About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2012
>>
[2012] ZAKZPHC 81
|
|
PGP Body Corp Administration CC v The Trustees of the body Corporate Club Kerkira (AR 403/11) [2012] ZAKZPHC 81 (26 October 2012)
REPORTAB LE
IN THE KWAZULU-NATAL HIGH
COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
AR: 403/11
In the matter between:
PGP BODY CORP
ADMINISTRATION CC
.......................................................
Appellant
and
THE TRUSTEES OF THE BODY
CORPORATE CLUB KERKIRA
...............
Respondent
__________________________________________________________________
JUDGMENT
Delivered on: : 26
OCTOBER 2012
PATEL JP
Background
[1] On 12 July 2011 the
Supreme Court of Appeal, on petition by PGP Body Corp Administration
CC (‘the appellant’), granted
the appellant leave to
appeal. The respondent is cited as The Trustees of the Body Corporate
Club Kerkira (‘the respondent’).
In granting leave the
Supreme Court of Appeal ordered that ‘the costs order of the
court
a quo
in dismissing the application for leave to appeal
is set aside and the costs of the application for leave to appeal in
this court
and the court
a quo
are costs in the appeal’.
[2] The brief history of
the matter is as follows:
2.1 The appellant was the
managing agent of the Body Corporate Club Kerkira. On 22 December
2008, at the Annual General Meeting
(‘the AGM’), it was
decided that all service contracts were to be reviewed. At that
meeting, the following members
representing the appellant were
present, namely, Mr G Smit, the Sectional Title Manager, Ms C Ronne,
Portfolio Manager and Mr G
Wolmarens, the Junior Portfolio Manager.
In their representative capacity they thus had knowledge that the
respondent acting through
its trustees had been duly authorised by
the Body Corporate to review all contracts. Such review would
ineluctably also mean the
termination of contracts. It is thus clear
that the AGM had given a clear mandate to the Trustees to review
contracts and if necessary
terminate them. On 30 January 2009 the
respondent resolved to terminate the appellant’s services. On 2
March 2009 the Chairman
of the Body Corporate informed the appellant
that its services had been terminated. On the same day the appellant
was notified
of the Body Corporate’s new banking details, in
order for the Body Corporate monies to be transferred into the new
account.
On 3 March 2009 the Chairman collected the Body Corporate’s
books of account and financial records from the appellant’s
office, which were handed over without demur; however the appellant,
represented by Mrs Porteous, refused to transfer the monies
until a
trust account had been opened.
2.2 On 9 March 2009 the
respondent brought an urgent application against the appellant
seeking a transfer of the Body Corporate’s
monies from the
appellant’s banking account into the newly opened savings
account which had been opened in the name of the
respondent. On 16
March 2009, that is the day of the hearing of the urgent application,
the appellant undertook to transfer the
monies into the respondent’s
attorney’s trust account and the matter was adjourned
sine
die
with costs reserved. The question of costs was heard by Sishi
J on 31 August 2009.
2.3 On 26 April 2010
judgment was handed down and Sishi J found that the respondent was
compelled to bring the urgent application
and that the respondent had
been substantially successful since it had obtained the payment of
the monies. Furthermore at no stage
was the matter set down for
argument on the merits. It was for these reasons that costs were
granted in favour of the respondent.
Leave to appeal was subsequently
refused.
Appellant’s case
[3] Appellant’s
submissions can be summed up as follows:
3.1 It refused to
transfer the monies because of the concerns it had with regards to
the validity of the initial resolution of 30
January 2009, and
indicated that the monies would be held in trust until it had seen
the minutes of that meeting.
3.2 The meeting which was
held on 30 January 2009 was invalid because the appellant was not
given notice of it and the respondent
failed to comply with
Management Rule 49(1) in Annexure 8 of the Sectional Title
Regulations (GNR.664 of 8 April 1988). As managing
agent, the
appellant ought to have been given notice of all trustee’s
meetings.
3.3 When the appellant
requested a copy of the minutes of the meeting in accordance with
Management Rule 49(2) the respondent failed
to provide same and only
complied after the appellant filed notices in terms of Uniform Rule
35(12) and (14) on 13 March 2009.
3.4 The initial
resolution, being brought about by a round robin telephonic
conversation, was invalid because it failed to comply
with Management
Rule 24. Hence there could be no valid ratification thereof. Even if
it is found that there was ratification, it
only took place on 14
March 2009. This meant that ratification only took place after the
launch of the urgent application.
