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[2015] ZAWCHC 133
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Le Roux v Brits (4070/2015) [2015] ZAWCHC 133 (18 September 2015)
REPUBLIC OF SOUTH ARICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 4070/2015
DATE: 18 SEPTEMBER 2015
In the matter between:
NICO LE
ROUX
.......................................................................................................................
Applicant
And
JOHANNES
BRITS
.....................................................................................................
First
Respondent
KOMMANDANTSDRIF
CC
...................................................................................
Second
Respondent
REGISTRAR OF
DEEDS
..........................................................................................
Third
Respondent
JUDGMENT DELIVERED ON 18 SEPTEMBER
2015
RILEY, AJ
[1] On 30 December 2007 the plaintiff
as seller and the first defendant as purchaser concluded a written
deed of sale (‘Aanbod
om te koop en Koopkontrak’) in
respect of the farm ‘Oude Zanddrift Nr 446’ in extent
146,6115 ha, situated in
the division of Uniondale, Western Cape
Province. For the sake of convenience I will refer to the parties as
per the main action.
It is common cause that pursuant to the
conclusion of the written deed of sale, the farm was as a whole
transferred into the name
of the first defendant on 17 July 2008.
Plaintiff issued summons against the defendants on 6 March 2015. In
the particulars of
claim in respect of the main claim, the plaintiff
avers that the deed of sale does not reflect the intention of the
parties in
that the immovable property is incorrectly described in
the written deed of sale as being the whole of the farm Oude
Zanddrift
Nr 446, instead of only part of the farm as pointed out to
the first defendant prior to the deed of sale being signed.
Plaintiff
avers further that the incorrect description of the part of
the farm occurred due to a reasonable, common mistake on the part of
the plaintiff and the first defendant and that they signed the deed
of sale in the bona fide but mistaken belief that it contained
the
correct agreement between them.
[2] It is common cause that plaintiff
does not claim rectification of the deed of sale but rather avers
that the rectification of
the deed of sale to give effect to the true
intention of the parties is impossible as the rectified deed of sale
of the land as
pointed out is in conflict with the provisions of the
Subdivision of Agricultural Land Act 70 of 1970 (‘the Act’),
and consequently void ab initio on the basis that the Minister has
not consented to the sale of the land which forms the subject
matter
of the sale.
[3] Plaintiff avers that at the time it
was not his intention to transfer the whole of the farm as described
in the deed of sale
to first defendant, nor was it the first
defendant’s intention to have the whole of the property
transferred to him as it
was always the intention of both parties
that transfer would only be effected in respect of the land pointed
out.
[4] Accordingly plaintiff avers that he
is entitled to have the registration and transfer of the property
into first defendant’s
name declared void and to have it set
aside. Plaintiff tenders return of the R1 200 000-00 received in
terms of the agreement.
[5] In the first alternative claim to
the main claim, plaintiff claims an order declaring the deed of sale
void and that it be set
aside and that the farm, Oude Zanddrift 446,
be transferred back into his name against payment by him to first
defendant of the
amount of R1 200 000-00, on the basis that the true
agreement between the plaintiff and first defendant is wrongful
(”onwettig”),
that first defendant had only paid the
plaintiff in respect of a portion of the true value of the whole of
the farm and that first
defendant is thus unjustly enriched, whilst
the plaintiff is accordingly impoverished as a result of the transfer
of the land to
the first defendant at a purchase consideration of R1
200 000-00.
[6] The second alternative claim is
based on the same underlying premises advanced in respect of the main
claim and is as follows:
1. The transfer of the immovable
property to the first defendant was without a causa and was not due
and owing;
2. the value of the property which was
transferred sine causa is R3 600 000-00; and
3. in the premises first defendant has
been enriched at plaintiffs expense who is accordingly impoverished
in the amount of R2 400
000-00.
[7] On 20 March 2015 first defendant
gave notice of his intention to defend the matter and on 10 April
2015 first defendant gave
notice of his intention to except to
plaintiff’s particulars of claim. On 21 July 2015, first
defendant served on the plaintiffs’
attorney of record a notice
of set down of the hearing of the exception application on 7
September 2015. On 21 August 2015, presumably
in an attempt to
counter the hearing for the exception, plaintiff served a notice of
plaintiff’s intention to amend its particulars
of claim on the
first defendant’s attorney of record. On 2 September 2015,
first defendant gave notice of his objection
to the plaintiff’s
proposed amendment essentially on the basis that the proposed
amendment sought by the plaintiff in any
event does not seek
rectification and that this resulted in the plaintiff’s
particulars of claim still being vague and embarrassing.
