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[2016] ZAGPPHC 723
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Bonitas Medical Fund v Louis Pasteur Hospital Holdings (Pty) Ltd (50820/2008) [2016] ZAGPPHC 723 (18 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 50820/2008
DATE:
18/8/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
BONITAS
MEDICAL
FUND
Plaintiff
and
LOUIS
PASTEUR HOSPITAL HOLDINGS (PTY)
LTD
Defendant
JUDGMENT
Baqwa
J
Claim
for payment arising out of a cession
–
Alternatively rectification of a
cession agreement – Alternatively payment based on
condictio
indebiti
–
Tacit term – Nature thereof – Costs award – Based
on dishonest defence and petulant and scurrilous demeanour
of
defendant’s witness.
Summary
This
action arises out of an agreement in which the parties agreed to
establish the Louis Pasteur Hospital in Pretoria. They entered
into
two main agreements, namely, the shareholders’ agreement and a
funding agreement. The shareholders’ agreement
resulted in a
shareholding of 74% / 26% in favour of the defendant. Funding was to
be undertaken on a pro rata basis by agreement
after the respective
initial financial contributions. The plaintiff was also required to
cede an investment policy to the defendant
to be utilised as security
to enable the defendant to raise funds through a financial
institution (First National Bank). It was
initially the common
intention of the parties that in regard to whatever policy was ceded
to the defendant as security, the beneficial
ownership thereof would
remain with the plaintiff. It was further a tacit term of the
agreement that the plaintiff would be entitled
to the proceeds
thereof upon maturity. In that eventuality, the plaintiff would cede
a replacement policy to the defendant. With
the effluxion of time and
after a period of about ten years the defendant claimed beneficial
ownership of the policies which had
been ceded to it. As a result of
that claim the defendant misappropriated the proceeds of those
policies when they matured giving
rise to the present claim.
Held
,
that even though the issue of beneficial ownership had not been
expressly dealt with in the funding agreement, it was a tacit
term
within the agreement.
Held
,
that the plaintiff was entitled to the proceeds of the policies based
on the tacit term.
Held
,
further that the plaintiff was entitled to costs on an attorney and
client basis not only due
to
the dishonest defence raised by the defendant but also on the basis
of the petulant and scurrilous demeanour of the defendant’s
witness during which he resorted to wholly unjustified and grossly
defamatory accusations against the plaintiff’s lead counsel.
Annotations:
Reported
cases
Stellenbosch
Farmers’ Winery Group Ltd and Another v Martell et Cie SA and
Others
2003 (1) SA 11
SCA
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 592
(SCA)
Unica
Iron and Steel v Mirchandani
2016 (2) SA 307
SCA
Food
and Allied Workers Union (FAWU) v Ngcobo N.O.
2014 (1) SA 32
(CC)
Protea
Assurance Co. Ltd v Januszkiewicz
1989 (4) SA 292
(W)
Statutes
Prescribed
Rate of Interest Act 55 of 1975
Medical
Schemes Act 131 of 1998
Introduction
[1]
This is an action by the plaintiff for payment by the defendant of
the proceeds of two Sanlam Investment policies totalling
R44 245 360.68. The plaintiff claims that the defendant has
breached an agreement in terms of which the policies were
ceded and
that it is entitled to the full proceeds thereof.
[2]
The defendant claims that it is entitled to the proceeds of the
policies ostensibly because the cessions were ceded out-and-out
in
“
exchange
” for a credit entry in the defendant’s
books of account in favour of the plaintiff and repayable at the
discretion
of the defendant’s Board.
[3]
The case had previously been heard by this court on 5 September 2011
when judgment was granted by default against the defendant.
[4]
The defendant applied for rescission of judgment which was opposed
but was granted and the matter again proceeded to trial.
Some of the
issues traversed at the rescission application have been referred to
in this trial.
The
Parties
[5]
The plaintiff is Bonitas Medical Fund (“
Bonitas
”),
which is a medical aid scheme registered in terms of the
Medical
Schemes Act 131 of 1998
and which was previously registered in terms
of the now repealed
Medical Schemes Act (Act
72 of 1967) and which
carries on business at Bryanston Gate Office Park, 170 Curzon Road,
Bryanston, Randburg.
[6]
The defendant is Louis Pasteur Hospital Holdings (Pty) Ltd (“
LPH
”),
a company duly registered and incorporated in accordance with the
laws of the Republic of South Africa which carries on
business as a
healthcare service provider and which has its registered address at
8
th
floor, Room 842, 374 Schoeman Street, Pretoria and its
principal place of business at 4
th
floor, Louis Pasteur
Medical Centre, corner Schoeman and Prinsloo Streets, Pretoria.
[7]
The defendant was previously known as Maraba Hospital and Medical
Centre (Pty) Ltd (“
Maraba
”).
The
Background
[8
On 11 October 1994 at Johannesburg the plaintiff and the defendant
who were duly represented, concluded a written agreement which
has
been referred to in these proceedings as the shareholders’
agreement. The express terms of the shareholders’ agreement
which are recorded in writing are common cause and
inter alia
include the following:
8.1 It was recorded that
the LPH had been formed with the intention of operating the hospital,
and
8.2 “
The
hospital
” was defined as “
a private hospital known
as the Louis Pasteur Medical Centre, on the corner of Schoeman and
Prinsloo Streets, Pretoria
”.
[9]
The shares in the issued share capital of LPH would be held as to 74%
by Louis Pasteur Medical Investments Ltd (LPMI) and 26%
by the
plaintiff. The main business of LPH would be to operate the business
of the hospital.
[10]
Clause 6 of the agreement dealt with financing and provided,
inter
alia
as follows:
“
6 FINANCING
6.1 Bonitas will, when
it subscribes for shares in the company in terms of 2.6, pay the
amount of R2 000 000 in cash to
the company, as the full
subscription price payable for those shares.
[…]
6.3 LPMI and Bonitas
shall, in proportion to their respective shareholdings in the
company, furnish the security necessary for the
financing of medical
and hospital equipment up to a maximum of R6 000 000. The
medical and hospital equipment acquired
with the secured borrowed
funds in terms of this clause will include, inter alia, the items
listed in annexure “B”
6.4 Bonitas shall by
no later than fourteen days after the signature date lend an amount
of R1 000 000 to the company on loan account.
