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[2014] ZAWCHC 71
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Stassen Sheriff of the High Court, Bellville v De Ville Cabinet Component CC and Others (16118/2012) [2014] ZAWCHC 71 (9 May 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO. 16118/2012
DATE:
09 MAY 2014
REPORTABLE
In the matter
between:
JA
STASSEN-SHERIFF OF THE HIGH COURT,
BELLVILLE
..............................................................................................................
APPLICANT
And
DE VILLE CABINET
COMPONENT CC
…......................................
FIRST
RESPONDENT
ILIAD AFRICA
TRADING (PTY) LTD t/a
CITYWOOD
CAPE
...................................................................................
FIRST
CLAIMANT
GABRIEL G DE
VILLIERS
...............................................................
SECOND
CLAIMANT
JUDGMENT
DELIVERED ON
FRIDAY, 09 MAY 2014
DLODLO, J
INTRODUCTION
[1] The First
Claimant obtained a default judgment against the First Respondent.
Pursuant to the said judgment the Sheriff of the
Court armed with the
necessary writ of execution attached several movable assets at the
premises of the First Respondent situated
at 40 Willow Road,
Stikland. The Second Claimant thereafter made a claim that he is in
fact the owner of all the attached movable
assets. Acting in terms of
the provisions of Rule 58 the Applicant (Sheriff of the Court) issued
these proceedings known as interpleader
proceedings. Rule 58 provides
as follows:
“58 (1) Where
any person, in this rule called ‘the applicant’, alleges
that he is under any liability in respect
of which he is or expects
to be sued by two or more parties making adverse claims, in this rule
referred to as ‘the claimants’,
in respect thereto, the
applicant may deliver a notice, in terms of this rule called an
‘interpleader notice’, to the
claimant. In regard to
conflicting claims with respect to property attached in execution,
the Sheriff shall have the rights of
an applicant and an execution
creditor shall have the rights of a claimant.
(2) (a) Where the
claims relate to money the applicant shall be required, on delivering
the notice mentioned in sub-rule (1) hereof,
to pay the money to the
registrar who shall hold it until the conflicting claims have been
decided.
(b) Where the claims
relate to a thing capable of delivery the applicant shall tender the
subject-matter to the registrar when delivering
the interpleader
notice or take such steps to secure the availability of the thing in
question as the registrar may direct.”
[2] In casu
according to the papers filed in this matter the assets attached are
kept under lock and key in the very premises in
which the attachment
took place. Each claimant must file particulars of claim.
Importantly, the content of these particulars always
depends on the
nature of the claim. Needless to mention that the purpose of the
statement is to acquaint the opponent with the
tenor of the case so
that he or she can decide whether to oppose the claim. There is no
need that a claimant in the proceedings
like these sets out the claim
with precision which is normally required of a pleading.
SCHEDULE OF
ATTACHED ASSETS
[3] The movable
assets attached the ownership of which is contested are the
following:
1 x Griggio Table
Saw
1 x Speedy 201 NC
Drill
1 x Edgebonder
1 x SCM Table Saw
1 x Spindle
1 x Dikte Plane
1 x Vlak Plane
1 x 6 Sak vacuum
Cleaner
1 x 3 Sak vacuum
Cleaner
1 x 2 Sak vacuum
Cleaner
1 x Overhead Router
1 x Metal Storage
racks
1 x De Walt Arm Saw
7 x Work benches
1 x Spray Room
(Fixture)
Toshiba Copy &
Fax Machine
2 x Office Desks
1 x PC Complete
18 x Wood Clamps
1 x Cannon Printer
THE LEGAL
PRINCIPLE AND THE QUESTION OF ONUS
[4] The law in this
regard is set out in Zandberg v Van Zyl 1910 AD at 302. In short and
according to the afore-going authority
there is a rebuttable
presumption in our law that a person in whose possession assets are
found is assumed to be the owner of such
assets. Describing the above
the court in Zandberg v Van Zyl supra reasoned as follows:
“I quite agree
with Mr Justice Hopley that the reasons for the judgment of the
majority of the Court in Fivaz v Boswell are
by no means
satisfactorily founded, as they are on English cases, which again are
founded on English statute law. The principle,
however, underlying
the decision in that case appears to me quite in accord with our law,
namely, that possession of a movable
raises a presumption of
ownership; and that therefore a claimant in an interpleader suit
claiming the ownership on the ground that
he has bought such movable
from a person whom he has allowed to retain possession of it must
rebut that presumption by clear and
satisfactory evidence. The fact
that he has bought a thing which does not require himself, but allows
the seller to use, requires
full explanation, and in the absence of
such explanation a Court is justified in drawing its own reasonable
inferences. …..Voet
(18, 3, 7 and 8) refers to the pactum de
retrovendendo, by virtue of which it is agreed that the seller shall
have the right to
re-purchase a thing sold by him for the same price
which he has received as being a usual legal pact; but Voet appears
to assume
that, until the exercise of such right, the thing would be
in the possession of the original purchaser. If the thing is allowed
to remain in the possession of the seller, and it is manifest that
the real object of the parties was not to transfer the ownership
to
the purchaser, but to secure the payment to him of a debt owing to
him by the seller, the obvious conclusion is that the intention
of
the parties was to effect a pledge, and not a sale.”
