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[2015] ZAGPPHC 737
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Mooikloof Estates (Pty) Ltd v Van der Walt and Another (26933/2014) [2015] ZAGPPHC 737 (1 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 26933/2014
Date:
1 July 2015
Not
Reportable
Not
of Interest to other judges
In the
matter between:
MOOIKLOOF
ESTATES (PTY) LTD
APPLICANT
And
O J
VAN DER WALT 1
st
1
st
RESPONDENT
MITHRO
CONSTRUCTION MANAGEMENT CC
2
nd
RESPONDENT
JUDGMENT
PRETO
R
IUS
J
,
[1] This
is an application requesting the court to grant the following relief:
"1.
Oat die
eerste
respondent
se
finale
toekenning
in
die arbitrasie
tussen
die
applikant
en
die
tweede
respondent, gedateer
28
Februarie
2014,
ingevolge die
bepaling van
artikel
33(1)(b) van die Wet op Arbitrasie, 42 van 1965, tersyde gestel word
omdat die eerste respondent ham aan
'n growwe
onreelmatigheid skuldig gemaak en sy bevoegdhede oorskry het.
2.
Oat die tweede respondent die koste van die aansoek betaal."
The
purpose of the application was formulated as follows:
"4.
Die
doe/ van
die
aansoek
is
om
die
arbitrasietoekenning van
die
eerste
respondent, wat
hy
op
28
Februarie
2014 gemaak
het
("die
toekenning''),
ingevolge
die
bepalings van
artikel
33(1)(b) van
die
Wet
op
Arbitrasie
tersyde
te stel.
Die
gronde vir
tersydestelling is
dat
die
eerste respondent sy
bevoegdhede in
die
arbitrasieverrigtinge oorskry
het."
(Court's emphasis)
[2]
The reasons, according to the applicant, why the applicant
avers that the arbitrator grossly exceeded
his mandate is that he,
without hearing evidence, decided that the second respondent
could ignore the escalation
amount that the second respondent's
quantity surveyor had agreed upon as this was done in spite of Mr
Godfrey, for the second
respondent, reiterating
during evidence, that the request not to render the final
account was due to the dispute
regarding the escalation of time
limits and the fines payable. The second reason was that the
arbitrator had found that although
none of the payment certificates
had provided for escalations, Mr Godfrey, on behalf of the second
respondent, never dealt with
it in a letter, e-mail or at any
meeting, that the second respondent was entitled to escalation. The
third reason is that
although the applicant succeeded with its
counter claim to the greatest extent, the applicant was ordered
to pay
the costs of the application.
[3] The
first meeting with the arbitrator took place on 26 July 2012 and it
was decided that the standard procedure rules would
be applicable in
the present matter. Rule 14 provides, inter alia, that the statement
of case has to contain the averments of the
claim, the facts and
legal conclusions on which the claim is based.
The
relief the application seeks:
[4] The
pleadings in the arbitration consisted of the second respondent's
statement of case, the applicant's (defendant's) answer,
the
applicant's counterclaim and the second respondent's plea on the
applicant's counterclaim and the applicant's reply.
[5] The
arbitrator's final award on 28 February 2014 was:
"My
award
is
that
defendant
pays
claimant
R3
760
670.31 Refer
to attached Annexures
A,
B
and
C"
[6]
Section 33(1)(b)
of the
Arbitration Act, 42 of 1965
provides:
"(1)
Where-
(a)
...
(b)
an arbitration tribunal has committed any gross
irregularity in the conduct of the arbitration proceedings or has
exceeded its powers;
or
(c)
the
court
may,
on
the
application
of
any
party to
the
reference
after due notice to the
other
party
or
parties,
make an order
setting the award aside."
(Court's emphasis)
[7] This
forms the basis of the attack on the award
of the first respondent. The
dispute between the
parties was a building dispute between the second respondent (as
contractor) and the applicant (as employer).
The arbitration
proceedings were instituted pursuant to
the provisions of clause 40.1 of the agreement.
[8] A
counter-application was launched requesting the following relief:
"1.
That the applicant's application be dismissed with costs;
2.
That the award
of
the
first
respondent
dated
25
February 2014
be
made
an
order
of
Court in
terms
of section
31
of
the
Arbitration
Act,
Act
42 of
1965;
3.
