About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2013
>>
[2013] ZAWCHC 186
|
|
Gore N.O. and Others v Shaff and Others (15766/13) [2013] ZAWCHC 186 (13 December 2013)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
Case No: 15766/13
DATE:
13 DECEMBER 2013
Before:
The Hon. Mr Justice Binns-Ward
In
the matter between:
STEPHEN
MALCOLM GORE
N.O
.............................................................................
First
Applicant
MARIO
PAUL WALTERS
N.O
...............................................................................
Second
Applicant
GAVIN
NEIL GAINSFORD
N.O
.................................................................................
Third
Applicant
(cited
in terms of s 32(1)(b) of the Insolvency
Act
24 of 1936 in their capacities as co-liquidators of
A
Million Up Investments (Pty) Ltd (in liquidation),
TESSA
MARGOT
WOLPE
......................................................................................
Fourth
Applicant
And
GARY
NEIL
SHAFF
................................................................................................
First
Respondent
PETER
MARTIN
SHAFF
.................................................................................
Second
Respondent
PROTEA
HOTEL GROUP (PTY)
LTD
...............................................................
Third
Respondent
ABSA
BANK
LTD
...............................................................................................
Fourth
Respondent
JUDGMENT:
DELIVERED: 13 DECEMBER 2013
BINNS-WARD
J:
[1]
Describing the cast in this case is somewhat complicated because all
but one of the parties who are nominally applicants are
opposing the
application, and thus in fact playing the role of respondents. The
narrative will be easier to follow therefore if
I refer to the
protagonists by their names or positions, rather than with reference
to their citation as applicants or respondents
as the case might be.
[2] The
matter before court at this stage has been described variously as an
interim, or an interlocutory application. The labels
attach by
reason that the relief sought is directed at regulating the treatment
of certain funds pending the final determination
of a separate
application brought in terms of the same notice of motion. The
separate application, to which I shall refer as ‘the
principal
application’, involves proceedings which Mrs Tessa Wolpe has
purported to institute in the name of the liquidators
of A Million Up
Investments 105 (Pty) Ltd (in liquidation) (‘AMU’) to
have a pre-liquidation transaction concerning
the purchase of the
Protea Hotel Group (Pty) Ltd’s shares in 15 On Orange (Pty) Ltd
by AMU declared to have entailed a collusive
transaction within the
meaning of
s 31
of the
Insolvency Act 24 of 1936
. Mrs Wolpe alleges
that ABSA Bank Ltd (‘ABSA’), the Protea Hotel Group and
the Shaff brothers (Peter and Gary), as
directors of AMU, were party
to, or complicit in the alleged collusion. If Mrs Wolpe is
successful in the principal application
ABSA’s very substantial
secured claim against AMU will be forfeited, arguably with the result
that any claim that ABSA might
have against Mrs Wolpe qua surety for
AMU in favour of ABSA will be extinguished, and the loan account
claim that she had against
AMU, which had been ceded in securitatem
debiti to ABSA as security for her suretyship obligation, would
revert to her.
[3] The
funds in issue in the interim application constituted part of the
proceeds of the sale by the liquidators of the principal
assets of
AMU, including immovable property in the form of sectional title
units in a building in which a hotel, 15 on Orange,
is operated. The
mortgage is a ‘special mortgage’, as defined in
s 2
of
the
Insolvency Act. The
immovable property had been mortgaged by
AMU in favour of ABSA. ABSA is consequently, as mentioned, a secured
creditor in the
liquidation, which is being conducted in terms of the
provisions of chapter 14 of the Companies Act 61 of 1973 (‘the
Companies
Act’). Proof of ABSA’s claim has been accepted
in the liquidation in the amount of R569 million. The deed of
agreement
in terms of which the assets were sold describes itself as
the ‘Sale of Assets Agreement’. The selling price was
R203
million. Provision was made in sub-clause 4.2.2 of the
agreement for a payment of R193 250 000 by the purchasers (Blend
Property
15 (Pty) Ltd) to ABSA against transfer of the immovable
property by the liquidators into the purchaser’s name. The
purpose
of the payment was to constitute an advance award by the
liquidators in reduction of ABSA’s secured claim. That much
was
expressly recorded in
[1]
'special
mortgage
'
means a mortgage bond hypothecating any immovable property or a
notarial mortgage bond hypothecating specially described movable
property in terms of section 1 of the Security by Means of Movable
Property Act, 1993 (Act 57 of 1993), or such a notarial mortgage
bond
registered before 7 May 1993 in terms of section 1 of the Notarial
Bonds (Natal) Act, 1932 (Act 18 of 1932), but excludes
any other
mortgage bond hypothecating movable property.
the
sub-clause, which also records ABSA’s undertaking, as a party
to the agreement, to repay the amount, or any part thereof,
to the
liquidators if so directed by a court or by the Master. The terms of
the undertaking by ABSA were set forth in annexure
F to the
agreement.
