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[2014] ZAGPJHC 313
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Eskom Holdings Soc Limited v BHP Billiton Energy And Coal South Africa and Others (14430/14) [2014] ZAGPJHC 313 (4 November 2014)
REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG
HIGH COURT
JOHANNESBURG
CASE
NO: 14430/14
DATE:
04 NOVEMBER 2014
In the matter
between:
ESKOM HOLDINGS
SOC LIMITED
...............................................
Applicant
And
BHP BILLITON
ENERGY AND COAL SOUTH AFRICA
PROPRIETARY
LIMITED
...................................................
First
Respondent
BHP BILLITON SA
HOLDINGS LIMITED
....................
Second
Respondent
BILLITON COAL
HOLDINGS SOUTH AFRICA
PROPRIETARY
LIMITED
.................................................
Third
Respondent
L.T.C HARMS
N.O
.........................................................
Fourth
Respondent
V. MALEKA
N.O
................................................................
Fifth
Respondent
J.F MYBURGH
N.O
............................................................
Sixth
Respondent
JUDGMENT
WEINER J:
1. The applicant
herein applies in terms of Section 33 of the Arbitration Act 42 of
1965 (as amended) (“the Act”) to
set aside the award of
the arbitrators, who are cited in the matter as the fourth, fifth and
sixth respondents.
2. The basis of the
application is that the arbitrators exceeded their powers, and
accordingly the applicants claim that the matter
should be referred
back to a newly constituted tribunal.
Background
3. The background
and facts in the matter will be set out briefly, as they are not
strictly relevant to the relief sought in this
matter.
4. In 1994 Eskom
Holdings Soc Limited (“Eskom”) and Douglas Colliery
Limited (“Douglas”) and Randcoal Limited
(“Randcoal”)
entered into a longterm Coal Supply Agreement (“CSA”) in
terms of which Douglas undertook
to supply coal to Eskom. Randcoal
(the holding company of Douglas), guaranteed Douglas’ coal
delivery obligations. At that
time Randcoal had a group structure,
which was depicted on Schedule M to the CSA. In terms of the CSA
(clause 18.1.7 – 18.1.8)
Randcoal would not be entitled to
effect any change to its group structure as set out in Schedule M
without Eskom’s prior
written consent (which was not to be
withheld unreasonably); and (in terms of clause 18.1.9) Randcoal, if
it wished to change its
structure, would notify Eskom in writing of
the proposed change.
5. Randcoal effected
several changes to its group structure as depicted in Schedule M to
the CSA. Randcoal obtained the consent
of Eskom to most of these
changes. Eskom’s complaint which led to the arbitration
proceedings, concerned two transactions
for which no consent was
obtained:-
5.1. Randcoal
disposed of a coal mining subsidiary, Welgedacht Exploration Co Ltd
(“Welgedacht”), to a third party some
16 years prior to
the arbitration;
5.2. Douglas’
rights and obligations under the CSA were assigned, with Eskom’s
consent, to the first respondent (“BECSA”),
and
Randcoal’s name was changed to that of the second respondent
(“BSAH”). BSAH acquired eight new subsidiaries
(“the
eight new subsidiaries”), which were not coal mining companies.
6. The facts in 5
above form the basis of claim A.
7. Claim C, as
described by Eskom, relates to the disposal by Gengro Limited
(“Gengro”), one of the subsidiaries of
BSAH, of its
interest in Richards Bay Minerals Limited (“the RBM
transaction”). Eskom seeks, inter alia, an award declaring
that
the RBM transaction constitutes a change to the structure of BSAH as
contemplated in clauses 18.1.8 and 18.1.9 of the CSA.
8. Several name
changes occurred over the years and for the purposes of convenience,
the first, second and third respondents will
be referred to as BHP
herein.
9. Eskom invoked the
arbitration provisions of the CSA to pursue three claims in terms of
their statement of claim(claim B was not
pursued in the arbitration).
BHP delivered a statement of defence to the statement of claim.
10. Claims A and C
were dismissed with costs by the tribunal and it is this decision
which Eskom seeks to set aside.
