the written agreement dated 17 August 2007 was
subsequently amended by means of a written addendum in terms
whereof
BIU additionally appointed the appellant to manage all Parmed /
Medplus members and in terms whereof it was agreed that
the appellant
would receive all commissions due in relation to those members
(‘Parmed commission’). The written addendum
on which the
appellant relies (annexure ‘B’ to her plea) records its
effective date as 1 August 2007. The one admitted
by the respondent
is identical to the one on which the appellant relies, except for its
effective date, which is recorded as 1
December 2007, and the
witnesses who witnessed the signatures of the parties.
[6] The
respondent’s claim as formulated in its particulars of claim is
that the payment by the respondent ‘…
was unuathorised
and ultra vires …’, that the sum of R250 000.00 was
neither due nor owing to the appellant, and that
the appellant was
enriched unjustly by the amount of the payment at the expense of the
respondent. The appellant, in terms of
her plea as amplified by her
trial particulars, denied that the sum of R250 000.00 was not due or
owing to her. She averred that
she had become entitled to the
payment of Parmed commission for all the services rendered by her to
the Parmed / Medplus members
during the period 1 August 2007 to
January 2008, pursuant to the agreement dated 17 August 2007 and the
addendum thereto. She
averred that the payment of the Parmed
commission earned by her during that period was in arrears and that
the payment of R250,
000.00, which was made to her on 28 January
2008, constituted a single payment of such arrear Parmed commission
that had been due
and owing to her. In her trial particulars the
appellant averred that she had requested a breakdown from the
respondent of how
the amount of R250, 000.00 was calculated, but that
such was not provided.
[7] The
trial judge
held that
the addendum on which the appellant relied ‘… for the
payment made to her, was created by her and her husband
in order to
find a basis for the claim in her plea that she was entitled to the
R250, 000.’ It was also held that the respondent
‘…
was used to perpetuate a fraud…’ and that the ‘R250,
000.00 that it would have otherwise paid
to BMS was misappropriated.’
A consideration of the totality of the evidence leads me to disagree
with these findings for
the reasons that follow.
[8] It
is trite that a party wishing to rely on fraud must plead it and
prove it clearly and distinctly. See:
Courtney-Clarke
v Bassingthwaighte
1991
(1) SA 684
(Nm), at 689. The respondent did not raise fraud by way
of replication. The trial judge
held that
the issue of fraud was fully canvassed at the trial. I am unable to
agree with this finding. Notably, while Mr Wagenaar
was
cross-examined about the various aspects, which the respondent’s
counsel put to him point to the fraud that he, the appellant
and her
husband, Mr Duncan, had perpetrated ‘… to defraud these
companies out of the sum of R250, 000.00 …’,
he
inter
alia
responded
by saying that counsel was making ‘… allegations about
fraudulent transactions that was not [his] understanding
what the
case was about’ and that ‘…no request was made to
[him] to produce evidence or emails substantiating
what [he] was
saying.’ There is, in my view, no reason to doubt the
correctness of his evidence in this regard. The case
as pleaded by
the plaintiff is not based on fraud. The respondent
inter
alia
relied
on a selection of e-mail correspondence and the construction placed
by Mr Cunningham-Moorat on the contents thereof in support
of the
respondent’s averments of the commission of fraud by the
appellant, Mr Duncan, and Mr Wagenaar.
[9]
The perpetration of fraud was, in my view, in any event not proved
clearly and distinctly. An important issue which the court
a
quo
was
required to decide is whether, in terms of the written agreement
dated 17 August 2007 as amended by the applicable addendum,
the
services of the appellant had been engaged to manage the Parmed /
Medplus members from 1 August 2007, or only from 1 December
2007.
Central to the respondent’s contentions that the appellant, Mr
Wagenaar, and Mr Duncan defrauded BMS of the sum of
R250, 000.00, is
the respondent’s contention, as appears from the evidence of Mr
Cunningham-Moorat, that the initial period
of Ms Miller’s
appointment to manage the Parmed / Medplus members was renewed and
that the transition of their management
from Ms Christine Miller to
the appellant only occurred in February 2008 as contended for by the
respondent, and not during August
2007, as contended for by the
appellant. The evidence of Ms Dawn Davids is important. She was the
only independent witness not
embroiled in the personal conflicts
inherent in this matter. I have mentioned that she has been the
Principal Officer of Parmed
since January 2006. Her evidence, as
will be seen below, corroborates that of the appellant, Ms Miller, Mr
Wagenaar, and Mr Duncan
in material respects and is consistent with
the employment of the appellant to manage the Parmed / Medplus
members with effect
from 1 August 2007. The evidence of the
appellant and her witnesses does not correspond in all respects, and
it would be surprising
if it did. In broad outline, however, they
corroborate each other in material respects. Inferences drawn by the
trial judge and
findings made about the probabilities and
improbabilities do not take account of all the evidence and by
necessary implication
involved a rejection of material parts of the
evidence of Ms Davids and of other pieces of duly corroborated
evidence without it
being clear why such evidence was rejected. See:
Louwrens v
Oldwage
2006
(2) SA 161
(SCA), para [14].
[10] It
is, in my view, also clear from a reading of the record of the
proceedings that the evidence of Mr Cunningham-Moorat was
not
satisfactory and reliable in various material respects. He, as I
have mentioned, was ‘… tasked in late 2007 to
start
looking into the affairs of the group of companies’. He was
not a director of BIU or of BMS during the period relevant
to these
proceedings nor was he involved in the appellant’s appointment
or re-appointment as an intermediary for BIU or in
the expansion of
her duties insofar as the Parmed / Medplus members were concerned or
in the discussions relating to the payment
in issue. He became a
director of BIU on 1 May 2008. His evidence on certain material
aspects is based on supposition or conjecture
and in some material
respects in conflict with admitted facts and even self-contradictory.
