Waterhouse Properties CC and Others v Hyperception Properties 572 CC and Others (2198/2004) [2004] ZAFSHC 97 (28 October 2004)

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[2004] ZAFSHC 97
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Waterhouse Properties CC and Others v Hyperception Properties 572 CC and Others (2198/2004) [2004] ZAFSHC 97 (28 October 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case Nr: 2198/2004
In
the matter between:
WATERHOUSE
PROPERTIES CC
First Applicant
MOORE,
JEAN-MARIE DENIS MAURICE
Second Applicant
MOORE,
JUANITA CATHERINE
Third Applicant
and
HYPERCEPTION
PROPERTIES 572 CC
First Respondent
METSIMAHOLO
LOCAL MUNICIPALITY
Second
Respondent
RAND WATER
Third Respondent
HEARD ON:
26
AUGUST 2004
JUDGMENT:
RAMPAI
J
DELIVERED ON:
28
OCTOBER 2004
[1] I shall refer to the
parties as in the main application under case no 4245/2003. Besides
the main application there are four
applications between the same
parties to contend with. In this judgment I deal with the
application of the applicants to have certain
portions of the
answering affidavit in the main application struck out as well as the
application of the first respondent to have
certain portions of the
founding affidavit as well as the replying affidavit in the main
application struck out. I do not deal with
the first respondent’s
application for condonation of the late filing of the answering
affidavit and the first respondent’s application
for leave to file
a supplementary affidavit to the answering affidavit. By agreement
between the parties I was requested to disregard
these two ancillary
applications. The effect of the agreement was that both applications
were granted and that no order as to cost
was made. I shall deal
with the main application in a separate judgment.
[2] In their application
for striking out the applicants attacked the following paragraphs of
the first respondent’s answering affidavit:
Paragraph 2.1.9 answering
affidavit page 123
Paragraph 2.1.1.3
answering affidavit page 123
Paragraph 2.1.1.4
answering affidavit page 128
Paragraph
2.1.1.6 answering affidavit page 130
Paragraph
5 annexure JWM19 answering affidavit page 165
[3] Firstly as regards
paragraph 2.1.9 of the answering affidavit page 123. The portion of
the paragraph complained of reads as follows:
“
Die
plaaslike munisipaliteit Metsimaholo het die betrokke struktuur
goedgekeur per die stds en streekbeplanner van die voormelde
instansie,
Mnr. Leon van Rensburg.”
The
grounds of the objection were that the allegation was hearsay and
therefore inadmissible since no confirmatory affidavit by Mr.
Leon
van Rensburg was annexed to the answering affidavit. Mr. Jordaan,
counsel for the first respondent, contended that the objection
was
invalid. He relied on the fax from the second respondent dated 22
July 2004. Since there was no confirmatory affidavit by the
author
of the telefax, Mr. L.K. Mahlatsi, the municipal manager, the telefax
itself does not carry much evidential weight. Therefore
the
objection is sustained. I rule that the averments contained in this
paragraph are inadmissible. The relevant portion of the
paragraph is
struck out.
[4] Secondly as regards
paragraph 2.1.1.3 of the answering affidavit page 127. The paragraph
reads as follows:
“
Ek
bevestig dat die betrokke struktuur ook geen brandgevaar of enige
gevaar hoegenaamd inhou nie. Ek het deur my prokureur van rekord,
Walter Niedinger, ‘n verslag aangevra van die plaaslike
munisipaliteit Metsimaholo se brandweerafdeling, en heg ek ‘n
verslag
ontvang vanaf die afdeling hierby aan as
AANHANGSEL
“JWM18”
. Daar is
gevolglik geen gevaar vir enige lewe of eiendom nie.”
The report referred to in
this paragraph is the letter marked annexure JWM 18 by Mr. R.P.
Ramakatsa an official employee of Metsimaholo
Local Municipality, the
second respondent and reads as follows:
The grounds of the
objections were that the deponent of the answering affidavit
expressed an opinion on behalf of the second respondent
whereas he
was not an expert. That the foresaid annexure was irrelevant and
inadmissible since in the first place it was a letter
and not a sound
statement. In the second place it did not specify precisely what
structure was inspected, the house, the boathouse
or the jetty. In
the third place its author expressed expert opinion. It appeared
that his official designation was a manager public
safety and
security and not an expert on fire hazards. Counsel for the first
respondent conceded that the objection was based on
valid grounds.
