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[1997] ZASCA 92
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Philotex (Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd. and Others v Snyman and Others (334/93) [1997] ZASCA 92; 1998 (2) SA 138 (SCA); (13 November 1997)
Case no: 334/93
In the consolidated matter of:
PHILOTEX (PTY) LTD
1st Appellant
UNION SPINNING MILLS (PTY) LTD
2nd Appellant
GREGORY KNITTING MILLS (PTY) LTD
3rd Appellant
(Case no 4608/91 TPD) and
BRAITEX (PTY) LTD
1st Appellant
ARANDA TEXTILE MILLS (PTY) LTD
2nd Appellant
SA FINE WORSTEDS (PTY) LTD
3rd Appellant
TRICOT FASTENERS (PTY) LTD
4th Appellant
DA GAMA TEXTILE COMPANY LTD
5th Appellant
MARTILON TEXTURED YARNS
(PTY) LTD
6th Appellant
(Case no 15656/91 TPD)
versus
JOHANNES ROUSSEAU SNYMAN
1st Respondent
JOACHIM VERMOOTEN
2nd Respondent
PIETER JOHANNES GOUS
3rd Respondent
ANDRIES DEWALD NIEMANDT
4th Respondent
STEPHANUS JACOBUS NEL
5th Respondent
S J DU PLOOY
6th Respondent
S M PRETORIUS
7th Respondent
E F ZONDAGH
8th Respondent
P R BOTHA
9th Respondent
N S READ
10th Respondent
J P SMIT
11th Respondent
CORAM: Eksteen, Howie, Marais, Schutz JJA
et
Van Coller AJA
DATES OF APPEAL: 1, 2 and 3 September 1997
DATE OF JUDGMENT
: 13 November 1997
JUDGMENT
HOWIE JA:
Wolnit Limited ("Wolnit") was placed in voluntary liquidation on 20 November 1989. In the Court below appellants, former
concurrent creditors of Wolnit, instituted action against respondents, at all material times directors of the company, in which relief
was claimed in terms of s 424(1) of the Companies Act, 61 of 1973 ("the Act"). The main prayer was for an order declaring
respondents personally liable for the debts of Wolnit incurred after 1 July 1987. In the alternative, appellants sought payment of
the amounts owing to them at the time of liquidation. The crucial allegation upon which the claim was founded was that respondents
had, from the date just mentioned, carried on Wolnits business
3
recklessly. This allegation respondents denied. The case, comprising two actions consolidated for purposes of trial, came before Van
Dijkhorst J in the Transvaal Provincial Division who dismissed appellants' claims on the ground that recklessness had not been proved.
The matter is on appeal with the leave of the Court a quo and whether recklessness was proved is the decisive issue.
The applicable legal principles
Before recounting the material facts it is appropriate, first, to deal with the relevant legal position. Omitting presently irrelevant
wording, s424 provides as follows:
"Liability of directors and others for fraudulent
conduct of business
(1) When it appears, whether it be in a winding-up, judicial management or otherwise, that any business of the company was or is being
carried on recklessly or with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose,
the Court
4
may, on the application of the Master, the liquidator, the judicial manager, any creditor or member or contributory of the company,
declare that any person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be personally
responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Court may
direct.
(2) (a) Where the Court makes any such declaration, it may give such further directions as it thinks proper for the purpose of giving
effect to the declaration,
(b) . . .
(3)
Without prejudice to any other criminal liability incurred, where any business of a company is carried on recklessly or with such
intent or for such purpose as is mentioned in subsection (1), every person who was knowingly a party to the carrying on of the business
in the manner aforesaid, shall be guilty of an offence.
(4)
The provisions of this section shall have effect notwithstanding that the person concerned may be criminally liable in respect of
the matters on the ground of which the declaration is made."
5
The precursor of this section, s 185 bis of the previous Companies Act, 46 of 1926 (introduced into that Act in 1939), did not include
reckless trading and only applied to the case of a winding-up or judicial management. Obviously, therefore, the legislative intention
in enacting s 424 was to broaden the scope of the earlier provision and to extend the remedy by means of which a restraining influence
can be exercised on "over-sanguine directors".
Gordon N O and Rennie NO v Standard Merchant Bank Ltd and Others
1984 (2) SA 519
(C) at 527 A - B. That, of course, does not mean that recklessness is lightly to be found. The remedy is a punitive one; a director
can be held personally liable for liabilities of the company without proof of any causal link between his conduct and those liabilities:
Howard v Herrigel and Another NNO
[1991] ZASCA 7
;
1991 (2) SA 660(A)
at 672 E. The onus is upon the party alleging recklessness to prove it and, these being civil proceedings, to establish the necessary
facts according to the
6
required standard, which is on a balance of probabilities. (In a prosecution under s 424(3) the meaning of recklessness would be no
different but the necessary facts would, of course, have to be proved beyond reasonable doubt.)
Before discussing the meaning of recklessness, it is convenient first to dispose of the aspect of being "knowingly a party".
"Knowingly" means having knowledge of the facts from which the conclusion is properly to be drawn that the business of the
company was or is being carried on recklessly; it does not entail knowledge of the legal consequences of those facts:
Howard
's case at 673 I - 674 A. It follows that knowingly does not necessarily mean consciousness of recklessness.
Being a party to the conduct of the company's business does not have to involve the taking of positive steps in the carrying on of
the business; it may be enough to support or concur in the conduct
7
of the business:
Howard
's case at 674 H.
As far as "recklessly" is concerned its meaning, to which the meaning of "recklessness" corresponds, has been
the subject of many reported judicial pronouncements. It suffices to refer to the following. In
Shawinigan v Vokins and Co Ltd
[1961] 3 All ER 396
at 403 F it was said that "recklessly" means "grossly careless" and that recklessness is
—
"gross carelessness - the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk
being such, having regard to all the circumstances, that the taking of that risk would be described as 'reckless' ".
That definition seems, with respect, to involve some circuity of reasoning but the important point it contains is the involvement
of a risk, whether or not the doer realises it. That was the point adopted, together with indicia distilled from i a earlier judgments
of this Court,
8
in
S v Van Zyl
1969(1) SA 553 (A) at 559 D -G in arriving at the conclusion that the ordinary meaning of "recklessly" includes gross negligence,
with or without consciousness of risk-taking. In
S v Dhlamini
1988 (2) SA 302
(A) at 308 D - E gross negligence was described as including an attitude or state of mind characterised by "an entire failure
to give consideration to the consequences of one's actions, in other words, an attitude of reckless disregard of such consequences".
The test for recklessness is objective in so far as the defendant's actions are measured against the standard of conduct of the notional
reasonable person and it is subjective in so far as one has to postulate that notional being as belonging to the same group or class
as the defendant, moving in the same spheres and having the same knowledge or means to knowledge:
S v Van As
1976 (2) SA 921
(A) at 928 C - E. One should add that there may also be a subjective
9
element present if the defendant has the risk-consciousness mentioned in
Van Zyl
but that, as indicated, is not an essential component of recklessness and its existence is no impediment to the application of
the objective test referred to above.
It remains, as far as subjectivity is concerned, to warn that risk-consciousness in the realm of recklessness does not amount to or
include that foresight of the consequences ("gevolgsbewustheid") which is necessary for dolus eventualis:
Van Zyl
at 558 E, 559 E - F. Accordingly, the expression "reckless disregard of the consequences" in
Dhlamini
must not be understood as pertaining to foreseen consequences but unforeseen consequences - culpably unforeseen -whatever they might
be.
In its ordinary meaning, therefore, "recklessly" does not connote mere negligence but at the very least gross negligence
and nothing in s 424 warrants the word's being given anything other than
10
its ordinary meaning.
In the application of the recklessness test to the evidence before it a Court should have regard i a to the scope of operations of
the company, the role, functions and powers of the directors, the amount of the debts, the extent of the company's financial difficulties
and the prospects, if any, of recovery:
Fisheries Development Corporation of SA Ltd v Jorgensen and Another: Fisheries Development Corporation of SA Ltd v A W J Investments
(Pty) Ltd and Others
1980 (4) SA 156
(W) at 170 B - C. In that case, with regard to the question of a director's negligence, the principles applicable to a director's
duty of care and skill were summarised. Although the focus there was upon the duty owed to the company, whereas here one is concerned
with alleged recklessness vis-a-vis creditors, much of what was said there is applicable to the instant matter, subject to what this
Court said in
Howard
's case, to which I
11
shall revert. The relevant passage in the
Fisheries Development
judgment (at 1(55 G - 166 F) reads as follows:
"The extent of a director's duty of care and skill depends to a considerable degree on the nature of the company's business and
on any particular obligations assumed by or assigned to him. See In re City Equitable Fire Insurance Co
1925 Ch 407
at 427. Compare Wolpert v Uitzigt Properties (Pty) Ltd and Others
1961 (2) SA 257
(W) at 267 D-F. In that regard there is a difference between the so-called full-time or executive director, who participates in the
day to day management of the company's affairs or of a portion thereof, and the non executive director who has not undertaken any
special obligation. The latter is not bound to give continuous attention to the affairs of his company. His duties are of an intermittent
nature to be performed at periodical board meetings, and at any other meetings which may require his attention. He is not, however,
bound to attend all such meetings, though he ought to whenever he is reasonably able to do so. City Equitable Fire case supra at
429. Of course if he has reasonable grounds for believing such to be necessary, he ought to call for further meetings. Nowhere are
his duties and
12
qualifications listed as being equal to those of an auditor
or accountant. Nor is he required to have special
business acumen or expertise, or singular ability or
intelligence, or even experience in the business of the
company. Ibid at 428; In re Brazilian Rubber
Plantation and Estates Ltd
(1911) 1 Ch 425
at 437. He
is nevertheless expected to exercise the care which can
reasonably be expected of a person with his knowledge
and experience. City Equitable Fire case supra at 428-9;
and Brazilian Rubber case supra at 427, A director is
not liable for mere errors of judgment. City Equitable
Fire case supra at 429; Brazilian Rubber case supra at
437; and Lagunas Nitrate Co v Lagunas Nitrate
Syndicate
(1899) 2 Ch 392
at 435. In respect of all
duties that may properly be left to some other official, a
director is, in the absence of grounds for suspicion,
justified in trusting that official to perform such duties
honestly. He is entitled to accept and rely on the
judgment, information and advice of the management,
unless there are proper reasons for querying such.
Similarly, he is not bound to examine entries in the
company's books. Dovey v Cory
1901 AC 477
at 485,
492; the same case in the Court of Appeal, reported
under In re National Bank of Wales Ltd
(1899) 2 Ch 629
at 673; the City Equitable Fire case supra at 429-30;
13
Huckerby v Elliot
(1970) 1 All ER 189
at 193 J- 194 D. Obviously, a director exercising reasonable care would not accept information and advice blindly. He would accept
it, and he would be entitled to rely on it, but he would give it due consideration and exercise his own judgment in the light thereof.
Gower (Modern Company Law, 4th ed) at 602 refers to the striking contrast between the directors' heavy duties of loyalty and good
faith and their very light obligations of skill and diligence. Nevertheless, a director may not be indifferent or a mere dummy. Nor
may he shelter behind culpable ignorance or failure to understand the company's affairs."
The extent to which that summary was respectively approved and disapproved by this Court in
Howard'
s case is apparent from the following passage (at 678 A - F):
"In my opinion it is unhelpful and even misleading to classify company directors as 'executive' or 'non-executive' for purposes
of ascertaining their duties to the company or when any specific or affirmative action is required of them. No such distinction is
to be found in any statute. At common law, once a person accepts an
14
appointment as a director, he becomes a fiduciary in
relation to the company and is obliged to display the
utmost good faith towards the company and in his
dealings on its behalf. That is the general rule and its
application to any particular incumbent of the office of
director must necessarily depend on the facts and
circumstances of each case. One of the circumstances
may be whether he is engaged full-time in the affairs of
the company: see the Fisheries Development case supra
at 165 G - 166 B. However, it is not helpful to say of
a particular director that, because he was not an 'executive
director', his duties were less onerous than they would
have been if he were an executive director. Whether the
inquiry be one in relation to negligence, reckless conduct
or fraud, the legal rules are the same for all directors. In
the application of those rules to the facts one must
obviously take into account, for example, the factors
referred to in the judgment of Margo J in the Fisheries
Development case and any others which may be relevant
in judging the conduct of the director. His access to the
particular information and the justification for relying
upon the reports he receives from others, for example,
might be relevant factors to take into account, whether or
not the person is to be classified as an 'executive' or 'non-
executive' director."
15
As to a company's annual financial statements, their preparation and presentation is the responsibility of the directors (s 286
of the Act), not the auditors. In that regard the directors act on behalf of the company. The auditors function, on the other hand,
is to report to members, not on behalf of the company but independently,
concerning the reliability of the company's accounts and, consequently, to report to members on their investment.
Powertech Industries Ltd
v Mayberry and Another
1996 (2) SA 742
(W) at 746 B - H.
Having applied these criteria to the facts and circumstances before it, a Court dealing with a s 424 claim based on
alleged recklessness will have cleared the way to the question whether
reckless trading has been shown. The following approach by means
of which to answer that question was stated in
Ozinsky N O v Lloyd
and Others
1992 (3) SA 396
(C) at 414G-H:
"If a company continues to carry on business and to incur debts
16
when, in the opinion of reasonable businessmen, standing in the
shoes of the directors, there would be no reasonable prospect of
the creditors receiving payment when due, it will in general be
a proper inference that the business is being carried on
recklessly."
It seems clear enough that this is largely a paraphrase, suitably adapted to the case of recklessness, of a statement made with regard
to fraudulent trading in
In re William C Leitch Bros Ltd
[1932] 2 Ch 71
at 77 (
[1932] All ER 892
at 895). Leitch's case concerned the corresponding section of the English Companies Act of 1929 but the statement there, instead
of the words "no reasonable prospect of the creditors receiving payment when due", contained the words "no reasonable
prospect of the creditors ever receiving payment". The difference in wording in
Ozinsky
's case is justified. The word "ever" in
Leitch
's dictum was found inappropriate when the latter case was considered by the Court of Appeal in
R v Grantham
[1984] QB 675
17
([1984]
3 All ER 166)
, which concerned a prosecution before a jury
under the corresponding section of the 1948 Companies Act. In
Grantham it was pointed out that the Court in
Leitch
's case had
expressly disavowed an intention to define fraud and was not having
to direct a jury as to the meaning of the section in question. The
Court of Appeal approved, instead, the trial Judge's direction to the :.
jury in
Grantham
, according to which they would be entitled to find
fraud if the accused realised, when the debt in question there was
incurred, that there was no reason for thinking that funds would
become available to pay the debt when it became due or shortly
thereafter (at 682 (QB) and 169 j - 170 a (All ER) ).
It will be noted that a second respect in which the statement in
Leitch
was dissented from in
Grantham
was the substitution for "no reasonable prospect ... of payment" of the words "no reason for thinking that funds would
become available to pay".
18
However, the change is understandable and warranted.
Grantham
concerned fraud and however much there might have been no reasonable prospect of payment, if the accused there had had reason, subjectively,
for thinking there would be payment then he would have lacked intent. In
Ozinsky
. as here, one is concerned with an objective
criterion so that the term "no reasonable prospect" is entirely fitting.
