About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2012
>>
[2012] ZAECPEHC 94
|
|
Van Rensburg NO and Another v Naidoo NO and Others (2732/11) [2012] ZAECPEHC 94 (20 December 2012)
17
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION –
PORT ELIZABETH
Case no:2732/11
Date Heard: 18/10/2012
Date Delivered: 20/12/2012
In the matter between:
WILMA EMMERENTIA VAN RENSBURG N.O
...........................
1
ST
APPLICANT
PHILIPPUS STEPHANUS VAN RENSBURG
N.O
......................
2
ND
APPLICANT
AND
PERAPANJAKAM NAIDOO N.O
...........................................
1
ST
RESPONDENT
PURSOTAM NAIDOO N.O
..................................................
2
ND
RESPONDENT
SHASI NAIDOO N.O
..........................................................
3
RD
RESPONDENT
ANTOSH NAIDOO N.O
.......................................................
4
TH
RESPONDENT
NELSON MANDELA BAY METROPOLITAN
MUNICIPALITY
.................................................................
5
TH
RESPONDENT
JUDGMENT
SMITH J:
Introduction
[1] In terms of section 34 of the
Constitution everyone has the right to have his or her legal disputes
resolved by a court of law,
or where appropriate, by another
independent and impartial tribunal or forum. The necessary
corollaries of this fundamental constitutional
right are: the
entitlement of successful litigants to enforce final court orders;
and the concomitant legal obligation on those
who are subject to
court orders to comply with them. If these legal principles are not
vigorously enforced by our courts, the aforementioned
constitutional
right would have no substance, would be rendered meaningless and the
dignity and authority of our courts would be
compromised. An
aggrieved litigant who wishes to challenge an unfavourable judgment
has various effective remedies available. He
or she may, in an
appropriate case, apply to court to have the judgment rescinded, take
it on review, or appeal against it. Once
these remedies have been
exhausted however, and the unsuccessful litigant has reached the end
of the road, so to speak, the court
order must be observed, both in
letter and in spirit. The Applicants contend that the First to Fourth
Respondents find themselves
in this position in respect of an order
granted by Froneman J (sitting in the South Eastern Cape Division) on
3 April 2007, under
case number 1668/2006.
[2] In terms of that order the First
to Fourth Respondents were, inter alia, compelled to:
take all necessary steps to
demolish the entire northern buildings situated on Erf 105,
Summerstrand, Port Elizabeth, within 60
days of the date of the
order; and
(b) take all necessary step to
demolish and remove the top storey and the staircase leading to the
building situated in the north
western corner of the Shan Trust’s
property situated at Erf 105, Summerstrand, Port Elizabeth, and which
abuts the eastern
boundary of Erf 107, Summerstrand, Port Elizabeth,
within 60 days of the date of the order.
The Applicants contend that the
Respondents have exhausted all their legal remedies, but have
nevertheless willfully and intentionally
failed to comply with the
demolition order. They therefore seek an order declaring them to be
in contempt thereof, and for their
committal.
[3] The First to Fourth Respondents
are the trustees of the Shan Property Trust which is the owner of Erf
105, Summerstrand. The
Applicants are the trustees of the Hobie
Property Trust which owns an adjacent property, namely Erf 104.
[4] The Respondents have been
relentless in their attempts to contest Froneman J’s judgment,
and have tenaciously pursued
almost every conceivable legal (and for
that matter, political) remedy to have it set aside. They have, inter
alia:
successfully applied to this court
(Van der Byl AJ sitting) for an order suspending the operation of
certain portions of Froneman
J’s order. That judgment was
however subsequently overturned by the Supreme Court of Appeal; and
unsuccessfully applied for leave to
appeal to the Supreme Court of Appeal and the Constitutional Court.
[5] They have opposed the
application on the following grounds:
the demolition order is null and
void, alternatively voidable, and therefore incapable of
implementation because it seeks to vindicate
restrictive conditions
in a title deed which are
contra bonis mores
or contrary to
public policy. The First to Fourth Respondents were therefore
entitled to ignore the judgment. They have also applied
for this
issue to be referred for oral evidence and have filed a
counter-application,
ex abundanti cautela,
for the rescission
of Froneman J’s judgment.
they have not willfully disobeyed
the demolition order because they believed, on reasonable grounds,
that the order was unlawful
and unenforceable for the
above-mentioned reason, and in addition, the First Respondent has
since September 2010 attempted to
find a “
workable and
equitable solution to bring an end to the level of discourse and
acrimony caused thus far.”
