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[2013] ZAKZPHC 39
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Wimbush and Another v Erintrade (Pty) Ltd t/a RT Chemicals (548/13) [2013] ZAKZPHC 39 (11 June 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
CASE
NO: 548/13
IN
RE CASE NO:2151/12
REPORTABLE
In
the matter between:
R T WIMBUSH
....................................................................................
First
Applicant
HARVEST CHEMICALS
(PTY) LTD
.............................................
Second
Applicant
and
ERINTRADE
(PTY) LTD t/a RT
CHEMICALS
........................................
Respondent
JUDGMENT
KOEN J
:
INTRODUCTION
[1]
This is a review of a taxation of a party and party bill of costs in
the above
application.
The Respondent seeks a review of the taxing master’s decisions:
(a)
disallowing various items in the bill of costs relating to the
travelling, accommodation and related fees of the Respondent’s
instructing attorney from Cape Town, and as a consequence taxing off
the items relating inter-alia to travelling to and from court,
travelling to and from junior counsel’s chambers in Cape Town,
parking at the airport and car rental expenses and accommodation
in
Pietermaritzburg, as incurred by the Respondent;
(b)
allowing only 3 hours and 20 minutes in respect of item 54 , although
this item was not objected to by the Applicants in their
Notice of
Objection to the Taxation, in respect of attendance at a consultation
with senior and junior counsel on 22 March 2012,
‘as well as
directors of respondent and noting detailed particulars in order to
draft and finalize opposing affidavits and
attending court when
return date postponed to 30/05/2012
1
for which a fee of R8 520,00 was claimed for 10 hours attendance.
These
two categories will be considered
seriatim
below. But first something has to be said of the background to the
litigation resulting in the application which was launched against
the Respondent and dismissed with costs by Ploos van Amstel J on 8
June 2012
1
,
which give rise to the bill being taxed.
RELEVANT
BACKGROUND:
[2]
The relevant background facts include the following:
(a)
The Applicants claimed that they were entitled to the results of a
field trial conducted in respect of a sample of 1,3 dichloropropene,
an agricultural chemical.
2
(b)
The First Applicant is a former share holder and managing director of
the Respondent;
(c)
In the founding affidavit the Respondent was cited as a private
company with limited liability duly incorporated in accordance
with
the company laws of the Republic of South Africa carrying on business
as a manufacturer and trader in agricultural chemicals
‘from
its principal place of business at 22 Old Field Road, Mkondeni,
Pietermaritzburg, KwaZulu-Natal’;
(d)
Although the founding affidavit referred to and annexed copies of
clauses from:
(i)
a agreement in terms whereof shares belonging to the First Applicant
and other minority shareholders were bought out by Ububele
Chemicals
Group (Pty) Ltd; and
(ii)
a further contract concluded between the Respondent and the First
Applicant as employee, entitled ‘Employment settlement
agreement’, in terms whereof the First Applicant would remain
an employee of the Respondent on call to assist in the Respondent’s
management, by assisting one Derek Alexander who was designated to
take over the role of managing the Respondent,
these
agreements were referred to
3
simply to ‘set out the nature of the aforementioned
transactions in order to obviate any confusion created by my current
status as an employee of the Respondent’. Indeed these
agreements do not appear to have been of much or any significance
to
the issues in dispute in the application;
(d)
It was common cause that the Respondent for a number of years wanted
to register the 1.3 dichloropropene product with the Registrar
of
Fertilizers, Farm feeds, Agricultural Remedies and Stock Remedies and
that the First Applicant also wanted to register this
product.
4
Both the Respondent and the First Applicant needed field trials in
respect of the dichloropropene to be conducted, as the results
thereof were essential for the registration of the product. The First
Applicant had a sample of the product, the Respondent not;
(e)
A discussion took place between the First Applicant and Alexander
telephonically on 16 September 2011. The Applicants’
claim to
the results of the field trial was based on an agreement allegedly
concluded during this discussion. There was a factual
dispute as to
what was allegedly discussed during this discussion;
(f)
Ploos van Amstel J found that the application was unaffected by any
material dispute of fact as there was no evidence, and accordingly
that the Applicants failed to establish that Alexander had the
necessary authority to conclude the alleged agreement contended
for
by the Applicants. An alternative basis, claiming that the Respondent
was estopped from denying Alexander’s authority
was also
rejected.
