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[2016] ZAGPJHC 215
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Interturbo (Pty) Ltd and Others v Absa Bank Ltd and Others (45884 /2012) [2016] ZAGPJHC 215 (1 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
45884 /2012
DATE:
1 AUGUST 2016
In
the matter between:
INTERTURBO
(PTY) LTD (IN
LIQUIDATION)
...........................................................
1st
Applicant
SUSARA
SUSANNA ELIZABETH DU
PREEZ
............................................................
2nd
Applicant
DANIEL
ASPELING DU
PREEZ
....................................................................................
3rd
Applicant
And
ABSA
BANK
LTD
................................................................................................................
1Respondent
AGRICOM
KOPERASIE (PTY)
LTD
.........................................................................
2nd
Respondent
MASTER
OF THE HIGH COURT,
JOHANNESBURG
.........................................................................................................
3rd
Respondent
CHAVONNES
BARDENHORST
ST
CLAIR COOPER
N.O
..............................................................................................
4th
Respondent
RICHARD
APRIL
MASUKUN.O
.................................................................................
5th
Respondent
SOUTH
AFRICA REVENUE
SERVICE
......................................................................
6th
Respondent
JUDGMENT
MASHILE
J
[1]
The First Applicant is a company in liquidation it having been
finally liquidated by an order of this Court dated 26 February
2013
per Masipa J. This application has as its primary objective the
setting aside and rescission of the order. If the notice
of
motion is anything to utilize to establish the basis of the
application, it is founded on the provisions of Section 354
of
the
Companies Act No 61 of 1973
(hereinafter “the 1973 Act”) as read with Item 9 of
Schedule 5 of the
Companies Act No 71 of
2008
(hereinafter “the 2008
Act”). That said, it is manifest from the founding
affidavit, the heads of argument and
counsel’s address in court
that the application is also premised on Uniform Rule of Court
42(1)(a).
[2]
The Applicants have also applied for condonation of the late
launching of the rescission application. Save for the fact
that
the First Respondent does point out that an application based on
Section 354 of the 1973 Act or on Rule 42(1)(a) must be brought
within a reasonable time, I did not see any opposing papers.
However, the approach that this Court will adopt in this judgment
renders the consideration of the condonation application superfluous
[3]
The First Respondent is opposing the main rescission application but
has served and filed its answering affidavit well out of
time
prescribed by the rules as a result of which it has launched an
application seeking condonation of the late service and filing
thereof. The Applicants have opposed the application.
Before turning to the rescission application, it will be convenient
to dispose of the condonation application as a resolution of that
issue could be dispositive of the whole application depending
of
course on the outcome.
[4]
It appears from the affidavit of the First Respondent that the late
filing of the answering affidavit was brought about by the
lack of
availability of First Respondent’s Counsel. Its Counsel
is alleged to have been the only Counsel who had dealt
with the
matter from inception and was therefore familiar with the papers such
that he would not be required to put as much effort
into the
comprehension of the papers. The Applicants have slated this
excuse stating that a party cannot always shield behind
the
incompetence of his lawyers to the detriment of the other party and
have for that reason asked the court to dismiss it.
[5]
It is not entirely correct to equate unavailability of counsel to
lack of skill of lawyers. That said though, the justification
for the late filing does sound feeble but it is nonetheless
understandable why a party would at times not want to change lawyers
in the middle of a case such as this one. A disregard of the
rules is viewed deleteriously by courts but in the circumstances
I
choose to exercise my discretion in favour of allowing the answering
affidavit. Similarly and to the extent necessary,
the
condonation for the late launching of this rescission application is
condoned so that the matter can be properly ventilated.
The
condonation issues having been resolved, I turn to the circumstances
that brought about this application for rescission.
[6]
The First Respondent advanced a loan of R 2 700 000.00 to the First
Applicant and secured it by the registration of a mortgage
bond over
the immovable property of the First Applicant (hereinafter “the
farm”). The Third Applicant executed
a suretyship in
favour of the First Respondent in terms whereof he bound himself as
surety and co-principal debtor in
solidum
, jointly and
severally, the one paying the other to be absolved, with the
Applicant for the due payment by him to the First
Respondent of all
amounts which he may be liable to pay to the First Respondent under
the loan agreement and for any claims, losses,
liabilities, costs and
expenses which the First Respondent may sustain as a consequence of
having advanced the loan to the First
Applicant.
