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[2017] ZAKZPHC 2
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Le Grange and Another v Le Grange Family Trust and Others (7021/2016) [2017] ZAKZPHC 2 (7 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 7021/2016
In the matter between:
LOUIS
LE
GRANGE
FIRST
APPLICANT
BEULAH
LE
GRANGE SECOND
APPLICANT
and
THE LOUIS AND ANDRE LE
GRANGE
FAMILY TRUST NO.
1562/95/PMB FIRST
RESPONDENT
FRACOIS
LE GRANGE
NOMINO OFFICIO
SECOND
RESPONDENT
JACQUELINE
LE GRANGE
NOMINO OFFICIO
THIRD
RESPONDENT
HENDRIK MENTZ
NOMINO
OFFICIO
FOURTH
RESPONDENT
THE MASTER OF THE HIGH
COURT
PIETERMARITZBURG FIFTH
RESPONDENT
ORDER
The following order is
granted:
a.
The
first respondent is ordered to pay the first and second applicants
jointly the following after deducting payments already made
to the
applicants or on their behalf:
i.
a
sum of R15 000.00 per month in respect of their living costs
from the date of 30 June 2012 until the death of the surviving
of the
first and second applicants;
ii.
an
annual escalation of 10% on the sum of R15 000.00 until the
death of both the first and second applicants calculated from
31
January 2013;
b.
Interest
a
tempore morae
on all late payments as follows:
i.
at
the rate of 15.50% per annum on all amounts which were due at the end
of each month from the date of the said agreement being
19 November
2011 to 31 July 2014;
ii.
thereafter
from 1 August 2014 up to and including the 23 February 2016 at the
rate of 9% per annum;
iii.
and
thereafter from 1 March 2016 at a rate of 10.25% per annum.
c.
Cost
of suit.
d.
The
counter-application is dismissed with costs.
JUDGMENT
D
PILLAY J
[1]
The
applicants Louis Le Grange and Beulah Le Grange seek an order against
the first respondent, The Louis and Andre Le Grange Family
Trust to
pay them the sum of R15 000 per month for their living costs,
interests and ancillary relief. Francois Le Grange,
Jacqueline Le
Grange and Hendrik Mentz are the second, third and fourth respondents
cited in their capacities as trustees of the
first respondent. The
Master is the fifth respondent. The first to fourth respondents
oppose the application. They counter-applied
for a declarator that a
variation agreement concluded by the first to third respondents
varied the settlement agreement concluded
under case number 1305/11
in November 2011. At the outset the applicants challenge the
first to fourth respondents’
standing to oppose the application
and to launch the counter-application.
[2]
The
first respondent has three trustees. Two of them, the second and
third respondents, resolved at a meeting of trustees held on
26 July
2016 to oppose the application, to launch a counter-application for a
declarator and to authorise the third respondent
to instruct
attorneys and counsel and to sign all documentation necessary for the
litigation. The fourth respondent abstained from
voting and signing
the resolution.
[3]
By
notice in terms of rule 7(1) of the Supreme Court Rules the
applicants challenged the authority of the attorneys Tatham Wilkes
Incorporated to act for the first to fourth respondents.
The
latter replied to the rule 7(1) notice on 7 September 2016 by
delivering a special power of attorney dated 31 August 2016, which
drew on the mandate from the resolution of 26 July 2016, and which
was signed by the second and third respondents.
[4]
Out
of caution the first to fourth respondents delivered a further reply
to the rule 7(1) notice on 12 January 2017. They attached
the
extracts of minutes of a meeting held at Dundee on 11 January 2017 by
the second and third respondents and the resolution they
took at that
meeting. The extract records that the resolution purportedly taken on
26 July 2016 was in fact taken on 22 July and
the respondents cannot
account for how the error in the date occurred. Nothing turns on this
error as the date is immaterial. Furthermore,
neither the substance
of the resolution nor the abstention of the fourth respondent from
voting is in dispute.
[5]
The
extract further records that on 9 January 2017 the fourth respondent
was invited to ratify steps taken by the second and third
respondents
pursuant to the resolution of 22 July 2016. Although the fourth
respondent was not available to meet to discuss the
resolution he
indicated that he would nevertheless abstain from voting on matters
concerning this case. The second and third respondents
proceeded to
meet in the absence of the fourth respondent. They resolved to ratify
the steps that they and their counsel and attorneys
took to give
effect to the resolution of 22 July 2016.