As to the phrase "shortly thereafter" used in
Grantham.
this was omitted from the formulation in
Ozinsky
and not without
reason. There is no present need to consider the uncertainty to which
it could give rise.
The above-quoted approach suggested in
Ozinsky
is, of
course, an evidential test, not a statement of substantive law.
However, it appears to me to accord recognition to the difference
between negligence, on the one hand, and recklessness, at least in the
form of gross negligence, on the other. Participation in business
19
necessarily involves taking entrepreneurial risks but s 424 only penalises the subjection of third parties to risk where (apart from
the case of fraudulent trading) it is grossly unreasonable. If, therefore, in a given case there is some ground for thinking that
creditors will be paid but a reasonable businessman would nonetheless, because of circumstances creating a material but not high
risk of non-payment, refrain from running that risk, the director who does run that risk by incurring credit, and thus falls short
of the standard of conduct of the reasonable businessman, trades unreasonably and therefore negligently vis-a-vis creditors. That
departure from the reasonable standard could not fairly be described as gross, however, and the director concerned would not be hit
by the section. By contrast, an instance that manifestly would fall foul of the section is where the reasonable businessman would
realize that in all the circumstances payment would not be made when due. To incur credit in that situation would,
20.
as a matter of degree, be so plainly more serious a departure from the required standard than the conduct in the first example that
one has no difficulty categorising it as grossly unreasonable and therefore grossly negligent. This second example, one must emphasize,
is an extreme one and it would, in my view, impose an unduly heavy burden on a plaintiff in s 424 proceedings to require proof of
circumstances in which a reasonable businessman would assess non-payment as a virtual certainty. So, if a plaintiff were to present
evidence warranting the conclusion that when credit was incurred there was, objectively regarded, a very strong chance, falling short
of a virtual certainty, that creditors would not be paid, that case would, I think, also involve the mischief which the section was
intended to combat. It is not possible to attempt to draw the line between negligence and recklessness more exactly. Each case must
turn on its own facts and involve a value judgment on those facts.
21
From what has been said above regarding the meaning of
recklessness and the objective nature of the enquiry as to its proof, it
will be plain that a director's honest belief as to the prospects of
payment when due, while critical in a case of alleged fraudulent
trading, is not in itself the determinant of whether he was reckless.
I
It will be irrelevant if a reasonable person of business in the same circumstances would not have held that belief.
It is therefore necessary to discuss a statement by Buckley J in the unreported case of
Re White and Osmond (Parkstone) Ltd
30 June 1960 Ch D. It was quoted with approval in the 24th edition (1987) of Palmer's Company Law and from there quoted with approval
in
Ex parte De Villiers and Another NNO: In re Carbon Developments (Pty) Ltd (In Liquidation)
1993 (1) SA 493
(A) at 504 A - C. From there, in rum, it was quoted with approval by the Court a quo. The statement in question reads as follows:
22
"In my judgment, there is nothing wrong in the fact that directors incur credit at a time when, to their knowledge, the company
is not able to meet all its liabilities as they fall due. What is manifestly wrong is if directors allow a company to incur credit
at a time when the business is being carried on in such circumstances that it is clear that the company will never be able to satisfy
its creditors. However, there is nothing to say that directors who genuinely believe that the clouds will roll away and the sunshine
of prosperity will shine upon them again and disperse the fog of their depression are not entitled to incur credit to help them to
get over the bad time."
Three points need to be made about that statement. The first is that when it was relied on by counsel for the appellant in
R v Grantham
, to which I have already referred, the Court of Appeal said this of it (at 682 G - 683 A (QB) and 170 d - e (All ER) ):
"We have been fortunate enough to run to earth a transcript of the whole of that judgment. The judge eventually decided in favour
of the trader on the basis that, although he might have been guilty of insufficient
23
care and supervision of his business, he could not be said,
in the words of Maugham J., to have been guilty of real
moral blame so as to justify the judge in saying that he
ought to be liable for the debts of the company without
limit. In other words, he acquitted the trader of
dishonesty - an essential ingredient to liability. In so far
as Buckley I. was saying that it is never dishonest or
fraudulent for directors to incur credit at a time when, to
their knowledge, the company is not able to meet all its
liabilities as they fall due, we would respectfully
disagree."
Quite clearly the proposition contained in the first sentence in the statement of Buckley J was too widely stated and was rightly
rejected by the Court of Appeal. Not surprisingly,
Re White and Osmond
finds no place in the current (1991) edition of Palmer's Company Law. The second point, and again concerning the proposition in the
first sentence, is that it gives corte blanche to trading while commercially insolvent. When one remembers that a company's inability
to pay its debts as they fall due, and despite its technical solvency, may result
24.
in its liquidation at the instance of creditors this is indeed an extraordinary proposition. The third point is that even had Buckley
J's statement been good law it had to do with fraudulent trading, as did that part of the judgment in
Carbon Developments
in which Buckley J was quoted. They did not have to do with reckless trading. (In passing, the corresponding sections in the English
Companies Acts have never yet included reckless trading as a ground for the relevant statutory relief.) Consequently, the genuine
belief referred to in the third sentence would, for reasons already advanced, not avail if objective considerations nonetheless established
recklessness.
It follows, in my view, that the Court below was wrong in relying on the statement of Buckley J in assessing whether recklessness
was proved in the instant case.
Finally as regards the law, although the standard by which a director's conduct must be measured is an objective one, the
25
subjective consideration discussed in
Van As
. in the passage referred
to earlier, requires that regard should also be had to any additional
knowledge, experience or qualification that the evidence reveals that
director to possess and which is relevant to the question whether
recklessness has been proved. So if director A, being, say, a farmer,
did not know certain relevant facts which, by justified inference,
would have been within the knowledge of his co-director B by reason
of the latter's professional qualifications or experience, say, as a
chartered accountant, then A's ignorance will be blameworthy if he
ought reasonably to have sought B's advice, that is to say, not advice
qua accountant but advice qua director having additional relevant
knowledge. And B's position will be assessed, not just as a director-
businessman, but as one having that extra knowledge. The enquiry
will therefore be: what would the reasonable businessman having that
additional knowledge, or having ready access to that knowledge, have
26
done in the circumstances? That is the question that must ordinarily be answered in the case of every individual defendant against
whom recklessness is alleged under the section but where the crucial
decisions in a given case were made by unanimous decision of the
board of directors and it is those directors, or some of them, who are
the defendants, the question referred to can simply be posed in respect
of the board's decision. Naturally, as the learned trial Judge pointed
out, opinions, even among notional reasonable people, may differ, but
in the case of a unanimous board decision it is that decision which
must be subjected to the necessary objective test.
General Background
Turning now to the facts, Wolnit was a company in the Rentmeester group ("the group"). At the top of the pyramid was Rentekor
(Pty) Limited. It was the holding company of Rentmeesterbeleggings Limited ("Rentbel") which, in turn, was the majority
shareholder in Rentmeester Versekeraars Limited
27
("Rentmeester"). Rentmeester held 65% of the shares in Wolnit, the remainder being held by Finabel Limited. (Finabel's shareholders
were Western Transvaal farmers.) The other group company of relevance was Trebbob Beleggings (Pty) Limited ("Trebbob").
All its shares were held by a wholly owned subsidiary of a company that in its turn was a wholly owned subsidiary of Rentmeester.
Wolnit was a clothing manufacturer and its business premises comprised a factory and ancillary buildings at Rustenburg. Its products
comprised sports- and leisure wear, fashion wear, school
clothing, and institutional wear (contracted for on tender) for State
Departments such as the Army and Prisons. Its financial year ended on 30 June. The period crucial to the case began in mid-1985 and
ended with liquidation. Throughout that period Wolnit's board of directors included second respondent, Joachim Vermooten B Comm Hons
CA (SA), ("Vermooten"), third respondent, Dr P J Gous
28
("Gous"), fourth respondent, Mr P J Niemandt B Comm MBA, ("Niemandt") and fifth respondent, Mr S J Nel ("Nel").
, From March 1987 onward sixth respondent, Mr S J du Plooy B Comm ("Du Plooy"), seventh respondent, Mr S M Preterius B
Comm Hons CA (SA) ("Pretorius") and ninth respondent, Mr P R Botha ("Botha") were also directors. Tenth respondent,
Mr N B Read B Comm Hons CA (SA) ("Read") became an alternate director in October 1987.
(First, eighth and eleventh respondents were defendants in the Court below and formally cited on the appeal record but for various
reasons the appeal does not involve them and it is unnecessary to mention them further.)
Vermooten was throughout the period Rentbel's managing director and chairman of the Rentmeester board. He was unquestionably the leading
figure in the group and was one of two witnesses called on behalf of respondents. Gous, General Manager
29
of the National Association of Maize Producers Organisation, was one
of two Finabel representatives on the Wolnit board. Niemandt, like
Vermooten, was throughout the period a director of both Rentbel and
Rentmeester. Nel, a farmer and businessman, was the other
Finabel appointee. Du Plooy, Group Commercial Manager, was
from 1987 a director of Rentmeester and a member of Rentbel's
management committee. Preterius, Group Executive Officer, was
a member of the Rentbel management committee from 1988 onwards.
Botha was in 1987 general manager of Rentmeester and from 1988
its managing director. He was also on Rentbel's management
committee from 1988. Read, Group Financial Manager, was from
1988 a director of Rentmeester and a member of the Rentbel
management committee.
According to Vermooten's evidence Wolnit's directors acted as a board. It was not the position, therefore, that the board's
30
functions were carried out by only some directors delegated by the others. With some exceptions board meetings were held monthly and
regular items for consideration were the minutes of the previous meeting and a management report (including a financial report) usually
pertaining to the position of the business about two months earlier.
Until August 1987 Wolnit's auditors were Hoek and Wiehahn, accountants of Johannesburg. After that they were Havenga, Van Straten
and Oosthuizen, an accountancy firm at Rustenburg.
At all relevant times appellants, who were among Wolnit's
trade suppliers, were insured by Credit Guarantee Insurance
Corporation ("Credit Guarantee") against non-payment of the debts
owing to them by Wolnit. The extent of their cover was 75% to 85%
of each such debt. Wolnit's statement of affairs filed in the
liquidation reflected an excess of liabilities over assets in the sum of
31
R1 871 369 and stock in trade valued at R4 417 587. In the event, the stock realised little more than R1m and the deficit was thus
very much greater in the end. Save for its banker, Volkskas Limited, and a few preferent creditors, none of Wolnit's creditors received
any liquidation dividend.
The relevant facts
I turn now to consider the events during the crucial period. For a full understanding of those events it is necessary to have regard
to a brief history of what preceded that. Wolnit was incorporated in 1951. From 1971 to 1975 it was under judicial management. The
judicial management order was discharged as a result of a compromise between Wolnit and its creditors, included among which was the
Industrial Development Corporation of South Africa Limited ("the IDC"), In terms of the compromise the group, through Rentekor,
which had made the offer of compromise, acquired
32
a one-third shareholding in Wolnit. Up to that time Wolnit owned the shares in Rustenburgse Nywerheid-Beleggings (Pty) Limited ("RNB")
and the latter owned the factory. Wolnit also had a loan account in RNB. For convenience I shall refer to Wolnit's interest in RNB
simply as "the RNB shares". Wolnit was indebted to the IDC in the sum of approximately Rl,5m in respect of past financial
assistance. (Unless it is necessary to state amounts in full I shall, in what follows, continue to use that form of abbreviation
when referring to millions or fractions of a million.) Pursuant to the compromise the RNB shares were transferred to the IDC in return
for further financial aid and an agreement ("the first lease") was entered into between RNB as the lessor, Wolnit as the
lessee, and the IDC which was styled "the option grantor". The agreement, entered into in January 1976, was to take effect
when Wolnit was discharged from judicial management. In terms of the first lease, which was for a period of nine years and
33
eleven months, the rental was calculated as a percentage of the value
of each of the factory's land, buildings and services respectively, the
total value being R600 000. Finabel or another company in the group
would provide security for payment of the rental. In addition, the
IDC granted Wolnit the option to buy the RNB shares at a price based
on the value of R600 000 plus such expenses as RNB and the IDC
had incurred in the meantime in respect of the factory. If Wolnit did
not exercise the option during the currency of the first lease it was
obliged to do so on expiry. Although financial assistance by the IDC
was not provided for in the first lease Vermooten testified that it was
an "off balance sheet" financing transaction. In other words, one may
add, what was made to look like the sale and repurchase of the RNB
shares was in reality a loan by the IDC which Wolnit had to repay
about ten years later.
According to Vermooten this loan was essential to enable
34
Wolnit to continue in business. Thereafter everything passed without relevant incident until the end of the ten years approached.
A net profit before tax in 1984 of R114 161 changed to a net loss in 1985 of R199 178. At its meeting in May 1985, the Wolnit board
decided that a rationalisation report jointly compiled by the Wolnit management and Rand Merchant Bank would be presented to the
IDC. The essentials were that Wolnit would buy the RNB shares for approximately R385 000 and then offer them to the IDC as security
for a further loan to finance certain developments, purchases and operating capital. The aim was, by rational use of Wolnit's assets
and optimum employment of IDC financing, to improve the relationship between own and borrowed funds, to improve the creditor position
and to replace bank overdraft facilities by own reserves. The IDC response was expected by the end of August 1985 and, in the interim,
facilities at Volkskas had to be extended. At the board meeting in
35
July 1985, management having reported negatively on stock, work in progress and manufacturing and transport costs, Nel proposed, and
it was generally accepted, that if Wolnit did not perform as it should in the 1986 year the board would have to decide on the future
of the company.
Prior to the October 1985 meeting the IDC had responded to the rationalisation report by offering R2,1 m if shareholders contributed
Rl,5m. After shareholders had rejected that proposal the IDC indicated its preparedness to advance R 1,55m (from which would be deducted
an "option" amount of R384 000 - presumably the same amount, approximately, as Wolnit had contemplated paying for the "repurchase"
of the RNB shares at the end of the first lease) if shareholders contributed R1,05m. One of the conditions set by the IDC was that
at the end of a new 9 year and 11 months lease period the RNB shares would have to be repurchased for R2,15m.
36
At the October meeting the IDC's revised offer was approved, as also its conditions, as the basis for a new lease. The board noted
that the shareholders' contribution would comprise R750 000 in cash and R300 000 raised by the sale of certain residential properties
owned by Wolnit.
By January 1986 a new agreement ("the second lease") had replaced the first lease. It recorded i a that the repurchase price
payable by Wolnit for the RNB shares under the option provision of the first lease was R384 000 but that the IDC now purchased that
option for R1,55m, from which would be deducted the sum of R384 000. The second lease went on to provide that the IDC granted Wolnit
what was called a second option, namely, to repurchase the RNB shares. This option Wolnit was obliged to exercise at the expiry of
the second lease and the price payable would be R2,15m. In evidence, Vermooten, who was involved in negotiations leading
37
up to the second lease, said that the R 1,55 m was in reality a loan and that the rental payable under the second lease, as well as
the additional R600 000 payable at its conclusion (i e the difference between R 1,55m and R2,15m) really constituted interest. The
contract was drawn the way it was to suit the IDC so that the latter could reflect the R600 000 as a capital gain and because it
did not want to be seen to be in competition with the banks.
