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[2006] ZASCA 171
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Prosch and Others v Impala Water Users Association (428/05) [2006] ZASCA 171 (28 September 2006)
REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number: 428/05
Reportable
In the matter between:
GODFREY PAUL PROSCH
1
ST
APPELLANT
GABRIEL JOHANNES JACOBUS LE ROUX 2
ND
APPELLANT
NOREMAC SUGAR ESTATES (PTY) LTD 3
RD
APPELLANT
MARIE ELIZABETH ADRIANA CROUSE NO 4
TH
APPELLANT
HENDRIK PETRUS BOSHOFF NO 5
TH
APPELLANT
JACOBUS ERNST POTGIETER BOSHOFF 6
TH
APPELLANT
and
IMPALA WATER USERS ASSOCIATION
RESPONDENT
CORAM
: FARLAM, BRAND, LEWIS, PONNAN JJA et THERON
AJA
HEARD
: 28 AUGUST 2006
DELIVERED
: 28 SEPTEMBER 2006
SUMMARY:
Water –
National Water Act 36 of 1998
– water user association –
constitution of - power to assess water use charges –whether
properly compiled assessment
roll prerequisite to liability –
whether association empowered to assess water use charges to raise
funds to pay any debt legally
due by it.
Neutral citation: This
judgment may be referred to as
Prosch v Impala Water Users’
Association
[2006] SCA 125 (RSA).
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] The appellants appeal
to this Court with leave of the court
a quo
(Ploos van Amstel
AJ) against the whole of the judgment and the orders made consequent
thereon in the Natal Provincial Division of
the High Court in five
cases which, by agreement between the parties, were dealt with
together.
[2] In each of these
cases the court
a quo
ordered payment of a capital sum plus
interest thereon to the respondent, a water user association
established in terms of the
National Water Act 36 of 1998
. In each
case the court
a quo
declared that the respondent was entitled
in terms of
s 59(3)(b)
of the Act to restrict the supply of water to
the appellant or appellants concerned to a quantity of 1 000 litres
per hour until
the amounts set forth in the order, together with
interest, have been paid.
[3] The appellants also
appeal with leave of the court
a quo
against a further order
dismissing their application for security for their costs. The
respondent brings a cross-appeal, also with
leave from the court
a
quo,
in respect of the order for costs.
FACTS
[4] The appellants are
all farmers and water users within the area of operation of the
respondent. For some years a dispute has existed
between the
respondent and a number of its members as to the legality of a
portion of the water charge raised and assessed by the
respondent on
its members. The portion in dispute relates to the costs of financing
the construction of the Paris-Bivane dam, the
members concerned
disputing liability to the respondent for what may be described as
the dam financing component of the water charge.
This is the third
occasion on which this court has had before it an appeal dealing with
issues arising from this dispute. The judgment
in the first such
case, reported as
Impala Water Users Association v Lourens NO
[2004] 2 All SA 476
(SCA), related to a spoliation order granted
against the present respondent at the instance of some of its members
after it had,
in purported reliance on its powers under
s 59(3)(b)
of
the Act, restricted the flow of water to the properties of the
members concerned by locking the sluices serving their properties.
[5] The second case in
the series,
Lourens NO v Impala Water Users Association
[2006]
SCA 82 (RSA), was heard on 19 May of this year and judgment was given
on 31 May 2006. It has not yet been reported. One of
the issues which
was to have been argued on behalf of the appellants in this case, viz
whether the notices given by the respondent
to the appellants in
terms of
s 59(4)
of the Act were premature, with the result that the
purported invocation of the remedy created by
s 59(3)
was unlawful,
was decided in favour of the respondent. It is accordingly
unnecessary to say anything about it in this judgment. In
both the
majority and minority judgments in the second case the first case was
referred to as ‘Impala 1’. I shall follow
that usage and
in line with it call the second case ‘Impala 2’.
[6]
Impala
2
concerned the water use charges imposed by
the respondent for the 2002/2003 year. The present case relates to
the 2003/2004 year,
that is to say the period from 1 March 2003 to 28
February 2004. As in
Impala 1
and
Impala 2
the dispute
relates to the dam financing component of the water use charges
imposed.