5
THE
TAXING MASTER’S DECISION;
[3]
The taxing master disallowed the first category of items and
disallowed ‘the bill in respect of the Pietermaritzburg
correspondent’. The reason advanced was that:
'...
the Respondent was cited in Pietermaritzburg as per the Notice of
Motion. I was convinced by the argument of Mrs Leppan that
jurisdiction was never raised in the application. She relied upon
the principles as set out in
Naval
Servicos
f
where the Applicant/Plaintiff does not have to cite the other party
at the head office of its holding company. The Cape Town
attorneys
were allowed as If they were based in Pietermaritzburg.
As
part of settlement negotiations, the costs of a Pietermaritzburg
agent (as a post box only) was agreed upon. It is therefore
not
correct to say that two sets of attorneys should be allowed, as I
did not allow this in principal (sic). It was agreed to
between the
parties for settlement.’
6
In
respect of item 54, the taxing master stated that ‘my
discretion as a taxing master was judicially exercised by taking
due
notice of the machine operator’s timesheet’.
7
[4]
It seems to me that what the taxing master purports to convey in
respect of the first category is that the fees of the
Pietermaritzburg
correspondent were allowed, by virtue of the
agreement between the parties, and not as part of her accepting that
the Cape Town
attorney’s fees should be allowed as instructing
‘out of town
1
attorneys. But for that agreement, it seems that she would not have
allowed the fees of the Pietermaritzburg attorneys. This
might
appear somewhat inconsistent or incongruous but was probably caused
by the taxing master being faced, as a
fait
accompli
with an agreement between
the parties that the fees of the Pietermaritzburg attorneys should
be allowed. As these fees were allowed
on that basis I do not intend
saying anything further about them. The issue remaining and to be
addressed is whether the fees
of the Cape Town attorney should have
been allowed as out of town instructing attorneys
8
,
or simply ‘as if they were based in Pietermaritzburg’
9
.
THE
RESPONDENTS CONTENTIONS:
[5]
In its ‘Contentions in respect of the taxing master’s
stated case’, the Respondent points out that it:
‘
has
its
registered
address
in
the jurisdiction of the Cape High Court. This is also the place
where some of the Respondent’s directors/or employees
reside-
The Respondent’s attorneys of record are also situated within
the jurisdiction of the Cape High Court, being De
Klerk & Van
Gend. The attorneys for the Respondent, as well as the junior
counsel for the Respondent have handled substantial
amounts of legal
work for the Respondent over the last couple of years preceding this
application. The attorneys for the Respondent,
De Kierk & Van
Gend, was (sic) also responsible for drafting the Respondent’s
shareholders agreement and other commercial
agreements which was
(sic) relevant to this application. The Cape Town attorneys thus had
first-hand knowledge of the business
structure and other information
relevant to the application’.
'Consultations
with deponents to affidavits resisting the above application was
also taken in Cape Town as the deponents to some
of the affidavits
reside there'.
The
Respondent further conceded that jurisdiction was not challenged by
the Respondent as the KwaZulu-Natal High Court, Pietermaritzburg
does indeed have jurisdiction over the Respondent ‘as the
Respondent has a
Head Office
in the jurisdiction of the above Honourable Court.’
[6]
The Respondent contends that the current matter is distinguishable
from the decision in
Naval Servicos
in one or more of the following respects:
(a)
The
Naval Servicos
matter was an action whereas the present review pertains to an
urgent application;
(b)
In the
Naval Servicos
matter the use of two sets of attorneys in South Africa, more
specifically KwaZulu-Natal, was not challenged and the issue related
to the use of and fees of solicitors in Australia where directors
and shareholders of the Defendant resided and where 'policy
decisions and final decisions are made entirely by the Australian
members of the Board’ and where ‘all decisions
concerning the governance of the company are made in Australia’;
(c)
In the
Naval Servicos
matter it was not an issue whether the Head Office or registered
office was situated in more than one city in South Africa, but
rather that they had a further office in Australia, the fees
relating to which were disallowed by the taxing master, and that
decision upheld on review.
RELEVANT
LEGAL PRINCIPLES
:
[7]
As much as there are these distinguishing features, the decision in
Naval Servicos
reaffirms important principles which remain valid and applicable
also in the present review. These include the following:
(a)
Rule 70 (3) provides that taxation of a bill of costs is ‘with
a view to affording the party who has been awarded an
order for
costs a full indemnity for all costs reasonably incurred by him
5
.
