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[2012] ZAGPJHC 139
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Born Free Investments v Firstrand Bank Ltd (39068/2009) [2012] ZAGPJHC 139 (21 August 2012)
NOT
REPORTABLE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
39068/2009
DATE:21/08/2012
In
the matter between
BORN FREE
INVESTMENTS
..............................................................
PLAINTIFF
and
FIRSTRAND
BANK
LIMITED
..............................................................
DEFENDANT
J U D G M E N T
WEPENER J:
[1] The plaintiff, as a
cessionary, instituted an action against the defendant seeking
payment of damages which it alleges arose
as a result of a breach of
a development loan agreement as read with a settlement agreement,
which latter fact is not relevant
for purposes of this judgment. It
is further alleged that breach constituted a repudiation of the
agreement, which was accepted
by the cedent. There are two similar
claims by the plaintiff as cessionary. The cedent, it is alleged, is
the liquidator of the
entities that entered into the contracts with
the defendant, the first cedent being the liquidators of Central Lake
Trading 256
(Proprietary) Limited (‘Central Lake’) and
the second cedent, the liquidators of Summer Season Trading 49
(Proprietary)
Limited (‘Summer Season’). I refer to the
liquidator either in the singular or the plural because there was
more than
one liquidator appointed for each company in liquidation.
Nothing turns on this fact.
[2] In addition, and based on the
cession in the Central Lake matter, the plaintiff, in the
alternative, claims damages based on
misrepresentation allegedly made
by the defendant. During the proceedings before me this claim was
withdrawn and abandoned.
[3] Both parties were in
agreement that the provisions of the Companies Act 61 of 1973 (‘the
Companies Act’), as read
with the Insolvency Act 24 of 1936
(‘the
Insolvency Act&rsquo
;), are applicable to the disputes
between them.
[4] At the commencement of the
proceedings, the defendant launched an application pursuant to
Rule
33(4)
of the Rules, regulating the conduct of proceedings in the High
Courts of South Africa, seeking that the issue of quantum of damages
(‘the damages issue’) and the issue of the validity of
the cessions relied upon by the plaintiff (‘the cession
issue’)
be separated from the remaining issues in dispute. The plaintiff
agreed that the damages issue be heard separately
after the merits
have been disposed of. After hearing argument, I ruled that the
cession issue is to be separated from all other
issues and that it be
determined
ab initio
prior to the remaining issues between the parties being ventilated.
It was quite apparent to me that the cession issue was a matter
that
could be conveniently and sensibly decided separately and that it was
a matter distinct from all other disputes between the
parties. The
plaintiff however, although initially agreeing that the cession issue
also be heard separately and that the question
of damages should be
separated out, resisted the application to deal with the question of
cession
ab initio
.
[5] I will not dwell on my
reasons for ordering a separation for too long. When the defendant
suggested a separation of the cession
issues to the plaintiff in a
letter, it was met with a bland refusal and accompanied by a
suggestion that the matter be heard by
the court. Nothing in the
correspondence indicated why the plaintiff objected to such a
separation and why the defendant was invited
to apply to court for
such a separation. This, the defendant duly did and upon reading the
affidavit in opposition to the separation,
one finds little substance
in the opposition to the application. An attorney acting for the
plaintiff stated that not much time
will be saved by the separation;
special defences foreshadowed in the defendant’s affidavit are
not complex; she denied that
the defendant required so many witnesses
as it stated it wished to call; she denied that it would be
convenient to separate the
issues; she stated that the defendant’s
defences regarding the cession issues were makeweights; she
speculated that it will
take nine years for the trial to finalise
should the matter be separated. None of these statements or arguments
are supported by
facts. On the contrary, both parties advised me
during argument that the witnesses required for the cession issue are
extremely
limited. It is not for the plaintiff to speculate how many
witnesses the defendant may need to call on the merits of the matter.
No inconvenience has been shown. The fact that the trial may take a
few years has already been occasioned by the parties’
agreement
to separate out the quantum issue. In my view, the plaintiff’s
opposition to the separation sought by the defendant
lacks substance
and it would be eminently convenient to decide the cession issue
separately. Indeed to use the words of the deponent
to the affidavit
on behalf of the plaintiff: the reasons for opposing the separation
appear to be
‘
makeweight’.
Mr Potgieter, appearing with Mr S.J van Niekerk, arguing for the
plaintiff, referred to a number of cases in
support of his legal
argument why this matter should not be separated. Many of these cases
deal with the position regarding separation
prior to the amendment of
Rule 33(4).
Rule 33(4)
reads as follows:
‘
If,
in any pending action, it appears to the court
mero
motu
that
there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately from any
other
question, the court may make an order directing the disposal of such
question in such manner as it may deem fit and may order
that all
further proceedings be stayed until such question has been disposed
of, and the court shall on the application of any
party make such
order unless it appears that the questions cannot conveniently be
decided separately.
’
The proviso places an onus on the
plaintiff to show why the cession issue cannot be conveniently
decided separately. In
Berman
& Fialkov v Lumb
2003 (2) SA 674
(C) Van Reenen J said at para 17:
‘
In terms
of the provisions of
Rule 33(4)
in its present form, an application
for the separation of issues by any party must be granted unless it
appears that such issues
cannot conveniently be decided separately
(see
Edward
L Bateman Ltd v C A Brand Projects (Pty) Ltd
1995
(4) SA 128
(T)
at 132D) and it is incumbent on the party who opposes such an
application to satisfy the Court that such an order should not be
granted (see
Braaf
v Fedgen Insurance
Ltd
1995
(3) SA 938
(C)
at 939G).’
See also
Edward
L Bateman Ltd v C A Brand Projects (Pty) Ltd
1995(4) SA 128 (T) at 132C-E.
[6] The affidavit filed by the
plaintiff falls far short from discharging such an onus. Arguments
regarding a possible appeal are
unconvincing as no facts were placed
before me to substantiate the real possibility of an appeal. It
remained an argument. Mr Potgieter
conceded that there may be a
saving of court time and that 90% of the issue was a matter of
construction of the relevant cessions.
It was quite apparent that the
issue would require limited evidence as it concerns primarily a
matter of law. That concession goes
much further. There will be a
large saving of costs and less inconvenience for witnesses if the
cession issue is determined separately.
A further consideration is
that the parties have compiled a trial bundle comprising of some 944
pages, together with two further
lever arch files containing relevant
other applications, being the liquidation application and a
successful application to set
aside a previous cession of rights.
