The Applicant sought to enforce payment of the debts paid directly to the

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					IN THE HIGH COURT OF SOUTH AFRICA
(BHISHO)
                                       CASE Nos: 352/2007
                                                 583/2007
                                                 768/2007
                                  DATE HEARD: 13 APRIL 2010
                          DATE DELIVERED: 13 SEPTEMBER 2010

                                                     Not Reportable


In the matter between:


AFRICAN DYNAMICS (EASTERN                               APPLICANT
CAPE) (PTY) LTD

and

MEMBER OF THE EXECUTIVE                           1st RESPONDENT
COUNCIL OF THE PROVINCIAL
GOVERNMENT OF THE EASTERN
CAPE RESPONSIBLE FOR
EDUCATION

BY BREEZE TRADING 48 CC AND             2nd to 33rd RESPONDENTS
32 OTHERS



                           JUDGMENT


KEMP AJ

[1]   The Applicant is a supplier of foodstuffs and entered into
various agreements with the 2nd to 33rd Respondents (“the
Suppliers”) in order to enable the Applicant to manufacture and
supply foodstuff to the Suppliers, who would in turn, deliver it to
schools nominated by the 2nd Respondent (“the Department”). One
of the agreements is an agreement of cession in terms of which the
Suppliers purported to cede their rights to claim payment from the
the Department to the Applicant. The reason the Applicant gave for
                                                                               Page 2


the parties entering into the agreements of cession was that the
Suppliers were mainly shelf corporations brought into being with the
sole purpose of providing foodstuff to schools in terms of the
government’s school feeding scheme. The cessions formed the
principal security against which the Applicant undertook to do
business with them.


[2]    Only the Department opposed the application. It became
common cause between the parties that the Department received
due notice of the cessions but although it initially paid the Applicant
in terms of some of them, it then stopped paying some of those,
diverting payments to the Suppliers and failed to pay the Applicant
at all in respect of other Suppliers, paying them directly. The
Applicant sought to enforce payment of the debts paid directly to
the Suppliers in apparent breach of the cessions, and also sought to
ensure that any remaining debts were paid to the Applicants and
not to the Suppliers. The Department opposed the relief sought on
the basis that the cessions were prohibited by a pactum de non
cedendo it had entered into with the Suppliers, and brought an
application to amend the common law:


“Declaring that the common law principle to the effect that the debtor is not
discharged from its obligations if he makes payment directly to the principal creditor
(the cedent) instead of the cessionary is not … applicable to state organs.”


[3]    The Department also applied, in the event that its application
to amend the common law was unsuccessful, for the joinder of the
Suppliers. The application for joinder was not opposed by any of the
parties.


[4]    The application was launched in September 2007 and was
eventually finalized in April 2010 after oral evidence was heard.
                                                                                             Page 3


Along the way some agreement was reached between the parties
and on the 3rd August 2009 the application launched under Case
Number 352/2007 was withdrawn, with agreement reached on the
costs reserved on three previous occasions, as well as in respect of
the hearings on the 16th September 2008, the 14th October 2008
and the 3rd August 2009.


[5]     Unbeknown to the Applicant, the Department had entered into
Service Level Agreements (“SLA’s”) with all of the Suppliers prior to
the Applicant entering into their agreements with the Suppliers.
Included in the SLA’s was what Mr Notshe SC, on behalf of the
Department, argued was an absolute prohibition against cession – a
pactum de non cedendo. I quote the clause hereunder:


“19. LIMITATION OF CESSION

19.1    The rights and obligations of the Parties in terms of this Agreement shall be
        incapable of being ceded, assigned or delegated to any other person outside of
        the Supplier or the Department. A request by the Supplier for the money to be
        paid into a mutually accepted trust account or cessionary will be considered
        by the Department. The Department reserves the right to charge the supplier
        any cost accruable in administering such cession agreements.

