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[2015] ZAGPPHC 34
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Enable Employment (Pty) Ltd v Frese and Others (73789/2013) [2015] ZAGPPHC 34 (3 February 2015)
IN
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH PROVINCIAL DIVISION
DATE: 3 FEBRUARY
2015
CASE NO: 73789/2013
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
ENABLE EMPLOYMENT
(PTY)
LTD
..................................................................
Applicant
and
JORG RAINER
FRESE
.................................................................................
First
Respondent
TAU PELE
CONSTRUCTION (PTY)
LTD
.............................................
Second
Respondent
STEPHANUS
FRANCOIS ENGELBRECHT
............................................
Third
Respondent
ABRAHAM FRANCOIS
BOUWER
..........................................................
Fourth
Respondent
MARTHINUS
PHILIPPUS
PRINSLOO
......................................................
Fifth
Respondent
XOLILE ELSON
DASHEKA
........................................................................
Sixth
Respondent
PIETER WILHELM
MULLER
................................................................
Seventh
Respondent
JOSEPH JEREMIA
DEETLEFS
................................................................
Eighth
Respondent
JUDGMENT
HASSIM AJ
[1]
This is an application to compel a private body as defined in
Promotion of Access to Information Act, Act 2 of 2000 (“
PAIA
”
)
to allow the applicant access to records in terms of section 78. On
the conspectus of the evidence, it appears that the applicant
has
reservations about whether the business rescue proceedings were valid
or not. It seems that these reservations prompted the
applicant to
deliver a request for access to the records of the respondents in
terms of section 50 of the Promotion of Access to
Information Act,
Act 2 of 2000
(“PAIA”)
read
together with Regulation 10 of the Regulations made under it. The BRP
failed to respond to the request within the requisite
period. The
applicant therefore applies for access to information under section
82(b) of PAIA. It seeks an order requiring the
respondents to provide
to it a number of documents concerning the business rescue
proceedings. After the institution of these proceedings,
the BRP
provided some documents to the applicant. The applicant no longer
pursues all the relief claimed in the notice of motion.
[2] The applicant
seeks in terms of the notice of motion an order directing the
respondents to furnish to it within 30 days of this
order a number of
specified documents. The notice of motion reads as follows:
“
1
...The Respondents be directed to furnish the Applicant with the
following information, within a period of 30 days from the date
of
this order:
1.1 Proof that
the notice of appointment ofJorge Rainier Frese as business rescue
practitioner was published to each affected person
within five days
after same was filed, on 24 September 2012;
1.2 The
original business rescue plan prepared by the First Respondent, as
contemplated in section 150 of the Companies Act, Act
71 of2008 ("the
Act”);
1.3 Proof of
the fact that a business plan was published by the Second Respondent
within 25 (twenty-five) business days after the
business rescue
practitioner was appointed;
1.4 The notice
delivered to all affected persons, at least 5 (five) business days
prior to the meeting of 13 December 2012 (being
the meeting where the
business rescue plan was tabled for the first time), as contemplated
in Section 151(2) of the Act, including:
1.4.1 the
agenda of the meeting; and
1.4.2 The
required summary of the rights of the affected persons to participate
and vote at the meeting;
1.5 Proof of
the fact that aforesaid notice was delivered to all affected
persons;
1
1.6 The notice
delivered to all affected persons at least 5 (five) business days
prior to the meeting of 13 February 2013, as well
as proof of the
fact that same
was
delivered to all effected persons;
1.7 any and
all records relating of [sic] the following, in respect of the
meeting of 13 February 2013:
1.7.1 the
creditors that attended the meeting;
1.7.2 the
names of the representatives that voted on behalf of each of the
creditors;
1.7.3 the
ballot forms completed on behalf of creditors (in the format
forwarded to [the applicant] under cover of your electronic
message
dated 12 February 2013).
1.8 That the
Respondents be ordered to pay the costs of this application jointly
and severally, one to pay the other to be absolved.
”
[3] The respondents
oppose the application on a number of grounds. I discuss these later
in this judgment.
BACKGROUND TO THE
APPLICATION
[4]
On 17 September 2012, the board of directors resolved to place the
second respondent
(“the
Company
”
)
under business rescue in terms of section 129(l)(b) of the Companies
Act, Act 71 of 2008
("the
Companies Act").
The
first respondent
(“the
BRF”)
was
appointed as the business rescue practitioner on or about 24
September 2012.
