THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 348/2012
Reportable

In the matter between:

SHAWN MARK FEGEN
FIRST APPELLANT

BRENDA YVONNE FLORENCE FEGEN
SECOND APPELLANT

and

DOUGLAS MPHAKATHI
RESPONDENT

Neutral citation:
Fegen v Mphakathi (348/2012) [2013] ZASCA 100 (9
September 2013)

Coram:
Navsa, Tshiqi & Pillay JJA & Van der Merwe & Swain
AJJA

Heard:
16 August 2013

Delivered:
9 September 2013

Summary:
Successive
sales
of
immovable
properties
–
prescription raised by a second purchaser in relation to first purchaser’s
right to enforce registration of transfer – onus discussed – held that there
had been an ongoing acknowledgement of liability by the seller to the first
purchaser to transfer as against payment of the purchase price –
renunciation of benefit of prescription – second sale set aside by high
court on basis that the second purchaser had knowledge of prior sale –
held that the first purchaser had established on balance of probabilities
that second purchaser had knowledge in the form of dolus eventualis of
the prior right to obtain transfer of the property – second purchaser
wilfully shut his eyes to the possibility of the prior rights and deliberately
refrained from ascertaining the true position – Appeal against decision of
the Eastern Cape High Court accordingly dismissed.

ORDER

On appeal from: Eastern Cape High Court, Mthatha (Miller J sitting as court of
first instance):

1. The appeal is dismissed.
2. The appellants are ordered to pay the respondent’s costs of the appeal.

JUDGMENT
_______________________________________________________________
NAVSA ADP & SWAIN AJA (TSHIQI & PILLAY JJA & VAN DER MERWE
AJA concurring):
[1] The present dispute was caused ostensibly by the conduct of Justice
Sigcau, the King of the Pondos (the King), selling two immovable properties
described as erf 711 and erf 712 Port St John’s, successively. First, he sold
those properties to Mr Douglas Mphakathi (Mphakathi) and thereafter, prompted
by the first appellant, Mr Shawn Fegen (Fegen), to him and his wife, the second
appellant, Mrs Brenda Fegen (Mrs Fegen). The King subsequently transferred
the properties into their names.
[2] When the Fegens as a consequence gave notice to Mphakathi, who
occupied the properties, to vacate, he responded by way of an application to the
Eastern Cape High Court, Mthatha, seeking orders declaring the second sales
null and void and setting aside the agreements concluded between the King
and the Fegens, as well as the transfer of these properties to them.
[3] That application was opposed by the Fegens but the King, who was
joined as third respondent, chose to take no part in the proceedings. Mphakathi

alleged that the Fegens were aware of the prior sale agreements between him
and the King and acted mala fide in concluding the subsequent sale
agreements. The application was referred for the hearing of oral evidence on 2
December 2004, solely on the issue of whether the Fegens ‘were fraudulent
and/or mala fide’ when they entered into the subsequent sale agreements.
[4] The hearing commenced before the High Court (Miller J) on 25 October
2005 and was subsequently adjourned on 24 November 2005 to afford the
Fegens an opportunity to obtain the evidence of the wife of the King, who was
referred to as the Queen of the Pondos. The matter then resumed after a delay
of almost five years on 19 July 2010, at which stage the Fegens no longer
wished to lead any further evidence, but raised two further issues which it was
agreed would be dealt with on affidavit. These issues were that Mphakathi had
allegedly tampered with the sale agreement concluded between him and the
King in respect of erf 711, which rendered ‘the validity of the agreement and the
[credibility] of the applicant highly questionable’, and that the respondent’s claim
for transfer of the properties against the King had prescribed. We will in due
course comment on prescription being raised so late in the day.
[5] The court below held that the explanation advanced by Mphakathi as to
the alteration of the sale agreement was not so improbable that it could be
rejected out of hand as untruthful. For present purposes, that aspect need
detain us no further. The court below also held that although Mphakathi’s claim
for transfer of the properties as against the King had prescribed, this had ‘no
bearing on the question whether the sale and the transfer of the properties’ to
the appellants were unlawful or not and did not constitute a defence to the claim
of the respondent. On the merits of Mphakathi’s claim, it held that the
probabilities were that the Fegens took delivery of the properties with
knowledge of their previous sale to Mphakathi. The court below accordingly
granted an order declaring the agreements of sale concluded between the
Fegens and the King void and of no force and effect and set aside the transfer
of the properties to them.

