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[2000] ZASCA 50
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Eastern Metropolitan Substructure of the Greater Johannesburg Transitional Metropolitan Council v Venter NO (334/98) [2000] ZASCA 50; 2001 (1) SA 360 (SCA) ; [2001] 1 All SA 51 (A) (29 September 2000)
Case number 334/98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of
THE
EASTERN METROPOLITAN SUBSTRUCTURE
OF THE GREATER JOHANNESBURG
TRANSITIONAL
METROPOLITAN COUNCIL
Appellant
and
GERT HENDRIK JOHAN VENTER N O
Respondent
CORAM
: NIENABER, ZULMAN, STREICHER JJA,
MELUNSKY
et
FARLAM AJJA.
DATE OF
HEARING
:
1 September 2000
DATE OF
JUDGMENT
: 29 September 2000
Insolvency - payment to obtain
clearance certificate under section 50 of Local Government Ordinance 1939
(Transvaal).
J U D G M E N T
/FARLAM AJA:
FARLAM AJA
[1] This is an appeal with the leave of
the Court
a quo
from a judgment of the Witwatersrand Local Division in
terms of which the appellant, the Eastern Metropolitan Substructure of the
Greater Johannesburg Transitional Council, was ordered to pay
R131 311-72, with interest at 15.5% per annum from 15
November 1996 and
costs, to the respondent who is the liquidator of a close corporation, Etruscan
Development Corporation CC (in
Liquidation). (In what follows I shall refer
to the close corporation in liquidation as “the corporation”.) The
corporation was placed in liquidation pursuant to a special resolution
registered on 21 September 1995 and the respondent was appointed
as liquidator
on 2 October of that year.
[2] The judgment of the Court
a quo,
which was delivered by Flemming DJP, has been reported: see
Venter N O v
Eastern Metropolitan Substructure of the Greater Johannesburg Transitional
Council
,
1998 (3) SA 1076
(W).
[3] The main issue argued before the
Court
a quo
and on appeal was whether the appellant was entitled to
demand from the respondent payment of certain outstanding charges, including
basic water and sewerage charges, water consumption charges and a re-zoning fee,
prior to, or as a pre-condition to the issue by
it to the respondent of a
clearance certificate without which the transfer of certain immovable
properties, which belonged to the
corporation and which were situated within
the area of jurisdiction of the appellant, was not permitted.
[4] The main
facts which gave rise to the application are not in dispute and may be
summarised shortly.
Sixty stands situate at remaining extent of Erf 383
Magaliesig, Ext 33, Sandton, Gauteng (to which I shall refer in what follows
as
“the properties”), which belonged to the corporation, were sold by
the respondent on 16 April 1996 to a close corporation
known as Magaliesig Ext
33 CC for R3.8 million.
The conveyancer instructed by the respondent to
attend to the transfer of the properties sought clearance certificates from the
appellant in terms of section 50 (1) of the Local Government Ordinance 17 of
1939 (Transvaal).
Before it was prepared to issue the clearance
certificates the appellant required payment of an amount of R353 616-74,
being
the total of the amounts alleged to be owing to it by the corporation in
respect of the properties. This amount was made up as
follows:
assessment rates for the period
November
1994 to end October 1996 R196 674-36
(ii) re-zoning fee (payable in terms of sec
63(6), read with secs 48(6)(a) of the
Town Planning and Townships
Ordi-
nance 15 of 1986 (Transvaal) 86 237-92
(iii) basic
water and sewerage charges (in
terms of sec 50(1)(a) of the Local
Govern-
ment Ordinance) 20 520-99
(iv) water consumption
charges for the period
after October 1994 in respect of unim-
proved
stands (in terms of sec 50(1)(a) of
the Local Government Ordinance) 20 727-82
(v) sundries
1 191-35
(vi) interest
28 264-30
__________
R353 616-74
The respondent paid the amount of R353 595-47 to the
appellant on 14 November 1996, on which date the clearance certificates
were
issued and transfer of the properties were registered at the Deeds Registry in
Pretoria.
The respondent did not contend that he was not obliged to pay
an amount of R222 305-02 to the appellant to obtain the clearance
certificates: this amount comprised the amounts claimed in respect of assessment
rates (R196 674-36) and interest (R28 284-30)
less a credit as at
October 1994 of R2 633-64. The amount which Flemming DJP ordered the
appellant to repay to the respondent,
viz
R131 311-72, is the
difference between the total claimed by the appellant, R353 616-74 less the
amount not disputed by
respondent,
viz
R222 305-02.
