Masterspice (Pty) Ltd v Broszeit Investments CC (252/05) [2006] ZASCA 54; 2006 (6) SA 1 (SCA) (31 March 2006)

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[2006] ZASCA 54
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Masterspice (Pty) Ltd v Broszeit Investments CC (252/05) [2006] ZASCA 54; 2006 (6) SA 1 (SCA) (31 March 2006)

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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
Case number 252/05
Reportable
In the matter between:
MASTERSPICE (PTY) LTD
APPELLANT
and
BROSZEIT INVESTMENTS CC
RESPONDENT
CORAM
: HOWIE P, FARLAM, BRAND, JAFTA JJA et MAYA
AJA
HEARD
: 13 MARCH 2006
DELIVERED
: 31 MARCH 2006
SUMMARY:
Contract –
breach of warranty – restrictive cancellation clause.
Neutral citation: This
judgment may be referred to as Masterspice (Pty) Ltd v Broszeit
Investments CC [2006] SCA 52 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] The appellant
instituted proceedings in the Cape High Court for the provisional
winding up of the respondent. On 21 August 2002
Griesel J referred
the matter for the hearing of oral evidence on the issues as to (1)
whether the applicant, now the appellant,
was a creditor of the
respondent; and if so (2) whether the respondent was unable to pay
its debts. On 25 June 2003, after hearing
oral evidence, the same
learned judge granted a final winding up order. An appeal brought by
the respondent against that order was
upheld by the Full Bench of the
Cape High Court on 26 January 2005. The appellant now appeals with
special leave to this Court contending
that the original final
winding up order was correctly made and that the Full Bench erred in
setting it aside on appeal.
FACTS
[2] The winding up
application was a sequel to an agreement of sale concluded on 31
August 2000 in terms of which the respondent sold
a spice blending
business known as Masterspice as a going concern to the appellant for
an amount of R2 198 574.00 plus the value
of the stock. Expressly
included among the business assets which formed the subject matter of
the sale were what were described as
‘(t)he recipes and product
formulations of the Business [which were listed in an annexure to the
agreement by reference number
as stored electronically on the
business’s computer] including the computer software and back-up
copies thereof’. In clause 9
of the agreement were set out in
twelve subclauses what were called the ‘Seller’s Warranties.’
[3] Two of these subclauses
are of particular importance in this
case, viz clauses 9.3 and 9.10.
They read as follows:
‘
9.3 The Seller warrants that all
assets hereby sold are the Seller’s property, are or will on the
Date of Possession be fully paid
for, and that they are not subject
to any lien or right of retention of whatsoever nature.’
‘
9.10.1 The
Seller warrants that apart from as set out in paragraph 9.11 below,
at date of signature hereof it is not aware of any
factors in respect
of its business, products, customer satisfaction or other dealings
with its customers and suppliers that could
negatively impact on the
smooth and profitable operation of the Business after the Date of
Possession. Further, the Seller warrants
that he will advise within
24 hours of him becoming aware of any such factors, which arise
between the dates of signature hereof,
and the Date of Possession.’
[4] Another clause of
importance in this case is Clause 13, which deals with breach of the
agreement and which reads as follows:
‘
In the event of either of the
parties committing a breach of any of their respective obligations in
terms of this Agreement of Sale
and further failing to remedy such
breach within 14 (FOURTEEN) days from the date of a written notice
addressed by or on behalf of
the non-defaulting party to the
defaulting party calling upon it so to do, the non-defaulting party
shall be entitled, without prejudice
to any other right which it
might have against the defaulting party, whether at common law or
otherwise to:-
Enforce the provisions of the
Agreement,
Or
13.2 cancel the sale, in which event
the parties shall give each other
restitutio in integrum,
without
prejudice to the non-defaulting party’s aforesaid right to claim
damages or otherwise in consequence of such breach.
Provided that no party shall be
entitled to cancel this Agreement of Sale as a consequence of any
breach of any provision hereof unless
the breach is a material breach
going to the root of this Agreement and is incapable of being
remedied by payment in money or, if
capable of being so remedied, the
defaulting party fails to make such payment within 14 (FOURTEEN) days
after amount thereof has
been finally determined.’
