THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 244/13
In the matter between:
GRANCY PROPERTY LIMITED AND ANOTHER               Appellants
and
SEENA MARENA INVESTMENT
(PTY) LTD AND OTHERS

Respondents

Neutral citation: Grancy Property v Seena Marena (244/13) [2014] ZASCA
50 (01 April 2014)
Coram:

Lewis, Mhlantla, Petse and Saldulker JJA and Legodi AJA
Heard:

3 March 2014
Delivered:

1 April 2014
Corrected:           9 May 2014
Summary:         Civil Procedure – where an order made in the High Court is
final in effect and definitive of the rights of the parties, the order is appealable
– party is entitled to claim an order that there be an inquiry into the adequacy
of an account before it is debated.

_____________________________________________________________
ORDER
________________________________________________________________
On appeal from: Western Cape High Court, Cape Town (McDougall AJ
sitting as court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the high court is set aside and replaced with:
‘(a) (i) The application under case no 15757/07 instituted by the second, third
and fifth respondents in terms of Rule 6 (11)(the Spearhead application) is
dismissed.
(ii) The counter-application instituted by the applicants in terms of Rule 6(11)
is granted in terms of the order annexed to this judgment marked ‘A’.
(b) (i) The application under case no 10547/08 instituted by the applicants in
terms of Rule 6(11) (the Scharrig application) is granted in terms of the order
annexed to this judgment marked ‘B’.
(ii) The counter-application instituted by the first to sixth respondents in terms
of Rule 6(11) is dismissed.’
((2 The order of the high court is set aside and replaced wit
_____________________________________________________________
JUDGMENT
______________________________________________________________
Mhlantla JA (Lewis, Petse, Saldulker JJA and Legodi AJA concurring):
[1]   This appeal is against a decision of the Western Cape High Court, Cape
Town (McDougall AJ). It is in respect of four applications brought in terms of
rule 6(11) of the Uniform Rules of Court and which are interlocutory to two
main applications under case numbers 15757/07 and 10547/08. The appeal is

with leave of the court below. The underlying dispute between the parties
relates to an entitlement of Grancy Property Limited and Montague Goldsmith
AG in Liquidation (the appellants) to a proper statement of account by Seena
Marena Investments (Pty) Ltd (Seena Marena Investments), Mr Dines Gihwala,
Mr Lancelot Manala and the Gihwala Family Trust (the respondents).

[2]    At issue in this appeal is the question whether the order of the high court is
appealable and if so, whether the appellants have made out a case for a two –
stage judicially controlled procedure dealing, first with the adequacy and second
with the accuracy of the accounts in question.
[3]   Some factual background is necessary before the determination of the
issues. The appellants, who are based overseas, decided to invest moneys in
South Africa. They communicated with Mr Gihwala regarding their interest in
two investments, that I shall refer to as Spearhead and Scharrig. They
transferred funds to him to invest accordingly and in certain instances advised
him to collect funds from a firm of attorneys which held their moneys in its trust
account. At a certain stage the relationship between the parties turned sour. It
transpired that some of the funds were never invested, whilst the others were
repaid to them. The appellants were not satisfied with the refunds and by way of
letters demanded an account from the respondents. When this was not
forthcoming they brought the two main applications in the Western Cape High
Court.
[4]    The Spearhead proceedings commenced in November 2007. In terms of a
settlement agreement, which was made an order of court on 9 March 2009, the
respondents were ordered to submit to the appellants an account setting out how
the appellants’ funds had been utilised. The respondents rendered the account.
The appellants complained, however, that it was inadequate. They launched

