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[2011] ZAKZPHC 51
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Mondi South Africa Ltd v Martens and Another (7764/05) [2011] ZAKZPHC 51; [2012] 1 All SA 602 (KZP); 2012 (2) SA 469 (KZP) (9 November 2011)
REPORTABLE
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. 7764/05
In the matter between:
MONDI SOUTH AFRICA
LIMITED
….....................................
PLAINTIFF
and
ANDRE MARTENS
…...................................................
1
ST
DEFENDANT
PAUL OSCAR MARTENS
….......................................
2
ND
DEFENDANT
JUDGMENT
Delivered
on 09 November 2011
_________________________________________________________
SWAIN J
[1] Before me for
decision is a stated case, which by agreement between the plaintiff
and the first defendant is to be dealt with
separately in terms of
Rule 33 (4). The second defendant, did not formally consent to this
procedure, but did not oppose it and
abided the Court’s
decision on this issue. At the hearing of the matter I therefore
granted the requisite order in terms
of Rule 33 (4).
[2] The agreed facts
placed before me, for the purpose of adjudicating the stated case are
as follows:
[2.1] The first and
second defendants are a father and son.
[2.2] During or about
1989 the first defendant joined the second defendant to farm with him
at the farm Wuthering Heights on the
Loteni Underberg Road, upon
which the second defendant had farmed since the early 1960’s.
[2.3] The first and
second defendants during or about 1990 purchased three abutting
properties, fenced in as a single farm named
Neteni to extend their
farming enterprise. The properties were:
[2.3.1] Sub 4 of the Farm
Balmoral No. 13347, situated in the administrative district of Natal,
in extent 94,0735 hectares; and
[2.3.2] Remainder of the
Farm Rialto No. 13788 situated in the administrative district of
Natal, in extent 353,7785 hectares, registered
in the name of the
first defendant.
[2.3.3] Remainder of
Portion 15 of the Farm Balmoral 1375, situated in the administrative
district of Natal in extent 203,3690 hectares
registered in the name
of the second defendant.
[2.4] The second
defendant provided collateral security in order to secure a hundred
per cent loan from the Landbank for the purchase
of the three farms
comprising Neteni.
[2.5] Two of the
properties were registered in the name of the first defendant and one
in the name of the second defendant.
[2.6] During 1991 the
first and second defendants realised that the joint farming
enterprise did not work out for them.
[2.7] During or about mid
1991, the first defendant returned to Gauteng to take up employment
and residence there.
[2.8] The arrangement
between the first and second defendants was that the second defendant
would take occupation/possession and
control of the farm Neteni,
which included the two portions registered in the name of the first
defendant.
[2.9] The first defendant
on or about 29 April 1993 signed an
“Agreement and Power
of Attorney”,
and handed same to the second
defendant’s attorney, one Tony Hofmeyer of the firm Bale
Buchanan in Pietermaritzburg.
[2.10] The second
defendant signed the document on or about 04 May 1995.
[2.11] The agreement was
implemented by the parties, in that the second defendant took
possession/occupation of Neteni to the exclusion
of the first
defendant and exercised exclusive control thereover.
[2.12] Neteni (comprising
all three constituent properties referred to hereinbefore) was sold
by the second defendant, relying on
the authority contained in the
said power of attorney during or about 2005.
[2.13] The first
defendant was not party to the sale, did not at the
time know thereof, did
not sign the Deed of Sale or any transfer documents and did not
receive any proceeds of the sale.
[2.14] The first
defendant only learned of the sale of Neteni after the event.
[2.15] The two properties
forming part of Neteni which was registered in the name of the first
defendant, was still so registered
in his name on 17 July 2003, the
date of the fire which forms the subject of this action.
[2.16] No neighbourly
matters, such as making of firebreaks and/or fire fighting strategies
were raised and/or discussed by employees
and/or representatives of
the plaintiff (Mondi) with the first defendant.
[2.17] The first
defendant did not inform the plaintiff of the said agreement.
[2.18] The summons
commencing acting in this matter was issued against the first
defendant only and was served at Wuthering Heights
on or about 06
January 2006, by handing the same to the second defendant, at his
permanent place of residence and domicile.
