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[2012] ZASCA 125
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Bester NO and Others v Schmidt Bou Ontwikkelings CC (696/11) [2012] ZASCA 125; 2013 (1) SA 125 (SCA) (21 September 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 696/11
In the matter between:
L VON W BESTER NO
...................................................................
FIRST
APPELLANT
E M DORFLING NO
..................................................................
SECOND
APPELLANT
P Q NAIDOO NO
...........................................................................
THIRD
APPELLANT
C P VAN ZYL NO
.......................................................................
FOURTH
APPELLANT
ABSA BANK LIMITED
...................................................................
FIFTH
APPELLANT
v
SCHMIDT BOU ONTWIKKELINGS CC
.................................................
RESPONDENT
Neutral citation:
Bester and
others NNO v Schmidt Bou Ontwikkelings CC
(696/11)
[2012] ZASCA
125
(21 September 2012).
Coram:
Brand, Snyders, Leach,
Theron and Wallis JJA
Heard:
28 August 2012
Delivered: 21 September 2012
Summary: Claim for rectification of
deed of transfer – not a ‘debt’ as contemplated by
the
Prescription Act 68 of 1969
– first to fourth appellants’
defence of prescription accordingly dismissed – fifth
appellant’s defence
of estoppel dismissed because of its
failure to establish that it had relied on the misrepresentation in
the deed of transfer to
its detriment.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Western Cape
High Court, Cape Town. (Louw J sitting as court of first instance):
Both appeals are dismissed. The first,
second, third and fourth appellants, in their capacities as
liquidators, and the fifth appellant
are ordered, jointly and
severally, to pay the respondent’s costs of appeal.
________________________________________________________________
JUDGMENT
________________________________________________________________
BRAND JA
(
SNYDERS, LEACH,
THERON AND WALLIS JJA CONCURRING
):
[1] The first four appellants are
cited in their capacities as the liquidators (the liquidators) of a
company, Innova Holdings (Pty)
Ltd t/a Procon (in
liquidation)(Innova). The fifth appellant is Absa Bank Limited
(Absa). The respondent is Schmidt Bou Onwikkelings
CC (Schmidt Bou).
Proceedings commenced with an application by Schmidt Bou against the
appellants in the Western Cape High Court,
Cape Town. In broad
outline it sought an order consisting of four distinct elements,
namely: (a) a declarator that it is the owner
of an immovable
property situated in Sedgefield, which is at present registered in
the deeds registry, Cape Town, in the name of
Innova; (b)
rectification of the deed of transfer pertaining to that property so
as to reflect the true owner of the property as
Schmidt Bou instead
of Innova; (c) cancellation of a bond registered over the property in
favour of Absa as security for its claims
against Innova; (d)
authorising and directing the Registrar of Deeds, Cape Town, to give
effect to the orders in the previous paragraphs.
The Registrar, who
was cited as the sixth respondent in the court a quo, abided the
decision of the court, but the application
was opposed by the
liquidators and Absa. When the matter came before Louw J, he granted
the application, in the exact terms sought,
with costs. The appeals
against that judgment by both Innova and Absa, are with the leave of
the court a quo.
[2] The background facts are for the
most part not in dispute. Historically, Schmidt Bou was the
registered owner of a property
known as erf 3117, Sedgefield, being
1,9795 hectares in extent, which was referred to on the papers as
‘the mother erf’.
On 2 October 2003, Schmidt Bou sold a
portion of the mother erf, approximately 1,4 hectares in extent, to
Innova for R1,1m. The
deed of sale contained a suspensive condition
requiring subdivision and registration of a separate title for that
portion.