Both applications include evidence under oath by material witnesses
on the merits. Preference
to this significant volume of documents
will become unnecessary should the cession issue be dispositive of
the matter. Mr van der
Nest SC, who appeared with Mr Limberis SC and
Mr J.E Smit on behalf of the defendant, assured me that only a
handful of documents
would be relevant to the cession issue.
[7] I consequently ordered that
the issue of damages be separated from all other issues (as both
parties so agreed) because it appears
convenient to do so and further
that the cession issue (as defined in prayer 2 of the notice of
motion) be separated from the remaining
issues and that it be
determined
in initio
.
[8] Following upon this ruling
the plaintiff called two witnesses to deal with the cession issue.
The second witness, the relevant
official from the Master’s
Office, was not examined after the defendant admitted that all
documents bearing the Master’s
stamp are true copies of the
originals that emanated from the Master’s office. Surprisingly,
the witness was not asked regarding
the contents of certain documents
which were argued before me to have been incorrectly worded or that
it contained mistakes. However,
as a result, the defendant’s
approach taken regarding the appointment of the liquidator referred
to later in the judgment,
nothing turns on this failure.
[9] The only other witness that
gave evidence was Mrs Keevy, a joint liquidator of the two companies,
Central Lake and Summer Season.
I refer to her as the liquidator as
she was the person who dealt with the estates of the companies in
liquidation on behalf of
all the liquidators.
[10] Mrs Keevy’s evidence
centred broadly around the question of the liquidation of both
Central Lake and Summer Season; her
request for support to be
appointed as provisional liquidator; the appointment of the
provisional liquidators by the Master; the
compliance with
requirements such as bonds of security and affidavits of
non-interest; the notices that were given and the meetings
of
creditors which were held; the powers of attorney that were filed;
the minutes of the meetings of creditors (which she did not
attend);
certain letters, advertisements, certificates and resolutions
purportedly adopted at meetings; the sale and cession agreements
of
the claims by the companies in liquidation to the plaintiff.
[11] The above summary indicates
that her evidence was largely presented in an attempt to show that
the formalities were complied
with from the date of liquidation up to
and including the sale and cession of the claims upon which the
plaintiff sues the defendant
herein. It is not necessary to set out
each and every fact which formed the basis of her evidence. The
relevant facts are those
which the defendant attacked and it will be
convenient to summarise the relevant facts only when dealing with
each of the defences
raised by the defendant.
[12] The first issue concerns the
claim brought by the plaintiff as cessionary of a claim which it is
alleged vested in Central
Lake. Although the documents placed before
me regarding the appointment of the liquidator were confusing and
although the Master’s
representative was not asked to clarify
the confusion regarding the appointment of the provisional and final
liquidators, the defendant
approached the issue to be considered on
the basis of the appointment being one as a final liquidator. It was
argued that there
was non-compliance with section 386(3)(a) of the
Companies Act. Section 386(3)(a) reads as follows:
‘
(3)
The liquidator of a company-
(a)
in
a winding-up by the Court, with the authority granted by meetings of
creditors and members or contributories
or on the directions of the
Master given under section 387;
shall have the
powers mentioned in subsection (4).
’
I need not set out the powers
which are contained in subsection 4 as the issue in this matter is
that the liquidator did not receive
powers or authority from a
meeting of creditors and members. It is common cause that the Master
did not give directions under s
387 and the question of
contributories did not arise. The facts leading to the liquidator
entering into the sale and cession of
rights are the following. It is
common cause that Central Lake was wound up by the court. Thereafter
the Government Gazette (‘Gazette’)
of 16 October 2009
advertised a meeting for 28 October 2009 at 10h00 to be held before
the Master in the South Gauteng High Court.
Pursuant thereto, a
second meeting was called in the Gazette of 26 February 2010. It is
stated that the meeting will be held on
24 March 2010 at 10h00 before
the Master of the High Court Pretoria. This was incorrect information
which was published in the
Gazette as the meeting was actually held
on 31 March 2010 before the Master of the High Court Johannesburg.
Mrs Keevy was puzzled
by the incorrect advertisement and she accepted
that the notice in the Gazette was wrong. It is trite that the
liquidator is required
to publish a notice of a meeting of creditors
and members in both the Gazette and in one or more newspapers
circulating in the
district where the company in liquidation had its
registered office or principal place of business. In this matter the
newspaper
advertisement for the second meeting of creditors, loosely
translated, states that it was a notice of a second meeting of
creditors
and it further states that the second meeting of creditors
will take place before the Master of the High Court Johannesburg on
Friday 31 March 2010 at 10h00.
[13] The difficulties highlighted
by Mr van der Nest are twofold. Firstly, the Gazette gives the wrong
date and place for the meeting
and the notice in the newspaper fails
to call members to the meeting. Relying on
Griffin
and Others v The Master and Another
2006 (1) SA 187
(SCA), the defendant contended that, in the absence
of a meeting of creditors and members, the liquidator could not have
received
any powers to conclude the sale and cession, which they
purported to conclude pursuant to powers received at the second
meeting
of creditors. The court in
Griffin
per Zulman JA after quoting s 386(3)(a) of the Companies Act said:
‘
[6]
It is clear that s 386(3) specifies in terms that a liquidator may
only exercise the powers given (with certain exceptions which
are not
here relevant) if granted authority to do so. Furthermore, s
386(3)
(a)
specifies from whom this authority must be obtained; namely, in the
case of a winding-up by the court, meetings of creditors and
members
or contributories or on the directions of the Master. It is not
suggested that in this case there was any authority given
by
contributories or that there were directions from the Master.
[7] The learned
authors Blackman
et
al
in their
Commentary
on the Companies Act
(2002) vol 3 at 14 - 330 correctly state the position in these terms:
‘
'Section
386(3) provides that with the required authority the liquidator
‘shall have the powers mentioned in ss (4)'. Thus
it would seem
that the grant of authority is not merely a condition for the
exercise of those powers, but, is rather, a necessary
condition for
their existence. Where the liquidator requires such authority to
exercise a particular power, other than the power
to litigate [a
situation not of application here], it is open to a third party to
raise the question of the liquidator's lack of
authority” ‘.