[6] The Applicants have, at the
commencement of the hearing, applied for the late filing of their
replying papers on 19 June 2012
to be condoned. I was satisfied that
the Applicants have shown good cause and that the Respondents’
would not suffer any
prejudice which could not be remedied by an
appropriate costs order. I accordingly condoned the late delivery of
the replying papers.
The legal principles
[7] In order to succeed the
Applicants must prove: (a) a valid court order; (b) that the
Respondents have been notified of the order;
(c) that they have
failed to comply with the order; and (d) that their non-compliance
was willful and
mala fide
.
[8] Once the Applicants have
established the requisites mentioned in (a), (b) and (c), above, the
Respondents bear an evidential
burden in relation to willfulness and
mala fides.
In
Fakie N.O v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4)
SA 326
(SCA)
at paragraph 42 (d), Cameron JA (as he then was)
stated that:
“
Should the
respondent fail to advance evidence that establishes a reasonable
doubt as to whether non-compliance was willful and
mala
fide
,
contempt will have been established beyond reasonable doubt
.”
[9] Cameron JA furthermore held at
paragraph 42(b) that even though a respondent in contempt of court
proceedings is not an accused
person he or she is ”
entitled
to analogous protections as are appropriate to motion proceedings”
,
and that “
in particular, the applicant must prove the
requisites of contempt (the order; service of notice; non-compliance;
and willfulness
and mala fides) beyond reasonable doubt”.
(
Fakie N.O.
(supra
) at paragraph 42(c).
Is Froneman J’s judgment
void or voidable?
[10] Mr
Singh SC,
who
appeared for the Respondents, argued that the judgment cannot be
immune from challenge in contempt of court proceedings because
such
an approach would amount to an irrebuttable presumption on an
essential element of the offence of contempt of court, namely,
the
existence of a valid court order. He argued further that even when
considered on the principles applicable to
res judicata
and
issue
estoppel,
such an approach results in unfairness and
inequity. He submitted that the Respondents should therefore not be
prevented from ventilating
the issue of the Applicants’
entitlement to the order in the present application.
[11] Mr
Singh
placed heavy
reliance on the judgment of Ponnan JA in
The Master of the High
Court (North Gauteng High Court, Pretoria) v Motala N.O and Others
2012 (3) SA 325
(SCA)
for his submission that a litigant is
entitled to ignore an invalid court order. In that matter the North
Gauteng High Court (per
Kruger AJ) had issued an order appointing
joint judicial managers in terms of s. 430 of the Companies Act, no
61 of 1973. Ponnan
JA held that the power to appoint a judicial
manager, in terms of s. 429 of the Companies Act, vested in the
Master. He furthermore
held that the learned judge in the court
a
quo
had therefore acted contrary to a direct statutory
prohibition, and that the order was accordingly of no force and
effect. Being
a nullity there was no need for a declaration to that
effect. The Master was therefore entitled to ignore the court order
and his
actions could therefore not amount to contempt of court.
[12] Mr
Breitenbach SC,
who
appeared for the Applicants, has however in my view, correctly
submitted that there can be no doubt that Froneman J had authority
to
grant the order on 3 April 2007, and that there was no question of
the order having been made contrary to a direct statutory
prohibition
as was the case in the
Master of the High Court v Motala
(supra).
[13] In our law all court orders,
whether correctly or incorrectly granted, have to be obeyed until
they are properly set aside.
In
Master of the High Court v Motala,
at paragraph [11]
(supra),
Ponnan JA recognized the importance
of this principle and stated that “[
no
]
doubt there
are important policy considerations why that must be so”
.
It is only in certain circumscribed circumstances that a court order
would be void
ab initio
, with the consequence that a person
subject thereto could ignore it without first having it set aside.
These are:
(a) where legal proceedings have
been initiated against a party, and that party has not been cited,
any order given against such
a party is null and void and may be
disregarded;
(b) where an order has been made in
contravention of an express statutory prohibition;
(c) where legal proceedings have
been conducted by someone on behalf of a party without a mandate; and
(d) where the court which granted
the order lacked jurisdiction.