[3] In due course the subdivision was
granted and, in accordance with the diagrams approved by the
Surveyor-General on 31 January
2005, the mother erf was divided into
two portions. The one was named ‘erf 4675, a portion of erf
3117, Sedgefield, being
1,3965 hectares in extent’ (the
Portion) while the other was described as ‘the remainder of erf
3117 Sedgefield, being
0,583 hectares in extent’ (the
Remainder). The Portion, in turn, was further subdivided into a
number of smaller erven, in
accordance with the development plans of
Innova. The representatives of both Schmidt Bou and Innova always
intended that only the
Portion would be transferred to the latter
while the former would retain ownership of the Remainder. This was
the evidence of Mr
C J Schmidt, on behalf of Schmidt Bou, which
remained uncontested, because there was no evidence by the erstwhile
directors of
Innova and the liquidators were not themselves in a
position to dispute these facts. In any event, this evidence was, of
course,
consistent with the clear terms of the deed of sale. What is
more, that the representatives of Innova appreciated that it was to
become the owner of only the Portion and not the whole of the mother
erf, is also borne out by a letter to Schmidt Bou prior to
transfer
being effected under the deed of sale, in which they offered, on
behalf of Innova, to purchase the Remainder for an additional
R500 000. Although such agreement was never concluded, it
indicated that Innova was aware that it had not purchased the whole
mother erf.
[4] After the conclusion of the
agreement of sale, an attorney, Mr André Kleynhans, was
instructed to attend to the transfer
of the property sold. But,
despite the fact that Kleynhans was in possession of the deed of
sale, he proceeded to transfer, not
only the Portion, but the entire
mother erf to Innova. How this happened is not clear. Apparently
Kleynhans did so on the strength
of a power of attorney which was
filed with the Registrar of Deeds. This power of attorney which was,
on the face of it, signed
by Schmidt in November 2003 on behalf of
Schmidt Bou, indeed authorised the transfer of the whole mother erf
to Innova. Though
Schmidt admitted that he signed a power of attorney
in connection with the transaction without reading it, he questioned
the validity
of the power of attorney filed with the Registrar which,
in the light of Schmidt’s comments, is a curious document.
[5] Be that as it may, whatever the
explanation might be for the curious power of attorney, the
undisputed evidence of Schmidt remains
that it was never the
intention of either Schmidt Bou or Innova that the Remainder should
be transferred; that their intention
was that only the Portion should
be so transferred; and therefore that the transfer in the deeds
office of the whole mother erf,
including the Remainder, was a
mistake. Based on this evidence, Schmidt Bou contended that, as a
matter of law, Innova never became
the owner of the Remainder and
that despite the registration of transfer of this property to Innova
in the deeds office, Schmidt
Bou was still the owner of that
property. In support of its submission on the law, Schmidt Bou relied
on certain statements by
this court in
Legator McKenna v Shea
2010
(1) SA 35
(SCA) para 22, to which I shall presently return. On the
papers the liquidators disputed the correctness of this conclusion.
In
addition they contended that Schmidt Bou’s claim had become
prescribed under the
Prescription Act 68 of 1969
. Hence, they refused
to consent to the rectification of the deed of transfer pertaining to
the property so as to reflect Schmidt
Bou as the true owner. As we
now know, they also opposed Schmidt Bou’s application for an
order to that effect and continued
to do so on appeal.
[6] Before I deal with the merits of
that opposition, I must first complete the résumé of
the facts. On 11 December
2007 Innova registered a continuing
covering mortgage bond over the Remainder in favour of Absa as
security for the sum of R4 million
that might become owing to Absa by
Innova. At the time, the representatives of Schmidt Bou were
blissfully unaware that the Remainder
had been transferred to Innova.
As far as they were concerned, the Remainder was still registered in
the name of Schmidt Bou. Moreover,
they were also unaware of the fact
that Innova had passed a bond over the property in favour of Absa.
Details of the circumstances
in which this bond was registered were
not provided by either the liquidators or Absa. The deponent to the
answering affidavit
on behalf of Absa was Mr J C Rabe who did not
profess to have any personal knowledge of how the registration of the
bond came about,
nor of the particulars of the transaction between
Innova and Absa. From the documents filed for the proof of Absa’s
claim
against the insolvent estate of Innova – which were
annexed to the answering affidavit – it became apparent,
however,
that the registration of the bond formed part of a much
larger composite transaction in which covering mortgage bonds were
registered
over at least twelve properties of Innova to secure four
different loans made to it. A further inference unavoidable on the
papers
is that, since the directors of Innova always knew that it was
not entitled to the transfer of the remainder, they opportunistically
exploited the mistaken transfer of the property to the advantage of
Innova.
