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[2014] ZAGPJHC 311
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DBT Technologies (Pty) Ltd and Others v Tubular Construction Projects (Pty) Ltd (A5020/2014) [2014] ZAGPJHC 311 (6 November 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: A5020/2014
DATE:
06 NOVEMBER 2014
In the matter
between
DBT TECHNOLOGIES
(PTY) LTD
.................................
FIRST
APPELLANT
SIBUSISO PATRICK
SIBISI
......................................
SECOND
APPELLANT
ERIC
D’HONDT
............................................................
THIRD
APPELLANT
TRAVIS
SCHMELING
...............................................
FOURTH
APPELLANT
And
TUBULAR
CONSTRUCTION PROJECTS (PTY) LTD
............
RESPONDENT
J U
D G M E N T
VAN OOSTEN J:
[1] This is an
appeal against the judgment and order by Maleka AJ, in an opposed
urgent application, on 28 November 2013. The respondent
(Tubular), on
12 November 2013, launched the application against the first
appellant (DBT) and the second, third and fourth appellants,
in their
respective capacities as chief executive officer, managing director
and assistant group general counsel of DBT. The relief
sought, in
essence, was a declarator that DBT and the second, third and fourth
appellants were in contempt of court in non-complying
with an order
of this court by Du Plessis AJ, on 3 May 2013. In addition hereto an
order was sought against DBT to comply with
the order, and for the
second, third and fourth appellants to ‘forthwith cause [DBT]
to comply’ with the order, before
close of business following
the day after the date of the order, failing which certain penalties
were to be imposed and, finally,
that in the event of non-compliance
with the order, the deputy sheriff be empowered to approve and
certify the
‘re-measurement
portion of IPC (interim payment certificate) 46 in the amount of R190
262 973.30’. Lastly, an order
for costs on the punitive scale
was sought.
[2] On 28 November
2013 Maleka AJ found in favour of Tubular and made the following
order:
‘3.
Declaration order:
3.1 The First
Respondent [DBT] has acted in breach of the order made by Acting
Judge Du Plessis in paragraph 34.1 – 34.5 handed
down on 3 May
2013.
4. The first
respondent [DBT] is directed to comply with that order of Acting
Judge Du Plessis within 5 days of this order.
5. The second and
third respondents [the second and third appellants] are ordered and
directed to ensure that DBT complies with
the order of Acting Judge
Du Plessis, within the period referred to in paragraph 4 of this
order.
6. In the event that
the first respondent [DBT] fails to comply with this order, the
applicant, [Tubular] is granted leave to this
Court urgently or
otherwise for an order in terms of 3.1 to 3.5 of the notice of motion
as far as it refers to the first to third
respondents [the first to
third appellants].
7. No costs ordered
against the second to fourth respondents [the second to fourth
appellants].
8. The fifth
respondent’s costs are to be paid by the first respondent [DBT]
to the extent that the costs have been incurred.
9. The first
respondent [DBT] is to pay the costs of this application, which costs
shall include costs consequent upon the employment
of two counsel.’
The order I have set
out has to a certain extent been reconstructed from the typed
judgment of Maleka AJ, which became necessary
as the official typed
order issued by the Registrar of this court is replete with errors.
In argument before us counsel were ad
idem as the terms of the order.
[3] DBT filed an
application for leave to appeal against the whole of the judgment and
order of Maleka AJ. Tubular filed an application
in terms of rule
49(11), in terms of which it sought an order that paragraphs 3 to 6
and 9, alternatively paragraphs 3, 5 and 6
of the order not be
suspended pending the decision of any appeal against that order. On 5
December 2013 Maleka AJ granted leave
to appeal to this court and in
addition granted leave that immediate ‘effect be given’
to paragraphs 3-6 of the order.
The judgment of Maleka AJ in the
application for leave to appeal, we were informed from the Bar, was,
due to some error, not recorded
and we therefore do not have the
benefit of the learned judge’s reasoning.