[2.19] The second
defendant handed the summons to his insurance broker who forwarded
same to Mutual and Federal Insurance Company,
who finally instructed
Messrs Mason Incorporated to defend the action.
[2.20] The first
defendant at the time of service of the summons was
permanently resident and
domiciled at 453 Snowey Walker Street, Garsfontein, Pretoria,
Gauteng.
[2.21] The first
defendant was oblivious of the existence of the present action, until
such time as he was, on or about 28 November
2006, telephonically
informed thereof by the attorney acting for the second defendant.
[2.22] The agreement was
only, during consultation in preparation for the trial set down for a
date during or about the end of 2008,
revealed by the second
defendant and thereafter furnished to all concerned.
[2.23] The production of
the agreement prompted the joinder of the second defendant.
[2.24] The first
defendant in due course by amendment, introduced his own plea, during
or about September 2011.
[3] The stated case was
formulated as follows:
“
Whether the
facts listed hereinbefore, against the backdrop of the terms and
conditions of the National Veld and Forest Fire Act
of 1998 absolves
the first defendant from liability for damages allegedly suffered by
the plaintiff as a consequence of an omission
on the part of the
first defendant, as pleaded, allegedly allowing the fire to spread
from the farm Neteni onto the farm Gilboa
upon which the plaintiff
conducted timber farming”.
[4] The following terms
contained in the
“Agreement and Power of Attorney”
are relevant to the
adjudication of the stated case:
“
7. In view
of this, to secure my father’s position, and to ensure that the
properties are looked after:
7.1 I agree to hand over the complete
control of the above properties to my father on the following terms:
7.1.1 This control will continue for
as long as my father wishes;
7.1.2 My father will have the right to
use the property himself or to lease the properties to anyone he
chooses free of rental or
at a rental he in his sole discretion
considers acceptable;
7.1.3 My father undertakes to make all
payments to the Land Bank on my behalf in terms of my obligation to
the Land Bank.
7.2 In addition I give my father a
power of attorney, with the power of substitution, to:
7.2.1 take transfer of the properties
into his own name at a value he in his sole discretion considers
reasonable, or
7.2.2 to sell the above properties on
my behalf, at a reasonable price to be determined by him entirely at
his sole discretion,
7.2.3 to do all things and sign all
papers required to take transfer of the properties or to sell and to
transfer the properties
to the purchaser,
7.2.4 to keep for himself all proceeds
from any farming activity, or from the leasing of the properties or
from the sale of the
properties”.
[5] In order to place in
context, the issue to be decided by way of the stated case, it is
necessary to briefly set out the plaintiff’s
cause of action
against the defendants. The plaintiff claims payment of the sum of
R1,209,389.00 from the first defendant, alternatively
the second
defendant, alternatively as against both defendants jointly and
severally, on the grounds that:
[5.1] On 17 July 2003 a
fire started on the first defendant’s property which was a
“veld fire”,
as defined in Section
(2) (1) of the National Veld and Forest Fire Act No. 101 of 1998 (the
Act).
[5.2] The fire spread
into timber plantations situated on properties owned by the
plaintiff, burning and causing damage to the timber.
[5.3] The first defendant
and/or the second defendant, acted negligently and unlawfully in a
number of respects and thereby breached
the duties imposed upon them
in terms of Sections 12 (1), 13 (a), 17 (1) and 18 (1) (a) and (b) of
the Act.
[6] The central issue
which falls to be decided in the stated case, is whether the fact
that the first defendant entirely divested
himself of legal control
over the property in terms of the
“Agreement and Power
of Attorney”,
which then vested exclusively in the
second defendant, has as a legal consequence, that the first
defendant no longer falls within
the definition of
“owner”
contained in Section 2 of the Act.
[7] The definition of
“owner”
in the Act reads as follows:
““
owner”
has its common law meaning and includes –
a lessee or other person who controls
the land in question in terms of a contract, testamentary document,
law or order of a High
Court;
in relation to land controlled by a
community, the executive body of the community in terms of its
constitution or any law or
custom;
in relation to State land not
controlled by a person contemplated in paragraph (a) or a community
–
the Minister of the Government
department or the member of the executive council of the provincial
administration exercising control
over that State land; or
a person authorised by him or her;
and
in relation to a local authority, the
chief executive officer of the local authority or a person
authorised by him or her”.
