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[1988] ZASCA 37
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Apex Mines Ltd. v Administrator, Transvaal (37/88) [1988] ZASCA 37 (30 March 1988)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In
the matter between:
APEX MINES LIMITED
Appellant
and
ADMINISTRATOR, TRANSVAAL
Respondent
Coram
: CORBETT, NESTADT, VIVIER JJ A,
NICHOLAS et BOSHOFF, A JJ A
Heard
: 29 February 1988
Delivered
:
30 March 1988
JUDGMENT NICHOLAS
, A J A :
This is an appeal, with leave, from a decision
of .... / 2
2
of VAN ZYL J, sitting in the Transvaal Provincial Division, on questions of
law raised in a special case stated under Rule 33 of the
Rules of Court. The
facts are fully set out in the judgment of the court a
quo
, which has
been reported (
Apex Mines Ltd. v Administrator, Transvaal
,
1986 (4) SA
581
(T)) and which will be referred to as "the reported judgment".
In the
action in which the special case arose, the plaintiff was Apex Mines Ltd.
("Apex") and the defendant was the Administrator
of the Transvaal ("the
Administrator").
Apex has at all relevant times been engaged in coal mining
inter alia
on and under Portions 1, 2 and 3 and the Remaining Extent of
the farm Groenfontein in the district of Witbank. Apex became the full
owner of
Portion 2 on 5 March 1941 and of the Remaining Extent on 19 June 1950.
In....../3
3
In 1922 it became the cessionary of a notarial mineral lease,
dated 17
September 1896, in respect of Portion 1 and Portion
3, and it became the full owner of Portion 3 on 18 November
1975.
S. 5(1) of the
Roads Ordinance
, No 22 of 1957
(Transvaal), ("the Ordinance") provided:
"5. (1) The Administrator may by notice ih the Pro-vincial Gazette -
(a)
declare any road to be a
public road after investigation and report by the board
concerned;
(b)
declare that a public road
shall run on land where no road previously existed or where a road previously
existed but has been closed,
and after investigation and report by the board may
define the course of that road;
(c)
declare
that a main road shall exist where an existing road is or where no road was
previously in existence;
(d)
close or deviate
any public road after
investigation
.../
4
investigation and report by the board:
Provided that a public road which has
ceased to exist as a public road as a re-
sult of a notice, may be used by the public
until actually closed by the Administrator
by visible means;
(e) act without such investigation or report
in the event of the board failing within
three months after having been requested
to do so, to investigate and report in
terms of paragraphs (a), (b) or
(d): During the period May 1960 to March 1980, the Administrator, in the
exercise of his powers under
this provision, proclaimed certain public roads
which crossed the farm Groenfontein.
The questions in the special case
concern the compensation payable to Apex by reason of such proclama-tions.
The...../ 5
5
The provisions of the Ordinance relating to
compensation were secs.92, 93, 94, and 95:
"92. If in the course of the opening, construction or maintenance of a public
road or of a pont by the Administrator, direct damage
is done to an orchard,
garden or plantation, or to crops, cultivated trees, cultivated land or land
under irrigation (not being land
which is merely capa-ble of cultivation or
irrigation but not so cul-tivated or under irrigation), or to any other
improvement on
land, the owner thereof is entitled to such compensation
á's is agreed upon by the parties. Failing such agreement the matter
shall be determined by arbitration as provided for in section
ninety-seven
.
93. When the Administrator has declared in terms of
paragraph (b)
of sub-section (2) of section
five
, that a public road shall exist on
land falling within any of the areas referred to in paragraphs (a) and (b) of
the proviso to the
definition of 'public road' in section
one
, where no
road was previously in existence, or where a road was previously in existence
but had been closed and has defined the course
of such public road, the
owner .... /6
6
owner of the land in question is entitled, in addition to any
compensation which may be pay-able under section
ninety-two
, to
compensation in respect of the land taken up by such public road,the amount of
such compensation to be determined, in case of
dispute, by arbitration as
provided for in section
ninety-seven
.
94. When the Administrator has in terms pf section
three
declared the
width of a public road to be in excess of one hundred and twenty Cape feet, the
owner of the land in question is entitled,
in addition to any compensation which
may be payable under section
ninety-two
or section
ninety-three
,
to compensation in respect of land taken up by such excess, the amount of such
compensation to be determined, in case of dis-pute
by arbitration as provided
for in section
ninety-seven
.