[8] First defendant’s exception
to the main claim is based on the premise that in the absence of the
rectification of the
contract to correspond with the parties’
alleged true consensus:
8.1 the plaintiff is bound to the
provisions of the contract in terms of which the parties agreed inter
alia that the whole of the
farm “Oude Zanddrift 446” as
described in the title deed, is sold and to be transferred to the
first defendant;
8.2 there is no contravention of the
provisions of the Act and that the contract is therefore not void ab
initio;
8.3 the plaintiff’s particulars
of claim accordingly lack the necessary averments to sustain the
cause of action relied upon
by the plaintiff against the first
defendant.
[9] The exception in regard to the
first alternative claim is based on the following grounds:
9.1 The particulars of claim contain no
grounds for the allegation that the deed of sale is wrongful
(“onwettig”).
9.2 In the absence of the rectification
of the contract to correspond with the alleged consensus of the
parties:
9.2.1 the plaintiff is bound to the
provisions of the contract in terms of which the parties agreed inter
alia that the whole of
the farm “Oude Zanddrift 446” as
described in the title deed, is sold and to be transferred to the
first defendant;
and
9.2.2 there is no contravention of the
provisions of the Act and the contract is for that reason not void ab
initio.
9.3 The plaintiff’s particulars
of claim lack the necessary averments to sustain the cause of action
relied upon by the
plaintiff against the first defendant.
9.4 The plaintiff’s claim that,
because of the first defendant’s alleged unjust enrichment, he
is entitled to restitution
of what he has performed, and that the
contract for this reason is to be set aside, is legally untenable.
[10] In regard to the second
alternative claim the first defendant’s exception is aimed at
the plaintiff’s allegation
in paragraph 17.2 of the particulars
of claim that the transfer was effected sine causa and was not due
and owing, which allegations
according to first defendant are in
direct conflict with:
10..1 a finding that the deed of sale
and transfer are legally binding on the plaintiff;
10.2 the allegations made in paragraph
5 of the particulars of claim lack the necessary averments to
disclose a cause of action
in respect of the second alternative
claim.
The relevant legal principles relating
to exceptions
[11] The principles applicable to
exceptions are succinctly summarised in the first defendant’s
heads of argument and are
for the sake of convenience repeated
verbatim herein. An exception is a legal objection to the opponent’s
pleading. It
complains of a defect inherent in the pleading;
admitting for the moment that all allegations in a summons or plea
are true, it
asserts that even with such admission, the pleading does
not disclose either a cause of action or a defence, as the case may
be.
It follows that where an exception is taken, the court must look
at the pleading excepted to as it stands. No facts outside those
stated in the pleading can be brought into issue except in the case
of inconsistency and no reference may be made to any other
document.
In order to succeed an excipient has the duty to persuade the court
that upon every interpretation which the pleading
in question, and in
particular the document on which it is based, can reasonably bear, no
cause of action or defence is disclosed;
failing this, the exception
ought not to be upheld. The object of an exception is to dispose of
the case or a portion thereof
in an expeditious manner, or to protect
a party against an embarrassment which is so serious as to merit the
costs even of an exception.
Thus an exception founded upon the
contention that a summons discloses no cause of action is designed to
obtain a decision on
a point of law which will dispose of the case in
whole or in part, and avoid the leading of unnecessary evidence at
the trial.
If it does not have that effect the exception should not
be entertained. An excipient is obliged to confine his complaint to
the grounds of his exception.
[12] In so far as there can be an onus
on either party on a pure question of law it rests upon the excipient
who alleges that a
summons discloses no cause of action or that a
plea discloses no defence; the excipient has the duty to persuade the
court that
the pleading is excipiable on every interpretation that
can reasonably be attached to it. The pleading must be looked at as
a
whole. Where there is uncertainty in regard to a pleader’s
intention, an excipient cannot avail himself or herself thereof
unless he or she shows that upon any construction of the pleadings
the claim is excipiable. Save in the instance where an exception
is
taken for the purpose of raising a substantive question of law which
may have the effect of settling the dispute between the
parties, an
excipient should make out a very clear, strong case before he or she
should be allowed to succeed.