In due course the IDC deducted not R384 000 but R387 875, calling it an "option price".
Wolnit's financial statements for the 1986 financial year reflected the sum of R 1,55m in the income statement as an extraordinary
profit and the sum of R329 694 (i e nine-tenths of R387 875) was shown in the balance sheet as an asset designated pre-paid rental.
The relevant notes to these items read as follows:
" 8. Die maatskappy huur sy fabrieks-geboue vanaf Rustenburgse Nywer-
38
heidsbeleggings (Eiendoms) Beperk. Wolnit het gedurende (lie jaar sy reg/opsie, om die aan-dele van Rustenburg Nywerheids-beleggings
te koop vir 'n termyn van tien jaar tot 31 Desember 1995 aan die NOK vir R1 550 000 verkoop. Daar is R387 875 minder gerealiseer
wat geag word voor-uitbetaalde huur te wees wat oor die oorblywende termyn van die opsie in gelyke paaiemente teen bedryfsinkomste
soos volg ver-reken word.
Totale huur vooruitbetaal 387 875
Min: Bedrag gedurende die
jaar geamortiseer
(19 394)
Bedrag wat in volgende jaar
teen bedryfsinkomste ver-
reken word, oorgeplaas na
bedryfsbates
(38 787)
329 694
17. BUITENGEWONE WINS
17.1 Die matskappy het 'n opsie om die aandelekapitaal en leningsrekening in Rustenburg Nywerheids Beleggings (Eien-doms) Beperk wat
die grond
39
en geboue besit waarop besigheid
bedryf word te koop, verkoop teen
'n wins. (Sien aantekening 8) 1 550 000
17.2 Daar is geen belasting betaal-baar nie aangesien die wins van kapitale aard is."
In a further note the sum of R2,15m payable at the end of the second lease - in other words the loan capital plus interest - was shown
as a contingent liability instead of a certain liability. (I shall, for convenience, refer to these items and the relevant notes
as "the 1986 entries and notes".)
The financial statements were approved without discussion or comment at the board meeting in September 1986 at which i a Vermooten,
Gous, Niemandt and Nel were present. (Similar entries and notes were repeated in the 1987 financial statements which were approved
at the board meeting in August 1987. Among those present were Du Plooy, Pretorius and Botha.)
40
At a meeting of the board of Rentmeester on 15 August 1986, that is to say, before the 1986 Wolnit financial statements were approved,
it was noted that Wolnit, which had by then become a subsidiary of Rentmeester (with the Rentmeester - Finabel shareholding in the
proportion referred to earlier), had traded at a loss for the year of R926 150 but that an extraordinary profit of R1 162 128 (the
sum actually received from the IDC pursuant to the second lease) had been made. (The net loss shown in the approved statements was
in fact R948 051.) The explanation for the loss given in the directors' report attached to the financial statements was this:
"Die verlies word toegeskryf aan die swak ekonomiese toestande, die onderkapitalisasie van die bedryf en sekere ondoeltreffendhede
in die finansiele beheerstelsels. Finansiele herstrukturering het reeds plaasgevind gedurende die tweede helfte van die boekjaar
en die beheerstelsels word tans bale indringend ondersoek en aangepas."
41
As a result of the 1986 entries a positive shareholders' interest was reflected in the annual financial statements throughout the
crucial period when, in each financial year after 1986 it should have been a substantially negative figure.
A fundamental problem was that Wolnit was undercapitalised and at all times material to this case suffered from severe cash flow problems.
Symptomatic of the onset of Wolnit's financial ills was the change in its fortunes in the 1985 financial year and the huge increase
in nett loss in the 1986 year (from R199 178 in 1985 to R948 051). Financial aid from the group became essential. Rentmeester as
major shareholder, being a registered insurer, could not lawfully advance money to Wolnit itself but did so through Trebbob, which
began lending to Wolnit in November 1986. That the situation was cause for major concern is illustrated by what auditors Hoek and
Wiehahn said in a letter to Wolnit dated 27 February 1987.
42
Enclosing draft financial statements for the six months ending on 31 December 1986, they said i a the following:
"Ons wil die volgende aangeleenthede onder u aandag
bring:
a) Wolnit Beperk het die afgelope aantal jare verliese gehad. Die solvensie van die maat-skappy is grootliks te danke aan die wins
wat gerealiseer is met (lie verkoop van die opsie om aandele van Rustenburgse Nywerheidsbeleggings (Eiendoms) Beperk te koop aan
die Nywerheid-Ontwikkelingskorporasie van SA Beperk gedurende die jaar geeindig 30 Junie 1986. Die maatskappy het as gevolg van die
bedryfsverliese kontantvloei probleme ondervind wat die vraag laat onstaan het of die maatskappy as 'n lopende saak kan voortgaan.
Die gevolg van die bogenoemde probleem plaas ons in die situasie dat gekyk moet word na die lopende saak beginsel, met die uitreiking
van ons ouditverslag. Kan u vir ons 'n volledige skriftelike uiteensetting van die stappe wat geneem is en nog geneem gaan word met
hul beplande uitwerking op die winsgewendheid van Wolnit Beperk verskaf.
43
Ons sal dit waardeer indien u skriftelik op die voorafgaande sal
reageer."
On 18 March 1987, at the Wolnit board meeting following upon that letter, and after attention had been drawn to the contents of the
letter, it was noted that Trebbob had by that time lent Wolnit about R700 000 (in actual fact the figure was R800 000), which loan
would have to be repaid by 30 June 1987. It was said that if Finabel wished to lend money to Wolnit it could do so at the same interest
rate payable to Trebbob. Cash flow was discussed and the importance of debt collection in this regard was stressed. As regards Wolnit's
product range, it was suggested that the traditional winter ranges be supplemented by summer ranges and that the extent of supply
be increased to include large chain stores. The only other comment of note in the minutes of that meeting was that Mr W Esterhuizen
(the recently appointed managing director) undertook to react, not to Hoek
44
and Wiehahn's letter, but to the "ouditeurstate". In evidence, Vermooten said that Esterhuizen's proposed response was in
fact intended to relate to the letter, which the witness conceded was indeed an important matter. However, nothing in the record
shows either further discussion concerning this crucial point in the auditors' letter or that it was answered. Five months later,
at the same meeting at which the 1987 accounts were approved, Hoek and Wiehahn were replaced because, said Vermooten, it was considered
more practical and convenient to employ auditors in Rustenburg.
The budget for 1988 contained no reference to summer ranges as such but it was indicated that the Hang Ten range, which Wolnit produced
under franchise, would be expanded and improved which would greatly improve the company's image. A nett loss was budgeted for, part
of the reason for which was attributable to uneconomic State tenders from previous years to which Wolnit was
45
inextricably bound.
In the 1987 year the nett loss rose to R1,2m (1986 R948 051). The directors' report accompanying the financial statements contained
an explanation for the loss which was word for word the same as the explanation they gave for the 1986 loss. At the meeting at which
the statements were approved (referred to earlier) the board suggested that thought be given to Wolnit's providing security for the
Trebbob loan. This had not been repaid by 30 June and stood at R985 755 as at that date. (With interest included it came to R1,12m.)
In the management report to the board for the period to 30 September 1987 the cash flow position, it was said, "bly haglik".
The shortage for October was expected to be R756 623 and "ongeloofllke druk" was being exerted by creditors. At the board
meeting of November 1987 there was a report on a tender commitment
46
to sell socks at R1,35 per pair when the current price was R4,37. In addition, four major creditors with claims totalling some R608
000 were insisting on payment.
The management report for the board meeting in February 1988 stated that audited statements for the first six months of the 1988 financial
year showed a loss of R762 925. Remembering that the cash injection effected pursuant to the second lease comprised a loan of R1,1m
received from the IDC and capital from shareholders in the sum of R600 000 (R750 000 was contemplated but the 1986 balance sheet
shows the lower figure as the actual sum invested), it is clear that by December 1987 this had all been eaten away by the 1987 loss
of Rl,2m and the loss of R762 925 for the first half of the 1988 year. In this report the remark was repeated that the cash flow
position was critical. In the minutes of that meeting it was recorded that the cost of sales had increased considerably due to tender
losses, sales of old
47
stock at very low prices and uncertainty about stock values. Efforts were made early in 1988 to extricate Wolnit from its commitments
under the State tenders but to no avail.
For the purposes of a Rentbel board meeting on 29 March 1988 a discussion paper entitled "Wolnit Ltd: Future Prospects and Alternatives"
was prepared. By this time Trebbob had lent Wolnit R2,2m and Rentbel had issued guarantees of R100 000 to the Frame Group for materials
supplied to Wolnit and R400 000 to Rand Merchant Bank in respect of banker's acceptances. The paper referred to the uncertainty of
stock valuations, stressed the need for profitability and improved cashflow and detailed various problems concerning Wolnit's product
mix. With particular reference to stock valuations, it was reported that production stock that was readily usable accounted for only
50% of the stock. The remainder was obsolete or redundant stock, excess stock, slow moving stock or stock having a
48
restricted use. The alternatives offered in the paper were to retain the operation as it was, to scale it down, or to liquidate the
company. Among the disadvantages inherent in carrying on were listed the following:
" - Will have to change product mix and exploit new markets unknown to Wolnit May require cash injection should sufficient stock
not be realized in the short term Cash realized from stock will be applied to reduce unsecured debts (trade creditors) and not secured
debts . . ."
A disadvantage mentioned with regard to scaling down was
" - Profitable activities cannot be positively identified."
And disadvantages to liquidation included
" - Rentmeester Insurers will probably have to write off its total investment in Wolnit, including loan accounts totalling R3,3m.
49
Rentbel group may lose credibility if we allow bankers to lose on Wolnit."
A letter from Volkskas was annexed to the paper in which Wolnit's overdraft facilities were extended to R1m subject i a to security
in the form of a cession of book debts and a general notarial bond for R500 000 over all movables. (The latter form of security I
shall refer to simply as a bond.)
Vermooten said in evidence that this meeting was prompted by the cash flow crisis. He did not comment upon the various points of disadvantage
quoted above and simply said that the decision taken by Rentbel was to continue supporting Wolnit by way of Rentmeester issuing letters
of comfort and by Trebbob paying creditors direct.
According to the minutes of that meeting Botha expressed his objection to continuing to put money into Wolnit. It is not
50
without some small irony that the lot befell him in due course to write the letters of comfort. They read as follows:
"After consideration and due consideration of your outstanding account in Wolnit's books, we would suggest that the present overdue
amounts requested for payment as at
31/03/88
be settled under the following terms and conditions:
1.
Amount under consideration R1 237-00 as per Wolnit accounts supplied to Rentmeester Versekeraars Beperk.
2.
Payment will be made by Rentmeester Versekeraars Beperk.
3.
Equal payments over 3 months.
4.
First payment within 7 days after acceptance.
5.
All outstanding Wolnit orders be supplied
timeously.
In order for you to accept the previous proposals, we, Rentmeester Versekeraars Beperk, the holding company, are prepared to issue
the following Letter of Comfort:
I, the undersigned, P R BOTHA, in my capacity as Managing Director of Rentmeester Versekeraars Beperk, and properly authorised thereto,
do hereby undertake and
51
confirm the following on behalf of Rentmeester Versekeraars Beperk:
That Rentmeester Versekeraars Beperk is conscious of and will be kept informed of all credit facilities that are and will be made
available by yourselves to Wolnit;
That it is Rentmeester Versekeraars Beperk's group policy to enable its subsidiary companies to meet their commitments and obligations;
That Rentmeester Versekeraars Beperk will do everything possible within its power that (sic) Wolnit will be managed according to sound
management principles which will enable Wolnit to meet its various obligations.
Please do not hesitate to contact the following persons if there are any other queries regarding the above.
PR BOTHA
N READ
J DU PLOOY "
On 8 April 1988 Mr B Power, Credit Guarantee's senior manager in charge of reinsurance, who also dealt with the insurance of Wolnit's
trade creditors, wrote to Rentmeester after coming to hear of the letters of comfort from creditors who had asked Power to advise
52
led to the issue of die letter of comfort and requested information concerning Wolnit's financial position. In the latter regard he
pointed out that copies of the 1987 financial statements had been promised but not yet delivered. Without those statements and details
concerning Wolnit's latest financial status, Credit Guarantee was unable, he said, to consider the payment conditions proposed in
the letter of comfort. Power also asked whether Rentmeester was, in effect, guaranteeing payment of Wolnit's debts and intimated
that insurance cover on Wolnit was suspended in the interim.
Subsequently Power met with Rentmeester and Rentbel representatives and later recorded the gist of their discussions in a memorandum
for his office file dated 19 April 1988. This document mentions receipt of Wolnit's 1987 financial statements and December 1987 interim
accounts. Power noted that the financial statements presented a very bleak picture and that the 1988 year would probably
53
be worse. He recorded having asked about the holding company's giving security and was told that Rentmeester, being an insurance company,
was precluded by legislation from giving guarantees or lending money but that financial assistance had been given by Trebbob. Pending
the satisfactory outcome of discussions with Rentbel, cover remained suspended. What he sought from Rentbel was subordination of
the Trebbob loan account and some form of tangible security from the holding company. Later he; decided to forego security and rather
limit Credit Guarantee's exposure to Rl,5m. He also noted in the memorandum having been told that Rentmeester had given serious consideration
to allowing Wolnit to go into liquidation.
In evidence, Power confirmed the contents of the memorandum and said that the meeting he had had was with Botha and Read. They told
him the letter of comfort was not intended as a
54
guarantee. Nevertheless he reinstated Wolnit's cover on the strength of the letter of comfort and in the belief that with the holding
company's support Wolnit was viable, particularly with the high level of expertise of its "backers". Power testified that
he and others at Credit Guarantee believed that it was absolutely necessary for them to know what the true position was at Wolnit
and for this purpose they were furnished with each year's financial statements and also unaudited management accounts. Had he known
that Wolnit was unable to pay its debts he would have withdrawn cover.
At the Wolnit meeting on 12 April 1988 it was announced that Rentmeester, through Trebbob, would make a further R1,2m available to
Wolnit in exchange for stock of a like value which Wolnit would then sell on Trebbob's behalf and, with the proceeds, repay the loan
debt. This was subsequently referred to as the del credere agency. It was pointed out in discussion that the high stock holdings
55
were the cause of the negative liquidity situation and that action was needed to restore cash flow to a more acceptable level. Wolnit's
future was then discussed, the two options mentioned being liquidation and continuing the business but with closure of the sock-knitting
division. In the light of Rentmeester's support the second option was decided on.
At the Wolnit meeting on 18 May 1988 Combrink, the company's secretary, informed the board that cash flow was improving and repayments
to Trebbob would commence from July.
Despite existing indications, already mentioned, that stock was overvalued, and possibly by as much as 50%, a stocktaking on 27 May
1988 resulted in an upward valuation of finished stock, the increase being R413 575.
In the budget for the 1989 financial year management announced that Wolnit would, as a totally new venture, enter the
56
fashion market. It was conceded that no predictions could be made about likely market share but what was considered to be a valuable
asset was the Hang Ten range which was very popular. In this entirely different sphere, experience and innovation would be decisive.