It confers a discretion on the taxing master to award such costs ‘as
appears to him to have been necessary or proper for
the attainment
of justice or defending the right of another party.
10
(b)
A judge or a Court on review will not interfere with the exercise of
such discretion unless it appears that the taxing master
has not
exercised his discretion judicially and has exercised it improperly,
for example, by disregarding factors which he should
properly have
considered, or considering matters which it was improper for him
have considered, or he has failed to bring his
mind to bear on the
question in issue, or he has acted on a wrong principle. The court
will also interfere where it is of the
opinion that the taxing
master was clearly wrong but it will only do so if it is in the same
position as, or a better position
than, the taxing master to
determine the point in issue. The court must be of the view that the
taxing master was clearly wrong
i.e. its conviction on a review that
he was wrong must be considerably more pronounced than would have
sufficed had there been
an ordinary right of appeal.
11
(c)
Looked at from the perspective of an unsuccessful litigant, such
litigant before embarking on instituting or defending an
action or
application would give consideration to the so called ‘down
side’ of being unsuccessful, part of which
consideration would
be the associated legal costs. An important factor would be whether
the prospective opposing party to the
litigation is resident at the
seat of the court and if not the reasonable and necessary need for
there to be more than one set
of attorneys for that litigant.
12
At
the one extreme would be that all the costs of any attorneys a
successful litigant may employ, wherever situated, should be
permitted. This is not an approach that has found favour in our law.
On the other extreme is the position that where a litigant
for
whatever reason elects not to employ an attorney in the area he
resides, he loses the benefit of being entitled to recover
the costs
of any attorney he instructs other than a set of attorneys at the
seat of the court.
13
(d)
A healthy balance between these two extremes must be sought to be
achieved. This is done by adopting what has been termed
a
‘realistiese en gesonde verstand benadering.
14
(e)
In
Schoeman v Schoeman
15
it was held
16
‘
[i]t
is, in my judgment not correct to say that in the choice of a local
attorney a litigant is necessarily restricted to an attorney
practising in the town where he lives or carries on business. Much
would depend on the circumstances of the case and a realistic
and
common sense approach should be adopted.'
DISCUSSION
REGARDING THE CAPE TOWN ATTORNEYS CHARGES
[8]
It is trite law that a company may for jurisdictional purposes be
'resident’ in more than one place where its registered
office
and principal place of business are located at different venues.
17
The principal place of business would ordinarily be the
place
where the company decides whether to institute or defend actions and
also the place where it would make decisions relating
to litigation
and where it would be expected to consult with its attorneys. In a
different context it has been held that 'a company
resides at the
place where its general administration is located, i.e. at the seat
of its general management and control, from
where the genera!
superintendence of its affairs takes place, and where, consequently,
it is said that it carries on its real or
principal business’.
18
[9]
In
casu,
in considering the downside of litigation, the Applicants on what is
before me as their version would on probability have proceeded
on the
basis that the Respondent, which the First Applicant believed was
represented in the dealings with him by Mr Alexander,
had its
principal place of business in Pietermaritzburg and that the dealings
concerning the subject matter of the application
i.e. the sharing of
field results, had been within the jurisdiction of this Court. Such
consideration is however not conclusive
on the issue before me.
[10]
Although reference was made by the Respondent in support of the
proposition that these charges should have been allowed to
the sale
of shares agreement and the employment agreement, it is not clear
whether these are agreements referred to in paragraph
1.7.2 of the
Respondent's contentions where it refers to ‘the attorneys for
the Respondent, De Klerk and & Van Gend,
also having been
responsible for drafting the Respondent’s shareholders
agreement and other commercial agreements ‘relevant
to this
application’.
Prime facie
a ‘shareholders agreement’ would be something different
to a sale of shares agreement. It is not clear whether ‘commercial
agreements which was (sic) relevant to this application’
necessarily entailed the two agreements to which the First Applicant
referred to in the founding affidavit.
19
Certainly, the ‘Contentions’ of the Respondent did not
refer to these agreements as such by name. In any event, these
agreements were strictly speaking not relevant to the Applicant’s
application, although they appear to have significance
in respect of
the counter application.
20
The present review is not concerned with the costs of that counter
application.
[11]
The field trials in respect of the sample of chemical were to be
conducted by the University of KwaZulu-Natal, which has campuses
within the jurisdiction of this Court. Although this did not appear
clear from the founding papers, it seems that the communication
on 16
September 2011 between the First Applicant and Alexander occurred
within the jurisdiction of this court. If nothing else,
there is
nothing before me to suggest that these events did not occur within
the jurisdiction of this court.