(S. 3, which was referred to in s. 94, provided that the width of the road
reserve of public roads shall be 120 Cape feet in the case
of main
roads"Provided that the Administrator may, by notice in the
Provincial
Gazette
reduce, or, subject to the provisions of section
ninety-four
increase such width.")
95 ..... / 7
7
95. Notwithstanding anything to the contrary in this Ordinance contained, the
Administrator may in his discretion authorise by way
of equitable re-lief, the
payment of an amount determined by him, if in any case where no payment of
compensation is claimable, he
is of opinion that serious da-mage has been or
will be caused by the exercise of any power under this Ordinance.
The Ordinance was amended
inter alia
by
sections of the
Roads
Amendment Ordinance
, No 2 of 1970
(Transvaal), which came into operation on 26 March 1970.
In terms of the
relevant amendments,
(a) The following proviso was substituted for the
original
proviso to s. 3 of the Ordinance:
"Provided that the Administrator may, by notice in the
Provincial
Gazette
, reduce or increase such width";
(b) The following section was substituted for s. 92
of the
Ordinance:
"92(1) ...../ 8
8
92. (1) Where the Administrator in terms of the provisions of
section 3, 5 or any other provision of this Ordinance, by notice in
the
Provincial Gazette
, establishes, widens or permanently deviates a public
road, he shall subject to the provisions of subsections (2) and (3), pay to
the
owner, in respect of the land encroached upon by such establishment, widening or
deviation, such compensation as may be mutually
agreed upon or, failing such
agreement, as may be determined by arbi-tration in terms of section 97: Pro-
vided that the foregoing provisions of this subsection shall not apply to the
extent that any such land was previously used as a road.
(2) The compensation payable in terms of sub-section (1) shall not exceed the
amount which such land, including any improvements thereon,
would have realized
if sold on the date of promulgation of such notice in the open market by a
willing seller to a willing buyer
(hereinafter referred to as the market
value).
(3) ..../ 9
9
(3) Where a public road has been permanently
deviated within the boundaries of the land on which such road previously
existed, compensation shall only be paid in so far as the
market value of the
land encroached upon by such deviation exceeds the market value of the land
previously encroached upon by such
road ;
and (c) s, 93 (the subject-matter of which was compensa-
tion for land taken for roads in municipalities etc.)and s. 94
were repealed.
The main effect of the amendments was that, in
terms of the new s. 92,
compensation was payable in respect
of all the land encroached upon, and not
only in respect of
the excess of 120 Cape feet as provided in the now
repealed
s. 94.
(There have been other amendments, but as these
do not affect the matters to be considered in this appeal,
it......./10
10
it is unnecessary to refer to them.)
It was common cause that the
Administrator has compensated Apex for the value of the surface encroached upon
in respect of those portions
of the farm of which Apex is the full owner, i.e.,
Portion 2, the Remaining extent, and, after November 1975, Portion 3. The
Administrator
has made no payment in respect of those portions in respect of
which Apex was not the registered owner but had the right to mine
coal under the
mineral lease, namely, Portion 1 and, before November 1975, Portion
3.
Regulation 5.3.1 of the
Mines and Works Regulations
promulgated
pursuant to the
Mines and Works Act
,
No 27 of 1956, provides:
"5.3.1 No owner or manager shall carry on any mining
operations under or within a horizontal distance
of ..... / 11
11
of 100 metres from buildings, roads, railways, or any structure whatever or
under or within a horizontal distance of 100 metres from
any sur-face which it
may be necessary to protect with-out first having given notice in writing to the
Inspector of Mines of his
intention so to do and obtained his permission
therefor."
For the purposes of the special case the Administrator accepted -
" ... that the Plaintiff has been and is being and will in the future be
prevented from fully extracting that per-centage of coal
which it would
otherwise have been able to extract
12.1 from beneath the proclaimed road
reserves;
12.2
from
beneath subjacent areas along the sides of the proclaimed road
reserves
in terms of the provisions of Regulation 2.1 as re-placed by Regulation 5.3 of
the Mines and Works Re-gulations promulgated pursuant
to the Mines and Works
Act, No 27 of 1956, and the Government Mining Engineer's refusal of
unconditional permission to undermine
and to allow such full
extraction."