[8] It is therefore
necessary to determine, for the purposes of the Act, what the common
law meaning of
“owner”
is. In the
case of
MEC for Local
Government & Finance, KwaZulu-Natal
v
North Central
&South Central Local Councils, Durban & Others
[1999] 3 All S A 5
(N) at 14 – 25
Thirion J conducted an
exhaustive and detailed investigation of the concept of ownership at
common law, but prefaced his remarks
with the following comment at pg
14 e
“
The concept
of ownership has thus far defied exhaustive definition. I do not
propose to attempt to define it”.
[9] For present purposes,
it is only necessary to highlight aspects of the learned Judge’s
research.
[10] In the case of
Johannesburg
Municipal Council
v
Rand Townships
Registrar & Others
1910 TPD 1314
at
1319
Wessels J stated the
following:
“
What,
however, is the exact scope of
dominium
has
been a matter of controversy for centuries (see Glück,
Pandecten
vol
8, p 26; Dernburg, vol 1, p 444). Savigny’s definition may be
accepted as of high authority. ‘
Dominium
is
the unrestricted and exclusive control which a person has over a
thing’ (Savigny,
System,
vol
1, sec 59, p 367). Inasmuch as the owner has the full control, he
also has the power to part with so much of his control as
he pleases.
Once the owner, however, he remains such until he has parted with all
rights of ownership over the thing”.
[11] Thirion J regarded
the last sentence of the quotation as being of doubtful validity,
expressing his misgivings in the following
terms at pg 14h:
“
I would
think that whether in any given case the owner who retains an
interest in
property after having disposed of
certain of the incidents or entitlements of ownership still remains
the owner would depend on
the particular incidents or entitlements
disposed of; as well as the nature of the arrangement under which
they have been disposed
of”.
[12] By reference to Voet
6.1.2, Thirion J referred to the fact that from ownership springs the
right of vindication, which is relevant
in ascertaining where
ownership lies (
supra
at
15 (c)).
[13] By reference to the
decision of Jansen J A in
Chetty v Naidoo
1974 (3) SA 13
(A)
at 20
where the learned Judge
of Appeal expressed himself in the following terms:
“…
.
but there can be little doubt …. that one of its incidents
(i.e. of ownership) is the right of exclusive possession of
the
res
,
with the necessary corollary that the owner may claim his property
wherever found, from whomsoever holding it. It is inherent
in the
nature of the ownership that possession of the
res
should normally be with the owner, and it follows that no other
person may withhold it from the owner unless he is vested with
some
right enforceable against the owner (e.g. a right of retention or a
contractual right). The owner in instituting a
rei
vindicatio
need, therefore, do no more than allege and prove that he is the
owner and that the defendant is holding the
res
….”
Thirion J referred to the
important position which the right to possession
holds as an incident of
ownership, with the correlative right of vindication
(at pg 15 d).
[14] In a reference to
Huber-Heedensdaegse
Rechts Geleertheyt 2.2.5
and a description of
ownership of corporeal property, Thirion J pointed out that to Huber,
the
“complete power”
of ownership
signified two things, firstly,
“the free control of his
property”
and secondly “
the power of
alienation”
provided that by law or agreement,
this power is in certain instances curtailed (at pg 16 b – c).
[15] A reference to
Sohms Institutes of
Roman Law (Ledlie’s translation)
3
rd
Ed
pg 309
describes ownership as
follows:
“
Ownership is
a right, unlimited in respect of its contents, to exercise control
over a thing. The difference, in point of conception
between
ownership and
jura
in re aliena
is this, that ownership, however susceptible of legal limitations
(e.g. through rights of others in the same thing) is nevertheless
absolutely unlimited as far as its own contents are concerned. As
soon therefore as the legal limitations imposed upon ownership
–
whether by the rights of others or by the rules of public law –
disappear, ownership at once, and of its own accord,
re-establishes
itself as a plenary control. This is what is sometimes described as
the ‘elasticity’ of ownership”.
(
supra
at pg 17 b – d)
[16] From the aforegoing
it is evident that central to the common law meaning of ownership, is
that of unrestricted and exclusive
control and possession of the
res,
together with the power of alienation.
