Naidoo NO Grace Naidoo Family Trust and Another v Old Town Investment 69 CC (2000/056726/23) and Others (06/6258) [2008] ZAGPHC 161 (6 June 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NO: 06/6258

In the matter between:

NAIDOO, ROGERS N.O. GRACE NAIDOO

FAMILY TRUST First Applicant

NAIDOO, DHANASEGRI N.O. GRACE NAIDOO

FAMILY TRUST Second Applicant

and

OLD TOWN INVESTMENT 69 CC

(2000/056726/23) First Respondent

HOLO GRAPHIC PROPERTIES 148 CC

(2000/056741/23) Second Respondent

MEYER, T J Third Respondent

CRICK MORBY AND ASSOCIATES Fourth Respondent

J U D G M E N T

MOSHIDI, J:

INTRODUCTION

[1] This is an opposed application in which the applicants, in their representative capacities as the only two trustees of the Grace Naidoo Family Trust (the Trust), claim from the respondents certain monies. The claim is based on a sale agreement involving certain immovable property (the sale agreement) pursuant to which certain monies were retained by the conveyancing attorney, the third respondent, on the instructions of the sellers, the first and the second respondents. The fourth respondent was the agent of the first and the second respondents in the sale agreement.

[2] It is common cause that the immovable property, which previously consisted of two erven, was subsequently consolidated into one erf prior to transfer. The consolidated erven were properly transferred and registered into the name of the Trust on 20 October 2005. The written sale agreement between the Trust and the first and the second respondents were entered into on 5 July 2004. There is no dispute regarding the sale agreements, and the subsequent transfer and registration thereof into the name of the Trust. It is also common cause that the third respondent, before his demise on 14 November 2006, was the conveyancing attorney who attended to the transfer and registration of the consolidated immovable property into the name of the Trust.

[3] The only issue in dispute is the quantum of the balance of reimbursement to be made and the beneficiary thereof. The respondents have also clouded this issue by alleging certain factual disputes which they claim are incapable of resolution on the papers. I deal with the alleged factual disputes later herein.

[4] It is convenient to first deal with the point in limine raised by counsel for the third respondent at the commencement of the proceedings. As stated earlier, the third respondent died on 14 November 2006. On 30 November 2006, his widow, Riana Meyer, was appointed by the Master as Executrix in the estate (the Executrix).

On 15 May 2007, the applicants’ attorneys of record served on all respondents a notice in terms of Rule 15(2) of the Uniform Rules of Court substituting the third respondent in his personal capacity with the Executrix. In raising the point in limine, it was essentially contended on behalf of the third respondent that as there was a non-joinder of the Executrix, the matter could not proceed against the estate of the third respondent. It was argued further that since the serving of the Rule 15(2) notice by the applicants, nothing further was done by the applicants’ attorneys, and, consequently, no substitution of the parties concerned was effected. It is common cause that no other procedural steps were taken by the third respondent’s attorneys after receipt of the aforesaid notice. It was only on 10 September 2007, when the third respondent’s attorneys addressed a letter to the applicants’ attorneys in the following terms:

“We refer to the abovementioned matter. We shall be pleased if you could kindly advise when you intend to proceed with the substitution of the Executrix. We look forward to hearing from you.”

On 12 September 2007, applicants’ attorneys responded to the letter as follows:

“Thank you for your letter of 10 September 2007. We do not understand the second paragraph of your letter as we have acted in terms of Rule 15(2). Once we set the matter down, your client would be cited as the third respondent obviously in her representative capacity.”

In advancing the argument of non-joinder, counsel for the third respondent relied only on Estate Huisman and Others v Visser and Others 1967 (1) SA 470 (T). The facts of the latter case are plainly distinguishable from the facts in the present matter. In the present matter there was no compliance with Rule 15(2) of the Uniform Rules of Court by the applicants. The Executrix did not invoke the provisions of Rule 15(4). In Estate Huisman and Others there was no compliance with Rule 15(2). The point in limine had no merit, and called for dismissal. The applicants quite correctly, in my view, argued that such point in limine was highly technical and surprising. The first, second and fourth respondents took no part in the preliminary issue. It is significant to note that the third respondent associated with the rest of the arguments advanced by the other respondents on the merits of the application as discussed below.

