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IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO.: D10128/2022
In the matter between:
NAT INDUSTRIES (PTY) LTD (in liquidation) First Plaintiff
NEIL MCHARDY N.O. Second Plaintiff
GAIRONESSA DAVIDS N.O. Third Plaintiff
FINANCE FACTORS (PTY) LTD Fourth Plaintiff
and
GRINDROD BANK LTD Defendant
JUDGMENT
Olsen J:
[1] Two applications to amend serve before me. They owe their existence to
a judgment of this court (now reported as Nat Industries (Pty) Ltd (in liquidation) &
Others v Grindrod Bank Ltd 2024 (2) SA 506 (KZD) – hereafter the “first judgment” )
upholding an exception delivered by Grindrod Bank Ltd, the defendant. The court
upheld the contention that the plaintiffs’ particulars of claim disclosed no cause of
action, and granted the plaintiffs leave to amend the ir particulars of claim within 10
days of the date of the judgment. The first application to amend was delivered on
time. The second one came later. The defendant objected to both amendments upon
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the basis that, save in one respect, when amended as proposed, the particulars of
claim will still not disclose a cause of action, and on the basis that they will remain
vague and embarrassing, as also originally contended.
[2] The first plaintiff is Nat Industries (Pty) Ltd (in liquidation). It is joined in the
action by its liquidators who are the second and third plaintiffs. Four claims are
pleaded in the particulars of claim. Claims one, two and four belong to Nat
Industries. Its claim two is an alternative to claim one. The third claim is that of the
fourth plaintiff, Finance Factors (Pty) Ltd (“Finance Factors”).
[3] Nat Industries conduct ed business as a labour broker or temporary
employment service. It was wound up by order of this court granted provisionally on
12th February 2020 and finally on 15 th June 2020. Whilst in business it followed the
practice of factoring or selling its client invoices. One of its clients was a company
known as Southey Holdings (Pty) Ltd (“Southey”). The business of Nat Industries
supplying labour to Sout hey was substantially downscaled in September 2016 , and
terminated altogether in March or April 2017.
[4] It is pleaded that on 29 th September 2017 Nat Industries and Grindrod
concluded a written agreement in terms of which Nat Industries would sell , and
Grindrod buy at a discount, debts owing to Nat Industries for the supply of
employment services to Southey. At the time there were no debts owing by Southey
to Nat Industries, and there were no debts which would become due by Southey to
Nat Industries. On 5 th October 2017 Grindrod paid R4 million to Nat Industries to
discount a debt it believed was owing by Southey to Nat Industries, and similarly on
12th October 2017 paid a further sum of R4.2 million to Nat Industries in respect of a
debt thought to be owing by Southey. It is pleaded that later in October 2017
Grindrod established that there were no longer any business dealings between Nat
Grindrod established that there were no longer any business dealings between Nat
Industries and Southey , and no debts owing by the latter . Grindrod had been the
victim of fraud perpetrated by Nat Industries.
[5] A meeting was held between representatives of Grindrod and Nat
Industries on 25 th October 2017 at which time Grindrod was aware that false and
fraudulent invoices had been presented to it for discounting by Nat Industries . It is
pleaded that following that meeting the defendant failed to report the frauds
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perpetrated by Nat Industries to the authorities as it ought to have done; and failed to
seek the winding -up of Nat Industries; but instead bargained for and ultimately
received payments from Nat Industries totalling R8 581 334.31.
[6] With that overview of the background circumstances , gleaned from the
particulars of claim and the proposed amendments (as are all of the alleged facts,
true or false, hereafter referred to), I turn to deal with each of the claims to determine
whether the proposed amendments cure the deficiencies which led to the
unchallenged finding in the first judgment that no cause of action was disclosed.
Claim One
[7] The first claim is for repayment to the first plaintiff of the money paid by
Nat Industries to Grindrod following the meeting of 25 th October 2017. The claim
rests on the proposition that in making th ose payments Nat Industries made
dispositions of its property to Grindrod which are recoverable in terms of both
sections 30 and 31 of the Insolvency Act, 1936.
[8] As to R8,2 million of the sum s paid to Grindrod, the first judgment held
that there was no disposition of property belonging to Nat Industries. As the
proceeds of fraud, the payments to Nat industries constituted stolen money, and Nat
Industries had no entitlement to the credit in its bank account representing the
money which it had received from Grindrod. (See paragraph 29 of the first
judgment). The plaintiffs’ notices of amendment propose a number of additions to the
paragraphs of the particulars of claim dealing with claim one. However, none of them
address the basis upon which it was held in the first judgment that, as to R8,2
million, the payments did not constitute dispositions of property of Nat Industries. If
the amendments were granted the position would remain as it was before.
