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[2024] ZALMPPHC 72
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Liq Investments CC v Parkers Store Limpopo (Pty) (6374/2020) [2024] ZALMPPHC 72 (15 July 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case
Number: 6374/2020
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE:
2024-07-15
SIGNATURE:
In
the matter between:
LIQ
INVESTMENTS CC
APPLICANT
And
PARKERS
STORE LIMPOPO (PTY) LTD
RESPONDENT
Coram:
Kanyane AJ
Heard:
3 April
2024
Delivered:
This judgment is handed down electronically by circulation to the
parties through their legal representatives' e-mail addresses.
The
date for the hand-down is deemed to be 15 July 2024.
Summary:
Commercial law – Dispute about the terms of a loan agreement –
Doctrine of fictional fulfilment.
ORDER
The
defendant shall pay the plaintiff the sum of R1, 134, 811, together
with interest thereon at the prescribed rate from 31 March
2020 to
date of payment, both dates inclusive.
2.
The defendant shall pay the plaintiff’s costs of the action, as
taxed or agreed, including the costs of the plaintiff’s
counsel
on scale B.
JUDGMENT
Kanyane,
AJ
Introduction
[1]
In this action, the plaintiff close
corporation sues the defendant company for payment of the sum of R1,
134, 811, which is made
up of the sum of R1, 080, 773 allegedly lent
and advanced by the plaintiff to the defendant on 26 August 2019,
together with the
agreed interest thereon of R54, 038.
[2]
It is common cause that the plaintiff
lent and advanced the sum of R1, 080, 773 by electronic funds
transfer to the defendant on
26 August 2019 and that it has not
repaid that sum. The dispute is the terms upon which the sum was
advanced and specifically whether
repayment of the loan is due.
[3]
The plaintiff alleges that it advanced
the sum of R1, 080, 773 to the defendant as a short-term loan in
terms of a partly written,
partly oral agreement concluded between
them on the same date. According to the plaintiff, in terms of the
agreement, the defendant
would repay the monies advanced by no later
than two weeks hence, together with the agreed interest thereon of
R54, 038, being
5% of the funds lent and advanced.
[4]
The sole member of the plaintiff,
Maxwell Sibanda, was also the sole witness on its behalf. Anthony and
Godnows (aka Brian) Munetsi
testified for the defendant. Brian
Munetsi is the majority shareholder and controlling director of the
defendant. Anthony Munetsi
is employed by the defendant as its
financial manager. Where there is a need to distinguish between
Anthony and Brian Munetsi,
I refer to them by their first names. I
mean no disrespect to either of them.
[5]
Instead of chronicling the witnesses’
evidence sequentially, I focus on what they were agreed on and where
they differ.
The
facts
[6]
Mr Sibanda and Brian are childhood
friends who went to school together in Zimbabwe before entering the
financial services industry
in South Africa.
[7]
On 25 August 2019, Mr Sibanda visited
Brian at the latter’s residence in Polokwane. At that time Mr
Sibanda was resident in
Gauteng. The motive for the visit is in
dispute. Mr Sibanda testified that he visited at Brian’s
invitation to come see the
latter’s business interests in
Polokwane. Brian testified that Mr Sibanda had telephoned him to ask
to visit, and during
the visit had apprised him of developments in
his personal life, including that he was experiencing difficulties
with his South
African visa and, as a result, had to imminently leave
the country.
[8]
Nothing turns on this dispute, and I
need not decide it for purposes of this judgment. Suffice it to say
that, during post dinner
drinks between the two gentlemen, the
discussion turned to matters business.
[9]
During that discussion, it soon turned
out that Brian had a cash flow problem. The defendant was the sole
accredited South African
distributor of Parker Hannifin, which
supplied hydraulic and pneumatic products to various industries,
including mining. In the
medium term, the defendant need an injection
of equity capital, and Brian was interested in selling off some of
his equity in the
business to capitalise it.
[10]
In the most immediate term, the
defendant had received an order from Anglo Platinum, andit needed
working capital to fulfil this
order. To this end, the defendant had
obtained bridging loan funding of R5 000 000 from SEFA at 15%
interest for a period of two
months. But it was a condition of the
SEFA loan agreement that the defendant should provide own-party
funding contribution in the
sum of R1, 080, 773. The defendant needed
immediate bridging financing in the latter sum for the SEFA funds to
flow. Without the
bridging financing, the defendant could not unlock
the SEFA loan funds to flow; without the SEFA funding, the defendant
could not
fulfil the order placed on it by Anglo Platinum.