VAN ZYL J summarised the issues to be decided
at .... / 19
12
at pages 587-588 of the reported judgment in the form of the following
questions:
"(i) Is the plaintiff entitled, as of right, to claim compensation in terms
of s 94 and s 92 of the Roads Ordinance 22 of 1957 as
applicable before and as
from 1 April 1970 respectively?
(ii) What is the extent of a claim which may be insti-tuted in terms of the
said sections? (iii) Is the damage allegedly suffered
by the plaintiff as a
result of the restriction of its coal mining activities caused by the
proclamation of roads by the defendant
or by the exercise of discretion by the
Government Mining Engineer in terms of the Mines and Works Act 27 of 1956, and
the regulations
promulgated thereunder?
(iv) Are the plaintiff's claims which arose before 1 December 1970 subject to
the provisions of s 3(2)(c)(vi) of the Prescription
Act 18 of 1943, and those
which arose as from 1 December 1970 subject to the provisions of s ll(d) of the
Pre-scription Act 68 of 1969
?"
After dealing with each of these questions in turn, the
learned judge made the following order (reported judgment
at
604-605):
"The....../13
13
"1. The plaintiff is not, as of right, entitled to claim
compehsation in terms of ss 94 and 92 of the Roads Ordinance 22 of 1957,
as
applicable before and as from 1 April 1970 respectively, except in its capacity
as owner of the surface area of the land in question.
In the present instance
that would be restricted to a right
qua
owmer of portion 2 as from 5
March 1981, of portion 3 as from 18 November 1975 and of the remaining extent as
from 19 June 1950. In
re-spect of portion 1 it has no claim at all, sub-ject to
the provisions relating to 'equitable relief' in s 95 of the ordinance,
its
right being restricted to that of lessee of mineral rights for which the said
sections of the ordinance make no provision.
2. The extent of the claim which may be instituted in terms of ss 94 and 92
aforesaid is clearly spelt out therein and is restricted
to compensation for the
relevant surface encroached upon with the exclusion of compensation for rights,
such as mineral rights, injuriously
affected by the road proclamations in
question. In the case of s 94 claims, applicable prior to 1 April 1970, the
sur-face area in
question will be that taken up by the particular road in excess
of 120 Cape feet, while
s 92..../ 14
14
s 92 claims, applicable as from 1 April 1970, re-late to
compensation for all surface area encroached upon by the road in question.
3.
The damage allegedly
suffered by the plaintiff as a result of the restriction of its coal mining
activities is not caused by the proclamation
of roads by the defendant but by
the provisions of the relevant regulations (reg2(l) prior to 26 June 1970 and
reg5.3.1 as from such
date) promulgated in terms of the Mines and Works Act 27
of 1956.
4.
(a) A claim for compensation
arising before 1
December 1970, in terms of the
relevant sections of the Roads Ordinance 22 of 1957 is not an action for damages
as envisaged by s
3(2)(c)(vi) of the Prescription Act 18 of 1943, and is not
subject to the provisions thereof. (b) A claim for compensation arising,
as from
1
December 1970, in terms of the relevant sections of the Roads Ordinance 22 of
1957, is a claim for a debt as envisaged by
s 11(d)
of the
Prescription Act 68
of 1969
, and is hence sub-ject to the provisions thereof.
5. The plaintiff is ordered to pay the costs of this
application,
including the costs of two counsel."
It..../ 15
15
(It is common cause that the date 5 March 1981 in para. 1 is a clerical
error, and that it should read 5 March 1941.)
Apex did not appeal against
para. 4(a) of the order and at the hearing of the appeal, Mr. Schreiner, who was
leading counsel for Apex,
informed the court that, for reasons which are not now
germane, he did not wish to proceed with the appeal against para. 4(b). And,
as
will appear, I shall not be considering the correctness of para. 3.
In regard
to paras. 1 and 2, it will, I think, make for clarity if the questions to be
decided are reformu-lated as follows:
(a) Has Apex,
qua
holder of the mineral rights,
locus standi
to
claim compensation in terms of
s. 94
of..../ 16
16
of the Ordinance as applicable before 1 April
1970, and in terms of s. 92 as applicable on and
after that date?
(b) Are the coal deposits which underly the proclaimed
road
reserves land such as is described in secs.
92 and 94 of the Ordinance?
(a)
The question of locus standi
.
