Thusang Bana Transport Services CC v MEC: Department of Community Safety and Transport Management, North West and Another (665/2017) [2019] ZANWHC 41 (18 April 2019)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

Case number: 665/2017

In the matter between:

THUSANG BANA TRANSPORT SERVICES CC

PLAINTIFF

And

MEC: DEPARTMENT OF COMMUNITY SAFETY

AND TRANSPORT MANAGEMENT, NORTH WEST 1ST DEFENDANT

MEC: DEPARTMENT OF PUBLIC WORKS AND

ROADS, NORTH WEST PROVINCE

2ND DEFENDANT

JUDGMENT

Matlapeng AJ

[1] Thusang Bana Transport Services CC, which is conveniently referred to as the plaintiff, issued a summons against the two government departments. I was informed that it was done out of caution as due to the vicissitude of government department’s names, the plaintiff was not sure after the name changes which department was responsible. The defendant’s Counsel assured me that the relevant department is the first defendant who for convenience I will refer to as the defendant. The cause of the complaint arose out of the written contract which the parties entered into on 23 November 2010 which was confirmed by a letter of acceptance dated 18 August 2010.

[2] The papers filed by the parties run into thousands of pages. However, the following facts can be distilled from both the particulars of claim and the defendant’s plea. In response to an invitation from the defendant, the plaintiff made a bid for a contract for the transportation of farm children and access pilot project. Its bid was

successful.

[3] The agreement was for a period of five years commencing on 01 October 2010 and concluding on 30 September 2015. It was a further term of the agreement that the defendant would pay to the plaintiff for transport services rendered based on the following formula rate multiplied by the number of busses multiplied by kilometres multiplied by number of school days per month. In figures the formula was R23.80 x 6 busses x 240km x 20 days which worked out at R685 440.00 per month.

[4] Later the parties entered into several agreements which extended the initial agreement. The first one being August/ September 2015 which extended the initial contract for three months ending in December 2015 in accordance with the same terms and conditions as the initial agreement. On 04 February 2016 the initial agreement was further extended for three months starting January 2016 to 31 March 2016. The kilometres travelled were amended to read 404.6.

[5] The initial agreement was extended for a further period of nine months being from 01 April 2016 to 31 December 2016. By a letter dated 12 April 2016, the agreement was further amended through a letter dated 26 September 2016 which amended the period of appointment from 01 August 2016 to 31 December 2016.

[6] It is common cause between the parties that the defendant failed to make payment on the invoices submitted by the plaintiff for the period March 2013 to December 2015. It is also common cause that the defendant failed to make payments on invoices rendered by the plaintiff for the periods January 2016 to December 2016.

[7] The defendant proffered two defences namely, prescription and a counterclaim of set off. In amplification, the defendant firstly states that the plaintiff’s claim for the invoices of the period March 2013 – March 2014 in the amount of R6 751 584.00 has prescribed in terms of s11 of the Prescription Act 68 of 1969 as the plaintiff served the summons on the defendant after a period of three years after they became due. Secondly, set off in that the plaintiff has claimed for more kilometres than its buses have travelled. This was due to the mistake common to both parties

relating to the actual kilometres the plaintiff is entitled to charge. As a result, there must be a rectification and flowing from

that, the defendant is entitled to claim the money from the plaintiff that it has overpaid (set off).

[8] The plaintiff called one witness Ms Ntombizodwa Maureen Malinga and the defendant called two witnesses Ms Yvonne Maloka and Mr Rejoice Simanyana Mokgatle. I must mention at the outset that no criticism can be levelled against these three witnesses regarding the credibility of their testimony. Any shortcomings as shall be pointed out later relates to the cogency of proof. The question is whether their testimony is cogent enough to amount to proof in respect of the points they were testifying about.

[9] Ms Malinga’s evidence was briefly the following. She attended a tender briefing in June 2010 when the tender document and formula was explained to the bidders. The formula used in the letter of appointment was given to each bidder who was requested to determine the rate. They would charge based on the formula. As a result, it is possible that each bidder is charging a different price per kilometre.

