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[2017] ZAGPJHC 214
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Gossayn and Another v Nedbank Limited (A5049/2015) [2017] ZAGPJHC 214 (16 July 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
REPUBLIC OF SOUTH AFRICA
Date
of hearing: 9 June 2017
Date
of judgment: 26 July 2017
Case
number: A5049/2015
Case
number court a quo: 33795/2012
Not
reportable
Of
interest to other judges
Revised.
In
the matter between:
LORAINE
PHILOMENA GOSSAYN
First
Appellant
STEPHEN
ANTHONY GOSSAYN
Second
Appellant
and
NEDBANK
LIMITED
Respondent
JUDGMENT
BRENNER,
AJ:
1.
The issues in
this full bench appeal involving a money judgment and foreclosure
proceedings under four loans secured by altogether
four mortgage
bonds over fixed property
are
whether the provisions of section 81(2) of the National Credit Act,
number 34 of 2005, (“the NCA”), applies to the
consolidation agreement described below, and, if so, whether the
respondent failed to comply with such provision. The latter enquiry
would involve analysing whether the appellants were at the time of
the conclusion of the consolidation agreement and whether, as
a
result, the respondent committed an act of reckless lending.
2.
In the trial court, before the
Honourable Ms Justice Victor, judgment was granted on 18 February
2015 against the first and second
appellants, Loraine Gossayn (“Mrs
Gossayn”) and her husband, Stephen Gossayn (“Mr
Gossayn”), in favour
of the respondent, Nedbank Limited
(“Nedbank”), for payment of the sum of R12 012 755,21
plus mora interest and costs.
3.
Certain immovable property
registered in Mrs Gossayn’s name was declared specially
executable, namely:
a.
portion 424 (a portion of
portion 163) of the Farm Paardeplaats 177 registration division IQ,
Gauteng Province, in extent 1,7551
hectares and held by deed of
transfer T14211/1983 (“portion 424”), and
b.
portion 425 (a portion of
portion 163) of the Farm Paardeplaats 177 registration division IQ,
Gauteng Province, in extent 1,7845
hectares and held by deed of
transfer T5827/2005 (“portion 425”).
4.
Leave to appeal was granted on 10
March 2015 by the trial court.
5.The
subject-matter of dispute concerned four loan agreements between Mrs
Gossayn, as principal debtor, and Nedbank, as lender,
all of which
were consolidated into one agreement on 13 July 2011 (“the
consolidation agreement”).
6.
Mrs Gossayn was born on […]
August 1957 and Mr Gossayn was born on […] November 1956. They
were married in 1979 out
of community of property.
7.
In 1983, Mrs Gossayn took transfer
of the property then described as “Holding 19 Chancliff
Agricultural Holdings”. Holding
19 was excised from Chancliff
Agricultural Holdings and its description was changed to that of
portion 424, by endorsement dated
25 March 2008.
8.
In 2005, Mrs Gossayn took transfer
of the property then described as “Holding 20 Chancliff
Agricultural Holdings”. This
property was previously owned by
Mr Gossayn (from 27 November 1997) and sold for R2 950 000,00, and
transferred to Mrs Gossayn,
on 14 January 2005.
9.
On 30 August 2002, Nedbank and Mrs
Gossayn executed the first written loan agreement for the advance to
her of R600 000,00. As security
for this loan, on 23 June 2003, a
mortgage bond was registered in favour of Nedbank for R600 000,00,
over portion 424, being what
was then described as “Holding 19
Chancliff Agricultural Holdings.”
10.
On 15 May 2006, Nedbank and Mrs
Gossayn executed the second written loan agreement for the advance to
her of R3 600 000,00. As security
for this loan, on 13 June 2006, a
second mortgage bond was registered in favour of Nedbank for R3 000
000,00, over portion 424,
being what was then described as “Holding
19 Chancliff Agricultural Holdings.”
11.
On 29 November 2006, as collateral
security for the debt, Mr Gossayn executed a deed of suretyship in
fabour of Nedbank for the
liability of Mrs Gossayn.
12.