[7]
Following the First Applicant’s default on its obligations
arising from the loan agreement, the First Respondent issued
summons
against the applicants and according to the return of service which
forms part of the body of documents constituting evidence
before this
Court, the sheriff effected personal service on the Second Applicant
at the farm. The Applicants (Defendants)
gave notice of
intention to defend on 2 July 2012.
[8]
On 16 August 2012, the Free State Provincial Division (hereinafter
“the Free State Division”) granted summary judgment
against the Applicants. On the same day, the First Respondent
received a letter from the attorney of the Applicants, Peach
& Du
Preez, advising that an application for finance had been made in
order to settle the indebtedness of the First Applicant
to the First
Respondent. On 18 September 2012, Mr Johan Du Preez
(hereinafter “Du Preez”), father of the Third
Applicant
and husband of the Second Applicant probably representing all the
Applicants, attended a meeting with the First Respondent’s
attorneys at which he advised them that the First Applicant had
managed to arrange alternative finance for its indebtedness to
the
First Respondent and that it would be signing an agreement by 26
September 2012 with guarantees to be issued by 15 October
2012.
[9]
Du Preez advised further that the First Applicant owned movable
assets to the value of about R2 000 000.00,
which were situated on
the farm. Du Preez advised that the Third Applicant was
carrying out farming while he was running
his accounting practice and
a guest house business at the farm. He also claimed that all
the movables on the farm were paid
for except a tractor in respect of
which R200 000.00 was owed.
[10]
On 11 October 2012 Mr Olivier of the First Respondent’s
attorneys caused a section 345 letter to be served at the
address of
the auditors of the First Applicant reflected on the CIPC as its
registered address. On 1 November 2012, the attorneys
of the
First Respondent received a letter from the auditors, Rabie Deysel,
informing them that they had resigned as auditors some
years back and
had no information available regarding the then auditors or
shareholders of the First Applicant. They included
correspondence dating back to 2010 that they forwarded to du Preez
and the First Respondent stating that since Du Preez took over
the
shares in the First Applicant they had never been provided with any
information to complete the financial statements.
[11]
On 11 December 2012, when payment from the First Applicant was not
forthcoming as promised, the Sheriff attached the
movable assets on
the farm belonging to the First Applicant to which the Sheriff
attached an estimated value of at R1 582 405.00.
Pursuant to
the lapse of the period of three weeks in the section 345 notice and
after the execution process had indicated that
the movable assets of
the First Applicant were inadequate to settle its indebtedness to the
First Respondent, the latter
proceeded with the liquidation
application.
[12]
The liquidation application was served at the farm upon Mr Thobela,
apparently representing the employees and on Du Preez,
the financial
manager of the First Respondent. In response thereto, the First
Applicant instructed its attorneys, BMV, to
oppose it. When the
First Applicant failed to serve and file its answering affidavit, the
First Respondent served and filed
a notice of set down on 19 February
2013 notifying the First Applicant that the application would be
heard on 26 February 2013
on which date this Court granted a final
liquidation order.
[13]
On 21 October 2013 and 31 January 2014, the sheriff attempted to
attach the movable property of the sureties situated
at the farm but
on each occasion was told by the Third Applicant, and the Second and
Third Applicants respectively that the movable
property on the farm
belonged to the First Applicant. The Applicants have been aware
of the liquidation order because as
early as 20 August 2013 Du Preez
wrote to Carel van Heerden who was apparently his counsel, advising
that Esme, a secretary to
one of the directors of the First
Applicant’s attorneys had contacted him to advise
him of the liquidation.
[14]
On 30 July 2013, Du Preez, supported by the second and third
applicants, launched an application for leave to appeal
coupled with
a purported condonation application notwithstanding knowledge of this
Court’s order of 26 February 2013 since
July 2013. When
the Applicants and Du Preez took no steps to have the appeal before
court, the First Respondent successfully
set it down and had it
dismissed by this Court on 2 June 2015.
[15]
The Applicants then instructed Luis Teixeira Attorneys to apply for
the rescission of the final order. The attorneys
subsequently
withdrew the application on 10 June 2015 as it was defective.
