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[2014] ZAWCHC 43
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Tresso Trading 490 (Proprietary) Limited T/A Nexxus Corporation v Orion Cold storage (Proprietary) Limited (13638/2013) [2014] ZAWCHC 43 (24 March 2014)
REPUBLIC OF SOUTH
AFRIKA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
Number: 13638/2013
DATE:
24 MARCH 2014
REPORTABLE
In the matter
between:
TRESSO TRADING
490 (PROPRIETARY)
LIMITED t/a
NEXXUS
CORPORATION
............................................................................
Applicant
And
ORION COLD
STORAGE (PROPRIETARY)
LIMITED
.............................................
Respondent
JUDGMENT
DELIVERED ON 24 MARCH 2014
ZONDI, J:
[1] This is an
application for the provisional winding-up of the respondent on the
ground that it is unable to pay its debts within
the meaning of s 344
(f) of the Companies Act, 61 of 1973 read together with s 9 of
Schedule 5 of the
Companies Act, 71 of 2008
. The respondent’s
alleged indebtedness to the applicant arises from 132 containers of
frozen chicken products which the applicant
alleges it sold to the
respondent on 30 November 2012. In the alternative, the applicant
seeks judgment against the respondent
in the amount of R4 591 978.73.
[2] The respondent
opposes the application. It denies that it is indebted to the
applicant. It avers that at all material times
it acted as agent of
Central Grain and not as principal. As to the applicant’s
alternative claim for judgment for the payment
of the sum of R4 591
978.73 the respondent contends that such a claim is incompetent and
amounts to an abuse of the Court process
in view of the fact that the
applicant’s claim is bona fide disputed.
[3] The amount
claimed by the applicant is part of the purchase price of R14.4
million for 132 containers of chicken products which
the applicant
alleges it sold and delivered to the respondent in or about November
/ December 2012. According to the applicant
this consignment had
originally been intended for sale and export to a Zimbabwean company
called Central Grain trading as Deepcatch,
which for some reason
became unable to proceed with the sale transaction. In terms of the
sale agreement as pleaded by the applicant
the respondent was to pay
R14 463 221.75 for the consignment and the purchase price was payable
in three equal instalments. The
first instalment would be due one
month after the “transfer in bond” from the applicant to
the respondent had been
effected. The second instalment would be due
one month after the first instalment, and the third instalment one
month after the
second. The applicant was to retain ownership of the
products until the purchase price had been paid in full.
[4] The applicant
contends that the respondent acted as a purchaser, not as agent of a
third party in concluding the agreement for
the sale of chicken
products. In support of this averment the applicant refers to, and
relies, on the two sales confirmations documents
(“AM2”
and “AM3”) which it issued for the delivery of 32
containers, which the respondent had onsold to
Chester Meat
Wholesalers for R3 376 000 and for the remaining containers. These
two sales confirmations according to the applicant
were signed on
behalf of the respondent on 11 December 2012 by its logistics
manager, Mr Jumat.
[5] Although the
respondent admits to signing the relevant sales confirmations, it
contends that it did so as an agent for Central
Grain. The respondent
alleges that Mr Mapolie (“Mapolie”) of the applicant was
aware that if the chicken products were
invoiced to Central Grain,
this would alert the Customs and Excise Officials to the existence of
the scheme by which chickens were
exported to Zimbabwe at an
understated value. It avers that the two sales confirmations were
signed in error by Jumat. It contends
he should have signed them as
the agent of Central Grain, not the buyer. How this alleged error
came about is, however, not explained
by the respondent and for this
reason it should be accepted that the relevant sales confirmations
were signed by Jumat who had
the necessary authority to do so.
[6] It is, however,
common cause that delivery of the consignment to the respondent was
effected by the applicant by issuing “transfer
of ownership”
letters for custom purposes. The first letter was issued on 5
December 2012 with regard to the 100 containers
stored with
Commercial Cold Store and the second on 7 December 2012 in respect of
the 32 containers stored with Sequence Cold Store.
[7] Thereafter, on 4
January 2013, the applicant sent the respondent VAT invoices in
respect of the consignment. This is not denied
by the respondent
although it contends that Mapolie was at all times aware that Central
Grain was in fact the purchaser of the
goods and that it was liable
for payment. The respondent alleges that Central Grain sought its
assistance to obtain the release
of the chicken from the applicant
and to dispose of the stock on its behalf in South Africa, in order
to conceal the identity of
the true purchaser of the chicken from the
Zimbabwean authorities. This suggestion is denied by the applicant.