This amount shall
accrue interest at the prime rate plus 2%. The capital amount with
interest thereon shall be repaid to Bonitas
when the board of
directors of the company resolves that there are sufficient funds
available which are in excess of its requirements
for the purpose of
the company’s business and subject to the availability of
after-tax profits.
[…]
6.6 To the extent that
any further funds required by the company for its working capital and
medical equipment, LPMI and Bonitas
shall, if they agree thereto,
furnish the necessary security for those funds, in proportion to
their respective shareholding in
the company.
”
[11]
Clause 10 provided as follows:
“
10 GOOD
FAITH
The parties shall at
all times during the currency of this agreement, observe the
principle of utmost good faith towards one another
in the performance
of their obligations in terms of this agreement.
”
[12]
Further, clause 13 contained the following provisions:
“
13.1 This
agreement, together with the appendices thereto, constitutes the sole
record of the agreement between the parties in regard
to the subject
matter thereof.
13.2 Neither party
shall be bound by any representation, express or implied term,
warranty or promise or the like not recorded herein
or reduced to
writing and signed by the parties or their representatives.
[…]
13.4 No addition to,
variation, or agreed cancellation of this agreement or any of the
appendices hereto shall be of any force or
effect unless in writing
and signed by or on behalf of the parties.
”
[13]
The position after the conclusion of the shareholders’
agreement was that the LPMI subscribed to 444 shares in LPH whilst
the plaintiff subscribed to 156 shares.
[14]
Not long after the shareholders’ agreement had been entered
into a situation arose which necessitated the raising of
further
funds to bolster the financial sustainability of the defendant.
[15]
During February 1996, the defendant duly represented by Dr Mohamed
Adam (Dr Adam) and Frikkie Lloyd who was the defendant’s
financial advisor and company secretary and who was also acting as a
representative of a company or close corporation known as
“
Affin’
”,
made a proposal titled “
FINANCIALS STRUCTURING PROPOSAL FOR
MARABA HOSPITAL AND MEDICAL CENTRE (PTY) LIMITED
” to the
plaintiff. This document is later referred to as ‘
the Affin
proposal
’.
[16]
The Affin proposal recorded,
inter alia
, the following:
16.1 In paragraph 1
(“
Background
”)
thereof:
“
1.1
AFFIN has been mandated to obtain the necessary funding to pay for
the equipment to be used in the operating of the Louis Pasteur
Hospital. An amount of R9 million is required.
Lifecare
is also demanding advance payment for drug purchases or acceptable
security. The amount required is estimated at R500 000.
In
addition cash flow productions indicate that in the short-term the
company will also require additional working capital of R1,
7
million.
1.2
The financiers which AFFIN approached so far have set demanding
security requirements, that is 50% of the facility must be covered
by
“good security”. Good security is described as easily
realisable assets such as debtors, property or investments.
If
“less good” security is offered (cession of shares,
personal guarantees etc.) the requirements is even higher.
The
reason for this demanding security arrangement is the lack of a
trading record for Maraba.
1.3
Funding will be organised from several financiers i.e.
Wesbank
R5 million
Investec/Rand
Merchant
R4 million
Lifecare
R0.5 million
First National
Bank
R1, 7 million
1.4
Whilst most of the above borrowings can be supported by 80% of the
expected debtors it is not possible to split the debtors
or make more
than one cession. No single financier which to be second in the queue
by accepting a reversionary cession.
Trading
projections indicate that debtors will reach R5, 5 million when a 55%
occupancy is achieved and R7 million at 65% occupancy.
1.5
In terms of the shareholders’ agreement with LPMI, Bonitas
undertook to provide surety to cover 26% of the equipment funding
and
support the full working capital requirement whilst LPI undertook to
ensure, from its own funds, the necessary building within
which 180
beds and 6 theatres can be installed and operated.
”
16.2
Paragraph 2 dealt with the “
proposal
” as follows:
“
2.1
In order to maximise a cession of debtors it is proposed that the
debtors are ceded to Bonitas in full. Bonitas must then cede
an
insurance policy with a surrender value equal to 80% of the debtors
plus the Bonitas suretyship commitment in respect of the
equipment
funding to First National Bank. Ideally it should cover the amount of
80% of the level which debtors will achieve at
55% occupancy (80% of
R5, 5 million, that is R4, 4 million plus 26% of R9 million that is
R2, 3 million).
2.2
First National Bank will then issue the following guarantees against
the respective facility:
Guarantee
Facility
To
Wesbank
R2, 5 million
R5 million
To
Investec/RMB
R2,
0 million
R4 million
To
Lifecare
R0, 5 million
R0, 5 million
To
First National Bank
R1, 7 million
R1, 7 million
Total
R6, 7 million
R11, 2 million
It
is envisaged that the above guarantees can be re-negotiated annually
in response to the trading progress of Maraba.
2.3
In addition to the benefit to Maraba of maximising efficiency of the
security value of its debtors it will also limit the exposure
of
Bonitas to its current investment and the shareholder undertaking in
respect of equipment.
”
[17]
On 2 February 1996 at a meeting of the plaintiff’s Finance
Committee subsequent to discussions the following was recorded:
“…
that
the Fund may sign cession of Sanlam Policy No. 13113913X1 in respect
of facilities available to Maraba Hospital and Medical
Centre (Pty)
Ltd at First National Bank and that
YEKANI
RICHARD TENZA
in
his capacity as Principal Officer, may sign the necessary forms on
behalf of the Fund.
”
[18]
On 8 February 1996 and at a special meeting of directors of the
defendant, Mr Y. Tenza (Tenza) who was at the time a principal
officer of the plaintiff and chairman of the Board of Directors of
the defendant and Mr B. M. Mofokeng, the then chairman and director
of the Board of Trustees of the plaintiff informed the defendant of
the plaintiff’s acceptance of the Affin proposal. This
was duly
recorded in the minutes of the meeting.
18.1
Both parties refer to the agreement reached on 8 February 1996 as the
funding agreement and whilst the terms of the agreement
are in issue,
both the parties agree that the terms thereof included an agreement
that the plaintiff would cede a Sanlam policy
to the defendant.