19.2    Each party warrants that it is not acting as an agent for an undisclosed
        principal.

19.3    The cession agreements must not be open ended, they must have an expiry
        date.”


[6]     It is trite law that a valid pactum de non cedendo is valid
against third parties and that any attempt to cede rights in
contravention thereof would result in a putative transaction.1
However, it is not clear that what the parties to the SLA, and in
particular the Department, intended to create, was an out and out
1
  See Capespan (Pty) Ltd V Any Name 451 (Pty) Ltd 2008 (4) SA 510 (C) at 519 A-B: “…in the case of
the second pactum, that which relates to a right which was created ab initio as a non-transferable
right, the pactum is valid and enforceable against the world because the right is simply inherently
incapable of being transferred by anyone; and a cession of such a right contrary to the pactum will be
putative, and of no force or effect…”
                                                                             Page 4


prohibition against all cessions. Whilst the Interpretation clause of
the SLA provided that the headings to the agreement were to be
used for the sake of convenience only and “shall not govern the
interpretation thereof”, it is instructive to note that the heading of
clause 19 referred to a “Limitation of Cession” and not a “Prohibition
against Cession”. Clause 19.1 consists of three sentences, the first
of which reads as follows:


“The rights and obligations of the Parties in terms of this Agreement shall be
incapable of being ceded, assigned or delegated to any other person outside of the
Supplier or the Department.”


Considered in isolation it appears to contain an absolute prohibition
against all cessions except to the Supplier or the Department.


[7]    The second sentence reads as follows:


“A request by the Supplier for the money to be paid into a mutually accepted trust
account or cessionary will be considered by the Department.” (my emphasis)


The sentence indicates that a request for payment into a trust
account or to a cessionary will be considered by the Department.
This, besides the heading, is the first indication that the clause does
not envisage an absolute pactum de non cedendo. This sentence
appears to refer to the Trust account considered by the parties.
Arising out of discussions held between the Department and the
Applicant it was proposed by the Department that if the Suppliers
agreed that their remuneration would be paid into a mutually
agreeable trust account, that the Department would give effect to
such agreement. The third sentence also appears to record a
relaxation of the prohibition.
                                                                               Page 5


“The Department reserves the right to charge the supplier any cost accruable in
administering such cession agreements.”


[8]    If there was an absolute prohibition against cessions then the
third sentence and the reference to cessionaries in the second
sentence would be unnecessary. The idea that there was not an
absolute prohibition against cessions seems to be reinforced by
clause 19.3 which provided that:


“The cession agreements must not be open ended, they must have an expiry date.”


[9]    It is common cause that the cession agreements executed by
the Suppliers were open ended in the sense that they did not
provide for expiry dates. However, the cessions were limited in the
sense that they were recorded to provide security:


“for the indebtedness or liabilities of the Cedent to the Cessionary arising out of the
contents (of) an agreement to which this contract is an accessory;”


[10] The Cessions were recorded as coming into effect on the date
of signature thereof:


“and shall endure and be in force and in effect until all obligations of the Cedent
towards the Cessionary are met.”


[11] Quite clearly what the parties intended was that the Cessions
would provide security for the Supplier’s obligations in terms of the
agreement, and that the Cessions would provide for such security
for as long as the Suppliers were obligated to the Applicant arising
from obligations created in the agreement, and no further. To that
extent, the agreements were not open ended. The rights and
                                                                                                    Page 6


obligations created in terms of the Cessions terminated once the
Supplier’s obligations in terms of the agreement were fulfilled.


[12]      It appears from a plain reading of the “Limitation of Cession”
clause that the prohibition against cession was not absolute but
conditional, and that the cessions entered into by the Applicant and
the Suppliers did not necessarily contravene the terms of the
conditional prohibition.