3.5 The court
a quo
,
per Sishi J, erred in finding the following:
(a) that there could be
subsequent ratification of the initial resolution even though the
initial resolution, which was brought
about by the round robin
telephonic conversation, was found to be invalid;
(b) that the handing over
of books was an acceptance by the appellant of its termination of
contract;
(c) that reliance could
be placed on the minority judgment of Nicholas AJA in
Neugarten &
others v Standard Bank of South Africa Ltd
1989 (1) SA 797
(A);
and in ignoring
Baeck & Co SA (Pty) Ltd v Van Zummeren &
another
1982 (2) SA 112
(W); and
(d) that the respondent
was successful, since from the outset the appellant, did not want to
have anything to do with the money.
3.6 At the end of the day
the appellant chose to adopt a cautious approach in dealing with the
monies and therefore it should not
be saddled with a costs order made
against it.
Meeting, Notice and
Minutes of Meeting
[4] A managing agent is,
in terms of the Management Rules 49(1) and (2), entitled to be given
reasonable prior notice of meetings
of the trustees and from time to
time to be furnished with copies of the minutes of meetings of the
trustees. With regards to attendance
at meetings Management Rule
49(1) provides that a managing agent can only attend the meetings of
trustees with their consent. It
must be remembered that this round
robin meeting was held to terminate the mandate of the appellant. It
is improbable that the
trustees, even if they had given notice, would
have given the appellant permission to attend.
[5] When the appellant
initially requested a copy of the minutes for the meeting of 30
January 2009, the respondent said that the
appellant was not entitled
to same. At the time of requesting the minutes the appellant was
still the managing agent since its
mandate was to be terminated as of
28 February 2009. However since the meeting was to discuss the
termination of appellant’s
contract, it would not have made
sense for the appellant to have been given the minutes of the
meeting.
Validity of resolution
[6] The functions and
powers of a Body Corporate are subject to the provisions of the
Sectional Titles Act 95 of 1986 (‘the
Sectional Titles Act&rsquo
;)
and the Rules which govern sectional title developments. Various
duties are imposed upon trustees by the Management Rules set
out in
Annexure 8 of the Regulations to the
Sectional Titles Act. These
powers contained in the
Sectional Titles Act, must
be read with the
powers given to the Trustees by the general members or the general
body of the Body Corporate provided these powers
are not inconsistent
with the
Sectional Titles Act.
[7] Save as provided in
the rules, the trustees can exercise the powers and perform the
duties entrusted to them in the
Sectional Titles Act and
the rules
only by means of resolutions taken at a duly constituted meeting of
the board of trustees. The two main methods by which
the rules
authorise a departure from this basic principle are, firstly, a rule
empowering the trustees to delegate their powers
and duties to one or
more of their number, and secondly by using Management
Rule 24.
[8] Therefore if trustees
wish to make a decision in respect of a matter but do not wish to
hold a meeting, they may avail themselves
of the procedure provided
by Management
Rule 24
, which provides:
‘
A resolution
in writing signed by all the trustees for the time being present in
the Republic and being not less than are sufficient
to form a quorum,
shall be as valid and effective as if it had been passed at a meeting
of the trustees duly convened and held.’
This Rule has to be read
with
Rule 16(1)
which provides:
‘
At a meeting
of the trustees; 50 percent of the number of trustees but not less
than two, shall form a quorum.’
[9]
In
casu
we have five trustees, inclusive of the Chairman. The question arises
as to whether the resolution dated 30 January 2009, because
it has
just two signatures of the trustees, renders the resolution invalid
on the grounds that it is contrary to Management
Rule 24.
The
appellant has in paragraph 66 of its answering affidavit “established
that on the 30
th
January 2009, Mirinda Louw was in New
Zealand”. Thus, in determining the validity of the resolution
in terms of
Rule 24
and on the appellant’s version, the
reckoning of the quorum cannot take into account Mirinda Louw. Quorum
is not defined
in
Rule 24
nor in the definitions section of the Act,
hence my earlier statement that Rule 24 must be read with Rule 16
(1), if for no other
purpose then to determine the number of trustees
who will form a quorum. On a literal interpretation of Rule 24 any
resolution
has to be in writing and signed by all of the trustees
present at the time in the Republic. Thus Rule 24 is clear in
providing
in express terms that the written resolution must be signed
by all the trustees for the time being present in the Republic. Thus,
the resolution dated the 30
th
January 2009 is invalid. See
Torgos (Pty) Ltd v Body Corporate of Anchors Aweigh and Another
[2005] ZAGPHC 123
;
2006 (3) SA 369
(W). However, for the reasons mentioned hereinbelow
the invalidity of the resolution dated the 30
th
January
2009 cannot lead to the conclusion that the learned Judge
a quo
was wrong in coming to the conclusion that the Respondent was
entitled to be awarded costs because it was substantially successful.