The tribunal’s
powers
11. The source of
the arbitrators’ powers appear from the arbitration agreement
between the parties contained in clause 20
of the CSA. Clause 20.1
provides as follows:-
“Arbitration
20.1 Any dispute
between the parties in regard to:
20.1.1 the
interpretation of;
20.1.2 the effect
of;
20.1.3 the parties’
respective rights and obligations under;
20.1.4 the breach
of;
20.1.5 any matter
arising out of; this agreement; and
20.1.6 any matter
requiring the parties mutual agreement and which cannot be reached
within 60 days; shall, save as otherwise provided
in this Agreement,
be decided by arbitration in the manner set out in this clause.”
12. The parties
could not agree on terms of reference for the tribunal. As a result,
Eskom delivered a statement of claim and BHP
delivered a statement of
defence thereto. The parties are ad idem that the ambit of the
disputes was delineated in the statement
of claim and the statement
of defence. However the parties differ on precisely which disputes
were contained in the statement of
claim and the statement of
defence.
13. There is some
disagreement between the parties in the use of the word “pleadings”,
but for the purposes of this
judgment I will refer to the statement
of claim and the statement of defence as “the pleadings”.
14. On the 23rd of
January 2014 a pre-arbitration meeting was held before the tribunal.
The tribunal directed that the pleadings,
as exchanged, had closed
and the parties agreed that the reference to arbitration would
comprise of the pleadings as exchanged.
The parties were also
entitled to request further particulars and admissions.
Tribunal’s
interpretation of clauses 18.1.7, 18.1.8 and 18.1.9
15. The tribunal
found:-
a. The group
structure of Randcoal was the one set out in Schedule M, and no
other.
b. In terms of the
described group structure, Randcoal consisted of four wholly owned
subsidiary companies.
c. Three of those
companies, Douglas Colliery, Coregroup (Jupiter) and Welgedacht,
between them owned five coal mines (Douglas,
Duvha, Khutala, Majuba
and Welgedacht) and 60% of Middelburg and 50% of Rietspruit.
d. It is common
cause that the actual structure of Randcoal at the time included more
companies, one of which was relatively substantial.
e. The guarantee
provided by Randcoal in clause 24 was underpinned by the coal mining
companies in Schedule M, but was not limited
to those companies.
Randcoal could call on any of its assets, including assets not
contained in Schedule M, to discharge its obligations
under clause
24.
f. A distinction was
drawn in the agreement between the group structure of Randcoal and
the assets of Douglas Colliery. The disposal
by Douglas Colliery of
its movable and immovable assets for the purposes of operating in the
Duvha Colliery was regulated by clause
3.2., whereas any change in
the structure of Randcoal was regulated by the provisions of clauses
18.1.8, 18.1.8 and 18.1.9.
g. There is no
indication in Schedule M or the provisions of clauses 18.1.7, 18.1.8
or 18.1.9, that the parties intended the Randcoal
structure, for the
purposes of the CSA, to include non-coal assets.
h. Any change to the
Randcoal group structure as reflected in Schedule M was to be
notified by Randcoal to Eskom, whether the change
was the
introduction of new companies, or the reduction in companies, or the
substitution of new for old companies, or intra-group
transfers, as
long as they related to coal assets.
i. In the event that
Randcoal wished to change its group structure, it was obliged to
notify Eskom in writing of the proposed change
(giving full details
(i) why it was contended that Randcoal’s ability to perform its
obligations would not be adversely affected
by such change, or (ii)
why the additional security would enable Randcoal to perform its
obligations) (Clause 18.1.9)
j. Eskom would
advise Randcoal in writing within 14 days whether it approved of the
proposed change (Clause 18.1.9)
k. Randcoal was not
entitled to effect any change to its group structure (including its
share capital and share premium) without
Eskom’s prior written
consent which would not be unreasonably withheld (Clause 18.1.8)
l. For the purposes
of clause 18.1.8 Eskom’s consent would be deemed to have been
withheld reasonably if a proposed changed
would affect the ability of
Randcoal to perform its obligations as guarantor of Douglas Colliery
and if Randcoal was unable to
furnish Eskom with additional or
alternative guarantees for the due and proper performance by Randcoal
of its obligations in terms
of the CSA (clause 18.1.8).
16. The tribunal
also found that a new Schedule (Annexure B to a letter dated 5 June
1995) became the notional Schedule M and replaced
same.
17. BHP contends
that the relief sought under claim A was for an award directing it to
request Eskom’s prior written consent
to, firstly, the
disposition of Welgedacht 16 years ago, and secondly, the acquisition
by BHP, of the eight new subsidiaries, which
acquisition had also
been completed. These were presented as prayers for the contractual
remedy of specific performance of the
CSA, and in particular, clauses
18.1.8 and 18.1.9. thereof.