[11]
According to Mr Sibanda, Brian appealed
to him to assist. The discussion continued into the evening and, the
next morning, it culminated
in a meeting in the defendant’s
boardroom attended by Brian and Anthony and Mr Sibanda. Anthony
initially denied having participated
in the meeting, but he is
contradicted not only by the objective evidence, but by Brian
himself. The meeting was followed by a
telephonic discussion between
Mr Sibanda and Anthony, as well as a flurry of e-mails. As a result,
the plaintiff paid the sum of
R1 080 773.00 to the defendant during
the afternoon of 26 August 2019.
[12]
Before me, the defendant’s defence
was essentially that it was a term of the agreement that the loan
amount would only become
repayable to the plaintiff upon the
defendant having received payment for goods it had contracted to
supply to Anglo Platinum.
[13]
Mr Sibanda testified that it was never a
term of the agreement that repayment of the loan amount was
contingent on the defendant
having received payment from Anglo
Platinum in respect of the order in issue. The discussion regarding
the expected Anglo Platinum
payment was about
how
the defendant would acquire the funds to repay the loan.
Evaluation
[14]
The Munetsis were poor witnesses who
contradicted themselves, each other, and the defendant’s
pleadings in material respects.
Where there is a dispute between the
Munetsis and Mr Sibanda, I prefer the latter’s version. This is
often unnecessary, as
the Munetsis’ evidence stands in stark
contrast to the objective evidence, which in this case takes the form
of e-mail and
WhatsApp communications between them and Mr Sibanda
which were common cause before me and were referred to extensively in
oral
evidence and argument.
[15]
The objective evidence shows that, at
09h54 on 26 August 2019 (which must have been shortly after the
meeting of that morning),
Anthony sent an e-mail to Mr Sibanda in the
following terms:
“
Dear
Mr Sibanda
Thank
you for your visit and kindly appreciated and we look forward to have
a good working relationship.
Current
order needing financing
Following
our discussion, our main challenge being funding,I have attached a
loan facility letter where we are in need of Funding
of R1 080 773 as
it's a condition for our funders to release the R5 000 000.00 that
was approved. We are being charged 12,5% if
we borrow this money from
some of our funders which is quite a lot, our plea to you is if you
will be able to advance this to us
at lower rate say 5% we would
really appreciate as Anglo will pay our invoices within 7 working
days then we can pay back this
money including interest. We are
supposed to deliver these goods by Thursday.
Long
term orders
.
. . .
Please
feel free to contact me if you need anything or any clarity.”
[16]
Mr Sibanda testified that he thereafter
had a telephonic discussion with Anthony to clarify the request for
short term funding.
During this conversation, Anthony reiterated,
among others, that the loan was required in the immediate short term
to unlock the
SEFA funds and would be repaid no later than two weeks
hence.
[17]
In a response to this e-mail
communication at 11h50 on the same day Mr Sibanda said the following:
“
Hi
Anthony
Thank
you for sending the e-mail below and for our telephonic conversation
a short while ago to clarify some of my initial questions.
As discussed, my
intention is to take up the offer to make an investment into the
business and partner with you guys, I am not looking
to make any
short term loans and place funds at risk as I currently receive good
returns from my own unit trust and money market
investments with very
little risk.
However,
after having clarified it with you over the phone, I appreciate that
you understand my approach and will supply me with
the necessary
financial and/or management information on the business that will
allow me to work out some form of valuation to
determine what long
term investment I can propose in exchange for a % of the business.
But in the short term, you require immediate
funding as per proposal
below.
Therefore,
in good faith whilst waiting for the financial and/or management
information for the purposes of the long term investment,
I will
assist with the short term funding need. We can proceed in two
phases:
1.
First
phase (short term loan funding)
I
will provide the loan of R1 080 773 at a rate of 5% meaning the
repayment (inclusive of the rate) will be R1 134 811. The repayment
will be made shortly after release of your funds from Anglo, which I
understand you expect to be made approx. 7 working days after
delivery of the goods which should likely be by this Thursday.
