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[2011] ZASCA 75
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Neil Harvey & Associates (Pty) Ltd v Medscheme Holdings (Pty) Ltd and Others (621/10) [2011] ZASCA 75 (26 May 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 621/10
In the matter between:
NEIL
HARVEY & ASSOCIATES (PTY) LTD
................................................
Appellant
and
MEDSCHEME
HOLDINGS (PTY) LTD
............................................
First
Respondent
ANDRE
MEYER
..........................................................................
Second
Respondent
KEVIN
WRIGHT
..............................................................................
Third
Respondent
JOHAN
SWARTS
.........................................................................
Fourth
Respondent
THE
ARBITRATOR N.O.
.................................................................................
Abiding
Neutral citation:
Neil Harvey & Associates
(Pty) Ltd v Medscheme Holdings
(Pty)
Ltd
(621/10)
[2011] ZASCA 75
(26 May 2011).
Coram:
HARMS DP, CLOETE, PONNAN and MALAN JJA and
PLASKET AJA
Heard:
3 May 2011
Delivered:
26 May 2011
Summary:
Arbitration Act 42 of 1965
: removal of
arbitrator in terms of
s 13(2)(a):
proceedings in the absence of
a party; reasonable perception of bias on the part of the arbitrator.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
South Gauteng High Court
(Johannesburg) (Makgoka J
sitting as court of first instance):
The appeal is allowed with costs, including the costs of
two counsel. The order of the court a quo is set aside and the
following
order substituted:
'The application is dismissed
with costs, including the costs of two counsel.'
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (HARMS DP, PONNAN and MALAN JJA and PLASKET
AJA concurring):
[1] The appellant, Neil Harvey & Associates (Pty)
Ltd ('NHA'), is the claimant in arbitration proceedings ('the
Medscheme Arbitration')
against Medscheme Holdings (Pty) Ltd and its
chief executive officer, chief information officer and a general
manager ('the respondents').
The arbitrator is Adv T W Beckerling who
practises as senior counsel at the Johannesburg Bar. On appeal, as in
the court below,
the arbitrator abides the decision of the court.
[2] The respondents, as applicants, brought proceedings
in the South Gauteng High Court (Johannesburg) in terms of a notice
of motion
dated 14 April 2009 for the removal of the arbitrator in
terms of
s 13(2)(a)
of the
Arbitration Act 42 of 1965
. The section,
read with
s 1
, provides (to the extent relevant) that a high court
having jurisdiction may at any time on the application of any party
to the
reference, on good cause shown, remove an arbitrator from
office. The court a quo (Makgoka J) granted the relief sought. NHA
obtained
the leave of that court to appeal to the full court of the
North Gauteng High Court (Pretoria), but that direction was, at the
suit of NHA, set aside in terms of ss 20(2)(b) and (c) of the
Supreme Court Act 59 of 1959 and substituted with a direction
that
the appeal be heard by this court.
[3] The Medscheme arbitration agreement was concluded on
23 October 2007. Relevant clauses of the agreement read with the
definitions
clause are the following:
'4.
Powers
of arbitrator
4.1 In the conduct of the
arbitration the arbitrator will have the powers of a Judge of the
[Witwatersrand Local Division of the
High Court] as well as all such
powers as are conferred by the [Arbitration Act] and the [Uniform
Rules of Court] and the common
law, and as provided for in this
agreement . . .
7.
Pleadings
The parties will file and serve
pleadings in accordance with the [Uniform Rules of Court] . . .
12.
Communication
If the legal representative of
any of the parties to the disputes wish[es] to communicate with the
arbitrator by fax or letter,
such fax or letter will first be sent to
the legal representative of the other party not less than 24 hours
before it is forwarded
to the arbitrator, except in situations of
urgency.
Any telephonic communication
with, or personal attendance upon, the arbitrator will, save as
otherwise agreed, be done on the basis
that the other party will be
informed in advance of the communication or proposed personal
attendance and will be entitled to participate
in such telephonic
communication by conference call or be present at the proposed
personal attendance.'
[4] In about November/December 2008 and by an exchange
of correspondence between the attorneys, the parties concluded what
has come
to be termed the 'Inspection Agreement'. In essence, that
agreement provides for access to all of Medscheme's documents (even
if
they are irrelevant) by NHA's team of experts. These experts are
required to identify the documents which they consider to be
relevant,
followed by scrutiny by Medscheme and ultimately, if
necessary, a hearing before and determination by the arbitrator of
relevance
in disputed cases.