The answer to this question depends on the
meaning of
owner
as used
in s. 94 (now repealed) and in s. 92.
Owner
is defined in s. l(xiv) of the Ordinance:
"'owner' means the owner, lessee or occupier of a piece of land, or his lawful
representative."
And
eienaar
is defined in s. l(vii)
as
" ... die eienaar, huurder of bewoner van 'n stuk grond, of sy wettige
verteenwoordiger."
Under .... / 17
17
Under the definition, owner bears its ordinary, popular meaning,
and an
extended meaning which includes the lessee and the occu-
pier. Cf
R v
Debele
1956 (4) SA 570
(A) at 575 H.
In its ordinary meaning, an owner is the person
in whom the
dominium
of a
res
is vested. Specifically in
relation to land,
owner means the registered proprietor there-
of. See
Buitendach and Others
v West Rand Proprietary Mines
and Another
1925 TPD 745
at 752, and
see also
Cromhout v
Afrikaanse Handelaars en Agente (Edms.)
Bpk
.,
1943 TPD 302
at
305 per GREENBERG J:
"'Eiendom', like 'property', has, I think, a definite meaning in relation to
fixed property. The only ownership, except perhaps in
the case of prescription
and possibly inheritance, is the ownership constituted by registration ....
"
It .... / 18
18
It was contended by Mr. Schreiner that Apex, as the holder of a real right to
mine coal under the proclaimed roads, could be said
to be "owner in respect of
the land en-croached upon". The short answer to this contention is that
owner
in its ordinary popular sense does not include the holder of the
mineral rights. Such holder has a
ius in re aliena
- a right in property
owned by another, who is alone the owner.
It was argued, again, that the fact that
owner
includes
lessee
and
occupier
, shows that the legislature
intended that
owner
should be given an extended meaning so as
to include persons (such as the holder of the mineral-rights)
who suffer
harm of the same kind as that suffered by the
dominus
: a lessee and an occupier are given a right to claim
compensation .... / 19
19
compensation, and it would not be consistent to grant the right to
compensation to a wide class of people and to con-fine the meaning
of
owner
in such a way as to exclude the registered owner of a servitude
such as a right of way or the registered owner of a real right to
mine. That
argu-ment cannot be accepted. The definition is exhaustive and there is no
warrant for broadening its scope so as to include
cases which are said to be
analogous, but for which the legislature has made no provision.
Then it was submitted that Apex is the
lessee
or the
occupier
of the land.
These words too bear their ordinary, popular
meaning.
The use of the word
lease
to describe the
so-called .... / 20
20
so-called "mineral lease" or "lease of mineral rights" or
"lease of rights to minerals" is inappropriate, since it
cannot properly
be classified as a lease at common law.
(See
Wlseman v de Pinna and Others
1986 (1) SA 38
(A) at 47
E to
I). In its ordinary sense, a lessee is a tenant under
a lease - a contract of
letting and hiring. The holder of
a mineral lease is not a lessee in that
sense: he is not a
tenant; and he has no right to occupy the land except
insofar
as it is necessary for him to search for and mine minerals.
(Cf
Neebe v Registrar of Mining Rights
1902 TS 65
at
81-82.)
Although Apex is, or was the lessee of the mineral rights
in
portion of the farm, it is not, and was not, the "lessee ...
of a piece of
land" as provided in the definition.
Nor has Apex established that it is the
occupier
.... / 21
21
occupier
or
bewoner
. The meaning of these words has
frequently
been considered by the courts. See the cases quoted in
Lenz
Township Co. (Pty.) Ltd. v Lorentz NO and Others
, 1960
(4)
SA 341 (W) at 345-346, and the cases referred to in the re-
ported
judgment (at 591 E-J). From these authorities it
is manifest that to be an
occupier
or
bewoner
of property a
person should reside on and have control of it.
There is nothing in the facts of the spêcial
case to show that Apex is the occupier of the relevant portions
of the
farm. Apex relies on the mineral lease itself, but
that lends no support to its contention. Under the lease,
the lessee is given the right to lease the coal rights; the
right to lay and use a tramline; . and the rignt to a piece of
ground, 30 morgen in extent, for the building of houses,the
erection .... / 22
22
erection of machinery, etc, as well as the right to water for domestic use
and mining activities. He is given nothing more, and clearly
he cannot be said,
on the evidence of the lease, to be "the occupier" within the definition.
