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[2010] ZAWCHC 177
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Bester NO and Another v Wright, Bester NO and Another v Mouton, Bester NO and Another v Van Greunen (5781/2010, 6671/2010, 6673/2010) [2010] ZAWCHC 177; [2011] 2 All SA 75 (WCC) (15 September 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 5781/2010
In
the matter between:
C
F BESTER N.O. First Applicant
GAIRONESA
DAVIDS Second Applicant
and
ALLAN
WILLIAM WRIGHT Respondent
and
Case
No: 6671/2010
In
the matter between:
C
F BESTER N.O. First Applicant
GAIRONESA
DAVIDS Second Applicant
and
INA
MOUTON Respondent
and
Case
No: 6673/2010
In
the matter between:
C
F BESTER N.O. First Applicant
GAIRONESA
DAVIDS Second Applicant
and
CHARLES
JACOB VAN GREUNEN Respondent
Judgment
by M J Fitzgerald, AJ
For
the Applicants Adv. J A van der Merwe
Instructed
by Mostert & Bosman
3
nd
Floor, MSP Chambers
Cnr
Carl Cronje Drive & Tyger
Falls
Boulevard. Tyger Falls
BELLVILLE
(Ref:
H Botes/CLR/WF2038)
For
the Respondents Adv. P van der Berg
Instructed
by Jordaan, Van Wyk
Stabilis
Building
381
Main Road
SEDGEFIELD
(Ref:
A Jordaan/W319)
Date(s)
of Hearing 13 September 2010
Judgment
delivered on 15 September 2010
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 5781/2010
In
the matter between:
C
F BESTER N.O. First Applicant
GAIRONESA
DAVIDS Second Applicant
and
ALLAN
WILLIAM WRIGHT Respondent
and
Case
No: 6671/2010
In
the matter between:
C
F BESTER N.O. First Applicant
GAIRONESA
DAVIDS Second Applicant
and
INA
MOUTON Respondent
and
Case
No: 6673/2010
In
the matter between:
C
F BESTER N.O. First Applicant
GAIRONESA
DAVIDS Second Applicant
and
CHARLES
JACOB VAN GREUNEN Respondent
judgment
FITZGERALD
AJ:
In
this judgment I
deal
concurrently with the relief sought against each of the respondents
respectively under case numbers 5781/2010, 6671/2010 and
6674/2010.
Although
in the notice of motion a rule nisi is sought counsel accepted that
in effect the relief sought was final and the matter
is to be
adjudicated on that basis.
In
each case that portion of an agreed loan of R1.66 million which was
admittedly paid to each respondent in terms of written agreements
of
loan concluded on 5 August 2005 is claimed together with interest.
The loan agreement in each case is annexed to the founding
affidavit
marked "CB5".
Although
respondents in their respective answering affidavits initially
contended that the agreement of loan was valid, alternatively
if
invalid that a portion of the claim asserted by the applicants had
prescribed, the only defence persisted in before me is that
the
agreements concluded on 14 December 2007 and 7 May 2008 respectively,
annexures
V
and
"N" to the answering affidavit, have had the effect of, so
it is contended, extinguishing the indebtedness of each
respondent to
Silver Moon Investments 80 (Pty) Limited ("the company").
The
company was finally wound up by this court on 12 November 2008 and
the applicants are its duly appointed liquidators.
According
to the founding affidavit of the first applicant the company formed
part of the Genesis Group of companies which, to the
deponent's best
knowledge and belief, had conducted business as property developers
since about 2004. The developments were mainly
financed by way of
investments received from members of the general public who invested
in the various developments undertaken
by the Genesis Group.
The
Genesis Group's structure comprised of Genesis Development Partners
which company was registered and incorporated in accordance
with the
provisions of section 21 of the Companies Act No. 61 of 1973 as
amended ("the Act"). Genesis Development Partners
held all
the issued shares in Genesis Property (Pty) Limited which in turn
held all the issued shares in Genesis Property Holdings
(Pty)
Limited. The latter company held the issued shares in or controlled
various separate companies which owned the land which
was to be
developed by the respective companies. Silver Moon was one of these
companies.
As
staled above, the application is resisted only on the basis that the
agreements referred to above, annexures "F" and
"N"
to the answering affidavit, have had the effect of extinguishing the
indebtedness of each respondent to the company.