[6] With the leave of the court below the Fegens appeal that judgment and
associated orders. Needless to say, the King did not appeal. The main grounds
advanced on appeal were as follows:
6.1
The court below had erred in finding that the prescription of Mphakathi’s
claim to demand transfer of the property as against the King had no bearing
upon the relief sought by Mphakathi as against the Fegens. In addition, the
notice of motion in these proceedings had not interrupted the running of
prescription, because it did not constitute a process in which Mphakathi claimed
‘payment of the debt’ in terms of s 15(1) of the Prescription Act 68 of 1969 (the
Act) – the debt being Mphakathi’s right to claim transfer of the properties. It was
contended that the motion proceedings in the court below were not a
preliminary step in the enforcement of Mphakathi’s claim against the King for
transfer of the properties. It was submitted that at the time when the present
proceedings were instituted, Mphakathi did not have a complete cause of action
for transfer, because he was at that date in default of his payment obligations in
terms of the agreements concluded with the King.
6.2
The court below had erred in deciding that Mphakathi had discharged
the onus of proving on a balance of probabilities that the Fegens had taken
delivery of the properties with knowledge of the prior sale of the properties to
Mphakathi.
[7] The details upon which the present appeal is to be decided are set out
hereafter in this and the paragraphs that follow. On 15 June 2000 Mphakathi
purchased the two properties from the King. The purchase price for erf 711 Port
St John’s was R150 000 and for erf 712 R110 000. Deposits of R20 000 in
respect of each sale were required and duly paid by Mphakathi. In terms of the
agreements he was entitled to take immediate occupation of the properties. He
intended, with the knowledge and approval of the King, to cultivate crops to
enable him to produce income to pay the balance of the purchase price, by
instalments of R20 000 every three months.

[8] However, Mphakathi was thwarted. He was unable to take occupation
of erf 711 as it was unlawfully occupied by an entity described as Khulisanani
Farming Project, which comprised a number of people who were cultivating the
property. In October 2001 he launched proceedings which culminated in the
grant of a Writ of Ejectment by the high court on 9 July 2003, almost two years
later. There is no gainsaying Mphakathi’s assertion that he had agreed with the
King to institute those proceedings and that the costs incurred by him in doing
so would be deducted from the purchase price. Mphakathi began cultivating
crops on the property during the ploughing season towards the end of 2003.
[9] Although the precise month is in dispute between Fegen and
Mphakathi, it is common cause that Fegen had visited Mphakathi on the
properties during this period and that a conversation had taken place between
them. What is in dispute is the precise nature of those discussions. Fegen
maintained that Mphakathi had said emphatically that he was the owner of the
properties, whereas Mphakathi maintained that he had said he was in the
process of buying the properties. According to Fegen any misunderstanding
was not caused by him but was as a result of the intermittent use of a Xhosa
interpreter. Mphakathi and the interpreter, both of whom testified in the court
below, were strenuous in their denial of any misunderstanding.
[10] What is clear from his evidence is that Fegen knew before the
discussions referred to in the previous paragraph had taken place that
Mphakathi had taken steps to evict unlawful occupiers from erf 711. It is equally
clear that a Mr Faber, from whom Fegen had bought a neighbouring piece of
land, had also told him about these evictions. Fegen said he would accordingly
not deny that Mphakathi had been involved in protracted litigation to evict the
occupiers. Mr Faber, when asked by Fegen who was the owner of the
properties, replied that he thought it was Mphakathi. Fegen said that when he
met Mphakathi for the first time he saw that the properties had been cultivated
and that there were crops. He had commended Mphakathi for the good work he
was doing. Thus it is clear that the picture that presented itself to Fegen was
one of Mphakathi being firmly ensconced on the land.

