Case number 334/98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of
THE EASTERN METROPOLITAN SUBSTRUCTURE
OF THE GREATER JOHANNESBURG TRANSITIONAL
METROPOLITAN COUNCIL
Appellant
and
GERT HENDRIK JOHAN VENTER N O
Respondent
CORAM:   NIENABER, ZULMAN, STREICHER JJA, MELUNSKY
et FARLAM AJJA.
DATE OF HEARING:   1 September 2000
DATE OF JUDGMENT:   29 September 2000
Insolvency - payment to obtain clearance certificate under section 50
of Local Government Ordinance 1939 (Transvaal).
J U D G M E N T
/FARLAM AJA:

FARLAM AJA
[1]           This is an appeal with the leave of the Court a quo from a
judgment of the Witwatersrand Local Division in terms of which the
appellant, the Eastern Metropolitan Substructure of the Greater Johannesburg
Transitional  Council,  was  ordered  to  pay    R131 311-72, with interest at
15.5% per annum from 15 November 1996  and costs, to the respondent
who is the liquidator of a close corporation, Etruscan Development
Corporation CC (in Liquidation).    (In what follows I shall refer to the close
corporation in liquidation as “the corporation”.)   The corporation was
placed in liquidation pursuant to a special resolution registered on 21
September 1995 and the respondent was appointed as liquidator on 2
October  of that year.
[2] The judgment of the Court a quo, which was delivered by
Flemming DJP, has been reported: see Venter N O v Eastern Metropolitan
Substructure of the Greater Johannesburg Transitional Council, 1998 (3)
SA 1076 (W).

[3] The main issue argued before the Court a quo and on appeal
was whether the appellant was entitled to demand from the respondent
payment of certain outstanding charges, including basic water and sewerage
charges, water consumption charges and a re-zoning fee, prior to, or as a
pre-condition to the issue by it to the respondent of a clearance certificate
without which the transfer of certain immovable properties, which belonged
to the corporation  and which were  situated within the area of jurisdiction of
the appellant, was not permitted.
[4] The main facts which gave rise to the application are not in
dispute and may be summarised shortly.
Sixty stands situate at remaining extent of Erf 383 Magaliesig,
Ext 33, Sandton, Gauteng (to which I shall refer in what follows as “the
properties”),  which belonged to the corporation,  were sold by the
respondent on 16 April 1996 to a close corporation known as Magaliesig Ext
33 CC for R3.8 million.
The conveyancer instructed by the respondent to attend to the

transfer of the properties sought  clearance certificates from the appellant in
terms of section 50 (1) of the Local Government Ordinance 17 of 1939
(Transvaal).
Before it was prepared to issue the clearance certificates  the
appellant  required payment of an amount of R353 616-74, being the total of
the amounts alleged to be owing to it by the corporation in respect of the
properties.  This amount was made up as follows:
(i)
assessment rates for the period

November 1994 to end October 1996
R196 674-36
(ii)
re-zoning fee (payable in terms of sec

63(6), read with secs 48(6)(a) of the

Town Planning and Townships Ordi-

nance 15 of 1986 (Transvaal)
86 237-92
(iii)     basic water and sewerage charges (in
terms of sec 50(1)(a) of the Local Govern-
ment Ordinance)
20 520-99
(iv)    water consumption charges for the period
after October 1994 in respect of unim-
proved stands (in terms of sec 50(1)(a) of
the Local Government Ordinance)
20 727-82
(v)    sundries

1 191-35

(vi) interest
28 264-30

__________
R353 616-74

The respondent paid the amount of R353 595-47 to the
appellant on 14 November 1996, on which date the clearance certificates
were issued and transfer of the properties were registered at the Deeds
Registry in Pretoria.
The respondent did not contend that he was not obliged to pay
an amount of R222 305-02 to the appellant to obtain the clearance
certificates: this amount comprised the amounts claimed in respect of
assessment rates (R196 674-36) and interest (R28 284-30) less a credit as at
October 1994 of R2 633-64.   The amount which Flemming DJP ordered the
appellant to repay to the respondent, viz R131 311-72, is the difference
between the total claimed by the appellant, R353 616-74 less the amount not
disputed by respondent, viz R222 305-02.
The amounts set out above were agreed between the parties in
terms of a memorandum prepared by their counsel at the request of
Flemming DJP.