The amounts
set out above were agreed between the parties in terms of a memorandum prepared
by their counsel at the request of Flemming
DJP.
[5] In their heads of
argument counsel for the appellant conceded that the appellant was not entitled
to have demanded payment
of the amount of R1 191-35, being the amount
claimed in respect of “sundries”, prior to or as a precondition to
the issue of a clearance certificate. It was contended, however, that the
appellant was entitled so to demand the balance of
the amount which Flemming DJP
ordered it to repay to the respondent,
viz
R130 120-37 (R131 311-72
less R1 191-35) and that the respondent was accordingly not entitled to an order
for the repayment
thereof.
[6] The respondent alleged in the court
a
quo
that it paid the amount demanded from it by the appellant under protest.
This was disputed by the appellant, which now concedes that,
regardless of
whether the respondent paid under protest or not, if the amount paid or part
thereof was not due and payable, the respondent
is entitled to recover it by way
of a
condictio
.
[7] The basis for what I may call the
respondent’s main claim for repayment is set out in paragraphs 23 and 24
of his founding
affidavit which read as follows:
“23.1 The corporation was liquidated because it could not pay its
debts;
23.2 In terms of Section 66 of the Close
Corporation Act No 69 of 1984, read with Section 339 of the Companies Act no 61
of 1973,
Section 89 of the Insolvency Act is applicable;
23.3 It is
accordingly submitted therefore that the amounts paid to [the appellant] are not
‘a tax’ and that therefore
the Corporation is not liable to make
payment of such sums as contemplated by Section 89(5) of the said Insolvency
Act.
24 It will be submitted to this Honourable Court that:
24.1 the above amounts received by [the appellant] do not refer to taxes as
contemplated by
Section 89
(5) of the
Insolvency Act No 24 of 1936
as
amended;
24.2 [the appellant’s] claim for such
amounts was not secured as contended for by [the appellant];
24.3 payment of
such sums should not have been procured by [the appellant] in the manner in
which it achieved such object;
24.4 [the appellant’s] claim for such
sums is a concurrent creditor’s claim against the Corporation;
24.5 the
overpayment is not due or payable on [the appellant’s] own
version.”
[8] Simply put, the basis for the respondent’s
main claim was that the appellant was only entitled to withhold a clearance
certificate from the respondent because of the non-payment of
“taxes”, as defined in
sec 89(5)
of the
Insolvency Act 24 of 1936
.
Since the amount in question was not paid in respect of such taxes it was not
due and payable to the appellant when the clearance
certificates were withheld.
In the result the appellant was obliged to repay it to the respondent, after
which, if so advised,
it could prove a claim therefor in terms of
sec 44
of the
Insolvency Act, which
would not be a secured claim but only a concurrent
one.
[9] The respondent sought orders declaring that the amounts due in
respect of water supplied, sundries, rezoning and sewerage
in respect of the
properties did not constitute “taxes” as contemplated in terms of
sec 89(1)
, read with
sec 89(5)
, of the
Insolvency Act; and
that he had not
been obliged to pay such amounts to the appellant in order to obtain a
clearance certificate in terms of sec
50 of the Local Government Ordinance for
the purpose of transferring the properties. (The statutory provisions referred
to are
quoted below.)
[10] He also sought orders for the repayment of the
amounts paid in respect of water supplied, sundries, rezoning and sewerage,
interest thereon and costs.
[11] Holding that there was no need to decide
the issues raised by the prayers for declaratory orders, Flemming DJP, as has
been
said above, ordered the appellant to repay to the respondent the sum of
R131 311-72, the computation of which is set out above.
[12] Flemming
DJP held that the fact that the said amounts were in relation to debts which
arose between the appellant as local
government authority and a township owner
was a
prima facie
indication that they had not been paid by the
respondent liquidator to maintain property, to conserve property or as a cost
of
realising property (see the reported judgment at 1081 B-C).
[13] He held
further that when a company is liquidated because it cannot pay its debts the
nature of the claim of each of its creditors
undergoes a change in that the
claim to payment of a certain amount of money becomes a claim to payment of the
appropriate dividend
on the proved part of the claim, proof of the claim being a
prerequisite. He also said that a secured creditor is normally not
entitled to
have money out of what he called “the liquidator’s general
kitty” and that payment may be enforced
only when the distribution account
is finalised, which in most cases will be after the transfer of movable property
(see 1081 D -
E).