[10] The plaintiff’s appointment in terms of the written contract included the formula for calculating its monthly claims namely, the rate of R23.80 x 6 busses x 240km x number of school days per month. The plaintiff would not have made its bid of R23.80 if the number of busses varied or if the kilometres of the route varied as this would have affected its bottom line.

[11] In terms of the invitation to bid, it was the responsibility of the bidder to ascertain the actual kilometres to be travelled. The plaintiff verified the routes prior to the conclusion of the agreement and although the actual kilometres travelled were more than 240km per day it made a bid for (it was 398.6km), the plaintiff was satisfied with the 240km as per the agreement.

[12] The plaintiff rendered services and for a period of 7 months after it commenced with its duties, it was not paid as the defendant disputed the number of kilometres actually travelled by its busses. Subsequently, in 2011 the Department of Finance, and in 2012, an independent organisation verified the kilometres travelled by the plaintiff’s busses and it was found that indeed they travelled more kilometres than the ones in the agreement. The result was that the plaintiff was paid in terms of the formula from 2010 to February 2013.

[13] In the beginning of 2013 there was a change in circumstances on the routes travelled by the Plaintiff. This was as a result of four farm communities moving to Jourberton and Khuma townships, the movement of other farm communities to other farm and the rationalisation process of the Department of Education where some farm schools were closed and merged with others.

[14] The plaintiff approached the defendant and put certain proposals to it about its busses. These negotiations and proposals did not materialise into anything concrete. In October 2013 the defendant through a letter attempted to amend the contract between the parties. Ms Malinga stated that the plaintiff refused to accept the amendment as it was done unilaterally.

[15] The plaintiff continued to render services in terms of the original contract which was extended for three months on the same terms and conditions. On 04 February 2016 the contract was extended from 01 January 2016 to 31 March 2016 and on 12 April 2016 it was extended from 01 April 2016 to 31 December 2016 and further on 26 September 2016 a letter of amendment was sent for a period of 01 August 2016 to 31 December 2016.

[16] Ms Maloka on behalf of the defendant stated that as at the initial stage of the contract in August 2010, numerous complaints were received from operators relative to what letters of appointments reflected as against the actual positions. The kilometres travelled were received from client department being the Department of Education.

[17] As a result, a verification process was conducted in 2011 and 2013. The results of the verification process of 2013 led the defendant to call for a meeting of all operators in order to review the initial appointments to reflect the actual kilometres travelled as verified. The plaintiff’s appointment was never amended by agreement as although it did not disagree with the verified kilometres, it had a disquiet with the changes.

[18] Mr Mokgatle testified that on 16 April 2013 and 29 August 2013 he, accompanied by a representative of the plaintiff, conducted a verification of the actual kilometres travelled by the plaintiff’s busses. These revealed that the plaintiff’s busses travelled a total of 404.6 kilometres return trip. However, the plaintiff refused to sign off the report.

[19] He further stated that as a person who is responsible for processing requisition forms for payments of claims received from service providers, he compiled a spreadsheet which reflects the total payments made to the plaintiff from October 2010 to February 2013. As a result of the verification process that he conducted of the actual kilometres travelled, he effected a reduction of amounts which according to him represented overpayments from the amount due to the plaintiff. As a result, the defendant’s indebtedness to the plaintiff according to his calculations is in the amount of R1 010 373.99.

[20] A claim for rectification is recognised in our law. A party relying on rectification must allege and prove the following:

20.1 a contract between the parties which has been reduced to writing.

20.2 the common continuing intention of the parties as it existed at the time when the contract was reduced to writing.

20.3 that the written document does not reflect the common intention of the parties.

20.4 that there was a mistake in drafting the document which mistake was as a result of either a bona fide mutual error or the intentional misleading act of one of the parties.

20.5 The wording of the contract as rectified must be given. It is not enough to give a general import of the common intention. See Prop Fokus 49 (Pty) Ltd v Wenhandel 4 (Pty) Ltd [2007] (3) All SA 18 SCA par 13.

