About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 18
|
|
Senwes Ltd. and Others v Jan van Heerden and Sons CC and Others (601/05) [2007] ZASCA 18; [2007] SCA 18 (RSA) ; [2007] 3 All SA 24 (SCA) (23 March 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case number : 601/05
In the
matter between :
SENWES
LIMITED
FIRST
......................
APPELLANT
SENWESBEL
LIMITED
......................
SECOND APPELLANT
VAALHARTS
CO-OPERATIVE LIMITED
......................
THIRD APPELLANT
and
JAN VAN HEERDEN & SONS CC
......................
FIRST
RESPONDENT
CHARLES ENGELBRECHT
......................
SECOND
RESPONDENT
LOUIS J FOURIE
......................
THIRD
RESPONDENT
CHARLES H DU P MARTINSON
......................
FOURTH
RESPONDENT
TIELMAN C L MEYER
......................
FIFTH
RESPONDENT
SUSANNA K OTTO NO
......................
SIXTH
RESPONDENT
PETRUS P V VAN WYK
......................
SEVENTH
RESPONDENT
CORAM : SCOTT, BRAND, VAN
HEERDEN, COMBRINCK JJA
et
SNYDERS AJA
HEARD : 26 FEBRUARY 2007
DELIVERED : 23 MARCH 2007
Neutral citation: This judgment
may be referred to as
Senwes
v Van Heerden & Sons
[2007]
SCA 18 (RSA)
Summary
:
Vaalharts agricultural co-operative taken over by another
co-operative, Senwes, which was subsequently converted into company –
the plaintiffs, former members of Vaalharts, agreed to take up shares
in Senwes in exchange for members' levies – whether transaction
constituted an 'arrangement' in terms of s 169A of Co-operatives Act
91 of 1981
JUDGMENT
_____________________________________________________
BRAND JA
/
BRAND JA
:
[1] The seven respondents (plaintiffs), together with about 160
others, each instituted separate actions, on substantially the same
grounds, against the appellants (defendants) in the Kimberley High
Court. The actions of the seven plaintiffs were consolidated by
agreement between the parties. The fourth plaintiff's action fell
away when his estate was sequestrated. The remaining six then
proceeded
to trial. The plaintiffs' pleadings in the consolidated
action still bear the scars of many amendments. They also retained
numerous
factual allegations pleaded in support of causes of action
no longer relied upon at the trial. The trial was postponed on many
occasions
and it ran for an inordinate number of days. From its date
of commencement on 19 February 2002 it stretched over more than three
years. In the end the court
a quo
(Majiedt J) gave judgment in
favour of the plaintiffs on 19 August 2005. The appeal against that
judgment, which has since been reported
sub nom Jan van Heerden en
Seuns BK v Senwes Bpk
[2006] 1 All SA 44
(NC), is with the leave
of the court
a quo
.
[2] The issues between the parties will best be understood in the
light of the background facts. The third defendant, Vaalharts
Co-operative
Limited, had been established as an agricultural
co-operative in 1944. Until December 1996 all the plaintiffs were
members of that
co-operative. The first defendant, Senwes Limited,
also started out life as an agricultural co-operative. During April
1997, it was,
however, converted into a public company pursuant to
the provisions of the Co-operatives Act 91 of 1981 ('the Act').
[3] On 30 December 1996 Senwes and Vaalharts entered into a written
deed of sale, ('verkoop van besigheid'), in terms of which Senwes
essentially took over the business of Vaalharts as a going concern.
It acquired all the assets of Vaalharts in exchange for most
of the
latter's liabilities. Some liabilities were, however, expressly
excluded from the deal. Most prominent amongst these exclusions
was
the liability of Vaalharts towards its members for the contributions
they had made to its members' fund. For the sake of brevity
and
convenience I will refer to these contributions as 'members' levies',
though the term is not entirely accurate in that some contributions
were in fact voluntarily made.
[4] These members' levies, which played the central role in the
dispute between the parties, were governed by s 99 of Vaalharts'
statute. In terms of s 99(1), members were obliged to contribute a
certain percentage of the income they received from agricultural
produce to the members' fund. Members were also entitled, however, to
make additional voluntary contributions to the fund. At some
stage in
the history of Vaalharts, these voluntary contributions were quite
popular as creating something in the nature of a pension
fund for
members.
[5] From the members' point of view, the disadvantage of these levies
as an investment was the restrictions imposed on repayment.