[4] DBT filed a
‘notice of appeal’ styled ‘Appellants’
amended notice of Appeal’, but out of time,
on 4 April 2014. A
substantive application for condonation for the late filing of the
notice of appeal and furnishing security
for costs was filed on 20
May 2014. The application is opposed by Tubular and a full set of
affidavits has been filed. In the determination
of this application
it is relevant to consider, on the one hand, that the delay caused in
the late filing of the notice of appeal
was some 2 months, and on the
other, that delays occurred resulting from DBT changing its attorneys
of record in January 2014 and,
in addition thereto, some unexplained
blunders on the part of its attorneys in only launching the
application for condonation on
20 May 2013, although the absence of a
notice of appeal was apparent to them as early as the beginning of
February 2014. I am satisfied
that the delay of 2 months had no
bearing on the date of the hearing of the appeal which, in any event,
would not have occurred
earlier than end October 2014. In the absence
of any prejudice caused to Tubular, condonation, in my view, ought to
be granted.
As for the costs of the application, I consider it just
and equitable that each party pays its own costs in regard thereto.
[5] I interpose to
comment on the notice of appeal filed by DBT. It is merely as for the
grounds thereof, a copy and paste of the
application for leave to
appeal. The original notice of appeal was filed with the Registrar
and not served on Tubular. The amended
notice of appeal was
thereafter properly delivered. The ‘findings of facts and/or
rulings of law appealed against’
are enumerated in 12 numbered
paragraphs, each commencing with the introductory words that the
learned judge erred in the particular
aspect which follows. But,
seemingly absent from the notice of appeal are the grounds on which
it is alleged the learned judge
erred. It accordingly fails to inform
either Tubular or the court of the ambit of the appeal (see Kilian v
Geregsbode, Uitenhage
1980 (1) SA 808
(A), which dealt with a notice
of appeal in terms of the Magistrate’s Court rules; Harms Civil
Procedure in the Superior
Courts B49.11). Counsel for Tubular
concluded in contending that the notice of appeal for the reasons
given, was a nullity. I am
unable to agree. The notice does set forth
the findings appealed against as well as the variation of the order
sought and therefore
complies with the requirements in rule 49(4).
Although the rule does not in so many words require the grounds on
which the appeal
is founded to be specified, as much should be read
into the wording of the rule in order to achieve the objectives I
have alluded
to. The notice of appeal however, did not include all
the grounds of appeal relied on in DBT’s heads of argument.
Counsel
for DBT sought to remedy the defects in the notice of appeal
and asked for an amendment of the notice of appeal to include the
grounds of appeal based on the arguments set forth in the heads of
argument. I am inclined to allow the informal procedure for amendment
as the grounds of appeal are dealt with not only in DBT’s
application for condonation, which has been in Tubular’s
possession since 21 May 2014, but also in the heads of argument filed
on DBT’s behalf. No prejudice has been alleged to exist
nor was
I able to find any. The appeal accordingly proceeded on all aspects
raised in the heads of argument as amplified in oral
argument.
[6] For a proper
understanding of the contractual setting between the parties and the
disputes they have become entangled in, it
is necessary by way of
background to refer to the salient facts of this matter. DBT and
Tubular are the parties to a written sub-contract,
dated 3 July 2009.
In terms thereof DBT appointed Tubular as its sub-contractor to
perform certain works at units 1 to 6, at Eskom’s
Kusile Power
Station (“the sub-contract”). DBT in turn is a main
sub-contractor to Alstom S&E Africa (Pty) Ltd,
who is the main
contractor to Eskom in respect of the works. The scope of the
sub-contact involves extensive works, substantial
sums of money and
is of national interest. The original sub-contract price was in
excess of R1,28 billion and its anticipated duration
some 4 years. In
2012 certain disputes arose between the parties which were, in terms
of the sub-contract, referred to a Dispute
Adjudication Board (DAB)
presided by Adv PMM Lane SC. One of the disputes was whether Tubular,
in terms of the sub-contract, was
to be remunerated on a ‘lump
sum’ or a ‘re-measurable’ basis.
[7] The DAB, based
on an interpretation of the sub-contract, decided in favour of
Tubular that the latter applied. Both parties
were dissatisfied with
the DAB award and they filed, as they were contractually entitled to,
notices of dissatisfaction with the
award. In particular, DBT’s
notice of dissatisfaction is aimed at the portion of the award that
determined that Tubular was
entitled to be remunerated on a
‘re-measurable’ basis. Tubular’s dissatisfaction
relates to a minor aspect of
the award which is not relevant for
present purposes. The next step, once the notices had been given, was
a referral of the disputes
to arbitration for determination. We have
been informed from the Bar that the arbitration pre-trial proceedings
have been finalised
and that it has been enrolled for hearing in the
near future.