As a sombre background to this bright new idea the following negative factors appeared in a strengths and weaknesses analysis, namely,
inadequate work flow as a result of poor factory layout; the adverse effect of poor liquidity on trading activities; an excess holding
of redundant stock; faulty production and planning systems; two uncompleted State tenders; supplier resistance as a result of negative
cashflow and tardy payment; an unknown market; and a poor image in the market place.
The climate in which this bold step had to be considered must needs have been chilled by the 1988 financial statements. In reporting
to members, the new auditors, Havenga, Van Straten and
57
Oosthuizen, expressed the qualification that in their view the future survival of the company was dependent on the continuing support
of the holding company. In their report the directors disclosed a trading loss of Rl,lm
(1987 Rl,2m)
and proffered nothing more than the identical explanation, by rote, as in the two preceding years.
In the meanwhile, at its July meeting, the Wolnit board had welcomed Mr W Hollis, the newly appointed general manager.
Earlier optimism that regular repayments of Trebbob's loan would begin from July proved to have been ill-founded. It was clear by
early August 1988 that the del credere agency was not providing any answer. By letter dated 9 August 1988 Read addressed the directors
of Finabel as follows:
"By vorige aangeleenthede was die Direksie van Wolnit ingelig omtrent die betaling van sekere krediteure se uitstaande saldo's
deur Trebbob (Edms) Bpk, 'n filiaal van
58
Rentmeester Versekeraars Beperk, (sien Bylaag 'A').
As sekuriteit daarvoor sou Trebbob 'n del credere agentskap-ooreenkoms aangaan met Wolnit, waar sekere van die klaarvoorraad geidentifiseer
word en dan hierdie voorraad aan Trebbob verkoop word vir die bedrag van die kontant voorgeskiet.
Wolnit sou dan namens Trebbob die voorraad verkoop en die geld wat daaruit realiseer aan Trebbob oorbetaal.
Die posisie tans is dat Wolnit, weens kontant probleme, nie in staat gaan wees om die oorbetalings te kan doen nie wat veroorsaak
dat dit net weer 'n lening word waarvoor geen sekuriteit beskikbaar is nie.
Om bogenoemde probleem te oorkom en Rentmeester Versekeraars Beperk se optrede te regverdig by die Registrateur van Versekeringsinstellings,
word die volgende beoog:
Wolnit moet vir Volkskas Beperk 'n Notariele verband gee vir R500 000 ter ondersteuning van die oortrokke fasiliteite.
Daar word met Volkskas onderhandel dat saam met hulle, Trebbob ook 'n Notariele verband vir R1 128 000
59
registreer wat 2de sal rangeer na hulle verband.
Bogemelde optrede sal beteken dat Rentmeester Versekeraars Beperk se lening wat oor die periode April -September 1988 gegee is, 'n
mate van sekuriteit sal geniet.
Ons hoop dat u bogenoemde in orde sal vind."
At the August board meeting Read obtained the board's
approval for the registration of two bonds, the first in favour of
Volkskas for R500 000 (as had been required by the bank) and the
second in favour of Trebbob for Rl,128m. By this stage Trebbob had
lent Wolnit just over R2,2m in cash and had made payments to
Wolnit's creditors in a total sum of R 1,19m. It had received but two
repayments (R14 245 in June 1987 and R300 000 in June 1988) and
the interest on the outstanding loan amount was now about R450 000.
Reverting to the Wolnit board meeting of 16 August 1988,
the minutes do not contain any reference to the 1988 financial
60
statements. Nor do any other minutes. In past years the financial statements were dealt with and confirmed at the August meeting.
To judge by the dates on the auditors' and directors' reports the 1988 accounts were obviously prepared for the meeting on 16 August
and Mr P W G Oosthuizen, the auditor concerned, said as much in evidence. Mr J J Wessels, a practising chartered accountant called
as an expert witness on behalf of respondents, testified that he was briefed with the information that the statements were indeed
confirmed at that meeting.
The auditors' qualification of the financial statements was what was called in evidence, in auditing parlance, a "going concern"
qualification. It conveyed that Wolnit was not a going concern without holding company support. According to Mr H E Wainer, a practising
chartered accountant called as an expert witness on behalf of appellants, the expression of this qualification by a company's
61
auditor is a matter of crucial importance and, in effect, sounds the warning that serious consideration must be given to the question
whether the company should continue to carry on business. Wessels confirmed this. Vermooten seemed reluctant under cross-examination
to agree but eventually did so. At all events he readily conceded that Wolnit's existence was entirely dependent on support by the
holding company. Vermooten said, however, that the copy of the 1988 financial statements given to him did not contain the qualification.
As against that, the copy Power received from Wolnit did. So did the copy Wainer obtained from the liquidation file. The evidence
does not reveal or refer to any other incomplete copies. In all the circumstances Vermooten's evidence on this point seems curious
and inherently improbable. That impression is heightened by the absence of any reference to these accounts at the meeting in question
and by a revealing statement at another point in his evidence,
62
to which I shall refer in due course. What one does find in the minutes that was important to Wolnit's future is the following. Botha
opined that the interest burden was killing the company. Hollis agreed and repeated an earlier suggestion that the Trebbob loan be
capitalised. Gous thereupon declared that he (meaning Finabel) would only invest capital if a fair return were obtainable. Testifying
in relation to this meeting, Vermooten admitted that the clear implication was that Finabel refused to commit any more capital to
Wolnit. (It had earlier advanced about R50 000 which was credited to its loan account.) This effectively blocked Rentmeester's itself
putting in any more money because, if it did so, the shareholding ratio between it and Finabel would be disturbed and that, said
Vermooten, "was 'n baie teer punt".
As it happened, after only one more direct payment to creditors (R9 007 in September 1988) the Rentmeester-Trebbob
63
assistance to Wolnit ceased altogether.
The other matter of importance referred to in the August
minutes was the decision to pass a bond in favour of Trebbob. In that
regard Vermooten's evidence was as follows:
!
"Die probleem was dat toe daardie geld moes terugbetaal gewees het aan Trebbob kon Wolnit dit nie doen nie en was dit duidelik
dat ons nie die geld sal terugkry nie. Derhalwe het ons eintlik gese dat ons sal 'n langer termyn lening dan gee as daar 'n ander
vorm van sekuriteit verskaf kan word wat toe in die vorm van 'n tweede verband, wat na Volkskas sal rangeer sou gewees het."
The minute dealing with the bond is quite full. There is no reference to any discussion on either a long term loan or the fact that
Trebbob would not get its money back. The expression "ons sal nie ons geld terugkry nie" as supposedly denoting a long
term loan according to Vermooten, is an aspect that also arises in respect of a later meeting, to which I shall refer in due course.
Asked whether the bond would
64
only assist in the event of liquidation, Vermooten testified that liquidation was not in the directors' minds at that stage. He said
the bond was required because the Rentmeester members of Wolnit's board had promised the holding company that security would be obtained.
I interpose here to say that if such promise was necessary it would seem that already at this stage the group had in mind some protection
in the event of liquidation.
I have dwelt somewhat on the situation prevailing in August 1988 because the thrust of Wainer's expert opinion was that there was
no reasonable justification for Wolnit's having continued in business beyond that time.
At a meeting of the Rentmeester board on 5 October 1988 Vermooten reported that serious efforts were being made to try to sell Wolnit
but that there was approximately R4m worth of stock "wat moeilik gerealiseer gaan word".
On 8 November Power addressed a letter to Read. By
65
this time Power had been furnished, in accordance with past practice, with Wolnit's 1988 financial statements. He wrote:
"I refer to our recent telephone discussion and as mentioned to you our exposure on Wolnit presently stands at
R1.6 million. In view of the results reflected in the management accounts, we believe our exposure to be on the high side.
Whilst we appreciate that projections anticipate a reversal of the loss trend, the present balance sheet structure offers limited
cover for creditors.
As discussed we note that the Company's main support is by way of the loan of R3.1 million by Trebbob Beleggings (Edms) Bpk. In view
of our involvement through guarantees given to Wolnit's creditors, may we suggest that consideration be given to capitalizing the
loan account, or at least subordinate the loan account.
Would you kindly let us have your response to the above suggestion."
Read responded as follows:
"With regard to your letter dated 8 November 1988 I would like to respond as follows:
66
We have been considering the capitalization of the whole or portion of the
R3 million loan account of Trebbob Beleggings (Edms) Bpk for some time.
This capitalization is, however, complicated to a certain extent due to the minority shareholding in the company i e in Wolnit Ltd.
We are at present busy evaluating the possibilities and will keep you informed of the developments."
No answer ever was forthcoming from Read, or anyone else on Wolnit's behalf, concerning subordination. Partial capitalisation eventually
occurred (about R1,1m of the Trebbob loan debt) and, instead of subordination, the Trebbob bond was registered.
That was in December 1988. Power only learnt of the bond after liquidation. He testified that having regard to Wolnit's history as
a debtor it was vitally important for him to have been told of the bond.
In his view it went "completely against the grain of the letter of comfort". Had he been told that it was registered or
in the process of
67
registration he would have withdrawn cover from the insured creditors. On 23 November 1988, at a Rentmeester board meeting attended
i a by Vermooten and four others who were also Wolnit directors, it was reported that several parties were interested in buying Wolnit
but that nothing had yet materialised. There was also talk of a management buy-out by Hollis. In the ensuing discussion on the sale
of Wolnit or its possible amalgamation with another company, the suspicion was aired that a low offer from one of the interested
parties would suit Hollis's bid. The meeting was unanimous that Hollis should not meet with the other party without a Rentbel representative
being present. In addition, so it was felt, attention should be given to strengthening the Wolnit management committee because it
was too much in Hollis's hands. The following entry then appears in the minutes:
68
"Die vergadering is dit redelik eens dat die maatskappy nie sy geld gaan terugkry al sou Wolnit winsgewend raak."
The phrase "nie sy geld gaan terugkry" acquired a significance already alluded to and to which I shall revert.
On 29 November 1988 the Wolnit board met for the first time since its August meeting. The directors had before them the management
report for August 1988. It described results as disappointing. The report shows that the bank account was overdrawn close to the
R1m limit, that the business was basically illiquid and that stocks would have to be sold at cut prices to maintain cash flow even
though that would not help profitability. Cash flow was reportedly in a critical state, requiring daily monitoring, and the 1988
financial statements were to be presented to Credit Guarantee. (This had happened by the time of the meeting.) To help cash flow,
creditors had granted a concession, effective for three months, whereby credit
69
terms were extended
Revised business and financial plans for 1989 were also before the meeting. Part of the former concerned fashion clothing in which
sector it was proposed to offer two types of clothing: "knitted outerwear" ("a new area for Wolnit") and "outerwear"
(a market as yet little penetrated but "with great potential"). Samples of the new ranges were shown to the meeting. The
documentation indicated that the move into fashion wear would entail higher costs, greater stocks and more expensive stocks.
The minutes of the meeting record that Hollis gave the board a general review of the preceding month's results. No discussion appears
to have ensued regarding the perennial liquidity problem. Botha noted from the financial statements in the August report that there
was a R1,2m shortage and said this indicated that there would be no repayment to Trebbob and that interest had
70
therefore not been provided for adequately.
In evidence Vermooten explained that aspect as follows:
"Wel ek dink mnr Botha het net kommentaar gemaak oor die bedrae in die balansstaat en ek dink dit dui alreeds daarop dat ons
die siening gehad het dat daardie geld van 'n permanente aard gaan raak ... dit gaan nie terugbetaal word nie. Die maatskappy gaan
met sy beplanning om hoer tipe van en duurder tipe van produkte te produseer nie oor die kontant vermoe beskik om ons te kan terugbetaal
nie ... Dit verander dit net na 'n meer permanente aard ... 'n vaste tipe van versekerde vaste belegging."
Concerning the new clothing ranges, Vermooten confirmed that they would involve higher and more expensive production and stock levels.
At a Rentmeester board meeting on 13 February 1989 it was reported that a buy-out offer had been mooted by management but that the
offerors expected unrealistic discounts. (Hollis had in fact
71
offered to buy the stock at a 70% discount. I shall refer to that again below.) It was also pointed out that the interest payable
to Trebbob was possibly not recoverable and suitable provision might have to be made against that eventuality.
The first Wolnit board meeting of 1989 was held on 17 February. The management reports for November and December 1988 were presented.
The November report referred to cash flow as tight and forecast that the overdraft limit would be exceeded by reason of the December
wages and salaries bill. Extra facilities for two weeks had been arranged. However, the cash flow position was expected to improve
in December. The annexed financial report reflected a negative shareholders' interest of R216 856 and a loss to date of R368 145.
The December report revealed no cash flow improvement. It was tight and remained a problem but the company, it was said,
72
could "survive" the situation until April 1989 by when an improvement was expected. (As to that, Vermooten testified that
any additional cash needs had been provided for by guarantees in respect of the overdraft. I shall deal with the matter of the guarantees
in due course. ) Hollis's assessment of the first six months of the 1989 financial year was that it had been "hard and difficult".
However, the company had a full order book until the end of March and probably April 1989 at higher prices, a leaner staff and a
much lower cost base. "The next six months", his report continued "will determine the future of the company and management
is confident that we can turn the tide and move into a new era". Vermooten called the full order book "baie bemoedigend".
However, the financial report showed a negative shareholders' interest of R571 441 and a loss to date of
R727 730.
The minutes of this meeting record that Combrink
73
informed the board of management's complete confidence that the projected loss of only R140 000 at the close of the financial year
could be achieved.
In a memorandum dated 23 February 1989 which Vermooten wrote to Rentbel directors concerning the possible sale of Wolnit, he referred
to the management buy-out offer (from Hollis and Combrink) as involving i a a 70% discount on stock. One imagines this should have
been interpreted as a sobering indicator to the group's directors that Wolnit's stock was overvalued and that future sales ex-stock
would necessarily entail losses. In evidence, Vermooten claimed to have exchanged sharp words with Hollis because the latter had
constantly reassured the Wolnit board regarding the value of the stock and here he was trying to buy it cheaply. In the memorandum,
however, Vermooten reported to Rentbel:
74
"On the question of their offer, Mr H Combrink
responded that it was based on the approach that an
'independent buyer would have and that they are still
very optimistic about the future of the company and
believe that the turnaround is imminent. . . Mr B Hollis
still would like a price on which he could put a package
together."
If Vermooten really had thought that the management offer was absurdly low, it would have been appropriate to say so in the memorandum
but such comment is absent. There is here an implied acceptance that the stock was indeed overvalued.
At the board meeting on 20 March 1989 Wolnit directors had before them the January management report. It contained the following positive
comments by Hollis:
"Management still remains confident that the (cash flow)
position will change even under difficult circumstances";
75
"The results of January were very encouraging ... we managed to make a profit before interest. This does show that with better
production and higher prices we can become profitable"; and
"The future of the company looks a lot better but Wolnit is far from being an efficient company".
As against those remarks, he reported that a debt collection of more than was budgeted for had helped to keep Wolnit "afloat";
that cash flow remained critical; that only through some "good friends in the business" had Wolnit kept abreast and that
the ensuing two months would determine the future of the business; that some larger suppliers had withheld deliveries until settlement
of payment terms and this would affect the company's ability to deliver orders; and that Credit Guarantee had declined any further
exposure and management had had continually to shift cover from one supplier to another. He ended by warning that it would take another
six to twelve months before staff
76
was trained and new systems effective. The annexed financial report disclosed a negative shareholders' interest of R576 654 and a
loss to date of R739 943.