18.2
Effect was given to the funding agreement when the plaintiff ceded a
policy held by it with Sanlam Ltd (Sanlam) under policy
number
13113913X1 to the defendant on 9 February 1996 (“
the first
policy
”), the defendant thereafter ceded the policy to FNB
on 9 February 1996.
[19]
Subsequently, the plaintiff surrendered the said policy and as a
result, Sanlam issued two cheques on 30 August 1996 in favour
of the
plaintiff. The cheques constituted the surrender value of the first
policy. This necessitated the replacement of the first
policy.
[20]
As a result of the said surrender and on 2 December 1996 the
plaintiff ceded two further Sanlam policies with policy numbers
13780308X6 and 13780309X4 to LPH in replacement of the first policy.
According to the plaintiff the policies were ceded to the
defendant
on the same basis and the same terms and conditions as the first
policy even though this is contested by the defendant.
On 2 December
1996 the defendant in turn ceded the policies to FNB.
[21]
The policies matured on 1 December 2006 and the proceeds thereof at
maturity amounted to R39 293 353.34 which was
according to
the defendant reinvested and restructured resulting in the payment of
the total sum of R44 245 360.68 to
the defendant.
[22]
It is common cause that a portion of the proceeds of the policies was
applied towards the settlement of the defendant’s
indebtedness
with regard to a facility which was extended to the defendant by FNB.
The defendant thereafter retained and utilised
the balance of the
proceeds of the policies for its own benefit.
The
Pleadings
[23]
According to the plaintiff the funding agreement was the basis for
the cession of the policies. Whilst the defendant agrees
that the
funding agreement was concluded it differs with the plaintiff
regarding the terms thereof.
[24]
The basis of the plaintiff’s claim is the payment of the
proceeds of the two policies to the defendant which the plaintiff
contends was as a result of a breach of the funding agreement. The
defendant denies that it breached the funding agreement.
[25]
Alternatively the plaintiff seeks a rectification of the cession
document in terms of which the two policies were ceded to
reflect
what it alleges was the common intention of the parties, namely, that
the plaintiff remained the beneficial owner of the
policies. The
defendant denies that there are any grounds for rectification of the
policies.
[26]
In the further alternative, that is, in the event that this court
should find that the funding agreement was not concluded,
the
plaintiff claims payment of the proceeds of the policies on the basis
of unlawful enrichment or
condictio indebiti
. The defendant
also denies this claim.
Issues
to be Determined
[27]
According to the plaintiff, the material express and/or implied terms
of the funding agreement were:
“
7.1
Bonitas would cede an insurance policy with a surrender value of R6.7
million to First National Bank of Southern Africa Limited
(“
FNB
”)
to secure the funding to be provided by FNB to LPH on overdraft to
fund the acquisition of equipment by and to meet the
working capital
requirements of LPH as contemplated by the Affin proposal (“
the
FNB facility
”);
7.2
the cession agreement(s) whereby the insurance policy was to be ceded
would be accessory to the funding agreement;
7.3
LPH would not be permitted to increase its lending against the FNB
facility without the prior consent of Bonitas;
7.4
LPH would cede and assign its debtors book in securitatem debiti to
Bonitas;
7.5
if, subsequent to the cession(s) of the policy, LPH no longer
requires use of the policy as security and is able to itself secure
its debts which were previously secured by the policy, LPH would:
7.5.1
immediately procure replacement security so as to release the policy
from any security which it was used for; and
7.5.2
LPH would immediately re-cede or procure the re-cession of the policy
back to Bonitas;
7.6
If, prior to the date contemplated in paragraph 7.5 above, the policy
has reached its maturity date and Sanlam has made payment
in respect
thereof:
7.6.1
LPH (and/or FNB) would be entitled to request Bonitas to provide
replacement security to the satisfaction of FNB to enable
LPH to
continue to have access to the FNB facility up to an amount equal to
that provided for in terms of the FNB facility in February
1996 (or
such other amount as may have been agreed to by Bonitas) (“
the
agreed exposure
”);
7.6.2
in the event that replacement security is called for and provided by
Bonitas as contemplated in paragraph 7.6.1 above, then
and in that
event, LPH would be obliged to pay or to procure the payment of the
full proceeds of the policy to Bonitas;
7.6.3
in the event that replacement security is called for, but not
provided by Bonitas as contemplated in paragraph 7.6.1 above,
then
and in that event –
7.3.6.1
FNB would be entitled to apply the proceeds of the policy up to an
amount equivalent to the agreed exposure; and
7.3.6.2
LPH would be obliged to pay or to procure the payment of the balance
of the proceeds of the policy to Bonitas.
”
[28]
On the contrary, the defendant’s contention is that the terms
of the funding agreement were:
“
7.1.1
the Plaintiff agreed to cede outright to the Defendant a Sanlam
policy of adequate value which the Defendant would, in turn,
cede to
FNB in securitatem debiti as security for FNB’s funding from
time to time to the Defendant;
7.1.2
the Defendant would credit the Plaintiff’s loan account in the
books of the Defendant with an amount equal to the value
of the
policy on the date of the outright cession on which date the
Defendant would become the owner of the policy. The loan account
would be repayable to Bonitas when:
7.1.2.1
the board of directors of the Defendant resolves that there are
sufficient funds available which are in excess of its requirements
for the purposes of the Defendant’s business and subject to the
availability of after-tax profits, alternatively
7.1.2.2
the Defendant was able to do so.
7.1.3
the Defendant would to secure the loan cede, in securitatem debiti,
its entire debtors book to the Plaintiff.
”
The
Breach
[29]
The breach which the plaintiff alleges was committed by the defendant
is in relation to the facility which was granted by FNB
to the
defendant. The plaintiff alleges that on a date unknown to it and
without obtaining the plaintiff’s prior permission,
the
defendant unilaterally and in breach of the funding agreement
increased the FNB facility to an amount in excess of the exposure
that had been agreed to. The plaintiff however was not privy to the
exact amount with which the facility was increased.
[30]
Further, the plaintiff contends that in circumstances where FNB
and/or the defendant had failed to request the plaintiff to
provide
replacement security to the satisfaction of FNB to enable the
defendant to have continued access to overdraft facilities,
the
defendant applied a portion of the proceeds of the policies in order
to settle its indebtedness under the FNB facility and
thereafter
retained the remaining portion of the proceeds of the policies for
itself and failed to pay the proceeds to the plaintiff.