[14] He proceeded to decide that the appellant had not
been entitled to payment at the time when payment was received. This was
because the respondent was not obliged to pay an amount otherwise than in
accordance with his finalised distribution account. He
had, however, made
payment in this matter because if he had not yielded to the appellant’s
insistence on payment, the liquidation
process would have been stultified and
the statutory duty to liquidate could not have been complied with (see 1081 G -
I). He
held that the payment made by the respondent in the present case did
not constitute a cost of “realising any property”
in terms of
sec
89
(1) of the
Insolvency Act because
in making the payment the respondent had
not extinguished a debt but had handed over money which he claimed the appellant
had no
right to be paid and which he proposed reclaiming in Court (see 1082 A -
B). On this basis the Court
a quo
purported to distinguish the decision
of Botha J in
De Wet en Andere NNO v Stadsraad van Verwoerdburg
1978 (2)
SA 86
(T) (to which I shall refer more fully in what follows). He also held
that the appellant had succeeded in forcing payment out of
funds to which it had
no claim and which the respondent was not entitled in a distribution account to
allocate to the appellant’s
claim (see 1082 H - J).
[15] He concluded
that sec 50 of the Local Government Ordinance, which he assumed to be valid,
did not affect the position (see
1083 A - 1085 A).
[16] It will be observed
from the summary I have given of Flemming DJP’s judgment that he found in
favour of the respondent,
not on the basis contended for in the founding
affidavit (
viz
that amounts which are not “taxes”, as
defined in
sec 89
(5) of the
Insolvency Act, cannot
form the basis for a
refusal by a local authority to give a clearance certificate in terms of sec 50
of the Local Government Ordinance
of the Transvaal) but on the basis that,
where a company (or a close corporation) is put into liquidation because it
cannot pay
its debts, the nature of its creditors’ monetary claims changes
and they become claims to payment of the appropriate dividend
after the claims
have been proved and the distribution account finalised.
[17] Before the
legal questions arising for decision on appeal are considered it is advisable
to set out the relevant statutory
provisions to which reference was made during
the argument.
[18] Sec 50 of the Local Government Ordinance 17 of 1939
(Transvaal), as amended, reads (as far as is material) as follows:
“50. (1) No transfer of any land or of any right in land as defined in
section 1 of the Local Authorities Rating Ordinance,
1977, within a municipality
shall be registered before any registration officer until a written statement in
the form set out in
the Third Schedule to this Ordinance and signed and
certified by the town clerk or other officer authorised thereto by the council,
shall be produced to such registration officer, and unless such statement shows
–
that all amounts for a period of three years immediately preceding the date of
such registration due in respect of such land or
right in land for sanitary
services or so due as basic charges for water or as other costs for water where
any water-closet system
on the ground concerned has been installed or so due as
basic charges for electricity in terms of the provisions of this Ordinance
or
any by-law or regulation:
that all amounts, if any, due for any expenses incurred or advances made by
the council to the owner of such land or right in land
in terms of the
provisions of section 81 (4), 83 (4) or 142 (1) of this Ordinance; and`
that all amounts, if any, due for any expenses incurred or advances made by
the council to the owner of such land or right in land
in terms of the
provisions of section 81 (4), 83 (4) or 142 (1 of this Ordinance; . .
.
have been paid to the council: Provided that in the case of transfer of
immovable property by a trustee of an insolvent estate,
the provisions of this
section shall be applied subject to the provisions of section 89 of the
Insolvency Act, 1936 (Act 24 of 1936).
. .
The town clerk or other officer authorized by the council shall furnish the
statement referred to in subsection (1) to the owner
of the land or right in
land or his attorney or agent upon demand and upon payment by him of a charge to
be fixed by resolution of
the council but not exceeding two rand for each such
statement.
Any amount due in terms of paragraph (a), (b), (c) or (d) of subsection (1)
shall be a charge upon the land or right in land in respect
of which such amount
is owing and shall, subject to the provisions of section 142 (6), be preferent
to any mortgage bond registered
against such land or right in land subsequent to
the coming into operation of this
Ordinance.”
