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[2017] ZALMPPHC 27
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Chemfit Fine Chemicals (Pty) Ltd t.a SA Premix v Maake and Others (5772/2016) [2017] ZALMPPHC 27 (1 September 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
CASE NO: 5772/2016
1/9/2017
REPORTABLE
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
CHEMFIT
FINE CHEMICALS (PTY)
LTD
APPLICANT
trading
as SA PREMIX
and
MOKHUTAMANE
KENNETH MAAKE
FIRST
RESPONDENT
(Identity
number: […])
RAMAREDI
MARTHA MPHAHLELE
SECOND
RESPONDENT
(Identity
number: […])
MICHAEL
JOHN
NUNES
THIRD
RESPONDENT
(Identity
number: […])
KLEINBOOI
MUZIWEMPI TWALA
FOURTH
RESPONDENT
(Identity
number: […])
CHRISTIAAN
JACOBUS ALBERTUS KIRSTEIN
FIFTH
RESPONDENT
(Identity
number: […])
JUDGMENT
M.G
PHATUDI J
[1].
A.
INTRODUCTION:
1.1.
In
these proceedings, the Applicant initially sought relief against the
First to the Fifth Respondents ( “the respondents”)
in
the following terms:-
(a)
An
Order declaring the Respondents delinquent directors pursuant to
the provisions of
Section 162(5)(c)(iv)(bb) of the Companies Act
[1]
(“the Act”)
and,
(b)
That,
the Respondents be personally held responsible for the debts
owing by a certain
business entity described as Mike’s Chicken (Proprietory)
Limited (under Supervision) (“Mike’s
Chicken”) to
the Applicant pursuant to the provisions of Section 424(1) of the old
Companies Act 61 of 1973, as amended,
1.2. In its
Practice Note dated and served on 10 April 2017, the Applicant’s
counsel emphatically abandoned prayers 1.1 and
1.2 of the notice of
motion referred to in (a) and (b), above. In consequence, the
Applicant only persists in claiming alternative
relief couched in
prayers 1.3 to 1.5 of its notice of motion, which in essence, forms
the nucleus of this application.
1.3.
The
alternative claim, which is now the heartbeat of the Applicant’s
claim, seeks relief mainly that the Respondents be ordered
to pay to
the Applicant, damages pursuant to the provisions of Section 218(2)
of the Act, in the amount of R3 126 334-41
jointly and
severally, the one paying, the others absolved, interest at the rate
of 10.25% per annum
a
tempore morae
to
date of final payment, and costs of suit on a punitive scale.
1.4.
The
Application is opposed on a variety of grounds including certain
points
in
limine
,
which I shall consider in detail herein.
1.5.
The
provisions of Section 218(2) of the Act read as follows:-
Section
218(2):
“
Any
person who contravenes any provision of this Act is liable to any
other person for any loss or damage suffered by that person
as a
result of that contravention .”
1.6.
I
shall revert to the language employed in subsection 2 of Section 218
and its interpretation later in my judgment.
B.
FACTUAL
MATRIX:
[2]. The Applicant is a business
entity that conducts trading as, inter alia, a supplier of medicated
and nutritional feed additives.
The Respondents are alleged to be
individual directors of a certain business entity known as Mike’s
Chicken, also registered
as a trading company under the company laws
of the land.
(Registration
number: 1982/006172/07). This company according to its profile data
(“IPC”) was incorporated on 29 June
1982. Mike’s
Chicken is involved in poultry Farming Operation in Plot 129
Doornbuilt, Polokwane, Limpopo Province.
[3].
Mike’s Chicken, on 04 July 2016, was placed under business
rescue under the supervision of Messrs Pieter Hendrik Strydom
and
Thomas George Nell.
[4]. Mike’s Chicken, which as I
have already shown, is an autonomous business legal entity, with its
own separateness, applied
for credit facilities from the Applicant on
09
MAY 2014, the credit limit thereof being an amount of R1.5 million
payable thirty (30) days after the date of invoice or statement.
The
material terms and conditions thereof are contained in Annexure “FA
5
”
to the founding affidavit (“FA”).
[5]. From the face of this document,
(credit application form) it appears that Messrs. Michael John Nunes
and Christiaan Jacobus
Albertus Kirsten, the latter having resigned
on 29 March 2016, were then the shareholders or members of Mike’s
Chicken and
also the parties who themselves applied on its behalf for
the credit facilities.