[8] Yet a further
dispute arose concerning the DAB award: DBT held the view that the
filing of the notices of dissatisfaction suspended
the DAB’s
award, pending the resolution thereof in the arbitration proceedings.
Tubular disagreed and launched motion proceedings
in this court
seeking an order compelling DBT to re-measure the work performed by
Tubular and to make payment of the amount found
to be due, based on
the contention that the DAB award was immediately enforceable. DBT
opposed the application and it came up for
hearing before Du Plessis
AJ. The learned judge, on 5 May 2013, upheld Tubular’s
interpretation of the sub-contract and in
consequence granted the
following order:
‘1. The
respondent [DBT] is ordered to forthwith give effect to the decision
of the Dispute Adjudication Board handed down
on 5 December 2012;
2. The respondent
[DBT] is ordered to forthwith re-measure and pay the applicant’s
[Tubular] Interim Payment Certificate number
37 dated 25 January
2013;
3. The respondent
[DBT] is ordered to forthwith re-measure and pay such further Interim
Payment Certificates as the applicant [Tubular]
may present from time
to time in terms of the subcontract between the parties.
4. The orders in
paragraphs 2 and 3 shall endure until such time, if at all, that the
said decision of the Dispute Adjudication
Board is revised in
amicable settlement or an arbitral award.
5. The respondent
shall pay interest a tempore morae on all amounts due to the
applicant.
6. The respondent
shall pay the applicant’s costs of the application including
the costs of two counsel (where applicable).’
This is the order in
respect of which Tubular sought the relief in the urgent application,
which is the subject matter of this appeal
(the order). Maleka AJ,
having considered the affidavits filed and arguments presented, came
to the conclusion that although DBT
had ‘failed to comply’
with the order, wilful disobedience had not been shown which decided
the fate of the contempt
of court relief sought. The learned judge
declined to make an order in terms of paragraphs 2, 3 and 4 of the
notice of motion.
But, so the learned judge reasoned, although DBT’s
‘refusal’ to comply with the order was not wilful, it was
nevertheless a ‘refusal’ to comply and that Tubular, to
that extent, had made out a case. Having considered what is
appropriate and just in the circumstances of the case, the learned
judge, on the basis of DBT’s ‘failure’ to
comply
with the order, issued the declarator in the terms I have quoted
above, declared that DBT ‘has acted in breach of’
the
order. Although implicit in the judgment, no specific order
dismissing the contempt relief (sought in prayer 2 of the notice
of
motion) was made.
[9] On appeal DBT
attacks the findings of the judge a quo firstly, that DBT had acted
in breach of the order, secondly, that DBT
had refused to re-measure
in terms of the sub-contract and, thirdly, that there was a clear
indication that DBT was not willing
to perform its obligations in
terms of the order. In argument before this court, counsel for DBT
submitted that the ‘finding’
by Maleka AJ that DBT had
refused to comply with the order was wrongly made and that it should
be set aside on appeal. A careful
reading of the judgment of Maleka
AJ reveals that the words ‘refused’, ‘unwilling’
and ‘failed’
in regard to DBT’s non-compliance were
used interchangeably. The declarator, as I have pointed out, refers
to DBT being ‘in
breach of’ the order. Whether the breach
consisted of a refusal or unwillingness or a failure to obey, is
neither here nor
there. It is trite that an appeal lies against the
substantive order made by the court a quo only and not against the
reasons for
judgment (per Nicholas AJA (as he then was) in
Administrator Cape and another v Ntshwaqela and others
1990 (1) SA
705
(A) 715D). For these reasons, the contention raised by counsel
for DBT cannot be entertained and is rejected.
[10] This brings me
to the remaining grounds of appeal. I propose to consider first the
appeal against the order of the court a
quo against DBT to pay the
costs of the fourth appellant. The second to fourth appellants, as I
have mentioned, are respectively
the chief executive officer,
managing director and assistant group general counsel of DBT. The
court a quo found that the fourth
appellant was ‘inappropriately’
joined to the application and, without furnishing reasons therefore,
ordered DBT, his
employer, to pay his costs. In the absence of any
reasons for the order I am not satisfied that the learned judge a quo
exercised
his discretion judicially (see Manong & Associates v
City of Cape Town
2011 (2) SA 90
(SCA) para [92]). No justification
for the order has been shown to exist. The appeal on this ground must
accordingly succeed.