[31]
The defendant denies that it breached the funding agreement.
The
Loan Account
[32]
The defendant contends in its plea that it was out of the terms of
the funding agreement that “
the plaintiff’s loan
account in the books of the Defendant would be created with an amount
equal to the value of the policy
on the date of the outright
cession.
” The defendant further contends in the same vein
that upon creation of the loan account “
the Defendant would
become the owner of the policy.
”
The
Approach to Factual Disputes
[33]
The determination of the terms of an agreement involves not only the
weighing of the evidence presented by the parties but
also the
contents of the contemporaneous documents. The approach was
succinctly summarised by Nienaber JA in
Stellenbosch Farmers’
Winery Group Ltd and Another v Martell et Cie SA and Others
2003
(1) SA 11
SCA at para 5 when he held as follows:
“
The
technique generally employed by the courts in resolving factual
disputes of this nature may conveniently be summarised as follows:
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various witnesses; (b)
their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness will
depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily
in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias, latent and blatant,
(iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with
established fact or
with his own extracurial statements or actions, (v) the probability
or improbability of particular aspects
of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident
or events. As to (b), a
witness’ reliability will depend, apart from the factors
mentioned under (a)(ii), (iv), and (v) above,
on (i) the
opportunities he had to experience or observe the event in question
and (ii) the quality, integrity and independence
of his recall
thereof. As to (c), this necessitates an analysis and evaluation of
the probability and improbability of each party’s
version on
each of the disputed issues. In the light of its assessment of (a),
(b) and (c) the court will then, as a final step,
determine whether
the party burdened with the onus of proof has succeeded in
discharging it. The hard case, which will doubtless
be the rare one,
occurs when a court’s credibility findings compel it in one
direction and its evaluation of the general
probabilities in another.
The more convincing the former, the less convincing will be the
latter. But when all factors are equipoised
probabilities prevail.
”
[34]
In
casu
, the court has to consider not only what the
purpose of the funding agreement was but also the words used in the
contract and any
possible ambiguity in those words. The court also
has to consider the contextual setting in which the contract was
carried out
and the subsequent conduct of the parties which may be
probative of the common intention of the parties when they entered
the contract.
The
Evidence
[35]
The plaintiff presented the evidence of two witnesses, namely Tenza
and Mofokeng whilst the defendant called only one witness,
Adam.
[36]
Tenza was employed as a Principal Officer of the plaintiff in 1994
and was involved in the setting up stages when the defendant
was
established as a hospital. He testified how he was involved as a
representative of the plaintiff not only when the shareholding
was
determined but also when the funding agreement was entered into. He
was also involved in various Board activities and in correspondence
with various parties with a view to ensuring that the defendant was
established as a viable entity. He testified how the plaintiff
had
been established as one of the medical schemes which had been
established for segregated communities and how when they reached
a
stage where they had excess funds, they decided to establish private
hospitals aimed at serving previously disadvantaged communities.
[37]
It was during this stage that he was introduced to Dr Adam (Adam) and
subsequently involved in bringing the defendant into
existence. The
initial step was to enter into the shareholders’ agreement
which was then followed by the funding agreement.
[38]
Tenza’s evidence was by and large corroborated by Mofokeng and
his responses can be described as candid and succinct.
He did not
pretend to be well-versed with all the activities he was involved in
as a Principal Officer and was prepared to concede
reliance on the
advice of his staff on matters regarding which he did not possess
sufficient knowledge. More importantly, it was
never put to him or
suggested under cross-examination that he was untruthful in any
material respect. The crux of Tenza’s
evidence was that at all
material times the policies which had been ceded by the plaintiff to
the defendant remained the property
of the plaintiff and that the
plaintiff would be entitled to the proceeds thereof. He refuted the
suggestion that the plaintiff
had parted with ownership of the
policies in favour of the defendant. His evidence was in line with a
body of objective evidence
in Board minutes, financial statements and
correspondence between the parties.
[39]
Tenza was criticised by the defendant’s counsel as an
unconvincing witness in that though able to read he would allege
failure to understand the contents of documents that were presented
to him. On the face of it this criticism would appear to be
valid but
the cogency of Tenza’s evidence will be dealt with below.
[40]
The second witness was Berman Mofokeng (Mofokeng) who was a 76 year
old gentleman who had been involved with the plaintiff
since 1982 as
a member of the plaintiff’s Board of Trustees until 1998. He
was a signatory to the shareholders’ agreement
between the
plaintiff and the defendant. He was a member of the plaintiff’s
Board of Directors and the plaintiff’s
Finance Committee. He
participated in the meetings of these controlling structures and as
such was an active participant in the
establishment of the defendant
as a hospital. Mofokeng testified that despite the plaintiff being a
minority shareholder in the
defendant it also ceded certain policies
to the defendant to enable the defendant to utilise the policies as
security when raising
funds to finance the defendant’s
operations.
[41]
Mofokeng testified that the policies constituted an investment of
members’ funds and that the plaintiff would remain
owners of
the policies. He also stated that the plaintiff would remain entitled
to the proceeds of the policies. He was dismissive
of the notion that
the defendant would be entitled to the proceeds of the policies.
Similarly to Tenza, Mofokeng’s evidence
was in line with
contemporaneous documentary evidence such as Board minutes,
correspondence and financial statements. It was also
not suggested to
him under cross-examination that he was an untruthful witness. The
overall impression, therefore, of both Tenza
and Mofokeng was that
they were credible witnesses.
[42]
Defendant conceded that Mofokeng was not in himself an unsatisfactory
witness but went on to submit that his evidence does
not contribute
to determining the issues. The weight given to Mofokeng’s
evidence largely emanates from fact that he had
sat as a director in
Board meetings in which critical matters relating to the defendant’s
operations were discussed. He was
for example, present in the Board
meeting of 20 August 1999 which is more fully discussed (
infra
).
[43]
The defendant called Dr Mohammed Adam (Adam) who admitted under
cross-examination that at all material times he was “
the
controlling mind
” of the defendant who had become a
director of the defendant from 2002 onwards. Adam admitted that the
policy which was initially
ceded by the plaintiff to the defendant
was ceded as security.
[44]
Adam testified regarding the initial discussions with the plaintiff’s
officials with a view to establishing the defendant.