[5] The essence of
the above is simply that possession of a movable raises a presumption
of ownership, and therefore a person claiming
the ownership in an
interpleader suit, on the ground that he bought such movable from the
person whom he has allowed to remain
in possession of it, must rebut
the presumption by clear and satisfactory evidence. Accordingly Mr
Smit is correct in starting
his submission as follows:
“’n
Weerlegbare vermoede in ons reg bestaan dat die persoon wat in besit
van goedere is, word geag die eienaar van daardie
goedere te wees. In
hierdie geval was die Tweede aanspraakmaker wel in besit van die
goedere ten tyde van die beslaglegging daarvan
deur die Applikant.
Hierdie vermoede is wel weerlegbaar indien die ware eienaar voldoende
bewyse kan toon dat die goedere wel aan
hom/haar behoort.”
[6] Amler’s
Precedents of Pleadings (7th edition) has the following exposition of
law in this regard:
“ONUS: A party
who relies on ownership in an object must allege and prove the right
of ownership.
MOVABLES: Transfer
of ownership of corporeal movable property requires delivery –
the transfer of possession of the property
by the owner to the
transferee-coupled with a real agreement between the parties. The
constituent elements of a real agreement
are the intention of the
owner to transfer ownership and the intention of the transferee to
acquire it. Legator McKenna Inc v Shea
[2009] 2 ALL SA 45
(SCA).
…………………………..
POSSESSION: Reliance
may be placed on the factual presumption of ownership arising from
possession. Zandberg v Van Zyl
1910 AD 302
; Ruskin v Thiergen [1962]
3 ALL 466 (A),
1962 (3) SA 737
(A); Hefer v Van Greuning
1979 (4) SA
952
(A) 959.
Unless the matter is
raised by the other party on the pleadings, a purchaser who has
received delivery need not prove that a predecessor
in title was a
true owner or that ownership was acquired from a true owner. Concor
Construction (Cape) Pty Ltd v Santambank Ltd
[1993] 2 ALL SA 496
(A),
1993 (3) SA 930
(A) 937”.
THE EVIDENCE (BY
THE SECOND CLAIMANT)
[7] Mr Gabriël
De Villiers (hereinafter called “the Second Claimant”)
testified that he was the sole proprietor
of a business called
Shopfit during 1975 to about 1996, a business which was started from
his home garage. Since about 1996, the
same business started to trade
under the name and style of De Ville until such time as the business
was taken over by Francois,
his son. Prior to the take-over of the
business, the Second Claimant had purchased several tools of trade
and manufactured some
assets himself. The majority of these are now
the subject of this dispute. The Second Claimant is the owner of the
business premises
situated at 40 Willow Road, Stikland. Prior to the
take-over of the business, the business was run from the larger
section of the
premises, but subsequent to Francois’s
take-over, it was moved to the smaller section in order for the
Second Claimant to
rent out the larger section to a third party.
[8] When Francois
took over the business, testified the Second Claimant further, he
(Francois) started to conduct the business under
the name and style
of De Ville Cabinet Components CC (the First Respondent). According
to the testimony of the Second Claimant,
a written lease agreement
was concluded on 17 October 2006 between the Second Claimant and the
First Respondent, represented by
Francois. In terms of this agreement
the premises as well as the movable assets of the Second Claimant was
leased to the First
Respondent. According to the Second Claimant
these assets were the same ones used by the Second Claimant in his
business.