[4] The
relief sought by Mrs Wolpe in the interim application is set out in
paragraph 3 of the amended notice of motion in the principal
proceedings as follows:
3.
[An order o]rdering the fourth respondent to pay the liquidators,
within five (5) days of an order being made to this effect,
all
amounts paid to it, whether as an advance secured award or otherwise,
in terms of sub-clauses 4.2.2, 4.3 and 4.4 of the “Sale
of
Assets Agreement” concluded between the liquidators, Blend
Property 15 (Proprietary) Limited and the fourth respondent
on 13
June 2013, and directing that such amounts shall be placed by the
liquidators in an interest bearing trust account in the
name of AMU,
pending the final determination of this application, and shall not be
paid out by the liquidators or received by any
of the respondents
prior, whether in terms of any liquidation and distribution account,
or as an advance award, or in terms of
any agreement concluded
between any of the respondents and the liquidators, or at all.
[5] The
opposing parties, ABSA and the liquidators, contend that Mrs Wolpe is
not a creditor in the liquidation and that she does
not have standing
to claim the interim relief because she lacks standing in terms of
s
32
of the
Insolvency Act to
proceed in the liquidators’ names
in terms of s 31 of the Act for the setting aside of the alleged
collusive transaction.
It would obviously be necessary to decide the
issue of Mrs Wolpe’s standing if the court were to decide the
interim application
in her favour. However, in view of the adverse
result at which I have arrived, it is unnecessary, and - in the face
of the pending
hearing of the principal application (which has been
set down in May 2014, and in which the question of her standing is
also in
issue) – thus undesirable for me to make any
determination of that question.
[6] The
interim application is founded on the allegation that the ‘advance
payment’ to ABSA effected in terms of the
aforementioned
provisions in the ‘Sale of Assets Agreement’ was beyond
the powers of the liquidators, and having been
made ultra vires,
consequently unlawful. Mrs Wolpe’s counsel sought to support
the allegation by contending that the effect
of s 409 of the
Companies Act was that the liquidators could lawfully pay a
liquidation dividend to ABSA only in terms of a confirmed
liquidation
and distribution account.
[7]
Section 409 of the Companies Act (which falls to be read with ss
402-408, which provide for the duty of a liquidator to prepare
a
liquidation and distribution account and for the advertisement and
confirmation of such account subject to the consideration
and
determination of any objections that might have been raised) reads as
follows:
409. Distribution
of estate.
(1)
Immediately after the confirmation of any account the liquidator
shall proceed to distribute the assets in accordance therewith
or to
collect from the creditors and contributories liable to contribute
thereunder the amounts for which they may respectively
be liable.
(2) The
liquidator shall give notice of the confirmation of the account in
the Gazette and shall in such notice state, according
to the
circumstances, that a dividend is being paid or that a contribution
is to be collected and that every creditor and contributory
liable to
contribute is required to pay to the liquidator the amount for which
he is liable and the address at which the contribution
is to be paid.
[8] The
liquidators contended in response that the making of the advanced
payment was unexceptionable, and in accordance with long
established
insolvency practice. Mrs Wolpe’s counsel acknowledged the
existence of the longstanding practice, but submitted
that it was
nevertheless unlawful because it was impossible to reconcile it with
s 409.
[9] The
existence of the practice on which the liquidators rely is confirmed
in Meskin, Insolvency Law (Magid et al, ed.) at 11-8,
s.v. ‘Contents
of accounts’:
It
should be observed that the claim of a creditor secured by a mortgage
of immovable property which is to be paid by the trustee
(i.e. where
he neither “takes over” nor abandons it to the creditor
in settlement of such claim)…in practice
is paid as soon as
the trustee receives the proceeds of the realisation of the property,
i.e., notwithstanding that no plan of
distribution providing for such
payment has been drawn, the payment being expressed to be made
subject to adjustment: the reason
for this is to stop the accrual of
interest to the prejudice of other creditors.