That
the applicant
be ordered to
pay
the costs of the
counter-application."
Background:
[9] The
applicant, as employer, engaged the services of the second
respondent, as contractor, to build six office blocks adjacent
to the
Atterbury Road entrance of the Mooikloof Residential Estate. It was
agreed in the agreement that possession of the site
was to be given
to the contractor on 2 April 2007 and the date of completion would
be:
blocks 5
and 6 - 30 October 2007; blocks 3 and 4 - 30 November 2007; blocks 1
and 2 - 30 January 2008. The second respondent took
possession of the
site on 28 May 2007 and actual practical completion was certified as
follows:
"Block
6
-
2
July
2009;
Block
5
-
2
July 2009;
Block
4
-
7
July
2009;
Block
3
-
14
July
2009;
Block
2 - 31 August 2009;
Block
1
-
28
July
2009"
[10
]
The practical completion dates were extended as follows
by the principal agent for the applicant:
"Block
6
-
13
September
2008;
Block
5
-
10
October
2008
Block
4
-
8
October
2008;
Block
3
-
6
November 2008;
Block
2
-
27
November 2008;
Block
1
-
23
November 2008"
This was
conveyed to the second respondent in correspondence dated 20 October
2009. In the pleadings at the arbitration the second
respondent
pleaded that he was entitled to an extension of time until 29
November 2009 for practical completion.
[11] The
dispute regarding the final account was referred to arbitration.
According to the second respondent these disputes
were
raised in the documents and were,
inter
alia:
"8.3
Whether the second respondent was entitled
to extensions of time and if so to what
extent;
8.4
Whether the applicant was entitled to levy penalties
against the second respondent for late completion, and
if so, at what
rate and to what extent. Relevant to this dispute was the
second respondent's contention that the applicant
had waived its
right to claim penalties, alternatively, that the penalties could
not be levied arbitrio bani
viri, alternatively
that such penalties contravened the provisions of the Conventional
Penalties Act, Act 15 of 1992"
[12] The
principal agent in the letter of 20 October 2009 set out the dates
which had been used to determine and calculate penalties,
totalling
R4 809 000.00. On 10 September 2010 the principal agent issued
certificate no. 20 as a final payment certificate where
it was stated
that R4 809 000.00 was levied as penalties, which resulted in a
negative value of R1 812 140.24. The correctness
of this certificate
was disputed by the second respondent, which ultimately led to the
arbitration.
[13]
Clause 34.1 of the Principal Building Agreement provided:
"34.
1 The contractor shall cooperate with and assist the
principal agent in the preparation of the final account
by timeously
supplying all relevant documents on request. The
principal agent shall issue the final account to the
contractor
within:
34.
1.1
ninety
(90) working days o the date of
practical
completion"
[14] The
final account was not rendered as a dispute ensued between the
parties regarding the final account, which was referred
to
arbitration before the first respondent.
[15]
According to the second respondent to
determine the final account the value of the work
to
practical completion had to be determined as well as whether the
contract value had escalated and if so to what extent. The
arbitrator
had to decide whether the second respondent was entitled to extend
the time in which the project had to be practically
completed, and if
that was the case, to which extent the value thereof would be
considered when delivering the final account. A
further issue which
had to be decided is whether penalties should be levied for
late completion and what the amount of such
penalties should be and
whether interest were payable on late payments and or retention
money withheld by the applicant and
what, if so, the amount in
each respective instance should be. A last issue was who would be
responsible for payment of the
arbitrator, according to the second
respondent.
[16] In
the settlement of claim the second respondent set out
that the contract sum was R47 401 607.53.
The JBCC
2000 Principal Building Agreement provided that SV
Architects were appointed as
the principal agent,
with Taljaard, Meyer and Storm as the quantity surveyors and agents
to the defendant. The site was to
be delivered to the second
respondent on 2 April 2007. The works
were to be completed
in sections, with the first
four to be completed on 30 October 2007, 30 November 2007, 30 January
2008 and 28 February 2008, respectively.
Penalties for late
completion would be R3 000 per day per block. The
principal agent would issue monthly
payment certificates by the 25th
of each month. The relevant certificates from certificate no. 1 to
certificate no. 19 were issued.
All certificates up to certificate
no. 18 were paid by the applicant.