The
concessions made by the respondents in relation to the invalidity of
the loan agreement itself and the defence of prescription
were
correctly made, in my view.
On
the papers the loan agreement was clearly concluded in breach of
section 226 of the Act and the claims have not prescribed, inter
alia, because of the fact that the knowledge of the respondents qua
directors of the company cannot be attributed to the company
in
circumstances where they acted against its interests and to its
detriment
(sec
R
v Kritzingcr
1971 (2) SA 57(A)
at 59;
NBS
Bank Ltd v Cape Produce Company
(Pty)
Limited
and Others
2002 (I) SA 396 (SCA) at 414;
Klein
NO v Kolosus Holdings Ltd
2003 (6) SA 198
(T) at 214).
It
is common cause that on 3 August 2005 the directors of the company
resolved and approved a loan in the amount of R 1,66 million
to each
of the respondents. Amounts less than the agreed amount of Rl,66
million were admittedly received by each respondent in
terms thereof.
The
loan
agreement, annexure "CB5" to the founding affidavit,
provides in clause 4 thereof that
"the
repayment of the loan and interest thereon will not be made to the
company until such time as the Cedar Farm Development
project is
finalised".
It
is common cause that the Cedar Farm Development project was not
finalised.
Respondents
accept however in the event that it is found that no reliance can be
placed upon the agreements concluded respectively
on 14 December 2007
and 7 May 2008 that the amounts claimed in these proceedings are
indeed due and payable.
This
appears, inter alia, from paragraph 25.45 of the affidavit of Wright
in case number 5781/2010 where he admits
"that
in the event of the development for whatever reason not being
completed that the loans would become payable on demand".
1
now turn to consider each of the agreements, annexures "F"
and "N" to the answering affidavit which, so it
is
contended, have the effect of extinguishing the liability on the
parts of respondents to repay the loans admittedly made to
them by
the company.
In
broad summary, annexure "F" provides for the purchase by
the company and Cedar Falls Properties 30 (Pty) Limited ("Cedar
Falls") of the 50 per cent shareholding held in each of them by
various family trusts of the respondents.
In
terms of clause 5 thereof, the purchaser (i.e. Cedar Falls and the
company) purchased
"the
shares and loan accounts (both in the name of the SELLER and the
names of Alan William Wright, Charles Jacob van Greunen
and Ina
Mouton) as at the EFFECTIVE DATE together with all rights and
obligations of whatsoever nature attaching to the SHARES
and loan
accounts to accrue to the Purchaser on and as from the EFFECTIVE
DATE".
The
purchase price for such purchase, namely the amount of R837 506,00
was payable by 'the purchaser" (i.e. the company and
Cedar
Falls)
"by
way of registration of transfer of the property indicated in annexure
"A" thereto".
The
purchase price was to be allocated
"in
respect of the purchase of the shares as well as the loan account of
the Seller in the Companies".
No
provision was accordingly made for any allocation of the purchase
price to the loan accounts of the respondents.
It
is common cause that for practical reasons registration of the
transfer of the contemplated property did not take place.
An
issue which arises from the conclusion of this agreement is whether
it complied with sections 85 and 87 of the Act.
Sections
85 et seq of the Act depart from the previously applied capital
maintenance rule and permit a company in the circumstances
there
postulated to acquire its own shares.
These
circumstances, in broad summary, relate to the solvency or otherwise
of the company at the time ofsuch purchase.
(See:
Blackman ct al
Commentary
on the Companies Act
,
vol 1 at para 5.40).
It
was not seriously disputed before me that at all material times the
company was not solvent as contemplated by section 85(4).
Indeed
clause 10.3.3 of annexure "F" confirms such insolvency in
rcspecl of investors. This clause reads:
On
the Effective Date the Companies will not be in default in respect of
any material obligation
excluding
current investors
"
(my
underlining).
Moreover,
it is apparent from paragraph 77 of the replying affidavit that by
December 2007, the liability of the company to investors
was in
excess of R42 million. The company, moreover, then had no assets
other than the immovable properties which it had sold to
Cedar Falls.
It is, however, common cause that Cedar Falls never made the initial
payment of RI2 981 000,00 in terms of the relevant
purchase
agreement.