[5] I deal with the merits of the application. The registration of the transfer of the immovable property into the name of the Trust was conspicuously characterised by fanciful and unjustifiable conduct on the part of the respondents, in particular the third respondent, as the transferring conveyancer.

[6] Although the purchase price in respect of the immovable property was R300 000,00, Mr R Naidoo, the deponent to the founding affidavit and also one of the trustees, elected to instead pay the sum of R400 000,00, to the fourth respondent, the agent of the sellers. This payment, which was made on 7 July 2004, was sufficient, not only to cover the purchase price, but also the costs and fees incidental thereto. The amount was to have been transferred by the fourth respondent to the third respondent. These monies were to be invested in an interest-bearing account, the interest to accrue for the purchasers’ benefit. In my view, these were the commencement of the problems of Mr R Naidoo in his eagerness and commitment to the transaction. He continued to make further payments directly to the third respondent or to other persons under circumstances where he should not have done so. As a result, the respondents collectively endeavoured not only to exploit the situation, but also to extort more monies from the applicants. Shortly after the conclusion of the sale agreement, when the applicants were insisting on registration of transfer, the first, second and fourth respondents, alleged that the purchase price was R400 000,00. This clearly was contrary to the written sale agreement. It was only after the applicants had consulted their attorneys of record that the third respondent began to account to them. The total amount paid by the applicants was the sum of R498 121,47 as opposed to R370 634,26. Although the third respondent at some stage alleged that the R400 000,00 was not paid over to him by the fourth respondent, he later accounted to the applicants reflecting such amount to the credit of the Trust or the applicants. This was contained in the third respondent’s letter and statement of account dated 21 October 2005, and marked Annexures “RN28” and “RN27”, respectively. The third respondent also admitted that the amount of R68 121,47 was paid to him as the transferring conveyancer in respect of the transfer by the fourth respondent.

[7] As at 21 October 2005, the third respondent, whilst denying that the sellers of the immovable property had paid to him the purchase price, and that the delay in the registration of transfer was not due to him, confirmed in the statement of account that the amount of R127 487,21 was due to be refunded to the applicants. After the applicants launched the present application, the first, second and fourth respondents instructed the third respondent to pay the amount of R61 134,20 to the applicants’ attorneys, which payment was effected on 5 June 2006.

[8] It is more than plain from the papers that when the fourth respondent paid the aforesaid amount of R68 121,47 to the third respondent, it could have been for no other reason than for the third respondent to reimburse the applicants. The third respondent could not have intended to reimburse any other party than the applicants.

[9] After paying the applicants the amount of R61 134,20 from the amount of R78 121,49 he admittedly received, the third respondent owes the applicants the balance of R6 987,27. The first, second and fourth respondents owe the applicants the amount of R66 353,01.

[10] In resisting reimbursements to the applicants, the respondents collectively raised several alleged factual disputes as stated in para [3] above of this judgment. The disputes include the exact amount to be reimbursed to the applicants; that the monies are due, not to the Trust, but to the first applicant (Rogers Naidoo), in his personal capacity since there was no trust in existence when the sale agreement was entered into; that the balance of R6 987,27 in the trust account of the third respondent relates to a transaction which is completely unrelated to the present matter; and that the letters of authority in respect of the Trust were issued by the Master of the High Court on 18 July 2005 only and received by the third respondent later on 28 July 2005. In essence, it was alleged that there are no refunds due to the Trust. It is noteworthy that prior to the launching of the present application, and the intervention of the applicants’ attorneys of record, the respondents, through the third respondent, alleged that the purchase price was R400 000,00, not R300 000,00, as contained in the agreement of sale. This allegation, was however, abandoned as it was clearly contrary to the written sale agreement coupled with the applicants’ resistance thereto.

[11] This Court is indeed enjoined to assess and examine the alleged factual disputes in order to ascertain their genuineness or otherwise. In a case such as the present one, the alleged disputes cannot be resolved on probabilities, but the evidence must be looked at as a whole. It was contended on behalf of the applicants, and I quote from para 70 of the applicants’ heads of argument:

“70. It is respectfully submitted with respect that in application proceedings, a Court ought to approach the matter with a degree of common-sense and should be mindful of discharging its function and not become pre-occupied by engineered and fanciful disputes of fact and argument.”