The March minutes contain the following important passage:
"Mnr Vermooten verneem na die huidige kontantvloeie. Mnr Hollis meld dat dit kritiek is en dat daar huidiglik na 'n tekort van
ongeveer R300 000 gekyk kan word.
Mnr Hollis vermeld voorts dat daar ook probleme bestaan t o v die plasing van krediet versekering deur Credit Guarantee, wat 'n verdere
negatiewe invloed op die kontantvloei het. Mnr Read vermeld dat Credit Guarantee ook met hom geskakel het en hom versoek het om tussentydse
finansiele jaarstate voor te le. Hy vermeld verder dat die ouditeure van die maatskappy egter nie bereid is om in die huidige omstandighede
verslag sonder kwalifikasie voor te l
nie. Mnr Vermooten versoek die Rentbel en Rentmeester lede teenwoordig op die vergadering om bymekaar te kom en die kapitalisasie
van die leningsrekening te bespreek ten
77
einde te verseker dat die state kan uitkom."
Asked in evidence whether this situation did not call for Wolnifs liquidation, Vermooten replied in the negative. He said the directors
all felt that Wolnit was in the process of improving, that it would become an exceptional company and a very profitable business.
Referring to Hollis's report that it could take up to a year for production to become efficient and effective, Vermooten said that
at the meeting all concerned were very positive about Wolnit's future and it seemed that Hollis had control over the organisation.
Vermooten added that Hollis knew what products to introduce and how to market them and that he had brought down the cost per unit.
It was, therefore, "'n baie goeie prentjie". As regards the auditor's foreshadowed qualification, Vermooten said this occasioned
no urgency.
The Rentmeester board met on 22 March 1989. It was
78
again noted that Wolnit was not paying Trebbob interest and that such interest was being capitalised monthly. As regards capitalisation
of the Trebbob loan, Pretorius warned that this would have to be done before 30 June otherwise Wolnit would, on its own financial
statements, be insolvent. As regards Wolnit's overdraft, Read undertook to arrange extra facilities of R300 000 until 5 May. The
minutes then read, with conspicuous understatement: "Dit wil voorkom of Wolnit 'n kontanttekort ondervind".
The Wolnit board met again on 20 April. The February management report stated that that month's results were encouraging as the gross
profit level had improved up to 30% and there was a profit before interest of R21 234. It also stated, however, that cash flow remained
critical and creditors had increased. A policy had been adopted of paying only those who were pressing. Also, stocks had increased.
And the annexed monthly financial report revealed that
79
shareholders' interest was a negative R680 918 and the loss to date R808 457.
The March management report was also before the meeting. The month's results were said to be "very encouraging" due to an
increase in gross profit and a nett profit after interest. In addition, production was improving daily. In evidence, Vermooten said
that the gross profit increase was a very promising tendency, being very much higher than usual, that the signs were positive and
that the company's success was a definite probability. As against that one must read the rest of the March report and the minutes
of this particular meeting. The report referred to cash flow as critical. R600 000 was needed to carry the company through the next
three months. This position was due to stock increases and lower than budgeted sales and debt collection. The combined effect of
inflation, increases in raw material prices, costs, labour and salaries made it
80
increasingly difficult for the company, which had to carry raw
material, work "in process" and finished material, to maintain sound cash flow without making reasonable profits. In addition,
stock reduction would only help in the short term; the board had to address the long term financing of the company with the ever
increasing inflation rate in mind. An immense amount of work was necessary to make Wolnit an organised and efficient company.
The minutes show that in discussion concerning the various problems besetting the business Vermooten, in contrast with his evidence,
told the meeting he would have to satisfy Rentbel that further support for Wolnit was needed and pointed out that as a result of
wrong raw material orders, production far exceeding sales, increases in stock values and the resultant illiquidity of the company,
he needed much stronger motivation for his case than the management reports provided. Read reported that temporary overdraft facilities
in the
81
amount of R300 000 had been arranged (in addition to the ordinary limit of R941 000) but that even the extended limit had been exceeded
and the account could soon be Rl,55m overdrawn. Further, it was noted that, there being a shortage of about R950 000, the company
appeared insolvent on its balance sheet and the need was stressed for capitalisation to overcome that. Attention therefore had to
be given to valuing the shares. The monthly financial report showed a negative shareholders interest of R613 756 and, after a small
profit of R23 303, a loss to date of R785 154.
Asked in evidence whether without capitalisation the 1989 financial statements would have reflected technical insolvency, Vermooten
said that without capitalisation the books would merely have shown liabilities as exceeding assets and although this would not be
the true position the board did not want the books to show an apparent such excess. He went on
—
82
"Die ouditeurs sou ook nie daarvan hou nie en ek is seker dat ons
weer eens 'n kwalifikasie sou kry
. So, ons sou -dit is nie; 'n aanduiding dat die maatskappy tegnies insolvent is nie maar dit is net 'n aanduiding dat die balansstaat
syfers nie lekker sou wees nie." (My emphasis.)
He had, it is to be noted, said earlier in his evidence that he was unaware of any previous qualification. He returned to his earlier
stance after appropriate questioning by respondents' counsel, but without explaining the answer just quoted.
At a Rentbel meeting which appears to have been held after 20 April and before 2 May 1989, the position of Wolnit was considered.
The value of stock, it was noted, continued to rise and was at that stage in excess of R4m. As regards Wolnit's overdraft, it was
mentioned that extra facilities of R300 000 had earlier been arranged (referred to in the Wolnit April minutes) and that Rentbel
had lent Wolnit R70 000 until 27 April. However, Wolnit needed a
83
R200 000 extension to the overdraft limit to bring it up to R1 441 000.
Volkskas was prepared to grant the facilities on condition that Rentbel
provided a guarantee limited as to amount but unlimited as to time.
The meeting approved the provision of a guarantee but on the express
understanding that Wolnit reduced the overdraft by R300 000 by 30
June and by a further R200 000 by 30 September to bring the account
back to the original level of R941 000. If these conditions were not
met, so it was decided, Rentbel would be compelled to close Wolnit
down. Concerning a request that Rentbel transfer its current R100 000
guarantee in favour of the Frame Group to Gregory Knitting Mills
(third appellant), the meeting decided that the Frame guarantee had
first to be cancelled. The difficulty in doing this was that Wolnit still
owed the Frame Group R49 000 but such cancellation appears to have
been effected for on 2 May 1989 a R100 000 guarantee in favour of
third appellant was provided by Rentbel. A month later, on 2 June,
84
Rentbel issued two guarantees to Volkskas, one for R200 000 expiring on 29 June and the other for R300 000 expiring on 30 September.
To sum up the Rentbel assistance by this time, it comprised a very short term loan of R70 000, a guarantee of R500 000 until 29 June
and thereafter of R300 000 until 30 September. The loan must have been repaid, at least largely so, for Rentbel is reflected as a
creditor for only R39 918 in the Liquidation and Distribution Account and, as mentioned earlier, it did make a loan of R30 000 to
Wolnit in August 1989 to which the entry in the liquidation account no doubt mainly refers.
As regards the overdraft guarantees, these were described in a written submission to the Rentbel board compiled by Vermooten, Du Plooy
and Hollis as carrying relatively low risk, seeing that debtors were R2,4m and Volkskas would recover first under its cession of
Wolnit's book debts. That submission, apparently drawn up early
85
in May to motivate the request for aid that resulted in the guarantees to Volkskas, listed the causes of the need for help as being
increased production, increased stocks, lower than budgeted sales and debt collections, and inflation affecting stock values. The
submission ended with the comment that the "present results show conclusively that Wolnit is on the mend and that the prospects
for 1990 look very promising." Once again, however, that must be read with other statements in the document. Although about
R2m worth of stocks had been sold during the 1989 year the value of unsold stock was over R4m and increasing. And the following was
said regarding cash flow.
"Unfortunately although management was acutely aware of the critical cash flow problem, and have repeatedly stated so in the
monthly reports, cheques were issued on the assumption of a higher debt collection rate, resulting in an immediate cash shortfall.
This has been rectified and we will withhold all payments to creditors until
86
money is available."
On 24 May 1989 the Rentbel board had before it a report concerning capitalisation of between R600 000 and R1m which, according to
the relevant minute "by Wolnit gedoen moet word voor 30 Junie 1989". Approval was granted.
On 19 June the Rentmeester board approved an application by Trebbob for capitalisation of R1m of its loan to Wolnit "ten einde
te voorkom dat Wolnit in 'n insolvente situasie teen 30 Junie 1989 sal wees". The amount was amended by subsequent resolution
on 21 August to R 1,1m.
The next time the Wolnit board met was on 29 June 1989 when the April and May management reports were before it. In April, sales were
below budget and raw material stocks increased. Cash flow remained critical and reduction of stock was required to improve that.
There was a net loss after interest of R34 301 and
87
a negative shareholders' interest of R648 057.
As for the May report, it expected the serious cash flow situation to remain in the near future. Payment to creditors was being held
back as long as possible. Stock levels had gone up yet again. There was a net profit after interest of R7 402 but this was very much
below budget. The shareholders' interest and year-to-date figures were much the same as in April. On the positive side production
was continuing to improve and management was very confident that the start of the 1990 year would be a new era for Wolnit. Despite
those remarks management warned that stock reduction would only be a short term solution. With the high interest burden, the board
would have to address the "long term situation" sooner or later. In addition, the paradoxical statement was made that "except
for the high interest burden, Wolnit is in a much healthier position that last year".
In evidence Vermooten said the January to May results
88
were very encouraging. However, it will be noted that apart from small after-interest profits in two of the five months, the other
three showed losses. It is appropriate in this connection, and for the purposes of considering what is said below, to tabulate Wolnit's
relevant trading figures as stated in management reports comparing results actually achieved with those budgeted. That tabulation
follows:
See original judgement table.
90
Also before the June meeting was a "Business Plan for 1990". It included an overview of 1989. On the positive side, forward
orders totalled an average R4m; only 25% of all raw material and work in process was unallocated to orders; costs of raw material
consumption had been cut; and staff morale had improved. On the negative side, stocks of finished goods had increased and this put
extreme pressure on cash flow. As far as the new year was concerned, management expected much higher raw material prices, high wage
demands, high interest rates and a "cash flow which will continue to be critical". The forecast went on to say that the
board would have to address the high loan capital position if Wolnit was to have any chance of showing profits after interest. As
regards the fashion market, it was proposed to develop a range suitable for sports and casual wear. In addition, the Hang Ten range
had been developed for the forthcoming summer by a top Cape Town designer
91
with input from Hang Ten in America.
The minutes of the June meeting reveal that Vermooten queried the discrepancy in costing, comparing actual and budgeted results. Reasons
were given by Combrink and Hollis and debated. Vermooten wanted to know if costing had been adequately adjusted. Combrink said this
had been done in the 1990 budget and that costing would be more effective in future. As to cash flow, Read noted that the desired
cash levels had not been restored. Combrink said he very confidently expected the situation to be put right by November.
Wolnit's 1989 financial statements were qualified by the auditors, as expected. They were sent to members under cover of a letter
dated 19 September. In their draft report (it does not appear to have been signed) the directors announced a trading loss of R946
936 which they ascribed, as before, to poor economic circumstances and undercapitalisation of the business. These accounts were not
92
considered at any board meeting before liquidation but, considering the facts and circumstances outlined thus far, the thrust of their
contents would, on the probabilities, have been expected. It is also of note that despite registration of the Trebbob bond in December
1988 the Trebbob loan was expressly stated to be unsecured.
On 21 July Hollis made a written presentation to the Rentbel board on the occasion of a visit by Rentbel directors to the Wolnit factory.
Contrary to Vermooten's protestations in evidence that the company was never factually or commercially insolvent, at least not to
the board's knowledge before liquidation, Hollis said in the document in question that when he took over as general manager in July
1988 the company was basically insolvent and only the payment of creditors by Rentmeester sustained the company. (It will be recalled
that Rentmeester's last payment was in September 1988.) The factory, he went on, was not in a position to run effectively with
93
reduced stocks "and all this has to be rectified before a large reduction of stocks can be considered". The company had
not achieved effectively in the fashion area in the past but a big improvement was expected in the 1990 financial year. A crucial
passage in the presentation reads as follows:
"As you can see a trading profit has been made in the last six months. NB for June 1989 we have taken some actuals and some budgeted
figures. The biggest problem facing management has been the constant shortage of cash flow. We are aware that we need to reduce stocks
to improve this position and have set ourselves a reduction program to be achieved by end September. Stocks have been difficult to
reduce because as stocks have been sold they have been replaced by additional stocks. If one considers that if all unallocated stocks
as of 1st July 1988 were converted into saleable product we would have to sell in excess of R4 million. Up to date we have sold in
excess of R2,5 million ex stock and this has severely affected our bottom line. Once the factory's raw material stocks and work in
process is 95% against orders we will be able to reduce
94
our stocks and improve the cash flow. Management is confident that we should see the results from August onwards as we then start
delivering the new summer ranges."
There were indeed some positive comments in the presentation but the
message to the Rentbel and Wolnit directors was painfully clear: if
operating capital were not put in, the cash flow crisis would continue;
the only other way to improve cash flow was to sell stock, the value
of which was over R4m; sales ex stock severely affected the loss
figures but large scale selling was nevertheless planned from August
through to September. Of the report Vermooten said in evidence
"Ek dink dit was bale positief gewees en dat Wolnit 'n uitstekende winsgewend bedryf sal raak. Ek dink daarna was dit die algemene
gevoel van die direksielede van Rentbel ook.'
At the August board meeting the June management report was before the Wolnit directors. Again they could read that action
95
was necessary to improve the critical cash flow, and that profit after interest would be possible only once all present stocks had
been "cleared up". The minutes of that meeting reflect Read's concern about ex-stock sales, to which Hollis responded by
saying that production was now geared to orders except for certain standard items. Combrink said an acceptable stock value was R1,3m
or 8 weeks' worth. A Rentbel representative, invited to the meeting, Mr R Stoltz, asked if the 1990 budget catered for an increase
in operating capital. Combrink replied in the affirmative. No such capital was ever invested.
At the next ensuing Wolnit board meeting, on 1 September, the July management report was presented. Debt collections were well below
budget and had created a very difficult problem. In line with what Hollis had told Rentbel directors in his July presentation, the
report stressed that cash flow could only be
96
improved by stock reduction or the availability of capital. The month's results were not acceptable and drastic action would be taken.
Ex-stock sales still continued to affect the company's performance. The report continued:
"If one considers that we have had to sell
R4 million ex stock and even if we get 75% of the cost back, it still leaves us with at least a R1 million loss which is something
management can do nothing about and can only weather the storm until all the stock has been sold and production is up to scratch."