In
substance, s 99(5) of the statute provided that members were only
entitled to repayment upon termination of their membership and
then
only if the directors were of the opinion that the co-operative was
in a financial position to do so. Probably as a result of
this
discretion whether or not to make repayment, levies were, for
accounting purposes, looked upon as akin to share capital and
not as
unsecured loans to the co-operative, which, from a legal perspective,
they obviously were.
[6] During the negotiations preceding the final conclusion of the
sale agreement with Senwes at the end of 1996, the directors of
Vaalharts were understandably anxious to secure repayment of members'
levies as part of the deal. The formula they eventually assented
to,
in principle, appears from a circular which was distributed by the
directors of Vaalharts to all its members during November
1996. Since
this document was annexed to plaintiffs' particulars of claim as
'annexure C', it was given that description in the court
a quo
.
I propose to follow the same terminology.
[7] Annexure C starts with an explanation by the directors of
Vaalharts as to why, as a result of the deteriorating financial
situation
of the co-operative, it was compelled to sell its business
as a going concern to Senwes. The latter was, at the time, still a
co-operative
but on the verge of converting into a public company. It
was pointed out in the document that, while the total sum of members'
levies
owing amounted to about R50m, the financial statements of the
co-operative reflected an excess of assets over liabilities
(excluding
the members' levies) of only R44m. But for the fact that
members' levies were regarded as akin to share capital, the
co-operative
would thus be trading in insolvent circumstances.
Nevertheless, annexure C explained, Senwes was prepared, as part of
the package
deal offered, to absorb the shortfall and to afford the
members of Vaalharts the full benefit of the members' levies standing
to
their credit in the co-operative's accounts.
[8] The package deal offered also included the condition that all
members of Vaalharts should resign. Upon resignation, members would
be entitled to repayment of their levies. But, so annexure C stated,
repayment would not necessarily be in the form of cash. Members
were
given two options: (a) to receive payment in cash; or (b) to acquire,
in lieu of a cash repayment, shares in Senwes in exchange
for two
thirds of their levies and shares in Senwes' holding company,
Senwesbel Ltd, in exchange for the other third. According to
annexure
C, the prices at which these shares would be allocated were
calculated with reference to their nett asset value and amounted
to
R4,50 per share in Senwes and R6,00 per share in Senwesbel. Another
important part of the package deal set out in annexure C was
that
Senwes reserved the right to resile from the transaction if it were
not satisfied with the percentage of members who opted for
shares. In
fact, the deed of sale eventually entered into in December 1996 was
expressly made subject to the suspensive condition
in favour of
Senwes that at least 95% of the members take repayment of their
levies in the form of shares.
[9] Attached to annexure C was a resignation form. According to its
content, the signing of this form by a member would constitute
both
resignation of membership and the formal consent by the member that
the directors could proceed with the Senwes deal. It also
called upon
each member to indicate which of the two options available for
repayment of his or her levies the member preferred. An
election of
the share option, so the form stated, would be regarded as an
irrevocable mandate to the directors of Vaalharts to subscribe
to the
number of shares to which the member would be entitled in accordance
with the agreed formula.
[10] All the plaintiffs signed the resignation form. Though the issue
was not specifically canvassed at the trial, all available
evidence
seems to indicate that every member of Vaalharts did the same. About
90% of the members, including the plaintiffs, chose
the share option.
This apparently satisfied Senwes not to invoke the 95% suspensive
condition, but to go on with the sale.
[11] During 1997 effect was given to the terms of the sale. All
assets and liabilities of Vaalharts (that were not excluded from
the
sale) were transferred to Senwes. Levies standing to the credit of
members who opted for shares were ceded to Senwes. When Senwes
became
a public company in April 1997, these members received the number of
shares in Senwesbel and Senwes that were allocated to
them in
accordance with the agreed formula.
[12] However, before long, remorse set in among some of the
lastmentioned group. They felt that they had been misled by the
representatives
of Senwes, who were assisted in the process by the
directors and the auditors of Vaalharts. Though a number of reasons
for their
dissatisfaction were advanced, their main complaint related
to the value of the Senwes shares. While they were given the
assurance,
they said, that they were acquiring these shares at
substantially below market value, it turned out that there was in
fact a very
limited market for the shares which, in the event, traded
at a price far below R4,50 per share.