[19] Sections
48(6) and 63(1) and (6) of the Town Planning and Townships Ordinance 15 of 1986
(Transvaal) read (as far as is material)
as follows:
“48 (6) . . . [A] contribution contemplated in subsection (1) payable in
respect of any particular land shall be paid to
the local authority before
–
(a) a written statement
contemplated in section 50 (1) of the Local Government Ordinance, 1939, is
furnished in respect of the land
. . .”
“63 (1) Where an amendment scheme which is an approved scheme came into
operation in terms of section 58 (1), the authorized
local authority may, within
a period of 30 days from the date of the commencement of the scheme, by
registered letter direct the
owner of land to which the scheme relates to pay a
contribution to it in respect of the provision of –
the engineering services contemplated
in Chapter V where it will be necessary to enhance or improve such services as a
result of the
commencement of the amendment scheme;
open spaces or parks where the commencement of the amendment scheme will
bring about a higher residential density,
and it shall state in that letter –
(i) the amount of the contribution;
(ii) particulars of the manner in which the amount of the contribution
was determined; and
(iii) the purpose for which the contribution is required.
. .
.
(6) The provisions of section 48 (6) . . . shall apply
mutatis
mutandis
to the payment of a contribution contemplated in subsection
(1).”
[20]
Section 89
(1), (4)
and (5) of the
Insolvency Act read
as follows:
“(1) The cost of maintaining, conserving, and realizing any property
shall be paid out of the proceeds of that property, if
sufficient and if
insufficient and that property is subject to a special mortgage,
landlord’s legal hypothec, pledge, or right
of retention the deficiency
shall be paid by those creditors,
pro rata
, who have proved their claims
and who would have been entitled, in priority to other persons, to payment of
their claims out of those
proceeds if they had been sufficient to cover the said
cost and those claims. The trustee’s remuneration in respect of any
such
property and a proportionate share of the costs incurred by the trustee in
giving security for his proper administration of
the estate, calculated on the
proceeds of the sale of the property, a proportionate share of the
Master’s fees, and if the
property is immovable, any tax as defined in
subsection (5) which is or will become due thereon in respect of any period not
exceeding
two years immediately preceding the date of the sequestration of the
estate in question and in respect of the period from that date
to the date of
the transfer of that property by the trustee of that estate, with any interest
or penalty which may be due on the
said tax in respect of any such period, shall
form part of the costs of
realization.
. . .
Notwithstanding the provisions of any law which prohibits the transfer of
any immovable property unless any tax as defined in subsection
(5) due thereon
has been paid, that law shall not debar the trustee of an insolvent estate from
transferring any immovable property
in that estate for the purpose of
liquidating the estate, if he has paid the tax which may have been due on that
property in respect
of the periods mentioned in sub section (1) and no
preference shall be accorded to any claim for such a tax in respect of any other
period.
For the purposes of subsections (1) and (4) ‘tax’ in relation to
immovable property means any amount payable periodically
in respect of that
property to the State or for the benefit of a provincial administration or to a
body established by or under the
authority of any law in discharge of a
liability to make such periodical payments, if that liability is an incident of
the ownership
of that property.”
[21] Provisions similar to section 50 (1) of the Local
Government Ordinance 17 of 1939 (Transvaal) have been found in our law for
many
years: see
Nel N O v Body Corporate of the Seaways Building and
Another
[1995] ZASCA 83
;
1996 (1) SA 131
(A) at 134 B. In the
Nel
case, at 140 E,
they are called “embargo provisions” and most of the leading cases
in which what were called “the
principles relating to such
embargoes” are referred to are discussed.
[22] Before the legal questions argued on appeal are considered
it
is appropriate to say something about the original
contention raised by the respondent in his founding affidavit quoted in para
[8]
above.
[23] This contention is clearly based on an erroneous
assumption,
(one which was common cause between the
parties in
Greater Johannesburg Transitional Metropolitan Council v Galloway
NO and Others
1997 (1) SA 348
(W) at 356 A)
viz
that if any of the
items prescribed by sec 50 (1) of the Local Government Ordinance was not a
“tax”, as defined in
sec 89
(5) of the
Insolvency Act, the
effect of
sec 89
(4) was to relieve a trustee or liquidator from payment thereof as a
prerequisite for obtaining a clearance certificate.