Luis Teixeira Attorneys too withdrew as attorneys
of record on 22
July 2015. On 5 August 2015, RMB Wands Attorneys ostensibly
acting under instructions of the Applicants placed
themselves on
record and on 1 September 2015 launched this current
application. At that stage, the
First, Fourth and
Fifth Respondents had already taken steps to have the farm sold by
auction.
[16]
The auction occurred on 4 September 2015 on which date it was sold
for R2 400 000.00 excluding VAT but including commission
in the sum
of R120 000.00 plus VAT. The auction went ahead despite that
the Respondents had received the application for
rescission at the
time.
[17]
The court is asked to resolve the following questions:
17.1
Can the final order be rescinded on the basis of the provisions of
Section 354 of the
1973 Act?
17.2
Can the Applicants contest the judgment of the Free State High Court
at this stage?
17.3
Is the solvency of the First Applicant pertinent in these
proceedings?
17.4
Did the First Respondent comply with the provisions of Section
346(4)(b) of the 1973 Act?
[18]
The Applicants contend that the First Respondent has failed to comply
with the following peremptory statutory requirements
as envisaged in
the
1973 Act:
18.1
To furnish the letter demanding payment on the registered address of
the First Applicant;
18.2
Serve the application on the employees of the First Applicant, and if
it was not able to locate all the employees, it
was to affix the
application to the gate, door or notice board of the company;
18.3
Furnish an affidavit describing the service in terms of the
following:
18.3.1
the attempts made to determine who the employees are and where they
reside;
18.3.2
attempt to come on an alternative day to locate employees
of the First Applicant;
18.3.3
attempts made to determine the number of temporary employees and
permanent employees;
18.3.4
describe how it came to discover that there were only temporary
employees of the First Applicant;
18.3.5
attempt to leave the application on a gate, door or notice board and
whether it was in fact possible or not;
18.3.6
describe whether the sheriff attempted to serve on any of the
directors of the company;
18.3.7
spell out all and any non-compliance with the peremptory requirements
of service.
18.4
To furnish the Court with the Master’s certificate at least 10
days before the application was to be heard.
[19]
The First Respondent has also failed to prove that the First
Applicant was unable to pay its debt and Failed to explain
service on
the employees and the First Applicant in its founding affidavit.
In view of the First Respondent’s failure
to comply with these
statutory peremptory requirements, the liquidation order was
erroneously sought or erroneously granted.
[20]
Insofar as rescission in terms of the Section 354 is concerned, the
First Respondent asserts that the Applicants have
not only failed to
demonstrate the existence of exceptional or special circumstances but
have also not furnished satisfactory explanation
for their failure to
oppose or appeal the order. For those reasons, the First
Respondent urged this Court to exercise its
discretion against
granting relief as prayed for by the Applicants. If, however,
the court feels inclined to grant the relief
in favour of the
Applicants, the First Respondent implored this Court to protect the
rights and interest of the purchaser of the
farm.
[21]
With reference to the non-compliance with Section 346(4)(b) of the
1973 Act, the First Respondent has argued that it
has substantially
complied because the objective of the section is to ensure that the
employees are notified so that they can choose
whether or not to
exercise their rights. The emphasis is on notifying them and
not on the form of the notification.
Accordingly, service of
the application by the sheriff and how he went about effecting the
service on the relevant parties should
satisfy the requirements of
the section.
[22]
The summary judgment granted by the order of the Free State High
Court against the Applicants is irrelevant to these
proceedings and
is in any event res judicata. This Court cannot rescind that
order and the Applicants are not asking it to
do so anyway. The
question of the solvency of the First Applicant is also immaterial in
this matter because it is trite that
liquidation concerns itself with
the inability to pay and not whether or not a party is solvent or
insolvent.
[23]
Section 149(2)
of the
Insolvency Act No. 24 of 1936
provides:
“
The
court may rescind or vary any order made by it under the provisions
of this Act.”
Section
354 of the 1973 Act provides:
“
(1)
The Court may at any time after the commencement of a winding-up, on
the application of any liquidator, creditor or member,
and on proof
to the satisfaction of the Court that all proceedings in relation to
the winding-up ought to be stayed or set aside,
make an order staying
or setting aside the proceedings or for the continuance of any
voluntary winding-up on such terms and conditions
as the Court may
deem fit.