[13] Courts are reluctant to decide
questions concerning the interpretation of a contract upon exception.
An excipient has the
duty to persuade the court that upon every
interpretation which the particulars of claim could reasonably bear,
no cause of action
was disclosed. Courts have not adopted an overly
technical approach to pleadings. If a pleading is bad in law, the
answer is
to except; what a party cannot do, is to sit back, say
nothing and then complain that the pleading is defective and that he
was
taken by surprise.
Submissions by the parties
[14] Mr van der Merwe contended on
behalf of the first defendant in respect of the main claim (and the
first alternative claim)
that the relief that the plaintiff seeks
contradicts the description of the land sold in terms of the written
deed of sale relied
upon by plaintiff in his particulars of claim.
In his view, in distinguishing between the descriptions of the
property as alluded
to above, plaintiff seeks to introduce another
description of the property sold contradicting or altering the
description contained
in the deed of sale i.e. annexure “BvV1”.
He submitted further that plaintiff’s allegation that the
contract
was allegedly void as a result of the fact that a portion of
farm land had been sold in conflict with the provisions of the Act
does not relieve the plaintiff from first seeking the rectification
of the contract to reflect the true intention of the parties.
According to him rectification of the contract is necessary before
plaintiff can rely upon the true version of the contract or
claim
that it be declared null and void because whilst the written contract
stands unrectified, it excludes evidence to prove the
alleged true
version (i.e. that the land sold was as per the pointing out), which
is in conflict with the writing contained in
the written document.
He submitted that if the contract on the face of it does not justify
a conclusion that the contract is void
for the reason advanced by the
plaintiff i.e. that, the contract does not reflect the true agreement
of the parties, extrinsic
evidence to show that the contract is void
is inadmissible absent a claim for the rectification of the deed of
sale to bring the
same within the true agreement of the parties.
[15] He submitted in regard to the
plaintiff’s first alternative claim that the claim for
restitution based on alleged unjustified
enrichment, based on the
principles relied on by him hereinbefore, is also untenable in law.
[16] In so far as the claim founded on
the alleged sine causa transfer of a property is concerned, he argued
that it is inter alia
a requirement that the transfer must have been
taken without a valid causa. He submitted that there can be no
question of unjust
enrichment where the ownership of the farm has
passed to the first defendant and the parties have received what they
bargained
for ex facie the deed of sale.
[17] Mr Loots who appeared on behalf of
the plaintiff contended that since the pleadings in respect of which
exception is raised
are in the process of being amended, that
plaintiff was entitled to apply for leave to have the proposed
amendments granted in
terms of Rule 28(4) and to consider the
objections raised by first defendant and to make further amendments.
He submitted that
this was not a parallel process and that the rights
that plaintiff was entitled to in terms of Rule 28, now replaced the
exception.
He submitted that since plaintiff has applied for an
amendment of his particulars of claim and since first defendant’s
objection
to the particulars of claim is that the proposed amendment
would result in the particulars of claim remaining vague and
confusing
in respect of the main and alternative claims, first
defendant no longer relies on the objection that the particulars of
claim
do not disclose a cause of action. In his view the exception
is academic and ought therefore to have been withdrawn after receipt
of the plaintiff’s notice of amendment.
[18] On the merits of the exception, Mr
Loots, placing reliance on inter alia Kok v Osborne and Another
1993(4) SA 788 (SE), contended
that a court would not order
rectification where the effect of the rectification would result in
an illegal contract.
[19] He submitted that, in any event
this did not mean that where it appeared that the true intent of the
parties was illegal (in
this matter due to non-compliance with a
statutory requirement) that the plaintiff was prohibited from
presenting evidence about
the true intent of the parties at the
trial.
[20] He submitted that such evidence
would have the effect of rendering the contract null and void, and
that the court would not
allow prior rectification so as to enable
the plaintiff to prove the nullity of the agreement. He submitted
further that any objections
that the first defendant may have are
dealt with and addressed in the plaintiff’s notice of amendment
which counter the first
defendants allegations as contained in the
exception.