It alleges that
when it came to its attention during January 2013
that Central Grain was taking the position that it had sold the
consignment to
the respondent and was accordingly intending to
invoice the respondent, the applicant informed the respondent that
the respondent
was liable for the payment for the consignment as it
was sold to it, not to Central Grain.
[8] In this regard
the applicant refers to the email it forwarded on 9 January 2013 to
Mr Baker and Gaertner of the respondent.
The email reads:
“Andy, as
mentioned on the phone, I have spoken to Patrick of Orion and have
confirmed with him as follows:
Tresso Trading 490
(Pty) Ltd t/a Nexxus Corporation has legally imported the stock in
question into South Africa. A customs bond
transfer was effected to
Orion Cold Storage for a total of 100 Containers of Chicken Backs &
and Carcasses. Orion has accepted
the transfer of these good and
valid tax invoices has been raised against them. Terms of the
agreement has been 1/3 to be paid
on 30 days from Invoice (due 9th
January 2013), 1/3 to be paid on 60 days from Invoice, and 1/3 to be
paid on 90 days from invoice.
Patrick has advised
that he has received an invoice from Deep Catch and have been
requested to pay funds over to them. This unfortunately
cannot happen
legally. The correct flow of funds is from Orion Cold Storage to
Nexxus against valid invoices and transfers. Any
other manner of
transacting would open up a while set of issues with regards to South
African Revenue Services and as well as Foreign
Exchange control
through the Reserve Bank. Our auditors are Deloitte, and they are
very stringent on their reporting standards
and we do not wish to be
involved in any complicated issues that could lead to investigations
in South Africa.
Please kindly
instruct Orion Cold Store to release the funds that are due to Nexxus
so payment can be made today, failing that we
will have to issue a
letter of demand to them.
Patrick has come to
the rescue on this whole deal and it would not be fair to place them
in the middle of this as they have nothing
to do with the entire deal
from the beginning.
Thanks in advance
for your speedy action.”
[9] It is common
cause that by March 2013 the respondent had not paid the first
instalment. The applicant had to write to the respondent
demanding
payment of the instalment that had become due. The respondent failed
to comply with the demand. Again on 14 March 2013
the applicant sent
an email to the respondent enquiring about payment. In reply thereto
the respondent by email (“AM18”),
also dated 14 March
2013, informed the applicant:
“For our
records I would like these docs before the 2nd payment falls due
please – or earlier should customs require
it. I think that’s
more than reasonable.
First payment is
scheduled for tomorrow – Sat at the latest. As per my agreement
with Jared, here is the breakdown.
NEXXUS INVOICE
R14 463 221.75
Storage up to
14/02 -R2 710 793.00
_________________
R11 752 428.75
=================
Overdue invoices
Deepcatch R3 331 508.00
R8 420 920.75
Payment 15-Mar R2
806 973.58
15-Apr R2 806
973.58
14-May R2 806
973.58
Invoice Date
2202523
08/02/2013 R686 333.00
2202568
19/02/2013 R53 820.00
2202569 19/02/2013
R51 940.00
2202579
20/02/2013 R667 046.00
2202587
22/02/2013 R413 600.00
2202636 06/03/2013
R434 770.00
2202649 07/03/2013
R206 110.00
2202665
08/03/2013 R180 500.00
2202696 13/03/2013
R475 920.00
2202696 13/03/2013
R3 170 039.00
UHT Milk in Store
dc order 903 214 dd 23/08/2012 R161 469.00 dc order 903 213
dd 23/08/2012 R161 469.00
Total Goods supplied
in lieu of payment R3 331 508.00
=================
Regards”
[10] The applicant
did not receive payment from the respondent as undertaken by it on 14
March 2013. A meeting was held between
Mapolie and Gaertner on 29
April 2013 to discuss payment. The parties reached an agreement, full
details of which were confirmed
by Mapolie in the email dated 29
April 2013. The email (“AM19”) reads:
“I refer to
our meeting at your premises this morning.
