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G.I.C and Others v D.L.C (born B) and Another (CA 52/2009) [2009] ZAECGHC 87 (10 December 2009)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE - GRAHAMSTOWN)

Case No: CA 52/2009


Heard on : 09 November 2009


Delivered : 10 December 2009


In the matter between:


G I C Appellant


ANTHONY JOHN KRIEL Nomine Officio Second Appellant


JOHN ANGUS MILES WARREN Nomine Officio Third Appellant


and



D L C (born B) First Respondent


ROSEMARY CHAMBERS Second Respondent




JUDGMENT



KROON J:


  1. The first appeal with which this judgment is concerned seeks to attack the decision of Nhlangulela J dismissing with costs the application of the first appellant in which he sought, as against the first and second respondents, an order inter alia granting him leave:

    1. in terms of s 16(1) of the Matrimonial Property Act 88 of 1984 to exercise an option to purchase certain immovable property from the second respondent without the consent of the first respondent (to whom he is married in community of property);

    1. in the event of his being obliged to apply to the Minister of Agriculture for approval of the subdivision of the land of which the property forms part, to exercise the option within one month of such approval.

  2. The second and third appellants (the trustees of a trust) were cited as third and fourth respondents in the Court a quo as interested parties, but the first appellant did not seek any relief against them. They filed a notice that they would abide the decision of the Court.

  3. In the second appeal the second and third appellants seek to attack a ruling by Nhlangulela J that an affidavit by the second appellant, filed at a late stage in the proceedings, not be received and that the appellants and/or the trust pay the costs of what was held to be their unsuccessful intervention in the application proceedings.

  4. Both appeals are with the leave of the learned judge.

  5. The papers reveal a large number of factual disputes which cannot be resolved on the papers. Certain of these disputes do not, however, bear on matters that are relevant to the issues that have to be decided. The relevant disputes of fact must be resolved in terms of the Plascon-Evans rules. That was the approach adopted by the learned judge in the Court a quo.

  6. The first appellant and the first respondent were married to each other in community of property on 9 May 2002. However, the two parties have been separated since 11 July 2007 and divorce proceedings are pending between them. They are in agreement that the marriage relationship has irretrievably broken down. The second respondent is the mother of the first respondent.

  7. The foundation of the relief sought by the first appellant was a written option agreement signed on the one hand by the second respondent (referred to in the agreement as the ‘GRANTOR’) on 23 May 2006 and on the other hand by the first appellant and the first respondent (it being recorded in the agreement that they were jointly referred to therein as the ‘GRANTEE’) on 24 May 2006.

  8. In terms of the agreement the grantor granted to the grantee the option to purchase for the sum of R690 000,00 the following property:

    REMAINDER PORTION 7 of FARM 816, Division of East London, Province of the Eastern Cape. Being approximately 22 Hectares in extent and as reflected as “Remainder” on the Diagram annexed hereto”.

  9. The agreement provided inter alia as follows:

    The Grantor shall retain Portion 1 of the property as reflected on the Diagram annexed hereto, being approximately 10 hectares in extent. In addition thereto, as hereunder provided, 3 erven being approximately 0,9 hectares in extent (the aggregate area of the three erven) shall be transferred by the Grantee to the Grantor. The size of portion1 shall be substantially in accordance with the said Diagram annexed hereto (10 hectares) but no adjustment of purchase price shall be made in respect of any variation of the area on survey.

    In addition, on registration by the Grantee of a General Plan over the remaining portion (the portion to be acquired by the Grantee) and before any portion of the remainder may be transferred to any other person, unless agreed upon in writing to the contrary between the parties hereto, an additional three erven shall be transferred to the Grantor”.

    It was further provided that the grantor would be entitled to choose the three erven referred to but would not be entitled to select the portion of the property on which the existing homestead (the then common home of the grantee) was situated or more than one property with river frontage.

  10. It was common cause between the parties that the land reflected on the diagram annexed to the agreement, as yet not subdivided, was and remains classified as agricultural property as envisaged in the Subdivision of Agricultural Land Act 70 of 1970. Accordingly, in terms of section 3 of the Act, the subdivision and sale of any portion of the land required the prior written consent of the Minister of Agriculture (the Minister) in order to be valid. Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another [2008] ZACC 12; 2009 (1) SA 337 (CC).