Vermooten was referred to that passage during his evidence and said it was an exaggeration to say that management had
had
to sell R4 m worth of stock and pointed out that Hollis's presentation to Rentbel had merely said if all stock were sold it would
involve R4 m worth. His answer was correct but the point is, nonetheless, that that was how large the stock figure was and its
97
substantial reduction would inevitably bring about major loss. The management report said just that in the following description of
the vicious cycle into which Wolnit had become locked:
"The present cash crisis does put extreme pressure on the management team and certainly does affect our performance. We unfortunately
find ourselves in a 'catch 22'situation. If
we sell off stocks to improve the cash flow
we record losses.
we do not sell stocks we cannot bring in raw
material and get out the orders.
we make orders we need to fund the debtors.
we borrow more money we end up with
higher interest payments which negatively
affect our performance.
we don't pay our creditors we do not get a
good raw material supply which in turn
affects our production resulting in lower than
budgeted sales. I believe that there are only two options available which are (i) reduce the stocks drastically and thereby post
98
up paper losses but keep the company viable and at the same time rationalise the business (ii) The Board will have to finance the
stock until it can be sold at more realistic prices and at the same time pay the creditors to keep production going.
Long term margins only solution:
The Wolnit Board faced this position numerous times and unless proper action is taken it will have to face this situation again. Wolnit
has firstly to be properly funded which will allow management the opportunity to operate the business correctly. Secondly, the company
needs to be rationalised and brought into line with its funding. Unless this is done the company will continue limping along with
new management every 12 - 18 months and each era making a contribution, but without ever really effectively coming to grips with
the real problem which is lack of funding for a company of this size."
As the report emphasised, this was no recent predicament.
The minutes of the meeting reveal active concern about the cash flow question. Hollis said that immediate ex-stock sales
99
would result in a loss of about R700 000. Read foresaw a shortage in January 1990 of R591 000. Preterius said that they should stop
bluffing themselves and that in order to restore the cash position the company had to make profits. Nothing was said about further
cash infusion.
On 20 September Rentbel furnished a further R300 000 guarantee to Volkskas to replace the one due to expire at the end of that month.
The Wolnit board next met on 3 October. The August management report recorded a trading loss of R164 124 and results that were "totally
unacceptable". Ex-stock sales were R303 343 (well above expected levels) but these involved cut prices and this contributed
to sales figures not being met. A non-existent cash flow was seriously affecting the company's performance. Management requested
the board to have serious regard to the funding of the
100
company because although Wolnit had been kept going with a higher overdraft facility and extended terms from creditors, legal action
by some creditors would follow unless something positive was done. Although a change for the better would be seen from September
onwards, Hollis ended by saying he believed the board had only three options: proper funding, reduction of the company's operation
to a size commensurate with existent funding or the sale of the business to another company that would be "
prepared to invest
" in Wolnit's future prospects. (I emphasise.)
The minutes record Read's comment that regular undertakings to reduce stock levels had not been met. He proposed that a full report
concerning the cash shortage be given to Vermooten to present to Rentbel. The latter was not at that meeting but said in evidence
that he felt that things were in hand and would improve.
On 3 November 1989 a meeting of Wolnit directors was
101 .
held at the premises of Rentbel. It was not an official board meeting. Stoltz was present as also Hollis and Mr J P Smit, Group Manpower
Manager. A summary of results from July to September was presented. These showed a trading loss of R594 301 for September including
a gross loss of R360 819. According to the minutes the view was expressed that Wolnit had deviated dramatically from its business
plan in three respects. One was that expected turnovers had not been achieved and another was that profit before interest and tax
was R938 000 below budget. The third was the most significant, namely, that gross profit had ended with a negative figure due to
sales of finished goods at losses. The meeting expressed its grave concern and said that further financial assistance would not be
possible without dramatic action proposed by management and approved by Rentbel. After discussion it was decided that Wolnit should
be sold as a matter of urgency.
102
At a follow-up meeting on 7 November, again at Rentbel's premises, it was resolved immediately to stop the purchase of raw materials
on account and to inform suppliers that Wolnit was re-organising and scaling down. Figures were to be put to Rentbel on which respective
prices for the company as a whole, and for sections of the business, could be worked out. Unaudited October figures were presented
showing a trading loss of R579 349, including a gross lossof R288 516.
Nothing came of the contemplated sale and liquidation ensued about two weeks later.
The gross losses are, as I have said, significant. Vermooten said in evidence that appreciable increases in gross profit had been
anticipated and that sudden gross losses were wholly against that expectation. Explaining the reason for liquidation, he said:
103
"(A)s (Wolnit) sulke groot bruto verliese uitgooi dan is daar iets wesenlik verkeerd. Dit is in stryd met alle versekerings wat
ons tot en met daardie stadium ontvang het. Daar was 'n groot daling in die vlak van eindvoorrade en dit het die indruk geskep of
die verwagting dat in alle waarskynlikheid sal daardie bruto verliese dan voortduur."
The stock figure in the 1989 balance sheet was R4,95m. The July management report gave it as R4,85m. No August figures are contained
in the record but the September stock value was R4,3m and in October it was down to R3,4m. How much the monthly figures were augmented
by continuing production one does not know but having regard to the actual sales reflected in the September and October figures,
totalling just under R2m, it is a necessary inference from that alone that a very large segment was ex-stock. The gross loss for
those two months was approximately R650 000. It will be recalled that in his July management report Hollis indicated that a sale
104
ex-stock of about R4m could entail a loss of about R1m. The gross loss actually sustained was therefore not far out of proportion
to Hollis's assessment. Moreover, he said at the September meeting that immediate ex-stock sales would result in a loss of about
R700 000.
On the evidence, therefore, the inescapable conclusion is that the gross losses of September and October, which were predominantly
responsible for precipitating liquidation, were attributable to sales ex-stock, about the inevitability of which Hollis had warned.
On the strength of figures agreed upon between the parties and expressed in round thousands, Wolnit owed trade creditors as at July
1989 a total of R655 000. In the ensuing four months the company incurred credit in the further amount of R1 775 000, leading to
a total owing to trade creditors at liquidation of R2,43m.
In closing this survey of relevant events and related
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documentation, it is appropriate to refer to a passage in the Rentbel annual report for the 1989 financial year. It was written by
Vermooten but it is not clear when. It reads, with regard to the subsidiary, Wolnit
—
"The capital structure of Wolnit was strengthened during the year. In spite of incurred losses the operating results showed marked
improvement during the year".
The issues
The evidence reviewed thus far gives rise to a number of major issues considered by the trial Court and debated by counsel on appeal.
They may conveniently be grouped as follows:
A FACTUAL INSOLVENCY
—
1.
The 1986 entries and notes
2.
Directors' own valuations
B COMMERCIAL INSOLVENCY
—
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3.
The auditor's qualification
4.
The financial support given
5.
The financial support required
C WHETHER WOLNIT's CARRYING ON BUSINESS IN 1989 WAS RECKLESS
—
6.
Attitude to creditors' interests
7.
Attitude to group reputation
8.
Optimism expressed in management reports
9.
The new fashion ranges and attendant increase
in costs
10.
Incurring credit of Rl,7m during August -November 1989
11.
Reason for liquidating eventually
I shall discuss those issues in the tabulated order.
A FACTUAL INSOLVENCY
1.
The 1986 entries and notes
As already mentioned, R 1,55m was shown as a profit when it was the capital component of a loan and thus, with the interest
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component, in reality a liability. And an amount of R329 694 was shown as an asset in the form of pre-paid rental when it was not
an asset at all. In cross-examination of Wainer, in examination of Vermooten and in his heads of argument, counsel for respondents
(who appeared on trial and appeal) advanced detailed propositions and figures either to support those entries or to attempt to establish
alternative ways in which the entries concerned could, acceptably, from an accounting point of view, have been shown and described
in the financial statements. In evidence Vermooten sought to lay appropriate foundations for counsel's efforts. Apart from the fact
that certain of the propositions offered by Vermooten in evidence were not put to Wainer for comment the answer to all these suggestions
and submissions is simply this. Warner's evidence was emphatic that the 1986 entries and notes were plainly incorrect and unjustified
on the facts. He disposed convincingly of the alternative possibilities that were put to him. The trial Court did not record its
impressions of the
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witnesses but did say that in so far as Wainer and Oosthuizen differed with regard to definitions and auditing practice Warner's evidence
was to be preferred. By inference the trial Judge also preferred Warner's evidence to the various suggestions and submissions offered
by counsel and Vermooten in the Court below as he labelled the 1986 entries and notes as "blatant verkeerd", "misleidend"
and " 'n afkeurenswaardige stuk rekenmeestersverdoeseling". Those descriptions are undoubtedly warranted. The falsity was
that the annual accounts over the crucial period misrepresented the value of the shareholders' interest. As Wainer explained, the
shareholders' interest is, in effect, the litmus test for factual insolvency. (One could refer to "actual" or "technical"
insolvency but, regarding them as synonymous, I shall continue to refer to factual insolvency.) Simply by removing the false profit
and the false asset, the positive shareholders' interest in the 1986 financial year would have been
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drastically reduced. What is of greater importance is that the shareholders' interest in later years, leaving all other figures in
the financial statements as they are, would have been negative, and substantially so. In round figures, and with brackets indicating
a negative, the relevant figures would have been these:
1987
(702 000)
1988
(R1 774 000)
1989
(R1 472 000) (Without capitalisation of Rl,lm
of the Trebbob loan this figure would have been approximately R2,6m.)
(On paper, as already mentioned, liabilities on liquidation exceeded assets by R 1,871m.) It is possible that the extent of these
negative shareholders' interest figures may have been somewhat ameliorated had respondents put forward what the correct figures should
have been instead of continuing to assert the correctness of the false figures. In short, therefore, the financial statements falsely
conveyed that the company was solvent when in the last three-and-a-half years of its
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trading existence it was factually insolvent.
Of the implications of the 1986 entries and notes the trial
Court had this to say:
"(Hulle was) niks meer as agtergrondsgeskiedenis om aan te toon dat Wolnit se finansiele toestand slegter was as wat die state
voorgegee het. Die direksie het egter geweet wat die finansiele posisie van Wolnit was en die vraag of hul roekeloos was kan op basis
van die werklike finansiele feite beoordeel word. Myns insiens was die verkeerde state bedoel om die finansiele posisie van die groep
beter te laat lyk. Dit het geen invloed gehad op die krediteure in die tersaaklike tyd nie en dit was nie op hulle gemik nie. Hoewel
dit nie geignoreer kan word nie moet daarteen gewaak word dat daaraan buite verhouding gewig verleen word by die beoordeling of roekeloos
skuld gemaak is".
The conclusion that the directors (by whom the learned Judge presumably also meant respondents) knew the true state of affairs and
intended the financial statements to convey a false picture is not only justified by the evidence but is an extremely serious
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finding. No reasonable person in respondents' position would have done the same. No excuse or explanation was offered by Vermooten
for this conduct and none suggest themselves other than that respondents intended to mislead anyone whose task or business interest
it was to read the financial statements. Wolnit was a public company. Anyone concerned to know the contents of the annual accounts
was entitled to access to them (s 9(1) of the Act; Henochsberg on the Companies Act, vol 1, 36). Copies were furnished annually to
Credit Guarantee and that, in effect, was communication of the contents to most trade creditors. Whether the directors had the additional
intention to prejudice anyone is irrelevant in the light of appellants' reliance only on recklessness. But the conclusion is unavoidable
that the false picture was projected regardless of the consequences. Far from the 1986 entries being mere background, they constituted
concealment of a very material fact; a deception which was
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maintained from then on. That such concealment is an important consideration in the case is unquestionable. It is indicative of a
disregard of trade creditors' interests. Consequently I disagree that the misrepresentation had no influence upon creditors and was
not aimed at them. It is difficult to fathom who else had as much interest in knowing the truth. Power was not asked what his reaction
would have been had he known of Wolnit's factual insolvency (as distinct from its inability to pay its debts) but if he thought,
as he did, that registration of the bond went against the grain of the letter of comfort, it is only logical to infer that he would
have thought the same thing had he known of the false concealment perpetuated by each year's audited statements. And he would have
been justified had he so thought.
2.
The directors' own valuations
In so far as Vermooten proffered in evidence various
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suggested revaluations of Wolnit's assets in an endeavour to show factual solvency, the trial Court accepted Warner's reasons for
rejecting them when they were put to him in cross-examination and nothing more need be said about them.
The other valuations which it is necessary to mention were two valuations arrived at by the Wolnit directors themselves in determining
the value of the Wolnit shares, firstly, as at 30 September 1988, and secondly ( for the purposes of the part-capitalisation of the
Trebbob loan debt) as at 31 March 1989. The trial Court remarked in this connection that sight should not be lost of the fact that
the directors achieved a positive shareholders' interest in both valuations. Whether the Judge meant that the directors were therefore
entitled to think that Wolnit was factually solvent on those dates is not clear. If he did, that would run counter to the finding,
already discussed, that they knew of the false representation contained in the annual financial
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statements. At all events, Wainer criticised the first of those valuations as wrongly taking into account the pre-paid rental already
discussed and also the company's assessed loss. The latter consideration, he said, was irrelevant in this type of valuation. Accordingly,
instead of a positive figure of R313 023 the unexceptionable facts and amounts in the document concerned actually present a negative
figure of R526 602. The other valuation he was not referred to but as it reached a slightly lower positive figure than the first
and was flawed in the same respects, it is plain that it, too, ought to have portrayed a substantially negative shareholders' interest.
The conclusion I reach in the present connection, therefore, is that Wolnit was at all relevant times factually insolvent and that
respondents knew it.
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B.
COMMERCIAL INSOLVENCY
3.
The auditor's qualification
.
Hoek and Wiehahn warned the Wolnit board early in 1987 of the possibility of a "going concern" qualification and asked what
would be planned to rectify the problem. No answer was given. The qualification was imposed by their successors in both the 1988
and 1989 financial statements. Wainer stressed the "red light" signal this conveyed and that in auditing terms it meant
that if a company was not a going concern its assets had to be valued as if on liquidation. Vermooten was dismissive of this and
testified that the Wolnit board knew full well in any case that the future of the company was entirely dependent on support from
the group. Wessels, in his evidence, emphasised that to render a limping company a going concern there had to be structured planning
and effective action.
Wolnit's inability to trade and pay its debts without group
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support would in my view have prompted reasonable businessmen standing in the shoes of respondents and their co-directors to obtain
clarity on certain basic questions before deciding against liquidation and in favour of incurring the credit necessary for the continued
operation of the business. Those questions would have been: (a) What financial support will the group provide? (b) For how long will
that support be available? Without clarity and the group's commitment on those crucial enquiries it was neither responsible nor reasonable
for the Wolnit board to have taken the risk, knowingly or not, that trade creditors might not be paid. 4.
The financial support given
The trial Court found that the group intended to provide sufficient financing to keep Wolnit going; that that approach was founded
on the bona fide conviction that Wolnit would be able to become viable; and that the group implemented its intention in 1987,
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1988 and 1989 by substantial loans to Wolnit and by paying considerable sums to creditors, and in 1989 by issuing guarantees to Volkskas,
Rand Merchant Bank and third appellant and by capitalising R1,1m of the Trebbob loan.
There is no doubt that these steps were taken and that except for the capitalisation they were intended to help Wolnit stay in business.
What is important, however, is the trial Court's premise that the funding was intended to be
sufficient
. To that aspect I shall revert. It is important to note, first, that the Court's summary of the financial support given is not factually
correct. From the evidence summarised earlier it is clear that the Rand Merchant Bank guarantee pre-dated 1989 and that the guarantee
to third appellant was an existing one switched from the Frame Group. No direct payments to creditors were made in 1989. Nor were
considerable sums lent in that year. R70 000 was advanced for a very short term ending on 27
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April 1989, and a mere R30 000 was lent in August 1989. Considering the enormity of the financial gap that had to be bridged, those
two sums were neither here nor there. The last major cash loan and the last direct payment to creditors occurred in the period August
-September 1988. As for the capitalisation, it is difficult to see how this assisted in extricating Wolnit from its predicament.