The concession was correctly made. Therefore the objection is
sustained. The payments are irrelevant and inadmissible.
The
paragraph is struck out.
[5] Thirdly as regards
paragraph 2.1.1.4 answering affidavit page 128. The paragraph reads
as follows:
“
Ek
bevestig verder dat die betrokke struktuur deur Rand Water goedgekeur
is. Ek heg hierby aan as
AANHANGSEL
“JWM19”
n
eedsverklaring van Peter Hoge, ‘n opvangs-koördineerder van Rand
Water, waarin hy onder andere bevestig dat die struktuur voldoen
aan
Rand Water se vereistes. In die eedsverklaring bevestig Peter Hoge
ook dat die Eerste Applikant in hierdie aangeleentheid ook
‘n
soortgelyke “Deed of Acknowledgement” onderteken het en die
bedrag van R57.00 [SEWE EN VYFTIG RAND] betaal het, soos wat
ek ook
gedoen het.”
The documents referred to
is annexure JWM19 a sworn statement by Mr. Peter Hoge, an official in
the employ of the Rand Water, the
third respondent and paragraph four
thereof reads:
The grounds of the
objection were that the said annexure JWM19 was irrelevant and
inadmissible because its deponent expressed expert
opinion concerning
fire hazards. It appeared that his official designation was a
treatment co-ordinator and not a fire expert.
Counsel for the first
respondent conceded that the objection was based on valid grounds.
The concession was correctly made. Therefore
the objection is
sustained. The averments are irrelevant and inadmissible. The
application to struck them out is granted.
[6] Fourthly as regards
paragraph 2.1.1.6 answering affidavit page 130. The paragraph reads
as follows:
“
Ek ontken dat die
waarde van die Eerste Applikant se eiendom wesenlik verminder het
soos beweer word. Eerstens is die aard en voorkoms
van die struktuur
netjies en komplimenteer dit die waarde en voorkoms van die Eerste
Respondent se eiendom asook die Eerste Applikant
se eiendom.”
The grounds of the
objection were that the deponent expressed expert opinion whereas he
was a layperson and not competent to express
such opinions. Counsel
for the first respondent conceded that the objection was based on
valid grounds. The concession was correct.
Therefore the objection
is sustained. The averment amounts to expert opinion. The deponent
is not qualified to express such an
opinion. Therefore the objection
is sustained. The paragraph is struck out.
[7] Fifthly as regards
paragraph 4 annexure JWM19 answering affidavit page 165. The
paragraph reads as follows:
“
I
confirm that such structure blends in with the surroundings, is not
unsightly, does not pose a fire hazard or danger to any life
or
property and does not negatively effect the environment.”
The grounds of the
objection were that the deponent expressed expert opinion and that he
was not qualified to do so. Counsel for
the first respondent
conceded that the attack was justified. The concession was correct.
The averment constitutes expert opinion
which the deponent was not
qualified to express therefore the objection is sustained. The
offensive paragraph is struck out. This
disposes of the applicant’s
application for striking out.
I shall make an order
relating to this application at the end of this judgment.
[8] I turn now to the
first respondent’s application. In his application for striking
out, the first respondent attacked the following
paragraphs of the
applicant’s founding affidavit.
Paragraph
5.3.4 founding affidavit page 31
Paragraph 7.2.1 founding
affidavit page 38
Paragraph
7.2.2 founding affidavit page 38
Paragraph
73 founding affidavit page 43
Paragraph
81 founding affidavit page 47
Paragraph
82 founding affidavit page 47
Paragraph
83 founding affidavit page 48
Paragraph
84 founding affidavit page 48
Paragraph
91 founding affidavit page 50
Paragraph 92 founding
affidavit page 50
Paragraph 94 founding
affidavit page 51
Paragraph
44 replying affidavit page 214
Paragraph
58 replying affidavit page 217
Paragraph
77.1 replying affidavit page 221
[9] As regards paragraph
5.3.4 founding affidavit page 31. It reads as follows:
“
I
found out that this roof structure poses a fire hazard to the house
on the First Applicant’s property,”
The ground of the attack
was that the second applicant expressed expert opinion and that he
was not competent to express such an opinion
since he was not a fire
expert. The counter argument was that the second applicant expressed
a statement of fact and not an expert
opinion. The attack is valid.
The structure is not the only building with a thatch roof on the
first respondent’s premises.
