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[1992] ZASCA 114
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Marsay v Dilley (67/91) [1992] ZASCA 114; 1992 (3) SA 944 (AD); [1992] 2 All SA 327 (A) (3 June 1992)
Case No 67/91
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the appeal of:
WILLIAM MARSAY
Appellant
and
LEO HARRY DILLEY
Respondent
CORAM
: Corbett CJ, Botha, Van den Heever JJA, Howie et Van Coller
AJJA.
DATE OF APPEAL
8 May 1992
DATE OF JUDGMENT
3 JUNE 1992
JUDGMENT
CORBETT CJ
: /
2
CORBETT CJ
:
On 27 February 1984 and at St James,
Cape, appellant ("Marsay") and respondent ("Dilley") entered into a written
agreement concerning
a "luxury sport fishing craft" named "NKWAZA" ("the
craft"). The preamble to the agreement records that Dilley is the registered
owner of the craft, which is presently lying at simonstown. Cape; that Marsay is
desirous of acquiring a half share in the craft;
and that the parties to the
agreement
"... intend to use the said craft jointly and/or severally to
inter
alia
develop and promote Marlin and Broadbill fishing in the waters off the
Cape of Good Hope".
The body of the agreement consists in the main of clauses
dealing with the sale to Marsay of a half share in the
craft for R100 000; the management of the craft and how
3
standing expenses are to be allocated as between the co-owners;
the use of the craft and the disposal of the proceeds of fish caught
on fishing
trips; the disposal by either party of his share in the craft; and arbitration
to settle disputes arising in connection
with the interpretation and fulfilment
of the agreement.
In March 1989 the parties' co-ownership of the craft was terminated by the
sale of the craft by public auction for a gross amount
of R252 000. The net
proceeds were shared equally by the parties. At about the same time disputes
arose as to an alleged failure
on the part of Dilley to account to Marsay in
various respects relating to the management and use of the craft. In April 1989
Marsay
instituted action against Dilley in the Cape of Good Hope Provincial
Division ("the CPD"), claiming inter alia an order that Dilley
account to
Marsay, a debate of account and an order for payment of the amount found to be
due.
4
To understand the claims relating to an accounting it is
necessary to refer to clauses 3 and 4 of the agreement, which I quote in
full:
"3.
MANAGEMENT OF CRAFT AND STANDING EXPENSES
3.1
The management of the said
craft shall at all times be undertaken by the said DILLEY, who, it is recorded
will
inter alia
be responsible for providing the craft with a Skipper and
at least one crew member from Monday to Friday inclusive, and will also
undertake to arrange for the regular slipping and painting of the craft, such
minor repair work and servicing as may from time to
time become necessary and
the maintenance of the craft generally.
3.2
It
is anticipated by the parties that the standing expenses and charges pertaining
to the craft in respect of wages for skipper and
crew, insurances, mooring fees,
slipping and painting, mooring inspections, minor repairs and general ongoing
maintenance will be
in the order of R24 000,00 (TWENTY-FOUR THOUSAND RAND)
per
5
annum. This cost is to be borne equally by the parties and will be funded as
to:
3.2.1
A monthly cash
contribution from the said MARSAY of Rl 000,00 (ONE THOUSAND RAND) payable
half-yearly in advance as and from effective
date.
3.2.2
Services and disbursements to the value of Rl 000,00 (ONE THOUSAND
RAND) per month to be provided by the said DILLEY in his personal
capacity.
4.
USE OF CRAFT
4.1 In the nature of things, the parties accept that their joint and/or
several use of the craft will be a matter for prior discussion
and agreement.
The following guidelines are however hereby accepted by the parties, viz:
4.1.1 Save and except when the said DILLEY is on board, the craft will not put
to sea without a skipper and at least one crew member
appointed by the said
DILLEY (see paragraph 3.1 above).
4.1.2 The proceeds of the sale of any fish caught during any
particu-
6
lar trip will be appropriated towards the cost of fuel and engine oil consumed
during such trip.
In the event of such proceeds being insufficient to cover such cost the balance
shall be met by the party concerned save that where
both parties are on board
during any particular trip the balance of such cost shall be borne in equal
shares. The above arrangement
will also apply in respect of additional wages
payable to the skipper and crew member when employed over a weekend or on a
Public
Holiday such wages being agreed by the parties at R70-00 (SEVENTY RAND)
per day. In the event of there being a surplus from the proceeds
of the sale of
fish caught during any particular trip such surplus shall be divided equally
between the parties as provided for in
clause 6.2 hereof. 4.1.3 These guidelines
are to be reviewed annually.
