Marble Gold 210 (Pty) Ltd t/a Extreme Engineering v Beam Joint Venture Structures (Pty) Ltd and Others (7141/2009) [2009] ZAKZDHC 55 (17 November 2009)

IN THE KWAZULU-NATAL HIGH COURT, DURBAN

REPUBLIC OF SOUTH AFRICA

CASE NO. 7141/2009

MARBLE GOLD 210 (PTY) LIMITED

t/a EXTREME ENGINEERING APPLICANT

and

BEAM JOINT VENTURE STRUCTURES

(PTY) LIMITED FIRST RESPONDENT

B N C PROJECTS (PTY) LIMITED SECOND RESPONDENT

AVELLINI BROS (PTY) LIMITED THIRD RESPONDENT

M J CHEATER & CO. NATAL

(PTY) LIMITED FOURTH RESPONDENT

TRANSNET LIMITED

t/a TRANSNET CAPITAL PROJECTS FIFTH RESPONDENT

JUDGMENT Delivered on 17 November 2009

______________________________________________________

SWAIN J

[1] The source of the present dispute between the parties lies in the conduct of a co-director of the applicant, one Williamson, in signing an agreement which purported to withdraw the applicant from a joint venture agreement, concluded between the applicant and the second, third and fourth respondents.

[2] The purpose of the joint venture agreement concluded between the applicants and the second to fourth respondents on 11 August 2008, was to tender for engineering and other related work, to execute such work and to share the profits generated.

[3] To give effect to the joint venture agreement the first respondent was incorporated in which the applicant, and the second, third and fourth respondents, each held a twenty five percent shareholding in the first respondent, consisting of two thousand five hundred ordinary shares each.

[4] The first respondent tendered for and was awarded a contract by the fifth respondent, on or about 13 November 2008, for a total tender value of R53,373,907.06, for the construction of certain engineering works.

[5] It is common cause that on 11 February 2009 the said Williamson, purporting to act on behalf of the applicant, signed an agreement styled “Amendment to Joint Venture Agreement” to which the second to fourth respondents (hereafter referred to as the respondents) were parties, in terms of which, inter alia:

[5.1] The applicant withdrew with immediate effect from the joint venture agreement and

[5.2] The applicant transferred the two thousand five hundred shares it held in the first respondent, to the respondents.

[6] As a consequence the first respondent proceeded to transfer the applicant’s shares in the first respondent to the respondents.

[7] The applicant accordingly seeks an interim order preventing the respondents from dealing in any way with the applicant’s shares in the first respondent, as well as certain funds to be received by the first respondent from the fifth respondent, pending an action to be instituted by the applicant for an order setting aside the transfer of the applicant’s shares and ancillary relief.

[8] The main ground upon which the conclusion of the “Amendment to Joint Venture Agreement” and the subsequent transfer of the shares to the respondents was challenged by the applicant, was on the basis that Williamson lacked

authority to conclude the agreement in question on behalf of the applicant. The applicant also alleges that the first respondent

failed to adhere to the requirements specified in the Memorandum of Association, for the valid transfer of the applicant’s shares in the first respondent. The applicant asserts that as a consequence, the alleged transfers of the shares are illegal, and consequently

null and void, alternatively voidable.

[9] The respondents deny these allegations and by way of a counter-application, claim the following relief:

[9.1] In the event of it being held that the said Williamson did not have the requisite authority, then the applicant’s participation in the said joint venture is terminated and the applicant’s shares in the first respondent are transferred to the respondents.

[9.2] The applicant is ordered to pay to the first respondent “the yet to be quantified damages it has caused the first respondent” by its malperformance on the joint venture contract.

[9.3] The applicant is ordered to pay to the first respondent the sum of R650,000.00 in respect of bridging finance and R1.l M in respect of performance guarantees, which the applicant was obliged to provide to the first respondent, arising out of the joint venture agreement.

[10] Before dealing with the merits of the application and counter-application, it is necessary to deal with a number of points in limine raised by the respondents.

[11] The first point in limine is directed at an alleged lack of locus standi on the part of one Dhanwanthie Singh to bring the application or oppose the counter-application, on the following grounds:

[11.1] Despite being a director of the applicant, Singh is but a “front” and played no part in the activities of the applicant.