proceedings under rule 6(11) of the Uniform Rules and sought an order
declaring that the account rendered by the respondents was inadequate and
directing them to provide an account in accordance with the March 2009 order.
No relief was sought with regard to the debatement of the account.
[5]   That application was heard by Binns–Ward J. On 15 April 2010 the learned
judge found that the respondents had rendered a ‘woefully inadequate’ account.
He directed the respondents to furnish the appellants with an improved account
within 15 days of the order. He held that a debatement of the account still had to
occur and the actual definition of what was in issue would take place after the
appellants had had an opportunity to consider the account and privately debate
with the respondents any issues arising out of such consideration. During May
2010 the respondents submitted a further account which was supplemented in
June 2010 after the appellants had requested them to account properly. Despite
this, a dispute arose as to the adequacy of the account. This dispute culminated
in the respondents launching a further Spearhead application. The appellants
subsequently filed their counter–application.
[6] Regarding the Scharrig project, during April 2005, Mr Gihwala advised
the appellants of an opportunity to invest in Scharrig, a JSE listed company. The
appellants decided to invest an amount of R1 million. Mr Gihwala also held
funds on behalf of the appellants in the trust account of Hofmeyer, Herbstein &
Gihwala Inc, a firm of attorneys, (Hofmeyer). He was authorised to utilise some
of those funds for the Scharrig investment. During June 2005 a further
opportunity arose to invest in Scharrig shares. On 16 June 2005 the appellants
contributed a sum of R10 million which was transferred to Hofmeyer’s trust
account. This amount was subsequently invested in the name of Seena Marena
Investments at Peoples Bank.

[7] It later transpired that Mr Gihwala did not invest the R10 million on
behalf of the appellants and in August 2005, this amount was repaid to the
appellants.  Mr Gihwala paid the appellants an amount of R50 000 as interest
but failed to furnish an account setting out the interest earned from 16 June to
11 August 2005. The appellants demanded an account dealing with receipts,
growth and the application of the funds. Mr Gihwala refused, contending that
the appellants had received a full and proper account. As a result, on 1 July
2008, the appellants launched the Scharrig proceedings in the court below and
sought an order that the respondents provide a proper account, debatement
thereof and payment of the amount due to them.
[8]   This application was heard by Dlodlo J. On 18 June 2010, the learned
judge concluded that the accounting rendered was inadequate. He ordered the
respondents to provide the appellants a full and proper account within 14 days
of the order; that the account should be supported by vouchers dealing with at
least how, when, by whom and for what purposes the amounts of R1 million
and R10 million were used.
[9] Pursuant
to
the
order,
the
respondents
handed
over
further
documentation. The appellants were, however, not satisfied and alleged that the
accounting was not adequate.  A statement of account with supporting vouchers
and a separate affidavit with annexures were provided by respondents. The
appellants persisted in their position that the account was defective. The
respondents sought to address the defects by submitting further documents on
27 and 29 September 2010 respectively.
[10]    The appellants were still not satisfied with the adequacy of the accounts
and brought an application in terms of rule 6(11) where they sought a judicially
controlled procedure to debate the adequacy and accuracy of the accounts. The
respondents filed a counter-application contending that the accounts were ready

for debatement and proposed an extra curial debatement. The four applications
in the high court were:
(a)
An application which was launched on 29 July 2010 by Mr Gihwala , Mr
Manala and  the Trust against the appellants ( the Spearhead application);
(b)
A counter-application launched on 30 September 2010 by the appellants
against Mr Gihwala, Mr Manala and the Trust;
(c)
An application launched on 12 November 2010 by the appellants against
Mr Gihwala, the Trust and Hofmeyer, (the Scharrig application); and
(d)
A counter-application launched on 24 January 2011 by Mr Gihwala and
the Trust against the appellants.
[11]    The four applications were consolidated and heard by McDougall AJ.
The court recognised that there was no prescribed procedure for a statement and
debatement of an account.  It rejected the appellants’ proposed approach for a
two-stage enquiry where the accounts would first be debated for adequacy and
then accuracy. It concluded that both the Spearheard and Scharrig accounts
were ready to be debated. It thus upheld the respondents’ application in the
Spearhead application and their counter-application in the Scharrig application.
The parties were directed to debate the accounts furnished by the respondents
pursuant to the orders dated 9 March 2009, 15 April 2010 and 18 June 2010
respectively. The appellants now seek a reversal of the orders of the court
below, and in particular the finding that the accounts were ready to be debated.
[12] With that background, I revert to the preliminary issue, that is, whether
the order of the high court is appealable. In deciding this question, this court is
guided by the principles laid out in a line of cases. It is useful to begin with
Zweni v Minister of Law and Order1 where Harms JA stated:

1 Zweni v Minister of Law & O‘der 1993(1) SA 523 (A) at 532J to 533A. Health Professions Council of South
Africa and another v Emergency Medical Supplies and Training CC t/a EMS 2010 (6) SA 469 (SCA) para 15.