The
conclusion is therefore that Apex,
qua
holder of the mineral rights, is
not the
owner
of the land, nor is it the
lessee
, nor is it the
occupier
. It follows that as such it has no
locus standi
to claim
compensation under secs. 92 and 94, and VAN ZYL J was clearly correct in making
para. 1 of the order.
(b)
Is underlying coal "land" such as is described in
.
s. 94 and in
s. 92
.
The contention of Apex in the special case
was .... / 23
23
was that
"On a proper construction of the Ordinance the compensa-tion claimable as of
right, both before and after 1st April, 1970, is compensation
in respect of the
land and/or any real right in respect of minerals adversely affected by the
proclamation."
Under the repealed s. 93, compensation
was
payable according to the English version,
"in respect of the land taken up by such public road",
or', according to the Afrikaans version
"ten opsigte van die grond wat deur so'n openbare pad in beslag geneem
word."
Under the repealed s. 94, where the Administrator in
terms of s. 3 declared the width of a public road to be in
excess of 120 Cape feet, the owner of the land in question
was, according
to the English version,
"entitled......./ 24
24
"entitled .... to compensation in respect of land taken up by such
excess"
or, according to the Afrikaans version,
"geregtig tot skadevergoeding ten opsigte van die grond wat deur so 'n
oorskryding in beslag geneem word".
Under s. 92(1), where the
Administrator establishes, widens
or permanently deviates a public road, the
owner is entitled
to compensation, according to the English version,
"in respect of the land encroached upon by such estab-lishment, widening or
deviation"
or, according to the Afrikaans version,
"ten opsigte van die grond wat deur sodanige instel-ling, verbreding of
verlegging in besit geneem is."
Despite the verbal
differences between them,
the provisions all convey the same idea: compensation is
payable in respect of the land taken up by the road.
Apart .... / 25
25
Apart from s. 95, under which the Administra-
tor has a discretion to
authorise a payment by way of equit-
able relief, the only provision for the
payment of compensa-
tion in the Ordinance as it now stands is s. 92. The
right
of the owner, whose property has been expropriated,to
receive
compensation, depends upon the legislative provisions which
deal
with the matter. See
Joyce & McGregor, Ltd.v Cape
Provincial
Administration
1946 AD 658
at 671. Unless, there-
fore, Apex can bring
its claims for compensation in respect of
coal under s. 92 or, where that was
applicable, under the old
s. 94, it will be non-suited. Consequently its
right to
claim turns on whether the underlying coal is land as
described
in the portions of the sections I have just quoted. It does
not
depend on whether Apex's real right in respect of coal
has .... / 26
26
has been adversely affected by the proclamation of the roads.
In dealing with the question of compensation
under s. 92, the learned
authors of Franklin and Kaplan,
The Mining and Mineral Laws of South
Africa,
express the
following view at 697:
"Where the rights to minerals have not been separated from the ownership of the
land, due account would have to be taken of the mineral
potential in determining
the compensation. The word 'land' as used in section 92 must be given its
ordinary meaning as including
all rights of ownership, including the right to
minerals therein. (
Erasmus and Lategan v Union Government
1954 (3) SA 415
(0)). It is a well-recognised canon of construction that 'An intention to take
away property of a subject without giving him a legal
right to com-pensation for
the loss of it is not to be imputed to the legislature unless that intention is
expressed in un-equivocal
terms' (
Central Control Board v Canon Brewer
y
Cp
(1919) AC 744
at 752)."
If the effect of an Administrator's
Notice
issued .... / 27
27
issued under s. 5 of the Ordinance is to expropriate the
land comrpising the road reserve, the view of the learned
authors is no
doubt correct. But the Ordinance does not
provide that the Administrator
acquires the ownership of the
land occupied by a public road. In terms of s.
4 of the
Ordinance
"All public roads within the Province shall be under the control and
supervision of the Administrator."
In terms of s. 20(a) the Administrator has power in respect
of the
construction, maintenance and control of public roads.