As discussed and
agreed the transaction between Deep Catch Namibia and Orion Cold
Store really has nothing to do with the stock
sold to Orion by
Nexxus. Legally the offsetting between the accounts is not correct
despite the fact that Jared tried to assist
the matter by buying
stock from Orion. However, as a gentleman’s agreement and
understanding it has been agreed that Orion
will hold back an amount
of circa R4million until DC Namibia pays Orion. DC Namibia will be
instructed to pay up to the Orion Account
as soon as possible so the
balance of the monies can be transferred to Nexxus.
Orion is also
disputing an amount of circa R2million for storage that will be
handled as a separate matter.
It was further
agreed that this leaves an amount of ±R8.6million that is
currently not under dispute. Patrick has agreed
that Orion will
transfer stock back to Nexxus (unknown amount) and that the balance
of what is outstanding of the ±R8.6million
will be paid in
parts after the stock value has been deducted. The payment will be
structured as follows:
1/3 Payable Friday
03/05/2013
1/3 Payable Friday
10/05/2013
1/3 Payable Friday
17/05/2013
Patrick, please can
you urgently confirm the quantum of the containers that will be
transferred and their reference numbers so we
can arrange for the
XRW’s to be cancelled by our clearing agent. Also, as per your
commitment this morning please kindly
do not disappoint us on the
payment I am counting on your word.
Sirs whilst it pains
me to do business in this way I will agree to these terms as I would
like to reach an amicable agreement on
this so we can all move on
with our lives. I must re-iterate at this stage that whatever
business dealing there are between Nexxus
and DC Zimbabwe does not
involve Orion and we will resolve these matters between us.
Patrick please can
you kindly concur that that above is what have been agreed.”
[11] Pursuant to the
agreement reached on 29 April 2013, the respondent transferred to the
applicant ownership of 32 containers
on 9 May 2013, in respect of
which the respondent’s account was credited in the amount of
R3 593 800. In terms of this agreement
the storage costs as well as
standing time invoice were to be handled separately.
[12] The respondent
denies that it is indebted to the applicant in the amount claimed by
it. Its version is that the purchase and
sale of the 132 containers
of frozen chicken was not a transaction between the applicant and the
respondent, but was in fact between
the applicant and Central Grain
of Zimbabwe. The respondent alleges that the applicant and Central
Grain did a great deal of business
over a long period of time in
respect of the importation into Zimbabwe of perishable goods from
South
America. The
applicant would attend to the import of these perishable goods on
behalf of Central Grain, utilising a company called
Mega Freight as
its clearing agent. The goods would be placed in cold storage for the
account of the applicant. Central Grain had
a running account with
the applicant and the importation of the 132 containers was only part
of a much more extensive course of
dealing. It is further alleged by
the respondent that due to the tighter boarder controls in Zimbabwe
and substantially higher
import tariffs for chicken, imports of
chicken into Zimbabwe virtually stopped overnight. The effective
smuggling of thousands
of tons of chicken across the South
African/Zimbabwean boarder came to an end. This sequence of events
resulted in a huge build-up
of chicken products in cold stores in
Durban as the orders from South America could not be cancelled. Large
volumes of chicken
products had already been shipped to Durban or
were on route and in many cases prepaid.
[13] The respondent
explains that it was against this background that it was approached
by Central Grain to attempt to dispose of
chicken product which was
stored on its behalf in Durban and in respect of which it was
incurring substantial storage costs with
the applicant. It alleges
that the conclusion of this particular transaction was facilitated by
Jared Geyser of an entity called
Deepcatch in Namibia with whom the
respondent had had various dealings in the past. It was on that basis
that the respondent concluded
an agreement with Central Grain in
terms of which it would endeavour to market and dispose of the
chicken products on its behalf.
It avers that it was agreed with
Central Grain that the respondent would account to Central Grain for
the proceeds. The respondent
emphasises that at all times it acted as
the agent of Central Grain. At no stage was it the purchaser of the
chicken products from
the applicant and the applicant was aware that
the respondent was acting on behalf of Central Grain in concluding
the transaction
for the purchase of 132 containers of frozen chicken.