I
add to state, though orbiter that the present directors were, by the
time the credit facility was applied for also already the
directors
of Mike’s Chicken.
[6]. Mike’s Chicken again on 12
November 2014 sought an increase of their credit facility to R4
million on the usual terms
and conditions as the previous credit
facility. Its indebtedness then escalated to an amount of
R3 126 334-41 as reflected
in Annexure “FA
7
”,
being a computer spread-sheet of the capital debt due owing and
payable by Mike’s Chicken.
From
October 2015 and despite compliance with its contractual obligations,
the Applicant experienced difficulties with Mike’s
Chicken for
its inability to honour payments of the rendered invoices. As matters
stood, Mike’s Chicken was and as October
2015 trading under
insolvent circumstances in that it was allegedly unable to settle its
debts as and when they became due and
payable.
[7].
The reality of the status of its illiquidity became even more
apparent when on 27 March 2016, in a compromise letter to the
Applicant, Mike’s Chicken offered to settle the capital debt
due by it on R50 000-00 weekly installments effective
from
04 April 2016, the objective being to wipe out the debt by the end of
May 2016.
[8].
Against the foregoing backdrop, it is common cause that Mike’s
Chicken has been placed under supervision on 04 July 2016.
On 18 July
2016 at the first meeting of creditors in the business rescue
proceedings, Mr Nell, one of the appointed business rescue
practitioners, addressed the creditors with regard to the contents of
a letter dated 04 July 2016 ( Annexure “FA
9
”)
written by the Third Respondent. The contents of Annexure “FA
9
”
referred to, project a picture that Mike’s Chicken’s
trading solvency has been compromised due to an ever increasing
debt
accumulation. From this document, it appears that Mike’s
Chicken has been in a financial distress since 2014.
[9].
The aforegoing observation stems from the resolution of the board of
directors of Mike’s Chicken dated 30 June 2016 in
support of a
call to have it placed under Voluntary Business Rescue as defined in
Section 129 of the Act. (Annexure “FA
4
”)
[2]
.
That was when Messrs. Strydom and Nell were appointed as its Business
Rescue Practitioners (“practitioners”). It was
contended
by the Applicant that it was never advised by Mike’s Chicken of
its “financial distress” as it was
obliged to disclose in
clause 13 of its credit facility application.
[10].
The Applicant contended further that had it known of Mike’s
Chicken’s “financial distress” prior to
its
extension of application for a credit facility, it would not have
granted its extension in the circumstances.
[11].
The Applicant further submitted that in the premises it has incurred
damages in the amount of R3 126 334-41 claimed
in the
notice of motion, being the amount said to be owing, due and payable
by Mike’s Chicken.
[12].
It is the aforegoing contention that triggered opposition by the
Respondents of this claim. The Respondent’s bone of
contention
primarily rests on two pillars, First, and raised as a
point
in limine,
was that of a non-joinder of both Mike’s Chicken (Pty) Ltd, and
its appointed Business Rescue Practitioner/s. Second, is
the late
filing of applicant’s Replying Affidavit and non-condonation.
[13].
The crisp issue therefore is whether the technical preliminary legal
point of non-joinder raised in the present application
is fatal to
the proceedings, and thus leads to dismissal thereof.
[14]. The importance of the
non-joinder of Mike’s Chicken in the present application
as contended for by the Respondents
allegedly finds force or
application within the ambit of the provisions of Section
141(2)(c)(ii) of the 2008 Companies’ Act
which provides that:-
Section
141(2)(c):
(1)………………….
(2) “ If
at anytime during business rescue proceedings, the practitioner
concludes
that-
(c)
“
there
is evidence, in the dealings of the company before the business
rescue proceedings began, of “-
(ii)
“
reckless
trading, fraud or other contravention of any law relating to the
company, the practitioner must-
(aa) “
forward the evidence to the appropriate authority for further
investigation and possible prosecution…”
[15].
A closer scrutiny of the provisions, which mainly govern
investigations of affairs of a company, seems to me that it merely
enjoins the business rescue practitioner to “forward the
evidence” if any of alleged reckless trading, fraud or other
contravention of any law for further investigation and possible
prosecution.
[16]. The obligations as set out in
Section 141(2) of the Act take root once a business rescue
practitioner has been appointed to
assume full management control of
the company in substitution for its board of directors and
pre-existing management.