[13] In November 1999 the dissatisfaction led to the institution of
proceedings by the plaintiffs and another 160 erstwhile members
of
Vaalharts against Senwes, Senwesbel and Vaalharts, as well as against
the auditors of Vaalharts as the fourth defendant. Originally
the
plaintiffs relied on two alternative causes of action. Their main
claim was for payment of the amounts credited to their levy
accounts
that had been transferred to Senwes, against return of the shares
they had received. They based this claim on the cancellation
of a
contract they allegedly concluded with Senwes, Senwesbel and
Vaalharts. This claim was brought only against the first three
defendants. In the alternative they sought to hold all four
defendants liable in delict for the damages they suffered as a result
of the Senwes transaction. Both claims were founded on allegations of
negligent misrepresentations made on behalf of the defendants,
including misrepresentations about the value of the Senwes and
Senwesbel shares.
[14] Two years after the actions were instituted, the plaintiffs
introduced a further alternative cause of action by way of an
amendment
to their particulars of claim. The gravamen of this new
cause of action was that annexure C – inclusive of the
resignation
form – constituted 'an arrangement' between
Vaalharts and its members as contemplated by s 169A of the Act which,
in terms
of the section, required the sanction of the High Court.
Because this sanction had not been sought and obtained, so the
amended particulars
averred, the arrangement was
void ab initio
.
The defendants' main response consisted of a denial that the
transaction constituted an 'arrangement' between Vaalharts and its
members as envisaged by s 169A.
[15] At the commencement of the proceedings the court
a quo
ordered, on application by the defendants, that the question
regarding the applicability of s 169A be decided as a point
in
limine
, prior to the hearing of evidence. In the event, the court
decided the preliminary issue in favour of the plaintiffs.
Consequently
it declared both the 'arrangement' between Vaalharts and
its members and the ensuing agreement of sale between Vaalharts and
Senwes,
void
ab initio
. The court's reasons for this
conclusion appear from its reported judgment (see paras 16 – 40
at 49g – 62h).
[16] The effect of the declaratory order of invalidity on the further
proceedings turned out to be far-reaching. First, it led to
the
summary dismissal of the plaintiffs' claim against the fourth
defendant, ie the auditors of Vaalharts. Seeing that the plaintiffs'
claims against this defendant were squarely based on the proposition
that they gave up their members' levies pursuant to a valid
agreement, the court
a quo
found that these claims could no
longer be sustained (see para 41 at 62h-63a of the reported
judgment). Secondly, it caused the plaintiffs
to reformulate their
cause of action against the remaining defendants. What they now
sought to recover was an unjustified enrichment
on the part of the
defendants on the basis of what the plaintiffs labelled the
condictio
indebiti.
[17] In answer to this new cause of action, the remaining defendants
filed a special plea of prescription, contending that the plaintiff's
claim based on enrichment had become prescribed before it was
introduced for the first time in February 2002. In addition they
filed
a plea on the merits in which several defences were raised
against the enrichment claim. But, as is evident from the outcome,
neither
the plea of prescription nor any of the defendant's answers
on the merits found favour with the court
a quo
.
[18] For the most part the various issues decided by the trial court
again arose on appeal. The question antecedent to all these
issues
is, however, whether the transaction between the plaintiffs and
Vaalharts constituted 'an arrangement' between a co-operative
and its
members as envisaged in s 169A of the Act. The material provisions of
the section read as follows:
'169A.
Compromise and arrangement
between co-operative, its members and creditors
(1) If any compromise or arrangement is proposed between
a co-operative and its creditors . . . or between a co-operative and
its
members, the court may, on the application of the co-operative or
any creditor or member of the co-operative . . . order a meeting
of
the creditors . . . or of the members of the co-operative, as the
case may be, to be summoned in such manner as the court may
direct.
(2) If a compromise or arrangement is agreed to by –
(i) a majority in number representing three fourths in
value of the creditors . . . present and voting either in person or
by proxy
at the meeting; or
(ii) a special resolution,
as the case may be, such compromise or arrangement
shall, if sanctioned by the court, be binding on all the creditors .
. . or on
the members, as the case may be, and also on the
co-operative . . . .'