In
the premises, it was accepted that the requirements postulated by
section 85 and particularly 85(4) et seq of the Act were not
satisfied, including the need for a special resolution authorizing
the acquisition of shares as required by section 85(1). In regard
to
section 85(4) of the Act, it was held in
Capitcx
Bank Limited v Oorus Holdings
2003 (3)
SA
302
(W)
at
309C
that
"any
payment made in contravention of section 85
(4)
would
result in an illegality".
Payment
in this case was the transfer of the property. Counsel for the
respondents sought to suggest that the provisions of section
86 of
the Act somehow rendered legal an illegal payment in respect of an
acquisition of shares in contravention of section 85(4).
I
do not agree. Section 86 provides for the directors of a company who,
contrary to the provisions of section 85(4), allow the company
to
acquire shares issued by it, to be jointly and severally liable to
restore to the company any amount so paid and not otherwise
recovered
by the company.
The
provision of a further remedy against defaulting directors does not.
in my view, render legal a payment otherwise said to be
illegal
because of non compliance with section 85(4) of the Act.
This
did not, however, deter counsel for the respondents who. in reliance
upon annexures
U
F"
and " N'\ namely the agreements concluded on 14 December 2007
and 7 May 2008, contended that these agreements had been
fully
implemented and accordingly, because of
Wilken
v Kohler
1913
AD 135
any
invalidity relative to either or both of these agreements was
irrelevant.
More
particularly, with regard to
Wilken
v Kohler
.
supra
counsel
for the respondent referred to page 144 thereof where Innes JA slated
as follows:
"But
that argument surely loses sight of the distinction in principle
between setting aside the result of an invalid agreement
completely
performed, and the enforcement of a term of such an agreement alleged
to have been disregarded. It by no means follows
that because a court
cannot enforce a contract which the law says shall have no force, it
would therefore be bound to upset the
results of such a contract
which the parties had carried through in accordance with its terms.
No good ground of action could be
alleged in such a case: neither in
the shape of a
restitutio
in integrum,
nor
by way of
condictio
could
relief be claimed. Neither part)'could say that he had been enriched
at the expense of the other: and the
traditio
duly
made with knowledge of .ill the facts and with the intent to pass
dominium,,
and
the price duly paid with similar knowledge and with the object of
acquiring the
dominium
would
bind the respective parties".
By
reason of the view 1 take of this matter in relation to the effect of
these agreements, it is probably unnecessary also to determine
the
effect of the alleged implementation of the agreements concluded b y
the parties thereto on 14 December 2008 and 7 May 2008,
annexures "F"
and "N" lo the answering affidavit.
This
is because I do not share the respondent's view about the effect of
these agreements -irrespective of their implementation,
namely that
"they
extinguished the debts created by the loan agreement".
I
do, however, also find, in any event, that the respondents' reliance
upon the rule in
Wilken
v Kohler
is
misplaced. That rule finds justification for its existence in the
consideration that where both parties have performed in accordance
with the provisions of an agreement, albeit unenforceable, the
purpose of the transaction has been achieved and that there is
therefore no reason to interfere with the existing state of affairs.
The underlying consideration of policy seems to be that those
who
received exactly what they bargained for should not be allowed to
escape the consequences of a bad bargain by means of an enrichment
action which is intended to be an equitable remedy {sec
Legator
MeKcnna Inc and Another v Shea and Others
2010 (1)SA 35 (SCA) at paragraph 28).
Although
this rule was expressly approved in
Le
gator
McKenna
supra,
the
Supreme Court of Appeal made it clear that it cannot apply where the
purpose of the transaction is prohibited bylaw insofar
as the
law cannot preserve a transaction which it has prohibited. It
accordingly followed, so it was confirmed by the Supreme Court
of
Appeal at paragraph 29, that
"a
defence based on that rule is not available against a claim brought
under the
condictio
ob turpem vel iniustam causam".
The
requirements for this latter
condictio
include
the fact that the transfer of ownership must have taken place in
terms of an illegal agreement, an agreement that is, the
conclusion,
performance or object of which is prohibited by law or is contrary to
good morals or public policy
(see
LAWSA: Second Edition, vol 9 at para 215;
Robertson
v Randfontein Estates Goldmining Compa
ny
Ltd
1925 AD 173
at 204;
Kroukamp
v Buitcndag
1981 (1) SA 606
(W) at 610).