The claim against the liquidation
of Innova and the defence of prescription
[7] Against this background I now turn
to consider Schmidt Bou’s claim that, despite the registration
of the transfer of the
Remainder in its name in the deeds office,
Innova never became the owner of the property. For the legal basis of
this claim, Schmidt
Bou relied, as I have said by way of
introduction, on the statements by this court in the
Legator
case (para 22) which reads as follows:
‘
In
accordance with the abstract theory [of transfer which was held, in
the previous paragraph, also to apply to immovable property]
the
requirements for the passing of ownership are twofold, namely
delivery - which in the case of immovable property is effected
by
registration of transfer in the deeds office - coupled with a
so-called real agreement or “saaklike ooreenkoms”.
The
essential elements of the real agreement are an intention on the part
of the transferor to transfer ownership and the intention
of the
transferee to become the owner of the property. (See eg
Air-Kel
(Edms) Bpk h/a Merkel Motors v Bodenstein en ‘n Ander
1980
(3) SA 917
(A) at 922E-F;
Dreyer
and Another NNO v AXZS Industries (Pty) Ltd
[2006
(5) SA 548
(SCA)] para 17). Broadly stated, the principles applicable
to agreements in general also apply to real agreements. Although the
abstract theory does not require a valid underlying contract, eg
sale, ownership will not pass - despite registration of transfer
- if
there is a defect in the real agreement . . .’
[8] Despite the
liquidators’ arguments to the contrary on the papers, the court
a quo held that, according to the undisputed
facts, there was no real
agreement to transfer the Remainder and therefore that, on the
authority of
Legator
,
Innova never became the owner of the property. On appeal, the
liquidators did not challenge the correctness of these conclusions
and I find them incontrovertible. From the finding that Schmidt Bou
remained the owner of the Remainder, it should also follow,
as a
matter of course, that Schmidt Bou was entitled to rectification of
the deed of transfer in the records in the deeds registry
so as to
reflect the true ownership of that property. As I see it, this flows,
not only from
s 4(1)(b)
of the
Deeds Registries Act 47 of 1937
–
which allows such rectification – but also from the following
explanation by Wessels JA in
Weinerlein
v Goch Buildings Ltd
1925 AD 282
at
293:
‘
The
Roman law did not know of the transfer of property by registration:
that is an innovation of the Roman Dutch law. The object
of our law
of registration of transfer is that a person shall hold his title in
accordance with what is found upon the register.
. . . The policy of
our registration laws with regard to fixed property requires the true
contract under which the land is held
to be reflected on the
register.’
[9] Nonetheless
the liquidators contended that Schmidt Bou was not entitled to an
order declaring that it is the owner of the Remainder,
nor to the
rectification of the deed of transfer of the property so as to
reflect the true ownership. On appeal, their sole basis
for that
contention was that Schmidt Bou’s claims had become
extinguished by prescription in terms of the
Prescription Act. With
regard to extinctive prescription, the operative provisions of the
Act are to be found in
s 10.
This section proclaims that, after
the lapse of the relevant prescriptive period determined by
s 11
– which the liquidators contend is the three years laid down in
s 11(d)
– ‘a debt shall be extinguished by
prescription’. Though the
Prescription Act does
not define the
term ‘debt’ it has been held by this court that it
presupposes an obligation to do something or to refrain
from doing
something (see eg
Oertel v Direkteur
van Plaaslike Bestuur
1983 (1) SA
354
(A) at 370B;
Desai NO v Desai
[1995] ZASCA 113
;
1996 (1) SA 141
(A) at 146H-J).
[10] Proceeding from the premise of
this judicial definition of a ‘debt’, the court a quo
held that neither the declaratory
order nor the order for
rectification sought by Schmidt Bou constituted the enforcement of a
‘debt’ as contemplated
by the
Prescription Act and
that
Innova’s defence based on prescription could therefore not
succeed. It found authority for this line of reasoning in
the
judgment of this court in
Boundary Financing Ltd v Protea Property
Holdings (Pty) Ltd
2009 (3) SA 447
(SCA). What this court
essentially held in
Boundary Financing
was that a claim for
rectification of a contract is not susceptible to extinctive
prescription. The reasons for that finding appear
from the following
statement by Streicher JA (para 13):
‘
A
claim for rectification does not have as a correlative a debt within
the ordinary meaning of the word. Rectification of an agreement
does
not alter the rights and obligations of the parties in terms of the
agreement to be rectified: their rights and obligations
are no
different after rectification. Rectification therefore does not
create a new contract; it merely serves to correct the written
memorial of the agreement. It is a declaration of what the parties to
the agreement to be rectified agreed.’