[7] The respondent
launched 31 virtually identical, but separate, applications against
31 of its members. In each application orders
were sought calling
upon the member concerned to pay the balance allegedly owing in
respect of water use charges, and authorizing
the respondent to act
in terms of
s 59(3)
of the Act and to reduce the flow of water to the
member’s property until the amount claimed was paid. An
agreement was eventually
reached between the respondent and the 31
members that (i) initially five matters would be proceeded with, (ii)
full papers would
be filed only in these matters; (iii) argument
would be presented only in the matter of Noremac Sugar Estates (Pty)
Ltd, the third
appellant, and (iv) the outcome of the remaining four
matters would depend on the success or failure of the defences raised
by the
third appellant insofar as these defences are common to the
other four cases.
RELEVANT STATUTORY
PROVISIONS AND CLAUSES IN THE RESPONDENT’S CONSTITUTION
[8] Before these defences
are considered it will be convenient if I set out the sections in the
Act and the clauses in the respondent’s
constitution on which
the appellants relied in support of these defences.
[9] The empowering
provisions under the Act are contained in Chapter 5, comprising
sections 55 to 60. The introductory sentence in
the preamble to
Chapter 5 reads as follows:
‘
This Chapter deals with the
measures to finance the provision of water resource management
services as well as financial and economic
measures to support the
implementation of strategies aimed at water resource protection,
conservation of water and the beneficial
use of water.’
[10] Under the
sub-heading ‘Part 1: Water use charges’ the preamble
further states:
‘
In terms of Part 1 the Minister
may from time to time, after public consultation, establish a pricing
strategy which may differentiate
among geographical areas, categories
of water users or individual water users. . . . . Water use charges
are to be used to fund the
direct and related costs of water resource
management, development and use, and may also be used to achieve an
equitable and efficient
allocation of water. . . . .’
[11] Section 56 provides
that the Minister may establish a pricing strategy for charges for
any water use. Subsection (2), as far
as is material, provides:
‘
(2) The pricing strategy may
contain a strategy for setting water use charges –
. . .
(b) For funding water resource
development and use of waterworks, including –
. . . .
(ii) the costs of design and
construction;
(iii) pre-financing of development;
(iv) the costs of, operation and
maintenance of waterworks . . . .’
[12] Section 57(1)(b) of
the Act provides that water use charges ‘must be made in
accordance with the pricing strategy for water
use charges set by the
Minister’.
[13] The pricing strategy
established by the Minister provides that water user associations
must, for the purpose of water use charges,
take into account:
‘
(a) recovery of overheads,
operations and maintenance costs;
(b) recovery of capital, costs and the
servicing of loans . . . .’
[14] Section 60(1) reads
as follows:
‘
(1) A charge made in terms of
section 57(1), including any interest, is a charge on the land to
which the water use relates and is
recoverable from the current owner
of the land without releasing any other person who may be liable for
the charge.’
[15] Water user
associations are dealt with in Chapter 8 of the Act. In the preamble
to Chapter 8 the following is stated:
‘
Although water user
associations are water management institutions their primary purpose
. . . is not water management. They operate
at a restricted
localised level, and are in effect co-operative associations of
individual water users who wish to undertake water-related
activities
for their mutual benefit.’
The preamble continues:
‘
The functions of a water user
association depend on its approved constitution, which can be
expected to conform to a large extent
to the model constitution in
schedule 5. . . .’
Subsections (1) and (4)
of Section 93 are in the following terms:
‘
93(1) Schedule 5 contains a
model constitution which may be used as a basis for drawing up and
proposing a constitution for a proposed
water user association.’
‘
(4) A constitution adopted by a
water user association is binding on all its members.’
Section 94(1) reads as
follows:
‘
A water user association is a
body corporate and has the powers of a natural person of full
capacity, except those powers which –
(a) by nature can only attach to
natural persons; or
(b) are inconsistent with this Act.’
[16] The principal
functions of the respondent are set out in clause 4 of its
constitution. For present purposes it is sufficient
to quote clause
4.1, which, as far as is material, reads as follows:
‘
4.1 The principal functions to
be performed by the Association in its area of operation are:
. . . .
i. To construct, purchase or otherwise
acquire, control, operate and maintain waterworks considered
necessary for –
. . . .
(ii) supplying water to land for
irrigation or other purposes.’
Clause 5 deals with
ancillary functions of the respondent. Clause 5.1 reads as follows:
‘
The Association may perform
functions other than its principal functions only if it is not likely
–
a. to limit the Association’s
capacity to perform its principal functions; and
b. to be to the financial prejudice of
itself or its members.’