It is
also discussed in Bertelsmann et al, Mars, The Law of Insolvency in
South Africa, 9th ed. at p. 541 as follows:
Until an
account has been confirmed a creditor even though preferent, e.g. in
respect of funeral expenses, has no right to be paid.
A trustee may
pay a creditor before confirmation of the account, but he does so at
his own risk. Although it has been said that
a trustee may pay a
creditor before his claim has been proved such payment would be
improper and it has been decided that it is
improper for a trustee to
pay out a dividend before confirmation of an account, and that the
court may restrain him from so doing
and even order him to repay such
dividends. The exception to this rule is a secured creditor who has
realised his own security
and who has proved his claim. Premature
payment is sometimes made to a secured creditor where the trustee has
realised the security
and wishes to limit the estate’s
liability for payment of further interest, but a prudent trustee
would make such payment
conditional upon immediate repayment upon
demand if for any reason the Master refuses to confirm the account in
which payment is
eventually awarded to the creditor. (emphasis
supplied)
[10] The
judgments cited in support of the observation in the aforegoing
passage from Mars that ‘it has been decided that
it is improper
for a trustee to pay out a dividend before confirmation of an
account’ are In re Estate Keefer 1 HC 208; Steytler
v Brink
1
Searle 123
; In re Estate Martin & Griffiths
4 EDC 30
; Fennel v
Willoughby
3 SC 265
and Williams’ Trustee v Wilson
1911 CPD
132.
Those cases are all distinguishable on their facts. In Keefer,
for example, which seems to be closest in point, the trustee of
the
insolvent estate had, after taking legal advice, borrowed funds and
applied them in settling concurrent creditors’ claims
before
the confirmation of the liquidation and distribution account. That
was held to have been improper, but the judgment is
not clear as to
why that conclusion was reached. Buchanan JP’s remarks on the
point were limited to the observation ‘…it
is very
difficult to understand how an experienced trustee, like the present
respondent, can have thought himself justified in
anticipating the
course of the law, and paying away money before the account was
confirmed. A careful perusal of all the sections
in point [the
learned Judge-President did not identify the provisions to which he
had regard] has convinced me that the trustee,
on whatever legal
advice he may have relied, has exceeded his statutory power in this
respect’. Jones J confined himself
to saying ‘It
certainly is a very remarkable and, as far as I am aware,
unprecedented thing for a trustee to pay out dividends
before his
account has been confirmed, as has been done in the present case.
When the account is confirmed, it really operates
as a judgment
against the trustee in favour of the creditors, who can compel him to
pay them forthwith the amount to which they
are shewn to be entitled
by the distribution account; but by anticipating the order of the
Court the trustee runs a very considerable
risk, and if the account
should not be confirmed he would be in a very embarrassing position’.
The third judge, Laurence
J, stated ‘I think there can be no
doubt that the conduct of the trustee in paying dividends before
confirmation of the account,
and in raising loans to pay dividends
for which he had not sufficient assets in hand, was highly irregular
and altogether ultra
vires’. None of the cases cited concerned
a set of facts in which the practice described in Meskin’s work
was involved.
[11] The
authority on which Mrs Wolpe’s counsel relied for the
submission that the liquidators’ advance payment to ABSA
had
been ultra vires was the judgment of Harms JA in Bowman, De Wet and
Du Plessis NNO and Others v Fidelity Bank Ltd
1997 (2) SA 35
(A).
That matter concerned proceedings by liquidators and trustees, who
had made an advance payment to a secured creditor, to
recover part of
the amount advanced which had been erroneously overpaid. The remedy
of which the liquidators and trustees sought
to avail to recover the
overpayment was the condictio indebiti. The court of first instance
had held that both the payment and
the overpayment had been ultra
vires, and that that the condictio indebiti was not available to
recover a payment made ultra vires.
In determining the matter on
appeal, the Appellate Division expressed itself willing for the
purposes of deciding the question
to assume in favour of the
respondent that the advance payment had been made ultra vires. The
Court thus did not consider whether
the advance payment of the claim,
as distinct from the overpayment, was in point of fact ultra vires,
and the judgment therefore
does not really serve the object for which
Mrs Wolpe’s counsel sought to invoke it. In the current case
there is, moreover,
no contention that the amount paid to ABSA as an
advance on its entitlement to the net proceeds of the realisation of
its security
was not an amount that had been owing to it. Mrs
Wolpe’s point is that if the s 31 application that she has
instituted succeeds
the ABSA claim will be forfeited.