‘A “judgment or order” is a decision which, as a general principle has three attributes, first,
the decision must be final in effect and not susceptible of alteration by the Court of first
instance; second, it must be definitive of the rights of the parties; and, third, it must have the
effect of disposing of at least a substantial portion of the relief claimed in the main
proceedings.’
[13] In Moch v Nedtravel (Pty) Ltd,2 Hefer JA pointed out that the principles
are neither exhaustive nor cast in stone. The tests did not deal with a situation
where the decision, without actually defining the parties’ rights or disposing of
any of the relief claimed in respect thereof, yet has a very definite bearing on
these matters.
[14] Maya JA in Jacobs v Baumann NO,3 said:
‘. . . [A] court determining whether or not an order is final considers not only its form but
also, and predominantly, its effect. An order may not possess all three attributes, but will
nonetheless be appealable if it has final jurisdictional effect or is ‘such as to “dispose of any
issue or any portion of the issue in the main action or suit” or . . .“irreparably anticipates or
precludes some of the relief which would or might be given at the hearing”’.
[15] In NDPP v King, 4 Harms DP held:
‘. . . [T]he focused issue is whether the “order” was in substance and not in form final in
effect. In other words, was it capable of being amended by the trial court? . . . If a party has
been prejudiced by the order his prejudice is irremediable.’
[16] In Absa Bank v Mkhize,5 the high court had been seized with an
application for default judgment. It set out steps to be taken by the plaintiff to
ensure that the notice of a consumer’s default in meeting an obligation to the
plaintiff was provided to the consumer in terms of sections 129 and 130 of the
National Credit Act 34 of 2005. The court thereafter postponed the application
sine die in order to give the plaintiff an opportunity to take the further steps it

2 Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) at 10F.
3 Jacobs and Others v Baumann NO and others 2009 (5) SA 432 (SCA) para 9.
4 National Director of Public Prosecution  v King 2010 (2) SA SACR 146 paras 42 and 45.
5 Absa Bank v Mkhize [2014] 1 All SA 1 (SCA) paras 59, 61 and 63.

considered were necessary before the matter could be disposed of. The plaintiff
appealed against that order. In this court, Ponnan JA stated:
‘[The] order of the high court amounted to no more than a direction from the high court. The
order is a preparatory or procedural order which does not bear upon or in any way affect the
decision in the main action . . .  The order does not amount to a refusal of default judgment,
nor does it directly bear upon or dispose of any of the issues in the main action, it thus cannot
be said that it is tantamount to a dismissal of Absa’s action.’

[17] With these principles in mind, I revert to the contentions of the parties.
Before us, counsel for the respondent submits that the judgment and orders are
not appealable in that they relate to interlocutory applications; do not dispose of
a substantial portion of the relief in the main application and are not final in
effect.
[18]  It is so that what was before the high court were four interlocutory
applications. However once the relief sought was denied, it was not open to the
appellants to seek it again: the effect of the denial was to deprive the appellants
of a remedy.
[19]    It is clear that the issue of adequacy of the account is at the heart of the
dispute between the parties.  This issue is very important to them. This is borne
out by the history of the case outlined above. The court below said: ‘In my view
the Spearhead and Scharrig accounts are ready to be debated.’ Implicit in that
statement is that the accounts are adequate and that there should be no debate
about the adequacy thereof. The court made this finding without furnishing any
reasons therefor. It accepted the respondents’ proposed method to deal with the
debatement of the accuracy of the accounts. The effect of the order is that the
appellant is now precluded from and has been denied the right to enquire and
ensure that accounts to be debated are adequate. The question that has to be

answered is: can one debate the accuracy of an account that is inadequate? I
think not.
[20] The appellants would thus be prejudiced if the judgment and order of the
court below were allowed to stand. That was the case too in NDPP v King
referred to above in which it was held that although the order on appeal was
made during the course of proceedings, it was final in effect.

[21]   Counsel for the respondent submitted that a piecemeal adjudication of the
issues should be avoided. It is so that a piecemeal determination of issues is
undesirable.6 However, we were advised by both parties that the trial
commenced in February 2014 and does not relate to the issues raised in this
appeal. Furthermore the Scharrig issue does not feature in the consolidated
actions. It follows that this court is properly seized with this matter.
[22] The order of the high court has effectively precluded the appellants from
contesting the adequacy of the accounts, an issue that has been a bone of
contention between the parties since 2009. It is thus final in effect. It has major
implications for the appellants as it affects their rights to an adequate account.
The effect of the order is that, for as long as it remains, the appellants will be
precluded from contesting or revisiting the issue relating to the adequacy of the
account. They will have no remedy to obtain an adequate account unless the
judgment of McDougall AJ is set aside. It follows that the appellants will be
prejudiced if this order stands. In the result, I conclude that the decision of the
high court is appealable.
[23] Regarding the merits, the issue is whether the court below properly held
that the respondents’ proposed process for the debatement of the accounts was
appropriate and thus correctly rejected the appellants’ application for a two–