Clause 17, which deals
with the raising of loans, is in the following terms:
’
17.1 The Management Committee
of the Association may raise by way of loans, including bank
overdrafts, lease, instalment sale or any
other appropriate financing
mechanism, any funds required by it for the purpose of carrying out
of its functions under this constitution
or the Act.
17.2 Whenever the Management Committee
proposes to raise a loan, it must give notice in writing of its
intention, setting out details
of the proposal. The notice must be
given to every member of the Association not less that 21 days before
the date of the meeting
of the Committee at which the proposal will
be considered.
17.3 No loan may be raised without a
resolution of the Management Committee of the Association passed at a
meeting at which not less
than two-thirds of the members of the
Committee are present.
17.4 The Management Committee of the
Association may in the process of raising funds for the purpose of
carrying out its functions
as per 17.1, grant appropriate security
(including leasing of assets) for the financing facility.’
[17] Clause 18 deals with
charges and their recovery. It provides as follows:
’
18.1 For the purpose of
defraying any expenditure that the Management Committee of the
Association has lawfully incurred or may lawfully
incur in carrying
out its functions and duties the Committee may annually assess
charges on members according to the pricing strategy
for water use
set by the Minister. The Committee must for purposes of the
assessment take into consideration the budget prepared
by the
Executive Committee for Sub-area 1 to cover the operational,
maintenance and betterment requirements in respect of waterworks
managed and controlled by that Committee.
18.2 The Management Committee may
recover the charges assessed from either
a. the owners of the land concerned;
or
b. any person to whom water is
supplied on the land.
18.3 Whenever the Management Committee
has assessed a charge, the Committee must prepare an assessment roll
setting forth –
a. the name of each member liable to
pay charges;
b. a description of the piece of land,
which may be a specially delineated area, in respect of which the
charge is assessed;
c. the quantity of water or
abstraction time period to which the member is entitled;
d. the amount of the charge assessed;
e. the date or dates on which payment
is due and the amount due on each date; and
f. the rate of interest payable on
non-payment and the effective date of interest.
18.4 A copy of the assessment roll
must lie open for inspection in the office of the Association at all
reasonable times by any member
of the Association.
18.5 If after proper notice, any
charge, including interest due to the Association, is more than 90
days in arrears, the Association
may in addition to the powers vested
in it in terms of section 59(3) of the Act, without further notice to
the member, collect the
amount due by issuing summons in a
Magistrate’s court with jurisdiction, regardless of the amount
involved, in which event
the member will be responsible for all
collection and legal costs, inclusive of attorney and client costs.’
APPELLANTS’
CONTENTIONS
[18] The first two
defences relied on by the appellants related to the respondent’s
assessment roll. It was pointed out that
the extracts from the roll
annexed to the founding affidavit did not reflect the due date for
payment and the rate of interest as
required by clause 18.3 of the
constitution. The respondent had annexed to the replying affidavit
filed on its behalf the entire
assessment roll, which included two
additional documents, addressing both the due date and the interest
rate, which were lacking
on the schedule annexed to the founding
affidavit.
[19] The appellants’
counsel drew attention to certain features of the two additional
documents annexed which, they contended,
cast grave doubt on the
authenticity of these documents. It was submitted that, absent a
reference for oral evidence, it had to be
accepted that the document
relied on by the respondent did not constitute a proper assessment
roll as envisaged by clause 18 of the
constitution. It was further
submitted that on the scheme of clause 18, as read with the Act, a
proper assessment roll as envisaged
by clause 18.3 is a pre-requisite
to any liability. In the circumstances, so it was contended, no
liability on the part of the appellants
to pay the assessments had
been shown.
[20] It was further
contended on behalf of the appellants that as the assessment roll, on
their version, did not reflect the date
on which payment of the water
use charges claimed was due the respondent was not empowered to claim
payment of the charges from its
members. This was so, it was argued,
because the power conferred upon it by clause 18.5, which was the
sole source of the respondent’s
power to claim payment of the
charges, only arose when the charges in question were in arrears for
more than 90 days. As there was
no due date reflected on the roll the
period of 90 referred to in clause 18.5 had not started to run.
[21] Counsel for the
appellants raised a further defence which related only to the third
appellant. In this regard they submitted
that the assessment roll
relied on and annexed to the papers by the respondent did not apply
to the properties of the third appellant
in respect of which the
application was brought.