[19] It is clear that there are a number of transactions contemplated
by s 169A with which we are not concerned. First among these
are
transactions arising from the relationship between a co-operative and
its creditors. Though the plaintiffs were obviously also
creditors of
Vaalharts, they did not suggest that that relationship is of any
consequence in the present context. The section also
deals with
'compromises'. According to the authorities, these transactions
presuppose a dispute between the parties (see eg
Ex Parte
Cyrildene Heights (Pty) Ltd
1966 (1) SA 307
(W) at 308G-H). Again
it is not suggested that we are dealing with a transaction of that
nature. The sole question for consideration
is therefore whether
there was 'an arrangement' between Vaalharts and its members,
including the plaintiffs, which required the court's
sanction in
terms of s 169A.
[20] In identifying the transaction at issue, the court
a quo
adopted the plaintiffs' contention by referring to the
transaction under consideration as the one 'embodied in annexure C'
(see eg
para 20 at 50d-g). It is clear, however, that this cannot
possibly be correct. Annexure C did not in itself embody any
transaction.
It was no more than a circular ('omsendbrief') advising
the members of Vaalharts of the reasons for a recommended transaction
between
their co-operative and Senwes and of the proposed terms of
that transaction. What the document required of members, if they
supported
the proposal, was to sign the resignation form which was
attached to annexure C.
[21] Signature of the resignation form brought about an agreement
between the member and the co-operative. That seems to be the only
transaction between Vaalharts and its members that can legitimately
be considered in the present context. It will be remembered that
members who signed the resignation form: (a), authorised the
directors of Vaalharts to proceed with the proposed transaction with
Senwes; (b) formally resigned their membership of Vaalharts; and (c)
exercised an election whether they wanted payment of their levies
in
cash or in the form of shares. Did this agreement constitute an
'arrangement' under s 169A? The answer to this question will
determine
the outcome of the appeal.
[22] There appears to be no reported decision on the meaning of
'arrangement' in the context of s 169A of the Act. That in itself
does not result in any serious disadvantage. The wording of the
section was clearly taken over from s 311 of the Companies Act 61
of
1973 and the meaning of 'arrangement' in that section has indeed
enjoyed judicial consideration in a number of cases. As was pointed
out in some of them, the term is not one of any great technical
complexity. As a matter of ordinary English it is often used in
everyday
life. It usually bears a wide meaning, extending to
transactions which would not even qualify as contracts.
[23] As was also stated in some of the cases, s 311 serves a useful
purpose in the commercial world. The same can be said about s
169A.
The potential application of the mechanism created by the section
should thus not be hampered by affording a restricted meaning
to the
term of wide general import utilised by the legislature. So, for
example, it was said by Trollip J – with reference
to the
similarly worded s 103(4) of the previous Companies Act 46 of
1926 – in
Du Preez v Garber: In re Die Boerebank Bpk
1963
(1) SA 806
(W) 813C-D:
'
Gower
on Modern Company Law, 2nd ed. pp. 554-5
,
says that 'arrangements' covered by the section are of the widest
character, and that "the only limitations are that the scheme
cannot authorise something contrary to the general law or wholly
ultra
vires
the company . . .".'
(See also eg
Namex
[1993] ZASCA 181
;
1994 (2) SA 265
(A) 294E-F.)
[24] Nevertheless, it is clear that, despite these general
statements, some restrictions have been imposed in previous decisions
on the term 'arrangement' in s 311. The restriction most pertinent
for present purposes derives from what Coetzee DJP described in
Ex
Parte NBSA Centre Ltd
1987 (2) SA 783
(T) 785G-H as the 'inner
logic' of the section as gathered from its history and purpose. In
this context he said (at 787D-H):
'The history and purpose of this section
show that it is appropriate in cases where the normal mechanisms for
reaching agreement between
members on the one hand and the company on
the other are not available due to the context of the particular
scheme . . .
The corollary is that
where the normal mechanisms are available the scheme of arrangement
machinery is inappropriate
.' (My emphasis.)
[25] The same principle appears from the judgment of Trollip J in
Cyrildene Heights (Pty) Ltd supra
. After referring to his own
previous statement in
Du Preez v Garber supra
at 813C-D,
regarding the wide general ambit of 'arrangement' quoted earlier, the
learned judge continued as follows (at 309A-C):
'Despite that wide connotation I do not think that the
offer in the present case has been shown to be an "arrangement".
In terms of the offer the company is to pay most of its creditors in
full and they are obliged and entitled to receive such payments.
The
remainder of the creditors are to be paid amounts which they have
already agreed to accept in settlement. As the company is not
in
liquidation there is no difficulty in effecting such proposed
payments. It is not shown, for example, that the bondholder cannot,
because of the terms of its bond, be repaid in full at this stage.