6 See Health Professions Council v Emergency Medical Supplies para 16.

stage judicially controlled process. It was submitted on behalf of the
respondents that the method proposed by the appellants is not supported by
judicial authority; that it is inappropriate, unfair and unworkable and that the
appellants’ proposed second stage was not a debate but a conventional action
process aimed at recovering the amounts due. The respondents urged us to
accept the method proposed by them as it is consistent with the guidelines laid
down by this court.
[24] In Doyle & another v Fleet Motors PE (Pty) Ltd,7 Holmes JA accepted
that in South Africa there is no prescribed procedure for a statement and
debatement of an account. He made general observations about the procedure to
be adopted when a party sought a statement of account, debatement and
payment of moneys due. The learned judge noted:
‘The degree or amplitude of the account to be rendered would depend on the circumstances
of each case. In some cases it might be appropriate that vouchers or explanations be included.
. . . [Where] the plaintiff has [already] received an account which he avers is insufficient, the
court may enquire into and determine the issue of sufficiency in order to decide whether to
order the rendering of a proper account . . . In general the court should not be bound to a rigid
procedure, but should enjoy some measure of flexibility as practical justice may require.’
[25] In Video Parktown v Paramount, Shelburne & Century8 Slomowitz AJ
referred to the general observations made by Holmes JA in Doyle v Fleet
Motors and said:
‘It seems apparent from his remarks that the issue whether an account should be ordered may,
in a suitable case, be tried separately from and before any question relating to the adequacy of
the account. Viewing the matter as one of principle, it seems to me that the right to receive an
account is one which is distinct from the right to have it debated and then to obtain payment
of any monies found to be owing. Whether an account must in law be delivered is one

7 Doyle and Another v Fleet Motors PE (Pty) Ltd 1971 (3) SA 760 at 762E-763D.
8 Video Parktown North (Pty) Ltd v Paramount Pictures Corporation, Video Parktown North (Pty) Ltd v
Shelburne Associates and others, Video Parktown North (Pty) Ltd v Century Associates and others 1986 (2) SA
623 (TPD) at 638E-G.

question. Whether it is correct is another. If an account which is bound in law to be furnished
is found to be incorrect, the remedy of debatement arises, not so much from the duty to
deliver it in the first instance, but from the failure to ensure its accuracy.’
[26] In Doyle v Board of Directors,9 Slomowitz AJ said:
‘The right to an account is at once two distinct concepts. It is both substantive and procedural.
It is a right as well as a remedy. The duties of good faith, which are owed by an agent to his
principal, are no different in kind to those which fall on a trustee ….
Inextricably bound up with this by no means exhaustive compendium of obligations is the
agent’s duty to give an accounting to his principal of all that he knows and has done in the
execution of his mandate and with his principal’s property.’
[27] In this case, the appellants contended for a two-stage judicially controlled
procedure which would deal first with the adequacy and then with the accuracy
of the Spearhead and Scharrig accounts rendered by the respondents. The
procedure would involve the examination of the relevant respondents before the
court in relation to the adequacy of the details of the accounts. If the accounts
were inadequate, the judge would specify in which respect and state what has to
be provided by the respondents and set the time frames. The court would
thereafter order the provision of such information, explanations and
documentation as it considered necessary to enable the appellants properly to
debate the accuracy of the accounts.
[28] If the accounts were adequate or if the respondents had complied with the
order of  the court to cure the inadequacy, a second hearing would be convened
at which the adequate accounts would be debated in relation to their accuracy
and to determine whether any amounts were due to them. Once that is done, the
parties would follow the procedure as envisaged in action proceedings.
[29] In my view, the court below erred when it rejected the two-stage process
proposed solely because it has not been sanctioned previously. The method