[11] I now turn to
deal with the joinder of and order made against the second and third
appellants (the appellants). The basis for
their joinder, as stated
in the founding papers, is that they ‘have knowledge of the
court order (of Du Plessis AJ) and have
had such knowledge for many
months’. I hardly need to state that this does not constitute a
ground for the joinder of the
directors of a company where relief is
sought against that company. Equally odd is the contempt relief in
prayer 1 of the notice
of motion sought against all the respondents,
therefore including the appellants. The court a quo issued the
operative part of
the declarator against the appellants on the basis
that it was necessary ‘to ensure that the order that I have
made (the
declarator and directives) against it, should be given
effect to by its directors, at least the two directors...(the
appellants)’.
In this court counsel for Tubular sought to find
support for the finding in the fact that a company can only act
through its directors.
That of course does not constitute sufficient
reason for either joining the directors or granting an order against
them merely
to ensure compliance with the order. In the absence of
any evidence showing that the appellants frustrated DBT from
complying with
the order, both their joinder and the order granted
against them are improper and therefore ought to be set aside. As to
the costs
of the second, third and fourth appellants, they joined
forces with DBT both in the court a quo and in this court who were
all
represented by one firm of attorneys and the same counsel. A
separate costs order in respect of their appeal, albeit successful,
in my view, is therefore not justified.
[12] Finally, I turn
to the main ground of appeal which is aimed at the declarator and the
directives associated with it issued
by the court a quo. The order is
mirror image of the order by Du Plessis AJ, except that it allowed a
period of 5 days from the
date of the order for compliance. At the
time of Du Plessis AJ’s order IPC 37 was at issue and therefore
referred to in paragraph
2 of the order. In the meanwhile a number of
further IPC’s had been issued by Tubular and the IPC then
relevant was IPC 46.
As more than almost 6 months had elapsed when
the urgent application was brought, the subsequent events were fully
dealt with in
the urgent application. The crucial issue both then and
now remains whether DBT has complied with the orders. It is Tubular’s
version that DBT has always been and remains in contempt of the court
orders and that re-measurement in terms thereof has still
not
occurred. DBT on the other hand, apart from attacking the proprietary
of the order maintains that it has in fact always complied.
The
compliance with the orders, so it contends, consists of DBT having
started, right from the outset, soon after the order of
Du Plessis AJ
was issued, with the re-measurement which it is at pains to
emphasise, is an on-going process. Against this background
the battle
raged between the parties in the urgent application, the one blaming
the other for such delays in the finalisation of
DBT’s
re-measurement as did occur. It is however, beyond dispute, at this
stage, that DBT has not finalised the re-measurement
and that Tubular
has not been paid its dues in terms thereof.
[13] Counsel
submitted that the court a quo should have confined the order to a
dismissal of the application, with costs. Counsel
contended that
there had been compliance with the order, obviating the necessity to
re-issue the order and further to add to it,
as counsel referred to
it, the draconian sword of authorising an urgent application to be
brought in the event of further non-compliance.
I am unable to agree.
Assuming there to have been non-compliance with the order, to which I
shall revert, the re-issue of the order,
in my view, was not only
proper but also necessary. By the time the urgent application was
heard almost 6 months had passed and
further events taken place.
Counsel for Tubular referred us to an instance where this procedure
was sanctioned by the Supreme Court
of Appeal (see Fakie NO v CCII
Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) para 65). The court, in my
view, has a duty to ensure that court orders are obeyed and this is
exactly what the court a quo
attempted to achieve.
[14] Whether DBT has
complied with the order constitutes a factual issue. It is necessary
to briefly refer to the events form the
date of issue of the order,
which were fully dealt with in the urgent application. I propose to
adopt the Plascon Evans approach
in setting out the facts from DBT’s
perspective to be gleaned from its answering affidavit, which was
deposed to by Ms Lindsay,
an attorney in the employ DBT as a legal
adviser. She states that immediately after the issuing of the order
an independent quantity
surveyor, Mr Gildenhuys, of AECOM, was
appointed to perform the required re-measurement process in respect
of Tubular’s IPC
43. Gildenhuys however, experienced a number
of difficulties in performing the re-measurement: he required a
baseline re-measurement
protocol involving the bill of quantities,
which it is stated, operates as a standard against which interim
payment certificates
are evaluated on a monthly basis in order to
ascertain the correct re-measurement payment to be made. No baseline
re-measurement
protocol was in existence as the sub-contract had been
implemented on a lump sum basis for the first three years of its
existence.