[5] In a relatively short
period after the appellant took possession of the business its
turnover fell to a significant degree and
the majority of its clients
were lost. In particular, it lost the custom of its largest customer,
Today Frozen Foods, a division
of Pioneer Foods (Pty) Ltd, which in
the last financial year before the appellant took over the business
accounted for approximately
46% of the turnover.
[6] Subsequent to the
loss of the customers to which I have referred the two directors of
the appellant, Messrs Taylor and Read, set
about finding a basis for
cancelling the agreement and recovering the purchase price against a
tender of the by now substantially
reduced business. They ascertained
that some of the recipes and product formulations sold to the
appellant were not the property
of the respondent and that the
respondent had accordingly breached the warranty contained in clause
9.3. They also contended that
the respondent had disseminated some of
the formulations listed in the annexure to which I have referred to
Today Frozen Foods, a
fact which was not but should have been
disclosed to the appellant in terms of clause 9.10 of the agreement.
[7] On 14 March 2002 the
appellant sent a written notice to the respondent calling upon it to
remedy the alleged breaches of clause
9.3 and clause 9.10 within
fourteen days and stating that if the breaches were not remedied
within that period it intended cancelling
the agreement and
reclaiming the purchase price. After the respondent had replied
denying the alleged breaches the appellant sent
it a notice of
cancellation on 2 April 2002. Three weeks later on 23 April 2002 it
launched an application for the winding up of
the respondent.
[8] The respondent
opposed the application and filed,
inter alia,
an affidavit by
Mr Michael Broszeit, one of its members. One of the defences raised
by the respondent was that it was inappropriate
for the appellant to
have instituted proceedings for the winding up of the respondent
where the claim on which it based its
locus standi
as a
creditor was
bona fide
disputed by the respondent. In this
regard reliance was placed on what Corbett JA, in giving the judgment
of this Court in
Kalil v Decotex (Pty) Ltd
1988 (1) SA 943
(A)
at 980B-G, called ‘the Badenhorst rule’ (after the decision of
the Transvaal Provincial Division in
Badenhorst v Northern
Construction Enterprises (Pty) Ltd
1956 (2) SA 346
(T)).
[9] In the answering
affidavit filed on behalf of the respondent Mr Broszeit also denied
that the recipes and formulations in question
were not the property
of the respondent and that some of them had been disseminated to
Today Frozen Foods.
[10] Mr Broszeit pointed
out in para 62 of the answering affidavit that the appellant was only
entitled to cancel the agreement if
it could satisfy the proviso to
clause 13 of the agreement and show not only that the breaches relied
on were material and went to
the root of the agreement but also that
they were incapable of being remedied by payment in money. He
contended that the appellant
had disregarded the proviso and
submitted that the breaches, if established, fell within it. It is
correct that in the founding affidavit
no attempt was made to show,
by factual averment or otherwise, that the case fell within the
proviso.
[11] In the replying
affidavit filed on behalf of the appellant, the deponent, Mr Taylor,
dealt with this last point as follows:
‘
Having regard to the nature of the
breaches by Respondent, it is denied that the payment in money could
remedy same, in particular
in light of the claim of Todays as appears
from annexure “TPT12” to Applicant’s Founding Affidavit and the
destruction of the
exclusivity of such formulations.’
[12] Griesel J, as I have
said, referred the matter for the hearing of oral evidence on the two
issues set out above.
[13] Prior to the hearing
of oral evidence the parties agreed at a pre-trial conference to
confine the hearing to the first issue
on the basis that if that
issue were decided in favour of the appellant and it were found that
the appellant was entitled to repayment
of the purchase price, then
and in that event a winding-up order would be justified. In the
result the financial position of the
respondent was not gone into in
detail at the hearing.
JUDGMENT BY GRIESEL
J
[14] In his judgment at
the end of the oral hearing Griesel J held that the appellant had
succeeded in proving the two breaches alleged
by it, that the
breaches were material and that they were incapable of being remedied
by payment in money. He accordingly held that
the appellant had
validly cancelled the agreement.
[15] He proceeded to hold
that the appellant was entitled to a winding-up order. Being of the
view that it was unlikely that any further
relevant facts would be
forthcoming if a rule
nisi
were issued he granted a final
order.