[22] The appellants’
main substantive defence to the claim for payment of the dam
financing component of the water use charges
was based on the
contention that it was never the intention of the legislature to
include under the rubric of water use charges liability
incurred by
the management committee on behalf of a water user association on a
frolic of its own, or contrary to the constitution,
or not for the
purpose of performing any of its functions in terms of the
constitution. Developing this submission, the appellants’
counsel referred to the fact that the dam financing component of the
water use charges is entirely based on the costs of servicing
a loan
allegedly due by the respondent to First Rand Bank Ltd in terms of a
loan agreement dated 29 January 2004, (referred to hereinafter
as
‘the term loan’). This agreement, it was common cause,
was concluded to consolidate the respondent’s alleged
existing
indebtedness under previous loans to First Rand Bank Ltd and the Land
Bank, and to compromise a dispute between the respondent
and First
Rand Bank Ltd arising from a so-called ‘Hedge Agreement’.
As far as the Hedge Agreement was concerned, the
appellants contended
that it had to be accepted on the papers that this agreement was not
authorized by the management committee
of the respondent’s
predecessor, the Impala Irrigation Board. As far as the respondent’s
alleged existing indebtedness
was concerned, the appellants referred
to a bridging finance loan purportedly concluded between the Impala
Irrigation Board and First
Rand Bank Ltd in December 1999 in terms of
which an amount of some R9.7 million was lent and advanced to the
irrigation board, and
two further interim loans, one of R7 million
advanced to the irrigation board in February 2001, and another of R1
million advanced
in July 2001.
[23] The appellants
averred that the decision to enter into the bridging finance loan
agreement was taken by the building committee
and not by the board of
the irrigation board. As far as the interim loans were concerned, it
was the appellants’ contention
that these loans were entered
into without prior notice having been given to the members as
required by clause 17.2 of the constitution.
The appellants also
challenged the validity of the term loan agreement on several
grounds. These were (a) that it was not authorised
by a proper
resolution of the respondent’s management committee; (b) that
clause 17.1 of the constitution was not complied
with because the
loan was not raised to carry out any of the respondent’s
principal functions under the constitution or the
Act but to
compromise an existing dispute and consolidate the respondent’s
existing indebtedness, nor was it validly raised
to carry out any of
the respondent’s ancillary functions because it was to the
financial prejudice of the members; (c) that
clause 17.2 of the
constitution had not been complied with because, although the members
had received details of the proposed agreement
more than twenty-one
days before the loan agreement was concluded, these details referred
to the original proposed agreement and
not to the agreement actually
concluded in respect of which certain terms were renegotiated; and
(d) that the charges raised were
not based on an existing debt in
that they related to the water year commencing 1 March 2003 and
terminating at the end of February
2004 and the application related
to charges raised during the months June to December 2003, clearly on
the basis of an anticipated
payment schedule forming part of the term
loan which was only concluded on 29 January 2004.
[24] The appellants also
contended that they have a damages claim against the respondent based
on the respondent’s alleged conduct
in failing to comply with
the provisions of clause 17 before the loan agreement with First Rand
Bank Ltd was concluded. In this regard
it was argued that, if it is
found that they are liable to the respondent in respect of the dam
financing component of the water
use charges, they will have suffered
damages, as a result of the alleged breach, in the equivalent amount
of whatever they may be
found to be liable to the respondent in
respect of such charges. In the circumstances, so they contended,
each of the appellants’
claims for damages in this regard is in
respect of a liquidated amount which in law is capable of set-off.
DISCUSSION
[25] I do not think that
the appellants’ defences based on the respondent’s
alleged failure to prove a properly compiled
and complete assessment
roll can be upheld. I agree with the submission advanced by the
respondent’s counsel that there is
no basis for holding that
compliance with clause 18 of the constitution is a pre-requisite
either for the right to raise charges
or to launch proceedings for
payment thereof. The clause does not in terms state that if clause
18.3 is not complied with there will
be no liability and no factor
was advanced which leads to the implication of such an intention on
the part of those responsible for
drafting or adopting the
constitution.
[26] I am also unable to
agree with the submission that, as no due date for payment was
reflected in the assessment roll, the charges
could not be claimed as
they were not yet 90 days in arrear. It was alleged in the founding
affidavit that charges are payable within
30 days: this was admitted
in the answering affidavit filed on behalf of the third appellant.
Clause 18.5 takes the case no further.