[21] He conceded that the plaintiff’s
alternative claim flowed from the same cause of action as contained
in the main claim,
but contended that where more than one claim
flowed from the same cause of action, a court would not grant
exception to a part
of the plea.
[22] Relying on Geue v Van der Lith and
Another 2004(3) SA 333 (SCA) at para’s [17] and [19] and
Legator McKenna Inc and Another
v Shea and Others 2010(1) SA 35 (SCA)
at para [29] he contended that the ground of exception raised by
first defendant that plaintiff
is not entitled to the return or
retransfer of the property sold, cannot succeed in the present
circumstances as the conclusion
of the contract was prohibited by
statute.
[23] In so far as the ground of
exception raised in respect of the second alternative claim is
concerned, he contended that the
second alternative claim, which
arises from the same cause of action as the main claim, is based on
the premise that the true contract
between the two parties is void
due to non-compliance with the provisions of the Act. In his view
the proposed amendment, which
must be seen as being incorporated in
this claim, addresses any objection in this regard. Accordingly he
submitted that plaintiff’s
performance, despite the fact that
both parties were unaware of the illegality of the true agreement, is
impossible in law. In
his view, the performance was without a legal
causa and that in any event plaintiff has, in the alternative, made
the necessary
averments to rely on the condictio ob turpem vel
iniustam causa and that for these reasons the second alternative
claim was not
excipiable.
Discussion
[24] On a consideration of the first
defendant’s exceptions in respect of the main claim (and the
first alternative claim)
it is clear that it is based on the fact
that the relief that the plaintiff seeks contradicts the description
of the land sold
in terms of the written deed of sale relied upon by
plaintiff in his particulars of claim. I agree with Mr van der Merwe
that
in distinguishing between the descriptions of the property as
alluded to, plaintiff seeks to introduce another description of the
property sold, thus contradicting or altering the description
contained in the deed of sale.
[25] The parol evidence or integration
rule provides that ‘where the parties have decided that their
contract should be recorded
in writing, their decision will be
respected, and the resulting document or documents will be accepted
as the sole evidence of
the terms of the contract’. See The
Law of Contract in South Africa, 6th ed Christie and Bradfield p.
200. In Johnston
v Leal 1980(3) SA 927(A) Corbett JA as he then was
expressed the rule thus at 943B: “… the aim and effect
of this
rule is to prevent a party to a contract which has been
integrated into a single and complete written memorial from seeking
to
contradict, add to or modify the writing by reference to extrinsic
evidence and in that way to redefine the terms of the contract
…
To sum up, therefore, the integration rule prevents a party from
altering, by the production of extrinsic evidence, the
recorded terms
of an integrated contract in order to rely upon the contract as
altered . . .”. See also Lowrey v Steedman
1914 AD 532
at 543.
There can be no doubt that the rule remains part of our law as is
aptly illustrated with reference to the following authorities.
[26] In Waenhuiskrans Arniston
Ratepayers Association & Another v Verreweide
Eiendomsontwikkeling (Edms) Bpk and Others
2011 (3) SA 434
(WCHC) at
paragraph [95] the court held that:
“Where parties have decided to
embody their agreement in a written document, or in instances where a
contract is by law required
to be in writing, the document itself
becomes the sole memorial of the terms of the transaction which it
was intended to record.
In the absence of a claim for rectification,
extrinsic evidence as to the terms of the agreement, or as to what
the parties had
intended, is irrelevant and inadmissible. A contract
for the sale of land is required by law to be in writing, and
accordingly
all the material terms of the agreement must be reduced
to writing”.
In Headermans (Vryburg) (Pty) Ltd v
Ping Bai 1997(3) SA 1004(A) p 1008H – 1009A “The first
ground of alleged invalidity
relied upon by the respondent was a …
… non-compliance with the provisions of s 2(1) of the
Alienation of Land Act
. . . The test for compliance with the statute
in this regard is whether the land sold can be identified on the
ground by reference
to the provisions of the contract, without
recourse to evidence from the parties as to their negotiations and
consensus (Clements
v Simpson 1971(3) SA 1 (A) at 7 F – G . .