[9] As to the balance of some R381 000 paid by Nat Industries to Grindrod ,
the exception that no cause of action was disclosed was upheld in the first judgment
the exception that no cause of action was disclosed was upheld in the first judgment
upon the basis that there was no allegation of an intention to prefer , or of a factual
basis upon which an inference of the intention could be drawn. (See paragraphs 30
to 32 of the first judgment.) As to the issue of collusive dealing s, it was held that no
factual basis for a conclusion that there was collusion had been pleaded.
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[10] The quite extensive amendments proposed to the paragraphs of the
particulars of claim dealing with claim one concentrate on Grindrod’s failure to report
the frauds committed by Nat Industries to the authorities , and allege an express
intention that Grindrod should be preferred above all other creditors in circumstances
where it knew that Nat Industries had insufficient funds to settle its creditors. It is
indeed now proposed to plead that the payments were in fact made by Nat Industries
upon the footing that the defendant would not report the fraudulent transactions or
cause Nat Industries to cease trading. In my view those allegations cure the faults
which were identified in the first judgment with regard to the sum of R381 000.
[11] The notices objecting to the amendments to Claim One deal only with the
sum of R8,2 million. They conclude that the amendments should be allowed , but
conditionally upon the prayer for enforcement of Claim One being reduced to the
sum of R381 334.31. In my view that is the correct approach.
Claim Two
[12] As already mentioned Claim Two is pleaded as an alterna tive to Claim
One. I have difficulty in understanding the basis upon which Claim Two is advanced,
whether in the original pleading or under the proposed amendments.
[13] The central contention appears to be that the payments made by Nat
Industries to Grindrod were the proceeds of a fraud committed by Grindrod. In the
first judgment it was held that no facts were pleaded upon which it could be
concluded that any fraud had been perpetrated by Grindrod. (See paragraph 34 of
the first judgment.)
[14] In the original particulars of claim it was alleged that by insisting that it
was paid what was owed to it, Grindrod compounded the offences of fraud and
forgery that had been committed by Nat Industries. Counsel for the plaintiffs
accepted in argument that this allegation ought to have been deleted by the
accepted in argument that this allegation ought to have been deleted by the
proposed amendments as it is simply wrong in law. I must disregard it. None of the
proposed amendments to the paragraphs of the particulars of claim dealing with
claim two take the matter any further. The argument by counsel for Grindrod that in
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its dealings with Nat Industries Grindrod was the victim of fraud , and not the
perpetrator, would remain valid even if the amendments to the relevant paragraphs
were allowed.
Claims Three and Four
[15] Claims three and four are d elictual claims. They were dealt with together
in the first judgment because their viability depended in part on similar
considerations. Each of them
(a) rests on a contention that Grindrod’s liability stems from a negligent omission;
and
(b) constitutes a claim for pure economic loss.
On both these counts the plaintiffs were obliged to plead facts which, if proved,
would sustain a conclusion that Grindrod’s conduct was wrongful in relation to Nat
Industries and Finance Factors, respectively.
[16] The first judgment held that no such facts had been pleaded. (See
paragraphs 35 and 36 of the first judgment .) It recorded that in argument the
plaintiffs had sought to circumvent this problem by arguing that it would be open to
the trial court to develop the common law in order to allow the claim. That argument
was rejected in the first judgment and has not been repeated before me.
[17] Very broadly stated the cause s of action sought to be pleaded go as
follows.
(a) When in October 2017 Grindrod discovered that it had discounted false
invoices, it was obliged to report the crimes to the authorities and apply for the
winding up of Nat Industries.
(b) Because Grindrod did not do either, Nat Industries was able to continue in
business, and persuade other financiers, or at least Finance Factors, to
discount false invoices after October 2017.
(c) As it turned out, each of Nat Industries and Finance Factors incurred financial
losses after October 2017, and are entitled to be compensated for those
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losses by Grindrod, which would not have occurred had Grindrod not omitted
to take the steps set out above.
[18] Some of the fundamental principles applicable in assessing liability for
omissions are set out succinctly in Minister of Safety and Security v Van
Duivenboden 2002 (6) SA 431 (SCA).