[13] Although the agreement appears to be quite unambiguous
and that recourse to extrinsic evidence would appear thus to be
impermissible,2 even if the terms of the agreement were ambiguous
then recourse to the consideration of the conduct of the parties
subsequent to the conclusion of the agreement3 would reinforce the


2
  See Sonarep (Sa) (Pty) Ltd V Motorcraft (Pty) Ltd 1981 (1) SA 889 (N) at 895F – 896C: “In the case
of Sassoon Confirming and Acceptance Co (Pty) Ltd v Barclays National Bank Ltd 1974 (1) SA 641
(A) at 646A JANSEN JA stated that:"The first step in construing a contract is to determine the
ordinary grammatical meaning of the words used by the parties (Jonnes v Anglo-African Shipping Co
(1936) Ltd 1972 (2) SA 827 (A) at 834E). Very few words, however, bear a single meaning, and the
'ordinary' meaning of words appearing in a contract will necessarily depend upon the context in which
they are used, their interrelation, and the nature of the transaction as it appears from the entire contract.
It may, for example, be quite plain from reading the contract as a whole that a certain word or words
are not used in their popular everyday meaning, but are employed in a somewhat exceptional, or even
technical sense. The meaning of a contract is, therefore, not necessarily determined by merely taking
each individual word and applying to it one of its ordinary meanings." If the enquiry along these lines,
referred to in certain authorities as a "linguistic treatment" of the agreement in question (cf Delmas
Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A) at 454F), leads one to conclude that it is
unambiguous then evidence of other extrinsic facts constituting what is broadly termed "surrounding
circumstances" is inadmissible. (In the Delmas case at 454 this term was said to refer to "matters which
were probably present to the minds of the parties when they contracted".) As was stated by
POTGIETER JA in Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) at 784B:"... if the
language of the lease is unambiguous and is capable of being resolved satisfactorily by ordinary
linguistic treatment, recourse to evidence of surrounding circumstances is unnecessary and such
evidence would moreover be inadmissible. (See Richter v Bloemfontein Town Council 1922 AD 57 at
70; Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A) at 454F - H.)" In such a case, however,
the contract or disputed clause is still to be construed in its "contextual setting" but this concept must
necessarily have a more restricted application than "surrounding circumstances". (Cf Swart en 'n Ander
v Cape Fabrix (Pty) Ltd 1979 (1) SA 195 (A) at 201A and Streek v East London Daily Despatch (Pty)
Ltd 1980 (1) SA 151 (E) at 155 and 156.) To hold otherwise would result in "surrounding
circumstances" in all circumstances being introduced, which would be contrary to the authorities cited.
The contextual limits in such a case are difficult to define and difficult to determine in a given case.
Nevertheless, the fact that such limitation exists cannot be disputed.” (my emphsasis).
3
  Mtk Saagmeule (Pty) Ltd V Killyman Estates (Pty) Ltd 1980 (3) SA 1 (A) “When a provision in a
contract is on the face of it ambiguous, the Court can endeavour to determine the intention of the
parties from the other provisions of the contract and the Court can also draw inferences from the
proven facts indicating how the parties themselves interpreted the contract. It is true that, in general, a
                                                                                              Page 7


view that neither party regarded the “Limitation of Cession” clause
as an absolute prohibition.


[14] Mr Kincaid, for the Applicant, argued that if I found that the
“Limitation of Cession” clause contained an absolute prohibition
against cession, that the Department was in any event liable on the
basis of estoppel. It would appear that the Department would
indeed be liable in any event based on estoppel. It is quite clear
that the Department represented to the Applicant through it’s
conduct that it would honour the requests for payment into the trust
account. The Applicant relied on this representation and conducted
its affairs on the strength of it. The evidence of the Applicant is
quite clear – they would not have supplied goods to the Suppliers
unless they entered into cessions and requests for payments into
the trust account, and unless the Department indicated that it would
honour them.


[15] The evidence of the Applicant’s witness Steyl, the managing
director of the Applicant at the time, was that despite numerous
attempts to establish whether payments were being effected into
the Trust account or into the Supplier’s accounts directly, the
Department steadfastly refused to co-operate with them and
refused to disclose any information, notwithstanding the Suppliers
express written consent to release such information.                                         Steyl’s
evidence was further to the effect that the request to pay into a
trust account by the Suppliers was a solution arrived at after
discussions with senior members of the Department and that many
payments were in fact made into the trust account. Quite clearly the
Department represented by it’s conduct, by paying into the Trust


document cannot be interpreted by taking the latter conduct of the parties into account, but when there
is an ambiguity an attempt can be made to determine the real intention of the parties from the contract
itself and from evidence which indicates how the parties themselves understood the contract.” (taken
from the headnote)
                                                                 Page 8


account, that it would honour the requests. Heyns’s evidence was to
the effect that most of the Suppliers were shelf companies that
came into existence for the sole purpose of the tender and that
although they had attempted to sue many of them that it was an
exercise in futility. For the reasons advanced above however, I am
satisfied that Clause 19 does not constitute a pactum de non
cedendo, and find it accordingly unnecessary to consider in any
depth the question relating to estoppel.