[9] The evidence of
the Second Claimant and what appears in Annexure “SCB10”
on 17 October 2008 a written lease agreement,
specifically intended
to deal with the assets, was concluded between the Second Claimant
and Francois. This agreement had a schedule
annexed to it in which
the Second Claimant’s assets were listed (“the
schedule”). The schedule also contained
an agreement in terms
whereof Francois could purchase the assets at a purchase price of
R200 000.00. This, however, according to
the Second Claimant, was
never paid and as such the assets were never sold to Francois. The
Second Claimant testified and this
is also documented that later, on
about 13 August 2009, the Second Claimant and the First Respondent
once again concluded a further
lease agreement for the same premises
and the same assets.
[10] During
cross-examination Mr Smit on behalf of the First Claimant referred
the Second Claimant to clause 15 of the latter agreement
and made a
statement or an assertion to him that the entire clause was inserted
only recently as a result of the attachment. This
was denied by the
Second Claimant and he replied that the clause contained two
sub-clauses and that the first sub-clause was inserted
on about 1
October 2010 when the parties renewed the agreement. This explanation
was later on confirmed by Francois when he testified.
[11] According to
the Second Claimant the agreement or understanding between himself
and Francois was that the First Respondent
and/or Francois will lease
the assets on condition that (a) the Second Claimant will at all
times remain the owner thereof; (b)
any item that breaks must be
restored or replaced; (c) any replaced item becomes the property of
the Second Claimant. The Second
Claimant was then referred to each
item that was attached by the Sheriff, as per the interpleader
summons, during which he confirmed
that he was the owner of all the
assets.
[12] The Griggio
Table Saw included as item 2 on the schedule (according to the Second
Claimant) was bought by him from funds obtained
from ABSA Bank in
terms of a loan. Indeed a letter from ABSA Bank dated 2 May 1996 was
submitted as proof of his loan – this
is Annexure “SCB17”
in the papers before Court. The Speedy 201 NC Drill according to the
Second Claimant, is in fact
a Speedy 207 NC Drill and on the schedule
it is item 3 and was purchased from the same ABSA loan.
[13] The 6, 3 and 2
bag vacuum cleaners are collectively indicated as item 12 on the
schedule. According to the evidence by the
Second Claimant these were
purchased from the funds obtained from the ABSA loan. The overhead
router is item 5 on the schedule,
evidence also shows that this was
also purchased from the ABSA loan by the Second Claimant. The spray
room (fixture) according
to the evidence by the Second Claimant was
purchased and erected from the funds obtained from the ABSA loan. It
was installed due
to the demands of the Second Claimant’s
business. The Second Claimant explained that the spray room is fixed
to the premises,
which belong to the Second Claimant himself.
[14] According to
the Second Claimant’s evidence the spray room had to have been
installed prior to the take-over of the business
because a compressor
is used with it and two compressors are listed in the schedule.
Francois, who testified after the Second Claimant,
testified that
there were only two compressors. One was used for general purposes
and the other was used in the spray room. According
to the evidence,
the assertion that above items were purchased from the ABSA loan is
supported by the Second Claimant’s pencil
handwritten note that
was (according to evidence) made on the ABSA letter in 1997.
[15] According to
the Second Claimant the item known as the Edgebounder is a
replacement item. He testified that he had purchased
a Hebrock
machine from A Hüster Machine Tool Company as evidenced by the
invoice received from them. The invoice concerned
is Annexure “SCB8”
in the Founding papers. According to the evidence this machine later
broke and it had to be replaced.
Thus the Edgebounder was the machine
with which the Hebrock was replaced and as per the agreement with the
First Respondent and/or
Francois it became the property of the Second
Claimant. The SCM Table Saw which is item 10 on the schedule was
purchased by the
Second Claimant in 1983 from National Trading Co Ltd
as per their invoice Annexure “SCB22”.
[16] The spindle is
item 4 on the schedule and was purchased by the Second Claimant in
1992 from Architecnic as per their invoice
– Annexure “SCB21”.