On 17 July 2007, Nedbank and Mrs
Gossayn executed the third written loan agreement for the advance to
her of R3 308 041,70. As security
for this loan, on 20 April 2007, a
first mortgage bond was registered in favour of Nedbank for R3 300
000,00, over portion 425,
being what was then described as “Holding
20 Chancliff Agricultural Holdings.”
13.On
24 December 2007, Nedbank and Mrs Gossayn executed the fourth written
loan agreement for the advance to her of R5 205 130,00.
As security
for this loan, on 25 March 2008, a third mortgage bond was registered
in favour of Nedbank for R1 650 139,00, over
portion 424, being what
was previously described as “Holding 19 Chancliff Agricultural
Holdings.”
14.On
25 March 2008, Holding 19 was excised from Chancliff Agricultural
Holdings and its description was changed to that of portion
424, and
Holding 20 was excised from Chancliff Agricultural Holdings and its
description was changed to that of portion 425.
15.In
June 2008, Mrs Gossayn took transfer of four sectional title units
being units 35, 9, 7 and 75 in the sectional title scheme
known as
Honeyvale 107. The prices for these units were, respectively, R595
000,00, R595 000,00, R595 000,00 and R995 000,00.
16.Mortgage
bonds for the purchase prices were registered over the units as
follows:
a.
In favour of Firstrand Bank
Limited, in respect of units 35 and 75;
b.
In favour of Absa Bank
Limited, in respect of units 9 and 7.
17.We
interpose to mention that, on 21 February 2011, portion 424 was
notarially tied with portion 425 in terms of a notarial deed
of tie
agreement executed on 24 January 2011. This occurred at the behest of
Nedbank, so that both properties could be sold together
if the need
arose. A usufruct over portion 424 was also removed to unencumber
Nedbank’s security over the property.
18.All
of the loan agreements contained acceleration clauses which provided
that, on failure to timeously repay any instalment,
the full amount
then owing would immediately become due, owing and payable, together
with finance charges. Moreover, a certificate
of balance issued by
Nedbank would constitute prima facie proof of the amount then
outstanding by Mrs Gossayn.
19.
Between August 2002 and March 2008,
Nedbank advanced capital amounts totalling R12 705 130,00 to Mrs
Gossayn.
20.
On 7 June 2008, within six months of
the grant of the fourth loan, Mrs Gossayn defaulted on her instalment
of R63 096,03. Another
23 reversals of her debit orders for the
instalments occurred from December 2008 to August 2012.
21.On
15 September 2008, a close corporation styled “Cedar Country
Inn 2008 CC” (“the corporation”), was
incorporated,
with Mrs Gossayn as its sole member. According to the financial
statements of the corporation, its principal business
was that of a
hotel, restaurant, with convention and wedding facilities.
22.
In May 2010, Nedbank and Mrs Gossayn
commenced negotiations to consolidate the loans, with the then
balance of the debt amounting
to the sum of R9 505 130,00, excluding
finance charges. Because Mrs Gossayn had consistently defaulted on
her monthly repayments
from May 2010, when negotiations started, and
ended in July 2011, when the consolidation agreement was executed,
Nedbank was not
amenable to reducing the interest rate.
23.On
21 February 2011, Mrs Gossayn registered a second mortgage bond over
portion 425 for R1 000 000,00 in favour of Nedbank. This
constituted
additional security for monies already advanced to Mrs Gossayn.
24.On
1 July 2011, the corporation executed a deed of suretyship in favour
of Nedbank for the liability of Mrs Gossayn. The corporation
was
initially cited in the action as a third defendant but its
intervening liquidation prior to trial resulted in the action against
it falling away.
25.Over
one year of negotiations culminated in the execution on 13 July 2011
of the consolidation agreement. The consolidation agreement
relied on
by Nedbank does not describe itself as such and it refers to the
applicability of the NCA throughout. It is referred
to as “Agreement
of Loan (National Credit Act, 2005). It is entered into between
Nedbank and Mrs Gossayn as a natural person.