(a) “Negligence, as it is understood in our law, is not inherently unlawful – it is
unlawful, and thus actionable, only if it occurs in circumstances that the law
recognises as making it unlawful. Whe re the negligence manifests itself in a
positive act that causes physical harm it is presumed to be unlawful, but that
is not so in the case of a negligent omission. A negligent omission is unlawful
only if it occurs in circumstances that the law regards as sufficient to give rise
to a legal duty to avoid negligently causing harm. It is important to keep that
concept quite separate from the concept of fault. Where the law recognises
the existence of a legal duty it does not follow that an omission will
necessarily attract liability – it will attract liability only if the omission was also
culpable as determined by the application of the separate test that has
consistently been applied by this court in Kruger v Coetzee [1966 (2) SA 428
(A)], namely whether a reasonable person in the position of the defendant
would not only have foreseen the harm but would also have acted to avert it.”
(See paragraph 12.)
(b) The court endorsed the correctness of the following passage from Fleming
The Law of Torts 4th ed at 136.
“In short, recognition of a duty of care is the outcome of a value judgment, that
the plaintiff ’s invaded interest is deemed worthy of legal protection against
negligent interference by conduct of the kind alleged against the defendant. In
the decision whether or not there is a duty, many factors interplay; the hand of
history, our ideas of morals and justice, the convenience of administ ering the
rule and our social ideas as to where the loss should fall. Hence, the
rule and our social ideas as to where the loss should fall. Hence, the
incidence and extent of duties are liable to adjustment in the light of constant
shifts and changes in community attitudes.” (Paragraph 13.)
(c) In applying the test , an assessment of how the convictions of a community
bear upon the decision to allow or disallow a claim flowing from an omission
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“must necessarily now be informed by the norms and values of our society as
they have been embodied in the 1996 Constitution.” (Paragraph 17.)
[19] Similar considerations arise in connection with claims for pure financial
loss. The present case falls out side the ambit of any recognised category of such
claims, such as negligent misstatement. A prominent policy consideration in this
case must be whether allowing the claim opens the door to limitless or indeterminate
liability to any number of people similarly situated to the plaintiffs in th is case.
Another prominent question is whether one is dealing with a plaintiff who is in a
position to avoid the loss or the risk of loss by other means. The question also
arises, especially in commercial contexts, as to whether the imposition of liability
would be an undue obstacle to the pursuit by the defendant of its legitimate activities
and interests. (As to the aforegoing, and other principles, see Fourway Haulage SA
(Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA) at paras 23 to 26 ,
and the authorities there referred to.)
[20] With these principles in mind I turn to a consideration of what the
proposed amendments may contribute to the enquiry as to whether a cause of action
has been disclosed.
(a) It is said that Grindrod held itself out to be a responsible bank and corporate
citizen with which the “world at large” could transact with confidence in its
integrity, ethical and responsible behaviour , and the lawful conduct of its
affairs. In my view that does not single out Grindrod as exceptional in any
respect. All banks, and I dare say all commercial enterprises, would find
themselves hard pressed to contradict the proposition that they hold
themselves out in a similar manner.
(b) Whereas the original particulars of claim had made broad reference s to
certain legislation under which reports, according to the plaintiff, should have
been made, without identifying the particular provisions, the proposed
been made, without identifying the particular provisions, the proposed
amendment now introduces a reference to an obligation to report the matter in
terms of section 34 of the Prevention and Combating of Corrupt Activities Act,
2004. A consideration of that provision suggest s that it is at least arguable
that Grindrod was under a statutory duty to report the fact that it had been the
victim of fraud in an amount exceeding R100 000. It was not argued before
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me that, properly construed, the statute determines that a failure to comply
with that statutory obligation w ould result in d elictual liability for any losses
sustained by others as a result of that omission. The existence of a statutory
duty is merely one factor in the much wider enquiry into whether
considerations of public and legal policy dictate that it is reasonable to impose
delictual liability for the consequences of non -compliance with that statutory
duty. (See South African Hang and Paragliding Association and Another v
Bewick 2015 (3) SA 449 (SCA) at paragraph 23.)
(c) Repetitive paragraphs are sought to be introduced to bolster the original claim
that Grindrod knew that if it did not report what it had discovered , or apply for
the winding up of Nat Industries, that company (under the directing hand of a
Ms Govender) would be able to continue in business and, if it was so minded,
could defraud others using false invoices. That adds nothing to the enquiry
made in the first judgment.