Findings
Claim A
18. In regard to the
Welgedacht transaction, the tribunal found, firstly, that the claim
was “not truly one for specific performance,
but rather one for
substituted performance, which is not a contractual remedy”.
The relief claimed would have required BHP
to obtain prior written
consent to a change which had been effected some 16 years before.
This could not be carried out. Eskom
was accordingly not claiming
specific performance in terms of the CSA, but other relief not
arising from the CSA.
19. The tribunal
decided that the remedy claimed was not available in a claim based on
contract. BHP submits that this is a decision
on the merits of the
claim and cannot be challenged under Section 33 of the Act. In its
founding affidavit, Eskom submits that
this finding “went
beyond the powers of the tribunal” because it was not pleaded.
BHP argues that Eskom based its case
on the CSA and thus it could
only seek a remedy which was permissible in law for contractual
claims; a claim for substituted performance
is not a contractual
remedy according to the finding of the tribunal. BHP also argues that
Eskom’s contention in this regard
is incorrect because it was
specifically pleaded that Eskom is not entitled to the relief which
it sought.
20. Secondly, the
tribunal held that, in any event, in the exercise of their
discretion, they were not prepared to grant the order
claimed.
21. Eskom contends
that, an analysis of the agreement to arbitrate (clause 20 of the
CSA) and the pleadings (as elaborated on by
the request for
particulars and admissions and the responses thereto), reveals that
it was not an issue before the arbitrators
whether, if it was found
that BHP had breached the CSA, the arbitrators could decline Eskom’s
prayers for specific performance.
By refusing specific performance,
Eskom contends that the arbitrators “arrogated to themselves a
power that they did not
have and decided an issue that was not before
them (thereby exceeding their powers in contravention of
Section 33
of the
Arbitration Act)&rdquo
;.
22. As can be seen
from the brief factual summary referred to above, Eskom’s
claims were based upon the fact that BHP had
breached the CSA by
failing to obtain the prior written consent of Eskom to certain
structural changes to the group structure.
23. In regard to
claim A (Welgedacht), the arbitrators found that BHP had in fact
breached the agreement, but despite same, refused
the order of
specific performance, which Eskom had claimed for the two reasons
stated above.
24. In regard to
claim A (the eight subsidiaries), the tribunal found that the eight
companies referred to therein, which were acquired
by BHP, were not
coal-mining companies and accordingly, they did not fall within the
ambit of clause 18.1.9. of the CSA and therefore
there was no breach
of the agreement.
25. On the
interpretation the tribunal has given to the CSA, BHP was not obliged
to give Eskom a clause 18.1.9 notice in respect
of the acquisition of
the eight subsidiaries. It was not within the contemplation of the
parties to the CSA that non-coal assets
would form part of the group
structure. In calling for a clause 18.1.9 notice in respect of the
eight subsidiaries Eskom is relying
on the CSA for a purpose that was
never intended at the time the CSA was concluded.
26. In regard to
claim C, the tribunal found that the RBM transaction was effected by
Gengro, one of the eight subsidiaries of BHP,
in respect of which
there was no obligation on the part of BHP to have given a clause
18.1.9 notification. Hence any transaction
concluded by Gengro, such
as the RBM transaction, did not attract the obligation to give a
clause 18.1.9. notification.
Challenges to the
tribunal’s findings
27. In regard to
claim A, Eskom contends that the tribunal erroneously found, beyond
its powers, that BHP should not be ordered
to give Eskom the
information set out in Clause 18.1.9 of the agreement. Eskom’s
submissions in this regard and in relation
to the Welgedacht
transaction, are that the tribunal went beyond its powers in finding
that:-
27.1. The remedy
sought by Eskom was not truly one for specific performance, but one
for substituted performance which is not a
contractual remedy;
27.2. In the
exercise of its discretion, it was not prepared to give an order of
specific performance since the Welgedacht transaction
took place 16
years ago, the rights of a third party, not party to the arbitration
might be adversely affected, and there was no
reasonable prospect
that Eskom would not consent to the change in structure.
28. According to
Eskom, both of these findings go beyond the powers of the tribunal as
they were not pleaded, and, as the “pleadings”
define the
issues, this limited the jurisdiction and powers of the arbitrators.