He was also
involved in the negotiations which resulted in the shareholders’
agreement and the funding agreement. More importantly,
however,
whilst Adam admitted that the initial cession by the plaintiff was as
security, he testified that the policies which were
subsequently
ceded to replace the initial policies were an outright cession which
resulted in ownership of the policies by the
defendant and that this
entitled the defendant to do whatever they wished to do with the
policies. Adam relied for his evidence
regarding the cession of the
policies on the cession document which recorded that the cession was
an “
outright cession
”. Whilst Adam’s
evidence was in line with the cession document, his evidence was
contradicted by numerous contemporaneous
documents such as Board
minutes, correspondence and financial statements.
[45]
Adam was confronted with these contradictions and it was upon this
confrontation that he became evasive and resorted to long-winded
and
rambling explanations even when expected to respond to a simple
question. For example, Adam was confronted with the Board minutes
of
a meeting which was held on 20 August 1999. Paragraph 4.5 of the
minutes reads as follows:
“
Mr
Lloyd advised that the facility of R 10 million is now in place. Mr
Nkosi tabled a letter from Bonitas dated 18
th
August 1999 advising of problems with regard to the ownership of the
two policies ceeded (sic) to the company. The Board confirmed
that it
was always the intention of the company that Bonitas remains the
beneficial owner of the policies and that any benefits
declared by
Sanlam will belong to Bonitas…
”
Present
at this meeting was Adam’s brother (M. A. Adam) and Lloyd who
had acted as financial director of the defendant and
who would have
been au fait with the manner in which the policy and policies were
ceded to the defendant.
[46]
Adam, in the face of this reality contended that as a result of being
misled by Nkosi (Tenza’s successor as the plaintiff’s
Principal Officer from January 1997) an incorrect resolution was
passed by the defendant at the Board meeting of 20 August 1999.
According to Adam, Nkosi, a late comer to the negotiations and
arrangements which were entered into to enable the defendant to
become operational had managed to mislead the key players to those
negotiations and arrangements. This notion of being misled by
Nkosi
was to become thematic in Adam’s evidence.
[47]
Adams evidence was riddled with internal and external contradictions
which seemed to demonstrate a tendency to be mendacious.
This is
exemplified by an instance in his evidence in chief when he testified
that an alleged oral agreement was concluded prior
to the Affin
proposal (funding agreement) in terms of which the defendant was to
provide the full working capital. When cross-examined
and after it
was pointed out to him that there was a non-variation clause in the
shareholders’ agreement which precludes
this, he changed his
evidence and for the first time, he contended that the alleged oral
agreement was concluded prior to the shareholders’
agreement,
which was in October 1994. In addition, realising that the version
conflicted with the shareholders’ agreement,
he then contended
that the shareholders’ agreement had to be rectified to bring
it in line with the true intention of the
parties. This was not the
defendant’s pleaded case.
[48]
The defendant did indeed bring an unsuccessful application to amend
its plea to allege an oral agreement concluded during December
1995
to January 1996 relating to the provision of full working capital.
When asked in re-examination when the oral agreement
was
concluded, he reset his sails to contend for an oral agreement in
line with the dismissed amendment by testifying that it was
concluded
in December 1995 to January 1996. It was difficult to keep up with
the various versions which he presented in his testimony
on various
aspects of the defendant’s case.
[49]
Adam also resorted to a tendency to be petulant in the witness box
and persisted despite a warning from the court to desist
from doing
so. He demonstrated this attitude in defamatory attacks on the
plaintiff’s senior counsel seemingly to deflect
attention from
questions which required simple answers. His evidence was peppered
with the hallmarks of a dishonest witness.
Financial
Statements
[50]
It was Adam’s evidence that the surrender value of the first
policy on 8 February 1996 was approximately R10, 5 million
whereas
the amount paid out by Sanlam was R11 634 848.00.
[51]
It is also common cause that the value of the policies which were
ceded as replacement of the first policy was R12, 2 million.
[52]
The defendant’s evidence is to the effect that after what it
claims as an outright cession, the value of the policies
ceded was to
be reflected in the defendant’s financial statements as a loan
account.
[53]
The audited financial statements of the defendant, duly approved by
the board of directors for the years 1996 to 2008 were
presented as
Bundle “
E
” during the trial.
[54]
Adam became a member of the board of directors only from 2002
onwards. No director of the defendant was called to contradict
what
was reflected in the financial statements for the period from 1996
until Adam became a director. Not even Lloyd who is reflected
in the
financial statements as a company secretary was called to give
evidence. The defendant’s auditors were also not called
to give
evidence.
[55]
Tenza was however a director of the defendant when the financial
statements for the financial year ended 31 March 1996 were
presented,
discussed and approved. Mofokeng is reflected as director in the
1996, 1997 and 1998 annual financial statements.
[56]
Absent any challenge regarding the correctness of the financial
statements, they must be accepted as accurately reflecting
the
defendant’s financial position during the period in question.
[57]
It was Tenza’s uncontested evidence that with regard to the
1996 annual financial statements he did not expect to see
the first
policy reflected as an asset.
[58]
Further, Tenza was not aware of any loans save for those recorded in
the annual financial statements and he stated that had
he seen the
surrender value of the policy reflected as a loan he would have
questioned it.
[59]
He confirmed that the recordal in respect of the cession of debtors
(namely that it was “
security for the Sanlam investment
policy
”) was correct and in line with his understanding of
what had been agreed.
[60]
It is an undisputed fact that the annual financial statements from
1996 to 2006 do not reflect the policy and thereafter the
policies,
as an asset or assets in the defendant’s books.
[61]
The only loan reflected from the plaintiff to the defendant is a loan
of R1 million in the financial statements from 1996 to
2006.
[62]
The directors’ report in the 1998 and 1999 annual financial
statements record expressly that the policies are “
owned by
the shareholders
”.
[63]
Tenza also testified that the defendant never sought the consent of
the plaintiff when dealing with assets regarding which
it was the
owner but that regarding the policies the defendant did seek the
plaintiff’s cooperation and consent.
[64]
Adam did try explaining these inconsistencies by reference to a
misunderstanding allegedly caused by Frikkie Lloyd’s
letter
dated 30 July 1996. The explanation however could not hold any water
as Adam was neither a director nor author of the letter
at the
relevant time. His reference to the letter also constituted
inadmissible evidence as Lloyd was never called to confirm or
deny
same.