There is neither an
introductory clause nor a preamble to the document to articulate that
it consolidates the debt under the four
loan agreements, when this is
an established fact, based on the evidence. It erroneously mentions a
loan to be made when all loans
had already been made. It fails to
express that it constitutes a novation or substitution of the
previous loan agreements. Nothing
turns on this, as Mr and Mrs
Gossayn never disputed that the consolidation agreement was the
proper cause of action giving rise
to the relief sought. There is a
“whole agreement” clause. And there is a clause
containing a warranty from Mrs Gossayn
providing:
“
29.5
The Client warrants that all information provided by the Client in
the application for the Loan and any other information provided
to
Nedbank for the purposes of such application are, to the best of the
Client’s knowledge and belief, both true and correct
and that
no information that may affect Nedbank’s decision to approve
the Loan has been withheld.”
26.Mrs
Gossayn proceeded to breach the consolidation agreement within three
weeks of its conclusion: her first debit order was reversed
on 3
August 2011. A certificate of balance attached to Nedbank’s
particulars of claim reveals a total debt of R12 012 755,81
as at 1
December 2014. One year later, on 15 August 2012, Nedbank sent a
letter of demand to Mrs Gossayn in terms of section 129
of the NCA.
27.A
lack of positive action to this demand resulted in the issue of
summons against Mrs Gossayn, on 5 September 2012. The action
was
defended, and a summary judgment application brought.
28.The
opposing affidavit of Mrs Gossayn is inciteful. No mention was made
of a defence of reckless lending. Instead, the gravamen
of Mrs
Gossayn’s defence amounted to the following. The third loan
agreement had been misplaced and therefore the deponent
to the
summary judgment affidavit could not confirm having perused this
document. Nedbank had dragged its feet in negotiating the
consolidation agreement and this resulted in her paying excessive
fees, insurance and interest. She had been informed that the
interest
rate on the loans would be abated to prime less 1,9%, yet Nedbank
allegedly reneged on this by reverting to the prime
rate.
29.Nedbank
was charging her for insurance on the properties when she had secured
her own insurance cover after receipt of the section
129 notice, she
had tried to communicate with Nedbank officials to resolve matters.
To no avail. On 27 March 2012, she completed
certain documents
concerning settlement of the then arrears, and had submitted them,
but Nedbank failed to reply. She was simply
informed that Nedbank
would make a decision on a “possible repayment plan for the
arrears”. There was no further reply.
30.On
15 April 2013, Nedbank applied to join Mr Gossayn and the corporation
as second and third defendants to the action. The joinder
was
successful. Amended particulars of claim were duly filed on 8 August
2013.
31.In
the defendants’ amended plea, served on 21 October 2013, the
defence of reckless lending was advanced. The Gossayns
contended that
Nedbank had failed to conduct an assessment of Mrs Gossayn’s
financial ability to repay the consolidated loan,
as required by
section 81(2) of the NCA. Alternatively, assuming the assessment
occurred, Mrs Gossayn did not understand the risks
associated with
the consolidation agreement, and entering into same caused her to
become overindebted. Accordingly, the agreement
was of a reckless
nature as defined by section 80(1) of the NCA.
32.In
the result, the paramount issue was whether reckless lending occurred
at the date of the consolidation agreement on 13 July
2011. No issue
was raised by the defendants concerning reckless lending at the dates
of the four loans, and any such defence was
accordingly abandoned.
33.
The action was enrolled for trial in
February 2015. The following matters were common cause between the
parties. The loans forming
the subject-matter of the consolidation
agreement were indeed advanced to Mrs Gossayn. The terms of the four
loan agreements culminating
in the consolidation agreement, and the
terms of the securities, namely, the mortgage bonds, and the deeds of
suretyship, were
undisputed. Since the corporation had been
liquidated, no relief was sought against it.
34.
Three witnesses testified for
Nedbank, namely, Ms Pheladi Moagi (“Moagi”), Mr Freddie
Vos (“Vos”), and Mr
Golden (“Golden”). An
application by the defendants for absolution from the instance was
dismissed. The defendants
closed their case without testifying or
calling any other witnesses.
35.
The record had to be reconstructed
in regard to the viva voce evidence adduced by Moagi and Vos, and the
evidence in chief by Golden.
36.
Moagi testified about the
calculation of the liability of Mrs Gossayn and her husband qua
surety. She drew the information from
Nedbank’s computer as R12
012 755,21 plus interest. She was satisfied that the figure was prima
facie correct. No alternative
calculation was put to her to
controvert her evidence. No evidence was led by the Gossayns to
contradict the calculation.