29. Eskom’s
grounds for review on claim C appears to be limited to the tribunal’s
interpretation of the agreement that
it distinguished between the
non-coal assets and the coal assets. Eskom states that this
distinction was not pleaded by BHP, nor
relied upon in the statement
of defence. Accordingly, Eskom submits that the interpretation that
the tribunal placed on the agreement
was not one pleaded by BHP and
it was an issue, beyond the tribunal’s powers, to decide what
constituted a coal asset and
what constituted a non-coal asset.
30. Eskom contends
that:-
30.1. The fact that
the relief of specific performance was claimed permitted the tribunal
to grant such relief, but not to refuse
same. The reasoning in this
regard is that Eskom was entitled to such relief as a matter of
course, unless BHP pleaded and proved
that specific performance
should be refused. Eskom submits that there was no issue contained in
the pleadings that gave the tribunal
the power to determine that they
should not award specific performance in respect of the Welgedacht
transaction. BHP did not set
out, in the statement of defence,
factors which the tribunal would have been entitled to have regard
to, in refusing specific performance.
30.2. The defences
raised by BHP in the statement of defence (and in the list of
admissions and inquiries), related to the assets
which appeared on
Schedule M and the proper construction of the agreement, in relation
to the limitation on Randcoal changing its
structure. According to
Eskom, BHP did not raise impossibility, or any other recognised
ground for refusing specific performance
in the statement of defence.
31. In terms of
Section 27 of the Act, the tribunal enjoys an automatic right to
order specific performance of any contract, but
only in circumstances
in which a court would have the power to do so, unless there is an
agreement between the parties to exclude
the right. It must be noted
that Section 27 of the Act states that the tribunal “may order
specific performance...”.
According to Eskom, courts only
refuse an order for specific performance, where it would operate
unreasonably harshly on the defendant;
or where the agreement giving
rise to the claim is unreasonable; or if it would be inequitable
under all the circumstances; or
compliance with the order would be
impossible. Eskom states that the onus of proving these circumstances
is on BHP, and that none
of these defences were pleaded and proved by
BHP.
32. The first
question is whether the tribunal had the power to refuse specific
performance at all, if this relief was not specifically
opposed by
BHP.
33. On the first
finding of the tribunal, the issue of Eskom seeking substituted
performance was an issue which was debated within
the tribunal and
argued by both parties. In any event, even without argument, it was
an issue on the pleadings in that Eskom had
to show why its claim for
specific performance should succeed. The tribunal found that it did
not succeed as the relief was not
for specific performance.
34. Secondly, is it
necessary for a defendant to specifically set out why specific
performance should be refused. In Tamarillo (Pty)
Ltd v B N Aitken
(Pty) Ltd 1982 (1) SA 398 (A) it was held that a contracting party
who does not specifically perform, is the party
who can be expected
to know why he did or could not specifically perform, and therefore
is the party who can be expected to plead
the grounds why specific
performance should not be ordered.
35. Miller AJ at
443B rejected the argument in the Tamarillo case that the party
raising grounds against the grant of specific performance
bears the
onus of proving those grounds. He need only adduce some evidence on
which the court can exercise its discretion.
36. BHP contends
that the disputes were delineated in the statement of claim and the
statement of defence. BHP claimed that, in
order to succeed on claim
A, Eskom had to persuade the tribunal, firstly that there was a
breach of the CSA, and secondly, that
it should grant specific
performance of an obligation that BHP request the prior written
consent of Eskom to a proposed change
to the structure of Randcoal.
37. BHP submitted
that in applying the law further, in regard to contractual claims for
specific performance, the court/tribunal
always has a discretion to
grant or refuse such remedy and that the tribunal’s refusal
would not be one which exceeded the
powers that it had.
38. In addition BHP
claims that the relevant facts were pleaded and admitted. The
tribunal found that it was impossible, 16 years
after the sale, to
reverse the Welgedacht transaction, or to order specific performance.
Same would, according to the tribunal,
have been pointless and
impossible.
39. Eskom, on the
other hand, argues that BHP was required to specifically plead and
set out facts why specific performance should
not be granted. In
Tamarillo’s case (supra) reference was made to the judgment of
De Villiers JA in Shill v Milner 1937 AD
101 at 106 where it was
argued that an order for specific performance ought not to have been
granted against the defendant, because
performance was impossible:-
“Shill nowhere
deposes that it was impossible for him to [perform] and if this was
his defence he should have raised it in
his plea, and the onus would
lie on him to prove impossibility”.