[24] This broad
assumption was clearly erroneous in my view because it was based on an incorrect
interpretation of
sec 89
(4) of the
Insolvency Act. Sec
89 (4), read with
section 89
(1), does not relieve a trustee from paying debts mentioned in sec
50 (1) of the Ordinance unless they are taxes due on the property
in question in
respect of any period not exceeding two years before the sequestration or
liquidation. On its plain meaning it limits
the quasi-lien created by the
embargo provision where the debt in question is a tax as defined to the two year
period mentioned.
It imposes no limitation at all on the periods over which
other debts mentioned in such embargo provisions have become due: in
fact it
does not deal with such debts.
[25] If one assumes, as Flemming DJP did and
as I do (counsel for the respondent having conceded that it was not open to him
to contend
otherwise), that sec 50 is valid, then there is no basis on which it
can be contended that amounts not constituting “taxes”
listed in sec
50 (1) did not have to be paid by the respondent in order to obtain a clearance
certificate. See in this regard
De Wet en Andere v Stadsraad van
Verwoerdburg
,
supra
. Thus, although the amounts which the
respondent sought to have repaid were not taxes, as he correctly alleged, the
appellant was
still entitled in terms of section 50 to withhold a clearance
certificate until they were paid.
[26] Counsel for the appellant contended
that the court
a quo
erred in holding that the nature of the claim of
every creditor undergoes a fundamental change upon liquidation or sequestration
and that what was due and owing beforehand was not due and owing after
liquidation or sequestration. Counsel relied on the
Nel
decision,
supra
, in which it was held (at 139 E - F) that after sequestration or
liquidation the whole of a pre-insolvency debt remained due and
owing. It
followed that the amount paid by the respondent to the appellant was (except for
the sundries) due and owing when paid
and accordingly could not be
reclaimed.
[27] I agree. Once it is accepted, as it must, that the amounts
paid (save for the sundries) were due and owing and that the appellant
was
entitled in terms of section 50 to require payment thereof as a prerequisite to
its issuing a clearance certificate there is
no legal basis for a claim that it
be repaid. It is true that because of the
concursus creditorum
created
by the liquidation of the corporation the appellant could not have taken the
initiative in compelling the respondent to
pay the amounts in question unless
it proved a claim and then only after the finalisation of the liquidation and
distribution account
and to the extent of the preference created by section 50
(3) of the Local Government Ordinance. The respondent could have decided
not
to realize the properties immediately and to file a first liquidation account
which was not a final account (see
section 92
(4) of the
Insolvency Act). If
the appellant had wished to benefit from the distribution of the other assets
belonging to the corporation which were already realized,
it would have had to
prove a claim for the amounts owing to it so as to qualify for the payment of a
dividend from the proceeds
of those assets.
[28] If the respondent,
however, wished to transfer the properties to the purchaser he had to pay the
amounts due in respect of the
rezoning fee, the basic water and sewerage charges
and the water consumption charges in order to have the embargo created by
section
50 of the Local Government Ordinance lifted, if necessary taking a loan
in order to do so.
[29] A point analogous to the one presently under
consideration was considered and decided in favour of a creditor entitled to
avail
itself of an embargo provision in
Bosman’s Trustee v Land and
Agricultural Bank of SA and Registrar of Deeds, Vryburg
,
1916 CPD 47.
The
embargo provision considered in that case was section 3 (4) of the Dipping Tanks
(Advances) Act 20 of 1911 (as modified by
the Land Bank Act 18 of 1912) which
prohibited the transfer of a holding in respect of which the Registrar of Deeds
had made a note
that an advance had been made for the erection of a dipping
tank, unless a receipt or certificate issued by the Land Bank had been
produced
to the Registrar for the interest or instalments payable in respect of the
holding.
[30] Gardiner J, who gave the judgment in the matter, said (at
56-7):
“If the Bank comes into Court as an applicant seeking to make the trustee
in insolvency do something, it must show that it
has a
locus standi
as a
proved creditor. But the fact that it has not proved does not prevent it from
maintaining its hold upon the landed property.”
[31] An application brought by the trustee of the insolvent estate
of the owner of the holding for an order
authorising the Registrar of
Deeds to pass transfer without the receipt or
certificate required by
section 3 (4) of Act 20 of 1911 having been lodged
with him was
accordingly, in my view correctly, refused.
[32] An amount
paid in order to enable property sold by a trustee or liquidator to be
transferred to the buyer is included in the
cost “of maintaining,
conserving and realising” property to which reference is made in
sec 89(1)
of the
Insolvency Act: see
De Wet en Andere NNO v Stadsraad van
Verwoerdburg, supra
, approved by this Court in the
Nel
decision,
supra
at 141 A.