[16] The agreements concluded with each of the Suppliers were a
credit application, a service contract, a cession of claims agreement,
and a special request for payment and information. Each of these
documents was included in a pack of documents and delivered to
the Department. They were not delivered to inconsequential
officials, but to Mr Fray, the director of Physical Resource Planning,
who was acting as Chief Director, Educational Social Support
Services at the time and was the head of the Department in charge
of the implementation of the program at the time. Although it was
put to Mr Steyl in cross examination that Mr Fray would testify that
he had warned Mr Steyl that the cessions were prohibited by the
SLA’s, and that the department therefore regarded the cessions as
invalid, Mr Fray in fact never testified to that effect. Mr Steyl
denied, when it was put to him that Mr Fray had said anything to
that effect, and that seemed to be confirmed by Mr Fray’s evidence
on behalf of the Department. It seemed that Mr Fray was of the
view that the evil the Department was seeking to eradicate by the
inclusion of the Limitation against Cession clause in the SLA’s was
that they didn’t want Suppliers to abdicate their responsibilities. The
Department was of the view that the Feeding Scheme provided an
opportunity, not only to feed learners, but also to uplift and to
empower members of the community who would not normally be
                                                                           Page 9


exposed to commercial opportunities, and they did not want them
to merely be “fronts” for big businesses.


[17] The credit Application and suretyship contained details of the
applicant, credit references and a suretyship binding the member of
the juristic person to the Applicant for due compliance with the
obligations of the Supplier, if a juristic person. The Service Contract
regulated the rights and obligations of the Applicant and of the
Suppliers, and specified in particular that all payments made by the
Department would be made into a trust account at Nedbank, details
of which were provided in the agreement.


[18] A     specimen      of   the   Special      Request   for   Payment     and
Information provided as follows:


“I/We, the undersigned authorized signatory of

Changing Tides 1347 CC (hereinafter called THE SUPPLIER)
hereby request the
EASTERN CAPE DEPARTMENT OF EDUCATION,
in respect of Tender No SCM6 – 05/06 – 0011, for the supply of primary food
nutrition, to do the following.

1 Make all payments due to us and under the above tender to the following bank
  account

   ACCOUNT HOLDER:            SCHOOL NUTRITION PROGRAMME
   BANK:                      NEDBANK
   BRANCH:                    EAST LONDON
   ACCOUNT NUMBER:            9005714864
   BRANCH CODE:               720026
   ACCOUNT TYPE:              _______________

1. I/We instruct and request the said Department not to change any of the
   abovementioned banking detail without the prior written consent of THE
   MANUFACTURER or any of it’s representatives. THE MANUFACTURER in this
   matter is African Dynamics Group (Pty) Ltd.
2. This instruction and request commence on date of signature hereof and shall
   endure until all obligations of THE SUPPLIER towards THE MANUFACTURER
   have been complied with and/ or on receipt of written confirmation of same from
   THE MANUFACTURER.
                                                                                Page 10


3. THE SUPPLIER acknowledge and confirm that no attempt to change the detail as
    mentioned herein above will constitute a proper instruction to do so unless such a
    request is co-signed by THE MANUFACTURER or any of it’s representatives.
4. THE SUPPLIER holds the Department harmless for any payment made to the
    above account and undertakes not to institute action against the Department for
    as long as this request is adhered to.
6. Give and allow THE MANUFACTURER or any of it’s representatives full access
    to any information about the mentioned tender held by the Department of
    Education.
7. Not to withhold any information held by the Department and requested by THE
    MANUFACTURER.
8. Divulge any information regarding payments made, withhold progress of claims,
    etc to the MANUFACTURER.
9. THE SUPPLIER acknowledges and confirms that no unilateral attempt to
    terminate this request and authority shall be of any force or effect.
10. THE SUPPLIER holds the Department harmless for information given to THE
    MANUFACTURER and undertake not to institute action against the Department
    for as long as this request is adhered to or thereafter, as a result of giving access
    in terms hereof.