[11.2] The resolution by the applicant that the applicant institute the present proceedings, that Singh is authorised to depose to any affidavits and sign any documents for such purpose and that Saras Naidoo & Company, be instructed as attorneys of record to represent the applicant in all legal proceedings, is defective. The ground advanced for this assertion is that there was no quorum because Williamson, the managing director was not present, and Singh as a director effectively granted to herself the authority to depose to the affidavits.

[12] As pointed out by Streicher J A in the case of

Ganes & Another v Telecom Namibia Ltd.

2004 (3) SA 615 (SCA) at 624 para 19

the deponent to an affidavit is merely a witness. It is the attorney of a litigant who by signing a notice of motion and issuing application papers, signifies that the attorney has been authorised to initiate the application on behalf of the named litigant.

[13] As decided by a Full Bench of this Division, of which I was a member, in the as yet unreported case of

ANC Umvoti Council Caucus & Others vs Umvoti Municipality

Appeal No. AR 276/2009 – KZN High Court Pietermaritzburg

whether or not litigation has been properly authorised by the artificial person named as the litigant, should not be dealt with by means of evidence led in the application. If clarity is required the provisions of Rule 7 (1) must be utilised. Absent a specific challenge by way of Rule 7(1) “the mere signature of the notice of motion by an attorney and the fact that the proceedings purport to be brought in the name of the applicant” is sufficient.

Mall (Cape) (Pty Ltd. v Merino Ko-Operasie Beperk

1957 (2) SA 347 (O) at 351 G – 352 B

[14] The application papers are not the correct context in which to determine whether an applicant which is an artificial person, has authorised the initiation of application proceedings. Rule 7 (1) must be used

ANC Umvoti Council Caucus supra at pg 17 para 28

[15] No challenge was raised by the respondents by way of Rule 7 (1) and consequently the point in limine falls to be dismissed.

[16] A second point in limine raised is that the applicant has no locus standi to bring the application because it is insolvent, has stopped trading, has been evicted from its premises and has lost its substratum at the date the application was launched.

[17] In the absence of a provisional winding up order or provisional judicial management order, I fail to see on what basis the financial state of the applicant has any bearing upon the locus standi of the applicant to bring the present proceedings. The second point in limine also falls to be dismissed.

[18] A further so-called point in limine, is that because the applicant has lawfully and voluntarily withdrawn as a member of the joint venture, it has no locus standi to bring the present proceedings. Whether the applicant has lawfully withdrawn is, of course, what has to be decided on the merits. The argument effectively “puts the cart before the horse” and as a point in limine, falls to be dismissed on this ground alone.

[19] Turning to the merits of the application. Mr. Mannikum, who appears for the applicant, submits that the conclusion of the Amendment to the Joint Venture Agreement by Williamson, in which he purported to agree, in his capacity as managing director of the applicant, to its withdrawal from the joint venture agreement and the transfer of the shares it held in the first respondent, to the respondents, contravened the provisions of Section 228 of the Companies Act No. 61 of 1973 (hereafter referred to as the Act). This is because the disposal of the applicant’s shares in the first respondent, in his capacity as a director, constituted a disposal of the greater part of the assets or undertaking of the applicant.

[20] Section 228 of the Act provides that the directors of a company shall not have the power, save by a special resolution of its members to dispose of the “whole or greater part” of the undertaking, or the assets of the company.

[21] In terms of Section 228 (4) an “undertaking” or “assets” of a company, and the part to be disposed of, shall be calculated “according to the fair value of the undertaking or assets as described in financial reporting standards”.

[22] The word “undertaking” is intended to refer to the company’s enterprise as such, i.e. in all its components

Henochsberg on the Companies Act – Meskin – Vol 1 – pg 444

[23] I, with respect, agree with the view of the learned authors of Henochsberg, with regard to the meaning to be attached to the provisions of Section 228 (4) which are as follows:

[23.1] The intention appears to be that its provisions are to apply in determining whether “the greater part” of the undertaking, or the assets, of a company are being disposed of, by calculating the fair value of the relevant undertaking or assets (as the case may be) according to “financial reporting standards” nothwithstanding that these standards apply only in the case of a widely held company.