[16] His
conclusion that the breach was incapable of being remedied by payment
in money was based on his finding that after the loss
of the custom
of Today Frozen Foods ‘the business ceased to be viable.’ He
continued:
‘
It would be an extremely difficult
task . . . to place a monetary value on the effect of the breaches in
this instance, short of repayment
of the full purchase price.’
He went on to hold in
effect, that even if the appellant were not entitled to claim
restitution it was still entitled to a winding-up
order. This was
because it would, in his view, enjoy a substantial claim for damages
against the respondent, which claim would give
it the necessary
locus
standi
as a contingent or prospective creditor of the respondent.
[17] ‘Where the respondent,’
he
continued,
‘has ceased trading, maintains no cash resources
and has insignificant assets, it is in any event clear that the
respondent is
unable to pay its debts. If follows, in the light of
the foregoing, that the [appellant] is, in my view, entitled to an
order for
the winding-up of the respondent.’
JUDGMENT OF FULL
BENCH
[18] The Full Bench
judgment was delivered by Louw J, with the concurrence of Desai J and
Bozalek J. He held that Griesel J had correctly
applied the
Badenhorst
rule in his judgment referring the matter for oral
evidence, that the appellant had proved that certain of the
formulations which
formed part of the subject matter of the sale were
not the property of the respondent and that a breach of the warranty
in clause
9.3 had accordingly been established but left open the
question as to whether a breach of clause 9.10 had been proved. He
also held
that Griesel J had correctly held that the breach of clause
9.3 was a material breach.
[19] He held, however,
that the appellant had not succeeded in showing that the breach was
incapable of being remedied by the payment
of money and that the
appellant had accordingly failed to bring the case within the second
part of the proviso to clause 13, with
the result that it did not
establish that it had the right to cancel the agreement. He pointed
out that the appellant, on which the
onus rested to prove that the
breach could not be remedied by payment in money, had not addressed
the issue in any of the affidavits
it placed before the court and or
in the course of the oral evidence advanced by it during the hearing.
[20] He dealt with the
finding of Griesel J that what he called the ‘second requirement’
had been satisfied because the evidence
showed that after the loss of
Today Frozen Foods as a customer ‘the business ceased to be viable’
and that ‘(i)t would be an
extremely difficult task . . . to place
a monetary value on the effect of the breaches in this case short of
repayment of the full
purchase price’ as follows:
‘
On
appeal the [appellant] seeks to rely on the evidence of Read and
Taylor. The submission on behalf of the [appellant] is that their
evidence was that upon
Today
ceasing to be a customer of the
respondent, the business of the respondent ceased to be viable. In
this regard, Taylor said
“
Substantially
it basically made it from the original structuring and purchase price
no longer viable”.
Read
said that the sales to
Today
represented about 50-55% of the
total turnover and that the loss of
Today
had a very
significant impact and made the business “really basically
unviable.” In cross examination, Read explained further
that
“
viable has to be defined in a
relative term . . . relative to what you paid or what it was”
and that he had
“
not
done an exercise to extricate purely
Today
out of the equation
and then done a comparison of turnover margin expenses. It is
normally clear that when you have a customer that’s
55% of the
business and it’s lost that it has a material impact on that
business, in that context it was not viable relative to
the
investment”
The
evidence shows that, during the last financial year prior to the
[appellant] taking over the business (the period 1 July 1999
to 30
June 2000), the sales to
Today
amounted to 45,9% of the total
turnover of the business. The figures representing the extent to
which the sales to
Today
contributed to the turnover of the
business were available and the loss of profits or loss of value of
the business brought about
by the loss of
Today
as a customer
could be examined and be determined. This exercise was not done by
the [appellant] as part of its case to show that
the payment of money
would be incapable of remedying the breach. Save for the general
statements regarding viability of the business
in relation to the
price paid, which I refer to above, the [appellant] did not attempt
to place evidence of such a nature before
the court. No attempt was
made, for instance, to demonstrate that it was not possible or
feasible to replace
Today
with other customer/s or, that it
was not possible to separate the effect of the loss of the other
customers, from the effect of the
loss of
Today.’