[19] It is important to note that clauses 1 to 4 provide that no
changes to the payment arrangement shall be made without the
written instruction of the Supplier. The Department produced no
proof that there had been any written instructions amending
payment instructions and Mr Fray conceded that it was not possible
on their accounting system to ensure that once a cession was
loaded that payment could only be made to the cessionary. The
personnel effecting payments had to physically compare lists and by
his own admission the system was flawed and open to human error
and corruption.


[20] It is common cause that many of the cessions were
implemented. It is also common cause that even though some were
implemented, that they were thereafter ignored for no apparent
logical reason and payments were made direct to the Suppliers. The
actions of the Department appeared to be arbitrary and certainly
lend credence to the suspicion articulated by the Applicant, that
certain of the Suppliers had bribed members of the Department in
                                                             Page 11


order to ensure that payments were made directly to them and not
to the nominated account.


[21] The parties managed to come to agreement regarding many
of the claims and at the end of the day I was presented with ten
claims in respect of which quantum was agreed upon, the only
issues being whether the Department was obliged in law to pay the
Applicant. It was common cause between the parties that the claims
in respect of two of the Suppliers, Mhle’s for R78 102.00, and Khosi
Caterers, amounting to R101,926.00, related to debts due, not by
the Department of Education, but by the Department of Health. The
total claims against the Department amounted to R1,140,127.00,
and if the Khosi and Mhle claims are deducted, then the total claims
amounted to R960,099.00.00. The claims are as represented in the
table below:
   1     Mhle’s:                          78,102.00
   2     Silver Falls      231,015.00
   3     Thabile Trade      29,758.00
   4     Z&N Caterers      174,329.00
   5     Noloyise Impex     84,004.00
   6     Bongo Trading      19,451.00
   7     Khosi Caterers                  101,926.00
   8     Nangamso Manala   110,857.00
   9     Khulu Caterers    261,270.00
  10     Changing Tides     49,415.00

                           960,099.00     180,028.00
 Total                                  1,140,127.00

[22] Although Mr Kincaid attempted to persuade me that the
Department was liable for the debts of the Department of Health, as
well as for its own debts, I am not persuaded that they are liable
simply because they administered the scheme and paid creditors on
behalf of the Department of Health. For the Deaprtment to be liable
there would have had to be some legal obligation and I was not
persuaded that the Applicant had proven any.
                                                                   Page 12



[23] The Department per the Acting Chief Director of Education
Social Support, deposed to an affidavit supporting the application to
amend the common law. Although he conceded that the cessions
were delivered to a senior member of the Department, Mr Fray, he
contended that Mr Fray handed the cessions to someone whose
identity he could not recall, and that some of them had gone
missing. He mentioned that Mr Fray had been suspended shortly
thereafter and only returned to his post about 18 months
thereafter.   He   confirmed   that   some   of   the   cessions    were
implemented but due to others being misplaced that they were not
implemented and the Suppliers were paid directly. He contended
that such payments were made bona fide. He argued that the
common law principle should not be applicable to public bodies as
their functions are carried out by numerous persons and numbers of
sections within them. Tenders are issued by one section, orders are
issued by another section, invoices are received by a different
section and payment is effected by another section.


[24] I am not persuaded that the incompetence of a public body
constitutes a good reason to amend the common law. The court’s
power to amend the common law is strictly circumscribed by inter
alia sections 172, 173 and 39 of the Constitution of the Republic of
South Africa, 1996. Section 172 provides for relief where laws or
conduct are found to be unconstitutional.