37.
Vos was the relationship manager of
the defendants. He dealt with them on a regular basis. He was
satisfied from the information
supplied by them that Mrs Gossayn had
enough assets to cover the debt before execution of the consolidation
agreement. Vos could
not recall whether he had prepared a
pre-agreement quotation.
38.
Golden was the senior manager of
Nedbank whom Mrs Gossayn approached to renegotiate her debt, to
extend the length of the repayment
of same and thereby reduce the
monthly instalments. No further advance was to be made. The account
was in the legal department
at the time. Golden asked Mrs Gossayn for
signature of an application form and for financial statements and
management accounts
of the corporation. He testified that, usually, a
credit assessor would obtain a “pre-agreement and quote”.
Golden
was unable to confirm whether this occurred.
39.The
application form was signed by Mrs Gossayn on 5 April 2011. The form
reflects her gross assets as being worth R30 600 000,00,
and
liabilities as R9 675 000,00. Her income is recorded as R280 000,00
per month and her expenses as R77 000,00 per month, leaving
disposable surplus income of R203 000,00. The application contains a
warranty that Mrs Gossayn has “fully answered all questions
and
responded to requests for information truthfully as part of the
assessment process”, and that she “is not aware
of any
other information that may affect this application negatively.”
40.
Golden testified that Nedbank’s
affordability test was conducted by referring to Mrs Gossayn’s
net income as declared
in her form, the net income of the corporation
as recorded in its financial statements at February 2010 and February
2011 and management
accounts to 15 May 2011. The financial statements
were signed by Mrs Gossayn, who, in the result, associated herself
with the accuracy
thereof.
41.For
the financial year to February 2010, the corporation had earned a net
after tax profit of R661 219,00 while for the year
to February 2011,
its net after tax profit was R1 120 793,00.
42.The
turnover figures were verified by perusal of Nedbank’s bank
statements as the parties banked with Nedbank.
43.The
financial statements revealed that the corporation paid rent to Mrs
Gossayn for renting portions 424 and 425 from her. The
statements for
February 2011 indicated that rent of R1 048 735,00 was paid by the
corporation to Mrs Gossayn, that the corporation
generated a net
profit of R1 473 740,00, and had retained income of R1 120 793,00,
and that Mrs Gossayn withdrew R199 760,00 from
the corporation for
this period.
44.Two
credit committee meetings took place over the negotiation period from
circa May 2010 to July 2011, and the financial information
supplied
by Mrs Gossayn was duly considered, after which Nedbank concluded
that she could afford to repay the debt at monthly instalments
of R76
480,04 over a period of 360 months.
45.During
cross-examination, a further asset of Mrs Gossayn’s came to
light, namely, her credit loan account against the corporation
of R2
195 253,00 as at February 2011. While it was put to Golden that the
loan account could not be called up, it is noteworthy
that, for the
year to February 2011, the corporation earned a net profit before tax
of R1 473 740,00.
46.It
was conceded that the total cost of the restructured loan was R27 553
474,60. Golden explained that this was the cost for
extending the
repayment period to 360 months from July 2011 until final repayment
of the debt. This was disclosed in the consolidation
agreement.
47.We
turn to an analysis of the facts in the light of the prevailing law.
The first question which falls for determination is whether
the
consolidation agreement is a credit agreement falling within the
purview of section 81(2) of the NCA. The first and second
loans were
concluded before the coming into operation of the NCA on 1 June 2006.
The third and fourth agreements were however concluded
after the
commencement of the NCA and undisputedly constituted credit
agreements. It was not the defendants’ case that reckless
lending had occurred when the third and fourth loans were granted. It
was however their case that reckless lending occurred in
July 2011
when the consolidation agreement was concluded. It was a proven fact
that, under the consolidation agreement, no additional
credit
facility was advanced.
48.The
term “consolidation agreement” is referred to in the NCA
but it is not defined in the NCA. This is a lacuna to
which the
legislature’s attention should be drawn.
49.A
credit transaction is defined in section 1 of the NCA to mean an
agreement that meets the criteria set out in section 8(4)
of the NCA.