(Master of the High Court v
Motala (supra); and Todt v Ipser
1993 (3) SA 577
(A) at 589 C-E)
I am unable to conceive of any other
circumstances which would entitle a person to ignore a court order
without first having it
set aside. There are in my view no such
circumstances present in this case, and the First to Fourth
Respondents were therefore
not entitled to ignore Froneman J’s
order, on the assumption that the order is void or voidable.
[14] The question which now arises
is whether or not I should accede to the Respondents’ request
to refer the issue relating
to the validity of the judgment for the
hearing of oral evidence. The Respondents contend that the validity
of the restrictive
conditions was not argued before Froneman J and,
in addition, “
there have been significant developments in
our law which have a material bearing on the lawfulness of the Order
itself”.
They therefore applied for the matter to be
referred for the hearing of
viva voce
evidence to allow these
issues to be properly ventilated.
[15] The Respondents are essentially
seeking permission to argue points of law which they failed to raise
when the matter came before
Froneman J. Even though they sought a
postponement to enable them to file further papers, they had known
since February 2007 that
the Municipality would not persist with its
opposition and therefore had more than sufficient opportunity to file
papers, and to
raise any other factual issues or legal points. It is
in my view untenable that litigants, who have exhausted all appeal
procedures
in respect of a judgment, should be allowed to challenge
the validity thereof in a court of equal standing on the basis of
legal
points that they have failed to raise when the matter was
initially argued. Such an approach will undoubtedly have the effect
of
impermissibly clothing a court of equal standing with appellate
jurisdiction. I am certainly not aware of any legal principle in
our
law which would sanction such an approach, nor has counsel for the
Respondents been able to refer me to any authority in this
regard. If
such an approach is countenanced there would never be an end to
litigation.
[16] I also do not think that there
is any legal basis for me to refer this issue for oral evidence. Mr
Breitenbach
has in my view correctly submitted that there are
in any event no prospects of
viva voce
evidence affecting the
outcome of the application. In the Supreme Court of Appeal judgment,
which has been reported as
Van Rensburg and Another
NNO v
Naidoo and Others NNO; Naidoo and Others NNO v Van Rensburg NO and
Others
2011 (4) SA 149
(SCA),
Navsa JA stated the following at
paragraph 37 regarding the title deed restrictions:
“
Restrictive
conditions of the kind in question enure for the benefit of all other
erven in a township, unless there are indications
to the contrary.
They are inserted for the public benefit and, in general terms, to
preserve the essential character of a township.
In this regard see
Malan
at 38B-C and
39F-G. If landowners across the length and breadth of South Africa,
who presently enjoy the benefits of restrictive
conditions, were to
be told what their rights, flowing from these conditions, could be
removed at the whim of a repository of power,
without hearing them or
providing an opportunity for them to object, they would rightly be in
a state of shock.”
In summary therefore: I am of the
view that I have no discretion in terms of the law to reconsider
issues which were not raised
when the matter was argued before
Froneman J; another court of equal status would similarly not have
this power if the issue were
to be referred for hearing of
viva
voce
evidence; and, in any event, the Supreme Court of Appeal has
already expressed the view that the restrictions were inserted for
the benefit of the public.
Viva voce
evidence would therefore
not affect the original decision.
The Principle of reciprocity
and the unclean hands argument
[17] The Respondents contend that
the Applicants, in their capacities as trustees of a different trust,
namely the Magruser Trust,
which owns erf 85, are also in breach of
the restrictive conditions in various respects, and are therefore
prevented by the principle
of reciprocity from enforcing compliance
by the Shan Trust with the restrictive conditions. They have
therefore approached the
court with unclean hands, and cannot be
granted any relief.
[18] In my view this argument cannot
be upheld. First, this application arises from the Respondents’
alleged non-compliance
with Froneman J’s order. There is no
reciprocal duty on the Applicants in this regard. Second, the
principle that an applicant
must approach court with clean hands
would disentitle an applicant to relief only if his conduct can be
regarded as fraudulent
or dishonest.
(Mgoqi v City of Cape Town
and Another; City of Cape Town v Mqoqi and Another
2006 (4) SA 355
(C) at page 395, paragraph 140).
There has not been any such
allegation in this case and this legal principle can therefore not
avail the Respondents.
Court’s jurisdiction
over Fourth Respondent
[19] The Fourth Respondent contends
that any relief granted against her in this matter will be
ineffective because she has left
South Africa and now lives
permanently in the United Kingdom.