  11. The agreement provided that the option was subject to further terms and conditions, inter alia the following:

    (a) The grantor was not entitled to exercise the option prior to the receipt of the required Ministerial approval whereafter the option was still to be subject to approval of a general plan for registration in respect of the portion referred to as the “Remainder” and the rezoning and subdivision thereof by the relevant local authority.

    (b) The grantee was entitled until 30 days after 30 September 2008 or approval of the subdivision, whichever occurred first, to exercise the option. The approval of the subdivision would be deemed to have been granted when approval by the local authority, the Surveyor General, the Department of Agriculture or any other relevant authority has been given (including approval for re-zoning in so far as necessary).

    (c) The grantor undertook and agreed to sign the relevant applications for approval when called upon to do so. The costs attendant on the applications, the required survey and the conveyancing involved were to be borne by the grantee.

  12. During argument it was accepted that the reference in the agreement to the Department of Agriculture was a reference to the Minister.

  13. On 26 May 2006 a further agreement, styled Agreement of Partnership, was signed by the first appellant, the first respondent and on behalf of the trust. The first two parties were jointly referred to as ‘the Owner’. The essence of the agreement was that the property which was the subject of the option granted by the second respondent to the first appellant and the first respondent would be sold (at a price to be subsequently agreed upon) to a company in which the parties to the agreement would each have an allocated share, ie 35% for each of the first appellant and the first respondent and 30% for the trust (with the proviso that the portion of the property on which the residence was situated would be transferred back to the first appellant and the first respondent, the latter parties to be responsible for any VAT or transfer duty payable). The remaining property was to be developed by the company and the subdivided erven would be sold at a profit.

  14. A clause in the agreement provided that the trust would pay the first appellant and the first respondent a sum of R13 000,00 per month as from the end of May 2006, R3000,00 to be used for the instalment due on the bond which the second respondent then had over the whole of the land and the balance to accrue to the first appellant and the first respondent for their personal use. In the event of the termination of the agreement for any reason the first appellant and the second respondent would refund to the trust the contributions made by it in respect of the mortgage bond. (The trust has in fact made the said payments).

  15. The agreement was subject to the suspensive condition that approval of the subdivision of the land by the Department of Agriculture and any other relevant local authority be obtained to enable the first appellant and the first respondent to acquire the property from the second respondent in terms of the option agreement. The former two parties undertook that they would in good faith endeavour to secure the approval and further undertook in favour of the trust that they would exercise the option on approval of the subdivision of the land.

  16. On 19 July 2007 the first respondent addressed a letter to the second respondent in which she advised the latter that she had decided to divorce the first appellant and had instructed attorneys to commence such proceedings. The letter concluded as follows:

    In the circumstances I do not see my way clear to exercising the option in terms of the Option Agreement concluded at East London on 24 May 2006 and I hereby give you notice of my intention not to exercise the option”.

    The latter was copied to the first appellant.

  17. By letter of the same date the second respondent acknowledged receipt of the said letter. A paragraph in her letter read as follows:

    I have noted your intention not to exercise the Option Agreement. Given that the option was granted to you and Geoffrey [the first appellant] jointly I consider the Option Agreement to have fallen away and I intend to investigate other possibilities”.

    The second respondent further inter alia expressed the opinion that the collapse of the option agreement impacted on the partnership agreement and that the trust should be advised of that development. She intimated that the trust was welcome to approach her to explore the possibility of reaching a fresh agreement to involve it in the development of the farm.

    This letter too was copied to the first appellant.

  18. During November 2007 the second respondent addressed a letter to the firm of professional land surveyors and town/regional planners who had been engaged to attend to the applications for the subdivision and rezoning of the land in question. Therein she withdrew the special power of attorney granted by her to the firm to make the applications. The firm accordingly advised the trust that it could not proceed with the application to the relevant local authority for approval of the subdivision of the land in question.

  19. Section 16(1) of the Matrimonial Property Act 88 of 1984 referred to by the first appellant provides as follows:

    (1) When a spouse withholds the consent required in terms of subsection (2) or (3) of section 15, or section 17, or when that consent can for any other reason not be obtained, a court may on the application of the other spouse give him leave to enter into the transaction without the required consent if it is satisfied, in the case where the consent is withheld, that such withholding is unreasonable or, in any other case, that there is good reason to dispense with the consent.”