[10] Regarding whether a
round robin telephonic conversation can result in a valid resolution
the respondent submitted that all
trustees meetings were held by
either telephonic conference or round robin telephonic discussions.
It had always been done that
way because of the fact that the
trustees lived in different parts of the country. The resolution
dated 13 March 2009 therefore
provides the following:
‘
We further
record that it has always been custom for the Board of Trustees of
the applicant to pass resolutions necessary for the
effective running
of the business activities of the Body Corporate to be effective and
binding by way of a
round
robin telephonic authorisation
and approval by all the Trustees.’ (my emphasis)
The appellant in its
answering affidavit concedes that it is aware that this was the
extant practice because the South Coast, like
the North Coast of
KwaZulu-Natal, has many properties like Club Kerkira where people
living in all parts of South Africa buy holiday
homes. It is thus
inevitable that to hold meetings of trustees
inter praesentes
is
impractical.
Ratification
[11] If the initial
resolution is invalid, the next question that arises is whether
ratification is nonetheless permissible in this
case.
In casu
the trustees at the AGM, in December 2008, were mandated to review
all contracts and this as pointed out earlier would also include
the
termination of contracts, a fact well known by the appellant through
its aforesaid representatives. During the round robin
telephonic
conversation it was decided that the appellant’s contract would
be terminated. There is no illegality here as
was in the case of
Cape
Dairy and General Livestock Auctioneers v Sim
1924 AD 167.
Hence
ratification is permissible.
[12]
The Supreme Court of Appeal in
Lynn
NO & another v Coreejes & another
2
011
(6) SA 507 (SCA)
discussed the decision of
Neugarten
& others v Standard Bank of SA supra
and
stated the following at para 13:
‘
In
Neugarten
and Others v Standard Bank of South Africa Ltd
the absence of consent by all the members of a company for security
furnished by that company for an obligation of another company
controlled by one or more of the directors of the first-mentioned
company, in contravention of s 226(2)(
a
)
of the Act, was considered and resolved as follows:
“
The
transactions set out in ss (1) of s 226 are prohibited and illegal
only in the absence of the consent of all the members. The
question
in any specific case is whether such consent has been given: if it
has, the transaction is not prohibited or illegal.
Consequently, to
postulate that the transaction is prohibited and illegal is to beg
the question. If the requisite consent is given
to the transaction
in
initio
,
it is a valid transaction. If the transaction is subsequently
ratified by the non-consenting members, the ratification relates
back
to the original transaction and the position is the same as if
consent had originally been given.”’
From the above it is
clear that the full bench of the SCA gave its imprimatur to the
aforesaid dicta. Therefore the appellant’s
submission that
Sishi J relied on a minority decision holds no water.
[13] The appellant
further submitted that ratification was only raised in the
respondent’s replying affidavit. Harms JA in
Smith v
Kwanonqubela Town Council
1999 (4) SA 947 (SCA)
para 15 summarised the position as follows:
‘
In
South
African Milling
(at 436F–437C) the matter was also approached from a procedural
point, namely that a party is not entitled to make out a
case in
reply and that a ratification relied upon in reply infringes this
rule. This part of the
ratio
is
strictly speaking not apposite to the present case because the issue
here was decided upon a stated case which did not raise
this point.
It remains, however, in view of persistent difficulties in this
regard, necessary to emphasise that this Court in
Moosa
and Cassim NNO
has clearly adopted as correct the refutation in
Baeck
& Co
(at 114E–119B) of the approach and to state that I fully
subscribe to that view. The rule against new matter in reply is
not
absolute (cf
Juta
& Co Ltd and Others v De Koker and Others
1994 (3) SA 499
(T) at 511F) and should be applied with a fair
measure of common sense.’