[20] I am of the view that this
argument is without merit and cannot be upheld. The order made by
Froneman J concerns immovable
property which is situated within the
area of jurisdiction of this court. The Fourth Respondent has been
cited as a party and has
filed an affidavit opposing the proceedings.
It is common cause that the Second to Fourth Respondents have
mandated the First Respondent
to deal with “
all matters
concerned with the improvements to the property and to the court
order dated 3 April 2007”.
The Fourth Respondent said the
following in this regard in her affidavit:
“
I am unable to
deal with these matters due to my being overseas and for practical
expediency left the handling of all issues connected
with the
property in the hands of the first respondent.”
[21] I also agree with Mr
Breitenbach
that this court has jurisdiction to compel
compliance with its orders and the Fourth Respondent, having also
been a party to the
original proceedings before Froneman J, remains
subject to its jurisdiction. She did also not object to the court’s
jurisdiction
in those proceedings. There is in any event no reason
why an order of this court cannot be effective in impelling her to
comply
with the demolition order.
Counter-application for
rescission
[22] This application is in my view
totally devoid of any merit. It is common cause that the demolition
order was not made in the
absence of the Shan Trust. The Nelson
Mandela Metropolitan Municipality, which was also a party to those
proceedings, had apparently
filed comprehensive opposing affidavits.
The Respondents were initially content to rely on the Municipality’s
opposition.
The Municipality however withdrew their opposition during
February 2007. At the hearing of the matter the Respondents were
represented
by senior and junior counsel and applied for a
postponement at the commencement of the hearing. That application was
however dismissed
and Respondent’s counsel proceeded to argue
the matter on the merits on the basis of the opposing affidavits
filed by the
Municipality. Under these circumstances none of the
legal grounds for rescission of the judgment has been established.
Has there been willful or
mala
fide
non-compliance?
[23] I am satisfied that the
Applicants have established beyond reasonable doubt that Froneman J’s
order is valid; that the
First to Fourth Respondents have been
notified of the order; and that they have failed to comply with it.
All that remains to be
considered is whether their non-compliance was
willful and
mala fide.
In respect of this issue the
Respondents bear an evidential burden. (
Fakie N. O supra).
The
Respondents claim that they have not been in willful default of the
order because they had the
bona fide
belief that Froneman J’s
judgment was null and void, alternatively voidable, for the reason
that it seeks to enforce restrictive
conditions in a title deed which
are
contra bonis mores
or against public policy. Mr
Breitenbach’s
main argument in this regard was that the
Respondents’ version is so improbable and uncreditworthy that
it should be rejected
out of hand. He has however, in the
alternative, applied for this issue to be referred for
viva voce
evidence. Mr
Singh
has also submitted that the issue should
not be decided on the papers but that it should be referred for the
hearing of oral evidence.
[24] In an attempt to show that she
has not willfully disregarded the order, and that she has tried to
find “
a workable and equitable solution to bring an end to
the level of discord and acrimony”
, the First Respondent
said the following in her answering affidavit:
(a) during September 2010 she had
met with a councillor who referred her to the legal advisor of the
Fifth Respondent, namely Advocate
Tshamase;
(b) during November 2010 she had met
with, amongst others, the mayor and Mr Tshamase, who promised her
that they would assist “
and through such intervention the
Hobie Trust would not bring any further proceedings against the Shan
Trust”
;
(c) she was thereafter informed by
Mr Tshamase that the Municipality would bring proceedings against the
Hobie Trust if the Applicants
persisted with contempt of court
proceedings. He also consoled her by informing her that he would
prevent “
any further litigation proceedings against the
trust”
;
(d) Tshamase contacted her again
shortly thereafter and told her that if she agreed to remove the
staircase at the back of her property
he would see to it that the
matter was settled on that basis. He has however never confirmed this
in writing despite the fact that
she had requested him to do so;
(e) when she thereafter enquired
from him why the settlement letter was never forwarded to her, or why
no proceedings had been instituted
against the Hobie trust as
promised, he told her that the municipality intended to bring a
blanket application to remove the restrictions.
The municipality was
accordingly of the view that it would serve no purpose to institute
proceedings against the Hobie Trust only;
(f) that application is however now
on hold as the Municipality does not have the necessary funds for
such an application; and
(g) she has also had meetings with
various politicians in an attempt to persuade them to investigate the
matter and to assist in
finding an amicable solution.