Such section in turn, includes an agreement in terms of which
“payment of an amount owed by one person to another
is
deferred”. At first blush this definition would include the
consolidation agreement forming the subject matter of this
litigation.
50.The
NCA refers to consolidation agreements in a different context,
section 88 of the NCA is helpful, our emphasis included:
“
88. Effect
of debt review or re-arrangement order or agreement.-
(1)
A
consumer who has filed application in terms of section 86(1), or who
has alleged in court that the consumer is over-indebted,
must not
incur any further charges under a credit facility
or
enter into any further credit agreement, other than a consolidation
agreement,
with any credit provider until one of the following events has
occurred-
(4)
If
a credit provider
enters
into a credit agreement, other than a consolidation agreement
contemplated in this section
,
with a consumer who has applied for a debt re-arrangement and that
re-arrangement still subsists,
all
or part of that new credit agreement may be declared to be reckless
credit
,
whether or not the circumstances set out in section 80 apply.”
51.The
concept ‘credit agreement’ is followed by an exclusion
from that category: the phrase reads – ‘credit
agreement,
other than consolidation agreement’. Thus, generally ‘credit
agreement’ (as used in the NCA) would
include a transaction
which is a consolidation agreement but in this instance (being the
circumstances referred to in section 88)
the category of credit
agreement ie consolidation agreements, are to be excluded. Section 88
accordingly supports the interpretation
that the consolidation
agreement in question, which deferred repayment of the consolidated
debt, was a credit agreement and the
obligations created in terms of
section 81 (2) of the NCA accordingly arose.
52.The
third and fourth loan agreements fell squarely within the NCA. It is
correct that when the consolidation agreement was concluded
no new
advances were made, but the debt was reviewed so as to extend the
duration of the repayment period, payment was thus deferred
The
subject-matter of the restructured debt was the debt which arose
under the previous four loans.
53.We
have approached this appeal assuming, without finding, that section
81 (2) of the NCA has application. It is unneccessary
having regard
to the facts of this case, to pronounce upon this issue. We also deem
it unwise to do so as the facts of this case
are unusual in that two
of the credit agreements were concluded prior to the coming into
operation of the NCA and two of the credit
agreements were concluded
thereafter.
54.We
turn to the defence of reckless lending, based on sections 80(1) and
80(2) of the NCA, our emphasis included:
“
80.
Reckless credit
80(1) A credit
agreement is reckless
if,
at the time that the agreement was made, or at the time that the
amount approved in terms of the agreement is increased
,
other than an increase in terms of section 119(4)-
(a)
The
credit provider failed to conduct an assessment as required by
section 81(2), irrespective of what the outcome of such an assessment
might have concluded at the time; or
(b)
The
credit provider, having conducted an assessment as required by
section 81(2), entered into the credit agreement with the consumer
despite the fact that the preponderance of information available to
the credit provider indicated that-
(i)
The
consumer did not generally understand or appreciate the consumer’s
risks, costs or obligations under the proposed credit
agreement; or
(ii)
Entering
into that credit agreement would make the consumer over-indebted.
(2)
When
a determination is to be made whether a credit agreement is reckless
or not, the person making that determination must apply
the criteria
set out in subsection (1) as they existed at the time the agreement
was made, and without regard for the ability of
the consumer to-
(a)
meet
the obligations under the credit agreement; or
(b)
understand
or appreciate the risks, costs and obligations under the proposed
credit agreement,
at the time the
determination is being made.”
55.Section
81 states:
“
81.
Prevention of reckless credit
81(1) When applying
for a credit agreement, and while that application is being
considered by the credit provider, the prospective
consumer must
fully and truthfully answer any requests for information made by the
credit provider as part of the assessment required
by this section.
(2) A credit
provider must not enter into a credit agreement without first taking
reasonable steps to assess-
(a) the proposed
consumer’s-
(i) general
understanding and appreciation of the risks and costs of the proposed
credit, and of the rights and obligations of a
consumer under a
credit agreement;
(ii) debt re-payment
history as a consumer under credit agreements;
(iii) existing
means, prospects and obligations; and
(b)Whether there is
a reasonable basis to conclude that any commercial purpose may prove
to be successful, if the consumer has such
a purpose for applying for
that credit agreement.
(3) A credit
provider must not enter into a reckless credit agreement with a
prospective consumer.