(2)
The Court may, as to all matters relating to a winding-up, have
regard to the wishes of the creditors or members as proved to
it by
any sufficient evidence.”
[24]
Rule 42(1)(a) provides:
“
The
court may, in addition to any other powers it may have, mero motu or
upon the application of any party affected, rescind or
vary:
an
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;”.
[25]
Section 345 of the 1973 Act is headed, When Company Deemed Unable to
Pay Its Debts, and Subsection (1) (a) (i) provides
as follows:
“
(1)
A company or body corporate shall be deemed to be unable to pay its
debts if -
(a)
a creditor, by cession or otherwise, to whom the company is indebted
in a sum not less than one hundred rand then due-
(i)
has served on the company, by leaving the same at its registered
office, a demand requiring the company to pay the sum so due;
….”
[26]
For inexplicable reasons the Applicants refer to Section 354 of the
1973 Act and 149(2) of the
Insolvency Act No 24 of 1936
but fail to
elaborate on both these sections in the founding affidavit.
That said though, I agree with the First Respondent
and the views of
the authors to which this Court has been referred on the subject.
In addition, it could be instructive to
refer to the following
passage, which I uplifted from STORTI V NUGENT
2001 (3) SA 783
(W)
where this Court, after reference to numerous case law, stated:
“
The
principles to be gleaned from the authorities, often not harmonious,
are in my view the following:
(1)
The Court's discretionary power conferred by this section is not
limited to rescission on common-law grounds.
(2)
Unusual or special or exceptional circumstances must exist to justify
such relief.
(3)
The section cannot be invoked to obtain a rehearing of the merits of
the sequestration proceedings.
(4)
Where it is alleged that the order should not have been granted, the
facts should at least support a cause
of action for a common-law
rescission.
(5)
Where reliance is placed on supervening events, it should for some
reason involve unnecessary hardship to
be confined to the ordinary
rehabilitation machinery, or the circumstances should be very
exceptional.
(6)
A Court will not exercise its discretion in favour of such an
application if undesirable consequences would
follow.”
[27]
The Applicants have failed to show the existence of any unusual or
special or exceptional circumstances entitling them
to the relief
that they seek in terms of this Section. Besides, it is this
Court’s opinion that it should not exercise
its discretion in
favour of granting the relief sought especially in view of the fact
that ownership of the farm has already passed
to a third party.
Granting the relief therefore under such circumstances will
undoubtedly have ‘undesirable consequences’
especially on
the purchaser of the farm.
[28]
That leaves this Court to direct its energy to the other issues.
The First Respondent has denied service of the
demand at its
registered address yet there is proof that on
11
October 2012 that the attorneys of the First Respondent caused a
section 345
letter to be served on its registered address being the
address of its auditors as per the CIPC. A copy of the letter
is
attached to the liquidation application and the Applicants must
have been aware of its existence even prior to launching this
application.
There is accordingly no merit in this assertion
and it is rejected.
[29]
The final liquidation order which the Applicants seek to rescind is
the aftermath of the Free State Provincial Division
order
(hereinafter “the Free State order”). It is common
cause that the Applicants wilfully failed to oppose
the summary
judgment application resulting in the Free State Division granting
the order without opposition whatsoever. Whether
or not the
lack of opposition was as a result of bad legal advice is besides the
point. In this application, the Applicants
are challenging the
grounds on which the Free State order was granted and that is
fallacious because that order remains valid and
very pertinent to the
final liquidation order granted by this Court.
[30]
In the circumstances, the existence of the Free State order will, for
as long as it is not rescinded, stand as an impediment
to any remedy
that the Applicants may seek. I agree that the Free State
order has rendered the issue res judicata,
thus this Court cannot
entertain it and moreover , it could not even if it were
asked to do so simply because it lacks
jurisdiction.
[31]
Turning to the First Applicant’s solvency. I note that
Counsel for the First Respondent has gone to great
lengths explaining
why the First Applicant was not only insolvent but also unable to pay
its debts. This Court’s opinion
is that it was not
necessary to explore the matter to the extent the First Respondent
has done. The question pertaining to
the First Applicant’s
solvency is inseparable to the Free State order. That must be
so because the premise and essence
of the Free State order was the
First Applicant’s inability to pay its debts.