.The true approach is the following [Van Wyk v Rottcher's Saw Mills
(Pty) Ltd
1948 (1) SA 983
(A) at 989]:
‘… … when a
contract of sale of land is by law invalid unless it is in writing,
then it is not permissible to
describe the land sold as the land
agreed upon between the parties. Consequently testimony to prove an
oral consensus between
the parties which is not embodied in the
writing is not admissible for any purpose, not even to identify the
land sold’.
In Kriel and Another v Le Roux
[2000] 2
All SA 65
(A) at para [11] the Supreme Court of Appeal held that the
pointing out of the property was regarded as part of the negotiations
between the parties and was held to be inadmissible. In Fedbond
Participation Mortgage Bond Managers (Pty) Ltd v Investec Employee
Benefits Ltd and Others
[2010] 4 All SA 467
(SCA) the Supreme Court
of Appeal at [14] held as follows:
“Properly viewed Fedbond’s
argument in this regard suggests that the written agreement does not
contain all the terms
agreed by the parties and seeks the admission
of facts that add to the terms thereof. This is referred to as the
integration rule
in terms of which extrinsic evidence of additional
terms of a written agreement not embodied therein is admitted. See
Union Government
v Vianini Ferro-Concrete Pipes (Pty) Ltd
[1941 AD 43
at 47] where the following was stated: ‘Now this Court has
accepted the rule that when a contract has been reduced to writing,
the writing is, in general, regarded as the exclusive memorial of the
transaction and in a suit between the parties no evidence
to prove
its terms may be given save the document or secondary evidence of its
contents, nor may the contents of such document
be contradicted,
altered, added to or varied by parol evidence ….”
In Bafokeng Tribe v Impala Platinum Ltd
and Others
1999 (3) SA 517
(BH) the court held 545C that:
“In a case where writing is
required by law, such as in a deed of transfer, evidence cannot be
produced of terms not included
in the written document. The correct
approach in these cases is to apply for written rectification of the
deed of transfer. It
must be proved that the deed of transfer does
not reflect the common intention of the transferor and transferee.
Gralio (Pty)
Ltd v D E Claasen (Pty) Ltd 1980(1) SA 816 (A); Philmatt
(Pty) Ltd v Mosselbank Developments CC 1996(2) SA 15 (A)”.
In Absa Technogology Finance Solutions
(Pty) Ltd v Michael’s Bid A House CC and Another
[2013] JOL
30956
(SCA), the court held at para [21] that the correct approach to
the admissibility of parol evidence is that stated in the SCA by
Harms D P in KMPG Chartered Accountants (SA) v Securefin Ltd and
Another 2009(4) SA 399 (SCA) par [39]:
“First, the integration (or parol
evidence) rule remains part of our law. However, it is frequently
ignored by practitioners
and seldom enforced by trial courts. If a
document was intended to provide a complete memorial of a jural act,
extrinsic evidence
may not contradict, add to or modify its meaning.
(Johnson v Leal 1980(1) SA 927 (A) at 943B).”
[27] It is accepted that the mere
existence of a written document containing contractual terms does not
automatically bring the
rule into operation. According to Christie
and Bradfield (supra) at p. 202, it is first necessary to decide
‘whether the
document is in truth a reduction to writing or
integration of the contract, or part of it, and for this purpose
evidence may well
be necessary because the true nature of the
document may not appear from the document itself. Such evidence may
be oral or documentary
and may canvass the negotiations and oral
agreements preceding or accompanying the document, provided it is
directed to establishing
the status or true nature of the document’.
[28] It is now accepted law that where
a written contract records a version of the contract that is not in
accordance with what
was actually agreed and one of the parties
wishes to enforce the true version, then the appropriate remedy in
such a case is an
order for the rectification of the written
contract.
[29] Christie and Bradfield (supra) at
p. 344 make it clear that ‘The reason why rectification is
necessary before the true
version of the contract can be enforced is
that, while the written contract stands unrectified, it excludes
evidence to prove the
true version, by the combined effect of the
parol evidence rule and the rule that no evidence may be given to
alter the clear and
unambiguous meaning of a written contract’.