(4) For all purposes
of this Act, it is a complete defence to an allegation that a credit
agreement is reckless if-
(a) the credit
provider establishes that the consumer failed to fully and truthfully
answer any requests for information made by
the credit provider as
part of the assessment required by this section; and
(b) a court or the
Tribunal determines that the consumer’s failure to do so
materially affected the ability of the credit
provider to make a
proper assessment.”
56.The
onus was on Mrs Gossayn and Mr Gossayn to establish that reckless
lending had occurred when the consolidation agreement was
concluded
on 13 July 2011. They failed to discharge this onus.
57.Messrs
Vos and Golden testified that an assessment within the purview of
section 80(1) was indeed performed. Nedbank’s
investigations
into the affordability of Mrs Gossayn to sustain the contemplated
instalments ensued over a protracted period of
over one year, during
which two credit committees were convened to consider the
restructuring of the debt. During the course of
this period, Mrs
Gossayn provided details of her assets and liabilities and income and
expenditure.
58.Mrs
Gossayn warranted the accuracy of same and confirmed that she knew of
no facts which might have a material affect on her
financial
position. She provided annual financial statements of the corporation
for the years to February 2010 and February 2011,
prepared by
accountants and signed by her. She provided management accounts to 15
May 2011.
59.In
the main, Mrs Gossayn provided information in respect of which she
bore personal knowledge, and concomitantly warranted its
accuracy.
60.Golden
confirmed that Nedbank’s bank statements were checked to verify
turnover figures supplied to it.
61.By
way of aside, Mrs Gossayn made no mention of a defence based on
reckless lending in her affidavit resisting summary judgment.
Her
complaints were of a superficial nature and, albeit that this is
academic, she did not provide enough detail to warrant a triable
defence at that juncture.
62.It
was up to Mrs and Mr Gossayn to give evidence personally to
controvert the veracity or inadequacy of the evidence advanced
by
Nedbank in proving its financial assessment process, and regarding
the financial information produced by her to it. The Gossayns
could
have engaged an independent forensic accountant to assist them in the
exercise. They did not provide a basis to challenge
the certificate
of balance relied on by Nedbank.
63.They
made a choice not to take the court into their confidence, as pointed
out by the trial court. It was never put to Messrs
Vos and Golden
under cross-examination that the documents provided by Mrs Gossayn to
Nedbank were false. Had Mrs Gossayn testified,
she would have had
some difficulty in explaining any such assertion.
64.Portion
424 was registered in her name in 1983, with no accompanying bond,
which means that she did not require finance secured
by a bond to
acquire it. Portion 425 was transferred to her by her husband in 2005
for a price of R2 950 000,00 with no accompanying
bond, which again
meant that she did not require bond finance to pay the price,
although the possibility of a donation cannot be
excluded. The prices
for her four sectional title units were financed in full by mortgage
bonds.
65.Although
not directly relevant, no evidence was advanced concerning what Mrs
Gossayn did with the substantial amount of money
lent to her by
Nedbank over a period of six years. Plainly, Mrs Gossayn showed bad
faith in the end, because payment of the first
instalment post the
date of signature the consolidation agreement was dishonoured. This
in the face of Nedbank’s good faith
in attempting to
restructure the liability, to accommodate what she claimed to be a
cashflow issue. The evidence of the witnesses
for Nedbank stood
uncontested, and the defence of reckless lending failed.
66.The
appeal being unsuccessful, costs must follow the result. Nedbank
engaged Senior Counsel. The matter was sufficiently complex
to
justify his engagement. Accordingly, the costs of one Senior Counsel
are justified.
67.T
he
following order is granted:
a.
The appeal is
dismissed;
b.
the appellants are
directed, jointly and severally, to pay the costs of the appeal,
including the costs of Senior Counsel.
___________________________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
We
agree.
___________________________________
E
MOLAHLEHI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
___________________________________
I
OPPERMAN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
It
is so ordered.
Appearances
For
the Appellants: Adv G Olwagen-Meyer
Instructed
by: Swanepoel Attorneys
Counsel
for Respondent: Adv HJ Smith SC
Instructed
by: Cliffe Dekker Hofmeyer Inc Attorneys