Consequently there seems to be nothing that requires to be arranged
between the company and its creditors which necessitates the
invocation of sec. 103 [of Act 46 of 1926].
I cannot therefore find that the so-called compromise is
an 'arrangement'. That conclusion is supported by
Ex
parte British Mining Supply Co. Ltd
.,
1942
W.L.D. 96.'
(See also eg
Ex Parte Lomati Landgoed
Beherende (Edms) Bpk
1985 (2) SA 517
(W) at 521E-523D; Blackman,
Jooste, Everingham
Commentary on the Companies Act
, Vol 2,
Revision Service 2004, 12.4 – 12.5; Meskin
Henochsberg on
the Companies Act
601.)
[26] I can find no reason to depart from the principle thus
established. On the contrary, in my view it accords with the dictates
of logic and pragmatism. The machinery of the section was created for
those arrangements which cannot conveniently be achieved by
obtaining
the consent of every individual member. Where the same result can be
achieved by obtaining the consent of every member,
the section does
not apply.
[27] This is even more so where the agreement is subject to the
condition that it will be agreed to by every member. In such a case,
the court's sanction can serve no purpose and can only result in a
costly and wasteful exercise. What is more, where the whole
transaction
is predicated on every member's consent, insistence on
the court's sanction will enable those who agreed but, for some or
other reason,
no longer wish to be bound, to avoid the consequence of
a perfectly valid agreement by subsequently invoking the provisions
of s
311 or s 169A. That result is, in my view, untenable. After all,
s 311 and s 169A were not intended to enable the court to save
members
from entering into bad bargains, but to facilitate
transactions which would otherwise be practically impossible or at
least very
difficult to conclude.
[28] In the present case, the proposed offer by Senwes, as explained
in annexure C, postulated that every member would sign the
resignation
form. In the event, this goal appears to have been
achieved. On the authorities I have referred to, that excludes the
transaction
from the ambit of s 169A. What the plaintiffs are
therefore trying to do is precisely what, in my view, s 169A was not
intended for,
that is, to avoid the consequences of a bargain which
they have voluntarily concluded.
[29] The court
a quo
found support for its conclusion to the
contrary in the argument that the transaction was intended to have a
dramatic and far-reaching
('ingrypende') effect on the rights of
members. They lost their membership of and their claims against one
entity, so the court pointed
out, in exchange for membership of a
different entity (see para 35.5 at 59a-c of the judgment). Of course
all this is perfectly true.
But it seems, with respect, to miss the
point. What lies at the heart of the transaction is the precondition
that all this would
only happen to members who gave their express
consent to the transaction.
[30] The other argument that found favour with the court
a quo
was
that the agreement between Senwes and Vaalharts made no provision for
members who did not wish to resign. Of what entity, the
court
rhetorically asked, would they then be members? From whom would they
claim repayment of their membership levies? (See para
35.4 of the
judgment at 58j-59a.) The problem is that these questions were never
pertinently asked of those who structured the transaction
since the
point
in limine
was decided before any evidence was led. Three
rather obvious solutions, however, come to mind. The first is the
pragmatic answer
that in the end there were no members who did not
resign. As a fact only those who agreed were therefore held bound.
Any sanction
by the court would thus have been redundant. The
question as to what would have happened if every member did not
agree, can therefore
be of no more than academic interest. The second
possible answer to this question is that, if every member did not
agree, the arrangement
would not have gone through. This prospect
seems to be supported by the fact that the Senwes proposal was
expressly predicated on
the consent of every member. The third
possible answer is that, in that event, Vaalharts could have sought
the court's sanction for
the transaction in terms of s 169A, which
would then have bound any non-agreeing member as well.
[31] In this court a further argument was raised on behalf of the
plaintiffs as to why the agreement between Vaalharts and its members
constituted an arrangement under s 169A. This argument relied on the
provisions of s 169C of the Act. As I understood the argument,
it was
built on the proposition that s 169C automatically rendered
every agreement between a co-operative and its members an
'arrangement' under s 169A if the purpose of the agreement was to
facilitate the amalgamation of two or more co-operatives. There
is no
merit in this argument. Section 169C operates the other way round. It
only applies to transactions which can properly be described
as
'arrangements' under s 169A. If not, the fact that the
transaction satisfies the other requirements of s 169C is of no
consequence.