What makes the particular structure
alone a fire hazard but not the other buildings with similar thatch
roofs? In this paragraph
the second applicant merely jumps to a
baseless conclusion of his own. The contention that it requires an
expert assessment of several
risk factors to come to such a
conclusion and to explain the distinction is probably more
persuasive. The deponent does not possess
the requisite expertise to
do such an exercise. He is not a fire expert. I rule that he made
no statement of fact, but a conclusion
without factual basis. The
objection is sustained. The averment is inadmissible. The
application to strike it out is granted.
[10] As regards paragraph
7.2.1 of the founding affidavit page 38. The last sentence thereof
reads as follows:
“
The
extent of the First Applicant’s prejudice is severe and
substantial. The South Western view down the Vaal River from the
First
Applicant’s property is completely and permanently obscured.
This view forms an integral, material and substantial part of the
value of the First Applicant’s property and the focal point of
enjoyment of the property by myself and the Third Applicant. Apart
from this, the thatch roof in close proximity to the First
Applicant’s house poses a fire risk and is an illegal structure
both
insofar as its size is concerned and insofar as it was erected
without the required approval as is dealt with fully below.”
The first
attack is based on the grounds that the deponent is not a fire
expert. I have already dealt with the pros and cons of the
argument
above. The finding I make, is likewise the same. The second attack
is that the deponent is not a legal expert and is therefore
incompetent to express an expert opinion on legal matters. The
counter challenge was that the deponent expressed a statement of
fact
and not an expert opinion. The facts of the matter were that the
structure was erected on the 1
st
June 2003, that the requisite prior approval of the local
municipality in terms of section 4(1) National Building Regulations
and
Building Standards Act No 103/1977 was not sought beforehand and
that the municipal approval was sought afterwards, more than four
months later, on the 15
th
October 2003 to be precise. The attack is, in these circumstances,
unsound. The structure was an illegal building at the time it
was
erected and completed. This is a statement of fact and not an expert
opinion. But even if it was an expert opinion or secondary
evidence,
it was redeemed by the first respondent’s own version as briefly
stated above. My ruling in the light of all this, is
that the
averments contained in this paragraph are admissible. The objection
is overruled. The application to struck out, is refused.
[11] As regards paragraph
7.2.2 founding affidavit page 38. It reads as follows:
“
The value of the First
Applicant’s property is materially prejudiced by the First
Respondent’s conduct.”
The attack was that the
deponent expressed an expert opinion of a sworn appraiser and that he
was not qualified to do so. The response
was that the deponent’s
averment concerning the value of the first applicant’s property was
a statement of fact derived from
the expert opinion backed up by an
expert, Neil de Klerk, whose affidavit annexure M 19 appears on page
96 – 109 of the record.
The objection is overruled. I rule the
averments of the paragraph admissible. The paragraph remains. The
application to struck
out is refused.
[12] As regards paragraph
73 founding affidavit page 43. It reads as follows:
“
Apart
from the fact that the Applicant’s case will be based on actionable
common law nuisance as aforesaid, the Applicant’s case
will further
be that the jetty and roof structure is an illegal structure, as will
be elaborated on below.”
The first
ground of attack was that the deponent was not an expert qualified to
express legal opinion. The second ground was that
in any event, the
averment boiled down to hearsay. The response was that it was a fact
and not an opinion that the structure was
an illegal structure on the
first respondent’s own version. The illegality of the structure is
simplicity admitted by the first
respondent. Assuming that the
deponents’ averments were tainted with the alleged expert or
hearsay defects, such defects were
redeemed by the first respondent’s
own version as I pointed out in paragraph 10
supra
.
I rule the averments admissible. The paragraph stands as is. The
attack is overruled. The application to struck out is refused.
[13] As regards paragraph
81 founding affidavit page 47. It reads as follows:
“
The First Respondent
failed to obtain the Second Respondent’s approval for the erection
of the structure as envisaged in Section
4 of the Building Act.”
The grounds of the attack
were that the second applicant’s averments were inadmissible
secondary facts which were not underpinned
by primary facts. The
response was that the first respondent erected the structure without
the requisite prior approval as envisaged
in section 4 Act No
103/1977. It was contended that this was a statement of fact based
on the first respondent’s own version.
Was this an inference drawn
from the primary facts which is admissible or was it an inference
drawn from baseless secondary facts
which is inadmissible?