[5] The respondents
contend that a business plan was adopted at a meeting of creditors on
13 February 2013, it has been implemented,
and that the BRP has filed
a notice of substantial implementation of the business rescue plan on
21 May 2013, which has ended the
business rescue proceedings.
IS THE APPLICANT
SEEKING ACCESS TO A RECORD OR IS IT SEEKING ACCESS SIMPLY TO
INFORMATION?
[6] Before I
continue I am of the view that one of the grounds of opposition
relied upon by the respondents can be and must be immediately
considered because if I find in the respondents’ favour the
applicant cannot succeed.
[7]
The respondents contend that what the applicant demands access to
does not constitute a record contemplated in PAIA. They argue
that
the applicant is seeking access to “information”, which
they contend is something different from a "record”.
The
respondents proceed to argue that the applicant is seeking
“information” in the nature of “proof’ of
publication or delivery of a document. This, the respondents claim,
is not a record. I cannot agree. “Record” is defined
in
PAIA as meaning, “
any
recorded information regardless of form or medium, in the possession
or under the control of a public or private party, whether
or not it
was created by that public or private body
Hartzenberg
J (as he then was) found as follows in
CCII
Systems (Pty) Ltd v Fakie and
Others
NNO
2003
(2) SA 325
(T):
“‘
record'
is defined in s 1 of the Act [PAIA] as 'any recorded information...
regardless of form or medium ... in the possession or
under the
control of that public... body'. Section 29 (2) gives an idea of what
recorded information the Legislature had in mind.
If I understand the
section correctly it relates to information in printed form, video
recordings and photographs, tape recordings,
computer data, all
possible other forms of recordings, yet to be invented. It stands to
reason that a single page can constitute
a ‘record’. If
there is one page about one subject in the possession of a public
body it is a ‘record^
[8]
The Oxford English dictionary defines the verb “record”
inter alia
as
follows:
“
register
,
set down for
remembrance or reference, put in writing or other legible shape,
represent in permanent form, or otherwise for reproduction
”
and
the noun “record” means
inter
alia
“
recorded
state
”
,
the noun “register” means
inter
alia
“
book in
which entries are made of details to be recorded for reference
”
and
the verb “
register
”
means
inter alia
“
set
down (name, fact,
etc.) record in writing enter or cause to be entered in particular
register
”
.
The dictionary meaning of “proof’ is
inter
alia
“
fact
or evidence”.
[9] It is clear that
the applicant is seeking information, which is recorded. If there is
no record of the information sought then
the respondents must say so.
If the proof, which the applicant desires, is recorded in whatever
form then it has a right to be
given access thereto.
[10] I am satisfied
that that which the applicant seeks constitutes a record. What the
applicant seeks is recorded information regardless
of the form or
medium. If the information to which the applicant desires access is
not “registered” in any form or
medium, then it does not
exist. However, this is not the respondents’ case. In my view,
the argument is contrived; it has
no merit.
THE RELEVANT
STATUTORY PROVISIONS PERTAINING TO ACCESS TO RECORDS
[11]
In terms of PAIA, any person has the right to request
inter
alia
a
private body to grant to it access to any record of that body if:
(i) The record is
required for the exercise or protection of any right;
(ii) the person
complies with the procedural requirements in PAIA relating to a
request for access to that record; and
(iii) access to that
record is not refused in terms of any ground for refusal contemplated
in Chapter 4 of Part 3 of PAIA.
[12] It is therefore
apparent that a person requesting access to a record of a private
body must show that:
(i) what he or she
requires access to is a record contemplated in PAIA;
(ii) the record is
required for the exercise or protection of a right;
(iii) he or she has
complied with the procedural requirements relating to a request for
access to that record; and
(iv) access to that
record is not refused on the recognised grounds for refusal.
[13] I have already
found that what the applicant is seeking access to is a “record”
contemplated in PAIA. I, find nothing
wanting in the procedure that
the applicant adopted in seeking access to the record. I do not
understand the respondents to argue
that they are entitled to refuse
access to the records on any of the recognised grounds in PAIA.
DOES THE
APPLICANT REQUIRE THE RECORD FOR THE EXERCISE OR PROTECTION OF ANY
RIGHTS?
[14] I have
expressed myself on whether there is merit in the respondents’
argument that what the applicant is seeking access
to is not a record
contemplated in PAIA.