[65]
If one accepts the defendant’s version, it stands without
reason that the value of the policy or the policies, would
have been,
if not the biggest, then one of the major assets of the defendant and
even one of the most basic understanding of the
defendant’s
financial statements would have called for it to be reflected. The
only logical reason, therefore for the exclusion
of this asset or
assets from the annual financial statements could merely be because
they were not considered to be the defendant’s
assets.
[66]
Equally if it is accepted that the cession resulted in a loan by the
plaintiff to the defendant, the alleged loan would have
been the
biggest or alternatively one of the defendant’s biggest
liabilities which would materially alter the defendant’s
ability to declare dividends to its shareholders. Logically,
therefore failure to reflect such loan in the defendant’s books
would seem to indicate that there was never such a loan.
[67]
There is also no suggestion that in terms of good governance the
directors failed to uphold their fiduciary obligations to
consider
the financial statements independently. There is no evidence that the
directors challenged or disagreed with what was
reflected in the
financial statements.
[68]
It is however, common cause that there was an eventual change in the
2006 financial statements which in light of the history
and
chronology of events since 1996 can only be described as
inexplicable. I also take judicial cognisance of the fact that the
change also occurred when litigation had begun between the parties by
way of an urgent application in 2006 with Adam’s direct
involvement.
Requests
for Increase in FNB Facilities
[69]
It is common cause as reflected in various minutes of the defendant’s
board of 3 February 1997, 7 February 1997 15 February
1997 and 10
March 1997 that the defendant requested the plaintiff to allow
increased usage of the security provided by the plaintiff.
[70]
These requests are not supportive of the defendant’s version.
The
Conduct of the Parties
[71]
As alluded to (
supra
) the common intention of the parties must
also be established with reference to the conduct of the parties in
the course of implementation
of the agreements they had entered into.
[72]
In a letter penned by Lloyd dated 9 September 1999 to Sanlam under
the heading “
Share Allocation Policy Number 13780308X6 and
13780308X4
”, the following is recorded (
inter alia
):
“
I
refer to our telecom of today and confirm as follows:
1.
The
above policies were issued to Bonitas medical fund.
2.
Bonitas
ceded the policies to Maraba Hospital and Medical Centre (Pty) Ltd
to enable the hospital
to use the policies as security in the process of
borrowing
funds from First National Bank.
3.
At
all times it was the intention that Bonitas remains the owner of the
policies and be the recipient of any benefits which may
be declared
by Sanlam.
4.
Maraba
or FNB will only be entitled to exercise their rights under the
policy in case of default by Maraba.
5.
Should
the cessions (sic) which you hold not imply the above, we would like
to amend same to give effect to this.
6.
The
above implies that the shares which were allotted to Maraba in June
1998, should have been allotted to Bonitas Medical Fund.
Will
you kindly arrange for the correction and let Bonitas have the
necessary share certificates.
”
[73]
The contents of Lloyd’s letter are in line with Adam’s
statement under oath in (the then) Transvaal Provincial
Division case
number 39184/2006 (“
The 2006 interdict application
”).
In paragraph 64 of Adam’s answering affidavit, he avers as
follows:
“
At
a meeting of the board of directors of the fourth respondent [LPH
herein] on 20 August 1999 Mr Nkosi tabled the aforesaid letter
from
the applicant [Bonitas] to the fourth respondent. The board confirmed
that [Bonitas] remained the beneficial owner of the
policies and that
any benefits declared by [LPH] would belong to it. The board
authorised Lloyd to do what was necessary to give
effect to the
aforesaid. A true copy of an extract of the minutes of this board
meeting is annexed hereto as Annexure “MA6”.
”
Annexure
6 referred to by Adam expressly records the “
uncorrected
”
version of paragraph 4.5 of the board minutes of 20 August 1999 which
has been referred to (
supra
).
[74]
Paragraph 64 of Adam’s affidavit is a direct contradiction of
his own evidence under oath tendered in the present proceedings.
An
attempt is made both by Adam is his evidence and by the defendant’s
counsel in his heads of argument to explain away this
glaring
contradiction. The explanation is to the effect that Adam was misled
by Nkosi or alternatively Lloyd. This explanation
ignores the fact
that what was recorded on 20 August 1999 was subsequently approved in
a subsequent Board meeting as a correct
recording of the minutes. I
do not find the explanation convincing.
The
First Cession
[75]
The cession of the first policy in terms of the funding agreement was
executed by a cession recorded in a Sanlam standard form
which was
filled out by a Mrs Sandy Ashby, an FNB employee.
[76]
The document records that the policy was ceded “
as security
for debt: loan or advance
” and according to the plaintiff
the second set of policies were ceded on the same basis in
replacement of the first policy.
[77]
The description regarding the first policy is consistent with clause
6.6 of the shareholders’ agreement and an interpretation
of the
funding agreement that the cession was for the provision of security
for the purpose envisaged in clause 6.6 and the funding
agreement.
The
Replacement Cessions
[78]
On the evidence the first policy was surrendered by the plaintiff
inadvertently but the position was corrected by means of
replacement
cessions of two further policies.
[79]
However, a conundrum arises from a reading of the second cession
document which records in paragraph 5 (8) “
outright cession:
yes
”.
[80]
On the evidence, the form was again completed by an FNB employee and
according to Tenza he relied upon his staff when signing
the
agreement and did not have an understanding of the different types of
cessions. Tenza was however unequivocal that the second
cession was
intended as a replacement of and on the same terms as the first
cession.
[81]
It has been submitted on behalf of the plaintiff that in terms of
clause 6.6 of the shareholders’ agreement and in terms
of the
funding agreement, the cession required from the plaintiff was solely
for the purposes of security and in fulfilment of
its obligation to
provide security and that the recordal in paragraph 5 (8) of the
second cession is at variance with and irreconcilable
with the
wording of the first cession and Tenza’s letter of 28 October
1996.
[82]
The plaintiff further submits that the records obtained from Sanlam
show that after cession of the first policy on 9 February
1996, the
plaintiff continued to make payments of the premiums due in respect
of that policy. There is no dispute that the defendant
did not
contribute any payment for the policies.