[5] The pleadings in the arbitration currently run to
well over 1000 pages. Put simply, the principal dispute between NHA
and the
respondents is that NHA alleges, and the respondents deny,
that whilst Medscheme had access to NHA's software, the respondents,
in breach of agreements between NHA and Medscheme and in unfair and
unlawful competition with NHA, copied source code and misappropriated
NHA's confidential information in order to develop software for
Medscheme. NHA also alleges that Medscheme, in breach of its
obligation
(which Medscheme denies) to transfer all schemes under its
administration onto NHA's software, administered schemes using its
own
software, adapted and enhanced by incorporating features of NHA's
software (which Medscheme also denies).
[6] There appear to be two legs to the respondents'
case, based on good cause, which involve a consideration of
substantially the
same facts. The first is that a gross irregularity
took place and the second, that there is a reasonable suspicion that
the arbitrator
is biased.
[7] On 30 July 2008, in preparation for the arbitration,
which was due to commence on 24 September 2008, NHA caused subpoenas
duces
tecum to be served on persons employed by Simeka Business Group
Ltd and its indirectly held subsidiary, ITQ Business Solutions (Pty)
Ltd. (For the sake of convenience, and taking my cue from the
parties, I shall refer to these companies jointly as 'ITQ'.) ITQ
was
the main developer of the software for Medscheme, which is the crux
of the dispute between the parties. In doing so it acted
principally
through its chief executive officer, Mr Marc Schrader, and a
director, Ms Petro Bogatie. The respondents were fully
aware of the
subpoenas and their attorney, whilst advising ITQ that it would not
be proper for him to represent it, advised it
to co-operate with NHA.
[8] The chief legal officer of ITQ, Mr Alexander Evan,
explained in an affidavit annexed to the respondents' replying
affidavit
that the subpoenas presented a practical problem, namely:
How should ITQ make available a vast quantity of emails when many
were
bound to be irrelevant and some were potentially confidential to
ITQ? Negotiations ensued between Evan and NHA's attorney, which
culminated on 12 October 2008 in the signature of a contract styled
'Confidentiality Agreement'. In terms of that agreement ITQ
undertook, in response to the subpoenas, to disclose all documents
and confidential information in its possession to NHA's legal
team
and four named independent IT experts; NHA was authorised, subject to
control mechanisms agreed with ITQ, to use what was
disclosed for the
purposes of the Medscheme arbitration; and the parties to the
agreement consented to Adv Beckerling having jurisdiction
'to settle
any disputes which may arise out of or in connection with' the
agreement. Most of the documents subpoenaed were on the
Medscheme
server and compliance by ITQ with the subpoenas would facilitate the
identification of documents as required by the first
stage of the
Inspection Agreement between NHA and Medscheme.
[9] On 20 February 2009 NHA's attorney sent an email to
Adv Beckerling informing him of the conclusion of the Confidentiality
Agreement,
stating that a dispute had arisen between NHA and ITQ
regarding the latter's compliance with the subpoenas and requesting a
meeting
in order to 'ventilate and resolve' the dispute. That email
and subsequent emails addressed to the arbitrator and ITQ were not
copied by NHA to the respondents' attorney (although the contents of
some were, by ITQ). The meeting was held six days later on
26
February. Present were members of NHA's legal team and an expert
retained by it, and Evan, Schrader and Ms Bogatie of ITQ. There
is a
dispute about when and how Medscheme and its attorney came to know
about the details of the meeting and its purpose, which
is relevant
to the argument on behalf of NHA that the complete answer to the
respondents' application for the removal of the arbitrator
is that
they were aware of, and acquiesced in, the meeting taking place. I
find it unnecessary to resolve the dispute or to deal
with the
argument.
[10] What transpired at the meeting of 26 February was
placed on record by the arbitrator, with the aid of contemporaneous
notes,
at a meeting convened by him pursuant to a request by the
respondents on 9 March 2009, at which the legal representatives of
both
NHA and the respondents were present. Leading counsel
representing NHA confirmed what the arbitrator had said, subject to
minor
amendments not relevant for present purposes. This recordal was
accepted by the respondents in their application for the arbitrator's
removal from office and its accuracy is common cause. It amounts to
this:
(a) Lead counsel for NHA informed the arbitrator that
the issues before the meeting were entirely separate from, and had
nothing
to do with, the issues in the Medscheme arbitration.