40. Miller JA in
Tamarillo (supra) at 443B held:- “It may be that in certain
cases evidence falling short of proof of impossibility
might
nevertheless justify a Court in refusing to decree specific
performance. In Van Rooyen v Baumer Investments (Pty) Ltd, supra,
ETTLINGER, AJ, at pp 120 - 1 after referring to Shill v Milner,
expressed the view that “where the ability of the debtor
to
perform is raised (by the debtor) and left in doubt”, specific
performance should be refused. In a case in which the defendant
requires the consent of a third party to enable him to perform
effectively, and at the end of the case, the defence of impossibility
having been raised and canvassed, the probabilities in regard to that
issue appear to be evenly balanced, the Court, it appears
to me,
might justifiably take the view that refusal of specific performance
was preferable to the grant of an order which as likely
as not would
prove to be ineffectual. A rule that a defendant pleading
impossibility as answer to a claim for specific performance
must
necessarily discharge the onus of proving it if he is to avoid such a
decree might hamper and inhibit the Court in the exercise
of its
discretion. As the extract quoted earlier herein from the judgment of
this Court in Haynes v Kingwilliamstown Municipality
shows, the
Court’s discretion is not “circumscribed by rigid rules”.
The second element of the dictum in Shill
v Milner might well have
been too generally and positively stated.”
41. It was held in
Tamarillo that the defendant did not raise the defence of
impossibility of performance and that issue could therefore
not be
canvassed.
42. BHP in the
present case states that it pleaded/raised in its statement of
defence, the following:-
42.1. That the
Welgedacht transaction took place 16 years ago;
42.2. The
transaction had been fully implemented;
42.3. The rights of
a third party who was not a party to the arbitration might be
adversely affected;
42.4. There is no
reasonable prospect that Eskom would not consent to the change in
group structure.
43. It is contended
that the factual elements relating to these grounds were specifically
pleaded and evidence was led thereon.
Eskom submits that counsel for
neither party addressed the question of an exercise of a discretion
to refuse specific performance
in their heads of argument and the
tribunal was not asked to exercise such a discretion by counsel for
either party. BHP state
that this is factually incorrect. Copies of
Billiton’s heads of argument, as well as Eskom’s
submissions, were handed
in to this court. BHP refer to their heads
of argument in which they raised the grounds upon which the relief
should not be granted:-
43.1. Firstly, that
Eskom was claiming substituted performance, which was impermissible
and thus Eskom had failed to show why its
relief for specific
performance should be granted; and
43.2 Specific
reference was made to Benson v SA Mutual Life Assurance Society 1986
(1) 776 AD and argument was set out as to why
the tribunal ought not
to grant the claim for specific performance.
43.3. Further, the
respondent specifically relied on the exercise of a discretion by the
tribunal by stating “in any event,
even if it were only a
matter of discretion, the specific performance claimed in Claim A
should be refused”.
44. BHP further
contends that, in the oral evidence of Bierman, and in oral argument,
there were numerous references to the impossibility
of undoing the
Welgedacht sale and it was argued that this was a ground upon which
specific performance should be refused.
45. Eskom’s
counsel in fact argued that the tribunal had a discretion to grant or
refuse specific performance and that it
should be exercised in favour
of Eskom. [There is some dispute as to whether this was argued only
on the basis that BHP had not
pleaded grounds for refusing specific
performance or whether Eskom accepted, for the purposes of the
argument, that the tribunal
did have the discretion to refuse
specific performance. For this reason, I do not intend to rely on
this prior argument of Eskom,
in my decision.]
46. Finally, BHP
claimed that the grant or refusal of the remedy of specific
performance is, as a matter of law, discretionary,
unless an
arbitration agreement makes the grant of specific performance
mandatory if the claimant succeeds on proving the breach.
There was
no such term in the present arbitration agreement.
Issues to be
determined
47. In respect of
claim A (Welgedacht), it seems to me that the argument boils down to
three issues:-
47.1. Whether the
relief claimed by the applicant is in fact for specific performance.
47.2. Whether or
not, when specific performance is claimed, the tribunal would have
the discretion to either grant or refuse specific
performance;
47.3. If that
discretion exists, whether it has to be specifically pleaded and
proved by the defendant that specific performance
was inappropriate
for whatever reason.