Should
he/she in the course of the performance of his/her duties and
the powers set apart in the Act, find any evidence in
the dealings of
the company prior to the business rescue proceedings commenced, in
the manner contemplated in Section 141(2)( c)(ii)
(aa), all what is
required to do is to refer such evidence of impropriety to the
relevant authorities for further investigation
and where appropriate,
for prosecution.
[17].
These statutory powers as conferred by Section140 on the
practitioner, raises the question whether a business rescue
practitioner
(“BRP”) render him/her a necessary party
with direct and substantial interest in the pending litigation
involving the
directors/ shareholders of the company vis-à-vis
third party creditors. The answers to this question should in my view
be
in the negative. The BRP other than the statutory obligations
referred to, does not acquire corresponding legal interest in the
outcome of a
lis
between the directors and the company’s creditors. There is in
this instance no relief sought against either Mike’s
Chicken or
the BRP appointed for it.
[18].
On 30 June 2016, the directors of Mike’s Chicken resolved to
commence business rescue proceedings as contemplated in
Section 129
of the Act. Pursuant thereto, on 04 July 2016, a written notice to
“all affected persons” was issued, notifying
them of the
placement of the company under supervision occasioned by business
rescue proceedings.
[19]. The legal consequences and
effect of such business rescue proceedings having been initiated, in
essence placed a general moratorium
on legal proceedings against
Mike’s Chicken, regard being had to the stipulations in Section
133(1) of the Act which provides
that:-
Section
133(1):
“
During
business rescue proceedings, no legal proceedings, including
enforcement action, against the company, or in relation to any
property belonging to the company, or lawfully in its possession, may
be commenced or proceeded with in any forum except …
(a)…………….
(b) “with the
leave of court and in accordance with any terms the court considers
suitable”…
(c)……………..
(d)……………..
(e)……………..
[20].
With the legal bar in the form of the moratorium introduced by
Section 133(1)(a) –(e), it follows that it would have
been
ludicrous if not absurd for the Applicants to have joined Mike’s
Chicken in the application, as the business rescue
application was
already in existence prior to the launching of the application. To do
so would have been to engage in a costly
and protracted legal
exercise, seeking, for instance, the written consent of the BRP,
leave of court, set-off if necessary, and
related exceptions so as to
cite the company as a co-respondent in the proceedings.
[21]. The crisp issue for inquiry in
this application really is whether the Respondents
“
contravene”
any provision/s of the Act and if so, is he/she liable to any other
person for any loss or damage suffered by
the aggrieved party for the
infringement. This is what to my mind personal liability of the
company directors is all about.
It is this alleged “contravention”
that one must consider whether is it Mike’s Chicken as a
separate juristic
person or the natural
personae iuris
which
are organs of control and management of the company that are civilly
liable to the Applicant.
The answer in my view, should be in
the positive, that, it is the latter who should incur personal
liability. This is particularly
so that Section 133(1)(a)-(e )
contrains the Applicants to proceed against Mike’s chicken
(under supervision) as a joined
party in the matter.
In
consequence, I find that because there is no
lis
between the Applicant and Mike’s chicken which, in any event
there is no evidence of reckless trading or fraud perpetrated
by it,
and further that no relief is thus sought against it,
[3]
the issue of non-joinder falls away.
[22]. The next consideration in order
to impute the alleged “contravention” of any provision
against
the Respondents, is the nature of the contravention within the ambit
of Section 218(2) of the Act.
[23]. The new Companies Act ( Act 71
of 2008) introduced a few statutory prohibitions and otherwise
offensive conduct by either
the Company or its constituent members or
directors. A classic example are the provisions of Section 22(1) (a)
and (b) which provides
that:-
Section
22(1):-
“
A company
must not-
(a)
carry
on its business recklessly, with gross negligence, with intent to
defraud any person or for any fraudulent purpose, or
(b)
trade
under insolvent circumstances”
[24] On a semblance of the facts in
this application and taking into account the trading history by the
company (Mike’s chicken
“under supervision”) it
follows that the directors on its behalf or its agents, have since
approximately May 2014 been
trading under “insolvent
circumstances”. That, notwithstanding, the directors on or
about 12 November 2014, despite
being in financial distress, went on
to seek to increase its already strained liquidity by borrowing
against their credit facility
an amount of R4 million, which swelled
their indebtedness to
the Applicant.
In
doing so, needless to say, the company did so through its directors
who in dealing with a third party (Applicant) did so as its
agents,
for a company cannot act on its own unassisted by its agents.
[25].