[23.2] However, although the intention of Sub-section 1(a) is clearly to distinguish between a disposal of an enterprise as a whole, and a disposal of only part of, or of particular assets forming part of, a company’s undertaking, whether a disposal involves “the greater part of” an enterprise does not necessarily depend on the value of the assets being disposed of, but on whether the enterprise retained by the company after the disposal is materially different from the enterprise it owned as at the date thereof. Accordingly, the

valuation of the undertaking or the part being disposed of (in the manner contemplated by Sub-section 4) will not necessarily definitively determine whether, in a particular case, the disposal is in fact one contemplated by Sub-section 1 (a), notwithstanding the use of the word “shall” in Sub-section 4.

Henochsberg supra at pg 444 (1)

[24] Mr. Levin, who appeared for the respondents, submitted that the disposal of the shares did not constitute a disposal of the whole or “substantially the whole” of the undertaking of the company, or the whole or “substantially the whole” of the assets of the company, because the shares in question have a par value of R0,01 per share, are not marketable and will be worthless when the first respondent is deregistered, on the completion of the joint venture project.

[25] As pointed out above however this, in my view, is an incorrect approach to the issue. Whether a disposal involves the greater part of an enterprise does not necessarily depend on the value of the assets disposed of “but on whether the enterprise retained by the company after the disposal, is materially different from the enterprise it owned as at the date thereof”.

[26] In this regard Singh, on behalf of the applicant, states the following:

“The applicant’s shares in the first respondent constitutes a major part of its assets”

which is simply denied by the respondents. What is of significance in this regard is that Williamson, who has filed an affidavit in support of the respondents’ application for the applicant to be ordered to furnish security for the respondents’ costs, apart from alleging that the assets of the applicant have been attached by Stannic and that it is insolvent and unable to pay its day to day liabilities, does not take issue with this assertion of Singh.

[27] In addition Singh, in the applicant’s answering affidavit to the respondents’ counter-application alleged the following:

“As a result of the joint venture, the respondent arranged its affairs in such a way in order to cater for the work arising from the joint venture. As a consequence, the respondent did not solicit work as it may usually have done had it not been for the anticipated profit from the joint venture and the pressures placed upon it by the applicant to execute such work.”

[28] The response of the respondents to this is as follows:

“The content of this paragraph is denied. It is preposterous for the respondent to contend that in anticipation of large profits from the joint venture, it undertook no other work which is a preposterous submission which is unproven and is a sad indictment of the respondent’s management skills”.

[29] Again, Williamson, who would have detailed knowledge of whether such an assertion was a valid one, does not comment on this issue. What he does say however, again in the context of the application brought by the respondents for security for costs against the applicant, is the following:

“I swear positively to the fact that Extreme (the applicant) has stopped trading as from early February 2009 and has vacated its premises that it previously occupied at 1 Dickens Road, Umbogintwini Industrial Complex, Umbongintwini as from early February 2009”

[30] When due regard is paid to the fact that the Amendment to the Joint Venture Agreement, was signed by Williamson on 11 February 2009, at a time when the applicant was in such dire financial straits, support is lent to the assertions of Singh that the shares in question constituted a major portion of the assets of the applicant, and that the applicant did not solicit other work in order to perform its obligations in terms of the joint venture agreement. Withdrawing from the joint venture agreement had the effect of disposing of at least the greater part of the applicant’s enterprise, if not the whole of it.

[31] When due regard is had to the aforegoing, and in particular the fact that the respondents answered the applicant’s assertions as a bare denial, I am not satisfied that a genuine or real dispute of fact is raised in this regard.

[32] The applicant seeks an interim interdict to restrain the respondents from dealing with the shares, pending the outcome of an action to set aside their transfer.

[33] All that the applicant has to establish at this stage is a prima facie right “though open to some doubt”

Webster v Mitchell

1948 (1) SA 1186 (W) at 1189

[34] When the assertions of the applicant are considered in the context of the bare denials of the respondents, I am satisfied when considering the inherent probabilities, that the applicant should succeed at the trial in establishing that the withdrawal from the joint venture agreement and the subsequent alienation of the shares, constituted a disposal of a greater part of the applicant’s undertaking or assets. This conclusion is reached on the basis that the enterprise retained by the applicant, after the disposal, was materially different from the enterprise it owned as at the date thereof.

[35] As a result the fact that the variation of the joint venture agreement was not authorised or approved of by the shareholders, did not make it invalid or void, because Section 228 provides for a subsequent ratification of the agreement by the shareholders.