[12] The
governing legislation applicable in all the cases cited in Mars was
the Insolvency Ordinance No. 6 of 1843. I have perused
the
Ordinance and found that its provisions are not materially
distinguishable from those of the currently applicable insolvency
legislation in the respects relevant. It is nevertheless not clear
to me how any of its provisions would prohibit a trustee from
competently making an advance to a proved secured creditor at his own
risk.
[13] The
general duties of a liquidator are set out in s 391 of the Companies
Act; they are ‘to proceed forthwith to recover
and reduce into
possession all the assets and property of the company, movable and
immovable, to apply the same, so far as they
extend, in satisfaction
of the costs of the winding-up and the claims of creditors, and to
distribute the balance among those who
are entitled thereto’.
Creditors are not entitled to enforce payment from the trustee (or
liquidator) other than to the
extent that their claims have been
recognised in terms of a confirmed liquidation and distribution
account; and the trustee is
obliged to make payment of the dividends
awarded in terms of a confirmed account. The purpose of the framing,
advertisement and
confirmation of such an account is to facilitate
the achievement of accountability, finality and certainty in the
winding up of
the estate in issue. A liquidator who has made an
advance payment of claim is obliged to account for it in the
liquidation and
distribution account. The account must include an
account of his receipts, payments and a plan of a distribution.
Confirmation
of a distribution account has the effect of a judgment
in favour of creditors against the trustee. It is a procedure that
renders
payment of a proved claim due. Confirmation of the
liquidation and distribution account obliges the trustee or
liquidator to make
payment of the dividends awarded in terms thereof
according to the tenor of the account; it does not, in terms,
prohibit him from
making a payment of an amount owing in terms of a
claim before it falls due. In making a payment before it is due, a
trustee or
liquidator should, of course, act responsibly and
conscious of his duty to administer the
[1]
The ‘Ordinance
for regulating the due Collection, Administration and Distribution of
Insolvent Estates within this Colony’.
The Ordinance was
repealed in terms of the Insolvency Act 32 of 1916, which was the
statutory predecessor of the currently applicable
1936 Act.
estate
for the benefit of the concursus of creditors. It is open to any
person aggrieved by a decision by a liquidator to approach
the court,
which may grant any relief it considers just (s 387(4) of the
Companies Act ). In a case in which the trustee or liquidator
is
unable to meet his obligations from the liquidation proceeds by
reason of having made an imprudently judged advance payment
to a
creditor, he would be personally liable to make payment in accordance
with the account, and the interests of creditors potentially
prejudiced thereby should be safeguarded by the security that every
trustee or liquidator is required to furnish before assuming
office.
[14] The
relevant effect of the realisation of property that was subject to a
special mortgage in favour of a proven creditor on
the framing of a
liquidation and distribution account is generally definitively
predictable by reason of the provisions of s 95(1)
of the Insolvency
Act (which applies in the compulsory winding up of companies by
virtue of s 339 of the Companies Act) read with
ss 92 and 94. Upon
realisation of the security, the net proceeds become owing by the
liquidator to the secured creditor.
[15] The
general duties of a liquidator are defined in s 391 of the Companies
Act as follows:
A
liquidator in any winding-up shall proceed forthwith to recover and
reduce into possession all the assets and property of the
company,
movable and immovable, shall apply the same so far as they extend in
satisfaction of the costs of the winding-up and the
claims of
creditors, and shall distribute the balance among those who are
entitled thereto.
By
making payment of an amount owed to a secured creditor whose claim
has been admitted to proof it cannot be said, in my view,
that a
liquidator would be acting outside his powers merely because payment
is not yet due to, or exigible by the creditor. The
liquidator
undertakes a risk that he may be render himself personally liable to
make good on the advance payment if the dividend
is subsequently not
confirmed in the a relevant liquidation and distribution account and
he is unable to recover the amount from
the creditor, but in dealing
with the proceeds of the realisation of mortgaged immovable property
in favour of the secured creditor
whose claim has been formally
accepted, the risk will usually be negligible; a fortiori, when, as
usually is the case, the mortgagee
is a registered financial
[1]
‘Any person aggrieved by any act or decision of the liquidator
may apply to the Court after notice to the liquidator and
thereupon
the Court may make such order as it thinks just.’