2.
Second
phase (equity investment)
. .
. .
Both
in terms of Phases 1 and 2 above, the likelihood is that I will not
do the transactions in my own name but will use a juristic
entity.
It'll likely that I'll use my 100% owned investment entity i.e.
"LIQ
Investments CC".”
(emphasis
in the original text)
[18]
At 12h27 on the same day, Mr Sibanda
wrote again:
“
Hi
Anthony
Following
on from my mail below as it relates to the First Phase (i.e.,
short-term loan funding).
If
you are comfortable to proceed on this basis,
please confirm your
banking details so that I can make the EFT.
I obtained your
banking details from your facility letter as follows:
·
Bank
First National Bank
·
Account number 6[…]
·
Account name
ParkerStore Limpopo (Pty) Ltd
·
Account Type
Cheque/current
Once,
I have received confirmation that the details above are correct.
I
will make the EFT transfer for R1 080 773
. Payment will be
made from an FNB account for LIQ Investments CC.
I
received (and responded to) your separate mail with copies of the
financials for the Second Phase.”
(Emphasis
in the original text)
[19]
Brian responded at 12h36 on the same
date, confirming the correctness of the account number. At 13h02, Mr
Sibanda responded, saying:
“
Hi
Brian,
Attached,
please find a copy of the EFT confirmation for the payment of R1
080 773.
Funds
transferred from an FNB account and therefore should reflect
immediately.
I
trust you will find all in order. Our business relationship has now
commenced.”
[20]
Brian acknowledged receipt of the funds
by e-mail at 13h31 on the same date.
[21]
It is common cause that the defendant
did not repay the funds as agreed. This caused Mr Sibanda to send an
e-mail at 10h48 on 25
September 2019 (one day short of a month since
the funds had been advanced) in the following terms:
“
Good
morning Gentlemen
I
trust you’re keeping well. The purpose of my e-mail below is to
follow up on repayment of the short-term loan funding.
For
ease of reference, I've highlighted the relevant sections of our
correspondence in this respect that dates back to the 26
th
of August as below (see sections highlighted in blue). I'm only
dealing with the "short-term loan funding" in this mail
as
I also await your separate response to the long-term funding
proposal.
Our
agreement In the Monday 26
th
of August e-mail was that you
expected to do the work necessary and deliver the goods by that
Thursday the 29
th
of August. Thereafter, you expected that
Anglo would then settle your invoices within 7 working days, meaning
by Monday the 9
th
of September. Upon receipt of the
payment from Anglo, you would then repay the short-term loan I
advanced to you, inclusive of
the interest agreed.
Brian
— I know that you contacted me via WhatsApp in early September
to advise that the R5m loan from SEFA was taking longer
than
anticipated. Therefore, I appreciated that the original timeline
described above would likely be affected as a consequence
and payment
would not be made to me by the 9
th
of September. I have
thus consciously allowed more time, and have waited another 2 weeks
(i.e. 10 working days till now).
Please
can you provide me with feedback as to the status of the work, and in
particular the revised timeline including when I can
expect the loan
repayment. As you can appreciate, I had assessed the original terms
and the timeline you supplied and agreed to
assist on that basis
(plus the extra time without insisting on payment). I have to adjust
my plans based on the feedback you will
supply me. I look forward to
your response.
”
[22]
Anthony responded in short order at
10h52. He did not deny the agreed terms as recorded by Mr Sibanda.
Instead, he said:
“
Dear
Mr Sibanda,
Apologies
for the delay, we had a problem with SEFA releasing the money earlier
as the person handling the paper work had not done
his homework well.
I will give you feedback within the course of the day but it should
be released within this week and we deliver
and will only get payment
by the 4
th
of October.
Once
again my apologies it was beyond our control.”
[23]
Mr Sibanda responded in the following
terms at 11h28:
“
Hi
Anthony
Ok,
I take note. Let me just unpack your e-mail to make sure I understand
it correctly.
·
You are still expecting the R5m SEFA
loan to be released to you this week.
·
Thereafter, you can then do the
necessary work/delivery of the goods to Anglo.
·
Upon completion/delivery – Anglo
should pay you by the Friday 4
th
of October.