The learned Judge had already found, and correctly so, that capitalisation was effected to avoid the group's financial statements
showing that Rentmeester had an insolvent subsidiary, not to help Wolnit, and that if the intention had indeed been to assist Wolnit
the whole loan could have been capitalised.
The real reason for the capitalisation, the fact that only enough of the debt was capitalised to restore ostensible "paper"
solvency and that this was not a case of an infusion of operating capital, all combine to render Vermooten's statement in the Rentbel
119
1989 annual report, that the capital structure of Wolnit was strengthened, a remarkably cynical half-truth.
As regards interest on the Trebbob loan, the trial Court remarked that the interest debt was of no significance in determining commercial
insolvency because it was a mere book entry, with no interest payments being made or insisted upon. I respectfully disagree. The
Rentmeester minutes regularly recorded that Wolnit was not paying interest and as long as the interest debt was seriously taken,
as indeed it was, it affected what on Warner's evidence is the vital figure illustrative of profitability and the ability to pay
one's debts, namely, profit or loss after interest. It was obviously the mounting interest liability which compelled the conclusion
reached by the Rentmeester directors in November 1988 that Rentmeester would not get its money back even if Wolnit became profitable.
That implied that even with interest payments being made the capital would
120
remain unpaid or not totally paid. And, of course, as long as capital remained unpaid interest would keep accruing. In these circumstances,
quite apart from the imbalance to the Wolnit shareholding ratio which a fresh capital infusion by Rentmeester would have caused,
it was, at least partly, the interest factor which persuaded the group not to fund Wolnit more than it did. That in turn, as I shall
show, removed the only basis for Wolnifs commercial solvency.
As to Wolnit's viability the trial Court made the following finding:
"Hier het ons die getuienis van mnr Vermooten dat die groep se direksie van oordeel was dat Wolnit lewensvatbaar was. Dit moet
aanvaar word in die lig van die feit van die voortgesette steun oor 'n lang tyd."
I do not think that these findings are justified. They fail to take into account that the really substantial support ended in 1988.
What was offered after that, apart from the small loans of R70 000 and
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R30 000 were the Volkskas guarantees. But all that the guarantees meant in practical terms was this. The evidence is that the ordinary
limit of the overdraft was taken as being R941 000. (Why in that particular sum, was not explained.) In about April - May 1989 management
stated a need for an increase in the limit to R 1,441 000,
hence the two June guarantees from Rentbel totalling R500 000. But from overdraft figures taken from Wolnit's cash book (and agreed
upon by the parties) it is plain that by April - May 1989 Wolnit was already overdrawn in the amount of just under R1,4m. The guarantees
therefore did not serve to provide any significant operating cash. And they only extended to the end of June 1989, just less than
a month. By then the overdrawn account stood at Rl,67m.
From June to September there was a guarantee for only R300 000. In other words the secured overdraft limit was effectively down to
R1 241 000 in those three months. Yet in July the overdraft went up
122
to Rl,86m; in August it was R1,75m; in September Rl,7m; and in October R1,63m.
Vermooten was referred in cross-examination to the fact that Wolnit incurred R1,7m in credit from August to November 1989 and asked
how that debt could ever have been paid in the circumstances. He said the group ("ons") would have provided guarantees.
Asked whether for as much as Rl,7m, he said:
"As Wolnit nog 'n lewensvatbare bedryf was, dan sou ons dit waarskynlik gegee het. . . ons sou Wolnit ondersteun vir solank ons
gedink het hy is 'n lewensvatbare bedryf."
In the light of those answers and the absence of any guarantee other than for R300 000 in September 1989, which was wholly inadequate,
the conclusion is a necessary one that Wolnit's directors were extraordinarily negligent in not appealing for that help or that the
group had, by April - May 1989, decided that Wolnit was not viable
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after all and that token assistance was as much as it was prepared to advance. If the latter was indeed the group's stance, the Wolnit
board, with so many of its directors involved in group directorates or management, must, by inference, have been aware of it. Either
way, the Wolnit board let the company continue in business after April-May 1989 without sufficient support from the group and without
such support Wolnit was commercially insolvent. That is not to say that it was not commercially insolvent earlier. I merely refer
to April -May because that was the period in which the subject of the Volkskas guarantees arose. If those guarantees, plus the respective
loans of R70 000 and R30 000 constituted inadequate support, and together they comprised the only financial assistance provided by
the group since Rentmeester's final payment to creditors in September 1988 then, logically, commercial insolvency dated from as early
as October 1988.
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The significance of the above-mentioned comment at the
Rentmeester meeting on 23 November 1988 - that Rentmeester would
not get its money back even if Wolnit became profitable - was
considered by the trial Court merely to mean that the Trebbob loan
was converted into a long term loan. This seems to me to constitute
an uncritical, unquestioning repetition of Vermooten's evidence. To
my mind the comment in question provides strong support for the
inference that the group had indeed concluded that Wolnit was not
viable. Moreover, it was made in the context of discussion
concerning the sale of Wolnit and a possible management buy-out.
Vermooten's evidence was conspicuously lame and unconvincing in its
attempt to downplay the remark's importance which, quite patently, he
realised. In evidence-in-chief, when dealing with the failure of the
del credere arrangement and the minutes of the Wolnit meeting on 16
August 1988 he said that it was clear "dat ons nie die geld sal
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terugkry nie . . . (en) het ons eintlik gese dat ons sal 'n langer termyn lening gee". As already pointed out, those minutes
are relatively full and contain no reference to a long term loan or Trebbob's not getting its money back in the sense Vermooten meant.
Then, led as regards the Womit meeting on 29 November 1988, where Botha remarked that it seemed as if no repayment would be made
to Trebbob and that interest had been underprovided for, Vermooten said this conveyed that the board had already come to regard the
loan as permanent. Asked what that meant, he said "dit gaan nie terugbetaal word nie . . dit verander dit net na 'n meer permanente
aard . . . 'n vaste tipe van versekerde vaste belegging."
What is noteworthy is the resort by Vermooten to the phraseology used in the Rentmeester minute and the attempt to attach to it the
meaning - which I confess to finding laboured and obscure -of a long term loan. What is also remarkable is that although
126
Vermooten's evidence-in-chief was carefully led and dealt with the documentary evidence in chronological order, it omitted altogether
to deal with the Rentmeester minute.
When he was referred to it in cross-examination he said it was not important because it simply meant that the group would not get
its money for a very long time and that in turn meant the loan was permanent.
Consistent with the way he had led the evidence-in-chief, respondents' counsel argued that the comment in the Rentmeester minute really
related to the absence of any repayments under the del credere arrangement and to the consequent need to replace it with the bond.
That is as unconvincing as Vermooten's evidence. Vermooten allegedly did envisage repayment, albeit far into the future. The view
at the Rentmeester meeting, however, was that there would be no repayment, not even if Wolnit became profitable. The doom in that
127
forecast is unmistakable. So is the attempt by Vermooten to transpose the Rentmeester comment to a different context and to remove
its sting.
Of course, if the directors of Rentbel and Rentmeester did hold a negative view of Wolnit's prospects it would have been irresponsible
and unreasonable towards their own companies to inject any more operating capital into Wolnit.
5.
The financial support required
The factual insolvency in this case was not such that the proceeds of sale of even some of Wolnit's assets would have enabled it to
continue in business. Its factual insolvency brought about, concomitantly, its commercial insolvency. Rescue from the latter necessitated
group financial support. The company had made losses, and ended with a liquidation deficit, in amounts which Wainer described as
very large indeed for a company of its size. The fact
128
that it was undercapitalised all along is frequently referred to in the documentary evidence surveyed above. One could justifiably
say it was hopelessly undercapitalised. Because of that, and the stock problem, its cash flow ailment was persistently chronic and
eventually fatal. Wainer referred in his evidence to the many features showing that the stock was overvalued and that this problem
was of long standing and never overcome. There was the discussion paper presented to Rentbel in March 1988 showing that stock was
conceivably overvalued by 50%. There was Vermooten's comment to the Rentmeester meeting in October 1988 that Wolnit had about R4m
worth of stock "wat moeilik gerealiseer gaan word". According to Wainer it was this factor which made it difficult to sell
the company. Very telling was Hollis's attitude that the stock was worth only 30% of its value. Allowing for a certain degree of
"sales pitch" on his part, it is nevertheless significant that on liquidation the stock -
129
valued at R4,4m - fetched only a quarter of that amount. In these respects, and in regard to the upward valuation of finished stock
in May 1988, Wainer stressed that inflated values would distort the trading results and apart from stock over-valuation, the levels
of stock were unacceptably high.
The management reports repeatedly drew attention to the need for funding that would enable the business to operate to its potential.
There can have been no mistaking the management's plea from late 1988 onwards as being one for a substantial injection of operating
capital and nothing less. It was never forthcoming. Management was left with no alternative but to embark on the eventually destructive
course of selling ex-stock in order to obtain some cash flow. The resulting gross losses at last prompted the realisation that the
shop should be shut. In my opinion reasonable businessmen in respondents' position would have come to that
130
realisation during the last quarter of 1988 and, consequently, would not have allowed Wolnit to trade during 1989 in a state of commercial
insolvency.
The trial Court observed that the Wolnit directorate was
really just an extension of the controlling group. To my mind that
is one of the features of this case that was fundamental to the problem.
Had there been an arm's length relationship between Wolnit and its
financial supporter it might have appeared more clearly to respondents
what their responsibilities were. That is to say, looking at the matter
subjectively. However, respondents and their fellow Wolnit directors
were called upon to apply reasonable standards in their conduct of the
company's affairs and in observing their duty to members. They were
also required, in my view, to have reasonable regard for the interests
of trade creditors once it was manifest, as it must have been to the
Wolnit directors, that only sufficient holding company support could
131
keep Wolnit from commercial insolvency and liquidation. Reasonable
businessmen would have realised that directors of a subsidiary in such
parlous circumstances were obliged to consider the matter of holding
company support as if the latter were an independent entity at arm's
length and having that perspective, they would have obtained a
commitment from the group as to what financial support was available
and for how long. Instead of doing that, respondents and their
colleagues on the Wolnit board left those questions not only
unresolved but unasked, with the result that culpably inadequate
attention was given to ascertaining what more support Wolnit could
count on.
C WHETHER WOLNIT'S CARRYING ON BUSINESS IN 1989 WAS RECKLESS
6.
Attitude to creditors' interests
Apart from the Wolnit directors' attitude to creditors' interests as evinced by the 1986 entries, there are a number of other
132
features which bear on the present subject. First, there is the failure by Wolnit to inform Power of the Trebbob bond. Power had written
to Read requesting either capitalisation or subordination. The Wolnit board can have been under no misapprehension as to the concern
which Power felt, and expressed, to be kept abreast of developments at Wolnit or as to the fact that Credit Guarantee's interests
were, in effect, synonymous with the insured creditors' interests. Power's letter of 8 November 1988 was consistent with that concern.
It elicited a response from Read that capitalisation was being considered and that Power would be kept informed of developments.
Without the latter hearing anything more the bond was registered and nothing was done or said about subordination.
The trial Court considered that the registration of the bond was just normal commercial practice and remarked that appellants and
Credit Guarantee had no objection to the Volkskas
133
bond, regarding that as an ordinary business transaction. The Court also said that if Wolnit had wanted to it could have subjected
the whole loan to the bond.
The distinction between Volkskas and Trebbob, however, lies in the identity of the creditors in question coupled with the preceding
relationship and communication between Wolnit and Credit Guarantee and, of course, the sentiments expressed in the letters of comfort.
Volkskas was Wolnit's banker and the bond in its favour was certainly within the bounds of standard commercial practice. Trebbob,
it need hardly be stressed, was a member of the group. It is not just that it sought to place itself ahead of trade creditors in
the liquidation queue that is important but the attitude to Credit Guarantee which its conduct manifested. The relevant background
consists, firstly, in the commitment conveyed, in my view, by the letters of comfort that the group had the interests of Wolnit's
creditors
134
at heart. Secondly, there is Power's request in the discussion with Botha and Read in April 1988 that subordination be considered
and the repetition of that suggestion in his November letter. Wolnit never responded but it nonetheless reacted. Without a word to
Power, it adopted a course which was the very opposite to subordination. The fact that in the end Trebbob also did not get paid in
the liquidation is presently irrelevant. So is the fact that registration of the bond was a requirement imposed by Rentmeester. Power
spoke in his evidence of business morality. It is unnecessary for present purposes to attempt a definition of that concept. The criterion
we have to apply in the present appeal is the objective standard of reasonable business people in the position of the respondents.
The bond subjected trade creditors to greater exposure than before but, more importantly from Power and trade creditors' point of
view, here was the Rentmeester group taking steps to protect itself instead of subordinating its claim, with all the
135
attendant signs that that conveyed of an inability on Wolnit's part to pay its debts. Power had, to the knowledge of the Wolnit directors,
a legitimate interest in discerning and reacting to such signs by warning his insured. The likely, or at least very possible, result
of such a warning was that they would stop supplies and so bring Wolnit's business to a halt. Even if there was no legal duty on
Wolnit to communicate with Power concerning the bond, I am sure that the failure to apprise Power of the intention to register the
bond, or of the registration itself, was, in the particular circumstances, an omission of which reasonable businessmen would not
have been guilty. Wolnit's silence in this instance smacks of an intention to carry on business in disregard of creditors' interests.
As far as the trial Court's observation is concerned that the whole Trebbob loan could have been subjected to the bond had there been
any untoward intention on the part of Wolnit's directors, the
136
short answer is that there was no need to do that. It was protection
enough to secure the loan for R1,1m. The reasons are these. If
regard be had to the 1988 financial statements the fixed assets were,
but for an insignificant proportion, encumbered. The book debts
were ceded to Volkskas. The bank also had a first general notarial
bond over the stock in the sum of R500 000. Looking at the matter
as in 1988, the Trebbob loan could only have been met out of the
proceeds of the remainder of the stock. In the 1988 financial
statements the loan debt was stated as being R3,lm (that was after
capitalisation of R1,1m) and the stock value was R3,8m. As already
mentioned, however, the stock valuation was too high, possibly by
more than 50% but realistically at least that. If, therefore, the stock
was, on a non-liquidation basis, worth less than R2m, and if, as was
likely, it would fetch even less on a liquidation sale, Trebbob could
not have expected much more than Rl,lm to be left over after
137
satisfaction of the Volkskas bond.
Counsel for respondents contended that Power at the time thought that there was nothing amiss in Wolnit's continuing in business after
1988 and that in reality the decision to go on was one which Wolnit made jointly with trade creditors as represented by Credit Guarantee.
The answer to that argument is simply that Power and trade creditors knew nothing of the misrepresentations contained in the 1986
and subsequent annual financial statements or of Wolnit's factual insolvency or of the Trebbob bond or of the insufficiency of such
group support as was essential to enable Wolnit to make payment to creditors when due.
7.
