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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

CASE NO: UM214/20

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

 

In the matter between:

REUBEN LEBOGANG MABALE                                                             1^st Applicant

 

REUBEN LEBOGANG MABALE N.O                                                     2^nd Applicant

 

PAULA THANDIWE MABALE N.O                                                          3^rd Applicant

 

STANFORD MABALE N.O                                                                        4^th Applicant

(IN THEIR CAPACITIES AS THE TRUSTEES

OF THE R& P FAMILY TRUST WITH

REGISTRATION NUMBER: I[...]4)

 

TSHEDISO ABRAM MOHASE                                                                 5th Applicant

 

and

 

WESSEL VEREY                                                                                        1^st Respondent

 

JOC MACHINERY                                                                                      2^nd Respondent

 

STEVEN VAN STADEN                                                                             3^rd Respondent

 

RENG GOPRO                                                                                             4^th Respondent

 

JUDGMENT

 

REDDY AJ

 

Introduction

[1]        At first brush, the application which would appear to engage this Court's attention, would be the determination of whether a referee's report, by Ms Anusha Teeruth (Teeruth), appointed in terms of section 38(1) (b) alternatively 38(1) (c) of the Superior Court Act 10 of 2013 prepared pursuant to an order of Court should be adopted without modification.

 

[2]        Further thereto, the applicants pursue an order against the first and second respondents, constituting the majority shareholders of the fourth respondent, to pay the applicants an amount of R15 000 000, 00 together with interest, proportional to the equity the applicants hold in the fourth respondent. The full relief as per the Notice of Motion:

 

1.         The report of the referee Ms. Anusha Teeruth, appointed in terms of section 38(1)(b) or alternatively section 38(1)(c) of the Superior Court Act 10 of 2013 to investigate the financial affairs of the fourth respondent, for the purpose of determining a reasonable market value of the shares held by the applicants as at 31 March 2020, is adopted without modification.

 

2.         The first and second respondents, constituting shareholders of the fourth respondent are ordered to pay the applicants an amount of R15 000 000.00 (fifteen million rands), together with interest thereon a tempore more calculated from 1 October 2021 to date of payment, proportional to the equity they each hold in the fourth respondent, as a basis for the allocation to such parties in proportional share to their present holdings, the equity held by each such party in the fourth respondent.

 

3.         Alternative to the relief claimed at paragraph 2, the fourth respondent is directed to execute a buyback of the shares held by the applicants in the sum of R15 000 000.00("fifteen million rands"), together with interests thereon a tempore calculated from 1 October 2021

 

4.         The respondents are ordered to both jointly and/or severally pay the costs of the application.

 

Description of Parties

 

[3]        Before a conceptualization of the background facts is embarked upon, a proper description of the parties, would make for ease of reading.

 

[4]        The first applicant, is Mr Reuben Lebogang Mabale, an adult male person residing at Plot 1[...], D[...] Road, Rietvlei, Rustenburg, North West Province and a director in the fourth respondent. The first applicant is further a trustee of the R&P Family Trust. The trust holds thirty(30) fully paid-up shares in the fourth respondent, being a single class of common shares with no nominal or par value.

 

[5]        The second applicant, is Reuben Lebogang Mabale NO, who in this capacity, notwithstanding being a natural person, is cited in his official capacity as one of the duly appointed joint trustees of the R&P Family Trust, a trust duly registered in terms of the provisions of the Trust Property Control Act.

 

[6]        The third applicant is Paula Thandiwe Mabale NO, an adult, cited in her official capacity as one of the duly appointed trustees.

 

[7]        The fourth applicant, is Standford Abram Mohase, an adult, cited in his official capacity as one of the duly appointed trustees.

 

[8]        The fifth applicant is Tshediso Abram Mohase, who holds 10(ten) fully paid-up shares in the fourth respondent, being a single class of common shares with no nominal or par value.

 

[9]        The first respondent is Wessel Verwey, an adult male businessperson.

 

[10]      The second respondent is Joe Machinery.

 

 

[11]      The third respondent is Steven van Staden, an adult male, residing at 1[...] R[...] Avenue, Flamwood, Klerksdorp, North West Province.

 

[12]                  The fourth respondent is Reng Gopro, a private company incorporated and registered in accordance with the Company Laws of the Republic of South Africa.