One detects a bias on his part to establish
the respondent’s
contentions of fraud. Documents that are inconsistent with the
respondent’s contentions of fraud
– particularly the
addenda in issue; a letter dated 21 August 2007 that confirms the
appellant’s appointment to service
or manage the Parmed /
Medplus members as from 1 August 2007; and a letter dated 30 August
2007 from Ms Miller to Mr Duncan and
to the appellant - were
dismissed by Mr Cunningham-Moorat as fraudulent or as highly
suspicious on grounds that, in my view, do
not justify any such
inference within the context of the totality of the evidence and the
general probabilities.
[11] I
now propose to elucidate my findings and to discuss the probabilities
with reference to the chronology of pertinent events
that unfolded
during the relevant period. See:
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell at Cie and
Others
2003
(1) SA 11
(SCA), paras [5] – [7].
[12] It
appears from the unchallenged evidence of Ms Davids, of Mr Wagenaar
and of Mr Fourie that the previous Principal Officer
of Parmed, Mr
Solly Fourie, was removed from that office when it came to light that
he also acted as broker in respect of Medplus
and that he received
commission from BMS. Ms Davids was appointed in his stead during
January 2006. Mr Fourie’s appointment
as broker in charge of
servicing or managing the Parmed / Medplus members was also summarily
terminated and Ms Christine Miller
was initially appointed in his
stead.
[13] Ms
Davids testified that Parmed had a responsibility to ensure the
continued servicing of Parmed members as far as Medplus
was concerned
since it was initially introduced to them through its former
Principal Officer. She was concerned about the continued
servicing
to the Parmed / Medplus members, but she received assurances from Mr
Duncan ‘… that Bensure was still committed
to providing
services to Parmed members and … that they would have a broker
or consultant that would be able to assist in
terms of servicing and
that was … how (she) got to meet Ms Christine Miller. Mr
Duncan confirmed that discussions were
held between him and Ms Davids
at the beginning of 2007 ‘… as a result of an improper
arrangement that existed between
Bensure and the then Principal
Officer of Parmed Medical Scheme who received commissions from
Bensure which arrangement came to
an end in 2006.’
[14] Ms
Christine Miller testified that she had been appointed by BIU for an
initial period of six months as from 1 March 2007 until
31 August
2007 to manage the Parmed / Medplus members as a part-time function
since she had at that time been full-time employed
by a company
called Blue Zone in the capacity of its Western Cape Regional
Manager. The duties which she performed in connection
with the
Parmed / Medplus members at the time were ‘…to service
existing clients …’ in the Western Cape
area. The
appellant testified that she initially served in a sales function in
marketing Medplus. She also assisted her sister,
Ms Christine
Miller, who was appointed ‘part-time’ to service and
maintain existing Parmed / Medplus members in the
Western Cape, in
Gauteng since Ms Miller lived in Cape Town and was unable to travel
to Johannesburg. Ms Davids testified that
she had gone on maternity
leave from 1 July until 1 September 2007. Prior to her going on
maternity leave Ms Christine Miller
was the key contact person
insofar as the servicing or management of the Parmed / Medplus Scheme
members was concerned in the Western
Cape. Ms Davids and Ms Miller
had two meetings and they also spoke telephonically during 2007
before Ms Davids had gone on maternity
leave. Ms Davids testified
that the appellant played a mere secondary role during this period.
[15] Mr
Wagenaar testified that during about May 2007 he was alerted to the
fact that Ms Christine Miller was not performing the
functions that
were required of her in terms of servicing the Parmed / Medplus
members. She did not have sufficient time or
resources to service
them. The matter was discussed between him and Mr Duncan. A
decision was made to appoint the appellant in
the stead of Ms
Christine Miller. Mr Duncan testified that due to a reduction in the
number of Medplus policy holders who were
members of the Parmed
Medical Scheme and the little or no service or attention they were
receiving from Bensure at the time, it
was decided to appoint a
dedicated experienced person to sustain and conserve the policy
holder base and attempt at the same time
to increase the number of
Parmed / Medplus policy holders, which decision resulted in the
appointment of the appellant in August
2007. The appellant testified
that she was approached by Messrs Wagenaar and Duncan to service
Parmed on a fulltime basis. She
was issued with the letter dated 21
August 2007, which confirmed her appointment as from 1 August 2007.
Her evidence in this regard
is corroborated by that of Mr Wagenaar,
who testified that the letter was written to the appellant in order
to advise her that
she had been appointed to service the Parmed /
Medplus members.
[16] The
letter dated 21 August 2007 is from BMS and it was signed by its
managing director, Mr Wagenaar. Reference is made to
recent
discussions between them and to an agreement that BMS had appointed
the appellant ‘to service existing and future
Medplus members
who are current or past members of Parmed Medical Scheme’ and
for the appellant ‘to receive full commission
due in respect of
these members.’ Mr Cunningham-Moorat
inter
alia
testified
that this letter was blatantly fraudulent and an
ex
post facto
attempt
at validating the addenda and the payment of the amount of R250
000.00, ‘…a flagrant attempt to justify what
was done.’
Mr Cunningham-Moorat supported the respondent’s contentions of
fraud by testifying, and this is common
cause, that the letterhead
used had been withdrawn from circulation in late January 2007 at the
direction of Mr Wagenaar, because
it was incorrect. The company
registration number reflected on it had an error and the letterhead
reflected Mr James Potgieter,
who at the time was no longer a
director, as one. Mr Cunningham-Moorat further supported the
respondent’s contentions of
fraud by referring to two identical
letters with only the signature of Mr Wagenaar differently positioned
on each. Apart from
the explanations proffered by Mr Wagenaar when
he testified being plausible - that there were about 20 000 of the
incorrect letterheads
in circulation and his conclusion was
accordingly that the letters under consideration had been typed on
letterheads that had not
been withdrawn in accordance with his
instructions, and that each of the two letters might have been
originally signed by him in
order to retain one for record purposes
and to furnish one to the recipient thereof – it is, in my
view, incomprehensible
how two identical letters on incorrect
letterheads and each one originally signed by Mr. Wagenaar, can
support the respondent’s
contentions of fraud.