  20. The section relates inter alia to the consent referred to in section 15(2)(g) which provides that a spouse married in community of property shall not, without the written consent of the other spouse:

as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act 68 of 1981), and to which the provisions of that Act apply;

  1. The contentions of the first appellant are in essence as follows: The exercise of the option granted by the second respondent to him and the first respondent would bring about the purchase of the property in question. By virtue of the marriage in community of property between him and the first respondent and the provisions of the Act the concurrence of the latter is a requisite for such purchase to be valid and enforceable unless the Court grants him relief in terms of section 16(1). The stance of the first respondent in refusing to exercise the option granted by the second respondent is tantamount to the former withholding consent as envisaged in section 15(2)(g) to the first appellant to conclude the contract for the purchase of the property in question by his exercising the option. That withholding of consent by the first respondent is unreasonable. Accordingly, the first appellant is in terms of section 16(1) entitled to the relief set out in his notice of motion.

  2. The first defence invoked by both the first and second respondents is that on a proper reading of the option agreement an exercise of the option by the first appellant alone ie without the first respondent factually joining him therein, would not, and could not, in law constitute a valid exercise of the option. Accordingly, this was not a matter where section 16(1) would have any application and the Court could not come to the first appellant’s aid in terms thereof.

  3. In short, the contention was that in terms of the option agreement the option was granted by the second respondent to the first appellant and the first respondent jointly and not jointly and severally. The validity of the contention flowed from the provisions in the agreement that the latter two parties were jointly referred to therein as the “GRANTEE” (see paragraph [7] above) and that the “GRANTOR” grant the “GRANTEE” the option (see paragraph [8] above).

  4. In my judgment the argument must be upheld. On the applicable canon of construction of contracts, that the intention of the contracting parties is determined by according to the words in the contract their ordinary meaning seen in the context of the whole agreement and its background circumstances, the construction contended for must be upheld. The results of that construction are indeed those contended for by the first and second respondents, as recorded in paragraph [22] above.

  5. That finding by itself results in the first appellant’s claim being misconceived and the dismissal of the first appeal.

  6. In any event, at best for the first appellant the relevant wording of the option agreement might be regarded as ambiguous. The ambiguity would lie therein that the wording is capable of bearing both the meaning that the option was granted to the first appellant and the first respondent jointly and severally as well as the meaning that it was granted to them jointly. The former meaning would have the result that either of them could validly exercise the option on his or her own – with the consent of the other spouse or, where such consent is withheld, in terms of an order granted by the court in terms of section 16(1).

  7. To resolve the issue of such ambiguity it is legitimate for the Court to have regard to the surrounding circumstances of the conclusion of the agreement to determine which of the two meanings reflects the intention of the parties.

  8. On an application of the Plascon-Evans principles the relevant surrounding circumstances may be found to be those referred to in the paragraphs that follow. They relate to the relationship between the first appellant and the first respondent, the relationship between the first appellant and the second respondent and the events leading up to the second respondent’s acquisition of the farm property in question and the conclusion of the option agreement. The circumstances referred to were within the knowledge of all three parties.

  9. The first appellant is 20 years older than the first respondent. They met each other and commenced a relationship when the first respondent was 19 years old, ie in 1998, whereafter the first appellant was divorced from his then wife. The first respondent was at the time employed and independent. The first appellant, however, prevailed upon the first respondent to resign her employment and assist him in a business venture that he had commenced. The business failed dismally, leaving the first appellant with no meaningful income with which to support himself and the first respondent.

  10. They occupied a flat on a property belonging to the second respondent’s husband at a reduced rental. The first appellant was, however, requested by the husband to vacate the flat as the latter was concerned at the former’s treatment of the first respondent and his drug use. Being young and easily influenced the first respondent was persuaded by the first appellant to side with him against her parents. They then moved in with the first appellant’s parents. Relations between the first appellant and his father soured because of the former’s conduct and they had to leave the latter’s home as well.