 

Background facts

 

[13]      The legal interaction amongst the parties is of a protracted nature. To have full appreciation of the proposed relief that is now being sought, a background of the relevant facts would be indispensable.

 

[14]      On 3 July 2020, the applicants on an urgent basis pursued interdictory relief prohibiting the first and second respondents from orchestrating the removal of the first applicant as a director of the fourth respondent. Subsumed, within this relief, the applicants sought court authorization permitting access to various documents relating to transactions in the bank accounts operated by the fourth respondent.

 

[15]      The interdictory relief formed Part A of that application, pending Part B, which was to bring about a buy-out of the shareholdings of the applicants in the fourth respondent as may be determined by independently appointed valuers, or alternatively, a winding up of the Company on the basis that it was just and equitable to do so. These proceedings were opposed. Notwithstanding this, the parties ultimately agreed to an order by consent.

 

[16]      The order granted by agreement before Djaje J (as she then was) in its entirety provides as follows:

 

1.         THAT: Pending the finalization of Part B of this application, the First and third Respondents are interdicted from putting to a vote at a general meeting of the shareholders of the Fourth Respondent, the removal of the First Applicant as a director of the Fourth Respondent

 

2.         THAT: The First and Third Respondents are ordered to provide the First Applicant with financial documents (including the right to make copies thereof) relating to transactions on Standard Bank accounts numbers: 0[...] and 0[...], belonging to the Fourth Respondent and covering the period from handover of these accounts to the Fourth Respondent, which documentation shall include:

 

2.1       documents reflecting the account balance of these accounts at the time of handover by Torre Industries Limited.

 

2.2       Documents reflecting the full narration of all third party and related third party payments made from these accounts from takeover till date, including the cashbooks from the Pastel system and bank reconciliation thereof.

 

2.3       Identities of the present signatories of the aforesaid accounts and;

 

2.4       a copy of the board resolution authorizing the appointment of such signatories

 

3.         THAT: The Applicants are directed to supplement their founding affidavit within 14 calendar days from the date of this order for the purposes of a determination of Part B of this application.

 

4.         THAT: The cost of Part A of this application will be determined at hearing of Part B thereof.

 

[17]      On 27 October 2020, the applicants launched a second urgent application (Case number UM 214/2014). This application was predicated upon an agreement reached amongst the parties, to forestall the need to proceed with Part 8. The agreement reached provided for the appointment of a referee in terms of section 38 of the Superior Courts Act 10 of 2013, to conduct a valuation of the equity held in the fourth respondent. The valuation was to serve the substratum upon which the value of the applicant's minority stake in the fourth respondent would be determined, to facilitate a buy-out. This agreement gained the imprimatur of the court on 6 November 2022.

 

[18]      To this end, the South African Institute of Chartered Accounts (SAICA) sanctioned the appointment of Ms. Anusha Teeruth (Teeruth) of Stark Consulting Services. A financial enquiry into the fourth respondent followed, which culminated in a valuation report being issued on 1 October 2021. Teeruth found that the ideal valuation of the equity within the fourth respondent to range between R21 500 424 .00 and R38 295 090.00. The difference in the values is based on the assumptions Teeruth utilized to gauge the perpetual growth rate of the fourth respondent and the fourth respondent's short term operational efficiency. No objections to the methodology employed or the values reached by Teeruth were voiced.

 

[19]      Accordingly, the applicants approached the respondents with a proposal that a buy-out be arranged in line with the valuation of equity as found by Teeruth. The applicants showed a predisposition to accept an offer in the sum of R15 000 000, for the buy-out of their collective forty per cent (40%) stake in the Company.

 

[20]      The applicants based the calculation of the R15 000 000, equity as follows:

 

34.1.   firstly, the applicants calculated 40% of the average valuation of the equity of the Company and arrived at the sum of R11 959 103.20

 

34.2.   secondly the applicants factored in compensation for various irregular payments, which the audit subsequent to the order under Part A of case no: UM 116/2020 exposed. A summary of the audit outcomes which reflected unaccounted monies belonging to the Company of approximately R10 500 000 was factored in. I annex a excel spreadsheet reflecting such matters marked "SA9."

 

[21]      The applicants proceed on an exposition of how the proposed amount has been arrived at, concluding that the suggested amount is reasonable as supported by the objective facts, with the primary aim being the attainment of a clean break. The failure of the respondents to have the factual findings of Teeruth's report set aside militates the amount proposed.