[11] It is important to note that it is undisputed that Fegen had, during the
discussions referred to above, offered to buy the properties from Mphakathi and
to pay more for them than he had paid, but that even on that basis Mphakathi
had refused to sell.
[12] Fegen stated that he had believed Mphakathi when the latter had said
that he was the owner of the properties. According to Fegen he then went about
establishing whether there was another property in the vicinity owned by the
King. When he approached the King he was referred to the Queen who told him
that they had various riverfront properties for sale. It is apparent that Fegen’s
dealings were mainly with the Queen.
[13] Fegen, apparently to obtain certainty and clarity, contacted an estate
agent, Ms Debbie Fourie, who assisted him to examine maps of the area and to
locate riverfront erven. After locating the position of these properties, including
erven 711 and 712, Fegen faxed copies of the relevant map to the Queen
indicating to her that these two erven were the properties in respect of which
Mphakathi claimed ownership. The Queen denied that Mphakathi owned those
properties and accused him of lying. She informed Fegen that Mphakathi was
leasing the properties from the King. Fegen asked for a copy of the lease, which
the Queen could not produce. According to Fegen she did, however, inform him
that Mphakathi had paid a ‘little deposit’. No clarification was sought or provided
in regard to this aspect. Fegen did not explore the question of ownership or of
the lease any further with the Queen. He adopted the attitude that ‘it’s got
nothing to do with me’.
[14] Notwithstanding this avowed posture, Fegen nevertheless approached
the Department of Land Affairs in Mthatha to establish who owned those
properties. They informed him that the properties were registered in the name of
the King. Fegen explained that these enquiries and responses emboldened him
to approach the Queen and conclude agreements of sale with the King
apparently without meeting him, for the purchase of erf 711 and erf 712 for the

sum of R30 000. However, the deed of transfer in respect of the properties
reflects the price as R25 000. This anomaly remains unexplained.
[15] Fegen did not return to Mphakathi to take up the question of ownership
with him, as one would have expected him to. He testified that he did not
consider that he had a duty to do so. Fegen conceded that if he had gone to
Mphakathi and told him what the Queen had said, Mphakathi could have shown
him the sale agreements. He would not have bought the properties and the
present litigation could have been avoided. Fegen acknowledged that he should
have gone back to Mphakathi with the information he had obtained concerning
the properties. He had never told his attorneys about the conflict between what
the Queen and Mphakathi had said concerning the properties. Fegen said he
had no idea what the agreement was between Mphakathi and the King because
he did not want to go and involve himself in other people’s agreements.
[16] The facts set out in the preceding paragraphs are material inter alia to a
conclusion on the bona fides of the Fegens. Before dealing with the conclusions
of the court below in this regard, it is necessary to deal with the prescription
point raised on behalf of the Fegens.
[17] As pointed out earlier, this issue was raised five years after the
conclusion of oral evidence. It will be recalled that the referral to oral evidence
was restricted to the issue of bona fides on the part of the Fegens. It is
significant to note that during those proceedings the following exchanges
between the parties’ legal representatives, Mphakathi and Miller J1 took place in
relation to the question of whether the agreements between Mphakathi and the
King remained extant:
‘Mr Hobbs: And have you from your – the income you derive from your farming have
you paid any money to the king, the third respondent?

1 These exchanges occurred during cross-examination of Mphakathi.

Mr Dukada: M’Lord, I’m – with due respect, I’m objecting to this type of questioning. My
humble submission is that it’s not relevant to the case that is before you,
M’Lord, the – that is the – that is another matter, the question of the sale
between the applicant and the third respondent, with due respect, M’Lord.
Mr Hobbs: M’Lord, with respect, the man is relying – he’s seeking to establish that he
has an agreement which is binding. I think it’s trite law, if one wants to seek
to enforce an agreement that you have to tender or perform your
obligations in terms of that agreement too. . . .
Mr Dukada: . . . .The question of this – the performance or the non-performance under
the contract, that is an issue that is between the seller – the third
respondent and the applicant.
Court: Yes, but is that contract still in existence?
. . .
Court: . . . . I’m just asking you, is there an allegation that is still in – is it common
cause? Let’s put it that way, that it’s in existence?
Mr Dukada: As far as the papers are concerned it’s common cause, there’s nothing
which raises that as an issue – it’s not raised as an issue. Otherwise it
could – supposing at the end of the day, M’Lord, Your Lordship would let’s
say set aside the deed of transfers here, then we get for another second
stab(?) for the applicant to enforce his rights. Then it’s only when he
enforces his rights then that he would meet – if any, he would meet the . . .
(intervention).
Court: Yes, but you see, we have here a situation where the third respondent is not
represented here, right?
. . .
Court: So my prime concern is whether – and if I’m told that it’s common cause that
that contract’s in existence, that’s fine as far as I’m concerned. But I don’t want
to go ahead not knowing whether or not that contract – those contracts, when I
say still in existence, have not been cancelled.
Mr Dukada: My observation, M’Lord, is that fortunately in this case the seller – the third
respondent, the honourable king, was joined – he was joined. He’s the
party who was given an opportunity – if he could say, “At the time I
concluded the contract of sale with the first respondent, the contract of sale