I respectfully agree with this approach in the present matter as there are clearly factual basis to do so.

[12] In Soffiantini v Mould 1956 (4) SA 150 (E), at p 154, the following is stated:

“It is necessary to make a robust, common-sense approach to a dispute on motion as otherwise the effective functioning of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.”

Furthermore, in Administrator Transvaal and Others v Theletsane [1990] ZASCA 156; 1991 (2) SA 192 (A) at 204G-H, the Court stated:

“The equivocality evident in the appellants' affidavits does not preclude a consideration of the affidavits with a view to determining the true case being put forward by the appellants. Just as in the case of disputes on motion, so too, when dealing with equivocality of the kind present in the appellants' affidavits, one should adopt 'a robust, common-sense approach'.”

In Mphahlele Taxi Association v Lebowakgomo Taxi Association [2002] 3 All SA 124 (T), at para [18]:

“By adopting a ‘robust common-sense approach’ (referred to in Soffiantini v Mould 1956 (4) SA 150 (E) it is possible to conclude that the applicant accepted FELLDTA’s suggestion unconditionally to mediation by the Council once the latter was constituted.”

[13] In applying the above principles to the present matter, it is more than apparent that the real issue is that between the purchasers (the applicants) and the sellers (first, second and fourth respondents), and the third respondent, as the transferring conveyancer, and their combined obligations arising therefrom.

[14] All the respondents, at all material times, held monies on behalf of the purchasers (the applicants). The purchase price, including an extra amount of R100 000,00 was paid into the account of the fourth respondent (represented by one Morby) on 7 July 2004. The fourth respondent retained the monies as part of the purchase price, and the sellers (first and second respondents), kept the monies ultimately as the purchase price for the purposes of the transaction and costs connected therewith. After a round-table conference attended by all the parties concerned, the fourth respondent undertook to pay over the monies to the third respondent, which never occurred at that stage.

[15] After the letters of authority in respect of the Trust, were issued by the Master of the High Court on 18 July 2005, these were given to the third respondent as conveyancer. The Trust’s names, Grace Naidoo Family Trust, were inserted by the third respondent into the agreement of sale. The agreement was clearly between the Trust and the first and second respondents (the sellers). The third respondent, as stated earlier, alleges in his affidavit, that his office received the Trust details on 28 July 2005. In this regard, in para [11], p 126 of the paginated papers, the third respondent states as follows:

“It was only after the receipt of this document that my office would start preparing the documents to give effect to the transfer … I furthermore state that on 1st August my firm furnished Attorneys Nam-Ford Incorporated, the attorneys acting for Nedbank Limited on whose behalf a mortgage bond was to be registered simultaneously with the transfer of the property into the name of the Trust with draft Deeds of Transfer.”

[16] There was no doubt at all that the respondents accepted that the monies held by the fourth respondent were those of the Trust. In fact, at some stage, the third respondent undertook, on behalf of the Trust, to demand these monies from the fourth respondent. When Morby of the fourth respondent, and the respondents’ effected payment of R68 121,47 to the third respondent, they clearly did so for no other reason than to reimburse the applicants as purchasers. The third respondent had a legal duty to account, and he did in fact account, and tendered payment of this amount to the Trust, less his costs.

[17] As the sellers, the first and second respondents were obliged to obtain and were liable for the costs and payment of outstanding rates and taxes and securing the clearance certificates, such costs being incidental to the transfer. The third respondent on behalf of the sellers applied and obtained such clearance certificates on 16 August 2005. Purely out of desperation to ensure transfer, the Trust tendered, without prejudice to its rights, to obtain the clearance certificates, which was done. There was never a dispute that the sellers were liable for the outstanding monies in respect of the clearance certificates for the rates and taxes. In fact, in his statement of account dated 17 October 2005, addressed to the Trust, the third respondent credited the Trust with an amount of approximately R42 721,85 for the clearance certificates. It is also noteworthy that the third respondent, in the same statement of account, credited the Trust with an amount of R25 399,62, representing interest received on the deposit of R400 000,00. This, after the third respondent had addressed a letter to applicants’ attorneys on 6 September 2005 in the following terms:

“The Purchaser elected to pay the deposit to the agent which was acceptable to the Seller. If the Purchaser insists that the deposit be paid to us he must obtain it from the Seller to be obtained to us. There is also a dispute regarding the purchase price, and the payment of occupational interest. We have instructions from the Seller not to lodge until these disputes have been resolved. May we suggest that the dispute be attended to in terms of clause 9 of the Agreement. We wait to hear from you.”