·
You’ll repay me the s-term loan in
the week commencing Monday, 7
th
October.
Have
I unpacked the revised timeline correctly? If not, please
clarify/correct accordingly.”
There
was no response to this e-mail.
[24]
On 5 October 2019, Brian created a
WhatsApp group and invited both Anthony and Mr Sibanda. His first
message on this group reads:
“
Mr
Sibanda, Trust you well
My
sincere apology for the silence from our side. I have been down and
out with stress, anxiety etc Because things were not just
going well.
I think from Anthony’s side he just didn’t know what to
tell you.
At
anyrate, there is always light at the end of the tunnel.
1)
SEFA eventually paid Yesterday
2)
Supplier released goods, partial of the
stock currently available
3)
We received stock this morning
Here
with the pictures
. .
.
4)
We will start consolidating for delivery
on Monday
5)
The supplier is pushing for the balance
of stock to be delivered from the USA
6)
We should have that within the next 7 to
14 days
7)
Our Order with Anglo will then be
settled in full
For
records find attached proof of payment from SEFA
Brian
Munetsi”
[25]
Anthony also sent a message on the group
on the same day, saying:
“
Again,
I would like to extend my apology. As these caught us off guard. It
was not what we thought it would be. So financially we
are still
strapped until full delivery and payment completed.”
Mr
Sibanda responded to these messages on the same date, appreciating
the feedback.
[26]
On 26 November 2019, Anthony sent the
following message on the WhatsApp group:
“
Good
day Mr Sibanda
Had
a not gud conversation with Mr Munetsi this morning with Regards to
how I have gone quite. My apologies for my silence as I
was supposed
to communicate Finance matters as am the FM.
The
issue is due to SEFA having delayed paying Epiroc, Epiroc sold our
stock that we has pre ordered and as such the ETA increased
again and
we haven't even collected some components from them as they are
incomplete orders.
Loan
facility
After
my conversation with Mr GK this morning I found out that you withdrew
the money from somewhere where it is supposed to be
deposited back
,however , having highlighted the above issue and I don't want to
promise on the exact date I was proposing that
as long as we haven't
paid the l mil back to you ,we will be paying a monthly interest of
100k to you and when we have the 1m then
we will pay the 1 Mil plus
that month's interest . Share your view on this am open to any
suggestion.
Investment
…
Once
again my apologies for my silence, please advise if the arrangement
will work so that we can move on this matter
”
[27]
On 29 November 2019, Mr Sibanda sent
another e-mail at 11h38 in the following terms:
“
Hi
Anthony,
Following
on from your WhatsApp message to ‘Parkerstore Limpopo Funds’
(copy of which is reflected below). I requested,
& subsequently
had a telephone chat yesterday (i.e. 28 Nov). Herewith my summary:
1.
As agreed, the
essence of our agreement is that on Monday 28 August, I provided a
loan of R81080 773. This loan, plus agreed interest
of R54 038 i.e.
total repayment of R1134 811 was to be repaid to me approximately by
about the 9
th
of September
(please
refer to attached e-mall trail for full details how I had estimated
timeline).
Therefore,
I understood the loan to be short-term with timeline of approx. 2
weeks.
2.
As at today,
due to various delays, the loan has not yet been repaid and the time
that's elapsed is already sitting @ 13 weeks.
It's not clear when the
repayment will be made, & hence I do not know final timeline.
3.
In our
telephonic discussion, you explained to me that the delay summarised
above as well as the consequences/implications of this
to me,
Parkerstore is proposing to pay me with monthly payments of R100k (a
form of "extra" interest) until such time
as the amount
owing i.e. the R1 134 811 is finally repaid to me. This commences
October, meaning first payment is for October (R100k),
and second for
November (R100k).
4.
In terms of
the R200k now owing (i.e. October & November), these payments are
now due. It's likely this will be settled in tranches
over next few
days - but your target if for the full R200k to be settled by this
10
th
of December. At the end of our telephonic conversation, you advised
that you would examine your budgets/plans and confirm to me,
the
exact amounts/dates/timing of the payments (i.e. now/or up to the
10
th
).
5.
The R100k
"extra" interest will ONLY be due/payable at the end of
each month, until the R1 134 811 is repaid (i.e. if
the amount owing
is still outstanding at end of December, another R100k becomes
payable etc.).