  11. The second respondent thereafter provided the couple with accommodation, first in a hotel and thereafter in a rented flat, whereafter she assisted the first respondent (not yet married to the first appellant) to purchase a residential property for R150 000,00. A bond was registered over the property for R241 500,00 as R91 500,00 was required to renovate the property. The second respondent was obliged to stand surety under the bond and, as the first appellant and the first respondent had no income, she met the bond repayments (which remained at their maximum as the first appellant and the first respondent continually made drawings on the bond). As will be set out below she subsequently allowed the couple to occupy the farm property in question in terms of an oral lease, but the rental was in fact not paid, save occasionally. In addition the second respondent regularly assisted the couple with advances for living and other expenses. Over the years the total amount advanced to the couple by the second respondent (until the couple separated and the first respondent went to live with the second respondent) was cognizably in excess of R780 000,00.

  12. The first appellant made himself guilty of serious matrimonial misconduct including inter alia failure to seek gainful employment, subjecting the first respondent to excessive jealousy, domineering and manipulating her, influencing her to partake excessively of drugs and alcohol, behaving aggressively and abusively towards her including assaulting her.

  13. The previous owner of the farm property, Dr Coetzee, had been the second respondent’s family doctor. He first contacted her (she being an estate agent) about the possible sale of the farm during 2001/2002. She considered the property to have potential and to be a good investment. Dr Coetzee, however, took the farm off the market, but during early 2004 again contacted the second respondent to sell the farm on his behalf.

  14. The first respondent had always had a love for dogs and horses and it was her dream to live on a farm where she could keep such animals. The second respondent saw the farm as an opportunity to realise the first respondent’s dream (notwithstanding that the first respondent had no income and could not afford the farm). It was decided that the second respondent’s husband would sell his property (their then home) and assist her to purchase the farm (which would be occupied by the first appellant and the first respondent as their home). The second respondent would in turn acquire the residential property previously purchased by the first respondent (to serve as the home of the second respondent and her husband) at its fair market value (as assessed by another estate agent – Ms van Staden, who furnished a confirmatory affidavit). In fact the net proceeds of the sale of the property to the second respondent was some R6 500,00, with which the first respondent acquired two horses.

  15. The farm property was registered in the name of the second respondent on 22 June 2004, she having paid a purchase price of R690 000,00 therefor. It became the home of the first appellant and the first respondent in July 2004 in terms of an oral agreement of lease concluded with the second respondent.

  16. The idea of the development of the farm first arose during 2006 after contact between the first appellant and the trust and thereafter the second respondent. At that stage she was extremely unhappy about her having to support the first appellant and the first respondent and was desperate for the latter to become self-supporting. The proposed development appeared to the second respondent to be a viable manner of providing the first appellant and the first respondent with a source of income, the first respondent with habitation on the farm and her, the second respondent, with a portion of the farm on which she could reside or which she could develop as she saw fit. She was negative towards the first appellant (not only because of his conduct towards the first respondent but also inter alia his general attitude towards her, the second respondent). However, notwithstanding her advice to the contrary, the first respondent appeared to be intent on remaining married to first appellant despite his unlawful behaviour towards her, and the second respondent had to resign herself thereto. With the option agreement she generously hoped to improve the first respondent’s lot in life, despite her reluctance to enter into any contractual relationship with the first appellant.

  17. As she did not want a situation to arise where the first appellant would be able to exercise the option without the first respondent doing so jointly with him she insisted that the option right be granted to them jointly only and not jointly and severally.

  18. In the light of the above circumstances the intention to be ascribed to the parties to the option agreement, and the interpretation to be placed thereon, is that a valid exercise of the option would require the first appellant and the first respondent to act jointly therein. The legal position accordingly remains that set out earlier.

  19. For the sake of completeness I will deal with the position on the basis that section 16(1) of the Act does have application. The essential question then to be resolved is whether it can be said that the refusal by the first respondent to give her consent to the exercise of the option was unreasonable.

  20. The first appellant averred in essence that the refusal is unreasonable in that the property that would be acquired by the exercise of the option, to be the subject of development in terms of the partnership agreement, would be an asset of considerable value to the joint estate of him and the first respondent. He added that the first and second respondents acted in collusion in seeking to deny him the benefit that would accrue to him by reason of the property becoming an asset in the joint estate.

  21. It would be convenient to dispose of this latter aspect first. The first appellant founded his accusation of collusion (which, it is assumed, he levelled in accusatory vein) on the following allegations: First, the two letters referred to earlier, which dealt with the first respondent’s notification of her refusal to exercise the option, were typed on the same typewriter and bore the same date. Second, a meeting thereafter took place between the two respondents and an associate advising them, on the one hand, and, on the other hand, the third respondent on behalf of the trust, with a view to considering the development of the property to the exclusion of the first appellant.