Trust account
[14] Management Rule 42
provides that –
‘
[t]he
trustees may authorise the managing agent to administer and operate
the accounts referred to in rule 41 and 43: Provided that
where the
managing agent is an estate agent as defined in the Estate Agents’
Act (Act
112
of 1976
), the trustees
may
authorise
such
managing agent to deposit moneys contemplated in rule 41 in a trust
account as contemplated in
section
32 (3)
of the Estate Agents’ Act, 1976, which moneys shall
only be withdrawn for the purposes contemplated in rule 41.’
(my
emphasis)
[15] According to the
appellant the Body Corporate’s account was a section 32
account. Section 32(2)(e) of the Estate Agency
Affairs Act 112 of
1976 provides:
‘
Trust
money in an account invested in terms of paragraph
(a)
or
deposited in terms of
subsection
(1)
shall be retained by the estate agent in question in that
account until the estate agent is lawfully entitled to it or
instructed
to make payment therefrom to any person.’
[16] From a reading of
the Estate Agency Affairs Act it becomes clear that the Act
specifically regulates the conduct of an estate
agent and not
trustees of a Body Corporate. Neither is there a requirement in the
Sectional Titles Act for
the Body Corporate to have opened a trust
account. The appellant appeared to act as more of an estate agent
than a managing agent,
and Mrs Porteous even states the following in
her opposing affidavit at para 5:
‘
I make this
submission not as a result of being managing agent but rather as a
consequence of being a registered estate agent…’
[17] One of the points
raised by the appellant relates to Glen Smit (‘Smit’), a
previous employee of the appellant.
Smit left the appellant’s
employ in January 2009, whereupon the appellant cancelled his Estate
Agency Affairs Board Fidelity
Fund Certificate. At the time of this
application there was a dispute pending at the CCMA, between the
appellant and Smit. After
the respondent terminated the appellant’s
contract it subsequently appointed Smit as its new managing agent.
Appellant submitted
that Smit was a Board Member of the National
Association of Managing Agents (NAMA) which required managing agents
to be estate
agents. This meant that Smit was going to be the
managing agent of the Body Corporate of Club Kerkira contrary to the
provisions
of the society of which he was a Board Member. It also
meant that the savings account opened by the Body Corporate was not
covered
by a
section 32
Fidelity Fund Cover. Thus there was a greater
need for the monies to be transferred into a trust account. The
respondent however
submitted that the problems between Smit and the
appellant had no bearing on the current application. I agree. It
appears that
the only reason as to why the appellant demanded the
opening of a trust account was because it knew that Smit was no
longer an
estate agent. Such insistence in my view was untenable
because the respondent had opened an account in its name and transfer
was
demanded into this account.
Fiduciary duty
[18] It is not entirely
clear from the provisions of Management
Rule 46
whether the managing
agent’s contract of appointment is regarded as a contract of
service or a mandate which creates a fiduciary
relationship between
the Body Corporate and the managing agent. But in CE van der Merwe
‘Sectional Titles’ in
Lawsa
2 ed vol 24 (2010)
para 466 the following is observed:
‘
Since the
managing agent is managing the affairs of the body corporate, it is
submitted that he or she stands in a fiduciary relationship
to the
body corporate. An executive organ of the body corporate, namely the
trustees, appoints him or her. The managing agent would
thus owe both
a duty of trust as well as a duty of care and skill towards the body
corporate.’
[19] On 11 March 2009 Mrs
Porteous sent a letter to the owners of units in the complex. Mrs
Porteous, however, appears to have misled
the owners in her letter.
In the letter it is stated that Body Corporate monies must be held in
trust and that the managing agent
must be an estate agent. These
statements are incorrect. One does not know if there were any
responses received. Whatever fiduciary
duties the appellant may have
had towards the Body Corporate, were ‘discharged’ with
the sending of the letter as well
as by informing the Chairman of the
possible risks involved in transferring the monies into a savings
account. Having thus informed
the members of the Body Corporate and
unless she received a letter to the contrary from the members of the
Body Corporate of the
Respondent, the Respondent could not hold the
Appellant liable if the Appellant had then transferred the monies to
the Trustees
in an account opened for the running of the affairs of
the Respondent.
Findings and the issue
of costs
[20] The Body Corporate
is only governed by the
Sectional Titles Act. Therefore
the Estate
Agents Act was not applicable and there was no need for the monies to
be transferred into a trust account. Mrs Porteous’s
conduct, by
handing over the books and records to the Chairman, amounted to an
acceptance of the termination of contract and the
initial resolution.