The section does not apply. The question whether or not
a particular transaction can properly be described as an
'arrangement' thus
remains to be determined by reference to s 169A.
[32] Since the one issue underlying all the others must therefore, in
my view, be decided against the plaintiffs, that, in reality,
is the
end of the matter. The court
a quo's
judgment cannot stand and
the appeal must succeed. It is therefore not necessary to deal with
any of the other conclusions arrived
at by the court
a quo
and
this court's failure to do so must not be construed as an endorsement
of their correctness. However, I propose to deal with one
of these to
prevent any confusion in the future. It relates to the question of
which party bore the onus with regard to the quantum
of the
plaintiffs' enrichment claims.
[33] The plaintiffs' claims were essentially for the amounts standing
to their credit in the Vaalharts members' levy account at the
time of
the Senwes transaction. The defendants denied that these amounts
represented the true value of the plaintiffs' claims against
Vaalharts, inter alia, on the basis that, at that time, the assets of
the co-operative were exceeded by its liabilities. The question
then
arose as to who bore the onus of proof in this factual dispute. The
court
a quo
decided that the onus rested on the defendants
(see para 47.5 at 70e-71f). Its underlying reasoning appears to have
been that, because
the defendants had admittedly derived some benefit
from a transaction which was found to be invalid, they had to prove
that the quantum
of their enrichment was less than the amount alleged
by the plaintiffs. The origin of this reasoning appears from the
court's reference
(at 70h-i) to
African Diamond Exporters (Pty)
Ltd v Barclays Bank International Ltd
1978 (3) SA 699
(A) at 713H
and to the following statement in
LAWSA
, 1
st
re-issue, Vol 9 para 80:
'The onus to prove non-enrichment (or
diminution of enrichment) is on the defendant and should he fail to
prove it, he remains liable
for the full value of the property'.
[34] The flaw in the court
a quo's
line of reasoning in this
regard is that the defence raised by the defendants in this case was
not one of non-enrichment. A typical
non-enrichment defence is to be
found in
African Diamond Exporters
, upon which the court
a
quo
relied. In that case the defendant admitted that it had
received a specific sum of money
indebitum
, but then pleaded
that it had subsequently parted with some of it without any fault of
its own. It was against this background that
Muller JA stated (at
713H):
'I agree . . . that, where a
plaintiff has proved an overpayment recoverable by the
condictio
indebiti
, the onus rests on the defendant to
show that he was, in fact, not enriched at all or was only enriched
as to part of what was received.'
[35] According to established principle, the point of departure in
enrichment cases is that the onus rests on the plaintiff in respect
of every element of the cause of action relied upon (see eg
Willis
Faber Enthoven (Pty) Ltd v The Receiver of Revenue
[1991] ZASCA 163
;
1992 (4) SA
202
(A) 224H-I). In
casu
the dispute related to the value of
what was transferred
indebitum
in the first place. There is no
reason why this should constitute an exception to the general rule.
It follows that, in my view, the
plaintiffs bore the onus of proving
the value of their members' levies that were transferred to Senwes.
[36] Finally, it was contended on behalf of the plaintiffs that, if
the appeal were to succeed, the matter should be referred back
to the
court
a quo
for the hearing of further evidence on their
original causes of action in contract and in delict, based on
allegations of negligent
misrepresentation. It seems, however, that
this contention is based on a misunderstanding of the rules of civil
procedure. Barring
a separation of issues, a plaintiff is required to
prove the elements of all causes of action upon which he or she seeks
to rely,
albeit in the alternative. Since the plaintiffs in this case
elected to pin their colours exclusively to the enrichment mast,
there
was no factual basis upon which the court
a quo
could
hold in their favour on any alternative ground. In the view that I
hold on the enrichment claim, it should therefore have dismissed
the
plaintiffs' claims with costs. That then is the order I propose to
make.
[37] It is accordingly ordered:
(a) The appeal is upheld with costs, including the costs of two
counsel.
(b) The order of the court
a quo
is set aside and replaced
with the following:
'(i) The plaintiffs' claims are dismissed with costs, including the
costs of two counsel.
(ii) All costs previously reserved shall be costs in the cause.'
..........................
F D J BRAND
JUDGE OF APPEAL.
CONCUR
:
SCOTT JA
VAN HEERDEN JA
COMBRINCK JA
SNYDERS AJA