It can scarcely be interpreted
to exclude the jurisdiction of the High Court. As I read it, its
effect is to confer a right on the
respondent to recover both legal
costs, on the attorney and client scale, and collection costs where
the charges are claimed in the
magistrate’s court having
jurisdiction over the defendant and the charges are more than 90 days
in arrears and the ‘proper
notice’ has been given. This
sub-clause cannot in my view be interpreted to mean that unpaid
charges can only be claimed when
they are more than 90 days in
arrear.
[27] The fact that the
extract annexed to the founding affidavit was not applicable to the
third appellant also takes the case no
further. The notice of motion
was amended to correct the erroneous lot numbers and amounts
contained therein and in consequence thereof
this ‘defence’
fell away.
[28] I proceed now to
consider what I have described as the appellants’ main
substantive defence, the alleged invalidity of
the term loan
agreement with First Rand Bank Ltd and the consequent inability of
the respondent to raise water use charges to service
the loan. Though
the appellants aver that that agreement was invalid they do not
contend that the respondent is not obliged to repay
the loan. They
could not do so in view of the fact that the management committee’s
decisions to accept the loan obtained by
the irrigation board with
regard to bridging finance, to take further interim loans, to
compromise the ‘hedge’ claim
and to consolidate the
respondent’s debt in the term loan agreement have been ratified
several times. The respondent was clearly
liable to First Rand Bank
Ltd.
[29] As the respondent is
liable to repay the loan, a payment made by the respondent to the
First Rand Bank Ltd in respect of this
indebtedness would obviously
be a lawful payment. It would accordingly be expenditure which was
lawfully incurred. The management
committee on the plain language of
clause 18.1 would be entitled to raise water use charges to cover it.
If that were not so, one
would, as counsel for the respondent argued,
have the absurd situation (which the drafters of the respondent’s
constitution
could never have intended) that, although virtually its
main source of the income with which it can defray its expenses is
water
use charge income, its powers would, in certain circumstances,
not extend to raising charges to enable it to pay its debts.
[30] I am also of the
view that the appellants’ defence based on the fact that the
charges were not raised to pay an existing
debt but a debt arising
from a loan agreement, which it was anticipated would be concluded in
the future, is without substance. Clause
18.1, it will be recalled,
empowers the management committee to assess charges on members to
defray expenditure the respondent has
lawfully incurred or which it
may lawfully incur. The power of assessment under clause 18.1
accordingly extends not only to moneys
to be used to defray
expenditure already incurred but also to expenditure which may be
incurred in the future. Counsel for the appellants
endeavoured to
answer this point by submitting that the management committee’s
power to raise an assessment in order to defray
expenditure that may
be incurred had to be read, where the expenditure in question would
have been in respect of a loan, as being
subject to the requirement
in clause 17 that before a loan is raised there has to be compliance
with the provisions of subclauses
17.2 and 17.3. I do not agree that
clause 18.1 should be read as being subject to this implied
qualification. It is not self-evident
why a loan which it is
anticipated will be concluded towards the end of a water year (and in
respect of which the giving of the notice
required by clause 17.3
will take place shortly, but not less than twenty-one days,
beforehand) cannot form the basis of an assessment.
If the drafters
of the constitution had intended the power to raise an assessment in
respect of water use charges to be qualified
in this way I would have
expected them to have included it in express terms in clause 18.1.
[31] I turn now to the
appellants’ alleged claim for damages against the respondent
flowing from a breach of clause 17 of the
constitution. There are at
least two answers to this point. The learned judge in the court
a
quo
held, correctly in my view, that the claim, if it existed,
would in fact not be capable of easy ascertainment. If the claim had
merit,
the quantum of the appellants’ damages would have been
the difference between the amount payable in consequence of the
alleged
unlawful conclusion of the term loan agreement and the amount
which would have been payable if the agreement had not been
concluded.