(d) It is sought to introduce a paragraph which goes further, and alleges that
Grindrod knew , or ought reasonably to have been aware , that there were
others who had been victims of similar fraudulent conduct. However, that
paragraph actually refers to an earlier allegation in the particulars of claim that
Grindrod was aware of the fact that another identified company had been a
victim of the same fraudulent conduct ; a fact of which Grindrod was aware
because it shared a director with that company, and indeed financed that
company’s factoring enterprise. There is in fact no allegation that Grindrod
was aware that anyone besides itself and its associate w as a victim of frauds
perpetrated by Nat Industries.
(e) It is alleged that Grindrod was aware that the world at large would place
confidence in Nat Industries as it was transacting with Grindrod Bank. Nothing
is said about how the world at large would have known that Nat Industries had
is said about how the world at large would have known that Nat Industries had
conducted any business with Grindrod. (The allegation is all the more
remarkable because Grindrod is asked to bear responsibility for the losses
sustained by “others” after Grindrod had terminated its business dealings with
Nat Industries , despite the fact that its business relationship with Nat
Industries lasted for less than a month.)
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[21] In my view none of these allegations take the matter any further. There is
no allegation that Finance Factors knew that Grindrod was discounting invoices
submitted by Nat Industries. There is no allegation that Grindrod knew that Finance
Factors was factoring invoices of Nat Industries. There is no allegation in particular
that Grindrod knew that false invoices were being submitted to Finance Factors .
Ultimately the case sought to be made by the plaintiffs is that Grindrod owed a duty
to all finance houses, and indeed to all who may do business with Nat Industries , to
protect them from any potential losses caused by doing business with Nat Industries.
Allowing that such a duty might be recognised as wrongful in delict would fix
Grindrod with an indeterminate liability with respect to an indeterminate number of
persons. Such an action is not sustainable in our law.
[22] There are peculiar and crucial features of the claims applying separately
to each of Nat Industries and Finance Factors which I deal with hereunder.
Claim Three
[23] This is the claim of Finance Factors. According to the pleadings it had
been factoring invoices of Nat Industries from January 2017. (The factoring
agreement between Nat Industries and Grindrod was only concluded at the end of
September 2017.) Finance Factors claims that at the time when Grindrod discovered
the fraud in October 2017 Nat Industries had discounted a “net” R26,9 million with
Finance Factors using forged Southey Invoices. ( The term “net” is used to signify
how much was due but unpaid at the time.) At the date of commencement of the
winding-up of Nat Industries (5th February 2020) that “net” figure had risen to R130,7
million. The contention is that the difference between the two amounts (R103,7
million) is owed by Grindrod as compensation for pure financial loss. According to
the particulars of claim the shortfall is solely attribut able to fraudulent invoices “in
the particulars of claim the shortfall is solely attribut able to fraudulent invoices “in
relation to Southey Holdings”. The claim is said to be supported by what is set out in
a schedule annexed to the particulars of claim. When I asked counsel for the
plaintiffs to comment on the fact that the heading to the schedule does not suggest
that it is confined to Southey invoices, I was advised that the heading is an error and
could easily be amended. Taking that assurance from counsel at face value, what
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the schedule reveals is that between January 2017 and November 2019 Finance
Factors took cession from Nat Industries of amounts apparently owing under forged
Southey invoices to the value of R5,3 billion.
[24] A plaintiff ’s vulnerability to harm is an important factor in considering
whether an omission by the defendant , which caused or was a cause of the harm,
should be regarded as actionable in delict, and in the enquiry as to whether harm by
way of pure financial loss should be recoverable. (See Edward Nathan Sonnenberg
Inc v Hawarden 2004 (5) SA 9 (SCA) at paragraphs 22 – 25, and the judgments
there referred to.) Finance Factors has pleaded in effect that it is sound policy, and in
accordance with justice, that by reason of the omission attributed to Grindrod , the
latter should in law be regarded as in effect the insurer of any losses sustained by
finance houses, or at least Finance Factors, as a result of doing business with Nat
Industries from October 2017 until the date of winding up. Such a finding would imply
that the law regards such money lenders as a vulnerable group, not capable of
taking care of their own interests , nor of ensuring that they d o not become the
victims of fraud ; and in particular incapable of taking care to establish that all
invoices submitted for discounting are genuine. That proposition is in my view
untenable.
[25] In the case of Finance Factors itself the position is perfectly clear. The
contract in terms of which it factored the Southey invoices i s annexed to the
particulars of claim. It expressly records the right of Finance Factors to contact
debtors in order to ensure that invoices submitted for discounting are genuine. It was
perfectly capable of avoiding the losses it allegedly incurred. Its claim remains as
expiable now as it was prior to any of the proposed amendments.