(b) The arbitrator was requested to resolve the issues
between NHA and ITQ that had arisen pursuant to the Confidentiality
Agreement.
The arbitrator was under the impression that the
respondents knew about the Confidentiality Agreement and the fact
that he had
been requested (as he put it) 'to chair the meeting to
resolve the impasse' between NHA and ITQ.
(c) NHA contended that it was being prejudiced in the
Medscheme arbitration because ITQ was not complying with its
obligation to
produce documents under the Confidentiality Agreement.
The ITQ representatives confirmed their intention to abide by that
agreement,
but contended that the time frames set by NHA for
compliance were unreasonable and that a large number of emails that
were being
sought by NHA were irrelevant. This latter contention was
placed in dispute by NHA.
(d) The arbitrator expressly declined to consider
questions of relevance as it seemed to him that the difference
between the parties
before him was a practical one, limited to the
implementation of the Confidentiality Agreement that both were
willing and able
to perform, given some guidance. He formed the view
that NHA's request was overly broad and that its complaint was
unreasonable,
and said so. NHA's lead counsel then asked for the
meeting to stand down so that he could take instructions.
(e) When the meeting resumed, lead counsel for NHA said
that the problem could be resolved between the attorneys, if it
remained
alive after his attorney had had regard to a folder of
emails prepared by Ms Bogatie. Provisional arrangements for times and
other
practicalities were discussed for the implementation of the
agreement. The arbitrator was not asked to, nor did he, give any
directions
in this regard.
(f) Lead counsel for NHA then indicated to the
arbitrator either that he had an instruction, or that he wanted to
take an instruction
(there is no clarity in this regard), to ask that
Ms Bogatie be directed, pursuant to the subpoenas, to deliver to NHA
emails that
were on her laptop computer. The arbitrator's reaction
(in his own words) was:
'I indicated that I would be
extremely reluctant even to entertain any suggestion of such an
application and expressed the view
that it was something that
directly affected the existing quarantine arrangements in the main
arbitration about which Medscheme
undoubtedly had to be heard.
['Quarantine arrangements' was presumably a reference to the
Inspection Agreement or the agreement
in terms of which NHA and
Medscheme had each deposited in escrow copies of relevant software
and manuals with a neutral firm of
attorneys with a view to the items
being inspected at a later date.]
I made it clear that I was
accordingly unable to entertain such an application without Medscheme
being heard. [Lead counsel for
NHA] fully accepted and I thought
agreed with this view and nothing more was said about it.'
(g) The meeting adjourned shortly thereafter on the
basis that the parties would meet informally in the absence of the
arbitrator
immediately after the conclusion of the meeting, in order
to resolve issues concerning the relevance or otherwise of a small
number
of emails that ITQ had objected to making available.
(h) During the course of the meeting the arbitrator made
no rulings and gave no directives.
[11] NHA submitted that it was perfectly entitled to
conduct an arbitration separate from the Medscheme arbitration but
before the
same arbitrator, in respect of the issues that had arisen
between it and ITQ, and from which the respondents could be excluded.
I cannot agree with this argument, for reasons I shall give
presently.
[12] The respondents' argument was that the arbitrator's
appointment and involvement in what they term 'the ITQ arbitration',
which
they categorise as 'parallel (and related) arbitration
proceedings' between NHA and key witnesses in the Medscheme
arbitration,
to the exclusion of the respondents, constitutes good
cause for the removal of the arbitrator. The respondents made the
following
submissions in this regard:
(a) The arbitrator was appointed in the Medscheme
arbitration to resolve several material issues between NHA and the
respondents.
(b) Clause 12 of the Medscheme arbitration agreement
(quoted above) provides a specific procedure for the appropriate mode
of communication
with the arbitrator.
(c) In terms of s 15 of the Act: 'An arbitration
tribunal shall give to every party to the reference, written notice
of the time
when and place where the arbitration proceedings will be
held, and every such party shall be entitled to be present personally
or by representative and to be heard at such proceedings.'
(d) Clause 12 of the Medscheme arbitration agreement and
s 15 of the Act embody the elementary rule which applies in an
adverserial
process, namely that an arbitrator should have no
communication whatever with either party in a case before him except
in the presence
of the other, and an arbitrator should have no
communication with any witness (or potential witness) except in the
presence of
both parties. Nothing may be done
inaudita altera
parte
.