[83]
It was Tenza’s evidence that on 2 July 1996 he wrote to Ashby
and informed her that the plaintiff had decided to make
all policies
held with Sanlam fully paid-up. It is therefore argued on behalf of
the plaintiff that the decision to make the policies
paid-up was in
keeping with the parties’ agreement that the plaintiff
effectively remained the owner of the policies. It
is also notable
that there is no evidence that the defendant complained regarding the
plaintiff’s fundamental decision to
make the policies paid-up.
Frikkie
Lloyd’s Correspondence with the Defendant’s Auditors in
June and July 1996
[84]
On 25 July 1996 the defendant’s then auditors requested further
information from Lloyd who was the defendant’s
co-managing
director in order to finalise the 1996 annual financial statements.
He was asked for “
Copy of the agreement between Maraba and
Bonitas Medical Fund in respect of the loans granted to date,
including details of sureties
provided and interest payments.
”
[85]
In Lloyd’s response of 30 July 1996 he contended for only the
R1 million loan emanating from the shareholders’
agreement and
made reference to the Affin proposal or funding agreement.
[86]
Lloyd did not refer to a loan in the sum of the surrender value of
the first policy and did not claim the value of the policy
as an
asset. This is in keeping with the plaintiff’s version and
contradictory to the defendant’s version.
[87]
It is significant that Lloyd was not called to testify regarding
aspects such as this letter, the contents of which run parallel
to
Adam’s testimony.
The
Surrendering of the First Policy
[88]
It is undisputed that the first policy was surrendered and that the
plaintiff was paid the sum of R11 634 848.00 by Sanlam.
According to
the defendant’s version, it was entitled to those proceeds yet,
Adam admitted that those proceeds were never
demanded or claimed by
the defendant.
[89]
The conduct of the defendant regarding the first policy was
inconsistent with the conduct of an ‘owner’ yet the
defendant’s case is that the proceeds of the policies ought to
be viewed and treated differently.
[90]
This inconsistency in the defendant’s case is not supportive of
the version that has been presented in the defendant’s
evidence. On the contrary, the conduct of the defendant seems to be
corroborative of the plaintiff’s version.
Interpretation
of the Funding Agreement
[91]
The funding agreement was concluded in the context of clauses 6.3 and
6.6 of the shareholders’ agreement and in that
context, in
terms of clause 6.6 the shareholders were to provide security in
proportion to their shareholding for further funding
required if
agreed.
[92]
The Affin proposal and consequent funding agreement was an agreement
as envisaged in clause 6.6 and as such falls to be interpreted
in the
light of that clause.
[93]
Paragraph 1.5 of the Affin proposal expressly refers to the
shareholders’ agreement and it sought to record the plaintiff’s
obligation as a shareholder (in terms of clause 6.6) to provide
security in proportion to its shareholding, that is 26%.
[94]
The requirement set out in paragraph 2 of the proposal, namely the
cession of the policy ought to be interpreted in the context
of
clauses 6.3 and 6.6 of the shareholders’ agreement.
[95]
When regard is had to the context in which the funding agreement was
concluded and the subsequent conduct of the parties the
conclusion is
inescapable that on a proper construction and interpretation of the
funding agreement, the cession of the policy
and thereafter the
policies could only have been for the purposes of security and that
the plaintiff was accordingly entitled to
remain the beneficial
owner, entitled to the proceeds of the policies save to the extent
that FNB had called upon the loan and
utilised the security to
satisfy its claims.
[96]
This conclusion finds support in the approach to the interpretation
of documents as stated by Wallis JA in
Natal Joint Municipal
Pension Fund v Endumeni Municipality
2012 (4) SA 592
(SCA) para
18 in which he held as follows:
“
[18]
Over the last century there have been significant developments in the
law relating to the interpretation of documents, both
in this country
and in others that follow similar rules to our own. It is unnecessary
to add unduly to the burden of annotations
by trawling through the
case law on the construction of documents in order to trace those
developments. The relevant authorities
are collected and summarised
in Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman
Primary School. The present state
of the law can be expressed as
follows. Interpretation is the process of attributing meaning to the
words used in a document, be
it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision
or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever
the nature of the document, consideration
must be given to the language used in the light of the ordinary rules
of grammar and
syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material known
to those
responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the light of all
these
factors. The process is objective not subjective. A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike
results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute
what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory
instrument is to cross the divide between
interpretation and legislation. In a contractual context it is to
make a contract for
the parties other than the one they in fact made.
The ‘
inevitable
point of departure is the language of the provision itself
’
,
read in context and having regard to the purpose of the provision and
the background to the preparation and production of the
document.
”
[97]
In casu
, the manner in which the parties carried out their
agreement must also be considered as part of the contextual setting
in ascertaining
the parties’ intentions regarding the funding
agreement. As stated by Leach JA in
Unica Iron and Steel v
Mirchandani
2016 (2) SA 307
SCA at paragraph [21]:
“
In
considering the validity of this argument, it is unnecessary to deal
in any depth with the principles applicable to the interpretation
of
contracts. They must now be regarded as well settled,
particularly in the light of recent judgments of this court […].
As Lewis JA stated in North East Finance:
“
The
court asked to construe a contract must ascertain what the parties
intended their contract to mean. That requires a consideration
of the
words used by them and the contract as a whole, and, whether or not
there is any possible ambiguity in their meaning, the
court must
consider the factual matrix (or context) in which the contract was
concluded.
”
All
that needs to be added is that it can be accepted that the way in
which the parties to a contract carried out their agreement
may be
considered as part of the contextual setting to ascertain the meaning
of a disputed term […]. As is stated in R H
Christie’s
The Law of Contract in South Africa 6 ed (2011) at 117, relying upon
Breed v Van den Berg
1932 AD 283
at 292-293, this is because the
parties’ subsequent conduct ‘may be probative of their
common intention at the time
they made the contract.
”
[98]
It was submitted on behalf of the plaintiff that it was a tacit term
of the funding agreement that notwithstanding the cession
of the
policies, the plaintiff was to remain the beneficial owner of the
policies and entitled to the net proceeds thereof.
[99]
The approach to tacit terms was succinctly enunciated by Cameron J in
Food and Allied Workers Union (FAWU) v Ngcobo N.O.