[6]
Against
this factual background the applicants persist that neither first
respondent nor its attorneys have the authority to act
in these
proceedings. The bases of the applicants’ objection to standing
are:
a.
The
fourth respondent was not notified at all or timeously of meetings,
agendas and resolutions.
b.
No
properly constituted meetings were held to adopt the resolutions.
c.
The
fourth respondent abstained and did not vote for the resolutions.
d.
A
majority vote is not a decision of the first respondent unless it is
supported by a resolution.
e.
All
trustees must sign the resolutions of the first respondent to signal
externally their obligation to act jointly as custodial
owners of the
first respondent’s property.
In
the circumstances the resolutions signed by the second and third
respondents only without having convened a meeting of the trustees
is
invalid.
The
first to fourth respondents rely on specific clauses of the Trust
Deed. Clause 5.2 allows for a minimum of two and a maximum
of five
trustees. Clause 8.2 requires resolutions to be supported by majority
vote. Clause 9 prescribes the usual powers of the
trustees, in
particular the power to institute and defend legal actions. Clause
24.1(b) provides for the formalities of recording
resolutions passed
at meetings as prescribed in s 204 of the Companies Act 61 of 1973,
the subsequent amendment of which the respondents
submit is
s 73
of
the
Companies Act 71 of 2008
. Notwithstanding these formalities,
clause 24.2 recognises that a ‘written resolution signed by all
the trustees has the
same legal implication as a resolution passed at
a meeting of trustees.’ Clause 24.4 typically enables the
trustees to authorise
one or more of their number to sign all
documents for transacting the business of the trust. Additionally,
‘
[a]ny
resolution certified by a trustee to be a true extract from the
minutes of a resolution passed by all the trustees shall in
all
respect have the same legal force as a resolution signed by all the
trustees.’
[7]
The
point of departure between the parties is not what the principles
relevant to standing of the respondents are but how they apply
to the
facts in this case. I deal first with the general principles as
applied in other cases before turning to their application
in this
case.
[8]
In
Land
and Agricultural Bank of South Africa
v
Parker
and others
2005 (2) SA 77
(SCA) the Supreme Court of Appeal reaffirmed two
principles of the common law pertaining to trusts:
‘
The first is
that a trust does not have legal personality. The second is that, in
the absence of authorisation in the trust deed,
trustees must act
jointly.’
[1]
Both
principles rest on ‘the trust deed, which is the trust’s
constitutive charter. Outside its provisions the trust
estate cannot
be bound’.
[2]
[9]
Parker
also
emphasises that ‘the trustees must act jointly if the trust
estate is to be bound by their acts,’ ‘in the
absence of
contrary provisions in the trust deed’,
[3]
and ‘unless authorised otherwise’.
[4]
The reason for this rule arises from the nature of the trustees’
joint ownership of the trust property. Co-owners must act
jointly;
trustees manage trust assets in a representative capacity must also
act jointly.
[5]
[10]
Acting
jointly means that the trustees must participate in the decisions
taken on behalf of the trust. Participation usually involves
meetings
or consultations amongst trustees, negotiating or mediating contested
decisions and ultimately in the absence of consensus
or resolution
contested issues are determined by a vote. Trustees may participate
in a vote in three ways: vote for or against
a motion or abstain from
voting altogether. All three forms of participation in the
decision-making are self-conscious and deliberative
actions.
[11]
Participation
is elicited after proper notice to the trustees. A trustee who has no
knowledge of decisions taken or to be taken
on behalf of a trust and
consequently does not vote in any decision, cannot be said to have
participated in decision-making on
behalf of that trust. Consequently
even if the majority of trustees arrive at a decision but without the
participation of all the
trustees, unless the trust deed authorises
otherwise, the ensuing decision albeit a decision of the majority is
not a decision
on behalf of the trust.
[6]
The decision purportedly taken by two of the three trustees
required in terms of the trust deed in
Land
and Agricultural Bank of South Africa
v
Parker
and Others
was invalid for this reason. The third trustee had not been consulted
or invited to participate in any process in which ‘the
majority
will was exercised’.