The questions that arise are: Did
the incorrect notice of the meeting as to the date and place and
persons who were called to attend
lead to that meeting being a
non-event for failure to comply with s 386(3)(a) and the Companies
Act and regulations, which require
that a notice of meeting should be
given in both the Gazette and a newspaper? Secondly, was the absence
of notice to members fatal
to the holding of the meeting? In
Griffin
at para [9], the court rejected the argument that the words
‘
creditors and
members
’ must be
read disjunctively and not conjunctively. A collective meeting of
creditors and members must be held. The conclusion
was that the
liquidator did not have the necessary authority as required by s
386(3)(a) read with 386(4) of the Companies Act,
if a meeting of both
the creditors and members was not held. The granting of authority is
not merely a condition for the exercise
of the liquidator’s
powers, but a necessary condition for their existence. Mr Potgieter
attempted to meet the difficulties
by arguing that in the
Griffin
matter the word ‘
members
’
was specifically deleted whilst such was not the case in the matter
of Central Lake. He further argued that the defects
in the notices
calling the meeting are covered by the provisions of
s 157
of the
Insolvency Act (which
provision, it was common cause, would be
applicable to the liquidation of Central Lake). It reads as follows:
‘
157. Formal
defects.
—(1) Nothing
done under this Act shall be invalid by reason of a formal defect or
irregularity, unless a substantial
injustice has been thereby done,
which in the opinion of the court cannot be remedied by any order of
the court.
’
[14] I am, however, of the view
that having regard to the facts of this matter that there was no
meeting of creditors and members.
Firstly, members were not called to
a meeting in the advertisement published in the newspaper. Secondly,
only creditors were called
to the meeting which was so advertised. A
creditors’ meeting was advertised in the Gazette to be held on
24 March 2010 in
Pretoria. No such meeting took place. In fact, a
creditors’ meeting was held on 31 March in Johannesburg. One
Schickerling
attended (on behalf of a creditor) but members were not
present thereat. The minutes of the meeting also do not record that
any
members attended the meeting. This is not surprising as they were
not called to attend the meeting on 31 March 2009 in Johannesburg.
[15]
Section 157
of the
Insolvency Act provides
for cures of formal defects of acts performed
under the
Insolvency Act, provided
that there has been no substantial
injustice done as a result of such a formal defect. The question to
be answered is: does the
failure to call members to a meeting and the
fact that the meeting of creditors was called at an incorrect time
and place constitute
such a formal defect?
Mars
,
The Law of Insolvency in South Africa (8
th
edition by De la Rey) says at page 12:
‘
In
deciding whether a defect is formal, the test is not whether the
provisions of the statute are directory or peremptory, but rather
whether the statute aims at some definite object and whether that
object would be defeated by an omission to comply with the statute,
or whether the defect is such that it could not possibly be capable
in the circumstances of affecting the ultimate decision of
the court.
A defect is not formal if the rights of a creditor would in any way
be affected.’
(Footnotes omitted).
[16] In support of the statement
that the defect is not formal if the rights of a creditor would in
any way be affected the learned
authors refer to, inter alia,
Ex
parte Zafiropoulus
1932 TPD 229
at 233;
Ex
parte Jhatam
1958 (4)
SA 33
(N);
Ex parte
Ndlovu
1981 (4) SA 303
(Z). In
Zafiropoulus
the court held that something which affected the rights of creditors
could not be said to be in respect of a formal defect. In
Jhatam
at 34D, Milner J found that the lodging of documents at an incorrect
office was not a formal defect but that the application was
as a
result thereof ‘grossly defective’(at page 35C). In
Ndlovu
the test was set out as follows at page 304H:
‘
The
test of whether a defect such as this is formal or substantive is not
whether the statutory provision is directory or peremptory,
but
rather whether it aims at some definite object and whether, having
regard to the particular facts, non-compliance therewith
will result
in the defeat of that object. See
Ex
parte Miller
1932 TPD 212
at 216;
Ex
parte Curry
1965
(1) SA 392
(C)
at 393A. In
Ex
parte Zafiropoulos
1932 TPD 229
at 233 and
Ex
parte Fakir
1956
(4) SA 177
(C)
at 179D the view was expressed that this type of defect cannot be
said to be formal if it might cause prejudice to the creditors.
That,
to my mind, puts the same test in a simpler form
’.
[17] In
Ex
parte Mandelstam
1949
(3) SA 1210
(C) Horwitz J held that a failure to comply with the
requirements of an Act could not be regarded as a formal defect and
said at
p1211:
‘
That
being so, there is no statutory jurisdiction for the condonation of
defects which do not fall within the last-mentioned section.
And, in
my apprehension, there is no justification under the Act for the
exercise of any so-called right to condone a material
defect which
assumes the form of a non-compliance with an imperative provision of
the statute, except, perhaps, on the principle
of
de
minimis non curat lex
principle which cannot be invoked in the present case
.’
In
Ex
parte Marais and Two Others
1957
(3) SA 311(W)
the decision of
Mandelstam
was followed.
[18] Omission to give proper
notice of surrender has been held not to be a formal defect - see
Ex
Parte Van der Merwe
1963 (1) SA 268
(O) at 271F. See also
Ex
parte Nel
1947 (4) SA
439
(T).
[19] In my view the failure to
call members to a meeting must of necessity cause prejudice to such
members who were not advised
of the meeting to be held on 31 March
2010 in Johannesburg. It is as if no notice was given at all. Members
have rights which they
may exercise at such meetings and the denial
of the exercise of those rights to attend and vote at a meeting is
clearly prejudicial
to them. The object of calling them to a meeting
and securing their attendance has been defeated. The notice in the
Gazette which
calls creditors to a wrong venue on an incorrect date
would similarly be prejudicial to the creditors who were entitled to
attend
a meeting of creditors and exercise their rights thereat.
[20] The notices which called the
meeting at the wrong time and place and which failed to call the
members to attend are, in my
view, so defective that they should be
regarded as
pro non
scripto
. The defects
are fatal and not purely formal.
[21] Having come to the
conclusion that no valid second meeting was held where at the
liquidators could validly receive powers,
the liquidators did not
lawfully acquire authority contemplated in s 386(3)(a) as read with s
383(4) of the Companies Act. The
liquidators consequently lacked
powers to conclude the sale and cession of the Central Lake claim to
the plaintiff.
[22] The effect is that the claim
of the plaintiff, based on the sale and cession from the liquidators
of Central Lake, who received
no powers to sell or cede such a claim,
is bad in law.
[23] The defendant’s
further defences are applicable to both claims ceded by Central Lake
and Summer Season. The cessions
in both instances were concluded as
follows:
‘
1.1 the
cedents have claims against First Rand Bank Limited (“FRB”)
arising out of breach by FRB of agreements with
the cedents and/or
arising out of misrepresentations made by FRB to the cedents (“the
claims”);
2.1 …the
cedents hereby cede, transfer and make over to the cessionary the
cedents’ rights title and interest in and
to the said claims.’