4.2 In the event of a conflict arising in regard to the right to use the craft
on any particular day, the parties shall have an individual
preference in this
regard on a rotating basis. In the event of a
7
disagreement arising as to whether the craft should in fact put
to sea on a particular day, it is accepted that by reason of his knowledge
and
experience of local conditions, the said DILLEY's decision in the matter will
prevail."
In his original particulars of claim (dated 27 April 1989) Marsay
characterized the erstwhile relationship between the parties as
one of
partnership and alleged that this had been dissolved and the craft sold. He
alleged further that pursuant to the agreement
Dilley had controlled the
day-to-day administration of the partnership, including the management of the
craft, had attended to all
necessary purchases and sales on behalf of the
partnership and had kept the partnership books of account; and that during the
subsistence
of the partnership and in breach of the agreement Dilley had
utilised partnership assets for his own account. Despite demand, so
it was
averred, Dilley had failed to
8
render an account to Marsay in respect of their partnership
affairs: hence the orders claimed.
Dilley's plea, filed cm 26 June 1989,
denied that the agreement gave rise to a partnership between the parties,
tendered to account
for proceeds received by him and falling under clause 4.1.2
of the agreement and for his management of the craft as envisaged in
clause 3.1
of the agreement, but otherwise denied a failure to account. Dilley also filed a
counterclaim for damages, but it is not
necessary to refer to this or to
Marsay's plea to the counterclaim, filed on 28 June 1989. On the same date
Marsay filed a replication
putting in issue the adequacy of Dilley's tender. Par
1.3 of this replication reads as follows:
"1.3 Plaintiff repeats the allegation contained in paragraph 7.1 of his
Particulars of Claim and in amplification thereof avers that
Defendant utilised
partnership assets for his own account on, inter alia, the following
occasions:
9
(a)
To transport
passengers and goods to tankers in False Bay;
(b)
For salvage purposes;
(c)
For hire
by film-makers;
(d)
For use on moorings work
in Simonstown; and
(e)
For use in False Bay
for CSIR survey.
In addition,Defendant overcharged
Plaintiff for diesel and oil used and conversely undercharged for diesel used
when he was on board."
In May 1990 and evidently shortly before the
matter was due to come to trial Marsay amended his
particulars of claim.
This led to an amended plea
(dated 9 May 1990) and an amended replication thereto
(dated 15 May 1990). The main features of the amended
particulars of claim, which also claim an accounting, are
that it is now alleged (i) that the parties carried on
business in partnership
or co-ownership
; (ii) that, upon
a number of (specified) alternative legal grounds, Dilley
was obliged to render account, duly supported by
vouchers, to Marsay in respect of :-
10
"(a) his management, staffing, servicing and maintenance of
the craft as contemplated in Clause 3 of the agreement; and (b) the proceeds
of
fish caught in pursuance of the use of the craft as referred to in Clause 4.1.2
of the agreement;" (par 4.1)
and (iii) that during the course of 1987 the parties agreed that the
contributions payable by the parties in terms of clauses 3.2.1
and 3.2.2 of the
agreement would be increased by Rl 500 per annum.
The new plea admits that the contribution of the parties in terms of clause
3.2 of the agreement was increased in 1987 in each case
to R13 500 per year;
admits also that it was an implied term of the agreement that the parties were
obliged to account to each other
reciprocally in respect of the proceeds of fish
caught in terms of clause 4.1.2, but alleges that Dilley has discharged his
obligation
in this respect to Marsay; and denies any further obligation to
account and, therefore, the validity of Marsay's claim.
11
The new replication admits that Dilley has "purported to
account" to Marsay in respect of his obligations, not only under clause 4.1.2
of
the agreement, but also as envisaged in clause 3 thereof, but avers that such
accounting is "insufficient" for the reasons set
forth in par 1.3 of the first
replication (which sub-paragraph is quoted above) and also for the reasons set
forth in the report
of a chartered accountant (Mr G Shev) dated 11 May 1990 and
filed of record.