[11] In his
argument on appeal, counsel for the liquidators sought to distinguish
Boundary Financing
on the basis that the rectification of a contract is not on all fours
with the rectification of the deed of transfer. While rectification
of an agreement does not alter the rights of the parties, so the
argument went, rectification of the deed of transfer in the deeds
registry would constitute a symbolic delivery of the property. This
is so, counsel contended, because by rectification of the deed
of
transfer, Innova would cease to be the registered owner while Schmidt
Bou would become the new registered owner of the Remainder.
I do not
agree with this argument. Absent any real agreement, Innova, as a
matter of law, never became the owner of the Remainder,
despite the
entry in the deeds registry. Schmidt Bou thus remained the owner. In
consequence the deed of transfer does not reflect
the correct state
of affairs. Thus understood, the rectification sought will not
constitute any delivery, symbolic or otherwise,
of the property. Nor
will it change the rights and obligations of the parties: it will
simply correct the erroneous reflection
of those rights.
[12] In the end,
I therefore believe that there is no difference in the present
context between rectification of a contract, on
the one hand, and
rectification of a deed of transfer, on the other. Hence
I
agree with the court a quo that Schmidt Bou’s claim for
rectification of the deed of transfer did not constitute a claim
for
delivery of property in the form of a
rei vindicatio
. Nor did
the relief claimed rely on any obligation by Innova to do, or to
refrain from doing, anything. As in the case of rectification
of a
contract, it therefore had no correlative ‘debt’, as
contemplated by the
Prescription Act, which
could be extinguished by
prescription.
[13] The further argument raised by
counsel for the liquidators on appeal relied on the following
statement by Nugent JA in
Duet and Magnum Financial Services CC v
Koster
2010 (4) SA 499
(SCA) para 24:
‘
A
“debt” for purposes of the [Prescription] Act is
sometimes described as entailing a right on one side and a
corresponding
“obligation” on the other. But if
“obligation” is taken to mean that a “debt”
exists only when
the “debtor” is required to do
something, then I think the word is too limiting. At times the
exercise of a right calls
for no action on the part of a “debtor”,
but only for the “debtor” to submit himself or herself to
the
exercise of the right. And if a “debt” is merely the
complement of a “right”, and if all “rights”
are susceptible to prescription, then it seems to me that the
converse of a “right” is better described as a
“liability”
which admits of both an active and a passive
meaning.’
[14] What appears from the statement,
so the argument went, is that ‘debt’ has a wider meaning
that the one ascribed
to that term in the decisions of this court –
such as
Oertel
and
Desai
– that were relied upon
by the court a quo. This extended meaning, so the argument proceeded,
also includes an obligation
on the part of a debtor to submit himself
or herself to the exercise of a right to rectification. From this it
follows, so the
argument concluded, that the claim for rectification
is a ‘debt’ because it requires the party in the position
of Innova
to submit to the rectification. I am not convinced that
Nugent JA really intended to extend the meaning of a ‘debt’
beyond that which was attributed to the term in cases like
Oertel
and
Desai.
But even if he did, I do not believe that it
takes the liquidators’ case any further. Rectification of the
deed of transfer
will require Innova to submit to nothing more and
nothing less than any other member of the public. Even if that, in a
sense, amounts
to a ‘submission’ it is clearly not a
‘liability’ within any meaning of that term. It is no
more a ‘liability’
or a ‘debt’ than a claim
for rectification of a contract or the rectification of a company’s
register of members
(see
Gaffoor v Vangates Investments (Pty ) Ltd
2012 (4) SA 281
(SCA) paras 35-36).
[15] Hence I agree with the court a
quo’s conclusion that Schmidt Bou’s claims were not
extinguished by prescription.
