THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number :  165/2001

In the matter between :

DE BEERS MARINE (PTY) LTD

APPELLANT
First applicant in the Court a quo
and

THE COMMISSIONER FOR THE SOUTH
AFRICAN REVENUE SERVICE

RESPONDENT

First respondent in the Court a quo

CORAM :

NIENABER, ZULMAN JJA and LEWIS AJA
HEARD :

3 MAY 2002
DELIVERED :

20 MAY 2002

Summary:  Section 20(4) of the Customs and Excise Act 92 of 1964 -
supply of bunker fuel as stores to South African vessels on the high seas -
vessels exploring for off-shore diamonds off the coast of Namibia -
whether such supply qualifies as ‘export’ and hence not dutiable - delivery
of fuel over the South African continental shelf, as defined in the Maritime
Zones Act 15 of 1994 - whether for purposes of s 5(b) of the Customs and
Excise Act that is ‘deemed to be part of the Republic’ - whether
consumption of fuel over the Namibian continental shelf qualifies as ‘home
consumption’ for purposes of s 20(4) of the Customs and Excise Act,
inasmuch as Namibia forms part of the ‘common  customs area’ with
South Africa.

JUDGMENT

NIENABER  JA/

NIENABER JA :
[1] What  does  the  word  ‘export’  mean  in  the  context of s 20(4)(d)
of the Customs and Excise Act 92 of 1964 (‘the Customs Act’)?  Does it
simply mean ‘take out of the Republic of South Africa’ (as the appellant
((‘DBM’)) contends) or does it rather mean ‘take out of the Republic of
South Africa for import into another country’ (as the respondent ((‘the
Commissioner’)) contends?  Delivery from a warehouse, as defined, and
entered for the purpose of ‘export’, does not attract excise duties and fuel
levies in terms of the charging provisions of the Customs Act.  But if the
latter of the two interpretations is the correct one there was in fact no
export,  and  hence  such  duties  and  levies  were  duly  payable,  when
bunker  fuel,  although  entered for export, was supplied on the high seas
by a tanker ex Cape Town to a number of specially equipped marine
vessels as stores.  These vessels  belonged to DBM and were engaged in

the exploration for, and the recovery of, diamonds from the seabed off the
coast of Namibia.  That, whether a supply of this sort was a form of
‘export’, was the principal dispute between the parties before the High
Court of the Cape Provincial Division.  The Court a quo (Duminy AJ)
decided the matter in favour of the Commissioner.  Hence this appeal,
brought with its leave.
[2] The factual setting to the problem is unusual and its statutory setting
complex.  The facts, somewhat simplified, are these:
2.1
DBM is a company duly registered in South Africa with its
principal  place  of  business  in  Cape  Town.   That business
consists of providing contracting and consulting services in the
exploration, evaluation, mining and management of underwater
diamond deposits.   For that purpose DBM owns five vessels,
described as mining vessels, carrying vertical drilling equipment for

the recovery of diamond-bearing gravels from the seabed.  One of
the vessels uses a seabed crawler for horizontal mining.  An airlift
suction conveys diamond-bearing gravels from the crawler to the
vessel.  A sixth vessel, a geosurvey vessel, is engaged primarily in
the collection of technical information by means of side scan sonar,
seismics, coring grab sampling and visual survey.  The data collected
by this vehicle is used to produce geological maps of the seabed.  All
six vessels are conventional ships in the sense that they have hulls,
are self-propelled, and are designed for navigation.  They move
under their own power, to and from and within the areas where they
operate.
2.2
The mining operations of these vessels are conducted in what
are termed ‘blocks’ and ‘sub-blocks’.  Marine concession areas are
divided in a grid pattern of blocks.  Each block is divided into sub-

blocks in extent 50m x 50m.  A mining vessel will complete drilling
operations in a sub-block before moving to the next sub-block.  The
vessel drops four anchors, two ahead and two astern.  Drilling is
done whilst the vessel is so positioned.  In each sub-block a number
of holes are drilled in overlapping patterns so as to ensure that the
entire sub-block is covered.  The vessel is moved within the sub-
block into new positions by using its anchor chains and/or its own
engines which are always kept running.  Drilling of each hole in the
normal course of events takes approximately 15 minutes whereafter
the vessel is repositioned.
2.3
The vessels sometimes spend more than two years at sea
before returning to Cape Town, their port of registration, for major
refits.  The refuelling of the vessels also takes place at sea.
2.4
The bunker fuel on which the excise duties and fuel levies

were raised by the Commissioner in this case were delivered to
DBM’s vessels by a tanker, the Argun, belonging to another party.
The relevant deliveries, termed ‘bunker drops’, took place during
three voyages in 1997.  In each case the Argun sailed from Cape
Town after obtaining the fuel from Caltex Oil (SA) (Pty) Ltd
(‘Caltex’).
2.5
Prior to the delivery of the fuel by Caltex it was stored by
Caltex at a site licensed by the Commissioner in terms of s 19 of the
Customs Act as a ‘customs warehouse’.
2.6
In the case of each of the relevant three voyages a Form DA25
was completed and submitted to the Controller (being the officer
designated by the Commissioner to act on his behalf) in respect of
the fuel removed from Caltex’s warehouse.   The bunkers were in
each case entered ‘for export’ and the ‘country of final destination’

was variously reflected as being the Congo or Gabon.
2.7
The bunker drops took place at sea.  The location where such
delivery took place, referred to in the papers as the ‘rendezvous
point’, was deliberately chosen at a distance of approximately 50
nautical miles from the South African coast and at a depth of
approximately 180 metres.  The reason for this arrangement is
explained in DBM’s founding affidavit as follows:
‘35.1 De Beers Marine has always had a good relationship with the
South African Department of Transport.  During 1993 De
Beers Marine had extensive discussions with the Department
regarding the re-fuelling of its vessels at sea.  It was felt that if
a pollution problem should arise during any bunker drop, it
would be preferable for De Beers Marine to deal with the
South African authorities, rather than the Namibian authorities.