[32]
It being trite that it is not the solvency that determines the
liquidation of a party but its inability to settle its
debts, it is
rather testing to decipher its pertinence here. See,
Boschpoort
Ondernemings (Pty) Ltd v Absa Bank Ltd
2014 (2) SA 518
(SCA)
.
The case aforesaid has also finally confirmed that it is commercial
insolvency that must be established such that factual
insolvency does
not have to be demonstrated first. Accordingly, the matter
cannot be entertained once it has been concluded
that the First
Applicant was unable to settle the debt as demanded and that the Free
State Division even granted judgment against
it.
[33]
It must be borne in mind that the deemed inability to pay as
envisaged in sub-s 345 (1) (a) is a conclusion of law.
In this
regard, Henochsberg in its commentary on the 1973 Act outlines the
point as follows:
“
It
is respectfully submitted that the intention is that in any of the
situations set out in sub-s (1)(a), (b) and (c) the conclusion
that
the company is unable to pay its debts is to be a conclusion of law,
ie, for the purpose of the exercise by the Court of the
jurisdiction
to wind up under s 344( f ), the company is, where any of such
situations exists, in law unable to pay its debts even
if in fact it
is able to pay them…..”
[34]
It is conceivable for a solvent company to be declared unable to pay
its debts even though it can. The point is
did the company pay
and not whether or not it can pay. Thus failure to settle a
debt demanded in terms of Section 345(1)(a)(i)
of the 1973 Act or to
settle a judgment validly obtained, as is the case in the instant
case, could result in a legitimate winding-up.
I therefore
agree with the conclusion of the First respondent’s Counsel
that given the aforesaid exposition of the situation,
assuming that
the winding up order were to be rescinded, the Applicants would
nonetheless fail in their opposition of the liquidation
application.
[35]
Does the sheriff’s return of service constitute satisfactory or
substantial compliance with Section 346(4)(b) of
the 1973 Act?
This issue requires exhaustive scrutiny. The attitude of the
Applicants is one of strict compliance –
Non-compliance with
the section renders the process fatally defective. If no
affidavit is filed describing who was served
and how such service was
effected then the provisions of the section will not have been
satisfied or substantially complied with.
Conversely, the
approach of the First Respondent is liberal and progressive and more
in accord with recent case law –service
upon the employees
cannot be compromised but the form can.
[36]
It is common cause that the sheriff,Mr Laabuschagne, served the
application on one Thobela, ostensibly one of the people
in the
employ of the First Respondent, and Du Preez whose relationship to
the Applicants has been explained earlier. The
service of the
process and how it was served is evident from the return of service
itself, which the First Respondent has attached
to its answering
affidavit. The legal position is that a sheriff’s return
of service constitutes prima facie proof
of what the sheriff claims
to have executed.
[37]
In the absence of any challenge to the contents of the return, this
Court must accept it as proof that the sheriff carried
out the
service in the manner described therein. The Applicants have
pointed out that the return does not in many ways state
what must be
alleged in terms of Section 346(4)(b) and cannot therefore be valid.
In response the First Respondent, albeit
ex post facto, obtained an
affidavit from the sheriff wherein he supplemented his return.
[38]
I must agree with Counsel for the First Respondent that at the time
when the liquidation application was heard, a properly
executed
return of service was among the court papers and that is not to say
that it contained all the information contemplated
in Section
345(4)(b) of the 1973 Act. However, the supplementary affidavit
of the sheriff that was subsequently served and
filed added whatever
missing information there might have been.
[39]
According to the contents of the return of service:
39.1
It was served on Thobelo, an adult male at the farm;
39.2
Thobelo appeared to the sheriff to have been not less than 16
years old;
39.3
He seemingly resided or was employed at the farm;
39.4
He seemed to have been in authority.
[40]
From the sheriff’s observation that “all employees at
Farm Karmel are temporary employees”, it is inexorable
to conclude that he must have enquired around to placate
himself that there were employees at the farm upon whom he could
serve the process. In his affidavit supplementing the
information that he had provided in his return of the liquidation
application, the sheriff declares that:
40.1
Du Preez, the financial and farm manager, confirmed to him that the
First Respondent did not have any permanent employees
and that all
employees are temporary which Du Preez collects from various
townships and then brings them to the farm to work on
a temporary
basis;
40.2
There were no staff houses on the farm;
40.3
There was neither a notice board for purposes of employees nor one to
which they had access;
40.4
It was not pragmatic to affix a copy of the liquidation application
to the front gate of the premises because the property
is a farm nor
could he do so to the front door of the premises as there was none.