[17] When
Mr Cunningham-Moorat testified he pointed out that the appointment in
terms of this letter was between BMS and the appellant
whereas the
appointment in terms of the addenda was between BIU and the
appellant. BMS, according to Mr Cunningham-Moorat, had
no authority
‘to bind BIU in any way’ or ‘to contract on behalf
of BIU.’ It is, however, stated in the
letter that the
appellant’s appointment was in accordance with the Medplus
Master Policy issued to BMS by BIU and that ‘[i]n
terms of this
Policy BMS allocates servicing resources to Medplus members insured
under the Policy.’ The contention made
by Mr Cunningham-Moorat
on behalf of the respondent has no value without first having insight
into the terms of the Medplus Master
Policy. The existence of the
Medplus Master Policy, however, was questioned when Mr Wagenaar was
cross-examined. He, however,
insisted that it existed. He testified
that it was issued by BIU to BMS as the administrator of its Medplus
product range and
that it, to the best of his recollection,
inter
alia
‘…
provided for the administration and recruiting of brokers and payment
of commission to brokers …’.
The evidence of Mr Duncan
is that he personally assisted in the drafting of the Master Policy
and that it existed. He testified
that in terms thereof BMS was
appointed the administrator on behalf of BIU for premium collections,
claims payment and all administrative
operational functions. BMS
received an administration fee for performing these functions as well
as a 20% commission for health
and personal accident products insured
by BIU and administered by it. He testified that BIU and BMS had
subsequently also concluded
an administration agreement which
inter
alia
governed
the management of funds, such as premiums collected, investments and
various other operational issues.
[18] I
am of the view that the letter dated 21 August 2007 supports the
appellant’s version, and that of Messrs Wagenaar and
Duncan,
that she was appointed to manage the Parmed / Medplus members from 1
August 2007, even if Mr Wagenaar’s reliance
in the letter on
the terms of the Master Policy were incorrect, which is a finding
that cannot be made in the absence of perusing
the terms thereof. If
this letter was an
ex
post facto
attempt at validating the addendum with effective date 1 August 2007,
as was testified by Mr Cunningham-Moorat, one would have
expected the
letter to have mirrored the parties to the addendum.
[19] Ms
Christine Miller testified that the appellant had told her during
approximately late July 2007 about her appointment as
from 1 August
2007, and that the appellant took over the whole Parmed base on 1
August 2007. Ms Christine Miller testified that
her six month
intermediary contract with BIU terminated at the end of August 2007.
Blue Zone was not willing to permit her to
also work for Bensure.
She accordingly, by letter dated 30 August 2007, addressed to Mr
Duncan and to the appellant, advised
them that she would ‘…
no longer be able to assist …’ the appellant and she
requested that her details
be removed from the Bensure
‘representative list’. I interpolate to mention that her
reference to assisting the appellant
in this letter is entirely
consistent with her evidence that the appellant took over the whole
Parmed base as from 1 August 2007.
[20] A
disciplinary hearing was settled between Ms Miller and Blue Zone
during the middle of September 2007, pursuant to which settlement
she
resigned her employment with Blue Zone. It is accordingly not
surprising that Mr Cunningham-Moorat could not refer to any
document
that evidences the renewal of Ms Miller’s initial six month
appointment to manage the Parmed / Medplus members beyond
the
termination date 31 August 2007. Mr Nicholas Cunningham-Moorat
found Ms Miller’s letter dated 30 August 2007 ‘highly
suspicious’, a sentiment which I do not share with reference to
the totality of the evidence and the general probabilities.
[21]
Ms Davids testified that shortly after her return to work from
maternity leave, which was on 1 September 2007, she had a
meeting
with Messrs Duncan and Wagenaar, when they
inter
alia
again
discussed ‘…the way going forward.’ Ms Davids
testified that she knew that they were looking at ‘…expanding
the brand of Medplus.’ The ‘unfortunate situation’
with regard to Parmed’s previous Principal Officer
was
discussed as well as the stance of the Parmed Board of Trustees,
which was that Parmed had a responsibility towards its members
to
ensure that they receive proper service insofar as Medplus was
concerned. Ms Davids testified that members did not know who
to
contact and who the broker was at the time. She testified that Mr
Duncan advised that the appellant would be taking over the
role of
broker for the Parmed members. In this regard Ms Davids said the
following when she testified:
‘
I think
Christine had another job or something to that effect. I am not quite
sure of the details but I know that she was no longer
capable or able
to in actual fact service the members and that Mary Duncan would in
actual fact be taking over that particular
role on a fulltime basis.’
Mr
Wagenaar and Mr Duncan confirmed that a meeting between them and Ms
Davids was held, although they estimated the date of the
meeting as
having been around August 2007. Mr Wagenaar testified that the
appellant’s appointment was discussed at that
meeting and that
she would be the broker who would be liaising with Ms Davids on
behalf of the Bensure group.
[22] Ms
Christine Miller testified that she had a meeting with Messrs
Wagenaar and Duncan on 19 September 2007, when she explained
to them
that she had lost her position at Blue Zone and they then agreed that
she could continue as before to service the Parmed
/ Medplus members
in the Western Cape. Mr Duncan also testified about a meeting in
Cape Town that was attended to by Ms Christine
Miller, Mr Wagenaar
and him at a time when she did not have full-time employment. He
testified that she asked whether she could
continue to service the
Parmed / Medplus members in the Western Cape and that Mr Wagenaar
made the decision that she could continue
to be involved. The
appellant, in the words of Ms Miller, ‘… was the leader
in running the business.’ Ms
Miller took up fulltime
employment at Old Mutual as an investment consultant on 1 February
2008, and it is undisputed that her
involvement in servicing the
Parmed / Medplus members then finally ended.