Given
the apparent insolvency of the company and the admitted knowledge of
ihe respondents that by at least December
2007
the
company had experienced difficulties in paying its creditors -the
applicants conversely and for cogent reasons, contend for
a much
earlier date and indeed aver that by
3
August
2005
the
company
"was
left with no liquidity to service its liabilities to the investors"
-
it seems to me that in participating, qua directors, in transactions
whereby the company, while insolvent and for no apparent
benefit
l
wrote
off its claims against them , the respondents acted in breach of
their fiduciary duties towards the company (see
Robinson
v Randfontein Estates Gold Mining Co Ltd
supra at 192, 242:
Cohen
N.O. v Segal
1970 (3) SA 702
(W) at 706).
That
the respondents indeed breached such duties was accepted by their
counsel.
Indeed,
to the extent that investors* money contributed for the specific
purpose of the development of erven owed by the company
was used not
for that purpose but rather as a loan to its directors, such use may,
in the circumstances that then prevailed also
be said to constitute
theft and/or a fraud upon the investors and creditors of the company
(see
RvGush
1934 AD 260
at 262; R v Solomon
1953 (4) SA 518
(A) at 522:
S
v De Jager and Another
1965 (2) SA 616
(A) at 625B).
In
these circumstances, where the conduct of the respondents is tainted,
I consider that to relieve them of liability to the liquidators
of
the company in respect of the amounts so loaned to them on the basis
of the rule in
Wilken
v Kohler
is
inappropriate and would in effect sanction their wrongful conduct.
It
must, of course, also be borne in mind that the rule in
Wilken
v
Kohler
presupposes
the situation where
both
parties
have performed in accordance with the provisions of their agreement.
It
is difficult to consider in what way the company has so performed.
All that it did was become a party, first, to an unenforceable
loan
agreement and thereafter to a share buy back agreement in terms of
which, vis-a-vis the respondents, it gave up for no benefit
a
substantial claim against its directors.
Given,
moreover, the fact that the knowledge of its directors is not in the
circumstances postulated, attributable to the company,
it is
difficult, in any event, to characterize its participation as proper
performance.
I
accordingly, in any event, find in the circumstances that it is not
open to the respondents to rely upon the rule in
Wilken
v Kohler
.
which
is, of course, an equitable remedy. To do so would, effectively,
allow them to benefit from their own default. In the circumstances,
they should not be allowed to do so to the ultimate prejudice of the
investors and other creditors of the company.
I
turn now more fully to deal with the contention that annexures
il
F"
and "N" to the answering affidavit have the effect of
extinguishing the indebtedness of the respondents to the
company.
1
point out first that in terms of annexure "F'\ the company and
Cedar Falls purported to acquire the shares held in each of
them by
the Trusts.
Moreover,
in terms of clause 7 thereof, the seller was to deliver to the
purchaser, inter alia, a duly signed cession of all loan
accounts of
the seller (i.e. the trusts) in the company and Cedar Falls. No
cession by the respondents of their personal loan accounts,
if any,
was required in terms of clause 7 or at all, notwithstanding the
reference in clause 5 to the purchase as well of the loan
accounts in
the name of the respondents.
Annexures
"LI" to" L4" to the answering affidavit do.
however, record a purported cession by the respondents
both qua
trustees and in their personal capacities of
"all
rights and obligations attached to any loan account in the company to
the company".
It
was, however in this regard, conceded by counsel for the respondents,
correctly in my view, that the debit loan account of the
respondents
in the company could not be ceded in this way to the company.
In
any event, I do not sec how the so-called sale of shares agreement
can have the effect of extinguishing the loan indebtedness
of the
respondents to the company. A mere perusal thereof, in my view, shows
that this agreement docs not, either expressly or
tacitly, provide
therefor.
Further,
in ray view, the reliance upon annexure "N" is equally
misplaced.
In
terms of this agreement, the company purported to sell to Proud
Heritage Properties 146 (Pty) Limited ("Proud Heritage")
the property described as Erf 22988 George.
Clauses
1.1, 1.2, 1.3 and 1.4 thereof refer, in turn, to the four agreements
concluded on 14 December 2007 (including annexure "F")
in
terms of which the trusts sold their respective shareholding inter
alia to the company.