It follows that, in my view, the
liquidators’ appeal cannot succeed. The conclusion thus reached
renders it unnecessary to
decide whether a claim based on the
rei
vindicatio
is a debt which prescribes after three years. This
issue arose from the liquidators’ submission that a claim for
rectification
is to be equated with the
rei vindicatio.
For
the proposition that a claim of the latter kind prescribes after
three years, they relied on the judgment of this court in
Barnett
v Minister of Land Affairs
2007 (6) SA 313
(SCA) para 19. But the
correctness of that judgment has since been doubted in
Staegemann
v Langenhoven
2011 (5) SA 648
(WCC) paras 14-28. Though
Barnett
has been confirmed by this court in
Grobler v Oosthuizen
2009
(5) SA 500
(SCA) para 18; and in
Leketi v Tladi NO
[2010] JOL
25260
(SCA) paras 8 and 21, I must admit that I find the reasoning in
Staegemann
attractive and, at least on the face of it, quite
convincing. I therefore have no doubt that the case will come where
this court
will have to reconsider the correctness of the decisions
in
Barnett, Grobler
and
Leketi
that the
rei
vindicatio
is extinguished by prescription after three years. But
this is not that case, simply because the liquidators’
prescription
defence has already been held to founder on other
grounds.
The claim against Absa and the
defence of estoppel
[16] This brings me to Schmidt Bou’s
claim for the cancellation of the mortgage bond in favour of Absa and
the shield of estoppel
raised by the latter against that claim. The
finding that Innova never owned the Remainder inevitably leads to the
conclusion that
it had no right to pass the mortgage bonds over the
property without the permission of the owner as and when it did.
Apart from
the defence of estoppel raised by it, Absa would therefore
have no answer to Schmidt Bou’s claim for cancellation of the
bond.
[17] Broadly stated, the concept of
estoppel, borrowed from English law as applied by our courts, amounts
to this: when a person
(the representor) has by words or conduct made
a representation to another (the representee) and the latter acted
upon the representation
to his or her detriment, the representor is
estopped, that is precluded, from denying the truth of the
representation (see eg
Union Government v Vianini Ferro-Concrete
Pipes (Pty) Ltd
1941 AD 43
at 49). As the party who raised the
defence of estoppel, Absa therefore bore the onus to allege and prove
a misrepresentation by
Schmidt Bou upon which Absa relied and which
reliance was the cause of it acting to its detriment (see eg
Oriental
Products (Pty) Ltd v Pegma 178 Investments Trading CC
2011 (2) SA
508
(SCA) para 19).
[18] The factual basis relied upon by
Absa for this defence, was rather tersely stated as follows in the
answering affidavit filed
on its behalf:
‘
[Schmidt
Bou] is also clearly estopped from denying that the immovable
property in question was validly transferred and registered
in the
name of Innova. [Absa] relied upon the representation made by
[Schmidt Bou’s] duly authorised attorney and the subsequent
registration to pass a bond over the property and advance moneys to
the purchaser pursuant thereto.’
And that:
‘
Innova
is the registered owner of the property in question and [Absa]
relying upon the representation of [Schmidt Bou] (and its
duly
authorised agent, its attorney) passed a mortgage bond over the
immovable property and advanced money to Innova pursuant thereto.’
[19] As I understand these terse
statements, the representation relied upon is the one contained in
the deed of transfer that Innova
was the owner of the Remainder. That
representation, so Absa seemed to contend, had been caused by the
conduct of Schmidt Bou’s
representative, Schmidt, in signing
the power of attorney and its attorney, Kleynhans, in passing
transfer of the Remainder to
Innova. Although not expressly doing so,
the court a quo appears to have accepted, at least by implication,
the validity of Absa’s
contentions thus far. For the sake of
argument, I propose to do the same.
[20] The court a quo held, however,
that Absa had failed to establish that the misrepresentation in the
deed of transfer had been
the cause of it acting to its detriment.
The reasoning of the court a quo that led to this finding proceeded
from the distinction,
that has become well settled in the law of
delict, between factual causation, on the one hand, and legal
causation, on the other.
As explained by Corbett CJ in
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700F-G,
factual causation is generally determined by applying the
causa
sine qua non
or ‘but-for’ test. This test requires a
hypothetical enquiry as to what probably would have happened, but for
the wrongdoing
relied upon – in this case, the
misrepresentation in the deed of transfer that Innova was the owner
of the Remainder. If
the wrongdoing is shown in this way to be a
causa sine qua non
of the consequences complained of –
in this case, the advance of the loan to Innova – causation has
been established.