Farren v Sun Service SA Photo Trip Management

[2003] 2 All S A 406 (C) at 411 e – f

The prohibition under Sub-section 1 of Section 228 therefore relates to the implementation of any such contract, rather than its conclusion

Henochsberg supra at pg 442

Ally N O v Courtesy Wholesalers (Pty) Ltd.

1996 (3) SA 134 (N) at 145

[36] An agreement concluded on behalf of the company in contravention of Section 228, has no legal effect unless and until it is ratified by the shareholders

Farren’s case supra at pg 415 h – i

[37] Mr. Levin submitted however that the respondents were protected by the so-called Turquand Rule, in terms of which an outsider (the respondents) contracting with a company (the applicant) in good faith were entitled to assume that the internal requirements and procedures required in terms of the Company’s Act and Articles of Association, have been complied with.

Royal British Bank v Turquand

6 E & B 327

[38] Cleaver J in Farren’s case supra, after an exhaustive review of the relevant cases and academic writings, concluded that it was not the intention of the Legislature

to permit the Turquand Rule to prevail over the provisions of Section 228, but rather intended the provisions of the Section to prevail. The objective of the Legislature was to protect the shareholders, which intention should be given effect to and not nullified, by the application of the Turquand Rule.

Farren’s case supra at pgs 413 C, 14 g – h and 415 c – d

[39] Having carefully considered the opposing arguments, I am in respectful agreement with the conclusion of Cleaver J.

[40] Consequently, the fact that the respondents maintain they were innocent of any knowledge that the shares were alienated, without the approval of the shareholders, cannot avail them.

[41] The applicant is accordingly entitled to an order in terms of paragraph 2 (a) of the notice of motion, interdicting the respondents from dealing with the shares, pending the outcome of an action to set aside their alienation.

[42] It accordingly becomes unnecessary for me to consider the additional challenge raised to the transfer of the shares based upon an alleged failure to adhere to the requirements of the Articles of Association of the first respondent.

[43] Turning to the relief sought in paragraphs 2 (b) and (c) of the notice of motion. The applicant seeks in the interim to secure its interest in any payments due by the fifth respondent to the first respondent, in terms of the agreement concluded between the first and fifth respondents.

[44] The applicant in essence seeks an order interdicting the first to the fourth respondents from receiving, and the fifth respondent from paying, to the respondents, one quarter (being the alleged share of the applicant) of any amount due by the fifth respondent under the agreement in question.

[45] The respondents point out, correctly in my view, that it is not the “proceeds” generated by the joint venture that will be distributed equally among the members of the joint venture. It is the profits that will be so shared when the first respondent declares a dividend, which it has not yet done.

[46] The respondents allege that payments yet to be received by the first respondent from the fifth respondent, will be used to pay for labour and supplies and any excess will be used in reduction of the first respondent’s overdraft, leaving no surplus for the respondents. It is submitted that if an order is granted as prayed by the applicant, that one quarter of the proceeds due by the fifth respondent to the first respondent not be paid, the first respondent will not be able to pay its labour and suppliers and will cease trading. It is alleged that the first respondent makes a profit of approximately ten percent of the income it receives monthly from the fifth respondent, and a loss of twenty five percent of such income will lead to its demise.

[47] The only response of the applicant to these allegations, is to allege that because the applicant has completed at least one third of the work, an amount of R2.5M in profit is due to the applicant, which the first to the fourth respondents are refusing to pay the applicant. No details are furnished as to how this amount is calculated.

[48] At this interim stage of the proceedings what must be ensured is that the ability of the first respondent to perform its obligations in terms of the contract with the fifth respondent, is not compromised by the terms of any order this Court might make. In my view, this can be safeguarded and the interests of the applicant adequately protected if, as an interim measure, the first respondent is interdicted from paying any dividends, or any other amounts to the respondents and the applicant. In this manner, any possible entitlement on the part of the applicant, and the respondents, to a share of any profits generated by the first respondent, will be safeguarded without compromising the first respondent’s ability to perform its obligations.

[49] Turning to the respondents’ counter-application. The primary relief sought is conditional upon this Court finding that Williamson did not have the authority to amend the joint venture agreement, nor alienate the applicant‘s shares in the first respondent. I have made such a finding and the relief sought must therefore be considered.

[50] What is sought by the respondents is an order terminating the applicant’s participation in the joint venture agreement and transferring its shares equally to the respondents on the grounds that “the applicant is in breach of the joint venture agreement”.