Claim Four
[26] This is the first plaintiff’s claim in delict. It is pleaded that when Grindrod
[26] This is the first plaintiff’s claim in delict. It is pleaded that when Grindrod
discovered the first plaintiff’s own fraud its liabilities exceeded its assets by R44,2
million. By 5th February 2020 the disparity had risen to R144,5 million. Its claim is for
the difference, some R100,3 million.
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[27] In my view in arguing in support of this claim Nat Industries and its
liquidators have confused the issue as to whether anything is owing by Grindrod to
Nat Industries, with the question as to whether any of the creditors of Nat Industries
have a claim against Grindrod. The liquidators have no right to pursue any claim
which may vest in any such creditor. Their power is restricted to recovery of what is
owing to Nat industries . Only one creditor, Finance Factors, has asserted a claim
directly against Grindrod. As to the remaining creditors their claims are against Nat
Industries only. Accordingly, if those creditors are to gain an advantage from claim
four against Grindrod, it will only be indirectly. The claim, if it exists, belongs to Nat
Industries only. A finding that the claim presently made in delict by Nat Industries
against Grindrod is actionable must rest on a finding that Grindrod had a duty to Nat
Industries to seek its winding up, and/or to report its conduct to the authorities , and
that Nat Industries is itself entitled to claim the pure economic loss it has claimed.
[28] The basis for the claim that a duty was owed is more than a little
confusing. In a paragraph sought to be introduced by the amendments it is said that
the entire indebtedness of R100,3 million “is attributable to the fact that Nat
Industries was able to continue trading”. In an earlier paragraph in the original
particulars of claim the allegation is the duty of care owed to Nat Industries was to
ensure that it did not continue to suffer losses in consequence of its own fraudulent
conduct.
[29] On the latter basis the claim amounts to this.
“You caught me passing fraudulent invoices. You owed me a duty to report me so
that I would stop this fraudulent activity. As you did not report me I carried on
committing fraud. Unfortunately I lost R100,3 million in the process. According to law
you are liable to compensate me for those losses.”
you are liable to compensate me for those losses.”
That proposition need only be stated in order to be rejected.
[30] If the claim is that the losses making up the sum of R100,3 million were
incurred in trade unconnected with any fraudulent activities, the answer would
remain the same. Here the contention is that Grindrod owed Nat Industries a duty to
prevent the latter from continuing in business , either by reporting the fraud or by
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applying to wind up the company. As Grindrod did not take steps to prevent Nat
Industries continuing in business, it is liable to make good losses that Nat Industries
happened to incur as a result of its own decision to continue in business. Again, the
contention is untenable. The pleading remains ex cipiable because it discloses no
cause of action.
Conclusion and the Appropriate Order
[31] It will be apparent that the discussion above also addresses the subject of
legal causation. The plaintiffs have not moved beyond pleading the ‘but for’ test,
which can establish factual causation only. The cause of the losses allegedly
sustained by Nat Industries was its own decision to continue trading (fraudulently or
otherwise) notwithstanding its insolvent condition at the end of October 2017. The
cause of the losses of Finance Factors was its decision (operative at all material
times) to do business with Nat Industries by factoring Southey invoices without
employing at any time the simple expedient of checking that the invoices were
genuine. Whether these circumstances are regarded in each case as a novus actus
interveniens, or merely as evidence of the level of remoteness between Grindrod’s
omission and the loss making conduct of the two plaintiffs, the answer remains the
same. There are no allegations made which, if proved, would establish the required
causal link between the omission and the losses allegedly incurred.
[32] The order made at the end of the first judgment simply upheld the
exceptions and granted the plaintiffs leave to amend the particulars of claim within
10 days of the date of the order. (The question of costs seems to have been
overlooked. One assumes that, acting sensibly, the parties could resolve that issue
without troubling the court which delivered the first judgment.)
[33] During the course of oral argument I raised the question as to whether, if
I found the objections to the amendments to be well founded, I should not now strike
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out the particulars of claim . Counsel for the plaintiffs argued that that would not be
the proper course as Grindrod had not sought an order striking out th e particulars of
claim. That is not entirely correct. Such a request was made when the exception was
first taken, and in my view applies equally to the objections to the notice s to amend
delivered in an attempt to cure the shortcomings in the pleading.