  22. The reliance by the first appellant on the alleged collusion is, however, of no assistance to him. The two respondents averred that after the first respondent orally advised the second respondent that she would not exercise the option they received advice that the decision should be put in writing and the first appellant should also be advised thereof in writing; hence, the letters copies of which were sent to the first appellant. The second aspect to which the first appellant referred was contained in a paragraph in his replying affidavit which Nhlangulela J ordered to be struck out. However, even if the first and second respondents had met with the second appellant (which was not admitted on the papers) and explored the possibility of an arrangement for the development of the property in which the first appellant would not be involved, they would have been quite entitled to do so, and to proceed with such arrangement, in the absence of an exercise of the option. (Incidentally, the second respondent stated that she no longer wishes to be involved in any contractual relationship with the trust).

  23. The first respondent explained her decision not to exercise the option and her refusal to give her consent to the first appellant’s doing so on the following bases:

    1. Due to the irretrievable breakdown of the relationship between her and the first appellant she has no wish to be involved with him in any partnership or contractual relationship.

    1. Similarly, by reason of the bad relationship between the first appellant and the second respondent the latter also has no wish to be involved in a contractual relationship with the former (which attitude the second respondent also confirmed).

    1. The exercise of the option would have imposed obligations on her and the first appellant, namely liability for the purchase price of the property, the costs of securing the necessary approvals to enable the development to proceed, the costs of the survey and conveyancing and any costs relating to VAT or transfer duty payable in respect of the portion of the property to be retransferred to them in terms of the partnership agreement, against which there is no guarantee that the venture would prove to be successful.

    1. The purposes sought to be achieved by the second respondent in purchasing the farm and granting the option, namely benefits to the first respondent as a partner in a marriage, were no longer achievable.

    1. In the papers filed by the first appellant in the pending divorce proceedings he has sought relief inter alia in the form of an order that the first respondent forfeit the benefits arising out of the marriage in community of property and in the papers filed by him in the present proceedings he has explained that what he will seek is an order that the first respondent forfeit the benefits that would accrue to the joint estate consequent upon the exercise of the option.

  24. In my judgment, these factors dictate a finding that the first respondent’s stance is reasonable. I therefore endorse the similar finding made by the learned judge in the Court a quo. The circumstance that the first appellant, and for that matter the trust, might be prejudiced by that stance does not dictate a different conclusion.

  25. There is a further obstacle in the path of the first appellant. As recorded earlier, the option agreement afforded the grantee time until a date 30 days after 30 September 2008 or approval of the subdivision of the property, whichever might occur first, to exercise the option. This somewhat inelegantly worded provision permitted the exercise of the option within 30 days of the approval for subdivision being granted if that happened on an earlier date or within 30 days after 30 September 2008 provided that the approval had been obtained within those 30 days (the grant of the approval having been one of the suspensive conditions of the exercise of the option). Approval of the subdivision was not obtained and the stipulated period within which the option could be exercised has lapsed (and so accordingly has the partnership agreement also lapsed).

  26. Mr Cole, who appeared for the first appellant, sought to overcome this obstacle with the submission that the first and second respondents had, by what he referred to as their “gross fault and non-co-operation”, intentionally frustrated the option agreement, which included the second respondent’s conduct in withdrawing her power of attorney from the land surveyors attending to the preparation of the application for the subdivision and rezoning of the land in question. He pointed out that the first appellant launched his application in the Court a quo on 12 March 2008, before the expiry of the time limit, and he submitted that, in addition to being granted leave to exercise the option without the consent of the first respondent, the first appellant was entitled to an order declaring that such exercise of the option be deemed to have occurred on 6 August 2008, when the matter was heard in the Court a quo. (It may be noted that judgment was handed down in the Court a quo on 31 August 2008).