48. In deciding the
first point, the tribunal was quite correct in finding that it was
not specific performance that was being sought,
but substituted
performance, and that same was not based on a contractual remedy.
Therefore the tribunal was fully entitled to
refuse specific
performance on the ground that Eskom had failed to plead and prove
that it had a contractual claim for specific
performance.
49. That decision
should be dispositive of the matter in relation to the Welgedacht
transaction. However, I will deal, in addition,
with the other issues
referred to in paragraph 47 above.
50. In regard to
47.2., in my view, if the tribunal has the power to grant specific
performance, it must follow that it has the
power to refuse it,
either on the grounds that an applicant has not made out a case for
specific performance or because, in its
discretion, it refuses same.
51. In reference to
47.3., is clear from the pleadings, being the statement of claim and
the statement of defence, that BHP not
only denied that it had
breached the agreement, but in several instances, pleaded that Eskom
was not entitled to the remedy which
it claimed. As BHP contends,
this was a dispute between the parties which appeared from the
pleadings, and the tribunal was entitled
to decide that particular
dispute, in terms of Clause 20 of the CSA.
52. Secondly, BHP
distinguishes the case of Hosmed Medical Aid Scheme v Thebe Ya
Bophelo Healthcare 2008 (2) SA 608 (SCA), upon
which Eskom relies, as
the parties in the present matter did not enter into any agreement.
There was accordingly no agreement that
the specific issues contained
in the pleadings would be the issues upon which the arbitrators would
decide. In this case, Eskom
unilaterally set out its contentions in
its statement of claim, and BHP Billiton set out its contentions in
the statement of defence.
According to BHP, the differences in those
two documents delineated the disputes which the tribunal had to
decide, one of which
was whether or not to grant the relief sought by
the applicant, being specific performance. BHP contends that, having
pleaded the
facts of the Welgedacht transaction, it appeared clear
from the pleadings that the transaction could not be reversed 16
years after
such sale, in order to retrospectively comply with the
clause 18.1.7. to obtain the prior written consent to this
transaction.
53. This issue was
clearly delineated in the pleadings and the tribunal was entitled to
exercise its discretion to refuse specific
performance on the ground
of impossibility.
54. In regard to
claim A (the eight subsidiaries) the grounds for refusing the claim
for specific performance was different from
that in respect of the
Welgedacht transaction. The interpretation placed on the agreement by
Eskom was that the restrictions in
clause 18.1.8. compelled BHP to
give notice of each and all changes to its group structure (that
Randcoal wished to make) depicted
on Schedule M. The tribunal
rejected this interpretation and held that the provisions of 18.1.7.
to 18.1.9. of the CSA only applied
to changes in Randcoal’s
structure, as long as they related to “coal assets”.
55. BHP contends
that this is a finding on the merits of the dispute and this cannot
be challenged under Section 33 of the Act.
Eskom’s contention
that its suggested interpretation of Clauses 18.1.7. to 18.1.9 of the
CSA was not in dispute is in fact
incorrect. BHP Billiton denied the
interpretation placed on the CSA by Eskom and therefore placed it in
dispute.
56. In regard to
claim C, in argument, counsel for Eskom submitted that if claim A was
to be reviewed and the order set aside, claim
C should follow suit as
they both relate to the subsidiaries referred to in Claim A. The same
principles as set out in 54 above
apply in this regard.
57. The
interpretation of the CSA was a matter of law (and this is conceded
by Eskom) and the tribunal accordingly had the power
to interpret
same. If they incorrectly interpreted it, either because of a factual
error or a legal error, this is not a ground
for an application under
Section 33 of the Act. Eskom failed to persuade the tribunal that, on
its interpretation, the clauses
applied to the eight subsidiary
companies which were non-coal assets.
Accordingly, and for
the above reasons, the application is dismissed with costs, including
the costs consequent upon the employment
of two counsel.
WEINER J
Counsel for the
Applicant: Adv Morison SC & Adv G Ngcanngisa
Applicant’s
Attorneys: Webber Wentzel
Counsel for the
Respondent: Adv F Cilliers SC & Adv D Turner
Respondent’s
Attorneys: Edward Nathan Sonnenbergs
Date of
Hearing:14 October 2014
Date of
Judgment:4 November 2014