[23] The
duties and responsibilities that the plaintiff testified she had
carried out since August 2007 were not challenged when
she was
cross-examined and support the appellant’s version of her
having managed the Parmed / Medplus members during the
disputed
period. Her evidence about the management services rendered by her
in respect of the Parmed / Medplus members is also
in material
respects corroborated by that of Ms Davids. Ms Davids testified
that the appellant
inter
alia
flew
down to Cape Town to meet her, maintained regular contact with her as
‘the corporate client’, kept her informed
and provided
her with information regarding Medplus, of communications that were
going out to members and communications between
the appellant and
Parmed members, provided her during November 2007 with a Medplus
brochure with the appellant’s contact
details for inclusion in
the Parmed’s annual newsletter. Ms Davids described the
services that the appellant had rendered
to Parmed members as
‘marketing’, ‘servicing’ and ‘maintaining
a relationship’ with her. In
an e-mail that Ms Davids had sent
to the appellant on 7 November 2007, she
inter
alia
commented
to her that she was ‘… glad that members are finally
getting the service that they need …’
Ms Davids
testified that as far as she was concerned ‘…it was
obviously Mary Duncan …’ who was rendering
the service
and that ‘Christine Miller was not part of it at that point in
time.’
[24] The
trial judge found that:
‘
It is improbable
that the plaintiff would appoint the defendant to manage the Parmed
base in August 2007 at a time when Miller was
rendering such a
service at a substantially lower commission (approximately R7 500.00
as compared to the defendant who was being
paid approximately R40
000.00). This occurred at a time when the Bensure Companies were
suffering a cash flow crisis. This further
begs the question why the
plaintiff would reinstate Christine Miller’s contract in
September 2007 at a time when defendant
had been purportedly
contracted to service the Parmed base.’
The
trial judge also reached the following conclusions:
‘
The fact that
Miller continued to receive the R7 500,00 per month commission for
servicing the Parmed base throughout 2007 and until
February 2008
coupled with the fact that Defendant did not enquire as to or demand
payment of commission until February 2008 points
to the likelihood
that Miller was the only person contracted by BIU during the period
August 2007 to February 2008 to service the
Parmed base. It is
highly improbable that the defendant’s contract to the service
the Parmed base started in August 2007
as alleged by her.’
[25] I
return to the finding of the trial judge about the fact that the
appellant did not enquire or demand the monthly payment
of commission
to her until February 2008.
I disagree with
the findings of the trial judge relating to the probabilities. They
ignore the evidence. Ms Miller was not ‘…
contracted by
BIU during the period August 2007 to February 2008 to service the
Parmed base’. The evidence establishes that
she was appointed
on a part-time basis to service the Parmed / Medplus members from 1
March until 31 August 2007. Ms Miller was
again appointed on the
same part-time basis from 19 September 2007 until 1 February 2008.
The appellant was appointed on a full-time
basis from 1 August 2007
to service or manage the Parmed / Medplus members until her
employment was terminated on 30 January 2009.
The fact that Ms
Miller was accommodated and re-instated in a part-time position at a
nominal monthly remuneration in comparison
to that which the
appellant earned, does not, in my view, in any way detract from the
account of the appellant and her witnesses
on the disputed issues and
does not establish any probability in favour of the respondent’s
contentions. It is – especially
in the light of the importance
of the Parmed business to BIU and BMS, which is a fact that also
filters through the evidence of
Mr Cunningham-Moorat, and the
assurances that had been given to Ms Davids relating to the
management of the Parmed / Medplus members
- improbable that the
position of managing the Parmed / Medplus members would have been
left vacant for an indefinite period from
1 September 2007 when Ms
Miller’s initial six month intermediary contract had ended, and
probable that the appellant had
already been appointed in the
position of Ms Miller as from 1 August 2007. The evidence also fully
explains the discrepancy between
the rate of commission paid to Ms
Miller and that paid to the appellant. Ms Miller was appointed
part-time. The level and quality
of management services rendered by
her made it necessary to appoint the appellant, who was appointed
full-time, and who turned
out to render excellent services. BIU
continued to employ the appellant in that position at the same rate
of commission until
30 January 2009.
[26] The
appellant testified that she had not been paid the Parmed commission
that had been due to her since August 2007. She
had been aware that
Bensure experienced financial shortages or difficulties at the time.
The financial difficulties experienced
by particularly BMS at the
time are undisputed. Mr Fourie testified that there were ‘…critical
cash flow shortages…’.
Commissions owed to brokers had
not been paid on time. Also, it is undisputed that the services of
Mr Fourie as Financial Consultant
were
inter
alia
obtained
to assist with the cash flow situation. Mr Cunningham-Moorat also
testified that BMS ‘… was in a cash flow
crisis as was
the group as a whole.’ Mr Wagenaar testified that although
commission was due to the appellant by virtue of
the agreement with
her, she had not been paid only for the reason that the Bensure group
of companies was experiencing significant
cash flow difficulties at
the time.
[27] The
trial judge referred to the fact that the appellant did not make
reference to the Parmed commission for a period of 4 to
5 months, and
that it was first raised by her in an e-mail dated 12 December 2007,
addressed to Mr Moodley, who was the financial
manager at the time,
and which she also copied to Messrs Wagenaar and Duncan. She records
in that e-mail that she has been servicing
Parmed with Ms Christine
Miller over the past six months and she states that due to a level of
commitment from Ms Davids and ‘…her
willingness for
Inyathi to represent and service Medplus members within Parmed …
I feel that this commitment on Dawn David’s
behalf
should
entitle Inyathi Financial Services to the Parmed commission, bearing
in mind that no remuneration has been paid to date.’