At that stage the applicants had complied with all the Trust’s obligations in terms of the sale agreement. Amongst others, the applicants had obtained, at their costs, the rates clearance certificates; paid the transfer duties; paid the purchase price; paid the occupational rental, assessment rates and taxes for the period of the alleged occupation; paid such costs as had been requested; and signed all documents in order to give effect to the transfer. Even though the alleged dispute of occupational rental was raised for the first time, the applicants obliged. The alleged dispute relating to the purchase price was clearly not genuine as the agreed purchase price was apparent from the sale agreement. The applicants insisted on transfer, as they were entitled to do, but the third respondent unjustifiably delayed it by flimsy excuses, such as The TD 1 SARS declaration to be re-signed by the sellers as SARS did not want to accept the old forms originally signed by the sellers.

[18] It was certainly not the end of the woes for the applicants. In a subsequent statement of account dated 8 May 2006, the third respondent raised, for the first time, a debit of R23 621,16 allegedly owing by the Trust to the Bassonia Estate Homeowners. There could have been no liability attaching to the Trust for this amount. It was never substantiated by any source or source documents. It was a fabrication plainly intended to extort more monies out of the Trust. It is mind boggling on what basis the third respondent accounted to the Trust on the alleged increased purchase price which was contrary to the agreement of sale. It came as no surprise that when pressurised further and to lodge the transfer documents, the third respondent wrote to the applicants’ attorneys, inter alia, as follows:

“It appears that an amount of R100,000.00 might have to be refunded to the Purchasers as the purchase price for the properties were only R300,000.00. We are of the opinion that in order to protect the Purchasers’ interests we proceed with the registration of the transfer.”

It is significant that the answering affidavit reflects the correct agreed purchase price.

[19] A further surprise came in the statement of account of the third respondent to the applicants dated 8 May 2006, which is Annexure “A” to Morby’s answering affidavit on behalf of the first, third and fourth respondents. In the statement, the amount due to the applicants was reflected as R61 134,20. However, this was only after a newly alleged “unrelated sum” of R6 987,27 was deducted and after including the amount R42 721,85 mentioned above, in respect of the rates and taxes, and the amount of R23 631,16 mentioned above, allegedly from the Bassonia Homeowners Association.

[20] In his statement of account dated 21 October 2005, Annexure “RN27”, the third respondent calculated the amount to be reimbursed to the Trust as R127 487,21. At that stage, the sellers had instructed him to deduct occupational rental of R30 677,26. However, he clearly did not have instructions from the sellers that the Bassonia Homeowners Association amount as well as the clearance certificates amount were for the purchasers’ account.

[21] In para 17 of his opposing affidavit, p130 of the paginated papers, the third respondent states: “I admit that my firm has not paid over R68 121.47 (not R68 121.47 less the unrelated sum) to the trust, but for reasons that I have already mentioned.” (my brackets)

The reasons did not include the “unrelated sum”. In fact, third respondent relied on his letter of 20 October 2005, Annexure “RN24”, to applicants’ attorneys, in which he states, inter alia, that, “We confirm that the above transaction can be registered today in the Deeds Office. We also confirm that to date the amount of R400,000.00 has not been into (sic) our trust account notwithstanding numerous requests for it to be paid to us. We only hold an amount of R68 121.47 on trust of which an amount of R58 164.47 is owing to the purchaser as per our statement of 17th October 2005”.

[22] The first respondent says nothing about the “unrelated sum”, neither does he confirm Morby’s version. In para 60 of his opposing affidavit, p 145 of the paginated papers, third respondent states, “I respectfully refer the Honourable Court to what I have stated herein before in respect of the sum of R68 121.47. I furthermore respectfully state that my trust account is open for inspection by the attorneys acting for the applicants herein should they wish to do so. My trust account will indicate that this, together with the R30,000.00 in respect of the transfer duty is the only money received by my firm relevant to this transaction”. It is therefore questionable where Morby obtained the “unrelated sum” from and why he raised it. The conclusion that the issue of the “unrelated sum” was a red-herring and fabrication becomes irresistible.