[7]
[12]
Just
as in
Parker
one
of the three trustees in
Van
der Merwe
had
not been notified or given any opportunity to participate in the
decision of the trust to sell fixed property.
[8]
Even though the trust deed which provided that majority decisions
would bind the dissenting or absent trustees it could not avoid
the
application of the rule that the ‘minority is obliged to act
jointly with the other trustees in executing the resolution
adopted
by the majority’.
[9]
This
was said in the context of a dispute concerning the transfer of
immovable property.
[13]
The
obligation to act jointly does not imply that the minority has to
agree with the majority or that votes have to be unanimous
for any
decision to be binding on the trust.
Van
der Merwe
confirms
that
‘
unanimity amongst the trustees is not
required in order for decisions to be made effectively in respect of
transactions concerning
the administration of the trust and the
dealing with its assets in terms of the powers conferred on the
trustees in terms of clause
6 of the trust deed. It is sufficient if
the relevant decision enjoys the support of a majority.’
[10]
[14]
Dissenting
trustees must subject themselves to the democratic vote of the
majority.
[11]
Trustees have to
present a united front irrespective of internal descent. Such ‘unity
of purpose and function’ must
be manifest publicly usually by a
written resolution signed by all the trustees.
[12]
For
‘
the
external sphere’
Van
der Merwe
required
‘resolutions which have to be supported by its full complement
of the trust body.’
Steyn
continues:
‘
A quorate
meeting of trustees may perfectly take a valid decision on the
internal front. However, such decision will remain only
a decision
and not a valid resolution unless it also enjoys the support of an
absent trustee(s) in whose absent (sic) it was taken.’
(sic)
[13]
And
‘
A majority
of trustees in office may form a quorum internally at a trust
meeting, but can still not externally bind a trust by acting
together. These are two features of the decision that are
instructive. It is not the majority vote, but rather the resolution
by the entire complement, which binds a trust estate. A trust
operates on resolutions and not votes.’
[14]
[15]
Van
der Merwe
was
a dispute about an immovable property transaction. Its insistence on
a resolution to communicate the decision of the trust must
be seen in
that context. I do not read
Van
der Merwe
to be inflexible about the form by which decisions of trust are
communicated publicly unless as in the case of a property transaction
a resolution of the trust is prescribed by law. Otherwise any other
unambiguous, accessible form of communicating decisions of
the trust
possible in the information age will do.
[16]
Regarding
meetings
Van
der Merwe
applying
Parker
elaborated
on how the trustees should take decisions. The court acknowledged
that
‘
A majority decision is competent only if
adopted by a majority of the trustees present at a quorate meeting of
trustees. Whether
such a 'meeting' would need to be one at which the
trustees attending were physically present together, or whether the
'meeting'
could be held in some alternative form, is a question which
it is not necessary to decide. It is evident, however, that in order
to qualify as 'a meeting', all the trustees in office would have to
receive notice thereof so as to be able to participate in it
if they
so wished.’
[15]
Although the court in
that case did not decide on the meaning of ‘meeting’ the
trust deed did provide for resolutions
to be contained in more than
one document signed by the trustees.
[17]
The
court in
Steyn
adopted
a similar approach when it said:
‘
The
two [trustees] could theoretically have taken the decision to sue the
respondent on behalf of the trust provided the third applicant
was
consulted in advance about such matter. Whether she was for or
against such a decision would not have been an important
matter, if
only she was properly consulted but outvoted by two to one …
’
[16]
[18]
The
issue in that case was also whether that trust was properly
authorised by the trustee to institute those proceedings.
[17]
The third trustee was not consulted in that case, consequently the
decision albeit a vote by the majority of two trustees did not
amount
to proper authorisation for the trustees to institute
proceedings.
[18]
[19]
The
court also acknowledged that participation as trustee need not
necessarily be by the physical presence of the trustee at the
meeting.
[19]
Physical presence
at meetings is not required at all times but participation and input
in the making of all decisions is essential.
[20]
All that is required is that all trustees who are required to
participate in the decision have an opportunity to do so and they
would be bound by the decision of the majority participating in such
a decision.