 

[22]      Retorting to the applicant's proposal for the buy-out of their forty per cent (40%) equity in the fourth respondent, on 1 April 2022, the respondents disputed the factual assessment and determinations made by Teeruth. Notwithstanding same, the applicants on motion applied for the following relief:

 

The report of the referee Ms. Anusha Teeruth, appointed in terms of section 38 (1)(b) or alternatively section 38 (1)(c) of the Superior Court Act 10 of 2013, to investigate the financial affairs of the fourth respondent, for the purpose of determining a reasonable market value of the shares held by the applicants, as at 31 March 2022, is adopted without modification.

 

The first and second respondents, constituting the majority shareholders of the fourth respondent  are ordered to pay the applicants an amount R 15 000 000.00 (Fifteen million rands), together with interest thereon a temporemora calculated from 1 October 2021 to date of payment, proportional to the equity they each hold in the fourth respondent, as a basis for the allocation to such parties in proportional share to their present holdings, the equity held by each such party in the fourth respondent.

 

Alternative to the relief claimed at paragraph 2, the fourth respondent is directed to execute a buyback of the shares held by the applicants in the sum of R15 000 000.00 ("fifteen million rands"), together with interests thereon a tempore mora calculated from 1 October 2021.

 

The respondents are ordered to both jointly and/or severally pay the costs of the application.

 

[23]      The respondents opposed the relief, on the basis that on or about 1 April 2022, the attorney of record, Mr. J Parsons, from Parsons Attorneys provided correspondence to the attorneys of record for the applicants along the following vein:

 

……..

 

4.         There has not been any attempt to approach a Court to exercise its power to adopt the report. Any such an attempt will vigorously be opposed, because as we shall demonstrate in a moment. the report on the valuation is fundamentally flawed and wrong. and we believe that in the exercise of a judicial discretion. a Court will not adopt the report.

 

5.         The contention in your letter, to the effect that our clients have not challenged the report, is also inaccurate. From within the ranks of our client they engaged Mr. Wynand Rossouw CA (SA). a representative of Business Valuation Advisers (Pty) Ltd ("our client's expert). On 30 March 2022 our client's expert directed a letter to the referee. Our client's expert requested a detailed underlying calculation, inter alia. in order to understand the extraordinary wide value range. You would recall that the referee intimated the value to be ranging between R21 .5 million and R38.2 million.

 

6.         Our clients' expert also noted that according to the historic annual financial statements of the company, it continuously reported losses and is technically insolvent. The accumulated losses have been supported by shareholder loans. Other questions were also posed to the referee including whether WACC calculations were reviewed.

 

7.         For the record, and in order to make it clear, our clients do not accept the value as purportedly determined by the referee, and do not regard the report of the referee as accurate and reliable."

 

[24]      Aside from assailing the accuracy and reliability of Teeruth's report, respondents have allegedly issued summons out of this Court. The essence of the cause of action is based on misrepresentations that may have been made by first applicant, acting as the agent of the R &P Trust. The fifth applicant acted in a similar manner making representations which he implicitly knew were false.

 

[25]      Further thereto, to dispel the accuracy of the calculations of Teeruth's report, the respondents appointed Questus Incorporated Charted Accountant, (S.A.) during March 2022 with a sole mandate to estimate the value of the fourth respondent. In a report dated 13 March 2022, Questus estimated the value of the Company to be zero. The report of Questus is attached to the answering affidavit, with the contention that it be read in as part of the answering affidavit.

 

[26]      Additionally, the respondents contend that the applicants had made several misrepresentations which culminated in the acquisition of the shares agreement. Had, the falsity of the applicants' representations been known, the respondents would not have concluded the acquisition of shares agreement. As a result, the respondents are entitled to cancel the acquisition of the shares agreement, alternatively cancel such acquisition through the issue of summons.

 

[27]      Consequently, the respondents submit that these proceedings be stayed pending finalization of the action instituted under case 1261/22.

 

Submissions by the applicant

 

[28]      Whilst noting the various objections to the adoption of Teeruth's valuation report, counsel for the applicants dispose of same by contending that objections fashioned by the respondents do form a competent basis for challenging the adoption of Teeruth's valuation report.