[5] In their heads of argument counsel  for the appellant conceded
that the appellant was not entitled to have demanded  payment of the amount
of R1 191-35, being the amount claimed in respect of “sundries”,  prior to
or as a precondition to the issue of a clearance certificate.   It was
contended, however, that the  appellant was entitled so to demand the
balance of the amount which Flemming DJP ordered it  to repay to the
respondent, viz R130 120-37 (R131 311-72 less R1 191-35) and that the
respondent was accordingly not entitled to an order for the repayment
thereof.
[6] The respondent alleged in the court a quo that it paid the
amount demanded from it by the appellant under protest.   This was disputed
by the appellant, which now concedes that, regardless of whether the
respondent paid under protest or not, if the amount paid or part thereof was
not due and payable, the respondent is entitled to recover it by way of a
condictio.
[7] The basis for what I may  call the respondent’s main claim for

repayment is set out in paragraphs 23 and 24 of his founding affidavit  which
read as follows:
“23.1 The corporation was liquidated because it could not pay
its debts;
23.2 In terms of Section 66 of the Close Corporation Act No
69 of 1984, read with Section 339 of the Companies Act
no 61 of 1973, Section 89 of the Insolvency Act is
applicable;
23.3 It is accordingly submitted therefore that the amounts
paid to [the appellant] are not ‘a tax’ and that therefore
the Corporation is not liable to make payment of such
sums as contemplated by Section 89(5) of the said
Insolvency Act.
It will be submitted to this Honourable Court that:
24.1 the above amounts received by [the appellant] do not
refer to taxes as contemplated by Section 89 (5) of the
Insolvency Act No 24 of 1936 as amended;
24.2 [the appellant’s] claim for such amounts was not secured
as contended for by [the appellant];
24.3 payment of such sums should not have been procured
by [the appellant] in the manner in which it achieved such
object;
24.4 [the appellant’s] claim for such sums is a concurrent
creditor’s claim against the Corporation;
24.5 the overpayment is not due or payable on [the

appellant’s] own version.”
[8] Simply put, the basis for the respondent’s main claim was that
the appellant was only entitled to withhold a clearance certificate from the
respondent because of the non-payment of “taxes”,  as defined in sec 89(5)
of the Insolvency Act 24 of 1936.    Since  the amount in question was not
paid in respect of such taxes it was not due and payable to the appellant
when the clearance certificates were withheld.    In  the result  the appellant
was obliged to repay it to the respondent, after which, if so advised, it  could
prove a claim therefor in terms of sec 44 of the Insolvency Act, which would
not be a secured claim but only a concurrent one.
[9] The respondent sought  orders  declaring that  the amounts due
in respect of  water supplied, sundries, rezoning and sewerage in respect of
the properties did not constitute “taxes” as contemplated in terms of sec
89(1),  read with sec 89(5),  of the Insolvency Act;  and that he had  not
been  obliged to pay such amounts  to the appellant  in order to obtain a
clearance  certificate in terms of sec 50 of the Local Government Ordinance

for the purpose of transferring the properties.   (The statutory provisions
referred to are quoted below.)
[10] He also sought orders for the repayment of the amounts  paid
in respect of water supplied, sundries, rezoning and sewerage, interest
thereon and costs.
[11] Holding that there was no need to decide the issues raised  by
the prayers for declaratory orders,  Flemming DJP, as has been said above,
ordered the appellant to repay to the respondent the sum of R131 311-72,
the computation of which is set out above.
[12] Flemming DJP held that the fact that the said amounts  were in
relation to debts which arose between the appellant as local government
authority  and a township owner was a prima facie indication that they  had
not been paid by the respondent liquidator to maintain property,  to conserve
property  or as a cost of realising property (see the reported judgment at
1081 B-C).
[13] He held further that when a company is liquidated because it

cannot pay its debts the nature of the claim of each of its creditors
undergoes a change in that the claim to payment of a certain amount of
money becomes a claim to payment of the appropriate dividend on the
proved part of the claim, proof of the claim being a prerequisite.   He also
said that a secured creditor is normally not entitled to have money out of
what he called “the liquidator’s general kitty” and that payment may be
enforced only when the distribution account is finalised, which in most cases
will be after the transfer of movable property (see 1081 D - E).
[14] He proceeded to decide that the appellant had not been entitled
to payment at the time when payment was received.  This was because the
respondent was not obliged to pay an amount otherwise than in accordance
with his finalised distribution account.  He had, however, made payment in
this matter because if he had not yielded to the appellant’s insistence on
payment, the liquidation process would have been stultified and the statutory
duty to liquidate could  not have been complied with (see 1081 G - I).   He
held that the payment made by the respondent in the present case did not