[13] For the proposition that
'nothing' may be done without the other party being heard, the
respondents rely on the following dictum
in the majority judgment of
O'Regan ADCJ in
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews & another
2009 (4) SA 529
(CC) para 259:
'Kroon AJ
[who wrote the minority judgment] relies on
Lazarus
v Goldberg & Another
1
which cites
Cloete J in
Croll
qq Kerr v Brehm
2
to state that
"no rule is more clear than that they [arbitrators] should not
proceed to examine parties or witnesses in the
presence only of one
party, that nothing may be done "
inaudita
altera parte
".
This rule is clearly correct in the context of an adversarial
process.'
The passage quoted from the judgment
of Sir Henry Cloete continues with the words '─ so as to give
the opposite party the
opportunity of answering or rebutting such
evidence'. That judgment is not authority for the more general
proposition advanced
by the respondents that 'nothing' must be done
in the absence of any of the parties to the arbitration. Nor do the
dicta in, and
facts of, the cases on which Kroon AJ relied provide
such authority. Those cases are confined to situations where evidence
(oral
3
or documentary
4
)
was produced, or proceedings took place where the merits were
considered,
5
in the presence of one party, but the
absence of the other.
[14] For these reasons, the approval of the truncated
quotation from the judgment of Sir Henry Cloete in
Croll's
case by O'Regan ADCJ in the context of adversarial arbitration
proceedings should not be interpreted as having the wide meaning
for
which the respondents contend. The underlying purpose of the rule is
to allow a party to an arbitration to assert its rights
and protect
its interests. But when neither can have been affected, no
irregularity takes place. The question is therefore whether
there is
a realistic possibility that the rights or interests of the
respondents were adversely affected at the hearing on 26 February.
[15] The argument on behalf of the respondent was that
NHA was not entitled to engage the same arbitrator, appointed in the
Medscheme
arbitration, to preside over the ITQ arbitration, and the
arbitrator was not entitled to accept the appointment, where the ITQ
arbitration involved:
(a) Questions of relevance of documents in the Medscheme
arbitration, in relation to which the parties had expressly agreed on
a
procedure to be followed (the Inspection Agreement) for resolution
of disputes before the arbitrator;
(b) the degree of cooperation of key witnesses in the
Medscheme arbitration (ie the ITQ employees) in responding to
subpoenas duces
tecum issued by NHA in that arbitration;
(c) those witnesses making documents available to NHA
for use in the Medscheme arbitration; and
(d) the credibility of those witnesses.
[16] The hearing on 26 February had the potential for
all of these questions to be canvassed. For that very reason, NHA
should not
have stipulated or agreed to a procedure whereby disputes
between it and ITQ under the Confidentiality Agreement would be
referred
for determination by the arbitrator in the Medscheme
arbitration, in the absence of the other parties to that arbitration,
ie the
respondents. It is understandable how this came about: Adv
Beckerling was steeped in the matter and ITQ was concerned about the
confidentiality of its own information, not only vis-à-vis NHA
but (according to NHA, whose version must be accepted as
these are
motion proceedings) also vis-à-vis Medscheme. Furthermore
there cannot be, nor was there, any suggestion that
NHA was
attempting to obtain any improper advantage because it is common
cause that all documents produced by ITQ in the possession
of
Medscheme, whether relevant or irrelevant, would, in terms of the
Inspection Agreement, either have to be approved by Medscheme,
or a
directive obtained from the arbitrator, before they could be used in
the Medscheme arbitration. But what should have happened
is that NHA
should have requested the arbitrator to convene a hearing on notice
to the respondents to determine the alleged non-compliance
by ITQ
with the Confidentiality Agreement and notified the respondents of
their intention to request the arbitrator to do so. It
would then
have been for the arbitrator, having heard all parties, to determine
questions of confidentiality of ITQ's information
vis-à-vis
NHA and the respondents and to give any directions with a view to
ensuring compliance by ITQ with its undertaking
to provide documents
to NHA relevant to the Medscheme arbitration. The issues which could
have arisen at the hearing on 26 February,
identified by the
respondents and set out in para 15 above, were so closely related to
that arbitration that they could not properly
have been determined by
the arbitrator in the absence of the respondents.
[17] As a matter of fact, however,
these issues did not arise and there is no realistic possibility that
the respondents were prejudiced
by what happened at the meeting.