[30] I accept that difficulties may be
caused to contracting parties by statutes requiring that certain
formalities be complied
with for certain types of contract, such as
the Act in the present matter. I further agree that a document that
is invalid because
it fails to comply with the statutory requirements
cannot be validated by rectification, and even if this rule leads to
anomalous
results it must be maintained so that the statutory
requirements are not subverted. However, considering the authorities
hereinbefore
referred to, the alleged voidness of the deed of sale in
the present matter as a result of the sale of a portion of the farm
land
in conflict with the provisions of Act 70 of 1970 does not
relieve the party relying on the voidness of the agreement from first
seeking the rectification of the contract to reflect the true
intention of the parties.
[31] Considering the facts and
pleadings in the present matter, I find that on the face of it, the
deed of sale “BvV1”
which was entered into between the
plaintiff and the first defendant for the sale of the whole farm is
valid and binding. There
is merit in Mr van der Merwe’s
argument that the validity and enforceability of the terms of the
deed of sale can therefore
only be determined ex facie the document
itself. The court is confronted with a situation where the written
deed of sale remains
the sole recordal of the intention of the
parties. Since plaintiff does not allege or rely on any of the other
well-known exceptions
to the parol evidence rule, plaintiff cannot
rely on an alleged actual agreement or any terms other than those
contained in “BvV1.
The arguments advances by Mr Loots, in
opposition of the exceptions raised by the first defendant to
plaintiffs particulars of
claim, are with respect based on an
incorrect interpretation of the authorities relied upon by him and
must accordingly be rejected.
[32] Based on the overwhelming
authority referred to hereinbefore the plaintiff is not allowed to
rely on evidence of the pointing
out of the true res vendita which
would be inadmissible, because, as was stated in Kriel and Another v
Le Roux (supra) at para
[11], quoting with approval Tindall JA in Van
Wyk v Rottcher’s Saw Mills (Pty) Ltd 1948(1) SA 983(A) at 996,
‘…
it would let in evidence of a verbal agreement which
was not embodied in the written contract’. I am satisfied that
the
authorities relied upon by Mr Loots do not provide the plaintiff
with justification for attempting to circumvent or bypass the aim
and
effect of the parol evidence rule which is clearly applicable to the
present matter. In my view the only remedy available
to plaintiff is
rectification.
[33] I am on the whole satisfied that
in the absence of rectification, the relief claimed by plaintiff
based on the terms or provisions
of the parties’ alleged
agreement is in conflict with the provisions of “BvV1”
and that the particulars of claim
in its present form do not disclose
a cause of action in respect of the main claim.
[34] The first alternative and second
alternative claims are inextricably linked to the main claim.
Considering what I have found
in respect of the main claim it follows
that the first alternative claim for restitution based on
non-compliance with the Act is
not sustainable in law in its present
form.
[35] As the pleadings presently stand,
I am of the view that the deed of sale, “BvV1”, and the
subsequent transfer of
the whole of the property is binding on the
parties. Ex facie the deed of sale the parties agreed upon a
purchase consideration
of R1 200 000-00 for the whole of the farm and
not a portion thereof. There is accordingly a valid causa for the
transfer of the
property. Unless rectification takes place to
reflect the true intent of the parties, there is no basis for a claim
based on unjust
enrichment. In its present form the allegations
contained in the particulars of claim are in direct conflict with the
terms of
the deed of sale, and in my view, the parol evidence rule
applies thereto. In these circumstances the second alternative claim
is also vague and confusing and does not sustain a cause of action
based on the alleged unjust enrichment of the first defendant.
[36] It follows that the exceptions
must be upheld.
[37] In the present matter the first
defendant has for good reason objected to the timing of the proposed
amendment by the plaintiff.
Mr van der Merwe has correctly contended
that in any event the proposed amendment does not address the issue
of rectification.
It is trite law that an amendment should be
allowed where this can be done without prejudice to the other party.
Mr Loots has
submitted that plaintiff be allowed leave to amend his
particulars of claim should the court find that rectification is
required
to be pleaded. I am satisfied that should rectification be
pleaded that the main issue between the parties will remain the same
and that it is likely to cure the present imperfectly or ambiguously
expressed pleadings and at the same time achieve the objective
of an
amendment, which is that a proper ventilation of the dispute between
the parties can then take place.
[38] In the result I make the following
order:
1. The first defendant’s
exceptions are upheld with costs.
2. Plaintiff is granted leave to amend
his particulars of claim if so advised, within 21 days of the
granting of this order.
RILEY, AJ