This was the state of the pleadings when the
matter came to trial in the CPD before Berman J. The
learned Judge also had before him a notice of application
filed by Dilley and reading as follows:
"TAKE NOTICE THAT the Defendant will apply at the hearing of the above matter
for an order declaring that before any issue of debatement
can be considered or
ordered, the issues of the relationship between the parties (partnership or
co-ownership) and whether an accounting
is due by the Defendant to the
Plaintiff, must first be determined."
12
In response to this notice Marsay filed an affidavit opposing
the application and asking that it be dismissed with costs. This affidavit
to
some extent canvasses the issues referred to in Dilley's notice of application
and advances reasons based upon convenience why
there should not be a separate
consideration of these issues. To this Dilley filed a short replying affidavit,
simply joining issue.
The application was obviously intended to be one in terms of Rule 33(4) of
the Uniform Rules of Court and this is how the learned
Judge a quo treated it.
The relevant portion of this rule, as amended, provides as follows:
"(4) If it appears to the Court mero motu or on the application of any party
that there is, in any pending action, a question of law
or fact which may
conveniently be decided either before any evidence is led or separately from any
other question, the court may
make an order directing the trial of such question
in such manner as it may deem fit, and may order that all
13
further proceedings be stayed until such question
has been disposed of:...."
Herman J, having considered the pleadings, the relevant
terms of the
agreement, the minute of a pre-trial
conference held by the parties and the
application and
affidavits filed in connection therewith, proceeded
to
pose the question whether the issues referred to in the
notice of application could "conveniently" be dealt with
separately from the other issues arising in the case and
concluded as follows:
"It seems to me that a case such as the present, where the right to receive
an account is contested by the parties, it being contended
on behalf of Marsay
that he has such a right and it being contended on Dilley's behalf that no
obligation rests on him to provide
Marsay with an account, is a suitable case as
is contemplated in the passage from the case quoted above. Certainly if Marsay
is not
entitled to receive an account from Dilley and Dilley is under no
obligation to deliver one, any question of debatement falls away
and the scope,
expense and duration of this action will be materially (and happily)
curtailed."
14
Ordinarily, one would have expected the learned
Judge, having reached this conclusion, to grant the application and give the
consequential
directions required by the Rule.
The judgment, however, continues:
"It accordingly becomes necessary to consider Mr
Jacobs
's contention
that it is irrelevant to determine the relationship between Marsay and Dilley in
that the former is entitled to receive
an account from the latter, irrespective
of whether they had been partners or had been co-owners of the 'Nkwaza' , as the
obligation
to provide an account rests both upon a partner and a co-owner. The
question may thus be posed - did (and does) Marsay have a right
to claim an
account from Dilley?"
Thereafter the learned Judge proceeded to consider this
very question; to interpret the agreement; to decide
that the relevant terms of the agreement were clear and
certain and that no extrinsic evidence was called for or
15
admissible to elucidate them; to hold that the relationship
between the parties was one of co-ownership and not partnership; to hold
that in
terms of the agreement there was no obligation imposed on Dilley to account for
his (Dilley's) management, staffing, servicing
and maintenance of their jointly
owned craft, but that there was an obligation imposed on both of them to account
to one another
in respect of the proceeds of fish caught and sold by either of
them. As regards the alleged use of the craft by Dilley for his own
account as
set forth and particularized in par 1.3 of the original replication (which was
incorporated by reference in the new replication)
the learned Judge held that no
cause of action had been made out for an account in respect of these
transactions in the pleadings.
Having decided that in law Dilley was obliged to account to Marsay only in
respect of fish caught by him when using the craft, Berman
J proceeded to make
an
16
order for the further conduct of
the proceedings, which would be concerned with the factual question as to
whether such an accounting
was due by Dilley or whether he had in fact already
discharged this duty. In brief this order involved (a) directions as to the
holding
of a conference "on the lines envisaged in Rule 37" at which Marsay
would present to Dilley "an itemised list" of the instances or
respects in which
Dilley's accounts were alleged to be inadequate and Dilley would provide
explanations or responses thereto, all
of this to be incorporated in a written
minute to be delivered to the presiding Judge; (b) an instruction that in the
event of Marsay
persisting, after the conclusion of the conference, in
contending that the accounting was inadequate, this issue together with any
debasement thereof would be determined at a further hearing, the date for which
had already been fixed; and (c) an order that liability
for
17
the costs of the application stand over for
argument at the conclusion of the further hearing.