constitute a cost of   “realising any property” in terms of sec 89 (1)  of the
Insolvency Act because in making the payment the respondent had not
extinguished a debt but had handed over money which he claimed the
appellant had no right to be paid and which he proposed  reclaiming in Court
(see 1082 A - B).  On this basis the Court a quo  purported to distinguish the
decision of Botha J in De Wet en Andere NNO v Stadsraad van
Verwoerdburg 1978 (2) SA 86 (T) (to which I shall refer more fully in what
follows).   He also held that the appellant had succeeded in forcing payment
out of funds to which it had no claim and which the respondent was not
entitled in a distribution account to allocate to the appellant’s claim (see 1082
H - J).
[15] He concluded that sec 50 of the Local Government Ordinance,
which he assumed to be valid, did not affect the position (see 1083 A - 1085
A).
[16] It will be observed from the summary I have given of Flemming
DJP’s judgment that he found in favour of the respondent, not on the basis

contended for in the founding affidavit ( viz that amounts which are not
“taxes”, as defined in sec 89 (5) of the Insolvency Act,  cannot form the
basis for a refusal by a local authority to give a clearance certificate in  terms
of sec 50 of the Local Government Ordinance of the Transvaal) but on the
basis that,  where a company (or a close corporation) is  put into liquidation
because it cannot pay its debts, the nature of its creditors’ monetary claims
changes and they become  claims to payment of the appropriate dividend
after the claims have been proved and the distribution account finalised.
[17] Before the legal questions arising for decision  on appeal are
considered it is advisable to set out the relevant statutory provisions to which
reference was made during the argument.
[18] Sec 50 of the Local Government Ordinance 17 of 1939
(Transvaal), as amended, reads (as far as is material) as follows:

.
“50. (1)
No transfer of any land or of any right in land as
defined in section 1 of the Local Authorities
Rating Ordinance, 1977, within a municipality shall
be registered before any registration officer until a

written statement in the form set out in the Third
Schedule to this Ordinance and signed and
certified by the town clerk or other officer
authorised thereto by the council, shall be
produced to such registration officer, and unless
such statement shows –
(a)
that all amounts for a period of three years
immediately preceding the date of such
registration due in respect of such land or
right in land for sanitary services or so due
as basic charges for water or as other costs
for water where any water-closet system on
the ground concerned has been installed or
so due as basic charges for electricity in
terms of the provisions of this Ordinance
or any by-law or regulation:
(b)
that all amounts, if any, due for any
expenses incurred or advances made by the
council to the owner of such land or right
in land in terms of the provisions of section
81 (4), 83 (4) or 142 (1) of this Ordinance;
and`
(c)
that all amounts, if any, due for any
expenses incurred or advances made by the
council to the owner of such land or right
in land in terms of the provisions of section
81 (4), 83 (4) or 142 (1 of this Ordinance;
. . .
have been paid to the council: Provided that in the case
of transfer of immovable property by a trustee of an
insolvent estate,  the provisions of this section shall be
applied  subject to the provisions of section 89 of the

Insolvency Act, 1936 (Act 24 of 1936). . .
(2)
The town clerk or other officer authorized  by the
council shall furnish the statement referred to in
subsection (1) to the owner of the land or right in land or
his attorney or agent upon demand and upon payment by
him of a charge to be fixed by resolution of the council
but not exceeding two rand for each such statement.
(3)
Any amount due in terms of paragraph (a), (b), (c) or (d) of
subsection (1) shall be a charge upon the land or right in land
in respect of which such amount is owing and shall, subject to
the provisions of section 142 (6), be preferent to any mortgage
bond registered against such land or right in land subsequent to
the coming into operation of this Ordinance.”
[19] Sections 48(6) and 63(1) and (6) of the Town Planning and
Townships Ordinance 15 of 1986 (Transvaal) read (as far as is material) as
follows:
“48
(6)
. . . [A] contribution contemplated in subsection
(1)  payable in respect of any particular land  shall
be paid to the local authority before –
(a)  a written statement contemplated in
section  50 (1) of the Local Government
Ordinance, 1939, is furnished in respect of
the land . . .”
“63
(1)
Where an amendment scheme which is an