She was willing to hand over the books and documents but still hold
on to the money. This does not make sense.
Why do one and not the
other? Furthermore the appellant did not seem to have any problems
with any of the respondent’s previous
resolutions, but only now
that it is affected it cries foul. The Appellant having had knowledge
of the mandate given to the Trustees
of the Respondent had opened to
it the further defence afforded by the presumption of regularity
namely
omnia praesumuntur rite esse atca
. The presumption
although often applied when the validity of official acts are brought
into question, it also has a similar application
by way of the
Turquand
Rule namely that persons dealing with a company in
good faith may assume that acts within its constitutions and powers
have been
properly and duly performed. Such persons are not bound to
enquire whether acts of internal management have been regular. See
Royal British Bank v Turquand
(1856) 6 E & B 327
[1856] EngR 470
;
(119 ER
886).
[21] Whether an inference
may be drawn in favour of the presumption depends on all the
circumstances of the case and the applicable
standard of proof. (See
Odendaalrus Municipality v Odendaalrus Gold, General Investment
and Extensions Ltd
1959 1 SA 374
(A) 382 – 383). The
appellant was at all material times aware that the Trustees of the
respondent had been given the necessary
powers by the AGM held on 22
December 2008.
[22] The Chairman
provided the appellant with letters regarding the termination of
contract and the Body Corporate’s new banking
account details.
If the appellant was concerned about any potential fraudulent
activity she was covered not only by the documents,
but the action
she had taken in informing members of the Body Corporate and also the
resolution taken at the AGM.
[23] It is clear from the
papers that there were unresolved issues between the appellant and
the respondent. However the monies
did not belong to the appellant
and it should have transferred the monies when asked to by the
respondent. The appellant tried
to take over the powers of the
trustees and even wanted to question some of the decisions made, for
example the purchasing of the
bakkie. This was a proper case for
referral to oral evidence in order to make a considered determination
on the question of costs.
I hazard to guess that Mrs Porteous or
members of the appellant would not have shown the same zeal in
questioning their own appointment
as Managing Agents for the
Respondent.
[24] Mrs Porteous in para
3 of her answering affidavit states categorically that “the
First Respondent has no interest in
the Applicant’s monies and
is prepared to transfer the said monies together with a complete
accounting in respect of same
over to any person in trust”.
This claim rings hollow when one considers the event immediately
preceding the urgent application.
From Annexure “D” and
“E” dated the 3
rd
March 2009, it is evident
that Mrs Porteous if it was indeed her intent to hand over the money
to any person in “trust”
could have handed the monies to
the Respondents’ attorneys and would have thus obviated the
urgent application and safeguarded
her own position. The appellant’s
attorneys response dated the 4
th
March 2009, gainsays Mrs
Porteous aforesaid position. The entire application could have been
avoided if monies had been handed
over to the Respondent’s
attorney, to be held in a trust account until a proper resolution was
furnished.
[25] It is a trite
principle of our law that the award of costs is a matter within the
discretion of the trial court to be exercised
judiciously on
consideration of all the facts and as a matter of fairness to the
parties concerned (see
Rondalia Assurance Corporation of SA Ltd v
Page & others
1975 (1) SA 708 (A) at 720C-D).
Regarding a court of appeal’s role Corbett JA in
Attorney-General, Eastern Cape v Blom & others
1988 (4) SA 645 (A) at 670D–E, held that:
‘
In awarding
costs the Court of first instance exercises a judicial discretion and
a Court of appeal will not readily interfere with
the exercise of
that discretion. The power of interference on appeal is limited to
cases of vitiation by misdirection or irregularity,
or the absence of
grounds on which a court, acting reasonably, could have made the
order in question. The Court of appeal cannot
interfere merely on the
ground that it would itself have made a different order.’
[26] Wallis J in
Thusi
v Minister of Home Affairs & another and 71 Other Cases
2011
(2) SA 561
(KZP) para 64 stated that ‘where a decision on the
merits of an application is no longer necessary or permissible, for
whatever
reason, the question of costs is not determined in isolation
from the merits’. As I mentioned before, ideally this matter
should have been referred to trial for hearing of oral evidence to
determine costs. The parties chose not to do so.