Marsay applied to the
Judge a quo for leave to appeal. This was refused on the grounds that the order
was not appealable and that
the application for leave to appeal was premature.
Leave to appeal was, however, granted by this Court on application to it.
In their heads of argument counsel for both parties fully canvassed the
issues decided in the Court a quo. In addition, counsel for
appellant addressed
the question of appealability. The latter point was not canvassed in the heads
of argument of respondent's counsel,
but Mr
Kirk-Cohen
(who represented
Dilley but did not appear in the Court a quo or draw the heads of argument)
informed us that it was his submission
that the order of the Court a quo was not
appealable and he adduced argument in support of this submission. This question
must be
decided ante omnia.
18
The law relating to the appealability of
decisions of a court of a provincial or local division was re-examined
relatively recently
by this Court in the case of
Van Streepen & Germs
(Pty) Ltd v Transvaal Provincial Division
1987 (4) SA 569
(A). As this
judgment shows, this Court has over the years adopted an increasingly flexible
approach to the question of appealability.
The general principle which, I think,
may be extracted from the judgment is the following: where a trial Court has
under some competent
procedure (such as an application under Rule 33(4) ) made
an order which has the effect of being a final decision (i e one which
cannot be
corrected or altered or set aside by the trial Judge at a later stage of the
trial) and the decision is definitive of the
rights of the parties and has the
effect of disposing of a substantial portion of the relief claimed by the
plaintiff in the main
action, then this order is a judgment (as understood in
sec 20(1)
19
of the Supreme Court Act 59 of 1959) and is
appealable, despite the fact that the main action has not been concluded. (See
also in
this connection a recent and as yet unreported judgment of this Court in
the matter of
SA Eagle Versekerinqsmaatskappy Beperk v Harford
,
27.3.92.)
There is no doubt that the Court a quo pronounced finally upon the legal
relationship between the parties and upon the extent of the
obligation on the
part of Dilley to account to Marsay. The effect of this pronouncement was to
limit to a substantial extent the
relief claimable by Marsay, in the sense that
the Court held that there was no duty to account in respect of the matters
regulated
by clause 3 of the agreement and the user of the craft by Dilley for
his own account, as alleged in the replication. Mr
Kirk-Cohen
conceded
the finality of Herman J's decision, but argued that it did
20
not dispose of a substantial portion of the
relief claimed. I cannot agree. It is not possible, for obvious reasons, to
place a figure
or value on the relief denied Marsay, but clearly it is a
substantial portion of his claim. In all the circumstances, I am satisfied
that
the decision of the Judge a quo is appealable and I so hold.
Turning to the merits of the appeal, what immediately strikes one is that the
decision of the trial Judge goes far beyond what he
was asked to decide. There
was before him an application by Dilley (which was opposed by Marsay) that he
grant an order (presumably
in terms of Rule 33(4) ) declaring that before any
issue of debasement could be considered or ordered the issues of the
relationship
between the parties (i e whether it was partnership or merely
co-ownership) and whether an accounting was due by Dilley to Marsay,
first be
determined. In other words, the trial Judge was at that
21
stage merely asked to rule whether or not these issues were to
be determined prior to and separately from the other issues in the
case. In the
event of his deciding that they should, then in terms of Rule 33 (4) he was
required to make an order directing the
trial of these issues and staying all
further proceedings until such issues had been disposed of. What the learned
Judge in fact
did was to rule that these issues should be determined separately
and then, immediately and without more ado, to proceed to determine
the issues.
To what extent he was encouraged to do so by counsel then appearing for the
parties we do not know, for the advocates
who appeared before us did not act in
the Court a quo and consequently were not able to enlighten us as to exactly
what happened
in the Court a quo.
It was undoubtedly procedurally incorrect for the trial Judge to have thus
telescoped the proceedings and this irregularity held potential
prejudice
for
22
Marsay. For example, the learned Judge held that
the issues of the relationship between the parties and the extent of the duty to
account could be decided on the papers (principally the agreement itself) and
without hearing any evidence. Because of the procedure
adopted Marsay did not
have the opportunity to formally tender evidence on these issues as he would
have, had the Court a quo simply
made an order that these issues be decided
separately and made arrangements for the trial to proceed on these issues
only.