[17] On the agreed facts
placed before me, together with the contents of the
“Agreement
and Power of Attorney”
it is clear that:
[17.1] The first
defendant handed over
“complete control”
of
the properties to the second defendant, which included the power to
use the properties, or to lease the properties to a third
party, free
of rental or at a rental which the second defendant in his sole
discretion considered acceptable.
[17.2] This control was
to continue for as long as the second defendant wished.
[17.3] The first
defendant gave to the second defendant, a power of attorney to take
transfer of the properties at a value which
the second defendant in
his sole discretion considered reasonable.
[17.4] The first
defendant gave to the second defendant, a power of attorney to sell
the properties on behalf of the first defendant,
at a reasonable
price to be determined by him entirely at his sole discretion.
[17.5] The second
defendant was entitled to keep the proceeds
from any farming
activity, or from leasing the properties, or from the sale of the
properties.
[17.6] The agreement
between the first and second defendants was implemented, the second
defendant took possession/occupation of
the properties to the
exclusion of the first defendant and exercised exclusive control over
them.
[17.7] The second
defendant sold the properties without reference to the first
defendant, albeit after the occurrence of the fire.
The first
defendant only learnt of the sale after the event, and did not
receive any of the proceeds of the sale.
[18] In my view, regard
being had to the incidents of ownership which the first defendant
disposed of, namely the exclusive control
of the properties, together
with the right to possession and alienation of the properties, as
well as the nature of the arrangements
under which they were disposed
of, the interest retained by the first defendant was solely that of
the properties being registered
in his name in the Deeds Registry.
[19] As pointed out by
Thirion J in MEC KZN
supra
at
25 h,
“owner”
in the case of land is
ordinarily understood to be the registered owner of the land, but
this is not necessarily so. The learned
Judge in support of this
view, referred to the following statement in
Union Government
(Minister of Justice) v Bolam
1927 AD 467
at 472
where Solomon C J had the
following to say:
“
Nor does the
fact that the land in question is registered in the name of the
board, militate against this conclusion (i.e. that
the Government was
the owner) for registration is not necessarily conclusive on the
question of ownership of land. It is not so
for example in the case
of marriage in community of property, or partnership or of bequest by
will. And where a statute regulates
the ownership of land,
registration must necessarily give way to the provision of the
statute”.
[20] In my view,
registration of ownership in the Deeds Registry, is not an incident
of ownership, within the common law meaning
of that term, flowing as
it does from statute, in the form of the Deeds Registry Act 47 of
1937. For the reasons that follow, I
regard the common law right of
control over the property, as the decisive incident of ownership to
determine whether the first
defendant falls within the
“common
law meaning”
of
“owner”
in
terms of the Act.
[21] What the Legislature
intended by referring to the
“common law meaning”
of
“owner”,
must be
determined not only in the context of the language of the rest of the
Act, but also its apparent purpose and scope, as well
as the
historical background to the Act.
Jaga v Dönges
N.O. & another
Bhana v Dönges
N.O. & another
1950 (4) SA 653
(A)
at 662 G – 664 H
[22] As regards the
language of the rest of the Act, the other meanings
accorded to the
definition of
“owner”,
in Section 2
of the Act, are instructive. Paragraph (a) refers to a lessee
“or
other person who controls the land in question”
in
terms of a contract, testamentary document, law or order of a High
Court. The issue of control of the land is repeated as the
criterion
in respect of a community, as well as State land, respectively, in
paragraphs (b) and (c). However, with regard to a
local authority, no
reference is made to the criterion of control, in paragraph (d).
[23] When the emphasis
placed upon control of the land in question, is considered with
regard to the other entities which fall within
the definition of
“owner”
in the Act, the significance
of the attribute of control, in the common law meaning of
“owner”,
becomes apparent. If control is the determining
criterion, in the other categories of
“owner”,
for
the purposes of the Act, why should it not be the determining
criterion in the
“common law meaning”
of
“owner”
? It would be anomalous to
require control over the land in question, to qualify the other named
entities as an
“owner”,
but not in
the case of the
“common law meaning”
of
“owner”.
[
24] That the intention
of the Legislature was to accord decisive significance to the issue
of control of the land, in determining
whether an entity fell within
the
“common law meaning”
of
“owner”,
is fortified by an examination of the definition of
“owner”,
in the context of the
provisions of Section 34 of the Act, together with the purpose and
scope of this Section, as well as its historical
background.