[17]
According to the statement of claim no draft or
final account was issued, apart from a final
payment
certificate dated 10 September 2010 which purported to be a
final payment certificate. A recovery statement was included
in terms
of which R4 809 000.00 were levied.
[18] The
second respondent objected to the final payment certificate and
declared a dispute, hence the arbitration. The second respondent
contended that it was entitled to
payment of the amount
of R10 433 079.52.
[19]
According to the second respondent the work alone
to date of practical completion amounted
to R25 953
366.71 (VAT excluded). The second respondent stated
that according to clause 31.5.3 read with clauses
31.4.1 and
31.4.2 and clause 42.4.6 of the agreement, the principal agent was
obliged to adjust the value of work done and materials
supplied
according to the Consumer Price Adjustment Provisions ("CPAC")
with base date March 2007. The arbitrator
found in
favour of the second respondent and awarded an amount of R2 369
680.74, excluding VAT, but this is not the reason for
the application
by the applicant and I will not deal with it.
[20]
The
main attack
on the
arbitrator's
award
is his finding
on the
revision
of
the
dates
for
practical
completion.
Clause
29.1
of the
JBCC Practical Building
Agreement
provides
inter alia:
"29.1
The
circumstances for
which
the
contractor
is
entitled
to
a
revision
of the date for practical
completion
and
for which revision
the principal
agent
shall
not
adjust
the
contract value
in terms of 32. 12 are delays to practical completion caused by:
29.
1.1 Inclement weather.
29.1.2
...
29.1.3
Making good physical Joss and repairing damage to the works in
terms of 8.0 where the contractor is at risk
29.
1.4...
29.1.5
. . .
29.
1.6 Default by
a
nominated subcontractor
where the
contractor
has
taken
all
practical
steps
to
avoid
or reduce such
delay"
And 29.2
provides:
"29.2
The circumstances for which the contractor is entitled to
a
revision
of
the date for practical
completion
and
for which revision
the principal
agent
shall
adjust
the
contract
value
in terms of
32.
12
are
delays
to
practical
completion caused by:
29.2.
1 Failure to give possession of the site to the contractor in
terms of 15.2. 1
29.2.2
Making
good
physical loss
and
repairing damage to
the
works in terms
of
8.0 where the
contractor
is not
at risk
29.2.3
Contract instructions
not
occasioned
by
default
by
the contractor"
[21]
These clauses provided for the circumstances for
which a revision would be granted
for which the
employer carried the financial risk of the extension. It was common
cause during the arbitration that the principal
agent had on 10
October 2009 granted the following revisions for the date of
practical completion:
"Block
6
-
13
September 2008
Block
5
-
10
October
2008
Block
4
-
8
October
2008
Block
3
-
6
November
2008
Block
2 - 27 November 2008
Block
1
-
23
November 2008"
[22] The
second respondent, during the arbitration contended that these
delays were overshadowed by four delays:
"7.5.
1
The late
commencement
delay
7.5.2
The
piling delay
7.5.3
The
sewerage delay
-
up
to
23
November 2009
7.5.
4
The
electrical
delay
-
up
to 18
September
2009"
[23] The
first two delays became a non-issue during the arbitration as it
turned out that the late commencement was already
factored by the principal agent into the fifth extension, as
well as the rain delays, on 20 October 2009.
[24] The
remaining delays as set out by the second respondent was the sewerage
delay and the electrical delay. The arbitrator found
that the second
respondent was not entitled to claim for such revisions of the date
of practical completion. The result was that
the arbitrator accepted
the correctness of the lesser extensions of time granted by the
principal agent on 20 October 2009.
[25] The
second respondent claimed:
"1.
Payment of R16 279 990.89
2.
Interest
thereon,
at
the
rate
of
12%
per
annum, compounded monthly,
from
1
July 2012 to
date of payment;
3.
Costs of suit"
[26] At
all times the applicant's defence was based on the four grounds of
delay set out by the second respondent. In the counter
application it
was set out that the dates of practical completion corresponded with
the dates that the second respondent had claimed
in the letter dated
20 September 2007 which the principal agent acceded to.
[27]
According to the second respondent the issues set out
in the pleadings were that the second respondent
had
always been entitled to the extensions of time as set out in the
letter of 20 October 2009 by the architect, namely Buildings
5 and 6
- 10 October 2008; Buildings 3 and 4 - 6 November 2008 and Buildings
1 and 2 - 27 November 2008, as well as
the
further extensions Buildings 1 to 6
until 23 November 2009 and 18 September
2009 as set
out in the statement of case.