It is contraventions of these or other nature that invariably
attracts personal liability of the directors within the meaning
and
purport of Section 218(2) and ancillary provisions.
[26].
It was submitted on behalf of the Respondents that the Applicants
failed to prove that it has suffered any damage for purposes
of
Section 218(2). This view is based on the submission that damage can
only mean any amount not recovered from Mike’s chicken
after
termination of the Business Rescue, and that this could purely be a
matter of conjucture. Although this submission
may at face
value sound valid, I am of the view that for present purposes it is
misguided, for the reasons that will follow.
[27]. Clearly, the Respondents as
directors of Mike’s chicken, are indebted to the Applicant in
the amount claimed in the
application and as per credit facility
which is due and payable as a principal capital debt. It was not
Mike’s chicken, a
juristic person autonomous in its legal
status, that contravene the provisions of the Act by trading in
“insolvent circumstances”
projected by the Applicant, but
squarely its directors.
C.
GENERAL LEGAL PROVISIONS
CREATING LIABILITY
[28].
I have already intimated [para: 23] that the new Companies Act
introduced a few measures imputing general or personal liability
of
either the company
per
se
or its directors. I propose to refer briefly to each relevant
provision to illustrate the point and deal with the legal
implications
thereof.
28.1. Section 22(1)
prohibits a company to carry out its business recklessly, with
gross negligence, with intent to defraud
any person or for fraudulent
purpose. A company is also forbidden to trade under insolvent
circumstances.
[4]
28.2. In addition, Section 77 creates
liability of the director/s relevant to the common law
principles relating to breach
of fiduciary duties. The liability is
for any
loss
,
damage
or
costs
sustained by the
company. In this regard the liability of the directors arises in the
event of an infringement of the common law
principles founded in a
breach of fiduciary obligations as a result of which the company(the
victim) incurs “any loss, damages
or costs” (own
emphasis). In this context Section 77 (2) and 77 (3) provides :-
Section
77(2):
“
A director
of a company may be held liable-
(a)
in
accordance with the principles of the common law relating to breach
of a fiduciary
duty, for any loss, damages or costs sustained by a company as a
consequence of any breach by the director of a duty
contemplated in
Section 75, 76(2) or 76(3)(a) or (b) ….” Section 77(b)
which is similar to Section 77(a), however,
creates liability based
on delict.
Section 77(3):
A director of a company is liable for
any loss, damages or costs sustained by the company as a direct or
indirect consequence of
the director having:-
(a)…………………………….
(b) acquiesced in
the carrying on of the company’s business despite knowing
that it was being conducted in a manner
prohibited by Section 22(1).”
28.3. In it,
Section 77(1) to 77(10) broadly viewed, imposes far reaching
liabilities for “contravention” of the Act
on the
directors of a company, who clearly act on its behalf as its
functionaries or organs of the company. Section 77(3)(a) in
addition,
strictly speaking, places liability on a director/s who acted in the
name of the company, signed anything on behalf of
the company or
purported to bind the company, despite knowing that the director
lacked authority to do so. Here the rules of agency
find application.
28.4. Section 214(1)-214(3) also
imposes liability on a “party” (which includes a
director) for falsification of any
accounting records, reckless and
non-compliance. Of cardinal importance are the provisions of Section
214(1)(c) which states:-
Section 214
(1)(c):
“
A person is
guilty of an offence if the person –
(c). “was
knowingly a party to –
(i). “conduct
prohibited by Section 22(1)”….. These provisions are in
my opinion wide enough to impose liability
to any party, including a
director of a company, who “contravenes” any provision of
the Act. In this instance conduct
prohibited by Section 22(1),
without derogating the provisions of other prohibitions within
the four corners of the Act,
covers “trading under insolvent
circumstances” which gives rise to either personal liability
and/or criminal sanctions
regard being had to the general provisions
of Section 214 of the Act.
28.5. Furthermore, Regulation 123(5)
of the regulations promulgated under the Act (Regulations of 2011)
provides:
“
A company
whose board is required in terms of Section 129(7) to deliver a
notice to affected persons advising that it has not resolved
to
commence business rescue proceedings, must either –
(a). deliver a
notice in Form CoR 123.3 to each affected person in
accordance with
regulation 7, or
(b). inform each affected person of
the availability of a copy of the
Notice, in the
manner contemplated in Section 6(11)(b) (ii) and regulation 6”.
The notice referred to in the regulation is
one of a decision by the
direction not to begin Business Rescue.