9 Doyle v Board of Directors 1999 (2) SA 805 (CPD) at 813D and 813G.

proposed by the appellants is appropriate and justified under the circumstances.
It is unfortunate that the court criticised it as being unconventional. It appears
that in coming to this conclusion, the court below overlooked the fact that there
are no rules that are prescribed for the disputes of the kind in issue in this case.
Accordingly the court is, in general, not bound to a rigid procedure but enjoys a
measure of flexibility as practical justice may require.
[30]   It was submitted on behalf of the respondents that the procedure involving
their examination was invasive. I do not agree. The entire process envisaged
would be presided over and controlled by a judge. The interrogation phase
relates to the adequacy stage only. The respondents were the agents as the
money was entrusted to them and they are the only parties who know how the
funds were utilised.  Therefore they have a duty to account and respond to the
questions posed. There is no corresponding obligation imposed on the
appellants. In my view the procedure proposed by the respondents is flawed as
it does not cater for the provision of adequate accounts.  In so far as the
accuracy of the accounts is concerned, the parties will be able to debate the
issues and will be afforded an opportunity to file pleadings and the matter will
be set down for hearing.
[31]    In the result, the appellants are thus entitled to the relief sought. The
appeal therefore succeeds.
[32]    For these reasons the following order is made:
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the high court is set aside and replaced with:
‘(a)(i) The application under case no 15757/07 instituted by the second, third
and fifth respondents in terms of Rule 6 (11), (the Spearhead application), is
dismissed.
(ii) The counter-application instituted by the applicants in terms of Rule 6(11)

is granted in terms of the order annexed to this judgment marked A.
(b)(i) The application under case 10547/08 instituted by the applicants in
terms of Rule 6(11), (the Scharring application), is granted in terms of the
order annexed to this judgment marked B.
(ii) The counter-application instituted by the first to sixth respondents in terms
of Rule 6(11) is dismissed.

__________________
NZ MHLANTLA

JUDGE OF APPEAL

A
Order in respect of Case No: 15757/07
1    The applicants and the second, third and fifth respondents (the respondents)
are directed to debate the adequacy of the account delivered by the respondents
on 7 May 2010 and supplemented on 3 June 2010 (‘the May/June 2010
account’) pursuant to the order of Binns-Ward J delivered on 15 April 2010
(‘the April 2010 Judgment’).
2 The applicants and the relevant respondents are directed to debate the
accuracy of the May/June 2010 account.
3 The debatement of the account, contemplated in 1 and 2 above, shall be
conducted before the Western Cape High Court (the high court) at a date and
time that is convenient to all the parties involved, as well as their counsel.
4 The debatement of the May/June 2010 account is separated into two stages:
4.1
the first stage dealing with the adequacy of the May/June 2010 account;
and
4.2
the second stage dealing with the accuracy of the final account as defined
in paragraph 14 below.
The two stages of the debatement should be regulated in the following
manner:
The first stage: adequacy
6 At the hearing, the applicants’ legal representatives will be entitled to pose
questions to the respondents in relation to the adequacy of the May/June 2010
account. The respondents’ legal representatives will, thereafter, be entitled to
question the respondents on issues raised by the applicants’ legal representatives

during their questioning of the respondents, after which the applicants’ legal
representatives will be entitled to re-examine the respondents.
7 In questioning the respondents on the adequacy of the May/June 2010
account, the applicants’ legal representatives will be entitled to question the
respondents on every aspect and every detail of the May/June 2010 account, and
the content of their legal duty to account under the court order delivered by the
high court, under the above case number, on 9 March 2009 (‘the March 2009
court order’) and the April 2010 Judgment.
8 It is the respondents, rather than their accountants or legal representatives,
who shall be obliged to answer the questions put to them by the applicants’
legal representatives and/or the respondents’ legal representatives relating to the
May/June 2010 account.
9 The applicants will not be obliged to submit to questioning by the respondents
during this stage of the procedure.
10 The questioning of the respondents will be done under oath.
11 After the applicants’ and the respondents’ legal representatives have finished
examining the respondents, the high court shall make an order on the following
issues:
11.1 whether the May/June 2010 account is adequate in the sense
contemplated in the April 2010 Judgment;
11.2 If the May/June 2010 account is found to be inadequate in the sense
contemplated in the April 2010 Judgment, in what specific respects it is
inadequate;
11.3 what further explanations must be provided by the respondents, and by
what date these explanations must be provided to the applicants;