The cessions themselves, as well
as the pleadings in this matter, make it plain that the claims ceded
to the plaintiff arise out
of the alleged breach by the defendant of
the loan agreements.
[24] A defence was pleaded as
follows:
‘
Without
derogating from the generality of the aforegoing denial, the
defendant specifically denies that the rights of performance
and
claims of Summer Season Trading 49 (Pty) Ltd (“Summer Season”)
and Central Lake Trading 256 (Pty) Ltd (“Central
Lake”)
which the plaintiff attempts to enforce, were capable of being ceded,
particularly having regard to clause 15 of the
written agreements,
annexes “SS3”, “SS4” and “CL2” to
the plaintiff’s particulars of
claim, in circumstances where
the defendant did not give its prior written consent to any cession.
’
The plaintiff did not replicate
to this allegation nor does it allege in the particulars of claim
that it indeed obtained such consent.
Mr Potgieter did not argue that
actual consent had been obtained and, in my view, having regard to
the plaintiff’s argument
that consent was not necessary, it
became common cause that the defendant did not consent to the cession
of the claims, whether
in writing or otherwise. Clause 15 of the
development loan agreement provides:
‘
You
shall neither cede any of your rights nor assign any of your
obligations under this agreement without our prior written consent
’.
[25] It is the defendant’s
contention that the rights under the agreement were, despite the
pactum de non cedendo,
sought to be ceded by the liquidators without the defendant’s
consent and thus bad in law as the rights were incapable of
being
ceded by the liquidator to the plaintiff without such prior written
consent.
[26] A further issue raised by Mr
Potgieter was that, whatever the wording of the
pactum
de non cedendo,
the
claims instituted by the plaintiff are not claims under the contract.
For this proposition Mr Potgieter relied on
Imprefed
(Pty) Ltd v National Transport Commissioner
1990 (3) SA 324
(T). Although the court there held that damages for
breach of contract was not the same as a claim under the contract for
remuneration
and that it constituted a new cause of action, it did
not hold, as submitted by Mr Potgieter, that the claim for damages
was not
a claim under the contract.
Imprefed
dealt with different causes of actions arising at different times and
the nature of the causes of action. Botha J did not pertinently
deal
with the question whether a claim for damages as a result of the
breach of the contract arose under the contract or not. Indeed
the
words used in the judgment and particularly at p33B-C, in my view, by
implication accept that such a claim for damages is a
claim ‘
under
the contract
’.
When pressed to indicate where in
Imprefed
it was so held, Mr Potgieter changed his assertion that it was so
held to an argument that it was impliedly so held. There is no
merit
in this argument. In
CGU
Insurance Limited v Rumdel Construction (Pty) Ltd
2004 (2) SA 622
(SCA) at para 10 the Supreme Court of Appeal held as
follows:
‘
The
defendant also placed reliance on the judgments in
Imprefed
(Pty) Ltd v National Transport Commission
and
Evins
v Shield Insurance Co Ltd
.
I believe that both cases are distinguishable on the facts and do not
assist the plaintiff. In the
Imprefed
(Pty) Ltd
case the Court held that a claim for payment of an amount due under a
contract was different from a claim for damages based upon
breach of
contract so that pursuance of the one debt did not interrupt the
running of prescription on the other. The nature of
the other debt
was different. So also in
Evins
'
case which held that a claim for compensation for bodily injury
sustained by the plaintiff was not substantially the same as her
claim for damages for loss of support following the wrongful killing
of her breadwinner, with the result that a summons claiming
one did
not interrupt the running of prescription on the other.
’
[27] No mention is made in
CGU
Insurance
of the fact
that the claim for damages is not a claim under the contract. There
are two reasons why such a claim is indeed a claim
under the
contract. One is the basic right of an aggrieved party to choose
which of his remedies to enforce if his contracting
party is in
breach of his contractual obligations and the second reason is found
in precedent. The basic right is found in every
textbook that deals
with the Law of Contract. I quote for example Christie, the Law of
Contract in South Africa (6
th
edition at page 543):
‘
The
remedies available for a breach, or in some cases, a threatened
breach of contract are five in number: Specific performance,
interdict, declaration of rights, cancellation, damages. The first
three may be regarded as methods of enforcement and the last
two
recompenses for non-performance. As will be seen, the choice between
these remedies rest primarily with the injured party,
the plaintiff,
who may choose more than one of them, either in the alternative or
together, subject to the overriding principles
that he must train
inconsistent remedies and he must not be overcompensated.
’
[28] These remedies are available
to a contracting party only and a third party has no interest
therein, save where rights under
the contract may be lawfully ceded
or assigned to such third party. The claim which a contracting party
may wish to pursue against
a defaulting party is a fundamental right
under the contract. Without the contract it would not have arisen. It
would in my view
be wholly artificial to contend that the transfer of
a claim for damages arising out of a breach of agreement involves no
transfer
of rights under the agreement. The right to sue, which the
plaintiff contends was transferred to it by way of cession, is a
right
under the agreement to claim damages.
[29] Arising out of an acceptance
of the defendant’s alleged repudiation of the loan agreement,
the plaintiff pleads that
Summer Season accepted the repudiation and
cancelled the agreement. As described by Christie (
The
Law of Contract in South Africa
,
supra
,
at pp 561-562), cancellation terminates the primary obligations of
the contract there and then, but not retrospectively. Further,
termination of primary obligations does not terminate secondary
obligations, such as the obligation to pay damages for breach,
or the
obligation to abide by an arbitration clause in the contract. Just as
these secondary obligations remain, so too does the
right to enforce
them, which is a personal right under the contract, capable of
cession (absent a
pactum
de non cedendo
).
[30] The Appellate Division dealt
with this principle as follows in
Attridgeville
Town Council and Another v Livanos t/a Livanos Brothers
(1992 1 SA 296
AD at 303I – 304E) where the question of the
survival of an arbitration clause in repudiated and terminated
agreements arose.
Smalberger JA said as follows:
‘
Did
the arbitration clause survive the termination of agreements?
Livanos claims
that the Appellants repudiated the agreements by calling for tenders
for work already allocated to him in terms thereof.
The Appellants in
turn claim that Livanos repudiated the agreements by ceasing
operations and abandoning the site. Each claims
to have accepted the
other’s repudiation, thereby resiling from the agreements.