It
follows that failure to issue the notice in the manner stated and the
directors, contrary to the required notice, voluntarily
places itself
under business rescue and supervision as the Respondents did on 04
July 2016, this conduct if I am correct, clearly
offends against the
provisions not only of Section 214(c) (i), but also in particular,
regulations under the Act.
[29]. Instrinsically connected to
these offences, is the general civil liability created by the
Provisions
of Section 218(2) which imposes liability once, again, to “any
person” who “contravenes” any
provisions of the
Act. The nature of liability is one for “any loss or damage”
suffered by the aggrieved party arising
from the contravention.
[5]
[30]. Properly interpreted, the civil
liability made available under Section 218(2) brings
about
liability
sui
generis
against “any person” encompassing the directors,
shareholders and any creditor to file a suit against any person
who
“contravenes” any provision of the Act for any loss or
damage incurred on account of the contravention . The word
“contravene/s” though not defined, and when used
juridically, implies violation or conduct repugnant to any provision
under the Act and the regulations made thereunder. Similarly, it may
even attract liability for any conduct that omits by commission
or
non-compliance with a provision of the Act or the regulation. Such
liability ensues as a result of any contravention, and therefore
such
ordinary common law requirements for liability as fault or
wrongfulness are dispensed with.
[31].
As to whether in matters like this there has been sufficiency of
causality,
Nugent
JA
stated as follows in
Minister
of Safety and Security v Van Duivenboden
[6]
“
A
Plaintiff is not required to establish the causal link with
certainty, but only to establish that the
wrongful
conduct was probably a cause of the loss,
which calls for a sensible retrospective analysis of what would
probably have occurred, based upon the evidence and what can be
expected to occur in the ordinary course of human affairs rather than
an exercise in metaphysis” (own emphasis).
[32].
Given the afore stated passage, it cannot reasonably be expected of
the applicant or a plaintiff to formulate a specific contravention
and in turn causally link it meticulously with exactitude the “loss
or damage” actually suffered. It would be sufficient
in my
view, if the applicant could establish that a “loss or damage”
has been sustained “
as
a result of that contravention
”
contemplated in Section 218(2).
[33]. To put cusion of Section 218(2),
Section 218(3) goes on to provide:-
Section
218(3):
“
The
provisions of this section do not affect the right to
any
remedy
that a person may otherwise have. (own underlining)
Any
remedy would, to my mind, include a claim in torts for civil damages
if established by the evidence and on a balance of probabilities.
[34].
In general to found personal liability of a director it is necessary
that “any contravention” of the provisions
of the Act
must have been present.
[35].
I find refuge also from the dictum of
Du
Plessis AJ in Rabinowitz v Van Graan and Others
[7]
at
Paragraph 21 where the Learned Acting Judge stated:-
“…
..
Bearing in mind that the Act specifically contemplates that the
business and affairs of a company are to be managed by or under
the
direction of its board, (Section 66(1)) it is hard to conceive of any
basis upon which the legislature intended to prevent
a company from
acting in the manner provided for in section 22, but did not intend
to prevent the directors responsible for the
management of the
company from acting in that manner. The court went on to state in
paragraph 22 that:
“
I agree with
these submissions and find that a third party can hold a director
personally liable in terms of the Act for acquiescing
in or knowing
about conduct that falls within the ambit of section 22 thereof.”
I
fully subscribe to the sentiment echoed by the Learned Acting Judge
in this regard.
[36]. A further view I take,
considerable reliance being based on instructive authority is
that even if the Applicant did not
specifically plead in its founding affidavit its claim on other
provisions except Section 218(2)
to found liability for alleged loss
or damage incurred as a result of contravention of any provision of
the Act, it is apparent
on a holistic reading of its papers, that
sufficient facts that show contravention of sections 22, 77(3)(b),
214 and 218(2) of
the Act were alleged and established that
constituted contravention of any of those provisions.
Any
conduct that contravenes a provision of the Act, catapults any
person, including the directors to personal liability.
[37]. The aforegoing proposition finds
support from the extract of the judgment of
O’
Regan J in Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs
[8]
,
where
the Learned Judge remarked:-
“
Where a litigant
relies on a statutory provision, it is not necessary to specify it,
but it must be clear from the facts alleged
by the litigant
that the section is relevant and operative.”
[38].