[25] Mr
Breitenbach
has in my
view correctly submitted that it was clear that the Respondents had
known, at least since 20 October 2010 and after the
dismissal of the
application by the Shan Trust for leave to appeal against the Supreme
Court of Appeal’s reversal of Van
der Byl AJ’s judgment,
that they had reached the end of the road, and had in effect
exhausted all their legal remedies. It
is common cause that during
October 2010 the Respondents circulated a petition canvassing support
to approach Parliament to quash
the demolition order. That petition
contained various vexatious and malicious statements which in my view
are defamatory of Froneman
J. Mr
Breitenbach
has furthermore
argued persuasively that the language employed by the Respondents in
that petition compels the inference that the
Respondents’
non-compliance with the order is based on disdain for Froneman J, and
the judiciary in general.
[26] It is a well known principle of
our law that
bona fide
disputes of fact in application
proceedings are resolved on the facts averred by the respondent,
together with those admitted facts
in the applicant’s
affidavit. (
Plascon-Evan Paints v Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
.
[27] The court may however reject
out of hand, and without referring the matter for oral evidence, bald
denials, averments which
are patently implausible or uncreditworthy
denials. (
Fakie v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at
paragraph 55.
[28] In my view it is abundantly
clear that the Respondents never intended to demolish the property in
compliance with Froneman
J’s order. Even after they realized
that they had exhausted all their legal remedies, they were
nevertheless determined to
avoid compliance with the order through
political intervention. To this end they have resorted to enlisting
the assistance of various
political office bearers.
[29] This much is evident from the
First Respondents’ narration of the interaction between her and
the Municipality’s
legal advisor, as well as various
vituperative statements concerning Froneman J and the judiciary,
contained in their petition.
In that document the First Respondent
stated,
inter alia
, that she wanted to enlist the support of
the public because she has “…
exhausted all legal and
judicial systems and now hope to petition parliament to assist in
resolved this grave injustice”
.
There can
therefore be no doubt that the Respondents had known by then that
they had exhausted all their legal remedies.
[30] The Respondents’
assertion to the effect that their non-compliance was not willful
also sounds hollow and unconvincing
in the face of the truculent and
contemptuous statements contained in the petition. It is clear from
the following excerpts from
the petition that Mr
Breitenbach
was correct in his submission that the Respondents’ refusal to
comply with Froneman J’s order was based on disdain
for the
learned judge and the judiciary in general:
“
The legal
system, with prejudicial judges has failed us completely in not
allowing us a fair hearing.
Judge Froneman elected
to give his judgment without knowing all the facts, especially
entertaining untruths as indicated in the
annexures…
When I learnt that he
was on the verge of being appointed as a Constitutional Court Judge,
I phoned the hot line of the President
(ref. 1877767). My question
was how can a judge be in the Constitutional Court who has no
compassion (knowing fully well 71 other
Summerstrand residents will
be affected by his judgment). He is a racist, knowing fully well that
he was applying for a post in
the Constitutional Court he rule in the
next high court, third time round, application of the van Rensburgs,
that the Ellis’
home needs to be totally demolished.”
[31] I am also not convinced that
the Respondents could genuinely have believed that Froneman J’s
judgment was void after
leave to appeal against it had been refused
by both the Supreme Court of Appeal and the Constitutional Court.
First, this assertion
is contradicted by the explicit and unambiguous
statements in the petition (which in my view constitute
incontrovertible proof
of their states of mind at the time); and
second, the Respondents’ desperate attempts to find a political
solution were inconsistent
with their claim that they had genuinely
believed the judgment to be void. There can be little doubt that even
at that stage they
were aware that they were compelled to demolish
the property in accordance with a valid and binding court order,
hence the frantic
attempts to secure political intervention. The
legal advice to the effect that the judgment was void, or voidable,
was in any event
so patently wrong and ill-considered that the
Respondents could not have genuinely believed in its correctness. In
S v Longdistance (Natal)(Pty) Ltd and Others
1990 (2) SA 277
at
283I-J Nicholas AJA (as he then was) said that:
“
Legal advice has
no magic which justifies the recipient in jettisoning his common
sense.”