[21] Louw J also rejected
a submission made on behalf of the appellant that it was not open to
the respondent to rely on non-compliance
with the second requirement
of the proviso in clause 13 because, as it was put, the respondent
did not, apart from a mere bald denial,
raise this issue as a defence
on the papers. After referring to the way in which the matter was
raised by Mr Michael Broszeit in
the opposing affidavit filed on
behalf of the respondent and Mr Taylor’s response thereto in the
appellant’s replying papers,
the learned judge said:
‘
It
was for the [appellant], as the party seeking cancellation, to allege
and prove both the breach and further, compliance with the
cancellation clause. This, the [appellant] failed to do, both in its
letter of 14 March 2002 and in its launching papers. In the
circumstances, it was not for the respondent to put up evidence of an
accounting nature or, any other nature, to suggest that the
breach
was capable of being remedied by the payment of money, as was
submitted on the [appellant’s] behalf. The [appellant’s]
reliance
on the judgment of Murray AJP in
Room Hire Co (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1165 for the
proposition that it is not sufficient for a respondent to merely
raise bald denials of the factual averments
upon which the
[appellant] relies, is misplaced. This passage, and also those in
other cases, upon which the [appellant] relies and
which deal with
the question when a party in application proceedings is entitled to
rely on legal contentions not raised in the papers,
are not
applicable to this case, since not only did the [appellant] not make
any factual allegations in regard to this issue in its
launching
papers, but the respondent, in the answering affidavit deposed to by
Broszeit junior, in terms raised the [appellant’s]
failure to deal
with the requirements of the proviso to clause 13.’
SUBMISSIONS ON BEHALF OF
APPELLANT
[22] When
the matter was argued before us counsel for the appellant submitted,
as he had done before the Full Bench, that it was not
open to the
respondent to raise what one may call the second requirement defence
as this defence had not been put forward by it as
a ground on which
it disputed its indebtedness in resisting the winding-up application.
[23] They also argued
that a warranty relating to an essential attribute of the
merx
is by its very nature incapable of being remedied or substituted by
the payment of money. They relied in this regard on a
dictum
by
Claassen J in
Small v Smith
1954 (3) SA 434
(SWA) at 437A-E,
which is in the following terms:
‘
A
warranty may be either express or implied. South African law has
taken over the term warranty from English Law, in which system
it
seems to have the effect that although such a statement is part of
the contract it is nevertheless only a collateral term and
as such
its breach gives rise only to a claim for damages and not for
rescission. (See
Terrene Ltd v Nelson,
1937 (3) All E.R 739
;
Petit v Abrahamson II,
1946 N.P.D 673.)
In this last case it
seems that a warranty was held to be equivalent to a condition
precedent.
The
use of the terms “warranty” has not been consistent, but has also
been used as equivalent to condition precedent. (See
Bouwer v
Ferguson
(1884) 4 E.D.C. 90
, at pp 94 and 96.) It seems,
therefore, that where the warranty is a vital term or a term going to
the root of the contract it is
in reality a condition of the contract
and not a warranty (
Wessels,
para 3045).
Anson
says:
“
if the parties regarded the term as
essential it is a condition; its failure discharges the contract. If
they did not regard it as
essential it is a warranty; its failure can
only give rise to an action for such damages as have been sustained
by the failure of
that particular term”.
An example of a warranty in this sense
is to be found in
Townsend v Campbell
(1905), 26 N.L.R 356
,
where the seller warranted that the cow sold had sound teats. The
purchaser was only entitled to damages on breach.
Wheeler v
Woodhouse
(1900), 21 N.L.R 162
, illustrates a true condition. The
purchaser wanted to buy a milch cow. The seller warranted the cow to
be a milch cow. She was not.
This was a breach of a condition. The
purchaser did not get what he had bought. Hence he was entitled to
repudiate the contract.’
[24] They also referred
to passages in Wessels,
The Law of Contract in South Africa,
2
ed, vol 2, paras 3044 and 3049, which read as follows:
‘
The
term warranty is, however, frequently met with in a wider sense, and
then it is synonymous with condition precedent (see Pust
v Dowie, 32
L.UJ.Q.B. 177 at p. 181: 1865, 34 L.J.Q.B 127: 5 B. & S. 33:
[1865] EngR 212
;
122
E.R. 745
, Ex. Ch.).
. . .
Whether
a term which is called a warranty is one in fact, or constitutes a
condition precedent, depends upon the nature of the contract
and the
intention of the parties, and is a question of construction.
Anson expresses it thus: “If the
parties regarded the term as essential, it is a condition: its
failure discharges the contract.