The trial
judge found that
‘
This is
certainly not a letter indicative of an existing contract which would
of itself entitle the defendant to be paid in terms
of the contract
but rather seems to be a motivation as to why she should be paid for
the Parmed work.’
[28] I
am of the view that the contents of this e-mail do not in any way
detract from the appellant’s version of a contractual
entitlement to remuneration when it is considered within the context
of the events as they unfolded at the time. She also specifically
refers to the fact that ‘…no remuneration has been paid
to date.’ It is, in my view, probable that the only
reason why
the appellant had not been paid and the only reason why she had not
demanded the Parmed commission due to her was because
of the cash
flow crisis experienced by the Bensure group of companies, and
particularly BMS, at the time.
[29] Mr
Wagenaar testified that it had been brought to his attention that the
appellant was extremely unhappy about the fact that
she had not been
paid commission for a period of four or five months and that she had
a ‘very close relationship’ with
Ms Davids. Mr Fourie
testified that the issue of arrear commission owed to the appellant
had been reported in management meetings
that he attended. Mr
Wagenaar was of the view that the appellant should be paid the arrear
Parmed commission that was owing to
her as soon as possible. Mr
Duncan testified that it was decided to pay the five or six months’
arrear commission to the
appellant since BMS was able to conserve the
number of Parmed members through the excellent services that the
appellant was rendering.
[30] Mr
Wagenaar testified that an executive or management meeting was held
when he consulted Mr Duncan, Mr Potgieter and Mr Sivvy
Moodley, who
were the only available executives at the time, about the matter of
the arrear commission due to the appellant.
Mr Wagenaar’s
evidence relating to this meeting is corroborated in material
respects by that of Mr Potgieter and of Mr Duncan.
It is undisputed
that BMS was entitled to payment of an amount of R500, 000.00, which
was held in trust by its attorneys who collected
the money on its
behalf. BMS’s bank account, which was held at Nedbank, was
overdrawn to such an extent that monies credited
to it would have
been absorbed by its debit balance. Funds to enable BMS to pay the
appellant the arrear commission that was owed
to her would
accordingly not have been available to BMS if the amount of R500,
000.00 was credited to its overdrawn Nedbank account.
Mr Potgieter
testified that Mr Wagenaar sought his advice on whether the
respondent’s FNB account could be used ‘as
a conduit’
to receive the funds to which BMS were entitled in order for the
money not to be swallowed up by its Nedbank overdrawn
account. His
advice was that the FNB account could be used as a conduit as long as
the balance credited to that account was paid
into the BMS account
after ‘the creditor’ had been settled. Mr Wagenaar
testified that it was decided that the most
viable way of resolving
the problem of paying the appellant her arrear Parmed commission was
to instruct BMS’s attorneys
to pay the money into the
respondent’s FNB account, which was the only non-Nedbank
account, and to pay the appellant the
amount that was due to her on a
rough calculation and to reconcile the payment to her at a later
stage. Mr Duncan testified that
Mr Wagenaar requested him to arrange
for the funds to be paid into the respondent’s account. Effect
was given to the instruction
of Mr Wagenaar and the sum of R500,
000.00, to which BMS was entitled, was credited to the FNB account of
the respondent on 24
January 2008. On 28 January 2008, Mr Wagenaar
caused the sum of R250, 000.00 to be electronically transferred from
the respondent’s
FNB account and credited to the respondent’s
bank account. The balance in the sum of R250, 000.00 was transferred
from the
respondent’s FNB account and credited to BMS’s
Nedbank account on 7 February 2008.
[31] I
disagree with the finding of the trial judge that ‘…
Wagenaar and Duncan could not satisfactorily explain why
BMS’
attorney was instructed to pay the R500, 000.00 to the [respondent].’
The evidence of Messrs Wagenaar, Duncan
and Potgieter on this aspect
is clear and convincing and I have mentioned that they corroborated
each other in material respects.
It is probable that the payment of
the Parmed commission owing to the appellant would have become a
priority, especially in view
of the fact that it had mounted to just
about six months in arrears, the excellent services that the
appellant had rendered in
connection with the Parmed / Medplus
members, and the perceived potential harm which she could have caused
to the business of BIU
and of BMS by virtue of the business
relationship which she had built up with Ms Davids. The unorthodox
method of paying the arrear
Parmed commission to the appellant does
not in any way support the respondent’s contentions of fraud in
the light of the
undisputed prevailing financial circumstances at the
time.
[32] The
appellant testified that when the sum of R250, 000.00 was paid into
her bank account with reference ‘Bensure Parmed
com.’,
she accepted that it represented six months’ Parmed commission,
which she worked out was ‘… more
or less right.’
The appellant testified that she had requested the reconciliation of
the lump sum payment that had been
made to her, but she never
received one. Her evidence in this regard is corroborated by that of
Mr Duncan. Her assumption about
the lump sum payment that had been
made to her is supported by the payments listed in the pre-trial
minute, which the respondent
admitted were made to her by the
companies that attended to BIU’s administration on behalf of
BIU, and the evidence of Mr
Cunningham-Moorat and that of Mr Duncan.
During his evidence in chief Mr Cunningham-Moorat testified that the
appellant, in terms
of the contractual arrangement between her and
BIU, received between R40 000.00 and R42 000.00 a month from February
2008 for managing
the Parmed/Medplus members. Mr Duncan testified
that the commission that was due and payable to the appellant was an
amount ‘…
of 20% of the total premium paid which is an
industry standard …’ and it approximated to about R45,
000.00 per month
on a simple calculation.