Under
s. 8(2
)
as it read before 1981,
"The Administrator may after notice to the owner, enter upon and take
possession of so much of any land as may be required for the
opening or
construction of a public road .... "
The right to "enter upon and take possession of" the land
is..../ 28
28
is, it is true, a right of expropriation, but it is a right of expropriation
of the necessary road-rights, not of the
dominium
of the land. (Cf
Nel
v Bornman
1968 (1) SA 498
(T) at 501 F-G; and
Thom en 'n Ander v
Moulde
r,
1974 (4) SA 894
(A) at 905 C-D.) In other words, it is an
expropriation of something in the nature of a road servitude: a
via publica
created by proclamation by lawful authority,
via
being "the right of
passage over land belonging to another person for people, their animals and
their vehicles" (
Shenker Bros. v Bester
,
1952 (3) SA 655
(C) at
659).
Coal deposits do, to be sure, form part of the land. But the question
is whether the coal underlying a road on Groenfontein is land
taken up by the
road.
That question must be answered in the negative.
The..../ 29
29
The reason is that a road is a surface feature: it runs on
or over the
surface of land. Cf
Thom en Ander v Moulder
(
supra
) per RUMPFF CJ at 905 A:
"Vir doeleindes van die Ordonnansie (dws die Padordonnansie 1957 (T)) is dit
m.i. duidelik dat 'n pad 'n strook grond is wanneer
dit die doel dien om een
plek met 'n ander plek te verbind vir
verkeersdoeleindes."
"Surface" as used in this context is to be
understood, not
in the narrow sense of "the mere plane surface" of the
land
(Cf
Pountney v Clayton
(1883) 11 QBD 820
(CA) at 839-840),
but as
including those portions of land which are taken up
by road foundations,
cuttings, tunnels and the like.
Under s. 5, the Administrator's powers are in
respect of the
surface. He does not, by the proclamation of a road, acquire
any rights in or to the minerals in the land concerned, or
the ..... / 30
30
the power to control in any way the exercise of such rights
by the holder
of the mineral rights. The Administrator does
not have the power to prohibit
the undermining of public
roads, nor does the Ordinance prohibit such
undermining.
Indeed, s. 86 of the Ordinance provides:
"86 Where it becomes necessary in the interests of
the public to deviate or reconstruct an existing public road owing to the
fact that
the ground has been undermined subsequent to the création of
the public road
, the Administrator may instruct the mining company or other
person responsible for such undermining to make safe such public road
to the
satisfaction of the Administrator, or to provide for the reconstruction of the
old road or the construction of a new road
at the expense of such person.
Failing compliance with such instructions within a reasonable time, the
Administrator may undertake
the work and recover the cost from such person." (My
underlining.)
Thus, a mining company may undermine a public road, but if
it..../ 31
31
it does so in such a way that the road becomes unsafe it is obliged to make
the road safe, or to bear the cost of doing so.
Another submission by Mr.
Schreiner was that "land" in secs. 94 and 92 means the unit of land shown in the
Deeds Registry, and not
merely the land occupied by the road as shown in the
Administrator's Notice. As I understand the submission, it means that, where
for
example the road traverses Portion 2 of Groenfontein, compensation is payable in
respect of Portion 2, and not merely the land
occupied by the road.
The submission is clearly untenable. That
is not the meaning of the words used in the provisions in
the Ordinance,
and it would have the startling result, which
the legislature could not have intended, that where a road
crosses .... / 32
32
crosses a corner of a unit of land, compensation is payable in respect, not
of the land occupied by the road, but of the whole unit.
My conclusion is
that
land
in the context of s. 92 (and s. 94 where it is still
applicable) means the sur-face of the land and does not include minerals under
the sur-face. Consequently compensation is not payable in respect of adverse
affection of the mineral rights. The result is that
the appeal insofar as it
relates to para. 2 of the order must fail.
That being so, the court is not called upon
to consider the correctness of
paragraph 3 of the order, which
relates to "the so-called causation problem". (See the reported
judgment at 595H to 598 J.) The "causation problem" does
not..../ 33
33
not arise, because compensation is payable under s. 92(1) not in respect "of
the land and/or any real right in respect of minerals
adversely affected by the
proclamation", but in respect "of the land encroached upon by such
establishment, widening or deviation".
To consider the correctness of paragraph
3 would, therefore, be an irrelevant academic exercise which could lead to no
practical
result.
The appeal is dismissed with costs, including the costs of
two counsel.
H.C. NICHOLAS, A J A
CORBETT, J A )
NESTADT, J A )
concur VIVIER, J A )
BOSHOFF, A J A )