[20]
Turning
to the application of the above precedents to this case, the fourth
respondent was aware of these proceedings when the application
was
served on him in July 2016. If not by 22 July 2016 when second and
third respondents adopted the resolution to litigate then
certainly
by 11 January 2017 when they sought ratification he had an
opportunity to participate in the decision on behalf of the
first
respondent. He consciously chose to abstain. The same attorneys for
the first to third respondents represent him. His attorneys
asked him
to support their case with a confirmatory affidavit but none has been
forthcoming. Even though the fourth respondent
did not attend
meetings of the trustees he was aware of resolutions that were being
proposed and had an opportunity to participate
in the decision by
abstaining.
[21]
He
has a fiduciary and professional duty to respond to these proceedings
and he has done so by abstaining. His reasons for abstaining
are not
material to this application. Importantly, by allowing the attorneys
to represent him and to continue with the litigation
unimpeded he is
acting jointly with the other trustees to present publicly a united
front. If his abstention and omissions amount
to undermining the
majority, that would require going into the minority trustee’s
reasons. That I am not required to do.
[22]
In
passing I mention that although decisions by majority vote is the
norm, one should always beware of the ‘tyranny’
of the
majority. Especially when trustees are also beneficiaries conflicts
of interests between their fiduciary duties, their personal
interests
and the interests of non-trustee beneficiaries can arise. An
independent professional who disagrees with beneficiary
trustees
might often find herself in the minority. If the minority’s
stance is in the best interest of the trust, then she
should not be
ousted from access to persuade a court merely on the basis that she
lacks standing to represent the trust. If
majority rule
prevailed absolutely, injustices could go unchecked.
[23]
In
these circumstances the decision of the trust to litigate and to
appoint attorneys is manifest from the resolution signed by
the
majority of two trustees, the emails from the fourth respondent and
his conduct in allowing the litigation to proceed unimpeded.
To
insist on having the fourth respondent’s signature on the
resolution would amount to putting form over substance.
[24]
The
trust deed provides for meetings of the first respondent in paragraph
24.1 for resolutions to be passed. The applicants submit
that the
wish of the donor was that trustees be present when issues are
discussed. Nothing in the trust deed suggests that the
donor intended
‘meeting’ to be restricted to ‘meeting physically
in the presence of one another.’ Naturally
the donor could not
have contemplated the technological revolution that has occurred
since the formation of the first respondent
in 1995. It would
frustrate the first respondent from achieving its objectives
efficiently if a narrow meaning is attributed
to the word ‘meet’
and ‘meeting’, not to mention the unnecessary financial
burden upon the first respondent
convening physical meetings of the
trustees when the same objectives can be accomplished electronically.
[25]
Given
my pragmatic approach to compliance with the formalities regarding
standing, and the fact that the fourth respondent received
notice of
the resolution and these proceedings it is not necessary to canvass
which provisions of the
Companies Act of 2008
would apply to notices,
meetings and keeping of records. Furthermore, the applicants’
criticism of the first to fourth respondents
is pitched no higher
than their alleged citation of the incorrect section and not that the
first to fourth respondents failed to
comply with relevant provisions
of the Act.
[26]
My
approach is also informed by a consideration not raised by either
side, namely, that standing implicates the right of access
to the
courts and is therefore a constitutional issue.
[21]
Any limitation on the right must be reasonable and justifiable in a
democracy.
[22]
All the
objections the applicants raise against the resolutions are formal;
substantively the fourth respondent received notice
and participated
in the decision on behalf of the first respondent by abstaining.
Therefore they are not reasonable and justifiable
limitations
sufficient to occlude the first to fourth respondents from exercising
their right of access to the court.
[27]
I
turn now to the substantive dispute concerning the respective claims
of each side. The applicants seek to enforce the settlement
agreement
referred to as LLG4 dated 17 November 2011 that was the outcome of
litigation under case no. 1305/2011. A term of the
settlement
agreement was that it would be made an order of court. This was not
done.
[28]
On
17 November 2015 Ms Gray replied to applicants’ attorney Mr
Geyser of Venns saying that her file pertaining to the settlement
agreement had been archived and might have been destroyed. The only
explanation to emerge from the pleadings as to why the settlement
agreement was not made an order of the court appears from an email
dated 25 November 2011 from Mr Smythe of Austen Smith to ‘Zelda’
stating the following:
‘
You
ask for the entire Agreement to be made an Order of Court. It is a
longstanding practice of our Division that only those portions
of
settlement agreements which are capable of judicial enforcement, can
be made an Order of Court. This differs from the Gauteng
practice,
and presumably yours. What I have done, therefore is prepare a Draft
Order which I am reasonably confident the Court
will be prepared to
grant. Obviously we will need to let the other side know by giving
them a copy of this document, but before
we submit it to them, could
we have your comments and suggestions?’