[25] Section 34 of the
Act provides as follows:
“
34.
Presumption of negligence.
(1) If a person who brings civil proceedings proves that he or she
suffered loss from a veldfire which-
the defendant caused; or
started on or spread from land owned
by the defendant,
the defendant is presumed to have been
negligent in relation to the veldfire until the contrary is proved,
unless the defendant
is a member of a fire protection association in
the area where the fire occurred.
(2) The presumption in subsection (1)
does not exempt the plaintiff from the onus of proving that any act
or omission by the defendant
was wrongful”.
[26] The predecessor of
Section 34 of the Act, was Section 84 of the Forest Act 122 of 1984,
which provided as follows:
“
When in any
action by virtue of the provisions of this Act or the common law the
question of negligence in respect of a veld, forest
or mountain fire
which occurred on land situated outside a fire control area arises,
negligence is presumed, until the contrary
is proved”.
[27] As pointed out by
Scott J A in
Gouda Boerdery, BK
v Transnet
2005 (5) SA 490
(SCA) at 495 D – E
by reference to Section
84 of Act 122 of 1984;
“
This section
and its predecessors (ie s 23 of Act 72 of 1968 and s 26 of Act 13 of
1941) were cast in such wide terms as to give
rise to a need to cut
them down in some way. It was accordingly held that for the
presumption to operate the plaintiff had to establish
‘a
nexus
or connection between the fire and the party against whom the
allegation is made’. In enacting the present s 34 the
Legislature
abandoned the wide terms employed in the earlier
enactments and sought to avoid the difficulties of the past by
prescribing more
closely what had to be established for the
presumption to come into operation”
.
[28] The reference by the
learned Judge of Appeal to a
“nexus or connection”
was a reference to the decision of Fannin J in
Quathlamba (Pty)
Ltd. v Minister of Forestry
1972 (2) SA 783
(M)
at 788 H
in which by reference to
Section 23 of Act 72 of 1968, Fannin J held that a
“question
of negligence”
can only
“arise”
for the purposes of this section, when negligence is
alleged against the defendant and the plaintiff establishes a nexus
or connection,
between the fire and the party against whom the
allegation is made, which is consistent with such negligence.
[29] On appeal in
Minister of
Forestry v Quathlamba (Pty) Ltd.
1973 (3) SA 69
(A)
Ogilvie -Thompson J A,
held that the additional element could be satisfied by proof that the
fire originated upon land owned and
controlled by the defendant.
Olgivie -Thompson J A expressed himself in the following terms at pg
82 D – F:
“
Despite his
innocence regarding the origin of the fire on his property, the
landowner’s failure, in the circumstances presently
under
discussion, to take any steps to attempt to regulate or extinguish
the fire falls, in my opinion, outside the category of
‘mere
omission’ because the landowner is in control of the property
which – albeit without fault on his part
– has, by reason
of the fire burning upon it, become a potential hazard to others. In
such a situation there exists, in my
opinion, a duty upon the
landowner to act reasonably in an endeavour to avoid foreseeable harm
to others”.
[30] It is clear that the
issue of the control exercised over the property by the landowner,
was the decisive consideration in elevating
the conduct of the
landowner, beyond that of a
“mere omission”.
[31] The case of
Administrateur
Transvaal v van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A)
concerned the provisions
of Section 4 of the Roads Ordinance 22 of 1957, which provided that
“all public roads within the Province shall be under the
control and supervision of the Administrator”
. The
Administrator was sought to be held liable, for a fire which had
broken out on the edge of a public road and had spread to
the
plaintiff’s farm. It was held that the element of control is an
important factor in the adjudication of the question
of unlawfulness
(at pg 359 I/J). The fact that the Administrator had control and
supervision over the road in question, was a necessary
factor for the
establishment of the Administrator’s liability, but in itself
it was not sufficient (at pg 360 G – H).
In the absence of a
positive danger-creating act, the mere control of property and the
failure to exercise such control with resultant
prejudice to another
was not
per se
unlawful
(at pg 361 F – G).