6.
In your
message below, you had requested that I express my view on the terms
of this proposal for payment/s of the extra R100k.
After you
explained it to me (as summarised above) - I understand and therefore
accept this proposal, in terms of any payments,
(interest and/or
repayment of original loan), please make payments to LIQ Investments
CC (I attach a copy of the FNB Bank Account
confirmation details).
Lastly,
in your message below, you also commented on the valuation work I
sent on the 10
th
of September (per second mail attachment)
relating to the potential equity investment - please put this on hold
for now.”
[28]
In an e-mail to Mr Sibanda on 10
December 2019, Anthony says the following:
“
Dear
Max
As
per our telephonic conversation, we are committed to paying off the
interests components as per agreed, the only stumbling block
as
explained yesterday is the client from Namibia delaying remitting
what is due to us that we had allocated to settle our dues
to you.
However just got feedback from the customer and they confirmed that
they will settle our account before the 28
th
of December
without fail, which can be way before.”
[29]
Mr Sibanda responded on the same day in
the following terms:
“
Dear
Anthony
Thank
you for the response to my 29 November mail (attached), this,
following our chat yesterday. It seems you're in agreement with
my
summary (in the mail) of the way in which you explained how the
interest payments will work. Also, thanks for your commitment
(below)
based on your mail, I should not expect to receive any payment/s
until at least 28 December.
It
is not clear exactly which payments you are targeting for 28 December
(i.e. initial capital, original interest and/or the additional
interest for Oct and Nov) – but I’ll leave it as it and
just diarise to follow up with you around 28 December. Of course,
as
agreed, if the capital and original interest are still o/standing by
31 December, another month’s interest becomes payable.”
[30]
By letter dated 16 March 2020, the
plaintiff’s attorneys, P I Uriesi Attorneys, demanded payment
of the sum of R1, 634, 811
from the defendant by no later than 31
March 2020. The defendant did not pay. Its attorneys Tyron I Pather
Inc. responded on 2
April 2020. The contents of their letter is
revealing:
“
We
refer to your letter dated the 16th March 2020, handed to us for
attention and response.
We
are instructed to respond as follows:
1.
Our client does not
deny the Loan Agreement, we do however dispute the terms as set out
in your letter of demand;
2.
We shall consult with
our client after the Lock Down, and we shall respond more fully to
all of the allegations.
3.
We believe this is a
matter that can be dealt with in terms of the recently promulgated
Rule 41A, were the parties could Mediate
before proceeding to
Litigate
4.
It is our instruction
that it is indeed the intention of our client to honour the Loan
Agreement.
5.
However circumstances
beyond his control has caused or led to his inability to repay the
Loan amount, immediately. For your ease
of reference we attach hereto
the notice of shut down from Anglo American, which shut down has
caused our client to be unable to
meet his obligations. This will
however be a short term hurdle and our client is hopeful to regain
his position after the lock
down
We
trust you find same in order.”
[31]
The correspondence that went between the
parties between 26 August 2019 and 2 April 2020 demonstrates that the
parties concluded
a loan agreement on 26 August 2019 in terms of
which the plaintiff lent and advanced a short-term loan to the
defendant. The terms
were that the loan amount would be repaid by no
later than about 9 September 2019, together with interest thereon
R54, 038, representing
5% of the loan amount. The defendant has
failed to repay the loan amount or the interest.
[32]
The common cause facts show that the
defendant had a contract to supply Anglo Platinum with certain
materials. To fulfil this order,
the defendant needed working
capital, so it sought project funding from SEFA, which offered to
provide a short-term (2 months)
loan of R5 million to the defendant
but required the defendant to make an “own-funding”
contribution of R1, 080, 773,
which the defendant did not have.
Without this contribution, it could not unlock the loan from SEFA
and, without the SEFA funds,
it could not fulfil the order placed on
it by Anglo Platinum. To bridge this gap, the defendant sought and
obtained a short-term
loan from the defendant.