Unless one assumes that no water use charges would have
been payable in respect of the dam financing component if the term
loan agreement
had not been concluded there would have been
some
amount payable in respect of this item. What it would have been
is not clear but it is overwhelmingly probable that some amount would
have been payable under this head. The Land Bank loan, for example,
would still have been repayable. By December 2003 it had risen
to
R182,5 million with interest payable at prime minus one per cent and
the repayments escalating at 12 per cent per annum. Furthermore,
even
if the management committee had exceeded its powers in concluding the
agreement, this would have been to the detriment primarily
of the
respondent, and only through that circumstance to the ultimate
detriment of the respondent’s members, including the
appellants. As counsel for the respondent correctly submitted, it is
unclear how the party alleged to be wronged in the first place,
what
one may call the primary victim, the respondent, can be said to be
liable to its members, the secondary victims, for the consequential
loss suffered by them. This is so even if one assumes that the
constitution can be regarded as a contract not only between the
members
inter se
but also as a contract between each of them
and the respondent itself. This assumption is not necessarily a
correct one:
cf
s 65(2) of the Companies Act 61 of 1973,
which, unlike s 93(2) of the Act, provides that the memorandum and
articles ‘bind
the company
and the members’ and
Hickman v Kent or Romney Marsh Sheepbreeders’ Association
[1915] 1 Ch 881
at 897 and
Gohlke & Schneider v Westies
Minerale Bpk
1970 (2) SA 685
(A) at 692 F-G. If there was a
breach, it is difficult to see on what basis it can be said that the
respondent
breached the contract and not the members of the
management committee. In my view, if there was a breach in this
regard, it is not
one in respect of which the members have an action
against the respondent.
[32] In the circumstances
I am satisfied that the appellants are not able to resist the
respondent’s claim for unpaid water
use charges by invoking the
set off of a liquidated claim which wipes out, as it were, their
indebtedness in this regard to the respondent.
[33] In the course of
argument counsel for the appellants contended that the respondent had
not made out a case in its papers that
there had been a valid
decision, or indeed any decision at all, by the respondent’s
management committee to raise a water use
charge for the 2003-2004
water year. For all we know, it was said, they may just have sent out
invoices. This point was not taken
in the opposing affidavits filed
on behalf of the appellants. Apart from the arguments advanced in
respect of the assessment roll
and the alleged set-off, the
appellants’ case focused on the power of the respondent to
raise water use charges based on the
dam financing component. It is
common cause that they paid the assessment, except insofar as it
related to the dam financing component:
in other words they proceeded
from an assumption that the assessment was valid except for the
portion relating to the financing of
the dam. In the circumstances I
am satisfied that the point is without merit.
[34] The learned judge in
the court
a quo
made no order as to costs in the four
applications relating to the first, second, fourth and fifth, and
sixth appellants but he ordered
all the appellants, jointly and
severally, to pay the respondent’s costs in the application
against the third appellant. He
did this because he was of the view
that it would have been sensible for the respondent to launch one
application in the High Court
and to institute action against the
other respondents in the magistrate’s court, on the basis that
the actions would follow
the result of the High Court application.
This approach overlooks the fact that the respondent, not
unreasonably, wanted to be able
to restrict the supply of water in
terms of s 59(3)(b) of the Act to each of the appellants, once it had
obtained judgment against
them for the unpaid water use charges. If
the procedure approved by the court
a quo
had been adopted it
could only have utilized its remedy under s 59(3)(b) against the
respondent cited in the High Court and would
have had to wait until
it obtained judgment against the others in the magistrate’s
court. In the circumstances I am of the
view that the respondent’s
cross appeal against the costs order in the court
a quo
must
be upheld.
[35] In view of my
conclusion that the appellants’ appeals must fail, their
further appeals in relation to the court
a quo’s
refusal
to order the respondent to provide security for their costs must also
be dismissed with costs.
ORDER
The following order is
made:
The appeals brought by
the first, second, third, fourth and fifth, and sixth appellants
against the judgment of the court
a quo
in NPD case nos
1515/2005, 1516/2005, 1517/2005, 1518/2005 and 1519/2005 are
dismissed with costs, including those occasioned by
the use of two
counsel.
The appeals brought by
the appellants against the order of the court
a quo
in
respect of their application for security for their costs are
dismissed with costs, including those occasioned by the use of
two
counsel.
(i) The cross appeal
brought by the respondent against the orders made in respect of the
costs in the cases listed in paragraph
A above is upheld with costs
including those occasioned by the use of two counsel.
Paragraphs (g) and (h)
of the order made in the court
a quo
are set aside and
replaced by the following:
‘
(g) The
respondents in each of the applications referred to above are ordered
to pay the applicant’s costs in the application,
including
those occasioned by the use of two counsel.’
……………
.
IG FARLAM
JUDGE
OF APPEAL
CONCURRING
BRAND JA
LEWIS JA
PONNAN JA
THERON AJA