 

[29]      The nucleus of the objections to Teeruth's valuation report, so the argument ran, was founded on objections centered on inadmissible evidence, as the respondents have neither procured nor annexed confirmatory affidavits by Mr. Wynand Rossouw CA (SA), or indeed by any of the directors of Questus Incorporated Chartered Accountants, on whose submissions the respondents rely on so heavily.

 

[30]      Relying on Wright v Wright and Another 2015(1) SA 262(SCA), the applicants underscored the following:

 

(i)         It is the party which challenges the adoption of a referee's report, which bears the onus of persuading a court not to adopt such a report.

 

(ii)        A referee's report may only be impugned on very limited grounds.

 

(iii)       It is insufficient for a party objecting to the adoption of such a report, to merely refer to the conclusions drawn by his own expert's report.

 

(iv)       In circumstances where a party seeks to rely upon the independent report of his expert, such party is obliged to furnish confirmatory affidavits not only by such expert with the primary evidence upon which his report is premised, in the absence of which such evidence is inadmissible and does not rise to the level of a genuine dispute of fact.

 

[31]      So, the applicants submit that the objections by the respondents do not establish that Teeruth's valuation report may be impugned on the narrow basis that is unreasonably wrong, irregular and would in the consequence lead to a patently inequitable result.

 

[32]      In dealing with the summons issued by the respondent as an independent action to assail the share acquisition agreement, that in the view of applicants, serves as no ground for impugning the valuation report of Teeruth. Concluding on the issued summons in a parallel action, the applicants place accent on the fact that this summons was issued in June 2022, after the finalization of Teeruth's valuation report, together with the assertion that the facta probanda that form the bedrock of the particulars of claim were not previously voiced in affidavits filed by the respondents in preceding proceedings.

 

[33]      Consequently, the applicants argued that Teeruth's valuation report of the value of the equity in the shares held in the fourth respondent, be adopted without modification, and that a buy out of the applicants shares in the fourth respondent be ordered, in the amount of R15 million, together with interest thereon, a tempore morae calculated from 1 October 2021.

 

[34]      Regarding costs, the applicants contend that the opposition to Teeruth's valuation report was baseless and plainly without merit and was solely intended to cause further delay and frustrate the applicants. Therefore, the applicants moved for the granting of costs on an attorney client basis.

 

Submissions by the respondent

 

[35]      The respondents contend that the application be dismissed with costs alternatively an order be granted staying the application pending the adjudication and finalization of the action proceedings under case number 1261/2022 instituted on or about 2 June 2022.

 

[36]      The respondents contend that the action proceedings will result in a determination of whether the applicants are entitled to the shares they claim and only when it is found that they are shareholders will any possible remuneration come into play.

 

[37]      In respect of Teeruth's valuation report, the respondents aver that the valuation is fundamentally flawed and wrong. As a result, the respondents do not accept the value as found by Teeruth's valuation report as accurate or reliable.

 

[38]      The pivot of the respondents' opposition is based on the following:

 

(i)         There are material factual disputes, which disputes are not capable of resolution on affidavit, contending that these material disputes of fact were not only foreseeable prior to the institution of this application by the applicants, but the applicants were implicitly aware of the material disputes of fact, but nevertheless persisted with this application.

 

(ii)        Teeruth's report on the valuation of the fourth respondent is fundamentally flawed and wrong and no court ought to adopt the report without modification as suggested in the Notice of Motion.

 

(iii)       Teeruth's report is countenanced by the respondents own expert report.

 

(v)        The financial records, inclusive of the annual financial statements consistently reported losses and is technically insolvent, which fact is supported by the shareholder loans.

 

(vi)       The respondents have issued summons out of this Court under Case Number 1261/2022 on 2 June 2022. The genesis of the latter action has a profound influence on the adjudication of the current application and would therefore make legal sense, that the application before this Court be stayed pending the resolution and finalization of the action proceedings.

 

(vii)      The respondents at length indicated that Teeruth's valuation of the fourth respondent is stewardly opposed in the face of its inaccuracies and unreliability, which resonates with the Questus report , which estimates the value of the fourth respondent to be zero.

 

(viii)     The applicants made several false representations to the respondents which resulted in the acquisition of shares agreements. The respondents were oblivious of the falsity of the representations and would never have concluded the acquisition of shares agreements, if they had been acutely aware of the true facts.