[34] In my view the correct approach is the one set out by Corbett CJ in Group
Five Building Limited v Government of the Republic of South Africa (The Minister of
Public Works and Land Affairs) 1993 (2) SA 593 (A) at 602.
“As far as I am aware, in cases where an exception has successfully been
taken to a plaintiffs initial pleading, whether it be a declaration or the further
particulars of a combined summons, on the ground that it discloses no cause
of action, the invariable practice of our courts has been to order that the
pleading be set aside and that the plaintiff be given leave, if so advised, to file
an amended pleading within a certain period of time.”
I propose to follow that invariable practice insofar as setting aside the initial pleading
is concerned. However t he plaintiffs have already been allowed the opportunity to
put matters right with amendments, but have succeeded in only one minor respect.
[35] In paragraph 41 of the first judgment the court recorded its intention to
follow Group Five Building , but only did so in part. It failed to set aside the errant
pleading, but did grant the plaintiffs leave to amend. As I understand it there was
arguably no need to deliver a notice in terms of Rule 28 (1). If an amended pleading
had been delivered it would have been susceptible to an exception that it also
disclosed no cause of action. The issues would have been the same as those now
before the court following the procedure under Rule 28 chosen by the plaintiffs
without objection from the defendant.
without objection from the defendant.
[36] Nevertheless, this is not an ordinary application to amend. It is an
extension of the right of the defendant to except on the basis that no cause of action
is disclosed. In my view the order required in this case is one which recognises that
the first judgment has already established that no cause of action has been
disclosed, and that where the application to amend is refused, that condition
continues to prevail.
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[37] Where I refer to paragraph numbers in the order which follows I am
referring to the proposed new paragraph numbers reflected in the rendition of the
particulars of claim reflecting the original text and proposed amendments, as
supplied by counsel with the plaintiffs’ heads of argument. I deal with both
applications for leave to amend together.
[38] I make the following order.
1. The amendments introducing or proposed to be made to the following
paragraphs of the particulars of claim are allowed, conditionally upon
compliance with paragraph 4(a) of this order.
(a) Paragraphs 13A to 13J.4 inclusive.
(b) Paragraphs 23; 26.3; 26.3A.
(c) Paragraphs 27A to 27D inclusive.
(d) The deletion of former paragraphs 29, 28.1, 29.1, 29.2 and 28.2
appearing immediately after paragraph 28.
(e) Paragraph 29C.
2. Save as aforesaid the applications for leave to amend are dismissed.
3. The paragraphs of the particulars of claim under the headings ‘Claim Two’,
‘Claim Three’ and ‘Claim Four’, and the associated prayers, are set aside.
4. The plaintiffs are directed to effect the following amendments to the
particulars of claim within ten (10) days of the date of this order, following the
process for making amendments provided by Rule 28(7).
(a) The substitution of the amount of R381 334.31 for the amount of
R8 581 334.31 in prayers 1 and 2, and the necessary amendments to
the pleading under the present heading ‘Claim One’ to confine the
claim to payment of R381 334.31.
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(b) The deletion of the paragraphs of the particulars of claim, and the
prayers, which are the subjects of paragraph 3 of this order.
5. In the event of the plaintiffs failing to comply with paragraph 4(a) of this order,
the leave to amend granted in paragraph 1 of this order shall lapse, and the
paragraphs of the particulars of claim under the present heading ‘Claim 1’
shall be regarded as set aside.
6. The costs of the applications to amend, including the notices delivered in
connection therewith, shall be paid by the first and fourth plaintiffs, their
liability therefor being joint and several. The costs of two counsel shall be
allowed. Senior counsel’s fees may be taxed on Scale C, and junior counsel’s
fees on Scale B.
_____________
Olsen J
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Case Information:
Date of Hearing: 27 July 2026
Date of Judgment: 25 August 2026
Counsel for the Plaintiffs: Smalberger SC with S Clarence
Instructed by: Lyle Lambert Inc
In amalgamation with
Marcus Lewis Robinson & Goulding
22 Salisbury Road
Morningside, Durban
Tel: 031 309 8576
Email: lyleandlambert@zamail.co.za
Ref: HT/SM/04/F007/005
Counsel for the Defendant: Annandale SC with R van Rooyen
Instructed by: Edward Nathan Sonnenbergs Inc.
1 Richefond Circle
Ridgeside Office Park
Umhlanga
Durban
Tel: 031 536 8600
Email: alombard@ensafrica.com
Ref: A Lombard/0500347