Nothing was done, said or decided that could have affected their
rights or interests. The arbitrator
made no rulings or findings of
fact whatever. He did not receive evidence or conduct a hearing in
any way relevant to the issues
in the Medscheme arbitration. Nor did
he consider the relevance to the Medscheme arbitration of any
documents sought by NHA. All
he did was to facilitate the performance
by the ITQ witnesses of their obligations under the subpoenas ─
in respect of which,
as I have said, the respondents' attorney had
already advised them to co-operate. And I repeat that performance of
those obligations
would not have entitled NHA to use the documents
produced, because of the Inspection Agreement. In these
circumstances, a finding
that there had been an irregularity
warranting the removal of the arbitrator is not warranted. As O'Regan
ADCJ said in the
Lufuno
Mphaphuli & Associates
case
6
in the context of
s 33(1)
of the
Arbitration Act (and
these remarks are equally apposite in an
application such as the present):
'If courts are too quick to find
fault with the manner in which an arbitration has been conducted, and
too willing to conclude that
the faulty procedure is unfair or
constitutes a gross irregularity within the meaning of
s 33(1)
, the
goals of private arbitration may well be defeated.'
[18] I turn to consider the question
of a reasonable apprehension of bias on the part of the arbitrator.
The applicable test in
this regard is set out by the Constitutional
Court in the following passage in
President
of the RSA v South African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 48:
'The question is whether a
reasonable, objective and informed person would on the correct facts
reasonably apprehend that the Judge
has not [brought] or will not
bring an impartial mind to bear on the adjudication of the case, that
is a mind open to persuasion
by the evidence and the submissions of
counsel.'
On the facts, the respondents rely on
what happened before the meeting of 26 February and also what
happened at the meeting. On
the law, the respondents emphasised
passages in two textbooks. The first is in
Russell
on Arbitration
:
7
'Whilst there is no absolute
rule against the arbitrator having unilateral discussions with one
party only, the practice is . .
. generally to be deprecated and can
certainly lead to removal under this head [viz "Unilateral
Communications"] or for
a reasonable apprehension of bias,
especially if discussions are intentional or frequent, go beyond
administrative matters or are
not promptly disclosed to the other
party.'
The second is in
Law
and Practice of International Commercial Arbitration
by A Redfern and M Hunter:
8
'The requirement of disclosure
is a continuing duty that continues throughout the arbitration. If
new circumstances arise that might
give rise to doubt as to an
arbitrator's independence and/or impartiality, they should be
disclosed immediately to the parties
. . .'
and
'An
independent and impartial arbitrator must not engage in any
ex
parte
communications
with the parties regarding the merits of the case during the course
of the proceedings.'
[19] I have already dealt with what
happened ─ and, more importantly, with what did not happen ─
at the meeting of 26
February. In the present context, the following
dictum in the
SARFU
case
9
requires emphasis:
'The apprehension of the
reasonable person must be assessed in the light of the true facts as
they emerged at the hearing of the
application.'
This passage in the judgment of the Constitutional Court
makes it clear that the test is to be applied ex post facto and with
the
benefit of hindsight. The respondents may well have been able to
satisfy a court, in an urgent application for an interdict before
the
meeting of 26 February, that they had a reasonable apprehension of
harm consisting in the possibility that what might happen
at the
meeting would oblige them to ask for the arbitrator to be removed,
with concomitant delays in the arbitration process and
a waste of the
(obviously considerable) expenses incurred in the proceedings which
had already taken place before him. But after
the meeting, in an
application for the removal of the arbitrator, the true facts must be
examined. With reference to the four points
raised by the respondents
set out in para 15 above, the following is apparent:
(a) The arbitrator refused to consider questions of
relevance.
(b) The ITQ witnesses said that they were prepared to
co-operate and the arbitrator accepted this. Of course there were
allegations
made by NHA (and denied by ITQ) that the witnesses were
not co-operating, but the arbitrator could without question be relied
upon
to distinguish between allegations and facts; and the veracity
of the allegations was not considered by him.
(c) It is common cause that because of the Inspection
Agreement documents which could have been produced by the ITQ
witnesses could
not have been used by NHA in the Medscheme
arbitration without the consent of the respondents, or a directive by
the arbitrator;
and the arbitrator refused to entertain an
application for the production of documents on Ms Bogatie's computer
precisely because
the respondents were not present.
(d) No question of credibility of the ITQ witnesses
arose.