[1]
‘
The proceeds
of any property which was subject to a special mortgage, landlord's
legal hypothec, pledge or right of retention, after
deduction
therefrom of the costs mentioned in subsection (1) of section
eighty-nine, shall be applied in satisfying the claims
secured by the
said property, in their order of preference, with interest thereon
calculated in manner provided in subsection (2)
of section one
hundred and three from the date of sequestration to the date of
payment, but subject to the provisions of subsection
(4) of section
ninety-six.’ (Section 96(4) of the Insolvency Act, which
relates to the settlement of funeral expenses,
finds no application
in the winding up of companies.)
institution.
The practical reason for taking the risk is usually that by making
the payment before it is due the liability for
payment of interest on
the claim is limited, which no doubt explains how the practice of
making such advance payments in the circumstances
described in
Meskin’s work became established and has stood the test of
time. In my view, in making a reasonably determined
upon advance
payment to a secured creditor from the proceeds of the realised
security, a trustee or liquidator is acting within
the ambit of his
general duties.
[16] As
mentioned, any person aggrieved by any act or decision by a
liquidator may seek the court’s intervention in terms
of s
387(4) of the Companies Act. Notwithstanding that the provision was
not expressly relied upon by Mrs Wolpe, I consider that
the so-called
interim or interlocutory application is in essence one of the nature
contemplated by it. I therefore agree with
the contention by Mrs
Wolpe’s counsel that the application –at least insofar as
the repayment element thereof is concerned
- does not fall to be
decided on the approach applicable in interim interdict applications
as argued by ABSA’s counsel.
[17] The
term ‘any person aggrieved’ employed in s 387(4) is
somewhat imprecise, and it is thus perhaps not surprising
that its
import has been the subject of debate; cf. Francis George Hill Family
Trust v South African Reserve Bank and Others
1992 (3) SA 91
(A), at
98I – 102E, Strauss and Others v The Master and Others NNO
2001
(1) SA 649
(T), at 659H-661G, and LL Mining Corporation Ltd v Namco
(Pty) Ltd (In Liquidation) and Others
2004 (3) SA 407
(C), at 414A-G.
As Beadle ACJ observed in Concorde Leasing Corporation (Rhodesia)
Ltd v Pringle-Wood NO and Another
1975 (4) SA 231
(R), a person who
is able to show that he should be afforded a remedy in terms of s
387(4) (or its equivalent in other statutory
regimes) obviously
qualifies as a ‘person aggrieved’ for the purposes of the
provision; approached in that manner,
attempting to define the term
is to beg the question. I shall therefore proceed directly to
consider whether Mrs Wolpe has established
an entitlement to the
remedy.
[18] In
their commentary on s 387(4) of the Companies Act the editors of
Henochsberg on the Companies Act observe that the ‘Court
will
not lightly interfere with an act bona fide done or a decision bona
fide taken by the liquidator; where there is no lack of
bona fides
the question is whether in the circumstances the liquidator has acted
in a way in which no reasonable liquidator could
have acted, having
regard to the objects of winding up and a liquidator’s duties
in general’; cf. Concorde Leasing
Corporation (Rhodesia) Ltd
supra and Leon v York-o-Matic Ltd
[1966] 3 All ER 277
(Ch). In Re
Edennote Ltd
[1996] EWCA Civ 1349
,
[1996] 2 BCLC 389
, the Court of
Appeal (per Nourse LJ), in applying the closely comparable provisions
in s 167(5) of the English Insolvency Act 1986,
stated ‘the
correct test’ as follows: ‘(fraud and bad faith apart) …
the court will only interfere with
the act of a liquidator if he has
done something so utterly unreasonable and absurd that no reasonable
man would have done it’.
[19] In
my judgment, Mrs Wolpe has not come close to satisfying the
requirements to have the liquidators’ act of making an
advanced
payment to ABSA set aside or reversed. The payment was made in terms
of the standard practice discussed earlier. The
argument advanced on
Mrs Wolpe’s behalf that ABSA has no entitlement to interest on
its liquidation claim because it did
not make provision for it in the
claim submitted for proof was misconceived; see s 95(1) read with s
103(2) of the Insolvency Act.