If they did not regard it as
essential, it is a warranty; its failure can only give rise to an
action for such damages as have been
sustained by the failure of that
particular term.”’
[25] They submitted that
clause 9.3 constitutes a warranty of the kind referred to by Wessels,
namely a condition, the non-fulfilment
whereof leads to the discharge
of the contract. It follows, so it was argued, that ‘a breach of
such an obligation is, by its very
nature, incapable of being
remedied or substituted by the payment of money. It can only be
remedied by the seller making good that
which was warranted.’
[26] They also contended
that the phrase ‘incapable of being remedied by the payment of
money’ should be carefully and sensibly
interpreted. Developing
this submission, they pointed to the fact that the agreement between
the parties was a commercial one, for
the sale of a business, and
every obligation imposed on the parties thereunder, including a total
failure to render any performance
whatsoever, could notionally be
made good by the payment of money. They contended that this would
lead to an absurd situation in
a case where the merx was not
delivered at all. It makes no sense, they said, to suggest that
before the purchaser is able to claim
restitution in the form of
repayment of the purchase price it must first demand exactly the same
thing, namely repayment of the very
same purchase price, not in the
exercise of a right of a cancellation but because such payment would
remedy, by the payment of money,
the breach in question.
[27] Counsel for the
appellant argued further that the evidence showed that the breach was
incapable of being remedied by a monetary
payment. In this regard
they relied on the evidence of Messrs Taylor and Read that without
the formulations which were not owned
by Masterspice the business was
not commercially viable.
[28] It was also argued
on behalf of the appellant that by denying that the warranty in
clause 9.3 had been breached the respondent
had repudiated the
agreement and that the appellant was entitled to accept this
repudiation and cancel the agreement on that basis.
[29] Finally, it was
argued that even if the appellant’s remedy was for payment of a sum
of money to remedy the breach, that nevertheless
constituted a claim
sufficient to entitle the appellant to a winding-up order.
SUBMISSIONS ON
BEHALF OF RESPONDENT
[30] Counsel for the
respondent submitted that the Full Bench had correctly held that the
winding-up order made by Griesel J had to
be set aside. Because of
the limited basis on which special leave was granted, they did not
challenge in argument before us the Full
Bench’s findings that
clause 9.3 of the agreement had been breached and that this breach
was material. In their submissions they
pointed out that cancellation
on breach is an extraordinary remedy: the normal remedy for breach is
a claim for performance, either
in forma specifica or by way of a
monetary surrogate therefor. In the present case, for understandable
reasons, there was an unusually
rigorous cancellation clause in the
agreement, which raised the bar for cancellation very high. They
contended that the respondent
was entitled to raise as a defence that
the second requirement of the proviso to clause 13 had not been
complied with and that such
defence had been established. Finally it
was contended that it was not open to the appellant to contend that
even if it was not entitled
to cancellation, the winding-up order
made by Griesel J could be upheld because the appellant had a damages
claim and on the evidence
led in the court of first instance the
respondent could not pay its debts.
DISCUSSION
[31] It is appropriate to
begin with the appellant’s contention that it is not open to the
respondent to raise the defence that
the second requirement in the
proviso to clause 13 had not been complied with. On this point I am
completely in agreement with what
was said by Louw J in the passage
from his judgment which I have quoted in para 21 above on which I
cannot hope to improve.
[32] I turn now to the
question as to whether the appellant succeeded in bringing its case
within the second part of the proviso to
clause 13. I do not think
that there is anything in the point that what was breached was a
warranty. I am also of the view that the
passage from
Small v
Smith, supra,
relied on by the appellant takes the case no
further.
[33] The expression
‘warranty’ comes from English law. In England it has been
described as ‘one of the most ill-used expressions
in the legal
dictionary’ (
Finnegan v Allen
[1943] 1 K.B. 425
at 430). A
‘warranty’ is usually distinguished from a ‘condition’, the
point of distinction being that a condition is a term
whose breach
entitles the injured party to treat a contract as discharged while a
‘warranty’ is a term whose breach entitles
the injured party only
to damages: see Cheshire, Fifoot and Furmston
Law of Contract,
14
ed, p 166 and ss 11(1)(b) and 62 of the Sale of Goods Act
1893 and ss 11(3) and 61 of the Sale of Goods Act 1979 of the United
Kingdom.