Attitude to group reputation
Apart from management's optimistic comments from time to time, which I shall deal with in due course, it is difficult to understand
what motivation drove Wolnit's directors to persist in
138
carrying on business into 1989. With the lack of sufficient capital
initially, the group's omission to put in sufficient fresh capital, the cash
flow problem, the very big losses and the constant failures, by a long
way, to meet budgets, reasonable businessmen on the board of a
company such as this would have asked themselves what possible
justification there was for going on. The fact that from late 1988
amalgamation, management buy-out and selling Wolnit were seriously
considered all confirm that Wolnit was not worth keeping. It rang
entirely hollow for Vermooten to say that respondents thought Wolnit
had very good potential. The group is apparently a large, successful
and prominent one. One may assume, I am sure, that it had the
financial resources to advance sufficient fresh capital if the potential
was as good as that. The fact that it did not, compels the inference,
as the most plausible one, that there was no real confidence in Wolnit's
viability. The only other motive for carrying on - and again I leave
139
the management's optimistic remarks to one side - was the hope, against all reasonable odds, in my view, that Wolnit might pull through
or amalgamate with another company or be sold or be bought out by management and so save the group the embarrassment of having a
subsidiary go into liquidation. It would not avail respondents to say that if that had been the motive the group could simply have
put in more money, for the inevitable question would have been: for how long? The inference to be drawn, I think, is that the group
was in a "catch-22" situation of its own. It did not consider it worthwhile to invest more in Wolnit but it did not want
the company to succumb to liquidation and sully the group's reputation. Apart from the fact that the partial capitalisation was aimed
at preventing insolvency appearing on Wolnit's 1989 financial statements there is the reference to Rentbel credibility contained
in the discussion paper presented at the Rentbel meeting of 29 March 1988 and the
140
likelihood that Rentmeester, as an insurer, would be particularly sensitive to the implications of being seen to have a failed subsidiary.
An insurer's bad investment would be less understood by the public than a trader's bad luck.
To have continued Wolnit's business into 1989 in order to attempt somehow to avoid there being a liquidated subsidiary in the group
would patently have been most unreasonable vis-a-vis trade creditors, essentially at whose expense that attempt would have been made.
Whether the inference is warranted that that was the motivation is a question I shall return to.
8.
Optimism expressed in management reports
The trial Court considered that the opinion of the group's directors that Wolnit was viable, was supported by the optimistic contents
of the management reports. However, assuming the absence of the motivation discussed in heading 7 above, it is only realistic to
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bear in mind, firstly, that if Hollis and Combrink had always reported entirely candidly they would have risked talking themselves
out of their jobs. For Hollis as a new appointee to the top managerial position brutal frankness about Wolnit's dismal state would
not have been easy to express. More importantly, management obviously never knew what the Wolnit or group directorates intended to
do about adequate funding. They were not told. Probably they were not told because the directors did not want to reveal the paucity
of their planning or their lack of faith in Wolnit. Management requested adequate capital infusion but they only ever learnt of any
financial assistance when it was actually given, and then given only on virtually a hand to mouth basis. If Hollis had known that
substantial operating capital would never ensue, it is, to judge from his reports, more than probable he would have told the Wolnit
board that the company could not carry on. On the other hand if he hoped, as he obviously did, that
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sufficient funding might eventually be provided, it made sense to encourage the board by sounding optimistic notes. It would not have
helped his case to be totally negative despite Wolnit's very bad state. Therefore, without in any way suggesting intentional misrepresentation,
it is not altogether surprising to find optimistic comment. Reasonable businessmen in respondents' position would have borne that
in mind and not taken such comment at face value.
The second point is that it is significant how often one finds in the reports that improvement was expected the following month only
for that forecast to be wrong, and substantially wrong. Allied to that was the regularity with which after-interest loss occurred.
Of the last eight months of 1988 (the calendar year) substantial losses occurred in six.
Thirdly, the optimistic comment was either general or
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related to matters which did not bear sufficiently, or at all, on the problems of capitalisation, cash flow, excess stock and overvaluation
of stock. Those difficulties were highlighted ad nauseam. The thrust of what management was really saying was that the company had
good potential and could become successful provided the group infused sufficient fresh capital. Here, again, it is highly relevant
that the group failed or refused to inject such capital and that Rentmeester was very readily considering selling Wolnit or management's
buying it out. Those facts belie the positive and optimistic outlook which Vermooten professed to have had and which he said was
shared by the Rentbel board.
Another feature which runs strongly counter to the alleged optimistic view of Wolnit's future is the unanimous view at the Rentmeester
board meeting of 23 November 1988 that Rentmeester-Trebbob would not get their money back even if Wolnit became
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profitable. This aspect and Vermooten's evidence concerning it, have been discussed under heading 4 above. They are equally relevant
under the present one. The trial Judge made no credibility findings regarding Vennooten but it does seem implied in the judgment
that the Court accepted his evidence on this question of optimism as to Wolnit's future. However, when Vermooten's evidence in that
regard is carefully studied in the light of the continuing major unresolved problems of Wolnit and the group's persistent failure
to capitalise it properly the conclusion must be, in my assessment, that his evidence in that regard was not only improbable but,
in instances such as "dat Wolnit 'n uitstekende winsgewende bedryf sal raak", profoundly so.
Essentially, the alleged optimism was founded on the mere ipse dixit of the management and the fact that gross profits were consistently
made in the 1989 financial year. This attaches undue importance to
gross profits. Apart from the fact that the gross profits made in that
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year were, in eight of the twelve months, under budget, the achievement of gross profit was nothing unusual even in Wolnit's bad years.
All that one can really say in respondent's favour in this regard is that without gross profit there could be no net profit but that
is as far as it goes. Wainer testified that the acid test is profit after interest and in that respect, as I have just said, there
were losses after interest in six of the last eight months of the 1988 calendar year. There were also such losses in four of the
first six months of the 1989 calendar year. And one need hardly even mention the disastrous results in the final five months before
liquidation. Moreover, as Wainer also said, if stock is overvalued, the gross profit will be misleading. In so far as Vermooten sought
encouragement in a full order book through to 1990, that feature alone was not the key to the company's survival. Profit and cash
flow still depended not only on sales but, more especially, the cost of sales and the collection of
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debts resulting from sales.
In these circumstances I cannot accept that the Wolnit board, or the relevant group boards for that matter, with their conspicuously
well qualified and experienced businessmen simply relied on the optimistic contents of the management reports and the gross profits.
The inference that they did is just too implausible. On the other hand, if they did, and respondents among them, their doing so constituted
a gross departure from the standard of reasonable businessmen, especially people with their collective qualifications, knowledge
and experience.
9.
The new fashion rangesand attendant increase in costs
It was decided that in the 1989 financial year Wolnit
would venture into the fashion market. That decision was
implemented. It had the advantage of placing the business more on
an order basis, rather than the hitherto restricting tender basis, but it
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involved a number of risks and disadvantages. Such disadvantages
included the higher price of material and higher production, the latter
involving bigger and more expensive stock levels. Inevitably,
therefore, the question ought to have arisen during the last months of
1988: how was the new venture to be funded, and more particularly,
how were creditors going to be paid? Once again it is relevant to note
the absence of adequate capital funding despite management's pleas.
This brings me to the next heading.
10
The incurring of credit of R1,7m during August -November 1989
During the period April-May 1989 Hollis enlisted
Vermooten's help in making a submission to Rentbel aimed at
obtaining urgent funding in the sum of R500 000. The Volkskas
guarantees resulted. As already pointed out in the factual survey
above, the bank account was already overdrawn almost to the full
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extent of the extra facilities which the guarantees were meant to
cover. Thereafter the overdraft increased while, from June to
September, the cover afforded by guarantee decreased. It was in
those circumstances, with no further financial aid forthcoming from the
group, or asked for, that Wolnit proceeded, after July 1989, to incur
additional credit in an amount of R1,7m. Vermooten said in
evidence that he did not investigate either in July or thereafter
whether Wolnit was capable of paying debts of that order. Ordinarily
one would not expect a director to make or to have to make such
enquiries. But the fact that funding in the sum of only R500 000 was
asked for and that the extra facilities were already virtually taken up
when the request was made, seen against the events leading up to that
stage, reveal a complete lack of the sort of structured financial
planning that was necessary, in the light of the going concern
qualification, to keep Wolnit from commercial insolvency. Blame for
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that failure cannot be laid at the door of management alone. Indeed, the primary obligation for proper planning lay upon the Wolnit
board. The threat to close Wolnit if the overdraft was not reduced as required by Rentbel would have prompted reasonable directors
in respondents' position to keep a particularly close watch on the overdraft level, the prospects of the required reduction and the
incurring of substantial credit. There were no such prospects and there was no such watch.
11.
Reason for liquidating eventually
The trial Judge found:
"Die getuienis van mnr Vermooten dat 'n deur die bestuur onverklaarde en vir die direksie onverwagte ineenstorting van die bedryfsresultate
van Wolnit in September en Oktober (1989) die likwidasie veroorsaak het, moet aanvaar word."
That the results in those two months precipitated the decision to
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liquidate is clear. But I disagree, with respect, that Vermooten's evidence as to a sudden, unexplained collapse must be accepted
or is acceptable at all. A detailed analysis of the facts outlined above demonstrates that management repeatedly warned the Wolnit
board in clear terms that without proper funding - meaning, by implication, fresh operating capital, not just overdraft guarantees
- the cash flow crisis would continue, and that if the only way to achieve some cash flow was to sell from the abundance of overvalued
stock then major losses would result. True to that warning, which the board failed to heed, such losses did indeed result. In my
view the board's failure in that regard constituted at least gross negligence.
Conclusion
Although several of the features discussed in the preceding section might fairly be said, each on its own, to be decisive of the question
of recklessness, I prefer to focus on the
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cumulative impact of them all in answering the question whether
reckless trading was proved.
The trial Judge considered that a court would not lightly
find that the directors of a large organisation such as the Rentmeester
group which has so much expertise at its disposal
"roekeloos besluite neem wanneer hy besluit om sy filiaal waarin hy miljoene bele het verder finansieel te ondersteun . . .".
It may be, speaking generally, that a company that is well endowed with resources and expertise is inherently less likely to trade
recklessly than a company existing on the financial edge and run by directors with more modest attributes. And no court should ever
lightly find recklessness no matter who alleges it or against whom it is alleged. But if the evidence of recklessness is there, the
identity of the particular defendant becomes irrelevant. The trial Court also found
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"(hier) is nie gedobbel met die kapitaal van andere sonder om self enige risiko te loop nie".
However, as long as the financial support forthcoming from the group was inadequate to maintain Wolnit's commercial solvency its board
was very much gambling with trade creditors' money. As indicated, that occurred, in my opinion, at least from the end of 1988.
In summary, the 1986 entries demonstrate an attitude of such disregard for the fair, frank and reasonable dealing with outsiders which
Wolnit's insolvent circumstances demanded that, in my view, it was reckless. To that foundational consideration must be added the
attitude to creditors' interests as evinced by the failure to inform Power of the impending bond; the refusal to subordinate; the
reason for part capitalisation being nothing more than to prevent documentary revelation of insolvency; the Rentmeester directors'
conviction, of which the Wolnit directors must, by inference, have
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been aware, that they would not get their already committed capital back and therefore would not put more in; the continuation of
trade in 1989 when respondents knew, or ought to have known, that there were no reasonable grounds for management's optimism; that
the company was undercapitalised, terminally short of cash and possessed of a surfeit of overvalued stock such as made a landslide
of gross losses inevitable; and, finally, the incurrring of R1,7m worth of debt in the final four months without any or adequate
prior assessment of the prospects of all that debt being paid.
Not only was there in all these circumstances no reasonable prospect of payment of all Wolnit's debts when due but the most acceptable
inference is that there was on the part of Wolnit's directors, including respondents, an awareness that trade creditors' money was
being unreasonably risked and, because of their wish to prevent Rentbel's having a liquidated subsidiary, a wilful disregard of
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the consequences to trade creditors.
It follows that in my judgment appellants proved on a balance of probabilities that Wolnit's business was carried on recklessly during
the 1989 calendar year.
Nowhere in his evidence did Vermooten seek to protest that he was at any relevant stage not knowingly a party to the carrying on of
Wolnit's business and no other respondent testified. The evidence establishes clearly enough that all the respondents were knowingly
such parties to the proved reckless trading.
The appeal must consequently succeed.
As to the relief to be granted, counsel for appellants asked in the main for an order declaring respondents liable for all the debts
of Wolnit incurred after 1 July 1988 and, in the alternative, for an order in favour of appellants in the sum of the respective debts
owing to each at the date of liquidation. The amounts constituting those
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debts were agreed between the parties. The evidence shows that they were incurred during the period in which the reckless trading
occurred. It seems to me that the alternative form of relief is the one that should, in the exercise of the Court's discretion, be
made. It makes for greater certainty as regards the parties' respective rights and obligations flowing from the Court's order. I
should also mention that we were informed during argument that other creditors had issued summonses and that the decision on liability
in this appeal would apply to their cases. Certain items of ancillary relief and costs which were agreed upon between the parties,
or at any rate not in contention, will be included in the order below.
Before concluding, it is necessary to draw attention to a flagrant shortcoming in the record. It comprises 6283 pages. The exhibits
start at p 1597, run to p 4595, resume at p 5224 and end at p 6274. This thicket of 4048 pages lacks an index. A few
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descriptions of a most general character are put forward in place of an index. For instance, thousands of pages are described simply
as "Wolnit Internal Documentation". This is quite unacceptable. As a result, considerable judicial time has been wasted
simply in finding the relevant documents. The situation was aggravated by appellant's counsel not presenting a chronology with their
heads of argument. This is a particularly bad instance of a breach of Rule 5 (11) of this Court, which requires that a record "shall
contain a correct and complete index ... of all the documents and exhibits in the case, the nature of the exhibits being briefly
stated in the index". Attorneys responsible for the preparation of records should take note that they stand in danger, in cases
of such a flagrant disregard of the rule, of having their clients' records rejected, or of themselves paying costs de bonis propriis
if a record should mistakenly be accepted by the Registrar, followed by a postponement at the instance of the Court.
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The order of this Court is as follows:
1.
The appeal is allowed, with costs, such costs to include the costs of two counsel.
2.
The order of the Court a quo is set aside. Substituted for it is
the following order:
"1. The defendants (excluding first, eighth and eleventh defendants) are ordered, jointly and severally, to pay
In case no 4608/91
(a)
First Plaintiff R178 366,52;
(b)
Second Plaintiff R45 364,00;
(c)
Third Plaintiff R433 349,70
In Case No 15656/91
(d)
Fourth Plaintiff R20 119,06
(e)
Sixth Plaintiff R180 252,07
(f)
Ninth Plaintiff R124 355,56
(g)
Eleventh Plaintiff R94 174,96.
2. Subject to par 3 below, the said Defendants are ordered, jointly and severally, to pay costs of suit, such costs to include the
costs of two counsel and the qualifying fees
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of Mr H E Wainer.
3. The costs wasted in connection with the hearing on 9 March 1992 are to be paid by the above-mentioned plaintiffs jointly and severally,
such costs to include the costs of two counsel."
CT HOWIE
EKSTEEN JA) MARAIS JA) SCHUTZ JA) CONCUR VAN COLLER AJA)