The change to a re-measurement basis was brought about by
the DAB award. Gildenhuys moreover, experienced extreme difficulty
with
this time consuming and very difficult exercise. But, there it
did not end: Tubular, in each of the IPC’s issued since IPC
37,
presented a different baseline. This necessitated a reconciliation of
all the different baselines. And in doing so, compounding
the
difficulties, a number of anomalies were discovered, examples of
which are given merely to readily illustrate the enormous
problems in
evaluating and ‘trying to decipher’ Tubular’s
interim payment claims. In addition models were required
for
re-measurement purposes which were only provided by Tubular in August
2013. Tubular moreover, refused to provide shop drawings
and simply
offered viewing thereof at their offices: in correspondence Tubular
accused DBT of having failed to avail itself of
the offer. Against
this turbulent background a meeting between DBT and Tubular was
arranged and held on 20 August 2013. The meeting
is crucial to the
issue between the parties and has regrettably and notably received
scant attention in DBT’s answering affidavit.
[15] The 20 August
meeting is referred to in detail in Tubular’s letter to DBT,
dated 4 September 2013, which is attached
to DBT’s answering
affidavit. The letter records that Gildenhuys presented his report on
the re-measure and various points
were raised and discussed and
agreed on while certain items were referred to further meeting
between the quantity surveyors which
was held the next day. A further
meeting was scheduled for the next day but re-scheduled for the day
thereafter. Gildenhuys however,
advised through his secretary on the
morning before the start thereof that there would be no meeting as he
was at DBT’s offices
and that an interim determination would be
made. Following the meeting DBT in a letter to Tubular, dated 26
August 2013, with reference
to the meeting, stated: ‘As you are
well aware, DB Thermal is well into the process of a complete and
thorough re-measurement’
and provided an interim certification
of IPC 43, the correctness of which was disputed by Tubular in
correspondence that followed.
[16] In October 2013
DBT produced an ‘estimation’ in respect of IPC 43, based
on Gildenhuys’s ‘best attempt’
to make a ‘fair
and reasonable’ certification. Tubular once again disagreed
with the certification. Amounts totalling
R21 028 789.43, in respect
of IPC 43, were eventually paid to Tubular, which in view of the
magnitude of the claim was considered
minimal. In the meanwhile IPC
44 and 45 were issued. Tubular was requested regarding each of these
to exclude the re-measurement
which it was compelled to do merely to
ensure payment of some of the amounts claimed. The amount excluded
was carried over to the
next IPC.
[17] The urgent
application was launched as a consequence of IPC 46 having been
submitted but not paid. Tubular submitted IPC 46
to DBT on 22 October
2013. The following day DBT in writing raised two queries mentioning
the ‘non-achievement of milestones’
which Tubular
immediately thereafter indicated it was prepared to concede. Apart
from DBT stating that IPC 46 was ‘under
review’, no
further queries were raised. On 23 October 2013 DBT issued a
re-measurement by way of a spread sheet containing
a reference to all
the amounts claimed by Tubular in respect of the units and next to
it, in a separate column, the amounts of
DBT’s re-measurement.
The DBT re-measurement total amount arrived at is some R4m less than
the amount claimed by Tubular.
Tubular was prepared to accept the
lesser amount in respect of the re-measure (R221 860 935.26) as it
was an interim payment, and
on 9 November 2013 re-submitted for
approval IPC 46 for payment of that amount. In response DBT, yet
again, without furnishing
reasons, demanded that the ‘re-measurement
on all units be excluded’ before payment would be made. In
DBT’s letter
to Tubular dated 1 November 2013 it is reiterated
that DBT ‘will issue a final certification to Tubular’
which it is
common cause has not happened. Against this background
the allegation in DBT’s answering affidavit firstly, that
Gildenhuys
‘is presently conducting the final re-measurement’
and secondly, that DBT is ‘currently re-measuring as it will
continue to do in the future’ has a hollow sound to it.
[18] The response on
behalf of DBT concerning IPC 46 is instructive. In the answering
affidavit it is alleged, for the first time,
that the 23 October 2013
re-measurement was not final. Then follows, much in line with the
reasons proffered for the initial delays
in the certification, the
never-ending problems which Gildenhuys allegedly encountered in his
attempts to finally certify the re-measurement.