As far as the interpretation of the agreement is concerned the trial Judge
held that the meaning thereof was clear and certain and
that no extrinsic
evidence was admissible. The question as to whether and when extrinsic evidence
(and what kind of evidence) is
admissible in order to assist in the construction
of a written contract is a controversial one (see for example the discussion
thereof
in Kerr,
The Principles of the
23
Law of Contract
, 4 ed, at 305-13 and
Christie,
The Law of Contract in South Africa
, 2 ed, at 237-47) and it
may well be that the last word has not been said on the subject. This, however,
is not the occasion to attempt
to do so.
For reasons stated, and to be stated, I am of the view that the matter should
be remitted to the CPD in order that the proper procedure
should be followed and
in the circumstances it is for that Court, in the first instance, to decide
questions relating to the admissibility
of evidence as and when they arise. I
might add that I am inclined to disagree, with respect, with the conclusion
reached by the
Court a quo that no obligation to account exists in regard to the
moneys handled by Dilley in his management of the craft in terms
of clause 3 of
the agreement, but again this is a matter to be decided in the first instance by
the trial Court on the remittal of
the matter to it.
24
Furthermore, there is the claim by Marsay that
Dilley give account in respect of his user of the craft for the purposes
detailed in
par 1.3 of Marsay's original replication (and incorporated in the
new replication). In his affidavit opposing the application under
Rule 33(4)
Marsay made further reference to profits which had been made by Dilley from the
use of the craft in those respects without
his (Marsay's) prior knowledge or
consent and for which Dilley was under a duty to account to Marsay. The trial
Judge referred to
these matters (which for convenience I shall call "Dilley's
unauthorized user") and stated:
"But these transactions, giving rise to income received by Dilley, do not
relate to his management of the craft or - as is stated
in paragraph 4.1.(a) of
the amended particulars - to "his management, staffing, servicing and
maintenance of the craft
as contemplated in clause 3 of the agreement
",
in respect of which Marsay claims a right to an account (and to which I hold -
upon a proper construction of that agreement - he
is not entitled). No
25
cause of action is made out for an account in respect of these
transactions in the pleadings."
It is true that Marsay's pleadings in respect of Dilley's
unauthorized
user are not as clear as they might be.
This seems to be mainly due to the
amendments which were
made to the pleadings. In his original particulars
of
claim, as I have indicated, Marsay had alleged (in par
7.1) that during the subsistence of the partnership
Dilley had in breach
of the agreement utilised
partnership assets for his own account; and it is this
allegation which receives amplification in par 1.3 of the
original replication. The amended particulars of claim
do not repeat par 7.1 of the original particulars and
limit the obligation to account to the matters stated in
par 4.1 of the amended particulars, which are quoted
above. Par 4.1(a) as the trial Judge rightly observes,
speaks of -
26
"...his (i e Dilley's) management, staffing, servicing and
maintenance of the craft as contemplated in Clause 3 of the agreement."
It was argued by appellant's counsel that Dilley's
unauthorized user fell
under the word "management" in par
4.1, but the difficulty is that
unauthorized user could
hardly be user in terms of clause 3 of the agreement.
At
the same time it is clear from the new replication that
Marsay was
persisting in his averments and claims for an
accounting in respect of
Dilley's unauthorized user.
Had this problem arisen, as it should, in the course of a
hearing pursuant to a proper order in terms of Rule 33(4)
I have no doubt that it could, and would, have been
cleared up, if necessary, by an appropriate amendment to
the pleadings. As matters turned out, Marsay appears to
have been denied this opportunity to amend and in this
way to have been prevented from pursuing a substantial
portion of his claim. I might add that I do not wish to
27
be understood to say that on the pleadings as
they stood the Judge a quo correctly ignored the claim based on Dilley's
unauthorized
user.
In all the circumstances I am of the view that while no
case has been made out for differing from the trial Judge's finding (which
was a
matter lying within his discretion) that the issues in question should, in terms
of Rule 33(4), be dealt with separately, the
further findings of the trial Judge
in regard to the merits of these issues and his further directions for the
hearing of the matter
should be set aside; that an appropriate order in terms of
Rule 33(4) should be substituted for that of the Court a quo; and that
the
matter should be remitted to the CPD for the issues in question to be determined
in terms of the Rule and the directions contained
in the substituted order. In
view of the findings which the trial Judge has already made on the issues to be
decided it would be
appropriate if the
28
further hearing of this matter takes place before
another Judge.