[14] In the
case of
WILLCOX AND OTHERS v COMMISSIONER
FOR INLAND REVENUE
1960 (4) SA 599
AD
at 601 H to 602 A
Schreiner J.A. said the following:
“
But
in order to apply this principle to the present case the appellants
had to show that the first of the two passages was indeed
a finding
of primary fact, as that expression is used in this connection.
There is nothing artificial or technical about the notion
of primary
facts. Facts are conveniently called primary when they are used as
the basis for inference as to the existence or non-existence
of
further facts, which may be called, in relation to primary facts,
inferred or secondary facts.”
[15] In the
case of
SWISSBOROUGH DIAMOND MINES (PTY)
LTD AND OTHERS v GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND
OTHERS
1999 (2) SA 279
TPD at 323 F –
G
Joffe J. said the following about the
founding affidavit in motion proceedings:
“
It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the
issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the
Court but also,
and primarily, for the parties. The parties must know the case that
must be met and in respect of which they must
adduce evidence in the
affidavits. In
Hart v Pinetown
Drive-Inn Cinema (Pty) Ltd
1972 (1) SA 464
(D) it was stated at
469C-E that
‘
where
proceedings are brought by way of application, the petition is not
the equivalent of the declaration in proceedings by way of
action.
What might be sufficient in a declaration to foil an exception, would
not necessarily, in a petition, be sufficient to resist
an objection
that a case has not been adequately made out. The petition takes the
place not only of the declaration but also of
the essential evidence
which would be led at a trial and if there are absent from the
petition such facts as would be necessary for
determination of the
issue in the petitioner’s favour, an objection that it does not
support the relief claimed is sound.’
An applicant must
accordingly raise the issues upon which it would seek to rely in the
founding affidavit.”
[16] In the
case of
DIE DROS (PTY) LTD AND ANOTHER v
TELEFON BEVERAGES CC AND OTHERS
2003
(4) SA 207
CPD at paragraph 28 p. 217
Van
Reenen J. commented instructively on the evidential value of the
secondary facts:
“
It
is trite law that the affidavits in motion proceedings serve to
define not only the issues between the parties, but also to place
the
essential evidence before the Court (
see
Swissborough Diamond Mines (Pty) Ltd and Others v Government of the
republic of South Africa and Others
1999 (2) SA 279
(W) at 323(G)
for the benefit of not only the Court but also the parties. The
affidavits in motion proceedings must contain factual
averments that
are sufficient to support the cause of action on which the relief
that is being sought is based. Facts may be either
primary or
secondary. Primary facts are those capable of being used for the
drawing of inferences as to the existence or non-existence
of other
facts. Such further facts, in relation to primary facts, are called
secondary facts. (See
Willcox and Others NO v Commissioner for
Inland Revenue
1960 (4) SA 599
(A) at 602A;
Reynolds NO v
Mecklenberg (Pty) Ltd
1996 (1) SA 75
(W) at 78I.)”
Secondary
facts, in the absence of the primary facts on which they are based,
are nothing more than a deponent’s own conclusions
(see
RADEBE
AND OTHERS v EASTERN TRANSVAAL DEVELOPMENT BOARD
1988 (2) SA 785
(A) at 793C-E) and
accordingly do not constitute evidential material capable of
supporting a cause of action.
(the emphasis is mine.)
[17] In the founding
affidavit in the instant case there are virtually no primary facts
showing that the second respondent did not
grant prior approval to
the first respondent for erection of the structure. Such primary
facts could have been sourced from the
second respondent who is the
primary agency empowered by law to approve or disapprove the proposed
erection of any building within
its district. No affidavit from the
designated building control officer employed by the second respondent
was annexed to the founding
affidavit. It follows therefore that the
second applicant’s averments boiled down to secondary facts which
in the absence of primary
facts are deponents own conclusions which
ordinarily would be inadmissible evidence. But that is not where it
ends.
[18] Had I been called
upon to adjudicate the first respondent’s application to strike out
before the answering affidavit was filed,
I would have had no
hesitation to strike the averments contained in this paragraph 81 out
for lack of primary facts. But since the
application to strike out
was filed afterwards, I could not close my eyes to what the
respondent had to say in its answering affidavit
about the municipal
approval. What was stated in the answering affidavit redeemed the
otherwise baseless secondary facts averred
in the founding affidavit.