[21] In Levin v Zoutendijk 1979 (3) SA1145(W) 1147 H-1148A the court held:

“The purpose of an action for rectification is to reform a written document in a specific fashion and a wholesome practice has developed

over the years to draft the actual wording of the term omitted and to pray that be inserted at a suitable place in the writing. An example can be found in Munnik and Munnik v Sydney Clow & Co. Ltd 1965 (4) SA 312 (T) at 314. It is essential for any party to a written contract to know what the other party contends regarding the actual wording of the contract. Important rights and obligations may arise or be affected by the form of a written contract. Merely a general description of the omitted terms such as one finds in para 3 (b) and the prayer, is calculated to embarrass the defendant, not only in the course of the trial but if this claim is eventually granted in this form, he is then left with a written contract in which there is a vague summary only of these conditions. The very cause of action for rectification postulates that the parties’ agreement or common intention was clear and unmistakable on those aspects in respect whereof the writing is to be reformed. Cf Anglo-African Shipping Co (Rhod)(Pvt)Ltd v Baddeley and another 1977 (3) SA 236 (R) at 241”.

[22] Are the defendant’s allegations sufficient to sustain an entitlement to rectification? The defendant urge that it is entitled to rectification and relies as its authority in what was said in Dormell Properties 282 CC v Renasa Insurance Co. Ltd and Others NNO 2011(1) SA 70 (SCA) at paragraphs 35 and 36 where it was held:

“The court below was apparently not referred to Meyer v Merchant’s Trust 1942 AD 244. In that matter a guarantee was issued for the payment of certain liabilities, without the parties having entered into a prior agreement. The guarantee did not reflect the parties’ intention to limit the guarantor’s liability to a specific amount, regardless of the actual sum of the secured debts. A claim for rectification was resisted on the ground that no antecedent agreement had come into existence. At 253 De Wet CJ. said the following:

It is therefore open to the Court to consider the question whether, in the absence of proof of an antecedent agreement, it is competent to order the rectification of a written contract in those cases in which it is proved that both parties had a common intention which they intended to express in the written contract but which through a mistake they failed to express.

It is difficult to understand why this question should not be answered in the affirmative. Proof of an antecedent agreement may be the best proof of the common intention which the parties intended to express in their written contract, and in many cases would be the only proof available, but there is no reason in principle why that common intention should not be proved in some other manner, provided such proof is clear and convincing.

This judgment was followed in Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd 2004 (6) SA 29 (SCA) at para 21. The absence of an antecedent agreement does not in itself preclude rectification of a written agreement that does not correctly reflect the parties’ intention”.

[23] The defendant’s reliance on this passage is in my view, sadly misplaced. In my understating, the aforementioned passage dealt with instances where there was no prior agreement between the parties with a result that the resultant agreement did not mirror the common intention of the parties. The court held that the common intention of the parties may be ascertained from the antecedent agreement “but there is no reason in principle why the common intention should not be proved in some other manner, provided such proof is clear and convincing”.

[24] The Dormell Properties case on the facts, is distinguishable from the current matter. In the present case, there is clear evidence on what the intention of the parties were. This is fathomable from the written agreement.

[25] The defendant through the evidence of Ms Maloka and Mr Mokgatle was unable to establish that there was a mistake in the agreement or that there was a common mistake between the parties. Furthermore, through the evidence led, the defendant failed to show what the common mistake was. Their evidence in short, had no bearing on this point.

[26] There were serious shortcomings in the evidence of the two witnesses called by the defendant in that none of them was involved in the tender process. As a result, none of them could tell what the department’s intention was at the time when the agreement was concluded.

[27] On the credible evidence available, two verification processes were made during 2011 and 2012. The kilometres travelled were more than what the plaintiff had made a bid for and was charging. Both the plaintiff and the defendant when entering into the contract, were not mistaken about the number of kilometres travelled.

[28] In my view, the formula used is a contractual term agreed to by the parties. It is not susceptible to rectification unless the requirements for rectification are met. It is correct that in 2013 circumstances changed. However, these changes of circumstances do not entitle the defendant to succeed with a claim of rectification of the agreement from its inception as there was no error on the part of

either party of an error common to the parties at its inception.