11.4 what further documentation and/or information the respondents must
provide to the applicants in order to comply with the April 2010 Judgment, and
by what date this documentation and/or information, and further explanations in
relation to this documentation and/or information, must be provided to the
applicants.
The second stage: accuracy
12 Should the high court find that the May/June 2010 account is:
12.1 adequate in the sense contemplated in the April 2010 Judgment;
12.2 alternatively, inadequate in the sense contemplated in the April 2010
Judgment, and thereafter make the orders contemplated in paragraphs 11.2 to
11.4 above, and the respondents thereafter comply with these orders,
the applicants will be entitled to proceed to debate the accuracy of the account
with the first to third and fifth to ninth respondents (the relevant respondents)
before the high court.
13 Alternatively, if the respondents fail to comply with the order of the high
court as contemplated in paragraph 12.2 above, the applicants will be entitled to
proceed to debate the accuracy of the May/June 2010 account with the relevant
respondents before the high court, subject to the court drawing any appropriate
adverse inferences from the respondents’ failure to comply with their legal duty
to furnish a full and proper account.
14 In debating the accuracy of the May/June 2010 account, supplemented in
accordance with paragraphs 11.2 to 11.4 above (the final account), the
following procedures will be followed:
14.1 The applicants will, within 20 days of  the court’s finding that the
May/June 2010 account is adequate; alternatively within 20 days of the

respondents’ compliance with the court’s order as contemplated in paragraph
12.2; further alternatively within 20 days of the respondents’ failure to comply
with this court’s order as contemplated in paragraph 12.2, deliver a written
notice to any one or more of the relevant respondents in the form of particulars
of plaintiffs’ claim in which they claim any amounts due to them, which arise
from the debatement contemplated in paragraph 4 of the March 2009 court
order and/or the second, third and/or fifth respondent’s failure to provide an
adequate and/or accurate account.
14.2 Any one or more of the relevant respondents will be entitled, within 15
days of the delivery of the particulars of claim, to respond in writing to the
allegations in the particulars of claim in the form of a plea. The relevant
respondents will not be entitled to lodge any counterclaim against the
applicants.
14.3 The applicants will be entitled, within 10 days of the delivery of plea(s)
by one or more of the relevant respondents, to respond in writing to such plea(s)
in the form of a replication.
15 The above procedure does not preclude the applicants from initiating
contempt of court proceedings against one or more of the respondents should
such respondent(s) fail to comply with the high court’s order as contemplated in
paragraph 12.2.
16 Once the procedure contemplated in paragraphs 14.1 to 14.3 has been
finalised, the applicants shall set the matter down to be heard by the high court
at a date and time convenient to all the parties involved, as well as their counsel.
17 To the extent that the above procedure does not provide otherwise, the
process of the debatement of the accuracy of the final account and adjudication
of the claims in the particulars of claim will take place in accordance with the
Uniform Rules of the Court which govern action proceedings.

18 The debatement of the accuracy of the final account and adjudication of the
claims in the particulars of claim will, as far as possible, be argued before the
same judge who heard argument on the adequacy of the May/June 2010
account.
19 The respondents (and the first and sixth to ninth respondents under WCC
case no 15757/07, in the event of their opposing the relief herein) are ordered to
pay, jointly and severally, the one paying the other to be absolved, the
applicants’ costs of suit on the scale as between attorney and client, including
the costs of two counsel.

B
Order in respect of Case No: 10547/08
1 The applicants and the first, second and seventh respondents (the respondents)
are directed to debate the adequacy of the account delivered by:
1.1 the first and second respondents on 2 July 2010 (the Gihwala July 2010
account) and supplemented on 27 September 2010 (the 27 September 2010
letter) (collectively, ‘the first and second respondents’ account’); and
1.2 the seventh respondent on 2 July 2010 (the HHG July 2010 account) and
supplemented on 30 September 2010 (the 30 September 2010 letter)
(collectively, ‘the seventh respondent’s account’), pursuant to the order of
Dlodlo J delivered on 18 June 2010 (the June 2010 Judgment).
2 The applicants and the relevant respondents are directed to debate the
accuracy of the first and second respondents’ account and the seventh
respondent’s account (collectively, ‘the respondents’ accounts’).
3 The debatement of the account, contemplated in 1 and 2 above, shall be
conducted before the Western Cape High Court (the high court) on a date and
time that is convenient to all the parties involved, as well as their counsel.
4 The debatement of the respondents’ accounts shall be separated into two
stages:
4.1 the first stage dealing with the adequacy of the respondents’ accounts; and
4.2 the second stage dealing with the accuracy of the final accounts as defined
in paragraph 14 below.
5 Directing that the two stages of the debatement should be regulated in the
following manner:

The first stage: adequacy
6 At the hearing, the applicants’ legal representatives will be entitled to pose
questions to the respondents in relation to the adequacy of the respondents’
accounts. The respondents’ legal representatives will, thereafter, be entitled to
question the respondents on issues raised by the applicants’ legal representatives
during their questioning of the respondents, after which the applicants’ legal
representatives will be entitled to re-examine the respondents.
7 In questioning the respondents on the adequacy of the respondents’ accounts,
the applicants’ legal representatives will be entitled to question the respondents
on every aspect and every detail of the respondents’ accounts, and the content of
their legal duty to account under the June 2010 Judgment.
8 It is the respondents, rather than their accountants or legal representatives,
who shall be obliged to answer the questions put to them by the applicants’
legal representatives and/or the respondents’ legal representatives relating to the
respondents’ accounts.
9 The applicants will not be obliged to submit to questioning by the respondents
during this stage of the procedure.
10 The questioning of the respondents will be done under oath.
11 After the applicants’ and the respondents’ legal representatives have finished
examining the respondents, the high court shall make an order on the following
issues:
11.1 whether the first and second respondents’ account and/or the seventh
respondent’s account are adequate in the sense contemplated in the June 2010
Judgment;

11.2 If the first and second respondents’ account and/or the seventh
respondent’s account are found to be inadequate in the sense contemplated in
the June 2010 Judgment, in what specific respects they are inadequate;
11.3 what further explanations must be provided by the first, second and/or
seventh respondents, and by what date these explanations must be provided to
the applicants;
11.4 what further documentation and/or information the first, second and/or
seventh respondents must provide to the applicants in order to comply with the
June 2010 Judgment, and by what date this documentation and/or information,
and further explanations in relation to this documentation and/or information,
must be provided to the applicants.
The second stage: accuracy
12.
Should the high court find that the first and second respondents’ account
and/or the seventh respondent’s account is:
12.1 adequate in the sense contemplated in the June 2010 Judgment;
12.2 alternatively, inadequate in the sense contemplated in the June 2010
Judgment, and thereafter make the orders contemplated in paragraphs 11.2 to
11.4 above, and the first, second and/or seventh respondents thereafter comply
with these orders,
the applicants will be entitled to proceed to debate the accuracy of the account
with the relevant respondents before the high court.
13 Alternatively, if the respondents fail to comply with the order of the high
court as contemplated in paragraph 12.2 above, the applicants will be entitled to
proceed to debate the accuracy of the May/June 2010 account with the relevant
respondents before the high court, subject to the court drawing any appropriate

adverse inferences from the respondents’ failure to comply with their legal
duties to furnish a full and proper account.
14 In debating the accuracy of the May/June 2010 account, supplemented in
accordance with paragraphs 11.2 to 11.4 above (the final accounts), the
following procedure will be followed:
14.1 The applicants will, within 20 days of the court’s finding that the first and
second respondents’ account and/or the seventh respondent’s account is
adequate; alternatively within 20 days of the respondents’ compliance with the
court’s order as contemplated in paragraph 12.2; further alternatively within 20
days of the respondents’ failure to comply with the court’s order as
contemplated in paragraph 12.2, deliver a written notice to any one or more of
the relevant respondents in the form of particulars of plaintiffs’ claim in which
they claim any amounts due to them, which arise from the debatement
contemplated in paragraph 28(b) of the June 2010 Judgment and/or the first,
second and/or seventh respondent’s failure to provide an adequate and/or
accurate account.
14.2 Any one or more of the relevant respondents will be entitled, within 15
days of the delivery of the particulars of claim, to respond in writing to the
allegations in the particulars of claim in the form of a plea. The relevant
respondents will not be entitled to lodge any counterclaim against the
applicants.
14.3 The applicants will be entitled, within 10 days of the delivery of plea(s)
by one or more of the relevant respondents, to respond in writing to such plea(s)
in the form of a replication.
15 The above procedure does not preclude the applicants from initiating
contempt of court proceedings against one or more of the respondents should