[33] The
trial judge also found that Mr Wagenaar ‘… had no
authority to make the electronic transfer that effected
payment to
the [appellant].’ I disagree with this finding. The
respondent in terms of the admissions recorded in the pre-trial
minute admitted that a list of payments that had been made to the
appellant during the period 9 March 2007 until 13 January 2009,
which
list included the payment in issue, had been made by ‘…
duly authorised representatives of Bensure Management
Services (Pty)
Ltd and Zenith Administration Services (Pty) Ltd. When he testified,
Mr Cunningham-Moorat sought to exclude the
payment in issue from the
respondent’s pre-trial admission on the basis that he had no
confirmation of authority for the
payment of R250, 000.00 to the
appellant. He, however, also testified that Mr Wagenaar was the only
person authorised as a director
at the time to be able to make
transactions in that account.’ The account he referred to was
that of the respondent. It
is common cause that Mr Wagenaar was the
managing director of BMS and a director of the respondent when he
caused the payment to
be effected to the appellant. No other
grounds, apart from the fraud upon which the respondent relied, were
advanced in support
of the respondent’s challenge of the
authority of Mr Wagenaar in both his capacities to have caused the
payment to be effected
to the appellant.
[34] The
appellant testified that she was required to sign an addendum. Mr
Wagenaar’s response to the appellant’s e-mail
dated 12
December 2007 in which she made an appeal to be paid the Parmed
commission
inter
alia
reads
as follows:
‘
I have discussed
this at length with Rob. My suggestion is to do an addendum to the
current broking contract for the appointment
of Inyathi as brokers to
Parmed. I don’t see this as a major stumbling block but will
advise should any problems arise.
The current position is that Rob
will be drawing up the addendum for signature on my return on 10
th
of January.’
The reference to Rob in this
quotation is a reference to Mr Duncan. The trial judge held that Mr
Wagenaar ‘… was unable
to proffer an explanation as to
why he would suggest that an addendum be concluded if he had already
addressed a valid letter of
appointment to the defendant on 21 August
2007.’ The inability of Mr Wagenaar to have proffered an
explanation in the witness
stand or to have supported the evidence of
Mr Duncan on these aspects are, in my view, plausible when account is
taken of their
respective positions at the time. Mr Duncan testified
that despite the appellant’s appointment in writing during
August
2007, he ‘… as part of an audit process to ensure
that documentation and addendums or addenda to agreements were in
place’ was requested to prepare an addendum to the standard
broker contract that had been issued to the appellant that confirmed
her appointment. The addendum came into being ‘…as a
function of the KPMG audit.’
[35] The
appellant testified that she signed an addendum without properly
reading it early in January 2008, after Mr Wagenaar had
returned from
leave. She later realised that its effective date, which was 1
December 2007, was incorrect. Upon her insistence
the error was
corrected and a new addendum with effective date 1 August 2007 was
prepared. Mr Wagenaar also testified that the
effective date 1
December 2007 was incorrect and should have been 1 August 2007,
because that was the date of the appellant’s
appointment as the
broker for the Parmed / Medplus members. Mr Duncan testified that he
was responsible for the preparation of
the addenda and that the
effective date 1 December 2007 was incorrect and that the addendum
was accordingly redone with the correct
effective date of 1 August
2007. He testified that the addendum is an addendum to the initial
agreement which followed the appellant’s
letter of appointment
dated 21 August 2007, in terms whereof she was appointed as a
representative for the Parmed/Medplus members.
[36] Mr
Wagenaar testified that he had signed each addendum on behalf of BIU
during January 2008. He did not date his signature
and the signature
date 30 November 2007 was written in the handwriting of Mr Duncan,
which Mr Duncan confirmed when he testified.
The explanation
proffered by the appellant and by Mr Duncan for the backdating of Mr
Wagenaar’s signature date to 30 November
2007 is that it was
done at the insistence of the appellant to coincide with the date 30
November 2007, which was the date of the
Medplus brochure or letter
that referred to the appellant’s contact details as the Parmed
/ Medplus broker and which brochure
was included in Parmed’s
annual newsletter to its members. The appellant testified that she
signed the addendum with effective
date 1 August 2007 during January
2008, and she dated her signature 1 December 2007, which was the same
date that she had dated
her signature on the addendum with effective
date 1 December 2007. It was an arbitrary date.
[37] I
have mentioned that the appellant continued to render services as an
intermediary and to manage the Parmed / Medplus members
until 30
January 2009. It was common cause before the trial commenced that
the contractual relationship between BIU and the appellant
was
initially governed by the written contract dated 23 February 2007,
and thereafter by the written contract dated 17 August 2007.
It was
also common cause that the written contract dated 17 August 2007 was
amended in terms of an addendum that extended the appointment
of the
appellant also to the management of the Parmed / Medplus members.
The appellant relied on the validity of the addendum
that was
effective from 1 August 2007, and the respondent on the one that was
effective from 1 December 2007. The respondent also
made the
pre-trial admission that the appellant rendered services pursuant to
the written agreements concluded on 23 February 2007
and 17 August
2007 and the written addendum which was effective from 1 December
2007. When he was cross-examined, Mr Cunningham-Moorat
contradicted
these facts and also his earlier evidence. He then maintained that
both addenda were fraudulent and neither formed
the contractual basis
upon which the appellant managed the Parmed / Medplus members since
February 2008. He testified that the
appellant was paid for such
services since February 2008, because of an ‘… ethical
responsibility as a business to
pay for services rendered …’
and he also contradicted this contradictory evidence by testifying
that the payments
were made to her, because ‘… there was
a tacit agreement in place …’
[38] The
common cause fact that the signature dates of both addenda were
backdated is, in my view, immaterial and does not support
the
respondent’s initial contention that the one was fraudulent and
the other one not since both were backdated to the same
dates. The
backdating of the addendum effective from 1 August 2007 does not
support any inference or conclusion that it was done
to fit into any
fraudulent scheme even if it is accepted, and I make no finding in
this regard, that plausible reasons for the
backdating were not given
by the appellant and by Mr Duncan. One would have expected the
signature dates on that addendum to have
been backdated to August
2007, or even a date prior to that, if it was backdated as part of a
fraudulent scheme ‘…
to channel R250, 000.00 to [the
appellant] …’ as is contended for on behalf of the
respondent.