[34] As appears, however,
from the extract from
Small v Smith, supra,
the expression
‘warranty’ is sometimes used to describe a term the breach of
which entitles the injured party to cancel the contract,
what is, as
has been seen, more properly described in English law as a
‘condition’. I agree with the view expressed by Professor
RH
Christie in
The Law of Contract,
4 ed, p 598, that the use of
the words ‘condition’ and ‘warranty’ to describe contractual
terms is best avoided, not only
because of the danger of confusion
between conditions in the sense of contractual terms whose breach
entitles the injured party to
cancel and what Professor Christie
calls ‘true’ conditions, ie, suspensive or resolutive conditions,
which are not contractual
terms at all, but also because we have
adopted the English terminology of describing as ‘warranties’
terms in insurance policies
and some other contracts which are really
terms the material breach of which justifies cancellation.
[35] In view of the fact
that the word ‘warranty’ can mean a term whose breach only gives
rise to a claim for damages but can
also mean a term whose material
breach gives rise to a right to cancel, it is necessary in every case
where the expression is used
to examine the terms of the contract in
question closely in order to endeavour to ascertain in what sense the
parties have used it.
I do not think that the parties in the present
case attached any special significance to the word or that there is
any basis for
holding that they intended it to mean a term whose
breach gives rise to a claim for cancellation even if notionally a
monetary payment
could remedy the problem. That this is so appears
from clause 9.1, the first of the ‘Seller’s Warranties’ in the
agreement
which reads as follows:
‘
The Seller shall be liable for all
the debts and liabilities of the Business until the Date of
Possession including, but not limited
to, sums due to staff for Leave
pay, P.A.Y.E deductions, Workmen’s Compensation Insurance, and the
like. The Seller accordingly
indemnifies the Purchaser against any
claim or liability incurred by the Business, or in respect thereof,
prior to the Date of Possession.’
It is clear that this is
a term whose breach can be remedied by a monetary payment.
[36] In truth what
happened was that some (but by no means all) of the formulations were
not the property of the respondent and could
not be transferred to
the appellant. Clearly to the extent to which portions of the
merx
were not delivered the appellant had a claim for payment of an
amount equal to the value of what was not delivered and presumably
to
a further claim if the business was worth less because these
formulations were not delivered. There is no reason to believe that
this claim was incapable of quantification in money.
[37] I do not think that
the evidence of Messrs Taylor and Read that because of the breach the
business was not commercially viable
alters the position. It is clear
from the passages from the evidence of Mr Taylor and Mr Read quoted
by Louw J in the extract from
his judgment reproduced in para 20
above that they regarded it as unviable in relation to their initial
outlay. Payment of an amount
as damages for the breach would
presumably, as the respondent’s counsel submitted, have served to
restore the viability of the
appellant’s investment.
[38] I also do not agree
with the appellant’s contention that the respondent, by denying
that it had breached clause 9.3, had repudiated
the contract and that
it was open to the appellant to accept the repudiation and thus bring
the agreement to an end. Apart from the
fact that the evidence did
not show any acceptance as alleged, it will be remembered that clause
13 makes it clear that the proviso
applies to ‘any breach’, which
would include a repudiation.
[39] I am also of the
opinion that the Full Bench was correct in holding that it is not
open to the appellant to fall back on its
damages claim as a basis
for obtaining a winding-up order. Because of the agreement at the
pre-trial conference the hearing before
Griesel J was concerned
solely with the question as to whether the appellant had the right to
cancel the contract. The respondent
conceded that
if it had to
repay the full purchase price
it would be unable to do so. To
that extent it would be unable to pay its debts.
Non constat
that
would have been unable to pay to the appellant any damages awarded
against it. Although it was clear on the evidence that the
appellant
had a damages claim against the respondent, the quantum of such claim
has not been established. It was also not shown that
the loss of
Today Frozen Foods as a customer was causally linked to the breach
proved.
[40] For these reasons I
am satisfied that the Full Bench’s decision in this matter was
correct. It follows that the appeal must
be dismissed.
ORDER
[41] The following order
is made:
The appeal is dismissed
with costs, such costs to include the costs of two counsel.
……………
..
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
HOWIE P
BRAND JA
JAFTA JA
MAYA AJA