There
is no evidence of what the response was to this email.
[29]
On
30 November 2011 Mr Richard Scott of Austen Smith wrote to G M Parker
Attorneys as follows:
‘
In respect
of Case No. 1305/2011, you are to file a Notice of Withdrawal of
Opposition to this Application, so as to enable an order
by Consent
in terms of the Draft Order Prayed annexed hereto can be taken on 12
December 2011.’
[30]
The
draft order prayed and obtained purportedly by consent consists of
four paragraphs of two lines each dealing with matters of
interest to
the trust exclusively. It declares certain amendments to the trust
deed to be null and void, the removal of three trustees
including the
two applicants in this application and the appointment of the second
and fourth respondents as trustees. There is
a disturbing absence of
the applicants’ claims against the first respondent for
payments referred to in the settlement agreement
and claimed in the
notice of motion in this application.
[31]
Mr
Smythe was partially correct in saying that this Division was
reluctant to make settlement agreements orders of court; the complete
answer is that settlement agreements would not be made orders of
court unless they are capable of enforcement. Undoubtedly the
applicants’ claim for the payment of a fixed amount plus
interest from specified dates is enforceable. The failure by those
responsible for giving full effect to the settlement agreement and
recording the obligation of the first respondent to the applicants
is
at best a dereliction of their professional duties. The applicants’
erstwhile attorneys must share responsibility for
failing to ensure
that the applicants were protected in the court order. If they had
done so then the applicants who are elderly,
retired and financially
insecure would have been able to execute to enforce their claim.
[32]
I
intend to rectify this omission unless I find that the variation
agreement exists and is valid.
[33]
The
first to fourth respondents seek to enforce a variation agreement
LLG6 on the basis that it was the outcome of protracted negotiations
between the parties, that it was prepared by the applicants’
attorney and presented as a proposal on their behalf after they
had
signed it. Furthermore by resolution dated 16 September 2015 the
third respondent accepted the variation agreement on behalf
of the
first respondent. The applicants contend that they withdrew the
variation agreement before the first to fourth respondents
accepted
it. The first to fourth respondents deny that the applicants withdrew
the variation agreement and that no variation agreement
came into
being.
[34]
On
the undisputed facts the parties had recorded the material terms of
an agreement in LLG6. On 14 September 2015 Mr De Wet of Acutt
Worthington representing the applicants forwarded the draft agreement
for consideration by the first to fourth respondents. On
7 October
2015 the attorney for the respondents, Ms Gray responded that her
clients were satisfied with the draft and requested
the applicants to
sign and deliver the original agreement to her clients. Ms Gray noted
in her email to Acutt Worthington that
the second applicant alleged
that she had delivered the agreement to the home of her clients but
that the latter could not find
it. Consequently, Ms Gray advised her
clients
‘
not
to effect payment again unless the original signed agreement is
delivered to them’.
[23]
[35]
The
applicants do not mention the date when the second applicant
retrieved the variation agreement from the third respondent’s
home. However from the email of 7 October 2015 from Ms Gray to Acutt
Worthington it emerges that at least by that date the second
applicant had retrieved the variation agreement with their signatures
on it.
[36]
By
letter dated 21 October 2015 the applicants now represented by Mr
Geyser of Venns wrote to the first to fourth respondents attorney,
Austen Smith reporting of his instructions to investigate the
settlement agreement under case number 11305/11. Although the letter
did not mention the variation agreement, the nature of the enquiries
and the fact that the applicants had changed attorneys from
Mr De Wet
to Mr Geyser suggest that they intended to pursue their rights in
terms of the settlement agreement. By direction of
Mr Callum Smythe
of Austen Smith Mr Geyser redirected his enquiries by letter dated 11
November 2015 to Ms Gray. In that letter
he added that he would be
proceeding urgently to protect the applicants’ interests.
[24]
[37]
Ms
Gray’s reply on 17 November 2015 added that the settlement
agreement was ‘irrelevant’ as the parties had concluded
the variation agreement which she attached, affirming that her client
had
‘
accepted
alternatively hereby accepts’ the variation
.