approved  scheme came into operation in terms of
section 58 (1), the authorized local authority may,
within a period of 30 days from the date of the
commencement of the scheme, by registered letter
direct the owner of land to which the scheme
relates to pay a contribution to it in respect of the
provision of –
(a)
the engineering services contemplated in Chapter V
where it will be necessary to enhance or improve such
services as a result of the commencement of the
amendment scheme;
(b)
open spaces or parks where the commencement of the
amendment scheme will bring about a higher residential
density,
and it shall state in that letter –
(i)    the amount of the contribution;
(ii)
particulars of the manner in which the
amount of the contribution was determined;
and
(iii)   the purpose for which the contribution is
required.
. . .
(6)     The provisions of section 48 (6) . . . shall apply
mutatis mutandis to the payment of a
contribution contemplated in subsection (1).”
[20] Section 89 (1), (4) and (5) of the Insolvency Act read as

follows:
“(1)
The cost of maintaining, conserving, and realizing
any property shall be paid out of the proceeds of
that property, if sufficient and if insufficient and
that property is subject to a special mortgage,
landlord’s legal hypothec, pledge, or right of
retention the deficiency shall be paid by those
creditors, pro rata, who have proved their claims
and who would have been entitled, in priority to
other persons, to payment of their claims out of
those proceeds if they had been sufficient to
cover the said cost and those claims.   The
trustee’s remuneration in respect of any such
property and a proportionate share of the costs
incurred by the trustee in giving security for his
proper administration of the estate, calculated on
the proceeds of the sale of the property, a
proportionate share of the Master’s fees, and if
the property is immovable, any tax as defined in
subsection (5) which is or will become due
thereon in respect of any period not exceeding
two years immediately preceding the date of the
sequestration of the estate in question and in
respect of the period from that date to the date of
the transfer of that property  by the trustee of that
estate, with any interest or penalty which may be

due on the said tax in respect of any such period,
shall form part of the costs of realization.
. . .
(4)
Notwithstanding the provisions of any law which
prohibits the transfer of any immovable   property
unless any tax as defined in subsection (5) due
thereon has been paid, that law shall not debar the
trustee of an insolvent estate from transferring any
immovable property in that estate for the purpose
of liquidating the estate, if he has paid the tax
which may have been due on that property in
respect of the periods mentioned in sub section
(1) and no preference shall be accorded to any
claim for such a tax in respect of any other
period.
(5)
For the purposes of subsections (1) and (4) ‘tax’
in relation to immovable property means any
amount payable periodically in respect of that
property to the State or for the benefit of a
provincial administration or to a body established
by or under the authority of any law in discharge
of a liability to make such periodical payments, if
that liability is an incident of the ownership of that
property.”
[21] Provisions similar to section 50 (1) of the Local

Government Ordinance 17 of 1939 (Transvaal) have been found in our law
for many years:    see Nel N O v Body Corporate of the Seaways Building
and Another 1996 (1) SA 131 (A) at 134 B.   In the Nel case,  at 140 E, they
are called “embargo provisions” and  most of the leading cases in which
what were called “the principles relating to such embargoes” are referred to
are  discussed.
[22] Before the legal questions argued on appeal are considered it
is   appropriate to say something about the original contention raised by the
respondent in his founding affidavit quoted in para [8] above.
[23] This   contention is clearly based on an erroneous assumption,
(one which was common  cause between the parties in Greater
Johannesburg Transitional Metropolitan Council v Galloway NO and
Others 1997 (1) SA 348 (W) at 356 A) viz that if any of the items prescribed
by sec 50 (1) of the Local Government Ordinance was not a “tax”, as
defined in sec 89 (5) of the Insolvency Act, the effect of sec 89 (4) was to
relieve a trustee or liquidator from payment thereof  as a prerequisite  for