Section 173 provides for relief where the common law is found to be
wanting, and provides as follows:
                                                                                                    Page 13


“Inherent power

The Constitutional Court, Supreme Court of Appeal and High Courts have the
inherent power to protect and regulate their own process, and to develop the common
law, taking into account the interests of justice.” (my emphsasis)


Section 173 has been the subject of much judicial attention and
interpretation.4 Section 39 provides as follows:

“Interpretation of Bill of Rights
(1)    When interpreting the Bill of Rights, a court, tribunal or forum-
       (a)     must promote the values that underlie an open and democratic society
               based on human dignity, equality and freedom;
       (b)     must consider international law; and
       (c)     may consider foreign law.
(2)     When interpreting any legislation, and when developing the common law or
       customary law, every court, tribunal or forum must promote the spirit, purport
       and objects of the Bill of Rights.”


[25] I fail to see how it would develop the common law or promote
the values contained in the Bill of Rights, while taking into account
the interests of justice, to provide that the department would be
entitled       to     rely     on      inefficiency         and      incompetence              to     avoid
obligations that would bind any other individual or legal entity in the
country. To do so would in my view run contrary to the values
contained in the Bill of Rights, permit unfair discrimination and
reward inefficiency and corruption.


4
  See for instance Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) at [35] – [36]:
“[35]     Section 173 of the Constitution provides that the Constitutional Court, this court and the High
Courts have the inherent power to develop the common law, taking into account the interests of
justice. In terms of s 8 of the Constitution a Court, in order to give effect to a right in the Bill of Rights,
must develop the common law to the extent that legislation does not give effect to that right. A Court
should in terms of s 39(2), when developing the common law, promote the spirit, purport, and objects
of the Bill of Rights.
[36]      In Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal
Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995 at paras [33],
[34] and [39] the Constitutional Court stated that it is implicit in s 39(2) read with s 173 that where the
common law as it stands is deficient in promoting the s 39(2) objectives, the courts are under a general
obligation to develop it appropriately and should not hesitate to ensure that it is developed to reflect the
spirit, purport and objects of the Bill of Rights. That court nevertheless warned that Judges should be
mindful of the fact that the major engine for law reform should be the Legislature and not the Judiciary.
In this regard it quoted with approval a passage to the effect that the Judiciary should confine itself to
those incremental changes which are necessary to keep the common law in step with the dynamic and
evolving fabric of our society.”
                                                                    Page 14


[26] There were numerous postponements and reserved costs
orders. I am satisfied that the parties engaged in sincere and bona
fide attempts to resolve and limit as many issues as possible. On
one occasion counsel and their instructing attorneys worked for two
days at court, reconciling and comparing notes, and were successful
in resolving many of the issues.


[27] There were however two postponements that do appear to
have been caused by the failure of the Applicant to be ready to
proceed on those days. On the 24th August 2009 Mr Steyl was not
available   even   though   his   cross   examination   had   not    been
concluded. It does appear that the Applicant had to some extent
been lulled into a false sense of security regarding the necessity to
call him, but should have anticipated that his attendance might
have been necessary. The other date when the Applicant was not
ready to proceed was on the 15th January 2010. Once again the
Applicant had been caught unawares, as it was only on that date
that the Department’s defence relating to the two claims against the
Department of Health became apparent and was articulated. Even
though the Applicant’s bona fides regarding the two postponements
can not be questioned, it appears that the blame for the
postponements can be laid at their door and that they should
accordingly be liable for those costs.


[28] The balance of the costs relating to reserved orders should in
my view be costs in the cause. I do not believe that any one of the
parties can be held to be liable for any of the other postponements.
The other postponements all appear to have been necessary, seen
within the context of the manner in which the trial was run, and the
genuine attempts to settle the many disputes, which sometimes
delivered fruits and other times left the parties unable to continue
with the trial at that point in time.
                                                                   Page 15



[29] The 2nd to 33rd Respondents never opposed the Applications
and in effect abided the decision of the court. Under the
circumstances I do not believe that any costs order should be made
against them.