[15]
The second ground on which the respondents resist the application is
the argument that the applicant has failed to show that
the records
are
'‘required
for the exercise or protection of any rights
The
respondents argue that the applicant has failed to cross the
“
need
to know”
2
threshold
for requests for access to the records of private bodies. At the
heart of the argument is the assertion that the applicant
does not
qualify as an “
affected
person
”
contemplated
in the business rescue provisions in the Companies Act because:
Firstly it is not a creditor and therefore not an affected
person.
Secondly, the applicant does not have a right to attack the business
rescue after the business rescue plan has been adopted
at a meeting
of creditors.
3
WHAT, IF ANY,
RIGHT DOES THE APPLICANT HAVE?
[16] The
respondents’ counsel argued that the applicant has not passed
the “need to know threshold” and it is
therefore not
entitled to access to the records sought. I am satisfied that the
applicant has demonstrated that it is entitled
to access. I deal with
the threshold later in this judgment.
[17] Voluntary
business rescue proceedings are initiated by the board of a company
resolving in terms of section 129 of the Companies
Act to begin
business rescue proceedings and place the company under supervision.
[18] The company has
a right (as well as an obligation) to appoint a business rescue
practitioner who must meet the requirements
listed in section 138 of
the Companies Act.
[19] A creditor of a
company under business rescue qualifies as an "affected person"
in terms of the Companies Act in
the context of business rescue
proceedings.
[20]
The long title to the Companies Act is an indicator of the intention
behind the business rescue proceedings provisions. It
states that the
Companies Act is “to provide for efficient rescue and recovery
of financially distressed companies”.
Section 7 lists the
purposes of the Companies Act. The stated purpose in section 7(k) is
to “
provide
for the beginning rescue and recovery of financially distressed
companies, in a manner that
balances
the rights and interests of all
relevant
stakeholders
”
.
[underlining
added] The principal stakeholders in this context are creditors,
shareholders, and employees. The business rescue provisions
in the
Companies Act were aimed at serving the interests of the distressed
company, by imposing a moratorium on the payment of
debts and serving
the interests of creditors by creating a process that would yield a
better return than in the winding-up of a
company. Largely, however,
business rescue proceedings ultimately inure to the benefit of the
debtor only. A creditor has little
choice but to accept whatever
dividend is paid. Business rescue proceedings then yield a result,
which is mimical to the laudable
aim of balancing the interests of
stakeholders. In the case of the liquidation of a company, various
processes and mechanisms are
available to a liquidator, such as
sections 26-31 of the Insolvency Act, Act 26 of 1936 to impeach
certain dispositions. The interrogation
of anyone who has information
inter alia
as
to the dealings or business affairs of an insolvent or a company
under winding up are provided for in the Insolvency Act as well
as
the Companies Act, Act No 61 of 1973. The interrogation and
impeachment mechanisms are
inter
alia
for
the recovery of assets to distribute among creditors to achieve the
best possible return for creditors. These are not available
to a
business rescue practitioner in business rescue proceedings.
[21]
The right of a creditor to repayment of the debt owed to him is
severely compromised
4
in business rescue proceedings. The company is, permitted to the
prejudice of creditors to rise from the ashes and prosper. As
I see
it, business rescue is akin to amnesty for a debtor. The debtor is
given a new lease on life; sometimes visiting financial
ruin on a
creditor and maybe even to its demise. It comes therefore as no
surprise that the legislature afforded a number of rights
to an
affected person. It may
inter
alia,
in
terms of section 130(1), apply to court for an order setting aside
the resolution initiating business rescue proceedings. An
affected
person may also apply for the setting aside of the appointment of a
business rescue practitioner. In terms of section
130(4), each
affected person has a right to participate in the hearing of an
application to set aside the resolution as well as
an application
setting aside the appointment of the business rescue practitioner.
These are but some of the rights afforded by
the Companies Act, to an
affected person in business rescue proceedings.
5
[22]
In terms of section 129(5), if a company fails
inter
alia,
to
publish the notice of appointment of the business rescue practitioner
to each affected person within five business days after
a notice of
appointment of a business rescue practitioner was filed by the
company, the company's resolution to begin business
rescue
proceedings and place the company under supervision lapses and is a
nullity. An affected person has the right at any time
until the
adoption of a business rescue plan to apply to court for an order
setting aside the resolution on the basis,
inter
alia,
that
the company failed to satisfy the procedural requirements set out in
section 129. Section 129(5) and section 130(1) (a)(iii)
are at odds.