[29] In February 2013, there occurred changes to the plaintiff’s routes. This was not because of either the plaintiff or the defendant’s doing but due to the following; migration and relocation of farm communities which resulted in the closing and merging of farm schools due to a rationalisation process undertaken by the Department of Education. These changes occurred when the agreement between the parties was already more than two years in existence.

[30] Whilst it is correct that the kilometres travelled by the plaintiff’s busses reduced after the August 2013 verification process, there was no legal basis for the plaintiff to accept the unilateral attempt by the defendant to amend the existing contract between the parties. The plaintiff was entitled, as it had done to render its invoices in terms of the contract. There was no consensus

between the parties regarding the amendment to the initially agreed kilometres. The changes in circumstances cannot without more form the basis of a rectification of an agreement which has been extant for more than two years.

[31] As a result, I am of the view that the defendant’s reliance on rectification is doomed to fail.

[32] The defendant raised the defence of prescription. Section 10(1) Prescription Act 68 of 1969 provides:

“Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt”.

[33] Section 11(d) provides unless an Act of Parliament provides otherwise, any other debt shall prescribe after three years. A party who pleads prescription must allege and prove the date of inception of the period of prescription. See Gericke v Sack 1978 (1) SA 821 (A). The defendant in its plea states:

“Plaintiff failed to institute any judicial process as so contemplated in section 15 of the Prescription Act, 68 of 1969 within the three years period from the respective dates reflected in sub-paragraphs 1.1.1 to 1.1.13 above for the recovery of its debt against the First Defendant under circumstances where by exercise of reasonable care the Plaintiff should have done and/or taking such reasonable steps as an entity in its position could reasonably have taken to identify the First Defendant ”.

[34] As a result, these claims became prescribed.

[35] In answer to these, the plaintiff relies on section 14(1) and (2) of the Prescription Act which provides:

(1) “The running of prescription shall be interrupted by an express or tacit

acknowledgement of liability by the debtor.

(2) If the running of prescription is interrupted as contemplated in subsection (1), prescription shall commence to run afresh from the day on which the interruption takes place or, if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt from the date upon which the debt again becomes due”.

The creditor carries the onus of alleging and proving interruption of prescription.

[36] In Road Accident Fund v Mothupi 2000(4) SA 38 (SCA) at paragraph 37 the court held that an acknowledgement of liability for the purposes of s14 of the Prescription Act is a matter of fact not law. In order to decide whether there has been an acknowledgment of liability which will bring about an interruption of liability, regard will be had to the intention of the debtor. See Agnew v Union and South West Africa Insurance Co Ltd 1977 (1) 617 (A).

[37] In Benson v Walters 1984(1) SA 73(A) at 87 it was held that the conduct of the debtor must be of the nature that the debtor had intended not merely to acknowledge that it had incurred the obligation, but that the debt existed and it was liable for it.

[38] It is not necessary that the debtor should acknowledge liability for the whole debt. It suffices for the purposes of interrupting presumption that it acknowledges a portion of the debt. See Roestorf v Johannesburg Municipal Pension Fund [2012] 3 All SA 68 (SCA).

[39] In the current matter Ms Malinga on behalf of the plaintiff testified that during early 2015, the plaintiff was requested by Mr Serapelo on behalf of the defendant to provide it with all its outstanding invoices as well as a current tax clearance certificate to enable it to pay. This in my view was an express acknowledgement of liability by the debtor. This information would not have been requested if the defendant did not owe any money to the plaintiff. See Government of the RSA 1983 (3) SA 584 (A). This piece of evidence by Ms Malinga was not disputed.

[40] An acknowledgement of liability coupled with a dispute of the amount interrupts prescription. Erasmus v Grunow 1978 (4) SA 233 (O). Mokgatle on behalf of the department prepared a spreadsheet showing all the claims submitted by the plaintiff and reconciled it with what he termed claims per verified kilometres. He arrived at what he termed overpayments. He then allocated the overpayments to the plaintiff’s debt. This exercise by Mokgatle clearly showed that the department acknowledged that it owed the plaintiff if not all the amount claimed, at least a portion of the amount claimed.