[28] The
second respondent, in the statement of claim, pleaded:
"A
dispute arose between the parties regarding the final account under
the following circumstances:
9.
1 Practical completion was
achieved as follows: 9.
1.1 Block
1
-
28 July 2009
9.1.2
Block
2
-
31
August
2009
9.1.3
Block
3
-
14
July
2009
9.1.4
Block
4
-
7
July
2009
9.1.5
Block
5
-
2
July 2009
9.1.6
Block 6
-
2
July 2009
Copies
of the certificates of practical
completion are attached hereto as
annexures C1 to C6.
9.2
In
terms
of
clause
34.
1.1 the principal
agent
was
obliged
to issue
the
final account to the claimant
within
ninety days
of
the
date
of practical
completion.
9.3
The
principal
agent
did
not
comply
with
the
aforesaid obligation
in
that
he
did
not
issue
any
final
or
draft
final account
to
the
claimant,
but
on
10 September
2010 purported
to
issue
a
final
payment certificate
to
the defendant
together
with
a
recovery
statement
in terms
of
which penalties
of R4 809
000.00
were levied.
A
copy
of
the
aforesaid
purported final
payment certificate
and
recovery
statement
are
attached
hereto
as
annexures
01 and 02 respectively.
9.4
The claimant
objected
to
the purported
final payment certificate and
declared
a
dispute which
forms
the
basis of
these
proceedings.
9.5
The claimant
contends
that
it
is
entitled
to
the
amount
of
R10 433 079.52
made up as per annexure E hereto.
9.6
The
various
amounts making
up the
aforesaid final account
will
be
motivated
by
the
claimant
in
more
detail
below."
(Court's emphasis)
[29] The
arbitration was thus based on the fact that the arbitrator had to
determine the correct amount payable in terms of the
final account.
According to the second respondent that is exactly what the
arbitrator did in deciding the matter.
[30] The
applicant contends that it had not had a fair and just trial; as the
second respondent relied on four grounds of delay
and extension of
time and was only entitled to be heard on the four grounds and not on
any other basis.
[31] The
reason for the review is for the court to decide whether
the arbitrator's award should be reviewed and
set aside because
of gross irregularity in the conduct of the proceedings and whether
the arbitrator had exceeded his powers
in relation to his award
relating to the extension of time claims.
[32] The
arbitrator found that the second respondent was
entitled to certain extensions of time,
granted by the
principal agent of the applicant, in terms of a letter dated 20
October 2009. The second
respondent's claim of
extensions of time beyond those granted by the principal agent was
dismissed. It was conceded by the applicant
that the second
respondent was entitled to the extensions of time that related to the
late start of the projects and the issue
of piling. The arbitrator
granted fourteen days for the electricity delay and dismissed
the sewerage delay.
[33] The
contents of the letter of 20 October 2009 referred to the final
payment certificate no. 20, which resulted in the
dispute being
declared. It is however clear that it was not contested by the
applicant that the extensions of time granted
by the principal agent
were incorrect.
[34] It
was common cause during the arbitration that the
applicant was bound by the determinations
of its
principal agent as conceded by all witnesses who testified on behalf
of the applicant and conceded by applicant's counsel.
[35] The
arbiter granted the full extensions of time for the claim relating to
piling and fourteen days rain delay. The arbitrator
found against the
second respondent in the claims for further extensions of time for
the electricity delay and the sewer delay.
[36] The
arbitrator in his award was mindful that he had to deal with
the issues in the pleadings by stating:
"What
must be revised dates of practical completion be: Those granted by
the PA to the defendant as reflected in
the
calculation of penalties for the recovery statement in the final
payment certificate, or those claimed by the claimant
or those in
the
defendant's
counter
claim,
or
some
other
dates
as determined
by
the arbitrator,
but
bearing
in
mind
that the only factors
for
extension
of
time
to
be
considered in
this arbitration
are
those
submitted by
the parties to
arbitration
in
the pleadings."
(Court's
emphasis)
[37] It
is clear that the arbitrator knew that he was bound to only make
findings pertaining to the issues as set out in the pleadings.