[33] I cannot, with respect, agree that the
De
Wet
case can be
distinguished as Flemming DJP attempted to do. It
concerned a payment
of endowment moneys which were demanded by a local
authority in
terms of sec 50(1)(d) of the Local Government Ordinance
before the
issue of a clearance certificate. In holding that the
payment of the
endowment moneys constituted part of the costs of
realising property,
Botha J said (at 100 H - 101 C):
“Wat is die gewone betekenis van ‘die koste van tegeldemaking van
goed’? Daaroor kan daar na my mening geen moeilikheid
wees nie. Die
‘tegeldemaking van goed’ beteken klaarblyklik die omskepping van
daardie goed in geld; in die huidige
verband, is dit die verkoping en oordrag
van grond vir kontantgeld. Die ‘koste’ van die tegeldemaking
beteken ewe klaarblyklik
die uitgawes wat aangegaan word om die proses van
tegeldemaking te bewerkstellig en te voltooi. Indien die bepaling ten opsigte
van die betaalbaarheid van belasting alvorens transport van grond gegee kan
word, soos vervat in art 50 (1) (b) van die Plaaslike
Bestuursordonnansie,
bestaan het sonder enige verwysing na art 89 van die Insolvensiewet in art
50(1), en art 89 nie verwys het na
belasting nie, dan sou dit na my mening nie
te betwyfel gewees het nie dat die belasting sou geval het binne die bestek van
die uitdrukking
‘die koste van tegeldemaking’ van grond. Dit is so
omdat die tegeldemaking, bestaande uit die verkoping en oordrag van
die grond,
nie sou kon geskied sonder die betaling van die belasting nie; dit is dus `n
uitgawe wat noodsaaklik is om die tegeldemaking
te bewerkstellig en te voltooi.
Presies dieselfde benadering is van toepassing op die skenkingsgelde van art 50
(1) (d) van die
Plaaslike Bestuursordonnansie: dit word betaalbaar by die
verkoping van die grond en moet betaal word voordat oordrag gegee kan word;
dit
is dus `n noodsaaklike uitgawe in die proses van tegeldemaking van die
grond.”
[34] In this case also the liquidator paid the
amounts in question in order to be able to transfer the properties, in other
words,
as a necessary expense in the process of realising the properties. The
fact that he hoped to be able to recover the amounts paid
does not detract from
the fact that they were paid in order to enable him to transfer the
properties.
[35] In the circumstances I am satisfied that the reasons given
by Flemming DJP for his decision that the appellant had to repay
to the
respondent the amounts paid over by him in respect of the rezoning fee, the
basic water and sewerage charges and the water
consumption charges before the
clearance certificate was issued cannot be supported.
[36] Counsel for the
respondent did not endeavour to defend the reasoning in the judgment of the
court
a quo
. He argued that the respondent was obliged to pay the
amounts in question before obtaining the clearance certificate but that he
was
entitled to claim repayment of them immediately thereafter. For the reasons I
have given the amounts in question were due when
they were paid and no basis can
exist for ordering the appellant to repay them to the respondent.
[37] I am
accordingly of the opinion that the appeal in this matter should (save in
respect of the sundries) succeed with costs,
including those occasioned by the
employment of two counsel.
[38] As far as the order made in the Court
a quo
is concerned it
is
clear that the only amount which the appellant
should have been ordered to repay was the sum of R1191-35 in respect of the
sundries.
The success achieved by the respondent is very small in relation to
the total amount claimed and the main contentions advanced
on behalf of the
respondent have been rejected. In my view it would have been appropriate for
the Court
a quo
, despite the respondent’s insignificant success in
obtaining an order for repayment of the sundries, to order the respondent
to pay
the costs of the application.
[39] The following order is made:
The appeal is upheld with costs, including those occasioned by the employment
of two counsel.
The order of the Court
a quo
is set aside and substituted therefor is the
following:
“1. The respondent is ordered to pay to
the applicant:
(a) an amount of R1 191-35; and
(b) interest at the rate of 15.5% per year on that amount from 15
November 1996 to date of payment.
The applicant is ordered to pay the respondent’s
costs.”
I G FARLAM
NIENABER JA)
ZULMAN JA)
STREICHER JA)
CONCUR
MELUNSKY AJA)