such respondent(s) fail to comply with the court’s order as contemplated in
paragraph 12.2.
16 Once the procedure contemplated in paragraphs 14.1 to 14.3 has been
finalised, the applicants shall set the matter down to be heard by the high court
at a date and time convenient to all the parties involved, as well as their counsel.
17 To the extent that the above procedure does not provide otherwise, the
process of the debatement of the accuracy of the final account and adjudication
of the claims in the particulars of claim will take place in accordance with the
Uniform Rules of Court which govern action proceedings.
18 The debatement of the accuracy of the final account and adjudication of the
claims in the particulars of claim will, as far as possible, be argued before the
same judge who heard argument on the adequacy of the respondents’ accounts.
19 The respondents (and the third to sixth respondents under WCC case no
10547/08, in the event of their opposing the relief herein) are ordered to pay,
jointly and severally, the one paying the other to be absolved, the applicants’
costs of suit on the scale as between attorney and client, including the costs of
two counsel.

APPEARANCES:

For Appellants:
P B Hodes SC (with him JPV McNally SC)

Instructed by:
Webber Wentzel Attorneys

Symington & De Kok, Bloemfontein

For Respondents: LA Rose-Innes SC (with him G Quixley)

Instructed by:
Thomson Wilks Inc.

Honey Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
1 April 2014
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

GRANCY PROPERTY LTD v SEENA MARENA INVESTMENT
(PTY) LTD

Today, the Supreme Court of Appeal (SCA) upheld an appeal against an order of the
Western Cape High Court, Cape Town.

The underlying dispute between the parties related to an entitlement of the appellants to a
proper statement of account by the respondents. The respondents had submitted certain
accounts, however, the appellants were not satisfied with the adequacy thereof. They
launched two main applications in the high court. On 9 March 2009, the court ordered the
respondents to submit to the appellants a proper account (March 2009 order). The account
rendered by the respondents was deemed inadequate by the appellants. They brought an
application in terms of rule 6(11) of the Uniform Rules and sought an order declaring that
the account rendered by the respondents was inadequate and directing them to provide an
account in accordance with the March 2009 order.

On 15 April 2010 and 18 June 2010 respectively, the high court declared that the accounts
rendered by the respondents were inadequate. The respondents were ordered to furnish
improved accounts. Pursuant to the orders, the respondents submitted two accounts.
Despite this, a dispute arose between the parties as to the adequacy of the accounts. The
dispute culminated in the parties launching the rule 6(11) applications and counter-
applications. The appellants sought a two-stage judicially controlled procedure to debate
the adequacy and accuracy of the accounts. The respondents, on the other hand, contended
that the accounts were ready for debatement and proposed an extra curial debatement.

The applications were consolidated and heard by McDougall AJ. The court below
recognised that there was no prescribed procedure for a statement and debatement of an

account.  It rejected the appellants’ proposed approach and concluded that the accounts
were ready to be debated. The appellants appealed against that decision and sought a
reversal of the orders of the court below and in particular the finding that the accounts
were ready to be debated.

In this court, the preliminary issue was whether the order of the high court was appealable.
Counsel for the respondent submitted that the judgment and orders were not appealable in
that they related to interlocutory applications; did not dispose of a substantial portion of the
relief in the main application and were not final in effect.

This court, however, held that the order effectively precluded the appellants from contesting
the adequacy of the accounts an issue that had been a bone of contention between the parties
since 2009. The order of the high court had major implications for the appellants as it
affected their rights to an adequate account. For as long as it remained, the appellants were
precluded from contesting or revisiting the issue relating to the adequacy of the account. This
court found that the appellants would be prejudiced if the order were allowed to stand. The
SCA thus concluded that the order of the high court was final in effect and that the decision
was appealable.

Regarding the merits, that is, whether the court below properly held that the respondents’
proposed process for the debatement of the accounts was appropriate and thus correctly
rejected the appellants’ application for a two – stage judicially controlled process; it was
submitted on behalf of the respondents that the method proposed by the appellants was not
supported by judicial authority; that it is inappropriate, unfair and unworkable and that the
appellants’ proposed second stage was not a debate but a conventional action process aimed
at recovering the amounts due.

This court considered the relevant authorities and concluded that, the court below erred when
it rejected the two – stage process proposed by the appellants solely because it had not been
sanctioned previously. Furthermore, that the method proposed by the appellants was
appropriate and justified under the circumstances.

The SCA accordingly upheld the appeal with costs and granted orders in terms of the orders
marked ‘A’ and ‘B’.