between applicant and myself has been cancelled and cancelled . . .
(indistinct).
. . .
Court: Look, I think we must just proceed on the basis that that contract is still in
existence.’
[18] As explained earlier, prescription was raised five years after evidence
was concluded on the issue of the bona fides of the Fegens. The onus is on a
party alleging that an obligation has been extinguished by prescription to plead
and prove the necessary averments in this regard.2  It is now necessary to have
regard to what was stated in relation to the existence of the contract by
Mphakathi in his founding affidavit by the Fegens in their answering affidavit, by
the King in his affidavit in support of the eviction proceedings and by the Fegens
in the supplementary affidavit raising the prescription point and Mphakathi’s
response thereto.
[19] In his founding affidavit Mphakathi stated the following in respect of the
agreements with the King:
‘[They are] still in force as they had not been cancelled nor had they lapsed and in fact .
. . are open ended and do not have an expiry date.’
The Fegens’ response to this allegation in the answering affidavit was as
follows:
‘Whilst the applicant may have had a personal right against breach of the said
agreements by the third respondent, that would not affect the rights [of] innocent third
parties who unbeknown to themselves, entered into agreements with the third
respondents which infringe on the applicant’s right.’ (Emphasis added – in relation at
that stage to the only live issue between the parties.)

2 See Gericke v Sack 1978 (1) SA 821 (A) at 827H-828A and Duvenhage v Eerste Nasionale
Bank van SA Bpk [2005] 4 All SA 41 (N) at 60A-B and J Saner Prescription in South African
Law (2012) at 3-139.

The King, in support of Mphakathi’s application to evict the unlawful occupants
of erf 711, said the following concerning the continued existence and
enforceability of the agreement:
‘I must state further that I sold Erf 711 PORT ST JOHNS to Mr MPHAKATHI as I
owned it and the Deed of Grant in respect of this erf is enclosed. . . ‘
The King’s affidavit is dated 4 April 2001. There is nothing to indicate that this
view of the King’s viz-a-viz Mphakathi in relation to the continued existence and
enforceability of the agreements has since been recanted. If anything, the
indications are to the contrary. We will in due course deal with the relevance of
the second sale in relation thereto. The King, it appears, pointedly did not
participate in the proceedings in the court below and his wife did not, as
presaged by the Fegens, side with them by testifying in support of their case.
[20] It is clear from what is set out in the preceding paragraphs that at the
end of the oral evidence proceedings the continued existence and enforceability
of the agreements between Mphakathi and the King were not in issue.
[21] In the affidavit filed half a decade later, the Fegens say the following:
‘12. The agreement of sale for Erf 711 provides for payment of the purchase price of
R150 000.00 to be made by way of an initial deposit of R20 000.00 and the
balance of R130 000.00 payable in instalments of R20 000.00 every three months
commencing 31 October 2000 until the balance is paid in full. The full purchase
price would consequently become payable by Applicant on 30 April 2002.
13. The sale agreement for Erf 712 contains a similar provision for payment. In terms of
this agreement, the purchase price of R110 000.00 was payable by way of an
immediate deposit of R20 000.00 and the balance of R90 000.00 to be paid by
means of instalments of R20 000.00 commencing 31 October 2000 and thereafter
every three months until the balance is paid in full. Consequently, the full purchase
price would become payable by 31 October 2001.
14. On Applicant’s own version in both his founding affidavit and the evidence led, all
he has paid is the deposit in respect of both agreements namely R40 000.00. No
further payments have been made. Applicant is apparently waiting for a loan from
the Land Bank to materialise.