I could not consider the attack in isolation by disregarding the
answering affidavit which contained
averments which justified the
inferring of the secondary facts relied upon by the applicants. The
first respondents own version
implicitly provided the required
primary base or primary facts if you will. Therefore I overruled the
objection. The paragraph
is allowed to stand. I rule it admissible
in the circumstances. The application to strike it out, is refused.
[19] As regards paragraph
82 founding affidavit page 47. It reads as follows:
“
No building control
officer performed any of the functions referred to in Section 6 of
the Building Act.”
The grounds
of the attack were precisely the same as those raised against
paragraph 81
supra
.
So was the response. Therefore my ruling is also the same.
[20] This regards
paragraph 83 founding affidavit page 47. It reads among others as
follows in sub-paragraph 1 thereof:
“
83.1 the
area in which the structure was erected was in fact disfigured
thereby, and”
The attack was that the
deponent was not qualified to express such expert opinion(s). The
response was that since no building control
officer was involved
before and during the erection process, the area was as a matter of
fact and not opinion disfigured by such
unauthorised erection. The
objection is sustained. The averments constitute expert opinion
which the deponent is not qualified
to express. It is therefore
ruled inadmissible. The application to strike out, is granted.
[21] As regards paragraph
84 founding affidavit page 48. It reads:
“On
the same bases, the Second Respondent will be precluded by statute
from granting such approval, should application be made
to it in
future by the First Respondent for the erection of the same structure
in the same position.”
The objection and the
response were the same as in paragraph 83 above. Therefore my ruling
is also the same.
[22] As regards paragraph
91 founding affidavit page 50. It reads as follows:
“
The First Respondent
did not obtain the written consent of the Department of Health and
Welfare for the erection of the structure
to be permitted.”
The ground of the attack
was that the second applicant had no personal knowledge as to whether
the first respondent had obtained the
requisite written consent of
the Department of Health and Welfare or not. The averments, it was
contended, were secondary facts
not founded on primary facts. The
response was that it was not the case of the first respondent that it
had such a written consent.
The attack seems to me to be justified.
There was no confirmatory affidavit from the Department of Health and
Welfare annexed to
the founding affidavit from which the second
applicant’s secondary knowledge could have been derived. The
objection is sustained.
The averment constitutes secondary fact
unsupported by primary facts. The paragraph is ruled inadmissible.
There were no redeeming
averments in the answering affidavit. The
application to strike out, is granted.
[23] As regards paragraph
92 founding affidavit page 50. It reads as follows:
“
92. If
the First Respondent obtained such written consent from the
Department of Health and Welfare, which the Applicants deny;
92.1 it was not granted
after consultation with the Third Respondent being Rand Water, and
92.2 it
was not granted after consultation with the Second Respondent being
the relevant local authority.”
The attack and the
response were the same as those raised in respect of paragraph 91
above. Therefore my ruling is also the same.
[24] As regards paragraph
94 founding affidavit page 51. It reads as follows:
“
The Second Respondent
did not relax such provisions, and if it did which the Applicants
deny, such relaxation was not effected either
after consultation with
the Director-General of the Department of Water Affairs and the
Department of National Health and Population
Development, or at all.”
The attack was that the
second applicant had no first hand knowledge of the true state of
affairs. This was demonstrated by the words:
“
The
Second Respondent did not relax such provisions
and
if it did….
”
It was
contended that the words I have highlighted, show that the averment
was not founded on primary facts. The response was that
the first
respondent could not provide any proof that the Director General of
the Department of Water Affairs had been consulted.
The response is
fallacious. It presupposes the opposite of what the law requires.
The
onus
rested on the
applicant to prove that such consultative process did not take place.
It was not incumbent upon the first respondent
to prove that it did.
The objection is sustained. The averment constitutes secondary
facts. It is not founded on primary facts.
The paragraph is ruled
and inadmissible. The application to strike it out, is granted.
[25] As regards paragraph
44 replying affidavit page 214. It reads as follows:
“
I
deny that the Metsimaholo Municipality approved the erection of the
thatch covered jetty at the waterfront of the First Respondent’s
property,
alternatively
had
such structure been approved by the Metsimaholo Municipality (which
remains denied), such approval was
ultra vires
and in
contravention of the provisions of the Building Act as expressly
placed in dispute in the Applicant’s founding affidavit.”
The attack was that the
averment was founded on secondary facts and not primary facts. The
response was that on the first respondent’s
own version, there was
no prior approval of the building plans at the time the erection
started.