2014 (1) SA
32
(CC) at paragraph [37] as follows:
“
This
is not correct. The Union’s argument seeks to find in the
parties’ agreement a tacit term that the Union’s
obligation was merely to get the matter to the Labour Court, whether
before or after the cut-off. A tacit term is an unspoken provision
of
the contract. It is one to which the parties agree, though without
saying so explicitly. The test for inferring a tacit term
is whether
the parties, if asked whether their agreement contained the term,
would immediately say, “Yes, of course that’s
what we
agreed.” Before a court can infer a tacit term, it must be
satisfied that there is a necessary implication that they
intended to
contract on that basis.
”
[100]
Further, it was held in
Wilkin
v Voges
[1994] ZASCA 53
;
1994
(3) SA 130
(AD) 136H – 137C that:
“
The
paramount issue is the alleged tacit term. A tacit term, one so
self-evident as to go without saying, can be actual or imputed.
It is
actual if both parties thought about a matter which is pertinent but
did not bother to declare their assent. It is imputed
if they would
have assented about such a matter if only they had thought about it –
which they did not do because they overlooked
a present fact or
failed to anticipate a future one. Being unspoken, a tacit term is
invariably a matter of inference. It is an
inference as to what both
parties must or would have had in mind. The inference must be a
necessary one: after all, if several
conceivable terms are all
equally plausible, none of them can be said to be axiomatic. The
Inference can be drawn from the express
terms and from admissible
evidence of surrounding circumstances. The onus to prove the material
from which the inference is to
be drawn rests on the party seeking to
rely on the tacit term. The practical test for determining what the
parties would necessarily
have agreed on the issue in dispute is the
celebrated bystander test. Since one may assume that the parties to a
commercial contract
are intent on concluding a contract which
functions efficiently, a term will readily be imported into a
contract if it is necessary
to ensure its business efficacy;
conversely, it is unlikely that the parties would have been unanimous
on both the need for and
the content of a term, not expressed, when
such a term is not necessary to render the contract fully
functional.
”
[101]
In casu
, the parties are in agreement that the consequence of
the cession agreements was not a donation. Given the context which
has been
referred to above and in particular paragraphs 6.3 and 6.6
of the shareholders’ agreement, I accept the submission by the
plaintiff that the tacit term of the funding agreement was that
notwithstanding the cession of the polices, the plaintiff would
remain the beneficial owner of the policies and the proceeds thereof.
[102]
In the circumstances I do not deem it necessary to deal with the
alternative claim of a rectification of the replacement cession.
The
Proceeds of the Policies
[103]
The policies which the plaintiff ceded to the defendant matured on 1
December 2006 and the proceeds thereof on maturity were
R39 293
353.34 which was then according to the defendant reinvested and
restructured and proceeds in the sum total of R44 245 360.68
were
thereafter paid out to the defendant.
[104]
Adam conceded that FNB did not call up the loan which was secured by
the policies.
[105]
On the evidence the defendant appropriated the proceeds of the
policies. In the circumstances where FNB and/or the defendant
had
failed to request the plaintiff to provide replacement security to
the satisfaction of FNB to enable the defendant to continue
to have
access to overdraft facilities, I find that the defendant breached
the funding agreement by applying a portion of the proceeds
of the
policies in order to settle the defendant’s indebtedness under
the FNB facility and/or retaining a portion of the
proceeds of the
policies for itself and not paying the proceeds of the policies to
the plaintiff.
[106]
As a matter of law, the plaintiff is entitled to interest on the sum
of R44 245 360.68 at the prescribed rate of interest
as provided for
in terms of
Section 1
of the
Prescribed Rate of Interest Act 55 of
1975
. The prescribed rate of interest given the time of the issuing
of summons on 29 October 2008 would be subject to the in duplum rule.
Costs
[107]
It is trite that costs must follow the result. The plaintiff submits
that the costs be awarded to the plaintiff on an attorney
and client
scale for various reasons.
[108]
The plaintiff submits that the defence as advanced by the defendant
in the trial was demonstrably false and dishonest. I accept
that
where the defendant had for all intents and purposes accepted that
the plaintiff was a beneficial owner of the policies for
a period of
about ten years and reflected that position in its financial
statements, engineering a change of that status on no
justifiable
basis can be justifiably described as dishonest.
[109]
The plaintiff further bases its application for costs on an attorney
and client scale on the petulant demeanour of the defendant’s
controlling mind, Adam who resorted to unjustified grossly defamatory
accusations against the plaintiff’s lead counsel and
persisted
therewith notwithstanding warnings from the bench.
[110]
In the matter of
Protea Assurance Co. Ltd v Januszkiewicz
1989
(4) SA 292
(W) at 292 F - G the court awarded costs on an attorney
and client scale as a mark of extreme displeasure at the defendant’s
attorney’s conduct in making scurrilous attacks upon the
plaintiff and his attorney. I find that Adam’s conduct in
these
proceedings can be equated to the conduct referred to in the
Januszkiewicz case and that costs should be awarded on a similar
scale. I do not find as argued by the defendant’s counsel that
Adam’s conduct was provoked by unduly robust cross-examination.
On the contrary the tenour of robustness was a direct result of
Adam’s petulant conduct.
[111]
The plaintiff further submits that Adams conduct under
cross-examination justifies a
de bonis propriis
cost order
against him personally. I am not persuaded that such an order is the
appropriate one in the circumstances.
WHEREFORE
the following order is made:
1.
The
defendant is ordered to pay the plaintiff:
1.1
The
sum of R44 245 360.68
1.2
Interest
on the sum of R44 245 360.68 at the rate of 15.5% per annum
calculated from 29 October 2008 to date of payment, but limited
to no
more than R44 245 360.68.
2.
Cost
of suit on the scale as between attorney-and-client, which costs are
to include the costs occasioned by the employment of two
counsel.
___________________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard
on
:
12 - 20 May 2016 and 1 June 2016
Delivered
on
:
18 August
2016
For
the Plaintiff:
Advocate M. Maritz (SC)
Advocate D. R. van Zyl
Instructed
by:
Gildenhuys Malatji Incorporated
For
the Defendant:
Advocate B. W. Burman (SC)
Advocate G. W. Girdwood
Instructed
by:
Terry Mahon Attorneys