[51] Nowhere in the copious papers before me, is there any evidence to prove that the respondents gave to the applicant notice to perform its obligations on pain of cancellation, nor of any cancellation of the joint venture agreement.

[52] When I asked Mr. Levin to refer me to any notices by the respondents calling upon the applicant to perform its obligations in terms of the agreement, failing which it would be cancelled, Mr. Levin referred me to the letters appearing at pages 78, 79 and 153, none of which perform this function. In fact the letter dated 18 December 2008, appearing at page 78 contains the following paragraph:

“Please note that aside from the financial aspects, Marble Gold 10 (Pty) Ltd. t/a Extreme Engineering is legally bound to complete this contract to its finality”.

This clearly evinces an intention on the part of the respondents to enforce the agreement, rather than to cancel it.

[53] The allegations of the respects in which the applicant has failed to perform its obligations are denied by the applicant.

[54] An alternative basis upon which the respondents seek an order terminating the joint venture agreement, is in terms of Clause 7.3, which provides that the joint venture agreement will be summarily terminated as an automatic consequence of any act of insolvency by either of the parties, or in the event of either of the parties being placed under a provisional or final order of liquidation, or judicial management.

[55] The respondents allege that the applicant has committed acts of insolvency and/or is in fact insolvent, in that it cannot pay its day to day liabilities, has been sued by several creditors for unpaid liabilities, and has had its machinery attached in execution of a judgment obtained by Stannic.

[56]` These allegations are not denied by the applicant, but it is alleged that the financial position the applicant finds itself in was caused by “the repudiation” by the respondents of the joint venture agreement. It is alleged that the respondents prevented the applicant from performing its further obligations in terms of the agreement.

[57] What is clear, however is that a cancellation of the joint venture agreement on this ground, in terms of Clause 7.3, will not simply have the effect of terminating the participation of the applicant in the joint venture, but will bring the whole joint venture’s agreement to an end, also terminating the respondents’ participation in the joint venture.

[58] This is because Clause 7.3 clearly provides that “this agreement shall be summarily terminated as an automatic consequence of an act of insolvency by either of the parties………..”. The joint venture agreement itself is terminated, not merely the participation of the insolvent member in the joint venture agreement.

[59] The clause therefore does not entitle the respondents to an order terminating only the applicant’s participation in the joint venture agreement.

[60] The respondents also seek an order directing the applicant to pay to the first respondent “the yet to be quantified damages it has caused the first respondent brought about by its malperformance on the joint venture contract”. Nothing more needs to be said about this claim other than that it is misconceived. Although this Court may grant an order directing a party to pay to another “such damages as it may prove to have suffered” having made a finding of liability to do so, this does not absolve the party concerned from proving the causative link, as well as the quantum of damages suffered. In any event the alleged malperformance of the applicant is the subject of an irresoluble dispute of fact on the papers.

[61] The respondents are accordingly not entitled to an order in terms of paragraph 2 of the counter-application.

[62] The final relief sought by the respondents is an order directing the applicant to make payment to the first respondent of the sum of R650,000.00 in respect of bridging finance, and R1.1M in respect of performance guarantees.

[63] The response of the applicant to this claim is to allege that the respondents agreed to put up the requisite guarantees jointly and/or severally themselves. By virtue of such agreement, the respondents waived compliance by the applicant for the provision of guarantees. It is alleged that it was agreed that any interest payable by the respondents in respect of guarantees they put up, would be deducted from the applicant’s share of the profits, derived from the joint venture agreement. This averment is denied by the respondents. Again this issue is the subject of an irresoluble dispute of fact on the papers.

[64] Mr. Levin did not seek a referral to oral evidence of any of the above disputes of fact, arising on the respondent’s counter-application. As a consequence the relief prayed cannot be granted.

[65] Turning to the respondents’ application that the applicant be ordered to furnish security for the respondent’s costs in an amount of R300,000.00.

[66] At the outset it should be noted that the respondents did not ask that the application for security for costs be set down separately, and be dealt with before the merits of the application and counter-application were considered. At the hearing, Mr. Levin argued the merits of the application, as well as the application for security for costs, at the same time. He did not ask that the issue of the applicant being ordered to file such security, be determined before the merits of the application were adjudicated upon. A consequence of this is that the outcome of the application for security for costs, can have no bearing upon the conduct, or outcome, of the present proceedings. No stay of the present proceedings could be granted as a result of any failure to provide security for costs in terms of any order which may be granted, for the simple reason that on the grant of the order I intend making, the proceedings before me are finalised. In addition, in the light of the order of costs I intend making, the respondents would in any event not be entitled to be furnished with security for their costs. In so far as the institution of the action by the applicant as contemplated in the notice of motion is concerned, the existing application for security for costs is premature, because

Rule 47 (1) provides that such an application may be brought “after the commencement of proceedings”. The proceedings must be pending.