If the resolution lapses and is a nullity
ab
initio-
it
is
non-est-
there
exists nothing to set aside.
[23]
Unless all the stakeholders, e.g. creditors, employees, shareholders,
the business practitioner agree that the resolution lapsed
and is a
nullity, there will always be uncertainty as to the status of the
company and the creditor. The legislature could not
have intended for
this uncertainty to persist by enacting section 130 (l)(a)(iii) to
preclude an affected party from seeking legal
clarity as to his or
her status
vis-á-vis
the
company or even by the BRP for instance. In my view, such a person
has a right to approach a court for a declaratory order if
nothing
else. It would be absurd if the legislature in enacting section
130(l)(a)(iii) intended to give legal effect to a resolution
that is
a nullity. No valid steps can follow upon a nullity.
[24] It could not
have been the intention of the legislature that the adoption of a
business rescue plan in all circumstances precludes
a person from
challenging the validity of the business rescue proceedings. If this
was the intention of the legislature it means
that if the initiation
of the business rescue proceedings, placing the company under
supervision and any process leading up to
the adoption of a business
plan is for instance tainted by fraud or is for some other reason is
illegal or invalid that creditors
and other affected parties are
bound thereby. This is absurd. An illegal act cannot produce legal
consequences.
[25]
A creditor has the right to know whether business rescue proceeding
are
extant
because
if they are, the company is under a moratorium for the payment of
debts and the creditor’s claim may have been compromised
in the
business rescue plan. On the other hand, if business rescue
proceedings are not alive the creditor is at liberty to pursue
whatever remedies may be available to it to recover the full extent
of the debt from the company. An affected person, such as the
applicant, is entitled to investigate
inter
alia
whether
the resolution to begin business rescue proceedings was valid or not,
whether the business rescue proceedings are valid
or not, whether the
company is or was ever under business rescue proceedings. If the
business rescue proceedings have been rendered
a nullity for want of
compliance with section 129(3) and (4), the applicant would have the
same remedies available in law to a
creditor.
[26] In terms of
section 129(5) the resolution to begin business rescue proceedings
and place the company under supervision lapses
and is a nullity, if
the company fails within five business days after a company has
adopted and filed a resolution to:
(i) publish a notice
of the resolution and its effective date in the prescribed manner to
every affected person, including with
the notice a sworn statement of
the facts relevant to the grounds on which the board resolution was
founded and appoint a business
rescue practitioner who has consented
in writing to accept the appointment;
(ii) file a notice
of the appointment of a practitioner within two business days after
making the appointment and publish a copy
of notice of appointment to
each affected person within five business days after the notice was
filed.
[27] As I have said
earlier, the applicant has reservations about the validity of the
business rescue proceedings. It has a right
to know whether they are
alive or not. I am satisfied that the applicant was and remains an
affected person contemplated in section
128(l)(a) of the Companies
Act or is a person with sufficient interest to approach a court for
relief. In my view, the proper relief
would be for a declaratory
order that the resolution has lapsed and is a nullity. Section 130
(1) (b) perhaps inadvertently envisages
a resolution that is extant.
I have dealt with this in paragraphs 22 and 23 of this judgement.
[28]
If the company failed to comply with any provision of section 129 (3)
and/or (4) the resolution placing the company under business
rescue
is null
ex tunc.
With
the resolution to begin business rescue proceedings and placing the
company under supervision, being a nullity nothing following
upon the
resolution is valid. Hence, there can be no validly convened meeting
of creditors, no business rescue plan to adopt and
any purported
“adoption” of the purported business plan is ineffectual
and inconsequential.
[29] The applicant
is therefore entitled to an order in terms of prayer 1.1.
[30]
Section 150 of the Companies Act obliges the business rescue
practitioner to prepare a business rescue plan, which must contain
at
least the information listed in section 150(2), (3), and (4). The
business plan is the blueprint for the rescue. This is the
document,
which will show whether there is a reasonable prospect of the company
being rescued. Section 150 (5) enjoins the business
rescue
practitioner to publish the business rescue plan within 25 days of
the having been appointed. This shows that the business
rescue
process cannot endure indefinitely. It again recognises that
creditors must know in a restricted time whether the company
under
business rescue has a reasonable prospect of meeting its financial
commitments to its creditors. A creditor has a right to
enforce
payment of a debt against a debtor when the debt falls due for
payment. Business rescue proceedings limit this right. The
legislature intended for this limitation to be restricted in time. If
a business plan cannot promptly, be prepared and presented
to
creditors for decision then the creditor’s right becomes
indefinitely suspended. I am in agreement with Gorven J that
the
consequence of the failure to publish the business plan timeously
terminates the business rescue proceedings.