 

The applicants' supplementary affidavit

 

[39]      It is settled law that in motion proceedings there are normally three sets of affidavits. In terms of Rule 6(5) (e) of the Uniform Rules of Court, the court may in its discretion permit the filing of further affidavits. In motion proceedings, the affidavits constitute both the pleadings and the evidence and the issues and averments in support of the parties' cases should appear clearly therefrom. See: Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) at 200D.

 

[40]      There is no underscoring that an applicant must make out its case in the founding affidavit. This legal requirement evinces that an applicant must provide adequate primary facts, underpinned by relevant legal principles, to find favor with the court.

 

[41]      In Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635H-6368, Diemont JA stated as follows:

 

'When, as in this case, the proceedings are launched by way of notice of motion, it is to the founding affidavit which a Judge will look to determine what the complaint is ... and as has been said in many other cases: " ... an applicant must stand or fall by his petition and the facts alleged therein and that. although sometimes it is permissible to supplement the allegations contained in the petition, still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon either to affirm or deny".'

 

[42]      Whilst the applicants may have been misguided in their approach regarding the description of their affidavit, substance over title should prevail. The title "supplementary affidavit" is no more than a founding affidavit. Therefore, there is no merit in the respondents' contention that trite motion practice was not conformed to.

 

[43]      The applicants have made an informed decision not to file a replying affidavit. Such a decision has legal ramifications, more especially if a dispute of fact arises, which calls for the application of the Plascon Evans Rule. See: Plascon -Evans Paints (TVL) Ltd v Van Reibeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (2) All SA 366 (A)

 

The Questus Report of the Respondent

[44]      Evidence into motion proceedings is generically introduced by way of affidavit. As such affidavits in motion proceedings serve a dual purpose of pleadings and essential evidence. See: Foize Africa (Pty) Ltd v Foize Beheer BV & Others 2013 (3) SA 91 (SCA) para 30. The general principle in motion proceedings is that hearsay evidence is inadmissible, save in urgent applications and where a court in its discretion permits such evidence in terms of s 3 of the Law of Evidence Amendment Act 45 of 1988.

 

[45]      A respondent who seeks to raise a bona fide material dispute of fact must do so through admissible evidence. Inadmissible evidence cannot form the bedrock of a factual dispute where admissible evidence is readily available. See: Minister of Land Affairs and Agriculture & others v O&F Wevell Trust 2008 (2) SA 184 (SCA) para 56, Wightman t/a JW Construction v Headfour (Pty) Ltd & another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) para 13.

 

The respondents' action proceedings under Case Number 1261/2022

 

[46]      The legal interaction amongst the parties has a tortuous litigation history. It is disingenuous and opportunistic of the respondents to petition this Court for a stay of this motion, pending the outcome of the afore action proceedings. The reasons for the latter conclusion are threefold. Firstly, given the interaction amongst the parties, concerns of misrepresentations and a falsity of facts as presented by the first and second applicants, was raised rather belatedly in litigation. Secondly, it was legally irrational for the respondents to have consented to the drafting of a referee's report to determine the equity of the applicants, given their implicit knowledge as regards the conduct of the applicants. Thirdly, section 38 of the SCA, provides this Court with a limited discretion,

 

The law

 

[47]      Having disposed of the verbiage, I now turn to deal with the core issue namely, Teeruth's report.

 

Section 38 of the Superior Courts Act 10 of 2013 provides:

 

"[38) Reference of particular matters for investigation by referee

 

(1)          The Constitutional Court and, in any civil proceedings, any Division may, with the consent of the parties, refer:-

 

(a)          any matter which requires extensive examination of documents or a scientific, technical of local investigation which in the opinion of the court cannot be conveniently conducted by it; or

 

(b)          Any matter which relates wholly or in part to accounts; or

 

(c)          Any other matter arising in such proceedings,for enquiry and report to referee appointed by the parties, and the court may adopt the report of any such referee, either wholly or in part, and either with or without modifications, or may remit such report for further enquiry or report or consideration by such referee or make such other order in regard thereto as may be necessary or desirable.

 

2.  Any such report or any part thereof which is adopted by the court, whether with or without modifications, shall have effect as if it were a finding by the court in the proceedings in question."

 

[48]      The discretion that is provided to the court is limited within the legislative framework of s38 of the SCA. This judicial discretion is limited to:

 

(i)         the adopting of the referee's report either wholly or in part with or without modification; or

 

(ii)        the remitting of such report for further enquiry or consideration.