I do not consider it
necessary to traverse all these save to remark that there is a
glaring absence of a reference thereto by DBT
in response to
Tubular’s submission of IPC 46, which clearly was the opportune
time to have done that. Irreconcilable improbabilities
arise, which
DBT simply failed to deal with. It is for one, stated that the
‘provisional review’ was simply ‘to
function as a
starting template on which he (Gildenhuys) could conduct his reviews
in respect of the re-measurement for purposes
of establishing a final
re-measurement account’. Assuming this to be true, I would have
expected DBT to state as much in
its response to Tubulars’
submission of IPC 46. Instead, it merely demanded exclusion of all
re-measurements. Further contributing
to the mystery is the question
why, assuming this document to have been a working template or
compiled for comparison purposes
only, it was forwarded to Tubular,
when it was known to all that Tubular was awaiting certification by
DBT for submission of IPC
46 and eventually to obtain payment. I am
unable to reconcile the re-measurement with either the events
surrounding it or the nature
of the document. Had the alleged
problems faced Gildenhuys he, quite clearly, would not have been able
to perform any re-measurement,
let alone the one as detailed as he
has done. I am left with the inescapable impression, having carefully
considered the version
of DBT, in particular the ballooned
superlatives italised above, that Tubular’s view, that a front
of red herrings and smokescreens
was raised in an attempt to
obfuscate DBT’s contractual obligation, is not without merit.
Such problems as there may have
been surely would or could have been
addressed at the 20 August meeting. Gildenhuys surprisingly,
unilaterally cancelled the continuance
of the meeting with a promise
of performance which is difficult to reconcile with the large number
of problems he allegedly faced.
The baseline requirement which was
elevated in DBT’s answering affidavit to the pivotal difficulty
in performing the re-measurement,
only featured once in the
correspondence between the parties. Promises made by DBT came to
nothing. DBT did perform limited interim
re-measurements and one
partial interim payment was made to Tubular: how this was possible in
the face of the many problems that
have now been brought to the fore
remains unexplained. The aspects I have referred to clearly
illustrate DBT’s non-performance
of a contractual obligation
and in addition thereto, non-compliance with the court orders
confirming that obligation.
[19] In terms of the
sub-contact Tubular is required to submit monthly IPC’s to DBT
for its approval, which include the estimated
contract value of the
works executed at that time. DBT is then required to approve the IPC
within 18 days of submission and within
5 days thereafter Tubular is
to submit an invoice based on the approved statement. Payment to
Tubular must be made within 63 days
after the 22nd day of the month
of the statement. Tubular, in both the proceedings before Du Plessis
AJ and the urgent application,
in essence, sought an order for
specific performance of DBT’s contractual obligation to approve
the IPC after re-measurement.
A period of almost 2 years and 3 court
orders later and there has still not been compliance. DBT has not
shown any defence either
to the claim for specific performance or the
court orders. I am satisfied that Maleka AJ correctly re-issued the
order of Du Plessis
AJ and that the leave granted in respect of the
bringing of an urgent application in the event of further
non-compliance in paragraph
6 thereof, was fully justified. It
follows that the appeal, save for certain minor amendments to the
order of the court a quo,
in line with the findings I have already
made, cannot succeed.
[20] In the result
the following order is made:
1. The appeal is
upheld to the following extent:
1.1 Paragraphs 5 and
8 of the order of the court a quo are set aside.
1.2 The words ‘to
the third respondent’ in paragraph 6 of the order of the court
a quo are deleted.
2. The appeal
against the remainder of the judgment and order of the court a quo is
dismissed.
3. The first
appellant is ordered to pay the costs of the appeal, such costs to
include the costs consequent upon the employment
of two counsel.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
I agree.
BA MASHILE
JUDGE OF THE HIGH
COURT
I agree.
L WINDELL
JUDGE OF THE HIGH
COURT
COUNSEL FOR
APPELLANTS ADV A SUBEL SC
ADV S BUNN
ATTORNEYS FOR
APPELLANTS FASKEN MARTINEAU
COUNSEL FOR
RESPONDENT ADV CW JORDAAN SC
ADV TN GREEFF
ATTORNEYS FOR
RESPONDENT CLIFFE DEKKER HOFMEYR INC
DATE OF
HEARING 29 OCTOBER 2014
DATE OF
JUDGMENT 6 NOVEMBER 2014