[39] The
trial judge also held that the appellant
‘…
cannot
in any event rely on the addendum because it was signed by Wagenaar
at the time when he knew that he was not a director of
BIU and
therefore not authorised to sign.’
I
disagree with these findings. It is not the prerogative of the
respondent to avoid an agreement that was concluded between BMS
and
the appellant. Nevertheless, these issues have not been raised on
the pleadings nor can it be found that they were fully canvassed
at
the trial. It also does not follow from the fact that Mr Wagenaar
was no longer a director at the time when the addendum was
concluded
that he was ‘therefore not authorised to sign.’ The
following passage in Blackman Jooste Everingham
Commentary
on the Companies Act
Vol
I, at p 4 – 125, elucidates the point:
‘
The power to
conduct and manage the affairs of a company are vested in the first
place in the members in general meeting, the directors
and the
managing director. Their function and powers are to be found in the
articles and the Companies Act. In addition certain
persons may be
employed by the company in terms of service contracts to manage
certain aspects of the company’s affairs and
these persons may
also by virtue of contracts of agency be empowered to enter into
certain transactions on behalf of the company.
When these persons
enter into transactions that fall within the scope of their powers,
the company is bound.’
Furthermore,
the mere fact that Mr Wagenaar knew that he was not a director of BIU
at the time when he signed the addendum does
not preclude the
appellant to rely thereon. On the contrary, she may establish that
BIU is estopped from relying on any lack of
authority which Mr
Wagenaar might have had at the time of concluding the addendum.
[40] The
fact that the appellant did not request payment of the Parmed
commission due to her on a monthly basis ‘until after
February
2008’ must also not be considered in isolation but with
reference to the evidence of the events as they unfolded
during the
relevant period of time. The evidence establishes that the appellant
was not paid the Parmed commission that was due
to her as a result of
the cash flow problems experienced by the Bensure group of companies
and particularly that of BMS at the
time. The estimated commission
that was due to her for the six month period from August 2007 until
January 2008 was paid to her
on 28 January 2008. On 21 February
2008, the appellant forwarded the following e-mail to Mr Wagenaar:
‘
Hi Gavin, thank
you for sorting out the Parmed broker contract and commission
due
to Inyathi Financial Services. Can I now assume the commission will
be paid into Inyathi’s account
on
a monthly basis
.’
(
My emphasis)
The
reference to the ‘commission due’ to the appellant that
had been sorted out by Mr Wagenaar is probably a reference
to the
payment of R250, 000.00 that had been made to her on 28 January 2008.
The appellant’s expectation to hence forth
receive her
commission ‘on a monthly basis’ appears clearly from this
communication, which she had forwarded to the
then managing director
of BMS. Her commission earned during February 2008 had not been
paid, and it is accordingly not surprising
that she, during March
2008, sent various e-mail communications in which she requested
payment of the Parmed commission that was
due to her in respect of
the month of February 2008. I disagree with the finding of the trial
judge that the fact that the appellant
‘… did not
enquire as to or demand payment of commission until February 2008
points to the likelihood that Miller
was the only person contracted
by BIU during the period August 2007 to February 2008 to service the
Parmed base.’ The requests
or demands made by the appellant
for the monthly payment of the Parmed commission earned by her since
February 2008 followed upon
her e-mail communication of 21 February
2008 and rather indicates that she was no longer prepared to await
the payment thereof
for months.
[41] In
response to one such request for payment by the appellant during
March 2008, Mr Wagenaar sent an e-mail to Messrs Sivi Moodley,
Duncan, and Potgieter in which he states:
‘
I seem to recall
a letter to Mary whereby Inyathi’s appointment to Parmed was
from December 2007. Rob, could you please help
with this as a matter
of urgency?’
Mr
Duncan responded in stating:
‘
Yes, quite
correct. Sivi has a copy of the contract.’
The
trial judge found that:
‘
This was clearly
a reference to the contract commencing on 1 December 2007. It is
inconceivable that in March 2008, a mere two
months after drafting an
addendum which, on his version reflected the incorrect date, that
Duncan did not remember that the contract
had been backdated to 1
August 2007.’
Mr
Wagenaar was unable to recall what he was referring to in this e-mail
when he testified. He said that he might have been confused
and that
his reference to a letter was ‘more likely’ the letter of
the appellant’s appointment dated 21 August
2007. Mr Duncan
also testified that he was confused at the time of responding to Mr
Wagenaar’s e-mail about the date of
the appellant’s
appointment. Mr Wagenaar, in his e-mail, referred to a letter that
he recalled and Mr Duncan, in his reply,
to a contract. The words ‘I
seem to recall …’ used by Mr Wagenaar in his e-mail
support the probability of
confusion on his part. I consider mere
confusion on their part at the time of the exchange of these e-mails
as to the date of
the appellant’s appointment to service the
Parmed / Medplus members to be the more probable explanation in the
light of all
the proven facts.
[42] The
person with the right of action to recover with the
condictio
indebiti
,
‘… is he who is considered in law to have made the
payment’.
African
Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd
1978
(3) SA 699
(A), at 713A – C. See also:
Bowman,
De Wet and Du Plessis NNO and Others v Fidelity Bank Ltd
1997
(2) SA 35
(AD), at 42G – J. ‘A conduit through whom
payment passes is … not its
recipiens
.