 

[49]      A referee's report can only be impugned on a narrow basis that it is unreasonable, irregular, or it would wrongly lead to a patently inequitable result.

 

[50]      Teeruth's report dated 1 October 2021 concludes as follows:

 

"Based on the valuations results and factoring in the perpetual growth rate and EBITDA multiples, the ideal valuation would be between the R21 500 424 and R38 295 090 equity valuation."

 

[51]      Section 38(1)(c) enjoins the court, to adopt the referees report, either wholly or in part, with or without modifications, or may remit such report for further enquiry or report or consideration by such referee or make such order in regard thereto as may be necessary or desirable. The courts' discretion is constrained within the purview of s38(1)(c) and may adopt one of the courses set out therein.

 

[52]      In Estate Young 1917 244 Bale CJ "was very emphatic as to the limited extent to which the Court will give effect to the criticisms of the findings of a referee on matters of fact sent to him for determination". Bale CJ state as follows at 216-217:

 

"Now I take it that when the Court refers questions of fact to an arbitrator,

 

[acting as a referee], it would be extremely slow to interfere with his finding; it would be even more slow to interfere with the findings of an expert

arbitrator [acting as a referee] on questions of fact than it would be to interfere with the decisions of a Magistrate upon questions of fact, or with the decisions of a jury on questions of fact. We know that in England and here the Courts are slow to interfere with the findings of a jury upon questions of fact, if the Courts are satisfied upon the evidence that the conclusions arrived at are not unreasonable.

 

We have held over and over again that we would not interfere with the decisions of Magistrates on questions of fact unless satisfied that they had been influenced by improper motives or unless the findings are egregiously wrong."

 

[53]      Further in Estate Young at 254 the following is stated:

 

"In my own judgment I said that if it had been possible to show that there was no evidence to support the findings of the arbitrator [acting as referee], or that the evidence was such as to make those findings perverse or absurd, this Court would have been warranted in overturning them.

 

…

 

I think therefore that the question for us to determine is not whether we should have come to the same conclusions on the evidence as the Master, but whether his [the referee's] conclusions are such as a reasonable man could not properly have arrived at."

 

[54]      The Teeruth's report which is dated 1 October 2021, was factually challenged. Notwithstanding, a broad averment by the applicant that " none of the stakeholders raised an objection to the methodology employed or the values reached, nor have they sought to challenge the same subsequently." This version of the applicants was simply disingenuous.

 

 

[55]      Teeruth was requested to elucidate the extraordinary wide value range as set out in her report, which ranged between R21.5 million and R38.2million. This is against the averment that the fourth respondent continuously reported losses and was technically insolvent. Undeniably there exists a counter report by the respondents which challenge the findings of Teeruth's report. The applicants had implicit knowledge of this countervailing Questus report, but simply chose to forge ahead and exclude the report based on admissibility and evidentiary principles. Further thereto, the respondents have made several factual allegations which have remained undisturbed by the election of the applicant's decision not to file an answering affidavit. This legal stratagem has ramifications. In my view it would be prudent for the referee to reconsider the report in conjunction with the Questus report.

 

[56]      Regarding costs, the applicants were alive to the respondents' attitude toward Teeruth's report, further the applicants were alerted to the opposition to the accuracy of Teeruth's report at an early juncture and simply proceeded regardless. The applicants sought to proceed regardless of knowledge of the Questus report, which was annexed to the founding affidavit. Even at this late juncture, the applicants proceeded notwithstanding the Questus report, and successfully excluded same on admissibility. There is no reason why the applicants should not bear the costs, as the applicants have not been unsuccessful.

 

[57]      In the premises, I make the following order:

 

(i)         The referees report dated 1 October 2021, by referee Miss Anusha Teeruth, is referred back to the referee for reconsideration in conjunction with the factual disputes raised by the respondent.

 

(ii)        The applicant to pay the costs.

 

A REDDY

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

For the Applicant:	ADV Ayayee
Attorneys for Applicant	Bruce Loxton Inc
	20 Cooke Street
	Golview
	Mahikeng
For the Respondent:	Adv Kruger
Attorneys for Respondent:	M E Tlou & Associates Attorneys
	No.43 Cnr Baden Powel & V Street
	Golfview
	Mahikeng
Date of hearing:	28 April 2023
Date of judgment:	22 August 2023

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