The “dikte plane” and the “vlak plane” items
7 and 8 respectively
on the schedule also belong to the Second
Claimant. According to the evidence the Second Claimant had purchased
similar planes
at an auction in 1977. These are the first two items
on the letter from the Controller of Customs & Excise –
Annexure
“SCB23”. These were later replaced by the Second
Claimant (and not Francois) but the Second Claimant testified that
documents pertaining to these items were destroyed. The Second
Claimant had also purchased the metal storage racks in about 1980
from Acrow Engineering; the record supporting this claim has also
been destroyed.
[17] The Second
Claimant testified that the De Walt Arm saw was given to him by his
friend, Charl du Plessis, several years ago
when he started Shopfit.
According to his testimony this was one of the first machines that he
had used. The 7 work benches were
manufactured by the Second Claimant
himself during about 1985 to 1988. According to the evidence the
Toshiba Copy & fax machine
was a replacement item. The Second
Claimant had leased a copier and a separate fax machine to the First
Respondent, but they later
replaced same by the combination Toshiba
Copy & fax machine unit.
[18] Asked about the
two office desks the Second Claimant testified that these were
initially one large office desk that was used
by himself in the
reception in the large section of his premises. He explained that
when the First Respondent moved to the smaller
section, his large
office desk was cut in half to make the two office desks. According
to the evidence the 18 wood clamps were
purchased by the Second
Claimant as and when he needed it. He explained that it merely
remained on the premises to be used by the
First Respondent and/or
Francois.
[19] The Canon
printer was identified also as a replacement. The Second Claimant
testified that he had leased a printer to the First
Respondent but
when it could no longer be used, the Canon printer was purchased to
replace the old one. According to the Second
Claimant this
replacement printer belongs to himself as per the agreement he had
with Francois and/or the First Respondent. The
very last item to be
dealt with is the computer. This item appears to be in dispute. The
Second Claimant testified that he had
leased a computer to the First
Respondent. He added that if this item was replaced then the
replacement computer would belong to
him.
[20] Mr Francois De
Villiers (the Second Claimant’s son) testified that he was the
sole member of the First Respondent. At
first Francois was employed
by the Second Claimant but later he took over the business when the
Second Claimant took a decision
to retire. Francois confirmed the
three agreements referred to by the Second Claimant above and annexed
to the papers in this matter.
He also confirmed the agreement with
the Second Claimant in terms whereof the latter would remain the
owner of leased assets and
that in the event of any item breaking he
had to restore or replace same and that the replaced item remained
the property of the
Second Claimant.
[21] Francois
confirmed in his evidence that all the assets that were attached
belong to the Second Claimant. With particular reference
to the
Edgebounder, the Toshiba copy and fax machine and the Canon printer,
Francois confirmed that these were all replacement
items that became
the property of the Second Claimant as per their agreement. Francois
testified that he was present at the time
that the Sheriff came to
attach the assets. According to Francois at the time there was a
complete PC standing on the counter,
which was used by the First
Respondent. He testified that this PC was stolen during the second
burglary subsequent to its attachment.
He told the Court that he now
uses his personal laptop to conduct business.
[22] He explained
that at the time of the attachment, the old decommissioned PC that
was rented from the Second Claimant was standing
under a counter at
the premises, but that this was not the PC that was attached by the
Sheriff and it therefore do not form part
of the assets in dispute.
Francois further explained that since December 2013 he no longer
trades under the First Respondent and
that the latter entity is now
dormant. He testified that the First Respondent has no assets.
Francois now trades under a newly
formed registered company.
[23] According to
Francois, a new lease agreement was concluded between the newly
formed company and the Second Claimant in terms
whereof both the
premises and the items that were attached are leased. In order to
prove that the lease of the assets is not a
mere sham, both the
Second Claimant and his son Francois confirmed that the rental was
paid, but that some indulgences have been
granted due to the family
relationship between them. Francois also referred to the bank
statements that are attached to the papers
in this matter evidencing
payment of rentals. Strangely the First Claimant presented no
evidence. On its behalf Mr Smit rose to
announce closure of its case
in these interpleader proceedings.