6
This is compatible with the desire that the creditors must know in a
very short time whether there is a reasonable prospect of
rescuing
the company.
[31] If a plan does
not comply with the provisions of section 150, including section
150(5) it cannot be one that is contemplated
in that section. It,
therefore, follows that, even if the creditors adopted this plan, it
is not binding on the company, on the
creditors and on the holders of
the company's securities. An order in terms of paragraph 1.3 of the
notice of motion is warranted.
[32] All affected
persons must, at least five business days before the meeting, receive
a notice setting out:
(i) the date, time
and place of the meeting;
(ii) the agenda of
the meeting; and
(iii) summary of the
rights of affected persons to participate in and vote at the meeting.
[33]
A
"business
rescue plan
"
is defined as meaning
"a
plan contemplated in section 150".
Section
151 requires the business rescue practitioner to convene and preside
over a meeting of creditors within 10 days after publishing
the
business plan in terms of section 150 and on notice of not less than
five days.
[34] A business
rescue plan complying with section 150 must be adopted at a meeting
duly convened in terms of section 151. If creditors
have not received
proper notice the meeting cannot be duly convened and cannot qualify
as one “convened in terms of section
151”.
[35]
A business rescue plan is only binding on the company and its
creditors as well as every holder of the company's securities
if the
requisite majority
7
required
by the Companies Act at a duly constituted meeting approved it. If
either section 151(1) or 151(2) are not complied with,
then the
meeting will not be one convened in terms of section 152. The
business rescue plan is then not one, which has been adopted
in terms
of section 152, and it cannot have the consequence referred to in
section 152(4), namely, its binding nature on the company,
on the
creditors of the company and holders of the company's securities.
Orders sought in terms of paragraphs 1.5 and 1.6 are justified.
[36] The applicant
alleges that the business plan in its possession records 30 November
2012 as the date of its signature. It then
also records 30 January
2013 as the date on which it was amended. I understand it to suggest
that there is something sinister in
a business plan, which was signed
in November 2012 being amended in January 2013. The BRP admits that a
revised business plan was
published. He alleges that the applicant
has been given a copy of the “original” business plan.
However, he does not
explain how the original business plan (signed
on 30 November 2013) records amendments made on 30 January 2013. The
applicant has
a right to the business plan. I am satisfied that the
applicant is entitled to an order in terms of paragraph 1.2 of the
notice
of motion.
[37]
The respondents’ argue that the applicant has not passed the
“need to know threshold” and is therefore not
entitled to
access to the records sought. As I understand it, the argument is
based on the decision in
M&G
Media v FIFA
World
Cup Organising Committee
2011
(5) SA 163
para [354], The respondents contend that the decision of
the Supreme Court of Appeal in
Unitas
Hospital v Van Wvk
[2006] ZASCA 34
;
2006
(4) SA 436
(SCA) at para
[6]
_non-suits the applicant. I do not
believe that the decision has a bearing on this case. The plaintiff
(Mrs Van Wyk) the appellant
did not require the record she sought to
formulate her claim
8
for purposes of instituting an action. This is evident from the
dictum at para 19 where Brand JA stated:
“
[19]
With regard to the facts of this case, it can be accepted with
confidence that Mrs Van Wyk did not require the Naude report
to
formulate a claim for the purposes of instituting an
action,
[underlining
inserted]
What must also
accepted is that, once she instituted her action, and provided that
the Naude report turns out to be relevant to
the issues on the
pleadings, Unitas will be obliged to make it available under the
provisions for discovery in terms of Uniform
Rule 35...
[22] I hasten
to add that I am not suggesting that reliance on s 50 is
automatically precluded merely because the information sought
would
eventually become accessible under the rules of discovery, after
proceedings have been launched. What I do say is that pre-action
discovery under s 50 must remain the exception rather than the rule;
that it must be available only to a requester who has shown
the
'element of need’ or ‘substantial advantage’ of
access to the requested information, referred to in
Clutchco.
at the pre-action stage. An example of such a case is, in my
view, to be found in Van Niekerk v Pretoria City Council
[1997 (3) SA
839
(T)] ...the facts of that case were materially different. Van
Niekerk had a report by experts who did not identify who was
responsible
for the damage to his equipment (at 848C). The City
Council, on the other hand, relied on a report, which apparently
exonerated
it from responsibility (at 848F-G). Quite understandably,
in the circumstances, Van Niekerk’s allegation was that,
without
the report relied upon by the City Council, he was unable to
establish whether it would be liable (at 848H-I).