[14] The respondent
further alleges that Central Grain was represented by Mr Sonnie
Roussouw and Mr Andrew Baker in concluding the
agreement. According
to the respondent the applicant was paid in full by Central Grain in
respect of the perishable products purchased
from the applicant over
the period between 10 April 2012 and 20 May 2013. In support of this
averment the respondent refers to,
and relies on, a spread sheet
prepared by the applicant which reflects all the transactions between
applicant and Central Grain
from 26 October 2012, which the
respondent contends serves to prove that the applicant was paid in
full. The respondent further
points out that the agreement between
the applicant and Central Grain was that the respondent as an agent
of Central Grain would
make monthly payments during March, April and
May to the applicant from the funds derived from the sale of the
chicken. These are
the amounts referred to in the email of 14 March
2013 (“AM18”) as being payable on 15 March 2013, 15 April
2013 and
14 May 2013. But it says it could not pay on the agreed
dates because it did not hold sufficient funds on behalf of Central
Grain.
It points out that subsequent to this arrangement Central
Grain instructed the respondent not to make payments to the applicant
as Central Grain had by then already paid the applicant in full.
[15] As far as the
allegation that the respondent is factually insolvent is concerned,
the respondent denies that it is insolvent
and in support of the
denial it refers to its audited annual financial statement for the
year ended 28 February 2013. From the
statement it appears that the
respondent has a retained income of R21 406 121; its current assets
amount to R50 861 921; its turnover
for the relevant period was over
R142 million and its current assets exceed its current liabilities by
over R20 million.
[16] The question is
whether the applicant has, in light of the respondent’s
averments forming basis of its defence, made
out a prima facie case
against the respondent. The determination of this question is
important because winding-up proceedings ought
not to be resorted to
in order to enforce payment of a debt the existence of which is bona
fide disputed by the company on reasonable
grounds; the procedure for
winding-up is not designed for the resolution of dispute as to the
existence or non-existence of a debt.
(Hülse-Reutter and Another
v Heg Consulting Enterprises (Pty) Ltd (Lane & Fey NNO
Intervening)
1998 (2) SA 208
(C) at 219 E-J; Badenhorst v Northern
Construction Enterprises (Pty) Ltd
1956 (2) SA 346
(T); Kalil v
Decotex (Pty) Ltd
1988 (1) SA 943
(A) at 956 I-J; Commonwealth
Shippers Ltd v Mayland Properties (Pty) Ltd (United Dress Fabric
(Pty) Ltd and Another Intervening)
1978 (1) SA 70
(D) at 72A). This
is so because motion proceedings such as these are aimed at the
resolution of legal issues based on common cause
facts. They are
simply not geared toward the decision of factual disputes. As a
result it is well established that, where in motion
proceedings
disputes of fact arise on the papers, the matter can only be decided
on the respondent’s version of the disputed
facts, unless that
version is so far-fetched or clearly untenable that it can
justifiably be rejected merely on the papers. It
makes no difference
to this approach that motion proceedings have been dictated by the
legislature. (Oakdene Square Properties
(Pty) Ltd and Other v Farm
Bothasfontein (Kyalami) (Pty) Ltd and Others
2013 (4) SA 539
(SCA)
para 3). Respondent in a liquidation application who disputes the
applicant’s claim does not have to establish that
the company
will succeed in any action which might be brought against it by the
applicant to enforce its disputed claim. All that
is required of the
respondent is to allege facts which, if put at trial, would
constitute a good defence to the applicant’s
claim. Where the
application is opposed as in this case, and the factual disputes have
been raised in the affidavits in deciding
whether or not the
applicant has made out a prima facie case, regard should be had not
only to the applicant’s papers but
also to the respondent’s
rebutting evidence (Kalil v Decotex (Pty) Ltd supra at 976H).
[17] What emerges
from the respondent’s defence is that the applicant had a long
trading relationship with Central Grain which
carried on a business
of importing perishable goods from South America. The purchase of the
132 containers of frozen chicken was
not a transaction between the
applicant and the respondent but between the applicant and Central
Grain. And that because of the
tighter boarder controls in Zimbabwe
and substantially higher import tariffs for chicken, there was a
large build-up of chicken
products in cold stores in Durban as orders
from South America could not be cancelled. An agreement was concluded
between the respondent
and Central Grain in terms of which the
respondent would endeavour to dispose of the frozen chicken on its
behalf. The respondent
alleges that at no stage was it the purchaser
of frozen chicken from the applicant. In terms of an agreement
concluded with the
applicant and Central Grain, the respondent, as
the agent of Central Grain would make payments to the applicant with
funds derived
from the sale of the chicken and that these payments
would be made between March and May 2013. Chicken to the value of R3
331 508
would be supplied to Deepcatch. The value of frozen chicken
supplied to Deepcatch would be deducted from the amount owing by the
respondent to Central Grain. It is further alleged that the applicant
has been paid in full by Central Grain for the consignment
of 132
containers of frozen chicken purchased by it. The respondent has
filed a supporting affidavit deposed to by one Roussouw
of Central
Grain confirming the nature of relationship between it and the
respondent as regards the purchase of the relevant chicken
products.