Arising from the situation, Mr Zeiss contended
that irrespective of
which party had justifiably repudiated, the parties were ad idem that
the agreements has come to an end. The
legal relationship between
them had accordingly been dissolved, and the arbitration clause had
fallen away. The resulting situation,
so it was argued, is analogous
to one where a contract containing an agreement to arbitrate is
terminated by mutual consent. It
is common cause to speak of the
termination of a contract by one party’s acceptance of the
other party’s repudiation
thereof. One needs, however, to
define with greater precision what, juristically, this encompasses.
By repudiation, in the sense
in which the word is used in the present
matter, is meant the evincing of a clear intention by one party, by
his acts or conduct,
not to perform his obligations under a contract
acknowledged to be binding. (Culverwell and Another v Brown 1990 (1)
SA 7 (A) at
14 B-E.) Such conduct constitutes a breach of contract in
anticipando. This leaves the opposite party with a choice of keeping
such a contract alive and enforcing it, or if cancelling it by
“accepting” the repudiation. If he chooses the latter
course, he manifests an intention not to accept further performance
under the contract in question from the party in default. At
the same
time he manifests an intention not to further perform his own
obligation under the contract thereby resiling from it.
By so doing
he puts an end (in case of a contract that is executory) to the
primary obligations of the parties to perform in terms
of the
contract. Certain secondary obligations, for example, the duty to
compensate for damages arising from the wrongful repudiation,
however, remain.’
[31] That the right to claim
damages is itself a right under the contract, and it survives
termination after acceptance of repudiation.
[32] This was also held in
Capespan (Pty) Ltd v
Any Name 451 (Pty) Ltd
2008 (4) SA 510
(C) at 521H where Thring J said:
‘
Does
the fact that what has been ceded to the respondent is the claims for
damages of Chance Brothers and Club Champion make a difference?
I do
not think so. The claims are contractual in nature. They arise from
alleged breaches by the appellant of its obligations under
the
marketing agreements. Generally speaking, a claim for damages
for breach of contract is, in my view, a right “under”
the contract concerned. Without the contract, the claim cannot exist.
The claim flows from the alleged breach of the contract and
therefore
arises “under” the contract.
’
[33] I am in agreement with these
views and find that the claims which the plaintiff wishes to pursue
are such claims for damages
which arise under the agreements of loan.
Once that is so, a second issue arises i.e. could the liquidators
sell and cede the claims
for damages despite the
pactum
de non cedendo
? It has
authoratively been held in
Capespan
that a purported cession in breach of a
pactum
de non cedendo
is
invalid and is of no force and effect (see
Capespan
at 521J). This is also in line with the principle that no one can
cede more rights to another than the rights which vest in the
cedent.
Thring J, after a careful analysis of the law, concluded in
Capespan
at 519A-C:
‘
However,
in the case of the second
pactum
,
that which relates to a right which was created
ab
initio
as a non-transferable right, the
pactum
is valid and enforceable against the world because the right is
simply inherently incapable of being transferred by anyone; and
a
cession of such a right contrary to the
pactum
will be putative, and of no force or effect, even if it is a
so-called 'involuntary' cession; in other words, it will bind even
a
trustee in insolvency or a liquidator of the creditor. I hasten to
add that I do not use the term 'insolvency cession' to include
the
vesting of an insolvent's assets in his trustee, which takes place,
not by an act of cession, but automatically, by operation
of law, as
was mentioned in
Paiges
'
case (loc cit): the term as I understand it refers now to an attempt
by a trustee or liquidator to transfer the right concerned,
by means
of cession, to a third party.
’
[34] Mr Potgieter argued that the
pactum de non cedendo
contained in the agreements under consideration is distinguishable
from the clause considered in
Capespan
.
It was found that the clause in
Capespan
was couched in wide terms and that the prohibition was not directed
at any particular person or party and the limitation was regarding
its ambit of the interests and rights concerned rather than
regulating the conduct of a particular person (see
Capespan
at 591H). Because clause 15 contains the word ‘
you
’,
it was argued that the prohibition was not as wide as the one in
Capespan
and its ambit is limited to the holder of the rights i.e. Central
Lake and Summer Season and not applicable to its liquidator.
I do not
agree. No one can cede more rights than the rights which that party
holds and it will defeat the object of the
pactum
de non cedendo
if the
party can circumvent the prohibition contracted for by ceding a
claim. The claims in the matter under consideration are
claims that
fall into the category which, by means of the
pactum
itself was created
ab
initio
as
non-transferable rights and which are ‘
enforceable
against the world because the right is simply inherently incapable of
being transferred to anyone
’.
(See
Capespan
at 519A-B).
[35] The use of the word ‘
you
’
does not limit the ambit of the prohibition. The prohibition in
Capespan
at p 12E was as follows:
‘
Save as
herein expressly otherwise provided, neither this Agreement nor any
part share or interest therein nor any rights or obligations
hereunder may be ceded, assigned, or otherwise transferred without
the prior written consent of the other party.’
In my view, the reference to
‘
you
’
or the ‘
the other
party
’ is
immaterial and does not affect the non-transferability of the rights.
Thring J said in
Capespan
at 521G:
‘
There
can be no question here that the
pacta
could possibly have related to pre-existing rights: as I have said,
the rights and interests whose cession was prohibited by the
pacta
were created in the marketing agreements themselves, and, because of
the inclusion of the
pacta
,
they were in my judgment created as non-transferable rights and
interests
ab
initio.
’
If that is so, the right so
created cannot be transferable purely because the other contracting
party was referred to in the
pactum
clause.
[36] Mr Potgieter attacked the
Capespan
matter as being wrong in law and being based on the learning of Scott
(Scott, The Law of Cession, 2
nd
edition) who, it was argued, later retracted her earlier views which
Thring J applied. I need say little more about this argument
save to
refer to the instructive article by professor Scott in
2008 (4) TSAR
776
and specifically at 782 where she states:
‘
The
effect of the agreement (pactum de non cedendo) is that the rights
remain non-transferable both during attachment and insolvency.
The
curator of the insolvent estate is bound by the prohibition (he may
claim but he may not cede)
’.
(My translation).