The implication that the advance
payment could not have been legitimately aimed at limimting liability
in respect of interest
is thus also misplaced.
[20] Mrs
Wolpe contends, however, that on any approach the payment should not
have been made against the backdrop of her allegations
concerning
ABSA’s involvement in a collusive transaction. A collusive
transaction in the relevant context entails an agreement
entered into
by a company, before its winding up, with the fraudulent purpose of
prejudicing the rights of creditors; see Meyer
NO v Transvaalse
Lewendehawe Koöperasie Bpk en Andere
1982 (4) SA 746
(A), at
770-771. In other words, it is not sufficient only that the effect
of the transaction is to occasion such prejudice, there
must also be
a fraudulent intention by the parties to the transaction to cause it.
Having regard to the position in which AMU
found itself in August
2011, when the allegedly collusive transaction was concluded, it
would seem probable on the evidence before
me that the only creditor
that stood to be prejudiced by it would have been ABSA itself. In
the absence of any indication of there
having been a likelihood of
the possibility that there would be a free residue after the
realisation of ABSA’s security should
winding up intervene, the
notion that prejudice to the unsecured creditors of AMU could be
occasioned - never mind have been intended
to be caused - seems
far-fetched on the face of matters.
[21]
Courts have traditionally approached allegations of fraudulent
conduct on the basis that such behaviour is not readily attributed
and, in a sense, it is indeed regarded as inherently improbable; see
Gates v Gates
1939 AD 150
, at 155. In the circumstances the
liquidators’ circumspection about instituting proceedings to
set aside the sale of the
Protea Hotel Group’s shares is
understandable. I am not persuaded that the liquidators’
decision to make the advance
payment was one that no reasonable
liquidator could have made in the circumstances. This is especially
so having regard to the
fact that the payment was made in the context
of the payment structure stipulated in terms of the agreement in
terms of which AMU’s
property was sold to Blend Property 15
(Pty) Ltd. Mrs Wolpe had not advised the liquidators of her
allegations in respect of the
Protea Hotel Group’s share
disposition before the ‘Sale of Assets Agreement’ was
concluded.
[22] As
mentioned, ABSA has contractually undertaken in favour of the
liquidators to repay the amount, together with interest at
a
favourable rate, if it is directed to do so by the Master or by a
court. It seems quite clear that it is well within ABSA’s
financial ability to comply with the undertaking should the occasion
arise; indeed Mrs Wolpe’s counsel, realistically, did
not seek
to contend otherwise when the matter was argued. In the context of
the concession that ABSA is well able, if so required,
to reimburse
the amount that has been advanced, the argument that Mrs Wolpe is
justifiably sceptical about ABSA’s bona fides
does not merit
serious consideration. Moral indignation, even if genuinely
maintained, does not establish a cognisable basis for
being aggrieved
when prejudice cannot be shown.
[23]Likewise,
Mrs Wolpe’s complaint that Absa has failed to give her
personally – as distinct from the liquidators -
a guarantee
that the amount would be repaid if required is groundless. Apart
from not being able to demonstrate any prejudice
on account of the
absence of any such guarantee, she has also been unable to provide
any basis for an entitlement to it. Section
104(3) of the Insolvency
Act does not found any such entitlement, it merely affords her a
potentially preferent claim in the liquidation
should she succeed in
the proceedings conducted by her in the liquidators’ names in
terms of s 31 of the Act.
[24] In
the result, the application for relief in terms of paragraph 3 of the
notice of motion is dismissed with costs, including
the costs of two
counsel where such were employed.
A.G.
BINNS-WARD
Judge
of the High Court
Date
of Hearing: 3 December 2013
Judgment
delivered: 13 December 2013
Before:
Binns-Ward
J
First,
Second and Third
Applicants’
counsel: G.W. Woodland SC
Fourth
Applicant’s counsel: A.R.G. Mundell SC
Buikman
Fourth
Respondent’s counsel: D.M. Leathern SC
R.J.
Howie
First,
Second and Third
Applicants’
attorneys: Edward Nathan Sonnenbergs
Cape
Town
Fourth
Applicant’s attorneys Korbers Inc
Cape
Town
Fourth
Respondent’s attorneys Webber Wentzel
Johannesburg
and Cape Town