[12]
What would probably have been contemplated on the ‘downside
5
of the application by the Applicants would have been consultations
having to take place with and affidavits being obtained from
Derek
Alexander
21
and Matthys Coetzee
22
,
the persons the First Applicant had dealt with.
[13]
In the Respondent’s contentions it is variously stated that the
Respondent 'has a head office in the jurisdiction of
the above
Honourable Court’ and that the Respondent however ‘has
its registered address in the jurisdiction of the
Cape High Court’.
Whether the registered address might just be an official address with
a professional firm or otherwise,
does not appear. What is stated is
that ‘this is also the place where
some
23
of the Respondent’s directors
24
and/or employees
25
reside
5
.
By analogy with the judgment in
Naval
Servicos
, the presence of some
directors and/or employees of a company does not mean that the
‘general superintendence of its affairs’
took place in
the jurisdiction of the Cape High Court. Nothing conclusive is
advanced to suggest that the day to day running of
the business of
the Respondent, including facts relevant to the application and more
specifically facts in opposition thereto,
were not in
Pietermaritzburg.
[14]
The fact that the matter was decided on the basis of the absence of
authority on the part of Mr Alexander, which would require
evidence
from a higher echelon in the corporate structure of the Respondent,
even if from ‘some of the Respondent’s
directors and/or
employees
1
residing in the jurisdiction of the Cape High Court’, would at
the level of a Yealistiese en gesonde verstand benadering
1
not necessarily dictate that the employment of Cape Town attorneys
was reasonable and should be allowed on taxation. The authority
point
was a simple one
26
,
which would not
perse,
reasonably
and as a matter of ‘gesonde verstand’ demand the
appointment of attorneys in the Western Cape.
[15]
It was also contended that the attorneys De Klerk & Van Gend and
the junior counsel Mr H Rademeyer ‘have handled
substantial
amounts of legal work for the Respondent over the last couple of
years preceding this application’. A perusal
of the application
would not
per se
suggest that the present application (as opposed to the counter
application) was so intricately related to any unidentified
‘substantial
amounts of legal work
1
conducted for the Respondent ‘over the last couple of years
preceding this application’ to, at a realistic and common
sense
approach, require the employment of the Respondent’s attorneys
in Cape Town. If the Respondent felt that the knowledge
of past
substantial legal work which De Klerk & Van Gend had done was
such that the Respondent would take comfort from them
also acting in
the present application, then that is an aspect for the attorney and
client component at best, of any legal fees.
At a realistic and
common sense level I am not persuaded that the taxing master erred
and more precisely exercised a wrong discretion
in disallowing such
fees on a party and party scale.
[16]
The same reasoning would extend to the suggestion that the Cape Town
attorneys had first-hand knowledge of the business structure
and
other information relevant to the application. What appears from the
judgment of Ploos van Amstel J would not suggest that
the actual
business structure or other information which might be relevant to
the application was of such magnitude and complexity
as to
necessitate the involvement of the Cape Town attorneys on a party and
party basis.
[17]
That consultations with deponents to the affidavits resisting the
above application were also undertaken in Cape Town because
some of
the deponents to the affidavits reside there, does not in my view
entitle the Respondent to the costs of the Cape Town
attorneys on a
party and party scale, other than ‘as if they were based in
Pietermaritzburg
1
.
Instructions could have been obtained from these witnesses and the
affidavit prepared by local attorneys.
[18]
Reliance has been placed by the Respondent on
Groenewaid
v Selford Motors (Edms) Bpk,
27
where it was held in a situation where Bloemfontein attorneys
travelled to Cape Town that::
‘
there
is no reason why the Bloemfontein attorney should not have attended
the trial instead of the Cape Town attorney. He apparently
came to
Cape Town with the object of attending the trial, It is clear that
the charge of only one attorney attending the trial
is allowable,
but there is no rule against it being the country attorney. If he
properly attends the trial, his travelling expenses
may be
allowed...'
Based
on this dicta, the Respondent submits that opposing an urgent
application as
in casu
necessitated consulting on an urgent basis with witnesses in order
to finalise the affidavits and that this necessitated the
travelling
of the attorney between Cape Town and Pietermaritzburg.