DISCUSSION OF
EVIDENCE AND APPLICATION OF LAW
[24] Mr Smit made
inter alia the following submission:
“Bogenoemde,
tesame met my submissie in paragraaf 14 hierbo, bring my by my
argument dat die derde huurooreenkoms ‘n
gesimuleerde
huurooreenkoms is, wat nie die ware bedoeling van die partye
weerspieel nie. Die ware bedoeling was dat Francois eienaarskap
van
die goedere kan kry en kan voortgaan om die besigheid te bedryf. Die
byvoeging van die twee paragrawe in klousule 15 van die
derde
huurooreenkoms op ‘n latere stadium en nie ten tyde van die
aangaan van die huurooreenkoms nie, bewys dit. Die latere
byvoeging
van hierdie paragrawe maak dit baie gerieflik vir Francois om enige
siviele aanspreeklikheid vry te spring tot nadeel
van krediteure,
meer spesifiek, die Eerste Aanspraakmaker.”I do not necessarily
agree with Mr Smit in what he contends supra.
I undertake, however,
to deal with his submissions exhaustively hereunder.
[25] It is of
importance that Mr Smit concluded his submission by making the
under-mentioned assertion, namely: “Vanweë
die
gesimuleerde aard van die derde huurooreenkoms asook die ontbreking
van ‘n Bylaag 1 tot die derde en huidige huurooreenkoms
is dit
my submissie dat die bedoeling van die partye tot die derde
huurooreenkoms was dat Francois eienaar sal wees van die goedere
gelys in paragraaf 8.6 hierbo.”I have not gathered from the
written agreement that the Second Claimant had at any stage
relinquished ownership of these assets.
[26] As a rule the
parties to a contract express themselves in language calculated
without subterfuge or concealment to embody the
agreement at which
they have arrived. Ordinarily the parties would intend the contract
to be exactly what it purports and the shape
which the contract
assumes is normally what the parties meant it should have. It does
happen, however, that the parties to a transaction
endeavout\r to
conceal its real character. The reason may be to secure advantage
which otherwise would not legally be accorded
to them or even to
escape some disability or even liability. As Innes J (as he then was)
in Zandberg v Van Zyl supra said: “They
call it by name, or
give it a shape, intended not to express, but to disguise its true
nature. And when a court is asked to decide
any rights under such an
agreement, it can only do so by giving effect to what the transaction
really is, not what in form it purports
to be.”I fully agree
with the above. The maxim then really enjoys application, namely plus
valet quod agitur quam quod simulate
concipitur.All in all the Court
must be satisfied that there is a real intention ascertainable which
does differ from the simulated
intention.
[27] Importantly the
agreement(s) between the parties is (are) written in an uncomplicated
language. They are written in a rather
plain language. It is clearly
discernible from these agreements that the understanding and
therefore the real intention between
the contracting parties, namely,
the Second Claimant and his son Francois was that the Second Claimant
was not at any stage to
relinquish ownership of these attached
assets. The uncontested evidence is also that the exceptional item
was replaced by the First
Respondent or Francois, but that it was
always the agreement that such replacements would become the property
of the Second Claimant.
[28] I find nothing
wrong or suspicious about the aforesaid arrangement particularly if
one considers that the Second Claimant cannot
resell a broken item if
it cannot be restored. Importantly, if it was not for the First
Respondent’s need to use the items,
the Second Claimant could
have either sold it and received some value for or kept it. In my
view, the agreement is in place to
prevent any loss to the Second
Claimant. It must be borne in mind that the evidence of the Second
Claimant regarding the purchase
of these assets could not seriously
be challenged.
[29] The only other
issue raised with both witnesses who testified in the instant matter
was when the terms in clause 15 of the
written agreement of 13 August
2009 was inserted. It is common cause that it was put to both the
Second Claimant and Francois that
it seems that: (a) this clause 15
was not initialed by two witnesses; (b) had the first sub-clause been
inserted on 13 August 2009
when the agreement was signed initially,
the two signatures currently reflected at the handwritten insertion
would have been found
next to or shortly after the first sub-clause.
This is actually what Mr Smit is referring to in his quoted
submission. Based upon
the above reasoning Mr Smit for the First
Claimant told the Second Claimant and Francois in cross-examination
that it seems that
the entire clause was inserted at some time after
the attachment. Mr Smit also claimed that at some stage prior to the
insertion
the First Respondent had become the owner of the assets.
[30] It remains of
importance to note that both the Second Claimant and Francois denied
the above and confirmed that the first sub-clause
to clause 15 was
inserted at the time when the lease agreement was concluded.