This dictum is in my view apposite
to the facts in this case. I therefore agree with Mr
Breitenbach’s
submission that the Respondents’ version in this regard is
farfetched, untenable and demonstrably unworthy of credence.
[33] In the event, it must have been
clear from the foregoing that even if the allegations in the
Respondents’ answering allegations
were to be established
through the hearing of
viva voce
evidence, the following
ineluctable inferences would remain undisturbed:
the Respondents realized they had
exhausted all their legal remedies;
they never intended to comply with
the order; but
instead sought to avoid its
consequences by enlisting the assistance of politicians.
In my view these inferences compel
the conclusion that the Respondents’ non-compliance with
Froneman J’s order was willfull
and
mala fide.
[34] In my view the Respondents have
failed to present evidence that establishes reasonable doubt, and I
am therefore satisfied
that the Applicants have proved beyond
reasonable doubt that the Respondents’ non-compliance with
Froneman J’s order
was willful and
mala fide
.
[35] The Respondents’ willful
and
mala fide
non-compliance with Froneman J’s order has
in my view been particularly brazen and egregious. It was based on
boldly stated
disdain for Froneman J; “
the legal system”
;
and “
prejudicial judges”,
who, according to them,
have failed them by not allowing them a fair hearing. This is the
type of behaviour which Plasket J has
categorized as aimed at
bringing “
the administration of justice into disrepute by
undermining one of the most important foundations of an ordered and
civilized society
respect for, and obedience,
to,
the
law
. “
(Victoria Park Ratepayers
Association v Greyvenouw CC and Others
2004 (3) All SA 641-642
at 624
[61].
[36] Under these circumstances the
only suitable punishment in my view is a term of imprisonment, which
I intend to suspend on the
condition that the Respondents comply with
the order.
[37] In the result the following
order shall issue:
Interlocutory application
1. The time for the delivery of the
Applicant’s replying papers is extended to 19 June 2012.
2. The Applicants shall pay the
costs of the application for condonation of the late delivery of
their replying papers;
3. The First to Fourth Respondents
application for referral to oral evidence is dismissed with costs,
including the costs of two
counsel, jointly and severally, the one
paying the other to be absolved.
Main Application
4. It is declared that the First to
Fourth Respondents are in contempt of paragraphs 2 and 3 of this
Court’s order dated 3
April 2007, in case number 1668/2006.
5. The First to Fourth Respondents
are sentenced to six months; imprisonment each;
6. The operation of the sentences
referred to above is suspended for a period of two months from the
date of this order.
7. The sentences referred to above
will not be implemented if, within a period of two months from the
date of this order, the First
to Fourth Respondents comply with
paragraphs 2 and 3 of this Court’s order of April 2007, in case
number 1668/2006, by demolishing
the structures and buildings
referred to therein.
8. Should the First to Fourth
Respondents not comply with paragraphs 2 and 3 of this Court’s
order of April 2007, in case
number 1668/2006, by demolishing the
structures and buildings referred therein within a period of two
months from the date of this
order:
8.1 the suspension of the operation
of their sentences will be lifted and such sentences will become
fully operative; and
8.2 the deputy sheriff, assisted by
such contractors and other persons as are necessary for the task,
shall be authorized to demolish
the said structures and buildings
forthwith.
9. The First to Fourth Respondents
shall pay the costs of this application on the attorney and client
scale, including the costs
of two counsel and the costs attendant
upon the demolition by the deputy sheriff should this become
necessary, jointly and severally,
the one paying the other to be
absolved.
Counter-application
10. The First to Fourth Respondents’
counter-application, dated 21 October 2011, is dismissed with costs,
including the costs
of two counsel, jointly and severally, the one
paying the other to be absolved.
_____________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearances
Counsel for the Applicant : Advocate
Breitenbach, SC
Attorney for the Applicant : De
Villiers and Partners
62 Erasmus Drive
Smmerstrand
Port Elizabeth
Ref: Mr. E de Villiers
Counsel for the Respondents :
Advocate Singh, SC
Attorney for the Respondents : Kuben
Chetty Attorneys
582/6 Govan Mbeki Avenue
North End
Port Elizabeth
Ref: Mr Chetty
C/o
Woodhead Bigby Irving Inc.
700 Mansion House
12 Joe Slovo Street
Durban
Ref: RCM/SP/14N1800A9
Date Heard : 18 October 2012
Date
Delivered : 20 December 2012