[41] In the circumstances, looking at the conduct of the defendant, especially viewed with the testimony of Mokgatle, it makes it easy for me to find that there was an interruption of prescription which was ongoing. As a result, the defendant’s plea of prescription cannot succeed.

[42] The defendant in cross-examination and in its submissions referred to Section 217(1) of the Constitution of the Republic of South Africa which provides:

“When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective”.

The defendant states that that the relevance of this section is that all organs of the state are obligated to take necessary measures to investigate allegations relating to impropriety in public procurement. In the current matter it was suggested that to require the defendant to pay for kilometres not travelled after the plaintiff’s kilometres reduced in February 2013 will constitute an impropriety. I disagree the initial tender which resulted in the parties’ agreement was procured in process that did not fall foul of the constitutional imperatives embodied in s217. The department received value for its money as it was initially paying less regarding kilometres actually travelled. As a result, I find that s217 is not applicable.

[43] As its final nail to the defendant’s head, the plaintiff submits that there is a decision by this court in Neosoul Promotions CC v MEC for The Department of Public Works, Roads and Transport North West Province Case No. 992/2014 which is on all four and not distinguishable from the current case. As a result of the decision that I have reached, I do not find it necessary to decide whether Neosoul is a decision upon which to rely seeing that although it arrived at the same conclusion as I have done, the route taken is not similar.

[44] The plaintiff seeks costs on a punitive scale. This is based on the conduct of what it terms how the defendant conducted this matter namely, the plaintiff rendered a service and it was not paid for a period of four years, the defendant did not communicate with the plaintiff on the issue of non-payment, it persisted with this litigation when it knew that it had no case and it had an opportunity to mitigate costs after Malinga testified that until February 2013, the actual kilometres travelled were more than 240 km per day per bus.

[45] An adverse costs order is one of the hazards of litigation. An award for costs is in the discretion of the court. In the normal course of events, a court will order a losing litigant to pay the costs of the successful party on a party and party scale. In some instances, however, a court may order a losing party to pay the successful party’s costs on a punitive scale. This is normally a way in which a court shows its displeasure to the way the losing party conducted its case. Some of the instances that attract the court’s opprobrium are; dishonesty, wilfulness, a claim or defence that is found to be vexatious, frivolous and totally without substance or hopeless from the onset. See Waar v Louw 1977 (3) SA 297 (0).

[46] It is true that the defendant exhibited a degree of institutional incompetence in its failure to timeously pay the plaintiff’s invoices. To expect the plaintiff to render a service and not get paid for a period of seven months clearly flies against the face of the government’s lofty policy of affirming small businesses.

[47] I am however, not persuaded that in this case the defendant conducted this case in a manner that should attract censure. It cannot be said that the defence offered by the defendant was hopeless or vexatious. In the circumstances I am not inclined to grant a costs order on a punitive scale.

Order

[48] In the circumstances the defendant’s ordered to make the following payments to the plaintiff:

(1) Payment of the sum of R22 075 252.05

(2) Payment of mora interest on the sum of:

2.1 R479 808.00 as from 1 May 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.2 R548 352.00 as from 1 June 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.3 R753 984.00 as from 1 July 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.4 R548 352.00 as from 1 August 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.5 R445 536.00 as from 1 September 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.6 R719 712.00 as from 1 October 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.7 R514 080.00 as from 1 November 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.8 R788 256 as from 1 December 2013 to date of final payment, calculated at the rate of 15.5% per annum;

2.9 R719 712.00 as from 1 January 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.10 R102 816.00 as from 1 February 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.11 R445 536.00 as from 1 March 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.12 R685 440.00 as from 1 April 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.13 R651 168.00 as from 1 May 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.14 R411 264.00 as from 1 June 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.15 R651 168.00 as from 1 July 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.16 R651 168.00 as from 1 August 2014 to date of final payment, calculated at the rate of 15.5% per annum;