15. The transfer clause in both agreements is exactly the same. Transfer to the
purchaser shall be effected as near as possible to the date of payment of the full
purchase price.
16. It is submitted that Applicant’s right to claim transfer of both properties from the
King has prescribed. In a respect of Erf 712, the right prescribed on 1 November
2004 and in respect of Erf 711, the right prescribed on 1 May 2005. I say this
because:
16.1 the aforesaid dates reflect a period of three years from the date that Applicant was
obliged to pay the purchase price in full;
16.2 Applicant has taken no steps against the King within the three year period
pertaining to each agreement to compel him to effect transfer.’
Ultimately, in his affidavit, Mphakathi’s response was that the enforceability and
continued existence of the agreements was an issue between himself and the
King and did not concern the Fegens and that prescription was not a valid
defence to his application to have the agreements between him and the King
set aside. Importantly, Mphakathi stated the following in his response:
. . . ‘I have been advised by the Land Bank that the bank is ready to advance me
money for the purchase price as soon as this case is finalized.’
[22] There is authority for the proposition that the invoking of prescription is
not confined to an action between the original creditor and debtor in terms of s
17(2) of the act. In this regard see Lipschitz v Dechamps Textiles GMBH and
another 1978 (4) SA 427 (C). It is on that case that the court below relied in
holding that prescription in relation to Mphakathi’s right to claim transfer from
the King could be raised by the Fegens. The court below went on to hold that
that claim had prescribed and that there was no indication that the King had at
material times acknowledged liability to transfer the properties to Mphakathi.
Miller J went on to state that Mphakathi had also failed to claim transfer from the
King. Paradoxically, Miller J then went on to hold that prescription was irrelevant
to Mphakathi’s claim for cancellation and transfer as his claim was based on the
prior knowledge of the Fegens concerning his agreement with the King.

[23] Prescription can, in terms of s 14 of the Act, be interrupted by an
express or tacit acknowledgement of liability by a debtor to a creditor which, in
the present case, would be the King in relation to Mphakathi in respect of the
transfer of the properties. What s 14 contemplates is an acknowledgment of
liability to the creditor or his agent, see Pentz v Government of the Republic of
South Africa 1983 (3) SA 584 (A) at 594B-C. It is also well established that the
benefits of prescription, once it has been completed, can be renounced. It is
significant to note that such renunciation is usually distinct from the concept of
waiver. For the distinction between an acknowledgement of debt interrupting
prescription and renunciation of the benefits of prescription see Brown v Courier
1963 (3) SA 325 (N) at 329-330.
[24] The agreements between Mphakathi and the King envisaged immediate
occupation and the right of the purchaser to claim transfer would only arise after
payment of the full purchase price. In the present case it is evident from the
details set out earlier in the judgment that the King was content to have
Mphakathi take the necessary steps to evict the unlawful occupiers which, as
pointed out, was a process that took close to two years. Furthermore, the King
allowed Mphakathi to continue in undisturbed occupation up until Mphakathi
received a letter to vacate from Fegen’s attorney and to engage in what
appears to be fairly large scale farming. It is abundantly clear that the King had
supported the application to evict the unlawful occupiers and even when the
application leading up to this appeal was launched, the King was equally happy
not to enter the fray. In our view, the court below erred in concluding that there
was no acceptable evidence upon which to base a conclusion that prescription
(if it were held to apply) had not been interrupted by an acknowledgement by
the King of the debt, and in not considering that ultimately the benefits of
prescription might have been renounced.

[25] Mphakathi was not a typically idle, careless or negligent creditor.3 He
initially had to contend with not being given vacuo possesio. It took costly
litigation and a long period of time before Mphakathi could take occupation of
the properties he had purchased. Then he had to put up with the King
purporting to sell the properties to the Fegens without notice to him. He had to
litigate for a second time over an ever lengthier period – almost a decade – to
defend his right to finally obtain transfer. The King was joined as a party to that
litigation but chose not to contest Mphakathi’s asserted right to set aside the
transfer as part of the process of finally obtaining transfer. As far as Mphakathi
is concerned the King left him under no illusion that the agreement was still
alive up until he received the demand from the Fegens’ attorney to vacate the
properties. That notwithstanding, the King did not take any steps to place him
on terms or to terminate the contract. It will be recalled that Fegen initially dealt
with the Queen and not the King. It cannot be over-emphasised that at no
stage, until the notice to vacate, which fell within the prescriptive period, did the
King intimate to Mphakathi or conduct himself so as to indicate that he was not
acknowledging his obligation to give transfer upon payment of the purchase
price, nor did he take any of the above steps. To sum up: There was a long-
standing acknowledgement of liability to transfer upon payment of the purchase
price, up until the letter to vacate. When proceedings were lodged in the court
below, the King chose not to contest an assertion of Mphakathi’s right to
demand transfer against payment of the purchase price. The King must
therefore be considered to have either continued his acknowledgment of liability
to transfer, alternatively renounced his right to rely upon prescription. For the
reasons set out above, the defence of prescription must fail. It could, with some
justification be said that prescription as an issue in this case was diversionary.