H R Holfeld (Africa) Ltd. V Karl Walter & Co. GmbH

(2) 1987 (4) SA 861 (W)

Until the applicant issues summons in such an action it would not be pending. The respondent would obviously be entitled to launch a fresh application for security for costs at that stage.

[67] I intend ordering the respondents to pay the applicant’s costs, both in respect of the application and counter-application for the following reasons:

[67.1] The applicant has achieved substantial success in respect of the main application.

[67.2] As regards the respondents’ counter-application, no cause of action was established in respect of the relief sought in paragraph 1 of the notice of motion of the counter-application. The relief sought in paragraph 2 of the notice of motion was misconceived and subject to an irresoluble dispute of fact, which the respondents should have realised when launching the counter-application. The same objection applies to the relief sought in paragraph 3 of the notice of motion.

[68] As regards the costs of the previous hearings in this matter, the following emerges:

[68.1] On 25 May 2009 Gyanda J granted an urgent interim interdict, restraining the first to fourth respondents from inter alia dealing with the shares “pending proceedings to be instituted by the applicant within fifteen days of the confirmation of this order”. The matter was adjourned to 15 June 2009 and the costs were reserved.

[68.2] Although not expressly couched in the form of a rule nisi with interim relief, it clearly had such an effect. By virtue of the fact that the applicant did not launch an action within the

prescribed period, the order lapsed.

[68.3] On 15 June 2009 when the matter came before Balton J it was adjourned to 07 July 2009 and “Rule extended to that date”. The costs were reserved.

[68.4] On 07 July 2009 the matter came before van der Reyden J and was adjourned to 23 July 2009, with the costs reserved.

[68.5] On 23 July 2009 the matter came before Theron J and was adjourned to the opposed roll on 06 November 2009. No order was made as to costs.

[69] In my view, the costs of these previous appearances should be costs in the cause and paid by the first, second, third and fourth respondents.

[70] The order I therefore make is the following:

The first to fourth respondents be and are hereby forthwith interdicted from transferring, encumbering, hypothecating, alienating , ceding, pledging or dealing in anyway with the two thousand five hundred ordinary shares held by the applicant in the first respondent, which were purportedly transferred by the first respondent, or its agent/representative on the 20 February 2009, in favour of the second to fourth respondents, in the number of eight hundred and thirty four shares each, as evidenced by the share certificates 5, 6 and 7 issued by the first respondent in favour of the second to the fourth respondents.

The first respondent is interdicted from paying any dividends, or any other amounts, received from the fifth respondent, in performance of its obligations under tender Contract No. TPD/M/2921180/T001/46 to the applicant, the second respondent, the third respondent or the fourth respondent.

The counter-application is dismissed.

The application for security for costs is dismissed.

The first, second, third and fourth respondents are ordered to pay the applicant’s costs in respect of the main application, the counter-application, the application for security for costs as well as the costs of the adjournments of this matter on 25 May 2009, 15 June 2009, 07 July 2009 and 23 July 2009, jointly and severally, the one paying the other to be absolved.

The relief set out in paragraphs 1 and 2 supra is to operate pending the finalisation of an action to be instituted by the applicant within fifteen days of the grant of this order, for the setting aside of the “Amendment of the Joint Venture Agreement” and the transfer of the shares held by the applicant in the first respondent, to the second, third and fourth respondents and further or alternative relief.

In the event of the applicant failing to institute the said action within fifteen days of the grant of this order , the orders set out in paragraphs 1 and 2 supra will automatically lapse.

____________

SWAIN J.

Appearances: /

Appearances:

For the Applicant : Mr. M. Mannikum

Instructed by : Saras Naidoo & Company

Phoenix, Durban

For the 1st- 4th Respondent : Mr. E. Levin

Instructed by : Chelin & Associates

Morningside

Date of Hearing : 06 November 2009

Date of Filing of Judgment : 17 November 2009