Clauses
1.5, 1.6, 1.8 and 1.9 of annexure "N" read respectively as
follows:
"1.5
And whereas the said companies, namely Cedar Falls, Spring Forest,
Golden Rewards and Silver Moon are in terms of the
agreements
referred to in 1.1 to 1.4 collectively indebted to the Trust in the
amount of R2 307 147,00.
1.6
And whereas Silver Moon, Cedar Falls, Spring Forests and Golden
Rewards in terms of this agreement hereby agree that Silver
Moon
assumes full liability for the due payment in terms of the agreements
referred to in 1.1 to 1.4.
1.8
And whereas the Trust ceded transfer in terms of a cession agreement
their right, title and interest in and to the due payment
for the
shares sold as referred to in 1.1 to 1.4 to Proud Heritage. It is
hereby agreed that Cedar Falls, Spring Forest, Golden
Rewards and
Silver Moon are not a party to the said cession agreement and the
Trust and Proud Heritage being a party to the said
cession agreement
hereby indemnify Cedar Falls, Spring Forest, Golden Rewards and
Silver Moon from any damages or loss that said
companies may suffer
due to any reason arising from said cession agreement".
Payment
of the purchase price payable by the company to Proud Heritage is
regulated by clause 4.1 of annexure "N". This
reads as
follows:
"4.
PAYMENT OF THE PURCHASE PRICE
4.1
It is hereby agreed between Silver Moon and Proud Heritage that on
date of registration of transfer of the property, the debts
referred
to in the preamble shall be set off the one against the other, both
parties on such date releasing the other from due
payment of such
debts and neither shall have any liability towards the other for
payment or for performing in terms of any obligation
attaching to
payment of the said amounts".
A
perusal of clause 4.1 makes it immediately clear, however, that it is
only the debts referred to in the preamble which were to
be set off,
namely only those amounts payable to the trusts.
Nowhere
in annexure "N" is there to be found any reference to the
setting off or extinction of the debts owing by the
respondents to
the company in terms of their respective loan agreements.
This
lacuna seems to have been appreciated by the respondents. By way of
example, Wright in case no. 5781/2010 states in paragraph
25.29,
albeit in reference to annexure T", that it was the
"common
intention understood by all the parties to annexures "F",
".T"
and
"K" that in exchange for the Trust shares not only would
the property referred to in annexurc A to these agreements
be
transferred but also that the loans of Van Greunen, Mouton and myself
in Silver Moon would be written
off".
As
staled above, notwithstanding this alleged common intention, I am not
persuaded that the agreements relied upon by respondents
have the
effect for which they contend. This, in my view, is apparent from a
proper construction thereof.
In
any event, the applicants* response to paragraph 25.29 of the
answering affidavit of Wright, referred to above, is instructive.
More particularly, first applicant in paragraph 136 of his replying
alfidavit stales as follows:
"136.
The agreements were simply an attempt to give effect to their initial
scheme of syphoning off investors' funds upfront,
before the
development of the properties had even commenced. By 'writing off the
loans, Silver Moon was simply further divesting
itself of its assets,
being the claims against the directors to the obvious detriment of
its creditors'*.
In
this regard, it is common cause that the funds obtained by the
company to effect payment to the respondents of the alleged loans
emanated from funds invested by members of the general public in the
company and/or Cedar Falls in the belief that the latter companies
would develop the erven registered in the name of the company. The
erven were, of course, not developed by the company.
Given
that fact, it seems to me mat funds so invested were not used for
their intended purpose but were used, up front, and apparently
in the
expectation that the development would be profitable, to pay the
respondents the alleged loans. As stated above, such use
arguably
constitutes theft and/or a fraud on the investors and other creditors
of the company.
That
ihe respondents were probably aware that the funds were not correctly
applied arrears, appears inter alia from paragraph 12.5.10
of the
answering affidavit of Wright where he states that it was explained
to him
"that
to regularise the payments they had to be reflected as loans to the
four of us as directors of Silver Moon in the books
of Silver Moon
and the loans had to attract interest".
In
the circumstances, I am satisfied that the intention behind the loan
agreement - and probably also the dominant purpose of annexures
"f"
and
"n"
to
the answering affidavit - was that stated in paragraph 136 of the
replying affidavit of first applicant, namely
"simply
an attempt to give effect to the initial scheme of syphoning off
investors' funds upfront, before the development of
the properties
had even commenced".