[21] On the other hand, demonstration
that the wrongdoing was a
causa sine qua non
of the
consequences does not automatically result in legal responsibility
for those consequences. Whether or not legal responsibility
should
follow, is determined by a second enquiry into legal causation,
referred to by some as the remoteness issue. Broadly stated,
the
enquiry at this stage is whether, as a matter of public and legal
policy, it is reasonable, fair and just to impose legal
responsibility for the consequences that resulted from the wrongful
conduct (see eg
Standard Chartered Bank of Canada v Nedperm Bank
Ltd
[1994] ZASCA 146
;
1994 (4) SA 747
(A) at 765A-B;
Smit v Abrams
1994 (4)
SA 1
(A) at 15B-18H;
Fourway Haulage SA (Pty) Ltd v SA National
Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2) SA 150
(SCA) para 33). On the authority
of the judgment of this court in
Stellenbosch Farmers’
Winery Ltd v Vlachos t/a the Liquor Den
2001 (SA) 597 (SCA) paras
19-21, the court a quo accepted that the two-stage approach to
causation in delict can be transposed,
without qualification, to
matters of estoppel by representation. Proceeding from this premise,
the court a quo then held that since
the direct cause of the
consequences complained of by Absa – ie the advance of the loan
to Innova – was the fraudulent
conduct of the directors of
Innova in passing the bond over the Remainder well knowing that the
transfer of that property was a
mistake, it would not be fair to hold
Schmidt Bou legally responsible for the consequences resulting from
the advance of the loan.
In the result, so the court a quo concluded,
Absa had failed to establish estoppel because it had failed the legal
causation test.
[22] Though I am not prepared to say
that the court a quo erred in this line of reasoning, I prefer to
adopt a different approach
to the causation issue. According to para
22 of the
Stellenbosch Farmers’ Winery
judgment, the
question whether or not the delictual approach to causation can,
without qualification, be transposed to matters of
estoppel, had not
been finally decided. It was also not decided in that case. On the
view that I hold on the outcome of this appeal,
it is again
unnecessary to dispose finally of that question. As I see it, Absa
failed the test of factual causation. It is true
that Mr Rabie, who
deposed to Absa’s answering affidavit, made the bald
unmotivated statement that Absa relied on the representation
that
Innova was the owner of the Remainder to pass the bond over the
property and to advance money to Innova. It is clear, however,
that
Mr Rabie does not profess to have personal knowledge of the pertinent
facts. If the mortgage bond over the property was a
discrete bond
securing a single loan, the inference might have been warranted from
these facts that, but for the bond, this loan
would not have been
advanced. However, those are not the facts of this case. Though
details of the circumstances in which the bond
was registered were
not provided by Absa, one is aware from the claim documents annexed
to Absa’s answering affidavit that
this bond formed part of a
composite transaction in which bonds were registered over at least
twelve different properties to secure
four different loans. In these
circumstances it cannot be said, in my view, that on the inherent
probabilities Absa would have
acted any differently if Innova could
offer one less property as security. In the replying affidavit on
behalf of Schmidt Bou,
pertinent reference was made to these
deficiencies in Absa’s case. Yet no attempt was made by the
latter to remedy the position.
It follows that, in my view, Absa’s
defence of estoppel was rightly dismissed.
[23] In the result both appeals are
dismissed. The first, second, third and fourth appellants, in their
capacities as liquidators,
and the fifth appellant are ordered,
jointly and severally, to pay the respondent’s costs of appeal.
________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For
1
st
– 4th Appellants: A LE GRANGE SC
For
5
th
Appellant: F SIEVERS
Instructed
by: TRUTER ATTORNEYS
WITTEDRIFT
Correspondents:
SYMINGTON & DE KOK
BLOEMFONTEIN
For
Respondent: J A NEWDIGATE SC
Instructed
by: VAN DER SPUY ATTORNEYS
CAPE
TOWN
Correspondents:
HILL MCHARDY & HERBST INC
BLOEMFONTEIN