That said, the applicant having relied on section 218(2) as an
alternative claim in its Notice of Motion, (Prayer 1.3) I am
of the
firm view that its claim ought to succeed since section 218(2) should
be seen as a general enabling remedy.
[39].
In addition to the above stated principles as laid down by apax
courts, the court in the judgment of
Blue
Farm Ltd v Rapitrade 6 (Pty) Ltd and Others
[9]
,
Mantame J
held
at Paragraph 31 that:
“
In
my opinion, the approach to be adopted when interpreting this section
is narrow approach because of the ambiguity of the section.
This
court can only interpret this section to mean that directors of a
company are liable for
loss,
damages
or
costs
sustained
by the company as a direct or indirect consequence of the director
having acquiesced in the carrying on of the company’s
business
despite knowing that such conduct is prohibited by section 22(1)….for
instance, if the director is liable for the
loss, damages or costs
sustained
by the company
– who would ordinarily enforce the civil claim against the
directors, as that is not provided for the in Act. This approach
would create a
lacuna
.”
I align myself with the principle
outlined by the court, for to interprete the section too widely, and
adopt a wider meaning, would
lead to a manifest absurdity which would
not have been intended by the lawgiver.
D.
CONDONATION
[40]. Lastly, but not least, there
remains the application sought for condonation for late filing of
Applicant’s replying
affidavit. It is generally trite that the
court enjoy a judicial discretion whether to grant condonation for
non-compliance with
any uniform rule of court, provided good cause is
shown, regard being had to the degree of lateness, the reasons for
the delay,
the reasonableness of non-compliance, the importance of
the real issues in dispute, and above all, whether there are
reasonable
prospects of success on the matter under consideration,
which is the high watermark for the court to exercise its discretion
properly.
See
:
Melane
v Santam Insurance 1962(4) SA 531 (A),
and
Madinda
v Minister of Safety and Security 2008(4) SA 312 (SCA).
Having read the applicants’
replying affidavit and the issues contained therein, I am of the
opinion that the interests of
justice require that condonation be
granted. The primary consideration is that the main issues between
the parties really reside
within the parameters of the founding and
answering affidavits. The rest are peripheral, not causing any
prejudice to the
respondents, either. The condonation is therefore
granted.
E. COSTS
[41].
Having said that, a word on costs. It is trite that the award of
costs, which again is discretionary on the court hearing
the dispute,
usually in civil proceedings rests primarily upon the object of
squaring up a party for costs to which that party
was wrongly put.
That underpins the basic premise that a successful party should be
awarded its costs, if the other party in opposition
contest the
claim, thereby placing itself is a perilous collision course. There
is, however, no case made out for the punitive
costs sought against
the Respondents.
[42].
In the result, I make the following order:-
(a)
The
application succeeds.
(b)
The
First to Fifth Respondents, jointly and severally, the one paying the
others to be absolved, are ordered to pay the Applicant
damages
pursuant to the provisions of
Section
218(2) of Act 71 of 2008 (
Companies Act, 71 of 2008
)
,
in the amount of
R3 126 334-41.
(c)
Interest
thereon at the rate of
10.25%
per annum
a
temporae morae
to date of find payment.
(d)
Party
and party costs are awarded to the Applicants including the costs for
employment of Counsel.
_________________________
M
G PHATUDI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
Representations:
1.
Counsel
for the Applicant : Adv. J Van Rooyen
Instructed by : Donn Bruwer
c/o DDKK Attorneys
Polokwane
2.
Counsel
for the Respondents : Adv. G. Diamond
Instructed by : Kirk Twine
Attorneys
Polokwane
3.
Date
heard : 07 June 2017
4.
Date
delivered : 01September 2017
[1]
Act 71 of 2008, as
amended.
[2]
Consolidated
Paginated pages 42-43, “FA”.
[3]
Gordon v
Department of Health, KZN 2008(6) SA 522[SCA] PARA [9] & [11].
[4]
The full
provisions of Section 22(1)(a) and (b) are cited in para: 23 of
judgment.
[5]
The full
provisions of Section 218(2) are cited in Para: 1.5, supra.
[6]
2002(6) SA 431 (
SCA) at 449 E-F.
[7]
2013(5) SA 315 at
320 G – I.
[8]
2004(4) SA 490
(CC) at 507 C-D. See also Fundstrust (Pty) Ltd (in Liquidation) v
Van Deventer 1997(1) SA 710(A).
[9]
Case no:
22288/2014, (WCD) delivered on 01.04.2016, Marked “Reportable”.