[37] The argument that courts
have held, that a
pactum
de non cedendo
was not
a bar to a cession in leases upon sequestration or liquidation,
misses the fact that the legislature specifically amended
the common
law by introducing legislation in the form of
s 37(5)
of the
Insolvency Act to
make an exception in the case of leases. The line
of cases relied upon by Mr Potgieter to justify the argument that a
cession upon
insolvency is valid, all deal with leases, which is
specifically provided for in
s 37(5)
of the
Insolvency Act. They
are
not applicable to the facts in this matter.
What was accepted in
Capespan
at 515B is the following remarks from Scott, supra at 214:
‘
In
relation to a right which is created as a non-transferable right, a
pactum de non cedendo is valid as the principle of freedom
of
contract is paramount here and therefore the requirement that the
debtor should have an interest in the agreement is unnecessary.
A
cession contrary to such an agreement is of no force and effect even
in the event of involuntary cessions, as the nature of the
right is
such that it is not transferable.
’
[38] I have not been persuaded
that the judgment in
Capespan
is wrong and I intend following it.
[39] Mr Potgieter further argued
that the cessions took place and that they are a done thing. Such a
cession may be in breach of
the
pactum
de non cedendo
but
nevertheless occurred and remedies may be available against the
liquidators for acting in breach of the
pacta
.
I do not agree. In
Trust
Bank of South Africa Ltd v Standard Bank of South Africa Ltd
1968 (3) SA 166
(A) at 189 D-G, Botha JA stated:
‘…
where the right is created with a
restriction against alienation, and the restriction is contained in
the very agreement recording
the right, for in such a case the right
itself is limited by the stipulation against alienation and can be
relied upon by the debtor
for whose benefit the stipulation was made.
(Paiges v Van Ryn Gold Mines Estates Ltd,
1920 AD 600
at pp 615 and
617.)’
[40] Thring J referred to Scott’s
commentary on the
Trust
Bank
case in the Law
of Cession (2
nd
edition at 212 to 214), and quoted Scott as follows:
‘
To my mind
the position in South African Law at the moment in regard to a pactum
de non cedendo is as follows: An agreement restricting
the
cedeability of existing rights is invalid unless the restriction is
in the interest of the person in whose favour it has been
made. If
the restricting agreement is part and parcel of the agreement
creating the right, such and agreement is also invalid,
even if the
cedent has no interest in the restraint. In both cases, however, the
effect of the pactum de non cedendo is that a
cession contrary to the
restraint is of no force and effect and does not result in the claim
for damages for breach of contract.
The correct approach should be the following:
A clear
distinction should be drawn between a pactum de non cedendo in
relation to existing rights, and one in relation to a right
which is
created as a non-transferable right. In relation to existing rights,
the views of Sande and Voet should be followed in
regard to both the
validity and the effect of a pactum de non cedendo. In other words,
as such an agreement is contrary to the
basic law of property
that
res
in commercio
should not be withdrawn from commercial dealings, a good reason is
required, or, as the courts interpret it, the person in whose
favour
the restraint is operating should have an interest in the agreement.
The effect of such an agreement is that it is
binding only on
the parties to the agreement and a breach thereof results in a
claim for damages - the right, however, passes
to the cessionary.
In relation to a
right which is created as a non-transferable right, a
pactum
de non cedendo
is valid as the principle of freedom of contract is paramount here
and therefore the requirement that the debtor should have an
interest
in the agreement is unnecessary. A cession contrary to such an
agreement is of no force and effect even in the event
of involuntary
cessions, as the nature of the right is such that it is not
transferable.’
[41] Thring J agreed with the
views of Scott and in particular those stated in the final paragraph
of the quote above (
Capespan
at 515C). Thring J pointed out that his conclusion is in line with a
series of authorities, including Appellate Division and Supreme
Court
of Appeal authorities (
Capespan
at 515D-G).
[42] In
Capespan,
it was, in addition, pointed out that there is support to be found
for Scott’s view in decisions of provincial and local
divisions
of the High Court. Among other, Thring J referred to
Italtrafo
SpA v Electricity Supply Commission
1978 (2) SA 705
(W), a decision of this division, where King AJ held:
‘
In any
event, in
Trust
Bank of Africa Ltd v Standard Bank of South Africa Ltd
1968
(3) SA 166 (A)
,
it was held that, where the restriction against the transfer of
rights formed part of the contract in question, the person claiming
to be the cessionary could not acquire the cedent's rights without
the debtor's consent. Any rights obtained by the person claiming
to
be the cessionary would be subject to such restraint. The Appellate
Division seems to have departed from the test of material
and
reasonable interest laid down in
Paiges
' case. As I have already found as a matter of probability that the
restraint against cession formed part of the contract in respect
of
the transformer bearing serial number 14624, the cession is not a
valid one.’
[43] Thring J referred, with
approval, to the decision of
Vawda
v Vawda & Others
1980 (2) SA 341
(T), a decision of the full bench of the Transvaal
Provincial Division relating to the sale of immovable property where
a
pactum de non cedendo
prohibited the
purchaser from transferring any rights in the property without the
seller’s written consent.
Vawda
at 346 A-B said:
‘
On the
question of the
pactum
de non cedendo
,
Mr
Heher's
contention loses sight of the fact that clause 11, which contains the
pactum
,
is a stipulation in the agreement of sale of property. Under the
agreement of sale the first respondent was the creditor
of certain
rights. In order to determine the extent of those rights, one has to
look at the entire agreement of sale. Clause 11
which contains a
pactum
limits those rights. As it was put by De Villiers JA in
Paiges
v Van Ryn Gold Mines Estates Ltd (supra
at 617), the stipulation against cession is part and parcel of the
agreement creating the right, and the right is limited by the
stipulation. This principle is referred to by Botha JA in
Trust
Bank of Africa Ltd v Standard Bank of South Africa Ltd
1968
(3) SA 166 (A)
at 189. Mr
Heher
,
in effect, argues the appeal as if the
pactum
de non cedendo
in clause 11 existed separately from the agreement of sale.’
[44] After referring to a range
of authorities in support of Scott’s analysis, including
Appellate Division and Supreme Court
of Appeal authorities, Thring J
referred to the contrary judgment of Olivier J (sitting alone) in
Lithins v Laeveldse
Kooperasie Bpk & Another
1989 (3) SA 891
(T), at 895 H-I where it was stated:
‘
I
think it can safely be deduced from these cases that there is a
general principle in our law to the effect that the
pactum
de non cedendo
does not bind the trustee or liquidator in insolvency, unless it
appears in a lease, in which case
s 37(5)
of the
Insolvency Act
applies
, or unless it appears from the
pactum
that it would also be applicable in the case of insolvency’.