[27] According to
Cilliers
‘
[w]here a
disputed application is settled on a basis which disposes of the
merits except in so far as costs are concerned, the court
should not
have to hear evidence to decide the disputed facts in order to decide
who is liable for costs, but the court has, with
the material at its
disposal, to make a proper allocation as to costs’ (see A C
Cilliers
Law
of Costs
(Issue
12) para 2.20). See also
Gans
v Society for the Prevention of Cruelty to Animals
1962 (4) SA 543
(W) at 545;
Gamlan
Investments (Pty) Ltd & another v Trilion Cape (Pty) Ltd
&
another
1996
(3) SA 692
(C) at 703I-704C.
[28] In
Mashaoane v
Mashaoane & another
1962 (2) SA 684
(D), Harcourt J pointed
out at 687G-H that:
‘
when a case
has to all intents and purposes been settled, apart from the question
of costs, it is undesirable to permit the question
of such costs to
become an occasion for incurring a great many further costs and,
incidentally, to occupy the time of the Court…’
The learned judge then
went on to state that:
‘
the
interests of the litigating public are superior to those of the Court
in this but the interests of the public and the Court
probably
coincide in this regard and may best be indicated by repeating the
latin phrase: ‘
interest
rei publicae ut sit finis litium’.
[29] An appeal court will
only interfere with discretionary orders granted by a lower court
where it is shown that
‘
the lower
court had not exercised its discretion judicially, or that it had
been influenced by wrong principles or a misdirection
on the facts,
or that it had reached a decision which in the result could not
reasonably have been made by a court properly directing
itself to all
the relevant facts and principles’ (see
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000 (2) SA 1
(CC) para 11).
[30] The question which
arises is whether it is fair under the circumstances for the trial
court to have awarded costs. In
Van der Merwe & another v
Taylor NO & others
2008 (1) SA 1
(CC) the court stated at
para 137:
‘
The
applicants have succeeded in part in their vindicatory claim. That
part relates to our finding that they have established ownership
of
the €20 865. However, the applicants have not shown that they
are the owners of the €109 135 and, what is more, they
have not
shown that the respondents are not entitled to hold the amount seized
pending an order of disposal at the end of the criminal
trial. In
these circumstances,
a
just and equitable outcome relating to costs is, in our view, not to
burden the applicants with costs. We would rather make no
order as to
costs.
’
(my emphasis)
[31] Trustees are more
often than not just ordinary owners who have taken on the
responsibility of becoming a trustee. There must
be numerous
difficulties experienced in managing a Body Corporate where the
trustees are scattered around the country. Therefore
Management Rule
12(1)(a) provides a wide indemnity to trustees. It reads as follows:
‘…
every
trustee, agent or other officer or servant of the body corporate
shall be indemnified by the body corporate against all costs,
losses,
expenses and claims which he may incur or become liable to by reason
of any act done by him in the discharge of his duties,
unless such
costs, losses, expenses or claims are caused by the
mala
fide
or grossly negligent act or omission of such person.’
[32] The respondent had
no other option but to launch an urgent application. Even though the
matter was not heard on the merits
the respondent was successful in
that it received payment. In
Fleming v Johnson & Richardson
1903 TS 319
Innes CJ said at 325:
‘
It is a
sound rule that where a plaintiff is compelled to come to Court, and
recovers a substantial sum which he would not have
recovered had he
not come to Court, then he should be awarded his costs’.
[33]
Thus, having regard to the conduct of the parties, the manner in
which settlement was reached obviating the hearing of the
application, the merits of the case and the dictates of fairness, it
must be found that the court
a quo
did
not misdirect itself when awarding costs.
Order
[34] Accordingly, I make
the following order:
34.1 The appeal is
dismissed.
34.2 The appellant is
ordered to bear all costs.
PATEL JP
I agree
MNGUNI J
Date of Hearing:
Friday, 30 March 2012
Date of Judgment:
Friday, 26 October 2012
For the Appellant: ADV. G
M HARRISON
Instructed by:
V
CHETTY INCORPORATED
206 MOORE ROAD
GLENWOOD
DURBAN
(REF.: Ms
Rajkumar/MC/P6317)
(TEL.: 031 –
2013191)
(FAX: 031 –
2013194)
c/o KISHORE RAMKARAN &
COMPANY
368 BURGER STREET
PIETERMARITZBURG
For the Respondent: ADV.
E S CROTS
Instructed by: LOUIS
HANSMEYER ATTORNEYS
c/o JOHAN OBERHOLZER &
COMPANY
22 BUTE ROAD
MORNINGSIDE
(REF.; LAH/MCVH)
(TEL.: 031 –
3037776)
17