I have
previously dealt with the argument when I was considering the
objections to the founding affidavit. My ruling remains the
same
(
Vide
paragraph 13 –
17
supra
).
[26] As regards paragraph
58 replying affidavit page 217. It reads as follows:
“
There
is no lightning conductor, fire hose or fire extinguisher anywhere
neat the First Respondent’s thatch covered jetty. The
thatch roof
is constructed of wood and dry thatch. Thatch roofs are notorious
for being fire risks. That is why lightning conductors
are placed in
close proximity of all thatch roofs and that is why insurance
companies require higher premiums and stricter fire precautions
in
respect of all thatch roofs. The extent to which the thatch has
dried out over the last six months is clearly evident by comparing
the colour of the thatch in “M10” taken during 2003 to the colour
thereof in e.g. video clip 4 taken recently in 2004”.
The attack was that the
second applicant’s averment in connection with the insurance
premiums was his personal conclusion without
any supporting primary
basis. The response was that the averments were based on statements
of facts. The contention was that any
thatch structure was a fire
hazard. I was urged to take cognisance of that human experience. I
am impressed by the response. It
is a matter of fact generally known
to all persons of average intellect that a structure with a thatch
roof is more vulnerable to
fire than a structure with say concrete
tile roof. One does not have to be an expert of any sort to know
that fact.
Therefore the attack is
dismissed. The averments are ruled admissible. The paragraph
remains. The application to strike the averments
out, is refused.
[27] As regards
paragraphs 77.1 replying affidavit page 221. It reads as follows:
“
The
fact that it may be a positive addition to the value of the first
respondent’s property is irrelevant to the fact that the erection
thereof was illegal, and”
The attack was that the
averment that the structure was illegal boiled down to the second
applicant’s own conclusion which was deficient
from an evidentiary
perspective. It was argued that the primary facts were lacking to
justify such a conclusion.
This is not
a new ground on which the alleged illegality of the structure was
attacked. The response was also the same as before.
Therefore my
ruling is the same.
Vide
paragraphs
13 – 17
supra
.
[28] In conclusion I have
to mention that in my view none of the several issues raised and
traversed in the two applications to strike
out went beyond the root
of the matter. Indeed many of them were side issues. The real
issues I discussed in a separate judgment
which relates exclusively
to the main application.
[29] I turn now to the
issue of costs in respect of the application to strike out as brought
by the applicants. There were five objections
raised in connection
with the answering affidavit. All five were sustained. Therefore
the applicants are entitled to 100% of the
costs relating to this
application to strike out. I would therefore grant the application
with full costs in favour of the applicants.
[30] The
issue of costs in respect of the first respondent’s application to
strike out, did not produce a clear cut winner. There
were gains and
losses from both sides. There were fourteen objections raised in
connection with the founding affidavit and the replying
affidavit
collectively. The success rate of the first respondent was six over
fourteen. This means six of the first respondents
objections were
sustained, but eight were overruled. The success rate of the
applicants was the converse of the first respondents.
This means I
made eight rulings in favour of the applicants and six against them.
Therefore the applicants were substantially successful
in the
opposition of the application. Comparatively speaking their success
rate was 57,1% to the first respondent’s 42,9%. Since
the first
respondent’s applications to strike out substantially failed, I
would therefore dismiss a substantial part of their application
with
costs. However considerations of fairness and equity dictate that
the first respondent should not be ordered to pay such costs
in full,
but to pay the difference between their respective measures of
success namely 57,1% less 42,9% which is 16,2%.
[30] Accordingly
I make the following order:
30.1 The applicants’
application to strike out, is granted.
30.2 The first respondent
is directed to pay the full costs of the applicants relating to such
an application.
30.3 The
first respondent’s application to strike out, is substantially
refused.
30.4 The first respondent
is directed to pay 16,2% of the applicant’s costs relating to such
application.
______________
M.H.
RAMPAI, J
On
behalf of Applicants: Advocate T van der Walt
Instructed by
Bowman Gilfillan Inc.
JOHANNESBURG
Honey
Attorneys
BLOEMFONTEIN
On
behalf of First Respondent: Advocate A.F. Jordaan S.C.
Assisted
by
Advocate
S. Guldenpfenning
Instructed
by
Roux
Incorporated
JOHANNESBURG
Symington
& De Kok
BLOEMFONTEIN
On
behalf of Second Respondent: No Appearance
On
behalf of Third Respondent: No Appearance
/S
Pieterse