And further at 897 C-D:
‘
In
my view, the principle of the non-applicability of the
pactum
de non cedendo
extends to all cases where a trustee or liquidator in insolvency
sells and cedes a claim in his discretion, irrespective of whether
he
had other options of dealing with the claim.’
[45]
Capespan
differed from the judgment in
Lithins
.
Thring J pointed out that the Learned Judge failed to draw the
distinction which Scott says should be drawn between
pactum
de non cedendo
in
relation to existing rights, on the one hand, and
pacta
in relation to rights which have been created
ab
initio
as
non-transferable rights, on the other. Thring J referred to the fact
that, at the time of the
Lithins
judgment, there was authority in the Appellate Division that, as
regards the latter type of right, a trustee in insolvency or a
liquidator will be bound by a
pactum
de non cedendo
. The
Appellate Division authority that Thring J referred to was the
Paiges
case, the
Trust Bank
case, and
MTK Saagmeule
(Pty) Ltd v Killyman
Estates (Pty) Ltd
1980 (3) SA 1
(A). Thring J pointed out that Olivier J in
Lithins
made no reference to
any of these three decisions. Thring J accordingly did not agree with
the statements in
Lithins
and was of the view
that in the passages of
Lithins
quoted above; the law
was too widely stated. I am in agreement with the reasoning in
Capespan
.
[46] Any right transferred in
contravention of a
pactum
de non cedendo
would
result in a putative transaction per Kemp AJ in
African
Dynamics (Eastern Cape) (Pty) Ltd v MEC for Education, Eastern Cape
Province and Others
(352/2007, 583/2007, 768/2007) [2010] ZAECBHC 12 (13 September 2010)
at para 6. The rights are incapable of being ceded and the
purported
cessions of the Central Lake and Summer Season claims against the
defendant to the plaintiff by the liquidators were
invalid and are of
no force and effect. See
Capespan
at 521J.
[47] Consequently, the claims
instituted by the plaintiff as cessionary against the defendant have
no basis in law.
[48] For all the aforesaid
reasons the ‘
cession
issue
’ is
determined in favour of the defendant and the plaintiff’s
claims cannot succeed.
[49] A final argument by Mr van
der Nest was that even if the liquidator validly received powers to
act, such powers are circumscribed
in the resolutions purportedly
passed at the second meeting of creditors. The resolutions provide
for a number of general powers
including:
‘
the joint liquidators be and are hereby
authorised to collect any outstanding debts due the company in
liquidation, and for the
purpose thereof to sell or compound any of
these debts some and or on such terms and conditions as they in their
sole discretion
may deem fit or to abandon any claim they in their
sole discretion may deem appropriate and that all legal costs so
incurred shall
be costs of the estate’
and
‘
the
joint liquidators be and are herein authorised to dispose of the
immovable and movable assets of the company by public auction,
private treaty or public tender and that the mode of sale for any one
or more of the assets shall be determined by the joint liquidators
and that all costs incurred in relation thereto be costs in the
administration
’.
[50] These resolutions are the
empowering authority of the liquidator. They authorise the liquidator
to ‘
sell…any
of these debts…’
or
to dispose thereof and that the mode of the sale of such assets shall
be determined by the liquidator. On the assumption that
a claim for
damages would indeed be an outstanding debt or a movable asset, Mr
van der Nest argued that the conduct of the liquidator,
by attempting
to sell and cede the claims, falls short of that which the liquidator
was authorised and empowered to do i.e. to
effect a sale.
[51] The liquidator, in the
cession and sale of the damages claims, agreed that the price for the
claims would be:
‘
3. We
confirm that in consideration for the sale of the claims the
cessionary shall pay to the cedents from any net proceeds of
the
claims an amount equal to:
The total of the proven claims plus interest
thereon in the estates of the cedents; and
The total of all administration costs, including
Master and Liquidators’ fees.
4. In the event of the claim against FRB does not
realise sufficient proceeds of the amounts to cover the consideration
in paragraph
3 above, then the cessionary shall pay one third of the
net proceeds of the claim to the cedents.
5. It is understood and agreed that the cedents do
not warrant the validity of the said claims and shall not be liable
to the cessionary
in respect of any fees, costs or charges that may
be sustained by the cessionary in the event of the said claims
proving irrecoverable,
partially or in full.’
[52] In this respect, the
defendant’s counsel argued that the interpretation of the
resolution becomes necessary. The approach
to issues of
interpretation is succinctly set out by Joubert JA in
Coopers
& Lybrand and Others v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A) at 767E to 768E:
‘
According
to the 'golden rule' of interpretation the language in the document
is to be given its grammatical and ordinary meaning,
unless this
would result in some absurdity, or some repugnancy or inconsistency
with the rest of the instrument…
The
mode of construction should never be to interpret the particular word
or phrase in isolation (
in
vacuum
)
by itself…
The
correct approach to the application of the 'golden rule' of
interpretation after having ascertained the literal meaning of the
word or phrase in question is, broadly speaking, to have regard:
(1) to the context in which the word
or phrase is used with its interrelation to the contract as a whole,
including
the nature and purpose of the contract…;
(2) to the background circumstances
which explain the genesis and purpose of the contract, ie to matters
probably
present to the minds of the parties when they contracted…;
(3) to
apply extrinsic evidence regarding the surrounding circumstances when
the language of the document is on
the face of it ambiguous, by
considering previous negotiations and correspondence between the
parties, subsequent conduct of the
parties showing the sense in which
they acted on the document, save direct evidence of their own
intentions.
’
[53] Resolution 7 falls to be
interpreted against its statutory background and in the light of the
facts set out above. If this
is done, it was argued, that resolution
7 does not purport to confer any power on Central Lake liquidators of
the kind contemplated
in
Section 386(i)
but rather that it echoes and
confer upon them the power ‘to sell’ provided for in
Section 386(h) of the Act. Indeed
it is a direction to the
liquidators to dispose of assets by public auction, private treaty or
public lender, leaving it to the
liquidators to determine which ‘mode
of sale’ to use.
[54] It was further argued that
this must be so, if regard is had to the fact that the primary duty
of a liquidator is to take possession
of the assets of a company and
to apply them in satisfaction of the costs of winding-up, the claims
of the creditors and to distribute
the balance among those entitled
thereto (s 391). If that asset is a right of action the liquidator
must either sell it or litigate
(with the assistance of a sponsor if
necessary and if so authorised) (cf s 386(4)(a) and resolution 3).