3 See J Saner Prescription in South African Law op cit., 1-3 para 1.2 and the authorities there
cited, especially Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC).

[26] In the light of these conclusions it is not necessary to deal with the
submission on behalf of the Fegens, referred to in paragraph 6.1 above, namely
that the application in the court below had not interrupted prescription in relation
to Mphakathi’s right to claim transfer from the King.
[27] There is no merit in the submission by counsel representing the Fegens
that because of the parol evidence rule, prescription had to be applied in
absolute terms in relation to the date upon which failure to pay the first
instalment was specified in each of the agreements. Incidentally, this point was
raised before us by counsel on behalf of the Fegens and had not been taken
until the eleventh hour in argument. The submission is unfounded for the
reasons that follow. Mphakathi was not put on notice, in terms of the
agreements, to comply with specified obligations, nor in the light of the King’s
failure to give him undisturbed possession, could this have occurred within the
time periods provided for. In any event, in terms of the agreement, the King had
a choice to cancel or enforce the agreement in the event of a failure by
Mphakathi to meet his obligations and in respect of the granting of indulgences.
As set out above, it is clear that the King, at all relevant times, in effect,
acknowledged liability to effect transfer of the properties upon payment of the
balance of the purchase price or renounced the benefits of prescription. The
question of a waiver of contractual rights does not arise in the present case.
[28] Returning to the question of bona fides, we are of the view that the
court below cannot be faulted in its conclusion that on the probabilities the
Fegens must have known that there had been a prior agreement between the
King and Mphakathi for the sale of the properties.
[29] In Meridian Bay Restaurant (Pty) Ltd & others v Mitchell NO 2011 (4)
SA 1 (SCA) para 18, the following appears:
‘Thus C, the acquirer of the real right, does not need to have actual knowledge of B’s
prior right. It suffices that C subjectively foresaw the possibility of the existence of B’s
personal right but proceeded with the acquisition of his real right regardless of the
consequences to B’s prior personal right.’

Ponnan JA added that the reference to dolus eventualis in the judgment in
Associated South African Bakeries (Pty) Ltd v Oryx and Vereinigte Bäckereien
(Pty) Ltd & andere 1982 (3) SA 893 (A) echoed what was said by Ogilvie
Thompson JA in Grant v Stonestreet 1968 (4) SA 1 (A) at 20F where he said
the following:
‘. . . if a person wilfully shuts his eyes and declines to see what is perfectly obvious, he
must be held to have had actual notice . . . .’
[30] Applying that dictum to the following facts, the compelling conclusion is
that Fegen at the very least subjectively foresaw the possibility that the King
had previously sold the properties to Mphakathi, but purchased them reckless of
the consequences to Mphakathi’s prior rights. Fegen wilfully shut his eyes to the
possibility of Mphakathi’s prior rights and deliberately refrained from
ascertaining the true position from Mphakathi.
30.1   Fegen was aware that Mphakathi vigorously asserted his right to occupy
the properties.
30.2   Mphakathi permanently occupied the properties at all times by farming
them.
30.3   Fegen had offered to buy the properties from Mphakathi and pay more for
them than Mphakathi had paid but this was refused by Mphakathi.
30.4   The explanation given by the Queen to Fegen as to the basis upon which
Mphakathi occupied the properties was extremely vague.
30.5   Fegen’s attitude was that any agreement between the King and
Mphakathi had nothing to do with him.
30.6   Fegen was unable to advance any plausible reason why he did not ask
Mphakathi about the Queen’s statements concerning his right to occupy the
properties.

[31] There was some debate before us what the consequences would be for
the parties if the conclusion by the court below was confirmed. As debated
before us and accepted by the parties it is beyond the scope of this judgment to
enter into that debate.
[32] In the light of the above the following order is made:
1. The appeal is dismissed.
2. The appellants are ordered to pay the respondent’s costs of the appeal.

_________________________
M S NAVSA
ACTING DEPUTY PRESIDENT

K G B SWAIN

ACTING JUDGE OF APPEAL

APPEARANCES:
FOR APPELLANT:
N J GRAVES SC
VENN NEMETH & HART,
PIETERMARITZBURG
McINTYRE & VAN DER POST,
BLOEMFONTEIN

FOR RESPONDENT:
A R DUMINY

DZ DUKADA & CO ING, MTHATHA

MOLEFI THOABALA, BLOEMFONTEIN