According to these two witnesses, the second sub-clause
was inserted
on about 1 October 2010 when the two decided to renew the lease
agreement. According to these two witnesses it was
then that they
both signed next to the later insertion.
[31] I need to
re-iterate that the inference sought to be drawn by Mr Smit on behalf
the First Claimant is also not supported by
the evidence because: (a)
Both witnesses told the Court that the second sub-clause was inserted
on about 1 October 2010. It must
be remembered that the attachment
took place on 22 August 2013; (b) The parties similarly did not
effect or append their initials
to clause 2 and 3 of the same
agreement; (c) If one compares the similar clause 15 in the lease
agreement of 17 October 2006 it
emerges that that clause was also not
initialed by the parties; and (d) If one compares the handwritten
insertions at clause 15
(c) of the agreement concluded between the
Second Claimant and Francois on 17 October 2008, one will find that
no initials appear
next to it.
[32] In my view, the
parties merely did not find it necessary to initial next to each and
every handwritten insertion. Notably Francois
confirmed that, due to
the father and son relationship, they did not find it necessary to
have an addendum that was inserted as
the second sub-clause to clause
15 initialed by two witnesses. I accept this as a perfectly logical
explanation. The evidence presented
before me is sound and cogent.
The Second Claimant’s version is not only corroborated by the
testimony of Francois, but it
also finds support in the various lease
agreements signed between these parties. In my view, the Second
Claimant has produced credible
and satisfactory evidence to
demonstrate that he is indeed the owner of the items attached by the
Sherriff. The First Respondent
and/or Francois never acquired
ownership over these assets. The First Respondent and/or Francois
could have acquired ownership
of these items if they exercised the
option given to them to buy them for an amount of R200 000.00. There
is no proof that this
payment was ever made to the Second Claimant.
In fact it appears that it was hardly contemplated by the First
Respondent and/or
Francois. Therefore, the presumption set forth
supra has successfully been rebutted by the Second Claimant’s
credible evidence.
[33] Except perhaps
for the PC, I hold that all the assets attached by the Sheriff still
belong to the Second Claimant. There is
sufficient satisfactory
evidence tendered. The Second Claimant is a particularly careful
person. I say so because he was able to
produce documentation in the
form of invoices to prove the ownership of his movable assets. It is
only in respect of one or two
items that the invoices to substantiate
his ownership had reportedly gone missing. Even in the latter
instance, satisfactory evidence
was forthcoming from the Second
Claimant to enable this Court to make a finding that he is indeed the
owner of those items also.
Importantly, the Second Claimant is in law
competent (by reason that he is owner) under the rei vindicatio to
demand his property
from anyone who cannot invoke a right against him
as owner to keep the property. See: Hefer v Van Greuning supra.
COSTS
[34] It is trite
that a successful party is entitled to recover its costs. As
mentioned by Mr Walters it would appear that the First
Claimant was
at some stage furnished with an Affidavit in which the Second
Claimant asserted ownership in detail. In this Affidavit
the various
invoices proving how the Second Claimant acquired ownership were
attached as annexures. This matter should have been
settled at that
stage. It is simply beyond my comprehension that despite this, the
First Claimant chose to persist with the interpleader
proceedings.
When the matter was a fully blown hearing before the Court, the First
Claimant surprisingly chose to present no evidence.
I do not find it
strange that Mr Walters contended that it would be unreasonable to
expect an innocent party such as the Second
Claimant (who is a
pensioner) to bear the costs of this litigation.
ORDER
[35] In the
circumstances I make the following order:
(a) The Second
Claimant is hereby declared the owner of all the movable assets
attached by the Sheriff and enumerated in the schedule
save for the
PC.
(b) The First
Claimant shall pay the costs of the Second Claimant associated with
these interpleader proceedings.
DLODLO, J
APPEARANCES:
For the
Applicant : NO APPEARANCE
For First
Claimant : ADV. E. SMIT [021] 422 5948
Instructed
by : C & A Friedlander Attorneys
(Ref: F.
Visagie – 021 914 5511
For Second
Claimant : ADV. A. WALTERS [021] 424 4104
Instructed
by : Hickman Van Eeden Phillips Inc.
(Ref: A.
Phillips – 021 903 3106)