See
Price Waterhouse
Coopers Inc & Others v National Potato Co-Operative Ltd
2004 (6) SA 66
(SCA).
[55] That resolution 7 was
understood by the liquidators and the plaintiff to confer a power to
sell is reflected in their choice
of wording in referring to the
cessions as ‘sales’ in the very documents which
constitute the cessions. See AJ Kerr:
The Law of Sale and Lease (3
rd
edition) p 29 and following. If a liquidator indeed had the power to
sell the claims it did not have the power to enter into some
other
contract not described in the resolution.
[56] But ‘
…if
the parties seek to disguise a donation as a sale the law will hold
the transaction to be a donation, the position is
similar if some
other contract is sought to be disguised as a sale
’.
See Kerr
supra,
at 30 and the authorities referred to in footnotes 12 and 13. Mr van
der Nest argued that the liquidators entered into a sponsorship
agreement with the plaintiff in terms whereof the plaintiff would
sponsor a court action for the liquidators. The plaintiff would
then
only be liable to pay the liquidators an amount should they obtain
any judgment. In these circumstances, it was argued, that
there was
no sale which could be authorised by the resolution. The resolution
does not authorise the liquidators to enter into
such a sponsorship
or innominate
agreement.
[57] The wording of the
resolution is such that the plaintiff will not be required to pay
anything to the liquidator if the claims
are unsuccessful. Clause 5
of the cession and sale agreement makes that clear. The argument by
Mr van der Nest was couched as follows:
‘
Despite
this classification of the cessions as “sales” they are
not sales. For a transaction to be “a sale”
there must be
an agreement as to a price which is certain or immediately
ascertainable and it must be in money or partly in money.
Thus for
example it is sale for “whatever money you have in the bank”
or “for as much as is in the chest”
provided that some
money is found “in the bank” or “in the chest”.
If not, the essence of sale is lacking.
’
He relied on the following
authorities for this proposition: Voet: Commentary on the Pandects
(Gane’s translation) 18:1:23;
Pothier: Contract of Sale Cushing
17/30; 14 -16/23-29; Norman’s: Law of Purchase & Sale in
South Africa’ (5
th
edition) Zulman & Kairinos 41- 46/4.1- 4.5 especially at
43/4.3.2 & 4.3.3; Mackeurtan: Sale of Goods in South Africa’
(5
th
edition) 15/2.3.3.
[58] In
Provincial
Administration v Pessen
1925 (TPD) 415 at 422 to 425 the court had to determine whether an
agreement was a sale or some other transaction under which ownership
passed for the purpose of a taxing ordinance. The agreement was a
cession of a mineral lease in return for which the cessionary
agreed
to pay the cedent 20% of the profits which might accrue from any
subsequent disposal by the cessionary of the lease and
to refund the
cedent the money he spent to acquire the lease. Mr van der Nest
argued that in the result the Court found at 423
that it was not a
sale but some other transaction.
[59] However, I do not agree with
the argument that there is no price because
‘the
chest may be bare
’.
Whether the agreement is indeed a sale may only be established once
the claims are finalised. If an amount is realised,
the price is
easily ascertainable. I am of the view that such a sale falls into
the same category as a sale where the price is
left to be determined
by a third party.
‘
Such
a sale is one subject to a suspensive condition that the third party
actually fixes the price if he declines or is unable to
do so there
is no sale (Heymann’s Estate v Featherstone
1930 EDL 105
; Faatz
v Estate Maiwald 1933 SWA 73; South African Land and Exploration Co
Ltd v Union Government
1936 TPD 174
; CM Asbestos Co (Pty) Ltd v King
Chrysotyle Asbestos Mines (Pty) Ltd and Others
1953 (3) SA 431
(W).’
See Norman’s Law of
Purchase and Sale in South Africa (5
th
Edition) by Zulman and Kairinos at page 43 para 4.3.5.
[60] From this it is clear that
even if the third party fixes some price at some distant future date
there is indeed a sale. The
argument attacking the sale is
consequently premature and cannot be sustained. The passage relied
upon by the defendant in
Pessen,
supra
is a passage
where the learned judge set out different views that were expressed
on the subject matter of the discussion. On page
424 Curlewis J,
however, said:
‘
It
is true that the right might never be realised because the condition
might not be fulfilled, but as Savigny points out in the
passage
quoted by Bristowe, J., in Guinsberg v Scholtz and Others
(1903, T.S
737
at p.762): “On the contrary it would be wrong to rank among
mere expectations rights which cannot yet be exercised because
they
are coupled with a condition or a term. These are really rights,
since even in the case of a condition the fulfilment is drawn
back.”
It is true that he adds: “The difference is that in a mere
expectation the result depends on the free will of
a stranger which
is not the case with the condition or the dies”, and that in
the present case Graumann may not be able to
sell at all, or not at a
profit; but the fact remains that the defendant’s right to a
share of the profits can only be defeated
on the non-fulfilment of
the condition that Graumann re-sells at a profit.
’
Tindall J said at 428:
‘
Another passage in the Digest [19.1.13.24)
states that if the buyer and seller of certain properties agree that
if the purchaser
or his heir shall sell the same for a higher price,
they shall hand over to the seller one half of the profit, and if the
purchaser’s
heir does sell them for a higher price, the seller
can recover his half of the profit by bringing an action on sale.’
[61] For these reasons the
argument that the cession and sale fail because the price was not
fixed, must fail.
[62] Save for the argument
regarding the question whether the liquidators entered into a valid
sale, the remainder of the defences
referred to herein are sustained
and the plaintiff is non-suited.
[63] The parties were in
agreement that the costs of two counsel should be awarded, whatever
the outcome of the matter.
[64] In the circumstances the
plaintiffs’ claims are dismissed with costs, such costs to
include the costs of two counsel
and which costs include the costs
reserved regarding the separation application, which costs are
similarly awarded to the defendant
on the basis of employment of two
counsel.
___________________________
WEPENER J
JUDGE OF THE HIGH COURT
COUNSEL FOR THE
PLAINTIFF :
M.V.R.
Potgieter SC
S.J. van Niekerk
PLAINTIFF’S
ATTORNEYS:
Senekal
Simmonds Inc
COUNSEL FOR THE
DEFENDANT:
M.
du P. van der Nest SC
E.A. Limberis SC
J.E. Smit
DEFENDANT’S
ATTORNEYS:
Fluxmans
Inc
DATE/S OF HEARING:
2 –
14 August 2012
DATE OF JUDGMENT:
21 August
2012