[25]
She also stated that her client had not yet effected payment for
October 2015 as initially they could not locate the signed agreement.
[38]
The
first to third respondents submit a resolution purportedly signed on
16 September 2015 in terms of which the second, third and
fourth
respondents authorise the third respondent to sign the variation
agreement. The draft resolution together with the draft
variation
agreement had been sent under cover of the email of 16 September 2015
from Ms Gray to the third respondent. However from
her email of 7
October 2015 it is clear that the third respondent had not received
the variation agreement with the applicants’
signature and that
she had not herself signed it.
[26]
She signed it only on 23 October 2015 by which time the applicants
had withdrawn their copy of the variation agreement and were
already
consulting Mr Geyser to pursue their rights in terms of the
settlement agreement.
[39]
Accordingly
I find that the parties to the variation agreement anticipated that
it would be enforceable only after they signed it.
The third
respondent had not signed it before the applicants withdrew it.
Consequently the variation agreement was not concluded.
Furthermore,
the unfortunate handling of the applicants’ rights to payment
under the settlement cries out for a correction.
[40]
Order
a.
The
first respondent is ordered to pay the first and second applicants
jointly the following after deducting payments already made
to the
applicants or on their behalf:
i.
a
sum of R15 000.00 per month in respect of their living costs
from the date of 30 June 2012 until the death of the surviving
of the
first and second applicants;
ii.
an
annual escalation of 10% on the sum of R15 000.00 until the
death of both the first and second applicants calculated from
31
January 2013;
b.
Interest
a
tempore morae
on all late payments as follows:
i.
at
the rate of 15.50% per annum on all amounts which were due at the end
of each month from the date of the said agreement being
19 November
2011 to 31 July 2014;
ii.
thereafter
from 1 August 2014 up to and including the 23 February 2016 at the
rate of 9% per annum;
iii.
and
thereafter from 1 March 2016 at a rate of 10.25% per annum.
c.
Cost
of suit.
d.
The
counter-application is dismissed with costs.
_____________________
D. Pillay J
APPEARANCES
Counsel
for the Applicant
: LE Combrink
SC
Instructed
by
: Venns
Attorneys
Tel:
(033)355 3205
Ref:
AGLG/Carol/L404a
Counsel
for the 1
st _
4
th
Respondent
:
Advocate C. Pretorius
Instructed
by
: Tatham
Wilkes Inc.
Tel:
(033) 345 3501
Ref:
J vd Merwe
Date of Hearing
: 31
January 2017
Date of
Judgment
: 07
February 2017
[1]
Land and
Agricultural Bank of South Africa
v
Parker
and others
para 9.
[2]
Parker
para 11, 15, 16, 17.
[3]
Parker
para
15.
[4]
Parker
para 16.
[5]
Van der Merwe
NO and others
v
Hydraberg
Hydraulic CC
and
others
2010 (5) SA 555
(WCC);
Hoosen
and others NNO
v
Deedat
and others
1999 (4) SA 425
(SCA) at para 23, 24, 26;
Steyn
NO and others
v
Blockpave
(Pty) Ltd
[2010]
ZAFSHC 134.
[6]
Van der Merwe
para 16, 17
[7]
Van der Merwe
para 17.
[8]
Van der Merwe
para 16.
[9]
Van der Merwe
para 16.
[10]
Van der Merwe
para
16.
[11]
Van der Merwe
para
37.
[12]
Van der Merwe
para
19; 37-39;
Steyn
NO and Others
v
Blockpave
(Pty) Ltd
(2959/2010)
[2010] ZAFSHC 134
(12 October 2010).
[13]
Steyn NO and
Others
v
Blockpave
(Pty) Ltd
para
38
[14]
Steyn
para
39.
[15]
Van der Merwe
para
16.
[16]
Steyn
para
14.
[17]
Steyn
para
7, 10.
[18]
Steyn
para
15 .
[19]
Steyn
para 16
[20]
Steyn
para 18-19
[21]
S 34 of the
Constitution of the Republic of South Africa, 1996.
[22]
S 36 of the
Constitution.
[23]
Page 167 of the
pleadings
[24]
page 78 of the
pleadings
[25]
page 84 of the
pleadings
[26]
page 166 of the
pleadings