In addition, it is necessary to make various orders as to
costs. Marsay, as appellant, will be substantially successful in the appeal
in
that the above-mentioned findings and orders of the Court a quo, which were
adverse to him, will have been set aside. He was also
successful in this Court
on the appealability issue. Prima facie, therefore, Marsay should get the costs
of appeal. There is, however,
this complication. It appears from the heads of
argument of Dilley's counsel that on 6 March 1991, after the appeal had been
noted,
Dilley's attorneys wrote to Marsay's attorneys tendering an abandonment
of the order made by the trial judge on the following conditions:
"1. Your client consents to an order in terms of our Notice of Motion dated
10th May 1990.
29
2. Such consent order is to include an order to pay all our client's costs in
respect of the application and its opposition, except
for the costs of the
application for leave to appeal and the petition for leave to appeal, in respect
of which latter costs our client
tenders to pay your client's costs as part of
its overall
tender.
This is an 'open tender': in the event of its rejection, this tender and the
fact of its rejection will be placed before the Appeal
Court."
In reply to this letter Marsay's attorneys
raised a
number of queries and asked for clarification. The
response of
Dilley's attorneys was terse and of the "take
it or leave it" variety. I do not think that this
tender can affect the costs of appeal. One of the
conditions of tender was that Marsay pay all the costs of
the application. This is more stringent than the order
made by Berman J which was to the effect that the costs
stand over for determination at the further hearing;
and, as I shall indicate, it is more stringent than the
30
order which this Court considers appropriate. It
is also not clear how the tendered abandonment of the trial Court's order could,
as it were, wipe the slate clean and eliminate the findings of the trial Judge
on the issues in question. These findings would stand
in Marsay's way in future
hearings in the case. And finally it is to be noted that when the appeal was
argued counsel for Dilley
supported all the findings of the Judge a quo. For
these reasons I am of the view that Marsay is entitled to the costs of
appeal.
In refusing leave to appeal the trial Judge made, inter alia, the following
orders:
"2. The trial is postponed pending a decision on a petition for leave to
appeal addressed to the Chief Justice.
4. A decision as to liability for the costs of this application and for the
wasted costs incurred as a consequence of the postponement
or the hearing of the
matter due to take place on 12 November 1990, will stand over until after the
petition for leave to appeal
has been disposed of,
31
unless dealt with in the order issued on the petition."
The costs referred to in par 4 were not dealt with in the
order issued on
the petition to this Court, but the order
did direct that the costs of the
application to this
Court for leave to appeal be reserved for decision by
the
Court hearing the appeal. In the circumstances this
Court will deal
only with the costs of the application to
this Court; the costs of the application to the CPD
having been reserved by Berman J for decision by that
Court. A similar reservation should, in my opinion, be
made in respect of the costs of the main application in
the Court a quo.
It is accordingly ordered as follows:
(1)
The appeal is allowed with
costs, including the costs of two counsel.
(2)
The costs of the application to this Court for leave to appeal are
to be paid by the respondent.
32
(3) The matter is remitted to the Court a quo for further hearing in terms of
the order substituted in par (4) hereof. Such further
hearing is to take place
before a Judge other than the one who originally dealt with the application in
the Court a quo.
(4) The order of the Court a quo is set aside and there is substituted therefor
the following:
"It is ordered in terms of Rule 33(4) of the Uniform Rules of Court -
(a) that the action be postponed to a date to be fixed by the Registrar in order
that the question of the legal relationship between
the parties (whether it is
partnership or co-ownership) and the question as to the extent of the legal
obligation of the defendant
to account to the plaintiff in terms of the written
agreement entered into between them on 27 February 1984 and/or by reason of the
legal relationship between them be tried and determined separately from the
other issues arising in the case;
33
(b)
that all
other proceedings in the matter be stayed until the aforesaid questions have
been determined and disposed of;
(c)
that at
the hearing referred to in par (a) above the parties be entitled to tender such
evidence as may be admissible and relevant
to the issues defined in par (a)
above; and
(d)
that the costs of the
application made in terms of Rule 33(4) stand over for determination by the
court which hears and determines
the aforesaid issues in terms of paras (a) and
(c) hereof."
M M CORBETT
BOTHA JA)
VAN DEN HEEVER JA)
HOWIE AJA) CONCUR
VAN COLLER AJA)