[32] In the case of
Lubbe v Lowe
(2006)
(4) All S A 341
(SCA) at 346 J
by reference to the
decision in Administrateur Transvaal, it was held that:
“
In my
opinion the case should not be regarded as authority for the
proposition that the wide recognition of a duty to take care
in
relation to veld fires approved in such cases as
Quathlamba
(supra)
and
HL
& H Timber Products (supra)
is to be qualified in cases where the control of the landowner in
question is one of the incidents of ownership of the property
concerned”.
[33] It is therefore
clear that control of the landowner, over the property in question,
as one of the incidents of ownership, is
a decisive factor in the
determination of liability.
[34] Regard being had to
the provisions of the predecessors of Section 34 of the Act, and the
historical judicial requirement of
control over the property, as a
determinant of liability,
“the common law meaning”
of
“owner”
in terms of
the Act, must include the element of the right of control over the
property in question. If this were not so, the presumption
of
negligence contained in Section 34 of the Act, would operate against
an
“owner”
who had no right of
control over the land in question.
[35] I am accordingly
satisfied, as a consequence of the divesting by first defendant of
the right of control over the properties
in question, in favour of
the second defendant, that the first defendant ceased to be an
“owner”
of the properties in
question, within the
“common law meaning”
of
the definition of
“owner”,
contained
in the Act.
[36] Very little argument
was addressed to me at the hearing of the stated case, on the issue
of costs. On the face of it the first
defendant is the successful
party and consequently should be entitled to his costs. My
reservation in this regard is that from
the facts of the stated case,
it is clear that the first defendant never informed the plaintiff of
the agreement he had concluded
with the second defendant. The summons
was issued against the first defendant and served on the second
defendant on 06 January
2006. The first defendant was however unaware
of the present action, until he was informed by the second
defendant’s attorney
on 28 November 2006. The agreement was
only revealed by the second defendant towards the end of 2008. As a
consequence, the second
defendant was joined and the first defendant
filed a plea dated 01 September 2011, in which the issue of the
agreement was raised,
including the issue of the divesting of control
of the properties by the first defendant. It was not however alleged
by the first
defendant, that as a consequence he did not fall within
the definition of
“owner”
in the Act.
[37] There may be some
argument on behalf of the plaintiff, that because the agreement was
only disclosed a considerable period
after summons was issued against
the first defendant, the plaintiff should only be liable for the
first defendant’s costs
incurred after the filing of the first
defendant’s amended plea on 01 September 2011. The fact remains
however that the plaintiff
has never conceded the point in issue and
as a consequence withdrawn its claim against the first defendant. It
seems to me therefore
that the first defendant’s entitlement to
his costs, as the successful party, should not be disturbed. As
regards the second
defendant, which abided the decision of this Court
on the stated case, it should pay its own costs, which it may have
incurred.
However, in case the matter requires further argument, the
costs order which I intend to make will be provisional at this stage.
I therefore answer the
stated case in favour of the first defendant and make the following
order:
The first defendant is
absolved from liability to the plaintiff, for damages allegedly
suffered by the plaintiff, as a consequence
of an alleged omission
on the part of the first defendant, in allowing a fire to spread
from the farm Neteni onto the farm Gilboa,
upon which the plaintiff
conducted timber farming.
The plaintiff is ordered
to pay the first defendant’s costs.
The second defendant is
ordered to pay his own costs incurred in connection with the stated
case.
The order for costs in
paragraph (b) and (c) above will be provisional for the period until
21 November 2011 and, up to that date,
the parties have leave to
file and serve a notice recording their intention to submit further
argument on the question of costs.
Thereafter and by arrangement
with the Registrar the matter may be set down for further argument
on the issue of costs. Failing
such notification the order for costs
will become final on 22 November 2011.
___________
SWAIN J
Appearances /…
Appearances:
For
the Plaintiff
:
Mr. A. J. Daniels
Instructed by :
Eversheds C/o Stowell & Co. Pietermaritzburg
For the 1
st
Defendant :
Mr. L. du Koning S C
Instructed
by
:
Werner Prinsloo Prokureurs
Pretoria
For
the 2
nd
Defendant
:
Mr. M. G.
Roberts S C
Instructed
by
:
Mason Incorporated
Pietermaritzburg
Date of Hearing
:
01 November 2011
Date of Filing of
Judgment
:
09 November 2011