obtaining  a clearance certificate.
[24] This broad assumption was clearly erroneous in my view
because it was based on an incorrect interpretation of sec 89 (4) of the
Insolvency Act.   Sec 89 (4), read with section 89 (1),  does not relieve a
trustee from paying debts mentioned in sec 50 (1) of the Ordinance unless
they are taxes due on the property in question in respect of any period not
exceeding two years before the sequestration or liquidation.   On its plain
meaning it limits the quasi-lien created by the embargo provision where the
debt in question is a tax as defined to the two year period mentioned.   It
imposes no limitation at all on the periods over which other debts mentioned
in such embargo provisions have become due: in fact it does not deal with
such debts.
[25] If one assumes, as Flemming DJP did and as I do (counsel for
the respondent having conceded that it was not open to him to contend
otherwise), that sec 50 is valid, then there is no basis on which it can be
contended that amounts not constituting “taxes” listed in sec 50 (1) did not

have to be paid by the respondent in order to obtain a clearance certificate.
See in this regard De Wet en Andere v Stadsraad van Verwoerdburg,
supra.   Thus, although the amounts which the respondent sought to have
repaid were not taxes, as he correctly alleged, the appellant was still entitled
in terms of section 50  to withhold a clearance certificate until they were paid.
[26] Counsel for the appellant contended that the court a quo erred
in holding that the nature of the claim of every creditor undergoes a
fundamental change upon liquidation or sequestration and that what was due
and owing beforehand was not due and owing after liquidation or
sequestration.   Counsel  relied on the Nel decision,  supra, in which it was
held (at 139 E - F) that after sequestration or liquidation the whole of a pre-
insolvency debt remained due and owing.   It followed that the amount paid
by the respondent to the appellant was (except for the sundries) due and
owing when paid and accordingly could not be reclaimed.
[27] I agree.   Once it is accepted, as it must, that the amounts paid
(save for the sundries) were due and owing and that the appellant was entitled

in terms of section 50 to require payment thereof as a prerequisite to its
issuing a clearance certificate  there is no legal basis for a claim that it be
repaid.  It is true that because of the concursus creditorum created by the
liquidation of the corporation the appellant could not have taken the initiative
in compelling  the respondent to pay  the amounts in question  unless it
proved a claim and then only after the finalisation of the liquidation and
distribution account and to the extent of the preference created by section
50 (3) of the Local Government Ordinance.   The respondent could  have
decided  not to realize the properties immediately and to file  a first
liquidation account which was not a final account (see section 92 (4) of the
Insolvency Act).   If the appellant had wished to benefit from the distribution
of the other assets belonging to the corporation which were already realized,
it would have had  to prove a claim for the amounts owing to it so as to
qualify for the payment of a dividend from the proceeds of those  assets.
[28] If the respondent, however, wished to transfer the properties to
the purchaser he had to pay the amounts due in respect of the rezoning fee,

the basic water and sewerage charges and the water consumption charges
in order to have the embargo created by section 50 of the Local Government
Ordinance lifted, if necessary taking a loan in order to do so.
[29] A point analogous to the one  presently under consideration was
considered and decided in favour of a creditor entitled to avail itself of an
embargo provision in Bosman’s Trustee v Land and Agricultural Bank of
SA and Registrar of Deeds, Vryburg, 1916 CPD 47.   The embargo
provision considered in that case was section 3 (4) of the Dipping Tanks
(Advances) Act 20 of 1911 (as modified by the Land Bank Act 18 of 1912)
which prohibited the transfer of a holding in respect of which the Registrar
of Deeds had made a note that an advance had been made for the erection
of a dipping tank, unless a receipt or certificate  issued by the Land Bank had
been produced to the Registrar for the interest or instalments payable in
respect of the holding.
[30] Gardiner J, who gave the judgment in the matter, said (at 56-7):
“If the Bank comes into Court as an applicant seeking to make
the trustee in insolvency do something, it must show that it has

a locus standi as a proved creditor.   But the fact that it has not
proved does not prevent it from maintaining its hold upon the
landed property.”
[31] An application brought by the trustee of the insolvent estate of
the owner of the holding for an order authorising the Registrar of Deeds to
pass transfer without the receipt or certificate required by section 3 (4) of
Act 20 of 1911 having been lodged with him was accordingly, in my view
correctly, refused.
[32] An amount paid in order to enable property sold by a trustee or
liquidator to be transferred to the buyer is included in the cost “of
maintaining, conserving and realising” property to which reference is made
in sec 89(1) of the Insolvency Act:   see De Wet en Andere NNO v
Stadsraad van Verwoerdburg, supra , approved by this Court in the Nel
decision,  supra at 141 A.
[33] I cannot, with respect, agree  that the De Wet case can be
distinguished as Flemming DJP attempted to do.   It concerned a payment
of endowment moneys  which were demanded by a local authority in terms