In
this regard I refer to the
dictum
of
liefer JA in
Erf
3183/1 Ladvsmith (Ptv) Limited and Another v CR1
[1996] ZASCA 35
;
1996 (3) SA 942
at 953B
where,
the learned judge stated as follows:
"I
have quoted the relevant passages from the leading cases in full in
order to reveal the fundamental flaw in a submission
which tinged the
entire argument for the appellants. It is to the effect that, once it
is found that the parties to the present
agreements actually intended
to structure their arrangement in the form of a lease coupled with a
sub-lease and a building contract,
there is really an end to the
matter, because in that event effect must be given to each agreement
according to its tenor. This
is plainly not so. That the parties did
indeed deliberately cast their arrangement in the form mentioned,
must of course be accepted;
that, after all, is what they had been
advised to do. The real question is however, whether they actually
intended that each agreement
would
inter
partes
have
effect according to its tenor. If not, effect must he given to what
the transaction really is".
In
this regard, counsel for the respondents fairly conceded that a
material aspect of annexures "F" and "N"
was the
attempt to relieve the respondents from liability in respect of their
admitted loan account indebtedness.
In
the premises, I am on this basis also disinclined to come to the
assistance of the respondents given that the funds from which
the
loans emanated were intended to be used not for their personal
benefit but rather for the development of the erven owned by
the
company. Indeed, the company received no benefit at all from the loan
to its directors. Accordingly, and given the fact that
the company
was subsequently wound up without these erven being developed, it
follows that the funds were inappropriately used
by the respondents
in breach of their fiduciary duties towards the company.
In
light of the conclusions to which I have come I do not consider it
necessary fully to deal with the further contentions asserted
by the
applicants to refute what is alleged to be the effect of the two
agreements now relied upon by the respondents.
These
include the contentions that:
1.
the buy back agreement upon which the respondents rely in support of
the contention that the debts were "written off', annexure
"F"
and the purported set-off or cession agreement, annexure "N"
both sought to vary the terms of the loan
agreement. Clauses 15.1 to
15.4 of the loan agreement provides that any amendment or variation
thereof should be in writing and
signed by both parties. No proof of
compliance with these clauses was adduced; and
2.
the share buy back agreement, annexure T" contained a suspensive
condition to the effect that the purchaser also enter into
sale of
share agreements in respect of Spring Forest Trading 27 (Pty) Limited
and Golden Rewards 240 (Pty) I limited on or before
the signature
date. Respondents have also not established that this condition was
satisfied.
In
the circumstances it follows that the relief sought by the applicants
should be granted.
With
regard to the question of costs, it was submitted by counsel for the
applicants that the allegations in the affidavits of the
respondents
have been exposed as false in circumstances where each respondent
must have known that the averments asserted by them
were not true.
In
the premises a special costs order is sought by the applicants.
Given
that final relief is sought on the papers, 1 have attempted insofar
as is possible to determine this matter on the basis of
facts which
are either common cause or appear
ex
facie
the
agreements relied upon by the respondents.
I
cannot, fairly, in these circumstances make a definitive finding
relative to the alleged falsity of the allegations made by the
respondents in their respective answering affidavits.
It
follows, in my view, that although the conduct of the respondents
generally is worthy of censure, 1 cannot find, on the papers,
that it
merits a punitive costs order. I accordingly make the following
orders:
1.
Case
number 5781/2010
(a)
Respondent is directed to pay to applicants the amount of Rl 587
436,10.
(b)
Respondent is directed to pay interest on the aforesaid amount at
the rate of 15.5 per cent a tempore
(c)
Respondent is directed to pay the costs of the application.
2.
Case Number 6673/2010
(a)
Respondent is directed to pay the applicants the amount of Rl 347
542,63.
(b)
The respondent is further directed to pay interest thereon at the
rate of 15.5 per cent a tempore morae.
(c)
The respondent is directed to pay the cost of this application.
3.
Case
No. 6671/2010
The
respondent is directed to pay the applicants the amount of Rl 287
542,63.
'I"he
respondent is further directed to pay interest thereon at the rate
of 15.5 per cent a tempore morae.
The
respondent is directed to pay the costs of this application.
4.
In each case the orders as to costs will include the costs
occasioned by the postponement
of the application on 6 April
2010.
FITZGERALD
AJ
15
September 2010