2.17 R308 448.00 as from 1 September 2014 to date of final payment, calculated at the rate of 9% per annum;

2.18 R719 712.00 as from 1 October 2014 to date of final payment, calculated at the rate of 9% per annum;

2.19 R719 712.00 as from 1 November 2014 to date of final payment, calculated at the rate of 9% per annum;

2.20 R616 896.00 as from 1 January 2015 to date of final payment, calculated at the rate of 9% per annum;

2.21 R685 440.00 as from 1 January 2015 to date of final payment, calculated at the rate of 9% per annum;

2.22 R274 176.00 as from 1 February 2015 to date of final payment, calculated at the rate of 9% per annum;

2.23 R445 536.00 as from 1 March 2015 to date of final payment, calculated at the rate of 9% per annum;

2.24 R685 440.00 as from 1 April 2015 to date of final payment, calculated at the rate of 9% per annum;

2.25 R616 896.00 as from 1 May 2015 to date of final payment, calculated at the rate of 9% per annum;

2.26 R445 536.00 as from 1 June 2015 to date of final payment, calculated at the rate of 9% per annum;

2.27 R685 440.00 as from 1 July 2015 to date of final payment, calculated at the rate of 9% per annum;

2.28 R616 896.00 as from 1 August 2015 to date of final payment, calculated at the rate of 9% per annum;

2.29 R342 720.00 as from 1 September 2015 to date of final payment, calculated at the rate of 9% per annum;

2.30 R685 440.00 as from 1 October 2015 to date of final payment, calculated at the rate of 9% per annum;

2.31 R685 440.00 as from 1 November 2015 to date of final payment, calculated at the rate of 9% per annum;

2.32 R582 624.00 as from 1 December 2015 to date of final payment, calculated at the rate of 9% per annum;

2.33 R719 712.00 as from 1 January 2016 to date of final payment, calculated at the rate of 9% per annum;

2.34 R233 240.00 as from 1 February 2016 to date of final payment, calculated at the rate of 9% per annum;

2.35 R175 323.85 as from 1 March 2016 to date of final payment, calculated at the rate of 10.25% per annum;

2.36 R283 215.45 as from 1 April 2016 to date of final payment, calculated at the rate of 10.25% per annum;

2.37 R188 810.00 as from 1 May 2016 to date of final payment, calculated at the rate of 10.25% per annum;

2.38 R270 041.94 as from 1 June 2016 to date of final payment, calculated at the rate of 10.5% per annum;

2.39 R315 048.93 as from 1 July 2016 to date of final payment, calculated at the rate of 10.5% per annum;

2.40 R240 037.28 as from 1 August 2016 to date of final payment, calculated at the rate of 10.5% per annum;

2.41 R150 023.30 as from 1 September 2016 to date of final payment, calculated at the rate of 10.5% per annum;

2.42 R298 140.00 as from 1 October 2016 to date of final payment, calculated at the rate of 10.5% per annum;

2.43 R327 954.00 as from 1 November 2016 to date of final payment, calculated at the rate of 10.5% per annum;

2.44 R238 512.00 as from 1 December 2016 to date of final payment, calculated at the rate of 10.5% per annum;

2.45 R327 954.00 as from 1 January 2017 to date of final payment, calculated at the rate of 10.5% per annum;

2.46 R74 535.00 as from 1 February 2018 to date of final payment, calculated at the rate of 10.5% per annum;

3. Pay the costs hereof.

__________________

D I MATLAPENG

ACTING JUDGE

North West Division Court, MAHIKENG

APPEARANCES:

DATE OF HEARING:

12 – 13 DECEMBER 2018

DATE OF JUDGMENT: 18 APRIL 2019

FOR THE APPLICANT: A. G SOUTH S.C

INSTRUCTED BY: DIALE MOGASHOA ATTORNEYS C/O VAN ROOYEN TLHAPI & WESSELS INC

FOR THE RESPONDENT: Adv O.K CHWARO

INSTRUCTED BY:

STATE ATTORNEY - MAHIKENG