of sec 50(1)(d) of the Local Government Ordinance before the issue of a
clearance certificate.   In holding that the payment of the endowment moneys
constituted part of the costs of realising property,  Botha J said (at 100 H -
101 C):
“Wat is die gewone betekenis van ‘die koste van tegeldemaking
van goed’?   Daaroor kan daar na my mening geen moeilikheid
wees nie.   Die ‘tegeldemaking van goed’ beteken klaarblyklik
die omskepping van daardie goed in geld; in die huidige
verband, is dit die verkoping en oordrag van grond vir
kontantgeld.   Die ‘koste’ van die tegeldemaking beteken ewe
klaarblyklik die uitgawes wat aangegaan word om die proses
van tegeldemaking te bewerkstellig en te voltooi.   Indien die
bepaling ten opsigte van die betaalbaarheid van belasting
alvorens transport van grond gegee  kan word, soos vervat in
art 50 (1) (b) van die Plaaslike Bestuursordonnansie, bestaan
het sonder enige verwysing na art 89 van die Insolvensiewet in
art 50(1), en art 89 nie verwys het na belasting nie, dan sou dit
na my mening nie te betwyfel gewees het nie dat die belasting
sou geval het binne die bestek van die uitdrukking ‘die koste
van tegeldemaking’ van grond.  Dit is so omdat die
tegeldemaking, bestaande uit die verkoping en oordrag van die
grond, nie sou kon geskied sonder die betaling van die belasting
nie; dit is dus `n uitgawe wat noodsaaklik is om die
tegeldemaking te bewerkstellig en te voltooi.   Presies dieselfde

benadering is van toepassing op die skenkingsgelde van art 50
(1) (d) van die Plaaslike Bestuursordonnansie: dit word
betaalbaar by die verkoping van die grond en moet betaal word
voordat oordrag gegee kan word; dit is dus `n noodsaaklike
uitgawe in die proses van tegeldemaking van die grond.”
[34] In this case also the liquidator paid the amounts in question in
order to be able to transfer the properties, in other words, as a necessary
expense in the process of realising the properties.   The fact that he hoped
to be able to recover the amounts paid does not detract from the fact that
they were paid in order to enable him to transfer the properties.
[35] In the circumstances I am satisfied that the reasons given by
Flemming DJP for his decision that the appellant had to repay to the
respondent the amounts paid over by him  in respect of the rezoning fee, the
basic water and sewerage charges and the water consumption charges before
the clearance certificate was issued cannot be supported.
[36] Counsel for the respondent did not endeavour to defend the
reasoning in the judgment of the court  a quo.  He argued that the respondent
was obliged to pay the amounts in question before obtaining the clearance

certificate but that he was entitled to claim repayment of them immediately
thereafter.   For the reasons I have given the amounts in question were due
when they were paid and no basis can exist for ordering the appellant to
repay them to the respondent.
[37] I am accordingly of the opinion that the appeal in this matter
should (save in respect of the sundries) succeed with costs, including those
occasioned by the employment of two counsel.
[38] As far as the order made in the Court a quo is concerned it is
clear that the only amount which the appellant should have been ordered to
repay was the sum of R1191-35 in respect of the sundries.   The success
achieved by the respondent is very small in relation to the total amount
claimed and the main contentions advanced on behalf of the respondent have
been rejected.   In my view it would have been appropriate for the Court a
quo, despite the respondent’s insignificant success in obtaining an order for
repayment of the sundries, to order the respondent to pay the costs of the
application.

[39] The following order is made:
A.
The appeal is upheld with costs, including  those occasioned
by the employment of two counsel.
B.
The order of the Court a quo is set aside and substituted
therefor is the following:
“1.     The respondent  is ordered to pay to the applicant:
(a)
an amount of R1 191-35; and
(b)     interest at the rate of 15.5% per year on that
amount from 15 November 1996 to date of
payment.
2.
The applicant is ordered to pay the respondent’s costs.”

____________________
I G FARLAM
NIENABER     JA)
ZULMAN        JA)
STREICHER   JA)       CONCUR
MELUNSKY  AJA)