Instead he who obtains payment by such means is.’
Per
Didcott J,
Hefer J concurring, in
Phillips
v Hughes; Hughes v Maphumulo
1979
(1) SA 225
(N), at 228H – 229. These principles should
equally apply to the
condictio
sine causa
.
See:
Agricultural
Research Council v Bredell & Ors
[2005] 1 All SA 515(SCA)
, para [41]. Payment is a bilateral juristic
act and it is a question of fact what was intended when it was made.
See:
Saambou-Nasionale
Bouvereniging v Friedman
1979
(3) SA 978
(A), 993A-C;
Volkskas
Bank v Bankiorp Bpk (h/a Trust bank)
[1991] ZASCA 57
;
1991
(3) SA 605
(A), 612C-E;
Pfeiffer
v First National Bank of SA Ltd
1998
(3) SA 1018
(A), 1025I-J;
Agricultural
Research Council (supra)
paras
[58] – [60].
[43] The
evidence establishes that the respondent acted as agent of BMS or as
a mere conduit through which the payment passed and
BMS is to be
considered in law as the person that made the payment (the
solvens
)
and the appellant as the person who received the payment (the
recipiens
).
BMS was responsible for the administration of BIU and under a duty
in terms of the contract between it and BIU to pay commissions
to the
brokers or intermediaries, and also the Parmed commission to the
appellant. The respondent was not under any duty to pay
commission
to the appellant. BMS was entitled to payment of the amount of R500,
000.00, which was held in trust by its attorneys.
The respondent had
no interest in the receipt of the money except as a conduit
inter
alia
for
onward transmission to the appellant. BMS intended that the amount
of R250, 000.00 of its payment to the respondent should
be onward
transmitted to the appellant and the respondent intended to pass it
on to the appellant and in fact did so. The right
of action to
recover the payment in issue was accordingly not available to the
respondent.
[44] I
disagree with the finding of the trial judge that ‘…
neither the evidence before [her] nor the authorities referred
to,
support the contention that the [respondent] was acting as an agent
or conduit of BMS.’ This finding seems to be based
on an
acceptance of Mr Moorat’s speculative suggestion that the
respondent’s FNB account ‘… was used because
it
was the only account where there was limited financial oversight’
and a rejection of essentially undisputed evidence,
which are fully
supported by the probabilities to which I have referred.
[45] I
nevertheless consider whether the general enrichment requirements for
any action based on enrichment are present. They are:
(i) the
appellant must be enriched; (ii) the respondent must be impoverished;
(iii) the appellant’s enrichment must be at
the expense of the
respondent; and (iv) the enrichment must be unjustified.
The
Law of South Africa
vol
9 (2
nd
reissue) para 209.
[46] The
appellant was not enriched. The factual situation is that BMS owed
her about R250, 000.00. The payment received by her
served to
discharge BMS’s debt and she lost her claim for that amount
against BMS. Her net position accordingly remained
the same. See:
B & H
Engineering v First National Bank of SA Ltd
[1994] ZASCA 152
;
1995
(2) SA 279
(AD), 285D – E.
[47] The
respondent was not impoverished. The receipt by it of the money and
onward transmission thereof to the appellant did not
reduce its
patrimony. I disagree with the trial judge’s finding that the
‘effect of the payment’ was that the
respondent owed BMS
R500, 000.00 and that it still owes R250, 000.00 of that amount to
BMS. The intention of BMS and that
of the respondent was not
the conclusion of a loan agreement between them and the payment to
the respondent and onward transmission
of R250, 000.00 to the
appellant did not give effect to any loan agreement. Mr
Cunningham-Moorat testified that a loan transaction
was also not
raised in the financial records of the respondent at the time when
the payments were made. He testified that it was
only when this
‘transaction’ was ‘uncovered’ that it was
‘entered into the books’ as a loan
in the amount of R500,
000.00, of which R250, 000.00 had been repaid and the balance in the
sum of R250, 000.00 ‘still outstanding’.
If a promise to
pay can be inferred from these accounting entries, and I make no
finding in this regard, then the respondent incurred
a liability
towards BMS as a result of such
ex
post facto
entries
and not arising from the receipt and onward transmission by it of the
money to the appellant. In other words, there is
no causal link
between the payment received by the appellant and any such
impoverishment of the respondent. It follows that the
requirement
that a defendant’s enrichment must be at the expense of the
plaintiff has also not been satisfied.
[48] The
payment was made to the appellant in discharge of a debt that was
owed to her. The requirement that the enrichment must
be unjustified
or without cause has therefore not been met. In
Govender
v Standard Bank of SA Ltd
1984
(4) SA 392
(CPD), at p 404, Rose-Innes, J said the following about
the situation where a person is enriched by a payment that he or she
received
as consideration for services:
‘
The fact that he
made a bargain and a profit and has been enriched in the sense of
gaining by the transaction, obviously does not
give rise to the
condictio
sine causa
,
or any
condictio
since his enrichment is contractual and justified and no obligation
arises from justifiable enrichment. In this obvious case there
is no
condictio
sine causa
because
there is justifiable cause for the enrichment, namely the contract.’
[49] In
the result the following order is made:
1. The
appeal succeeds.
2. The
order of the court
a
quo
is set
aside and replaced with the following:
The
plaintiff’s claim is dismissed with costs.
3. The
costs of the appeal are to be paid by the respondent.
TSOKA,
J
[50] I
agree with my brother Meyer, J.
KATHREE-SETILOANE,
J
[51] I
agree with my brother Meyer, J.
M.P. TSOKA
JUDGE OF THE HIGH COURT
P.A. MEYER
JUDGE OF THE HIGH COURT
F. KATHREE-SETILOANE
JUDGE OF THE HIGH COURT