[23] There is indeed much to be said about the conduct of the third respondent as a conveyancer in this matter, which in turn dispels any notion of genuine factual disputes, as contended for by the respondents collectively. Although he represented the sellers, he also undoubtedly had a duty towards the purchasers, the applicants. In Circular No. 2/2004 issued by the Law Society of the Northern Provinces dated 4 October 2004, para 1.1 thereof provides as follows:

“1. ETHICS AND HONESTY

Accuracy and transparency

Conveyancers registered transactions involving large sums of money, represented by undertakings exchanged on trust. Mutual trust granted in the highest ethical standards of professionalism and honesty is so fundamental to conveyancing, that the process will disintegrate if these standards are not maintained. The fact that a very small number of conveyancing matters end up in litigation is proof of the efficiency of the current system. The general public, business and all public sectors rely on the accuracy of the registration system, where the input of the conveyancer is of vital importance. Apart from duties towards the parties involved in the transaction, the conveyancer has a duty towards the State and to the public to ensure that no incorrect or misleading information is recorded or perpetuated in the Deeds Office. The conveyancer is obliged to point out any error or change in information for recording, even if this may result in a delay to registration. In this respect, the duties of the conveyancer, with professional obligations, override the interests of a client who may feel that such aspects should be overlooked if the registration can be achieved sooner or at lower cost. For example, a conveyancer attending to a transfer is obliged to advise a colleague attending to the bond if he/she, at any stage, becomes aware of an addendum that may adversely affect the price or the property rights, from the perspective of the bondholder. It is not sufficient to argue that the information need only be divulged if specifically requested by the other conveyancer.”

In addition, paras 4 and 4.2.1 of the above Circular provide, respectively, as follows:

“4. RELATIONSHIP BETWEEN CONVEYANCER AND PARTIES TO TRANSACTION

A conveyancer should be mindful and take great care to avoid a conflict of interest at all times, especially when attending to both the transfer and the bond registration.

Relationship with the seller

4.1.1 In most instances, the seller’s attorney will be nominated to attend to the transfer of the seller’s property. It is therefore the primary duty of the conveyancer to protect the interest of his client seller at all times.

Upon receipt of an instruction to attend to a transfer, contact the seller to acknowledge receipt of the instruction and explain to him/her the legal process to be followed to finalise registration of transfer.

Highlight to the seller all clauses contained in the deed of sale which could have a detrimental impact on the transfer i.e.

suspensive conditions especially those referring to the prior sale of the purchaser’s property.

4.2 The relationship with the purchaser

4.2.1 Having regard to the primary duty to the seller, the conveyancer nevertheless has a duty towards the purchaser who must be dealt with forthrightly and courteously and advised if there is any abuse of rights by the seller. In the event of a dispute between the seller and the purchaser, inform the purchaser that your primary duty lies in protecting the interest of your client, the seller, and, in the event of the dispute not being amicably resolved, the purchaser should consult his/her own lawyer.”

[24] From the above, it is perfectly clear that it was not within the domain of third respondent, in cohorts with the other respondents, to perpetuate a falsity or mislead the purchasers, the applicants, to believe that he accounted in this transaction correctly and fully, when he in fact did not do so. The third respondent did exactly this in his statement of account to the Trust, on 17 October 2005. He, inter alia, credited the Trust with the amount of R25 399,62 as “interest received on investment (R400,000.00 from 7 July 2004 to 18 October 2005)” when on his own version (see his subsequent letter of 20 October 2005) he had not received the R400 000,00. The amount to the credit of the Trust in the sum of R58 164,47, was blatantly incorrect. When under pressure from the applicants’ attorneys, the third respondent was forced to account correctly in his later account of 21 October 2005, Annexure “RN27”. In this account, he reflected the deposit of R400 000,00 paid by the applicants, which included the correct purchase price of R300 000,00, and the balance due to the Trust as R127 487,21. His retraction has not been explained.