[19]
The Groenewald matter is clearly distinguishable as it concerned an
action. In an action evidence is led and an attorney’s
intervention is necessary at times to assist in procuring
information and documents for cross-examination and in rebuttal. At
the risk of stating the obvious, in an application the case to be
met is cast in stone as both the issues in dispute
(facta
probanda
) and the evidence in
support thereof
(facta probantia)
are contained in the affidavits. All that is required is that the
attorney consults with his clients and relevant witnesses to
draft
the affidavits. Once the required number of copies have been made
and filed, the attorney’s involvement (assuming
him not to
appear to argue the matter him- or herself) is limited. The parties
are confined in their argument to what is contained
in the
affidavits. Save for possible administrative issues which may arise
relating to the filing and service of papers, heads
of argument,
practice notices and the like, no further contribution can
be made by the out of town
attorney to any extent greater than as if that attorney was based at
the seat of the court, certainly
on a party and party scale.
[20]
The considerations advanced by the Respondent, even taken
cumulatively, have not caused me to conclude that the taxing
master’s discretion was not exercised judicially or that the
taxing master was clearly wrong in respect of the rulings on
the
items relating to the Cape Town attorneys.
DISCUSSION
REGARDING ITEM 54 IN THE BILL OF COSTS:
[21]
Item 54 was allowed partially, by the taxing master taking note of
the ‘machine operator’s time sheet'. This
would relate
to the attendance at court when the return date was postponed to the
30 May 2012. What has been disallowed appears
to relate purely to
the attendance on a consultation with senior and junior counsel as
well as directors of the Respondent ‘noting
detailed
particulars in order to draft and finalise opposing affidavits,..’.
[22]
The manner in which some fees are charged and allowed have changed
in recent times from what was allowed on taxation in the
past. Thus,
for example, whereas advocates in the past always charged for
preparation in a matter by providing for an inflated
first day fee,
it is now accepted that they may also charge for preparation on a
time basis, but always having regard to what
is reasonable
28
so as to not reward incompetence or inexperience. The traditional
practice in relation to the preparation of affidavits and
applications in the past was that attorneys would prepare the
affidavits, which then might be submitted to counsel to be settled.
The modern tendency increasingly appears to be that the attorney
accompanies clients to counsels chambers where consultations
then
take place, counsel actively drafting the affidavits and the
attorney adopting a more passive role of simply setting up
the
consultations and taking notes of any further witnesses identified
from whom affidavits might have to be obtained and arranging
consultations in regard thereto, or then procuring any further
documents or information regarding particulars to be obtained
to
finalise the affidavits. As much as this has become a modern
tendency and in many particularly complex matters justified,
it
seems to me that the complexity of this matter was not such that it
required 6 hours and 40 minutes of consultation with senior
and
junior counsel and directors of the Respondent to note ‘detailed
particulars to draft and finalise the opposing affidavits’.
Whatever might have been required to draft affidavits could have
been identified by the attorneys, or listed in a memorandum
by
counsel, or otherwise would be for attorney and client purposes.
[23]
On what has been placed before me, I am not persuaded that the
taxing master had not exercised a discretion judicially or
that the
taxing master was clearly wrong in this regard, both being
prerequisites to me reviewing the taxing master’s decision.
[24]
I am accordingly not persuaded that the review in respect of the
second category should succeed either.
COSTS:
[25]
Costs are infrequently granted in reviews of this nature. The
Applicants have however been successful in opposing the application
and should to the extent that costs may have been incurred, be
indemnified for such expense.
ORDER:
[26]
Accordingly, the review is dismissed and the Respondent is directed
to pay the Applicants’ costs relating to the review.
1
In
addition to dismissing the application with costs, Ploos van Amstel
J also granted an order interdicting and restraining the
Applicants
from using, disclosing or publishing the Respondent’s
confidential information and trade secrets, and pending
the final
determination of an action to be instituted by the Respondent
against the Applicants within 60 days for an interdict,
rectification of the share sale agreement and ancillary relief, the
Applicants’ were interdicted and restrained from developing
or
registering any product if they have, in doing so, used any
confidential information or know how which the first Applicant
obtained during his employment with the Respondent or which
confidential information or know how was used to effect the
Respondent’s
registrations with the Registrar of Fertilizers,
Farm feeds, Agricultural Remedies and Stock Remedies in terms of Act
36 of 1947.
This additional relief arose from the counter
application.
2
The
Respondent filed a counter application to protect certain alleged
confidential information it believed the Applicants became
privy to.