At no
stage did the applicant indicate that there was a dispute between the
applicant and its principal agent as to the extensions
of time
granted by the principal agent due to the principal agent not being
authorised to extend the times of completion. If such
a dispute
existed, it had no impact on the arbitration proceedings as it was
never raised as an issue. There was no dispute between
the principal
agent and the applicant referred to arbitration.
[38] The
second respondent concedes, correctly, that the
arbitrator incorrectly held that the applicant
was entitled to
levy penalties for late completion in the amount of R3
000 per building, but his mistake does
not render the decision
reviewable.
[39]
During much of the arbitration evidence
and argument centred around the entitlement
by the
applicant to levy penalties. The arbitrator found against the second
respondent and accepted that the amount of penalties
levied should be
R4 809 000.00 as included in the final payment
certificate by the principal agent. This amount
was reduced by R720
000.00. The arbitrator dealt with the issue whether the penalties
claimed were out
of proportion to
the actual loss suffered by the defendant.
[40] Mr
Malan, for the applicant, testified that the loss was R80
000 per block per month, while the penalties amounted
to R93
000.00 per block per month. The arbitrator dealt with the
issues of penalties at length in his judgment and
set out in para
9.5:
"The
industry
will
also
expect
from
an
arbitrator
to
interpret
and decide on issues
in
terms of the agreement
in
a
fair and equitable
manner,
especially
where there are different interpretations
of the
agreement.
A
fair
and equitable interpretation of
the
working
of
the
agreement
is
especially necessary where
the
interpretation of
its
terms
may
result
in
an
unfair
treatment
of
one
of
the
parties.
It
is
against the background
of this
fairness to
both
parties
that
the
legal principles
and
terms
of the agreement
must
be
judged."
(Court's emphasis)
[41] He
found that the applicant had acted unreasonably in the exercise of
his discretion whether or not to levy penalties. He
comes to
the conclusion:
"I
am consequently convinced that the claimant is
financially in
a
worse position than what he would have been in,
had the PA addressed the issue of penalties from approximately 31
March 2008
(7 April for the certificate) onwards. This must be set
right so that he only carries the responsibility of his poor and late
performance,
but nothing in excess thereto.
The
employer
on
the
other
hand
must
be
entitled to
the
contractual
penalty
as
per the
PBA for
the
late
completion
by
the
contractor,
in
so
far
he
and
his
agents
acted
in
accordance
with the contract
and
what the building
industry would regard as fair in this
regard."
(Court's emphasis)
[42] It
is clear that he had considered the issue carefully when
reducing the penalties with R720 000.00 and he
motivated his
reason for doing so adequately.
[43] In
Telcordia Technologies
Inc
v
Telkom SA
Ltd
2007(3)
SA
266 (SCA)
Harms JA held at para 72:
"It
is
useful
to
begin
with
the
oft
quoted
statement from
Ellis
v Morgan
where
Mason
J
laid
down
the
basic
principle in
these terms:
'But
an
irregularity
in
proceedings
does
not
mean
an
incorrect judgment;
it
refers
not
to
the
result,
but
to
the
methods of
a
trial,
such
as,
for
example,
some
high-handed
or
mistaken action
which
has
prevented
the
aggrieved
party from having his
case
fully
and
fairly
determined.
'"
(Court's emphasis)
[44] The
court was referred to the dictum in
Lufuno
Mphaphuli
&
Associates (Pty)
Ltd
v
Andrews
and
Another
2009(4)
SA
529
CC
where the correct approach was set out to the grounds of review
set out in
section 33
of the
Arbitration
Act,
42
of
1965
.
[45]
O'Regan held in para 221:
"At
Roman-Dutch law,
it
was
always
accepted that
a
submission to arbitration was subject to an implied
condition that the arbitrator should proceed fairly or, as
it
is sometimes described, according to law and justice. The recognition
of such an implied condition fits snugly with modem
constitutional values. In interpreting
an arbitration agreement,
it
should
ordinarily be
accepted that when
parties
submit
to
arbitration, they
submit
to
a
process
they
intend
should
be
fair.