[41]
In terms of the decision in EB STEAM COMPANY (PTY) LTD
V
ESKOM HOLDINGS SOC LTD
[2014] 1 ALL SA 294
(SCA)
,
a case to which Counsel for the First Respondent referred this Court,
the objective of
Section 346(4b)
of the
Companies Act is
not to
provide a technical defence to the employer to avoid or postpone the
evil hour when the winding-up or sequestration order
is to be made.
The aim is to draw the attention of the employees of the company to
the application. On the facts of
this matter, the sheriff
effected the best possible service on any such temporary employees as
might have been employed by the
First Applicant.
[42]
It is worth remarking that if Thobelo was a total stranger to Du
Preez, as the Applicants would have this Court believe,
then it
leaves one completely confounded why Du Preez would not stop the
sheriff. The only sound inference to draw from these
facts is
that Thobelo was indeed one of the employees, permanent or not.
His silence also suggests that he did not point
out the permanent
employees because he noted that the sheriff had found one of them and
that was Thobelo.
[43]
There is no legal requirement at least in terms of the 1973 Act that
service of the application on the company must be
on a director.
Thus service effected on an employee of the company such as Du Preez
was sufficient. Similarly it is
safe to surmise that the
application having been served upon Du Preez, the Second Respondent’s
husband and the Third’s
father, all the Respondents received it
and this is confirmed by the Applicants‘ service and filing of
a notice of their
intention to oppose.
[44]
With regard to knowledge of the liquidation order it is clear from Du
Preez’s subsequent actions beginning with his letter
of 20
August 2013 wherein he confesses to Ms Carol Van Heeden that Asme had
told him about the liquidation order. The First
Respondent has
provided instances that cogently demonstrate that the Applicants were
aware of the order even after August 2013.
[45]
To the extent that the case authority mentioned by the Applicants is
at variance with what Wallis JA stated in the EB
Steam Co (Pty) Ltd
case supra, it is rejected. The passage from the case reads:
“
[23]
To sum up thus far the position is as follows. The requirement that
the application papers be furnished to the persons specified
in s
346(4A) is peremptory. It is not however peremptory, when furnishing
them to the respondent's employees, that this be done
in any of the
ways specified in s 346(4A)(a)(ii). If those modes of service are
impossible or ineffectual another mode of service
that is reasonably
likely to make them accessible to the employees will satisfy the
requirements of the section. If the applicant
is unable to furnish
the application papers to employees in one of the methods specified
in the section, or those methods are ineffective
to achieve that
purpose and it has not devised some other effective manner, the court
should be approached to give directions as
to the manner in which
this is to be done. Throughout the emphasis must be on
achieving the statutory purpose of so far as
reasonably possible
bringing the application to the attention of the employees.”
[46]
There can be no better clear authority than the EB Steam Co (Pty) Ltd
case supra to justify the manner of service of
the application upon
the parties who were entitled to be notified. I reiterate that
service cannot be compromised but the
method of service can. It
is the finding of this Court that the sheriff’s return of
service constituted substantial
compliance with the provisions of
Section 346(4)(b) of the 1973 Act.
[47]
That ruling means that Rule 42(1)(a) cannot find application in this
instance. The court detected nothing wrong
with the application
when it decided to grant the order on 26 February 2013 and this Court
also confirms that there was nothing
irregular with the manner in
which judgment was granted in favour of the First Respondent.
Against that background the application
fails and I make the
following order:
1.
The application is dismissed with costs
such
costs shall be those in the winding-up of the First Applicant
B
A MASHILE
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT: R ANDREWS
INSTRUCTED
BY: RMB WANDS ATTORNEYS
COUNSEL
FOR THE RESPONDENTS: AC BOTHA
INSTRUCTED
BY: JAY MOTHOBU INCORPORATED
DATE
OF HEARING: 9 MAY 2016
DATE
OF JUDGMENT: 1 AUGUST 2016