[20] I have no hesitation in concluding that the facts
of what transpired at the meeting of 26 February do not begin to
provide
a basis for a finding that there is a reasonable suspicion
that the arbitrator is biased. On the contrary: the arbitrator was at
pains to protect the interests of the respondents in their absence;
and he was bona fide under the impression that they knew of
the
meeting and the function he was to perform at it.
[21] Finally, I shall deal briefly with the events prior
to the meeting of 26 February. As I have said, the meeting was
arranged
by exchanges of emails not copied by NHA to the respondents'
attorney. But the arbitrator did not know that the respondents had
not been informed of the meeting by NHA. As I have now said
repeatedly, he was under a contrary impression. It was submitted that
the mere fact that the arbitrator accepted the appointment to
arbitrate disputes between NHA and ITQ, is sufficient to disqualify
him from continuing as the arbitrator in the Medscheme arbitration.
That cannot be so. It would mean that if on 26 February the
legal
representatives of NHA and ITQ had arrived at the arbitrator's
chambers and told him that they had resolved their differences,
he
could still be removed from office even though he had acted in
complete good faith ─ an obviously untenable proposition.
[22] There are three issues in relation to costs.
(a) First, three counsel represented NHA in the appeal
and the costs of three counsel were sought. Whilst I appreciate that
the
employment of three counsel might well be justified for purposes
of the arbitration, only two counsel were employed in the court
a quo
and I agree with the submission on behalf of the respondents that
neither the volume of the record nor the issues on appeal
required
three counsel.
(b) Second, NHA asked for an order that the costs in the
court a quo be paid by the respondents on the scale as between
attorney
and client. The submission was that the respondents and
their attorney had attempted to mislead the court as to the extent of
their
knowledge as to what would happen at the meeting of 26 February
before it took place. It seems plain that the respondents and their
attorney were not as frank and forthcoming as they could have been,
and that a higher degree of co-operation, which would probably
have
obviated these proceedings, could legitimately have been expected of
them; but I am not satisfied that a finding of deliberate
misconduct
justifying a punitive costs order can be made in the absence of oral
evidence. Indeed, in the court a quo, and on appeal,
the respondents
asked that the deponents to their affidavits be given an opportunity
to testify if it was considered necessary
to decide the matter based
on criticism of those deponents. It is not desirable for a court to
allow further costs of this nature
to be incurred in order to decide
questions of costs and a court should do the best it can on the
information before it: cf
Jenkins v SA Boiler Makers, Iron &
Steel Workers & Mining Builders Society
1946 WLD 15
at 17-18.
(c) Third, NHA delivered voluminous heads of argument
running to over 180 pages that did not comply with
rule 10(3)(g)
of
this court (inserted on 19 November 2010) which reads:
'The heads of argument of any
appellant or respondent should not exceed 40 pages, unless a judge,
on request, otherwise orders.'
Amended heads of argument complying with the rule were
subsequently delivered on the instructions of the presiding judge.
The respondents
sought an order excluding the costs of the first set
of heads of argument from the costs order in favour of NHA, should
the appeal
succeed. But the taxing master of this court does not
allow a separate fee for heads of argument.
[23] The appeal is allowed with costs, including the
costs of two counsel. The order of the court a quo is set aside and
the following
order substituted:
'The application is dismissed
with costs, including the costs of two counsel.'
_______________
T D CLOETE
JUDGE OF APPEAL
APPEARANCES:
APPELLANTS: J Gautschi SC (with him S Kirk-Cohen SC and
A Bruce-Brand)
Instructed by Eversheds, Johannesburg
Honey Attorneys, Bloemfontein
RESPONDENTS: C H J Badenhorst SC (with him K
Spottiswoode)
Instructed by Werksmans, Johannesburg
Matsepes, Bloemfontein
1
1920
CPD 154.
2
2
Searle 227
at 229
3
Eg
Naidoo v Estate Mahomed & others
1951 (1) SA 915
(N) at 920D-F referring to
Grant
Brothers v Harsant
1931 NPD 477
and
Burns & Co v Burne
1922
NPD 461.
4
Eg
Sapiero & another v Lipschitz & others
1920 CPD 483.
5
Croll
qq Kerr v Brehm
2 Searle 227
at 229.
6
Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews
2009
(4) SA 529
(CC) para 236.
7
23
ed (2007) by D St J Sutton para 7-118.
8
4
ed (2004) para 4-61 and para 4-66.
9
President
of the RSA v South African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) para 45.