[18] The respondent
in its defences raises at least three issues which in my view are of
fundamental importance. The first is whether
the respondent is
commercially and/or factually insolvent; secondly, is the capacity in
which the respondent acted in concluding
the agreement for the sale
of 132 containers of chicken with the applicant; and thirdly, is
whether Central Grain on whose behalf
the respondent allegedly acted
in concluding the transaction, has paid the applicant in full for the
consignment. The parties are
sharply divided on these issues.
[19] Regarding the
respondent’s factual insolvency as a ground for the provisional
winding-up of the respondent, I am not
satisfied, having regard to
the content of the respondent’s audited annual financial
statement, that the applicant has established
a prima facie case
based on that ground. It is clear from the respondent’s
relevant financial statement that the respondent’s
current
assets exceed its current liabilities by over R20million and it has a
retained income of R21 406 124. In the circumstances
there can be no
basis for the contention that the respondent is factually insolvent.
I am also not satisfied that the applicant
has established commercial
insolvency on the part of the respondent as explained by Caney J in
Rosenbach and Co. (Pty) Ltd v Singh’s
Bazaars (Pty) Ltd 1962
(4) 593 (D). The respondent denies that it is indebted to the
applicant in the amount claimed. It sets out
facts on which its
denial is founded and the facts underlying its defence cannot be said
to be far-fetched to justify their rejection
merely on the papers.
The grounds on which the respondent contends that it is not indebted
to the applicant raise a serious challenge
to the applicant’s
claim that the respondent is commercially insolvent. It is clear
therefrom that the respondent’s
indebtedness to the applicant
is being bona fide disputed on reasonable grounds (Badenhorst supra
at 347H – 348B). In other
words, it refuses to pay. (Absa Bank
v Rhebokskloof (Pty) Ltd & Others
1993 (4) SA 436
(C)).
[20] At the
commencement of his argument Mr Olivier, who appeared for the
applicant, submitted in the alternative on authority of
Kalil v
Decotex supra at 981 D, that in the event of the Court finding that
the probabilities are evenly balanced in regard to
the factual
disputes, the Court should order that the matter be referred for
hearing of oral evidence. He submitted that the present
case was a
proper case for a referral to oral evidence. He advanced two reasons
for his contention. First, he argued that the respondent
had admitted
that it is indebted in the amount claimed by the applicant. In this
regard he referred to “AM18” which
he argued establishes
the respondent’s indebtedness to the applicant and how that
indebtedness was to be paid. He argued
that it was clear from this
document that the applicant’s initial invoice of R14 463 221.75
was not disputed. Secondly, he
argued that the respondent never
disputed the correctness of the manner in which payment was to be
made as set out in the email
(“AM19”) addressed by the
applicant to the respondent on 29 April 2013, to which the respondent
did not reply. He pointed
out that prior to the institution of these
proceedings at no stage did the respondent inform the applicant that
it had been acting
on behalf of Central Grain in the transaction. Mr
Olivier submitted that the respondent, by failing to dispute the
correctness
of the assertions contained in the letter of 29 April
2013, must be taken to have admitted them. As authority for this
proposition
he referred to McWilliams v First Consolidated Holdings
(Pty) Ltd
1982 (2) SA 1
(A) 10D-H. The request for the matter to be
referred to oral evidence was strongly objected to by Mr Woodland on
behalf of the
respondent, who argued that it would result in a matter
being heard on a piece-meal basis. He submitted that the applicant
should
not have brought this application because it should have been
aware that there was going to be a dispute of fact as the respondent
disputed the debt on bona fide and reasonable ground.