[23] Mrs van
Wyk is not in the same category as Van Niekerk. On her own showing,
she had a number of alternative sources of information
available to
her,... In the circumstances, she should, in my view, have explained
from the outset what more knowledge she hoped
to gather and what
benefit she hoped to obtain by gaining access, to the Naude report...
In the answering affidavits both Unitas
and Dr Naude made the
positive statements that she already had access to all the
information her experts needed to advise her,
and that the Naude
report would add nothing to her case.
[25] In the
circumstances, I conclude that Mrs van Wyk had failed to substantiate
the claim that the Naude report would be of assistance
to her in her
case against Unitas...
”
[38]
Van
Niekerk v Pretoria City Council,
dealing
with the report to which the applicant sought access found that the
report
would assist the applicant in either
proceeding with or abandoning his claim
against
the respondent
”
and
that the applicant could be said reasonably to
'‘'‘require
”
the
report.
[39]
In this case, the applicant does require the information to formulate
a claim for the purposes of instituting an application.
9
The records would assist the applicant in either proceeding with or
abandoning his claim action and I therefore find that the applicant
reasonably requires the records.
10
[40] In the result I
make the following order:
1. The Respondents
are directed to furnish the Applicant with the following information,
within a period of 30 days from the date
of this order:
1.1 Proof that the
notice of appointment of Jorge Rainier Frese as business rescue
practitioner was published to each affected person
within five days
after same was filed, on 24 September 2012;
1.2 The original
business rescue plan prepared by the First Respondent, as
contemplated in section 150 of the Companies Act, Act
71 of 2008;
1.3 Proof of the
fact that a business plan was published by the Second Respondent
within 25 (twenty-five) business days after the
business rescue
practitioner was appointed;
1.4 Proof of the
fact of delivery of the notice to all affected persons, at least 5
(five) business days prior to the meeting of
13 December 2012 (being
the meeting where the business rescue plan was tabled for the first
time), as contemplated in Section 151(2)
of the Act, including:
1.4.1 the agenda for
the meeting; and
1.4.2 The required
summary of the rights of the affected persons to participate and vote
at the meeting.
1.5 The notice
delivered to all affected persons at least 5 (five) business days
prior to the meeting of 13 February 2013, as well
as proof of the
fact that same was delivered to all affected persons;
1.6 All records
relating to the following, in respect of the meeting of 13 February
2013:
1.6.1 the creditors
that attended the meeting;
1.6.2 the names of
the representatives that voted on behalf of each of the creditors;
and
1.6.3 the ballot
forms completed on behalf of creditors (in the format forwarded to
[the applicant] under cover of your electronic
message dated 12
February 2013).
2. The costs of the
application to be paid jointly and severally by the first and second
respondents.
S K HASSIM
Acting Judge:
Gauteng North High Court
29 January 2015
Date of Hearing: 19
August 2014
Date of Judgment: 29
January 2015
For applicant: Adv D
Prinsloo
For
respondent: Adv IA Currie
1
The
notice which is referred to is the notice delivered to all affected
persons, at least five business days prior to the meeting
of 14
December 2012 (in the meeting where the business rescue plan was
tabled for the first time) as contemplated in s 151(2)
of the Act.
2
M&G
Media v FIF A World Cup Organising Committee 2
011
(5) SA 163
(GSJ) at [354].
3
Reliance
is placed, in this regard, on section 130( l)(a)(iii).
4
Cf.
sl52(4),s 154.
5
Cf.
sl30(l),
sl31(3), s139(2), s 145, s 147(l)(b), 150 (1) among other
provisions.
6
D H Brothers Industries (Ptvl Ltd
Gribnitz NO and others [201411 All SA174 (KNP)
para [30] and
[31].
7
An
order in terms 1.7 must follow.
8
Unitas
Hospital
supra
par.
19.
9
Cf
.Unitas
Hospital v Van Wvk
at
para [9].
10
Cf. Van Niekerk v Pretoria Citv
Council at p. 848 F-G.