  27. The difficulty with the submission that is immediately apparent is that the suspensive condition for the exercise of the option, Ministerial approval of the subdivision (also required, as explained earlier, for the exercise of the option to be valid in terms of Act 70 of 1970) was not fulfilled by 6 August 2008, and in fact remains unfulfilled. In so far as counsel’s argument may implicitly have embraced the submission that the alleged frustration of the option agreement by the first and second respondents (which incidentally was merely baldly stated in the first appellant’s replying papers with reference to the second respondent’s cancellation of the power of attorney to the land surveyors) resulted in the fictional fulfilment of the suspensive condition, it is clear that the submission must be rejected. Compliance with statutory requirements, failing which the agreement in question is in law invalid and unenforceable, cannot be the subject of fictional fulfilment. (This conclusion renders it unnecessary to consider the issue whether in any event there can be any talk that the non-obtaining of the approval is to be attributed to the conduct of the respondents).

  28. Counsel did not seek to argue in the alternative that the first appellant would be entitled to an order extending the period within which the exercise of the option could take place. No doubt counsel foresaw the insurmountable hurdles in the way of the grant of such an order. Leaving aside the question that no material is before us on which the period of such extension would be assessed, the order would have the impermissible effect of this Court’s making a contract for the parties.

  29. The first appeal must accordingly fail.

  30. I turn to consider the second appeal. The affidavit which it was sought to file on behalf of the trust in the Court a quo (deposed to by the second appellant on 17 July 2008) covered three aspects:

    1. It confirmed that the meeting referred to by the first appellant (see paragraph [41] above) took place after the date on which first respondent had written to the second respondent to record her decision not to exercise the option, and it furnished further details of what occurred at the meeting.

    1. It expressed the view that the preservation of the existing agreements would entail considerable economic benefit to all the parties thereto including the joint estate of the first appellant and the first respondent.

    1. It registered concern that the “protracted” opposition to the application had caused considerable delay and enquiries on his behalf had elicited the response from the firm of land surveyors referred to earlier that even if any application were then to be made for the required approval of the subdivision it would not be obtained before 30 days after 30 September 2008.

  31. The affidavit confirmed that the trust had filed a notice that no opposition to the application would be offered by the trust and that it would abide the decision of the Court. It was stated, however, that to the extent necessary the leave of the Court to file the affidavit was sought on the basis that it only dealt with new and direct allegations about the deponent which were made in the replying affidavit of the first appellant and added a further observation about the status of the agreement which was the subject of the application.

  32. The learned judge in the Court a quo recorded that despite not filing a notice to oppose the trust delivered the affidavit dealing with certain facts stated in the replying affidavit of the first appellant, and that it did so without the leave of the Court to intervene or be joined as a party in the proceedings, and he noted that the first and second respondents had objected to the affidavit. He ruled that the affidavit should not be admitted in evidence as there was no legal basis for its acceptance in the absence of a notice to oppose the relief sought.

  33. Mr Brooks, for the trust, pointed out that the first appellant could have incorporated in his replying papers an affidavit by the second appellant. That, however, was not the course followed. He also pointed out that it does happen that a party who signifies that it will abide the decision of the Court nevertheless by way of affidavit places facts before the Court which it considers would be of assistance to the Court. Mr Ford, for the first and second respondents, supported the disallowance of the affidavit by pointing out that his clients would have been required to seek leave to respond to the affidavit and he submitted that the acceptance of further affidavits by the trust and his clients would not have been appropriate in the circumstances of the matter.

  34. In my judgment, it was not appropriate to admit the affidavit in question. Its contents did not serve to take the matter any further and were therefore irrelevant.

  35. The second appeal must accordingly also fail.

  36. In the result, the following order will issue:

    Both appeals are dismissed with costs.

    ­­­­­­­­­­­­­­­­­___________________

    F KROON

    Judge of the High Court

    Nepgen, J

    I agree

    ___________________

    J J NEPGEN

    Judge of the High Court

    Van der Byl, AJ

    I agree

    ___________________

    P C VAN DER BYL

    Acting Judge of the High Court

    10 December 2009

    Appearances:

    For Appellant: Adv Cole instructed by:

    Borman & Botha Attorneys

    22 Hill Street

    Grahamstown (Mr Justin Powers/René)

    For 1st & 2nd Respondent: Adv Ford instructed by:

    Netteltons Attorneys

    118A High Street

    Grahamstown (Mr Nettelton)

    For 3rd & 4th Respondent: Adv Brooks, instructed by:

    Wheeldon Rushmere & Cole Attorneys

    Grahamstown (Mr Brody/Glyn/S11541)