The following orders are accordingly made:

  (a)    In   case   no.   768/2007   the   first   and   twenty   fourth
         respondents are ordered to pay the applicant the sum of
         Two Hundred and Thirty One Thousand and Fifteen Rand
         (R231 015,00), together with interest thereon at the legal
         rate from 6th August 2007 to date of payment, jointly and
         severally, the one paying the other to be absolved;


  (b)    In case no. 768/2007 the first and twenty seventh
         respondents are ordered to pay the applicant the sum of
         Twenty Nine Thousand Seven Hundred and Fifty Eight Rand
         (R29 758,00), together with interest thereon at the legal
         rate from 6th August 2007 to date of payment, jointly and
         severally, the one paying the other to be absolved;


   (c)   In case no. 768/2007 the first and thirty third respondents
         are ordered to pay the applicant the sum of One Hundred
         and Seventy Four Thousand Three Hundred and Twenty
         Nine Rand (R174 329,00), together with interest thereon
         at the legal rate from 6th August 2007 to date of payment,
         jointly and severally, the one paying the other to be
         absolved;


   (d)   In case no. 583/2007 the first and second respondents are
         ordered to pay the applicant the amount of One Hundred
         and Ten Thousand Eight Hundred and Fifty Seven Rand
                                                            Page 16


      (R110 857,00), together with interest thereon at the legal
      rate from 4th April 2007 to date of payment, jointly and
      severally, the one paying the other to be absolved;


(e)   In case no. 583/2007 the first and third respondents are
      ordered to pay the applicant the sum of Eight Four
      Thousand and Four Rand (R84 004,00), together with
      interest thereon at the legal rate from 4th April 2007 to
      date of payment, jointly and severally, the one paying the
      other to be absolved;


(f)   In case no. 583/2007 the first and fourth respondents are
      ordered to pay the applicant the sum of Nineteen
      Thousand Four Hundred and Fifty One Rand (R19 451,00),
      together with interest thereon at the legal rate from 4th
      April 2007 to date of payment, jointly and severally, the
      one paying the other to be absolved;


(g)   In case no. 583/2007 the first and sixth respondents are
      ordered to pay the applicant the sum of Forty Nine
      Thousand Four Hundred and Fifteen Rand (R49 415,00),
      together with interest thereon at the legal rate from
      4th April 2007 to date of payment, jointly and severally,
      the one paying the other to be absolved;


(h)   In case no. 583/2007 the first and seventh respondents
      are ordered to pay the applicant the sum of Two Hundred
      and Sixty One Thousand Two Hundred and Seventy Rand
      (R261 207,00), together with interest thereon at the legal
      rate from 4th April 2007 to date of payment, jointly and
      severally, the one paying the other to be absolved;
                                                               Page 17


   (i)   The First Respondent shall pay the Applicant’s costs in
         each of the applications under case nos. 352/2007,
         583/2007 and 768/2007, excluding the costs occasioned
         by the postponements on 24th August 2009 and 15th
         January 2010, but inclusive of:


         (i)    the reserved costs of the proceedings on 26th July
                2007, 4th September 2007 and 16th October 2007 in
                Case No. 352/2007;
         (ii)   the costs of the proceedings on 1st and 2nd October
                2009, 11th and 13th January 2010 and 13th April 2010;
         (iii) interest at the legal rate on the taxed costs, from a
                date 14 days after allocatur to date of payment.


  (j)    The Applicant is ordered to pay the First Respondent’s
         costs occasioned by the postponements on 24th August
         2009 and 15th January 2010, including interest at the legal
         rate on the taxed costs, from a date 14 days after allocatur
         to date of payment.




_____________
L D KEMP
ACTING JUDGE OF THE HIGH COURT




Counsel for the Applicant      :     Adv J KINCAID
                                                             Page 18


                                 Attorneys for the Applicant
                                 VAN      DER       MERWE         &
                                 ASSOCIATES
                                 c/o Squires Attorneys
                                 44 Taylor Street
                                 King William’s Town


Counsel for the 1st Respondent   :     Adv V Notshe SC


                                 Attorneys for the Respondent
                                 State Attorney
                                 c/o Shared Legal Services
                                 Office of the Premier
                                 32 Alexandra Road
                                 King William’s Town

				
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