[21] I am not
satisfied that the applicant has established a prima facie case for
the relief it seeks. The probabilities are evenly
balanced. The
question is whether I should exercise my discretion and refer the
matter to oral evidence on disputed issues as requested
by the
applicant. It is correct that an application for the hearing of oral
evidence must, as a rule, be made in limine and not
once it becomes
clear that the applicant is failing to convince the Court on the
papers. (Law Society, Northern Provinces v Mogami
and Others
2010 (1)
SA 186
(SCA) para 23; De Reske v Maras and Others
2006 (1) SA 401
(C)
paras 32 – 33). In the latter case the dicta in Kalil v
Decotex, supra at 981 F and in Adminstrator Transvaal, and Others
v
Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 200C were referred to
with approval.
[22] In view of the
fact that the probabilities are evenly balanced in this matter, I
shall accede to the applicant’s request
and refer the matter to
oral evidence. I say the probabilities are evenly balanced for the
following reasons, (some of which are
in favour of the applicant and
others against it). First, when the respondent signed the sales
confirmations and the letters of
transfer of ownership in respect of
the consignment it did not inform the applicant that it was doing so
as an agent of Central
Grain. Secondly, when the respondent sought to
withhold payment it did not state that it was doing so because of the
fact that
the monies were not due to the applicant or that payment
was due by Central Grain or that Central Grain was to have placed the
respondent in funds. Thirdly, the respondent did not dispute the
correctness of the averments which the applicant made in the email
of
29 April 2013. The applicant therefore did not know nor could it
anticipate before instituting these proceedings what the respondent’s
defence would be. On the other hand, the respondent’s claim
that it acted on behalf of Central Grain may not be without
foundation. There is a reference to Jarred of Deepcatch in the
respondent’s email of 14 March 2013 (“AM18”).
Jarred is alleged to have given instruction to the respondent on how
to calculate the quantum of the amount owing to the applicant
and how
it was to be paid. Finally, the respondent’s allegation that
Central Grain had made part-payment to the applicant
is not disputed
by the latter which, in my view, supports the respondent’s
version that the agreement was primarily between
the applicant and
Central Grain and that it (the respondent) only acted as the agent of
the latter.
[23] In fact the
applicant concedes that it received pre-payments from Central Grain
for the relevant chicken products although
it avers that those
payments did not result, nor were they intended to result, in the
transfer of ownership. But the applicant’s
explanation as to
what the payments were intended for, is irrelevant. What is important
is that Central Grain did make some payments
to the applicant and
these payments were not taken into account by the applicant in
calculating the total amount claimed. The nature
of these payments
and the extent to which they would have affected the quantum of the
applicant’s claim should have been
disclosed by the applicant.
[24] In the light of
these facts this case is in my view, a proper case for the referral
of the matter to oral evidence.
[25] In the result I
make an order in the following terms:
1. The application
is postponed to a date to be arranged by the Registrar of this Court
for the hearing of viva voce evidence.
2. The issues to be
resolved at such hearing are:
2.1 whether the
applicant is a creditor of the respondent; and, if so,
2.2 whether the
respondent had given an undertaking on 29 April 2013 to pay the
applicant.
3. The evidence to
be adduced at the aforesaid hearing shall be that of any witnesses
whom the parties or either of them may elect
to call, subject,
however, to what is provided below.
4. Save in the case
of any persons who have already deposed to affidavits in these
proceedings, neither party shall be entitled
to call any person as a
witness unless –
4.1 it has served on
the other party, at least fourteen[14] days before the date appointed
for hearing, a statement by such person
wherein the evidence to be
given in chief by such person is set out; or
4.2 the Court, at
the hearing, permits such person to be called despite the fact that
no such statement has been so served in respect
of his evidence.
4.3 Either party may
subpoena any person to give evidence at the hearing, whether such
person has consented to furnish a statement
or not.
4.4 The fact that a
party has served a statement or has subpoenaed a witness, shall not
oblige such party to call the witness concerned.
4.5 Within thirty
[30] days of the making of this order, each of the parties shall make
discovery on oath, of all documents relating
to the issues referred
to above, which documents are, or have at any time been, in
possession or under control of such party.
4.6 Such discovery
shall be made in accordance with Rule 35 of the Uniform Rules of
Court and the provisions of that Rule with regard
to the inspection
and production of documents discovered shall be operative.
4.7 The costs of the
hearing of the application are to be determined by the Court which
hears the postponed application.
D H ZONDI
JUDGE OF THE HIGH
COURT