Fairness
is one
of
the
core
values
of
our
constitutional
order:
the requirement
of
fairness
is
imposed on
administrative
decision makers
by
s
33 of
the
Constitution;
on
courts by
ss
34
and
35
of the Constitution; in
respect
of
labour
practices
by
s
23
of
the
Constitution;
and
in
relation
to
discrimination
by
s
9
of
the Constitution.
The
arbitration
agreement
should
thus be interpreted,
unless
its terms expressly
suggest otherwise, on the
basis
that the
parties
intended
the
arbitration proceedings
to
be
conducted
fairly.
Indeed, it
may
well
be
that
an
arbitration
agreement that
provides
expressly
for
a
procedure
that
is
unfair will
be
contra
bonos
mores."
(Court's emphasis)
And in
para 235 courts were warned:
"The
international and comparative law considered in this judgment
suggests that courts should be careful not to undermine
the
achievement of the goals of private arbitration by enlarging their
powers of scrutiny imprudently. Section 33(1) provides three
grounds for setting aside an arbitration
award:
misconduct
by
an
arbitrator;
gross
irregularity in
the
conduct
of
the proceedings; and
the fact
that
an
award
has
been improperly obtained.
In
my
view,
and
in
the
light
of
the reasoning in the
previous
paragraphs,
the
Constitution
would
require
a
court
to construe
these
grounds reasonably
strictly
in
relation
to private
arbitration."
(Court's emphasis)
And
finally in para 236:
"The
final
question that
ar ses is
what
the
approach of
a
court should
be
to the
question
of
fairness.
First,
we must
recognise that
fairness in arbitration
proceedings should not
be
equated
with
the
process established
in
the
Uniform
Rules of
Court
for
the
conduct
of proceedings
before
our
courts.
Secondly,
there
is
no reason
why an investigative
procedure
should
not
be pursued
as
long
as
it
is
pursued
fairly. The international
conventions make clear that the manner of
proceeding in
arbitration
is
to
be
determined
by
agreement between
the
parties
and, in default of
that, by the arbitrator. Thirdly,
the
process
to
be
followed should
be
discerned in
the first
place
from the
terms
of
the arbitration
agreement
itself Courts
should be
respectful of
the
intentions
of the
parties
in relation
to procedure. In
so
doing,
they
should
bear
in
mind
the purposes of
private arbitration which
include
the
fast
and
cost
effective
resolution
of
disputes.
If
courts
are
too
quick
to
find fault
with
the
manner
in
which
an
arbitration
has
been
conducted, and too willing to conclude that the faulty
procedure is unfair or constitutes a gross
irregularity
within the meaning of s 33(1), the goals of
private arbitration may well be defeated."
(Court's
emphasis)
[46] It
is thus clear that the arbitrator conducted the arbitration in a fair
and reasonable manner and that he gave well-considered
reasons for
all his findings. He did not act in an unfair manner.
[47] I
have considered all the arguments, read all the pleadings and the
relevant record of proceedings in the arbitration, as well
as the
arbitrator's findings and final award. The arbitrator dealt
in great detail with all the facts and
the application of
the law to the facts. He took great care to motivate his findings,
both on the facts and the law. He had considered
all the dates before
coming to a conclusion on the revision of the dates for practical
completion, which he had motivated in a
reasoned manner dealing with
both the facts and the law.
[48]
I cannot find that the arbitrator had acted in an unfair manner
towards any of the parties and that there was gross
irregularity in
the conduct of the proceedings nor that the award has been improperly
obtained. There is no evidence that the arbitrator
had exceeded his
authority. The court has to be careful not to undermine the purpose
of arbitration and has to construe the grounds
set out in section
33(1)
"reasonably strictly"
as found in the
Lufuno case
(supra).
[49] In
these circumstances and due to my findings above I make the following
order:
1.
The applicant's application is dismissed with costs;
2.
That the award of the first respondent dated 25 February 2014 be made
an order of Court in terms of
section 31
of the
Arbitration Act, Act
42 of 1965;
3.
That the applicant be ordered to pay the costs of the counter
application.
_____________________
Judge C
Pretorius
Case
number: 26933/2014
Appeal
heard on :
2 June 2015
For the
Applicant
: Adv. GC Pretorius SC
Instructed
by :
Hendrik Malan Prokureurs
For the
Second Respondent :
Adv. P Ellis SC
Instructed
by :
Weavind & Weavind Attorneys
Date of
Judgment :
1 July 2015