[33]
The correspondence between the parties
indicates that the defendant’s version about payment from Anglo
being a
sine qua non
for repayment of the loan amount is a recent invention. As far back
as 25 September 2019, when Mr Sibanda first enquired about
the
overdue repayment, neither of the Munetsis contended that the
repayment was not due. Instead, they made claims of being
impecunious,
and made repeated promises to pay at some future date,
even referring to different creditors of theirs who were expected to
remit
payments. Their reasons for being unable to pay mutated and
became more incredulous over time. When they ran out of excuses, they
undertook to pay “extra” interest of R100 000 per month
until such time as the loan amount and agreed interest were
paid.
Even his attorneys, in their letter of 2 April 2020, pleaded their
client’s poverty claim, saying that their client
intended to
honour the agreement, but that “
circumstances
beyond his control has caused or led to his inability to repay the
Loan amount, immediately
”.
[34]
I accordingly conclude that repayment of
the loan was not conditional upon the defendant having received
payment from Anglo Platinum.
The reference to payment from Anglo
Platinum was not concerned with the defendant’s obligation to
repay the loan, but about
how it was going to acquire the funds to
repay it. Any astute businessman in the plaintiff’s position
would have made such
an enquiry. This is not a suspensive condition
properly so called.
[35]
Neither
was it a term of the agreement between the parties that the loan
amount would
only
become repayable upon the defendant having received payment from
Anglo Platinum in respect of the order in issue, whenever it may
come. Such a term would produce unbusinesslike results
[1]
.
[36]
This conclusion means that the
defendant’s defence must fail. The defendant must be held to
its bargain, which was that it
would repay the loan within a week or
two weeks of its edvancement.
[37]
Even if I am wrong on this score, and
there was either a condition or a term in the agreement between the
parties that made the
payment conditional upon the defendant
receiving payment from Anglo there is an additional reason why this
defence must fail. It
is trite that a defendant cannot rely on the
non-fulfilment of a condition as a defence for not performing his
obligations if he
is himself the cause of the non-fulfilment. This is
a branch of the broad equitable rule of our law that no one can take
advantage
of his own wrong, for it is unjust and contrary to good
faith that he should do so – see
Du
Plessis NO and Another v Goldco Motor & Cycle Suppliers
(Pty) Ltd
2009 (6) SA 617
at para 25 and the authorities there cited;
see also
Lekup Prop Co No 4 (Pty) Ltd
v Wright
2012 (5) SA 246
(SCA) at
para 11.
[38]
During cross-examination, Brian was
constrained to concede that the reason that Anglo Platinum had not
paid the defendant as agreed
was because the defendant failed to
deliver the equipment that it was contracted to and had therefore
failed to perform its obligations
to Anglo Platinum. The result is
that Anglo Platinum has no reciprocal duty to pay the defendant. If
it was a term of the agreement
that the defendant would only be
required to repay the loan once it had received payment from Anglo
Platinum, then it must have
been a tacit term of the agreement that
the defendant would perform in terms of its agreement with Anglo
Platinum for the latter
to pay.
[39]
Accordingly, the claim must succeed with
costs. Interest will run from 31 March 2020, being the date by which
the plaintiff’s
attorneys demanded payment.
Costs
[40]
Costs must follow the result. Mr Mabilo
could advance no cogent argument why this should be otherwise. There
is no reason to depart
from the established rule. Costs of counsel
will be awarded on the intermediate Scale B.
Conclusion
[41]
In the result, the following order is
made:
3.
The defendant shall pay the plaintiff
the sum of R1, 134, 811, together with interest thereon at the
prescribed rate from 31 March
2020 to date of payment, both dates
inclusive.
4.
The defendant shall pay the plaintiff’s
costs of the action, as taxed or agreed, including the costs of the
plaintiff’s
counsel on scale B.
TM
Kanyane
ACTING
JUDGE
LIMPOPO
DIVISION, POLOKWANE
Appearances:
For
the Plaintiff:
JP
Morton
Instructed
by:
P
I Uriesi Attorneys
Sandton
DDDK
ATTORNEYS
Polokwane
e-mail:
demu@piuriesiattorneys.co.za
pa3@dddk.co.za
For
the Respondent:
PA
Mabilo
Instructed
by:
Tyron
I Pather Inc.
Pretoria
Mpho
Mokhithi Inc.
Polokwane
e-mail:
tyrop@patherinc.co.za
info@mokithiinc.co.za
[1]
Endumeni
Municipality at para 18