The items in the bill of coats sought to be reviewed relate to the
Applicants
1
application
and not the counter application;
3
Paragraph
11 of the founding affidavit.
4
The
First Applicant maintained that he was entitled to do so provided he
did not use any confidential information or know how
which he
obtained during his employment with the Respondent, or which
confidential information or know how were used to effect
the
Respondent’s registrations with the Registrar.
5
An
appeal against the decision of Ploos van Amstel J was noted, but
subsequently withdrawn.
6
The
reference to 'Naval Services’ is to
Naval
Servicos A Vanegcauo Limitada v Strang Rennies Metal Terminals (Pty)
Ltd,
Case
No 11918/07 NPD, a judgment of Skinner A J with which I concurred.
7
This
was with reference to the decisions in
Ocean
Commodities Inc and Others v Standard Bank
1984
(3) SA 15
(AD) and
Government
Gazette
2835
of 12 December of 1952. The taxing master always retains the
discretion to disallow fees even in the absence of objection
by the
other side.
8
As
claimed by the Respondent.
9
As
the Taxing Master allowed.
10
Visser
v Gubb
1981
(3) SA 753
(C) at 754H-755B
11
Visser
v Gubb {supra)
at
755A -B
12
Naval
Servicos
pg
4.
13
An
approach expressly disapproved of in
Naval
Servicos.
14
See
Niceffek
(Edms) Bpk v Eastvaal Motors (Edms) Bpk
1993
(2) SA 144
(O) 155B. Contrast
Stadsraad
van Benoni v Meyer
(Witwatersrand
Local Division Case No. 34133/93),
Vorster
v Vorster
(Eastern
Cape Division Case No. 151/90) and
Human
v The Administrator of the Cape of Good Hope and Others
(Eastern
Cape Division Case No, 567 where this ‘common sense approach’
has not been followed as a general trend. On
the other end of the
scale is the strict view adopted in
Sonnenburg
v Moima
1987
(1) SA 571
(T) to the effect that where a litigant for whatever
reason elects not to employ a local attorney, he loses the benefit
of being
entitled to recover the costs of an attorney other than one
at the seat of the court.
15
1990
(2) SA 37
(E).
16
At
page 42H.
17
Rex
Trueform Clothing Company Ltd v Hutton & Cook
(Eastern
Cape Division Review Case No. 1483/96), Case No. 642/95 referred to
in
Naval
Servicos
at
pg 6 where it was said, ‘Principal place of business, being
the place of central control, would ordinarily be the place
where
the company would decide whether to institute or defend actions.
That is also the place where the company would make decisions
relating to litigation and where it would b© expected to
consult with its attorneys.’
18
Bisonboard
Ltd. v K Braun Woodworking Machinery (Pty) Ltd.
[1990] ZASCA 86
;
1991 (1) SA 482
A.
19
These
were in any event simply alluded to by the First Applicant In order
to obviate any confusion created by my current status
as an employee
of the Respondent'.
20
In
the affidavit by Mr Mocke in support of the Counter application he
asked that the answering affidavits be read as part of his
affidavit
in support of the counter application. The terms of these agreements
were dealt with in some detail.
21
According
to the affidavit of Mr Derek Norman Alexander, a director of the
Respondent, he resides in Kroonstad, but he did visited
Pietermaritzburg ‘two or three times per month during June to
December 2011.'
22
According
to the affidavit
of
Mr
Matthys Johannes Coetzee, the technical manager of
the
Respondent,
he resides at Umhlanga, KwaZulu-Natal.
23
Not
all the directors reside in the Cape. It is not disclosed how many
reside in the Western Cape. The underlining is mine.
24
According
to the affidavit of Mr Matthys Mocke he resides at Durbanville,
Western Cape. According to the affidavit of Mr Herbert
Cloete, he
resides at Cape Town. Mr Alexander apparently resides in Kroonstad.
25
The
employees who deposed to affidavits, namely Mr Coetzee (technical
manager) and Cynthia Barbara Du Toit (office manager) reside
in
KwaZulu-Natal at Umhlanga and Balgowan respectively.
26
Mr
Alexander had not yet been appointed to a position of authority in
the Respondent at the time the alleged agreement relied
upon by the
Applicants was alleged to have occurred.
27
1971
(3) SA 677
(C) at 680G.
28
See
Naval
Servicos
and
President
of the Republic of South Africa and Others v Gauteng Lions Rugby
Union and Another
2002
(2) SA 64
(CC) at 781 - 79D.