[25] It is significant that the third respondent has at all material times been accounting to the Trust. He held monies received from Morby for payment to the Trust. He could therefore never have been accounting to anyone else. The contention of the third respondent later that he was not obliged to reimburse the monies to the purchasers (the applicants) because the monies were originally paid by R Naidoo is untenable. At best for the third respondent, he could quite justifiably refuse to pay over to anyone else except the purchasers. However, this was not third respondent’s reason for not reimbursing the monies to the Trust. In his letter to the applicants’ attorneys on 14 December 2005, Annexure “RN30”, he advised that he had received instructions from the sellers (undoubtedly Morby himself), not to pay over any monies as there was “now a dispute regarding the amount of monies owing to your clients”. He did not venture to set out the dispute. In fact, the third respondent did nothing until he was compelled to depose to his answering affidavit. As at 14 December 2005, per third respondent’s letter, Annexure “RN30” referred to above, there was clearly no dispute as to who should be refunded. The only issue was the quantum thereof. It is therefore questionable why the third respondent did not at that stage, pay over the amount of R61 134,20. It is undoubtedly highly suggestive that the third respondent was in breach of his duty to the purchasers, the applicants. He appears to have blithely followed the instructions of the sellers, and not on account of a real or genuine dispute. On receipt of the present application, the third respondent elected to oppose same. This was on the basis that interest was claimed from him. If this was in fact true, he need only to have raised such issue and allowed the parties to deal with the other issues. However, instead of instituting an interpleader, the third respondent chose to conspire with the sellers, and their agent, Morby. They glaringly adopted the same indefensible version.

[26] In applying the legal principles set out earlier in this judgment, as well as the oft-quoted test as formulated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634I-635D, to the present matter, I find that no genuine or bona fide dispute has been raised by all the respondents in the face of the unchallengeable evidence adduced by the applicants. The allegation and defence by all the respondents that the reimbursement monies are due only to the first applicant in his personal capacity is unequivocally mala fide, disingenuous, fanciful and indeed, untenable. See in this regard Ross v Ekon 2001 (1) SA 199 (W). There are adequate and convincing grounds to apply a robust common-sense approach in favour of the applicants in this matter. The first, second and fourth respondents are bound by their intention to sell the immovable property to the Trust, particularly in the light of the third respondent’s various statements of account stretching over an unreasonably lengthy period.

[27] In the light of the above findings, it is unnecessary to deal with the possible and alternative defence of the doctrine of estoppel partly raised by the applicants.

[28] The costs should follow the result. In this regard, I take into account that the applicants have been sent from pillar to post by the respondents, not only in insisting on registration of transfer, but also in obtaining refunds of monies rightfully due to them. There are no known plausible delays caused by the applicants. The respondents’ collective opposition of this matter is founded on a false version which is fraught with delaying tactics. At the commencement of the proceedings, the third respondent raised a point in limine which was frivolous and lame. In addition, the third respondent abused his position as transferring conveyancer to perpetuate a falsity to mislead the applicants as purchasers in his blatantly incorrect accounting. All the respondents colluded to propagate a version designed to mislead. For all these reasons, I am convinced that in the exercise of my discretion, a punitive costs order against all the respondents, jointly and severally would be just and appropriate in the circumstances of this matter.

[29] In the circumstances the following order is made:

The first, second and fourth respondents, jointly and severally, the one paying the other to be absolved, are ordered to pay to the applicants the sum of R66 353,01.

Interest on the said sum of R66 353,01 at the rate of 15,5% p.a. from 5 June 2006 to date of full payment.

Interest on the amount of R127 487,21 at the rate of 15,5% p.a. from 20 October 2005 to 5 June 2006.

The third respondent is ordered to pay to the applicants the sum of R6 987,20.

Interest on the amount of R6 987,20 at the rate of 15,5% p.a. from 20 October 2005 to the date of full payment.

The first, second, third respondents and fourth respondent are ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of this application on the scale as between attorney and client.

________________________________

D S S MOSHIDI

JUDGE OF THE HIGH COURT

COUNSEL FOR APPLICANTS R WILLIS

INSTRUCTED BY MORTIMER GOVENDER ATTORNEYS

COUNSEL FOR FIRST, SECOND

AND FOURTH RESPONDENTS H B MARAIS

INSTRUCTED BY SPENCER TARR MALAN GEYER

COUNSEL FOR THE THIRD

RESPONDENT P V Z BOOYSEN

INSTRUCTED BY COETZEE AND JANSEN

VAN RENSBURG

DATE OF HEARING 27 MARCH 2008

DATE OF JUDGMENT 6 JUNE 2008