35.2 Accordingly, in 1993 De Beers Marine chose the position 29º
28 min south and 15º 49 min east as a rendezvous point for
bunkering at sea.  The said co-ordinates were chosen because
they were 50 miles offshore and thus outside the oil pollution
zone and just south of the boundary line.  This position was

also a point relatively close to where most of the De Beers
Marine vessels were working.’

(Elsewhere  in  the founding affidavit the ‘boundary line’ is
described as the boundary between the northern-most South African
marine concessions and the southern-most Namibian marine
concessions.)
2.9
Although the rendezvous point was south of the boundary line
the vessels, other than the survey vessel, were not at the time
operating south of the boundary line but in the Namibian concession
areas.  They crossed the boundary line specifically in order to receive
the bunkers.  After the bunker drops were complete (and these lasted
from 16 to 56 hours) the vessels once again returned to the Namibian
concession areas.
[3] The section of the Customs Act crucial for present purposes is s

20(4).  It reads as follows:
‘(4)   No goods which have been stored or manufactured in a
customs and excise warehouse shall be taken or delivered from such
warehouse except in accordance with the rules and upon due entry
for one or other of the following purposes -
(a)
home consumption and payment of any duty due
thereon;
(b)
rewarehousing in another customs and excise warehouse
or removal in bond as provided in section 18;
(c)
…
(d)
export from customs and excise warehouse (including
supply as stores for foreign-going ships or aircraft).’

[4] As mentioned earlier delivery from a warehouse for the purpose of export
does not attract excise duties and fuel levies;  but if the disclosed purpose is
‘home consumption’ it does (ss 37(1) and 45(1) of the Customs Act).   ‘Export’
is not defined in the Customs Act but ‘home consumption’ is.  Section 1 of the
Customs Act defines ‘home consumption’ as ‘consumption or use in the
Republic’.  Counsel on both sides were agreed first, that ‘export’ must at the
very least include the removal of the excisable goods from South Africa and

secondly, that the two concepts (export and home consumption) are antithetical.
If the declared and entered purpose was ‘export’ it excluded an intended home
consumption and vice versa.  Leaving aside s 20(4)(b) (which is neutral on the
point) or supplies destined for a foreign-going vessel (which is a special case),
that must clearly be so, as appears from the introductory words ‘for one or other
of the following purposes’.  The stress is on the purpose for which goods
manufactured in a customs and excise warehouse (such as refined bunker fuel)
are taken or delivered.  Of course, what actually happens may not always
correspond to what was declared to happen:  goods may be entered for export
and yet be consumed in the Republic - in which case, apart from any other
consequences, duty remains payable in terms of s 18A (quoted in para [21]
below);  so too, goods entered for home consumption may in fact be consumed
outside the borders of the country - as, for instance, where a non-foreign-going
vessel, consuming fuel entered for ‘home consumption’, fishes in foreign waters
before returning to its South African port of registration.  In such a case the

prescribed duties and levies are nonetheless payable.  This consequence is
seemingly in conflict with the definition of ‘home consumption’ quoted earlier
but in truth there is no anomaly for the initial emphasis in s 20(4) falls on the
purpose of removal from the customs and excise warehouse and not on the
actual use or consumption of the goods so removed.
[5] According to counsel for DBM ‘export’ in the context of s 20(4)(d)
simply means: ‘to take out of South Africa’. Counsel for the Commissioner
on the other hand contended that there were additional elements to the
notion of ‘export’ viz, ‘to take out of South Africa for import into a foreign
country for commercial purposes’.  Both counsel sought support for their
contentions from a selection of dictionary definitions of the word ‘export’.
So, for example, counsel for DBM referred to the definition by Longmans
Dictionary of English:  ‘1)  to carry away;  remove;  2) to carry or send (e g
a commodity) abroad for purposes of trade’;   whereas counsel for the

Commissioner referred to other definitions such as that of The New Shorter
OED, defining export as ‘send (especially goods) to another country’.
‘Export’ can be an elusive concept capable of several shades of meaning.  I
have consulted most of the dictionaries in the library of the Supreme Court
of Appeal and I do not propose to list the various and varying definitions to
be found therein.  There can be little doubt that while ‘export’ in a general
sense may mean ‘to carry away’ or ‘remove’, in a narrower commercial
sense it bears one of the meanings attributed to it in Black’s Law
Dictionary (7th ed): ‘to transport (merchandise) from one country to
another in the course of trade’.  That connotation is supportive of the
Commissioner’s case since it is likely that the Legislature had its ordinary
commercial meaning in mind when using the word in a commercial
context, and the supply in this case was not to another country.  Even so,
and like the Court a quo, I am hesitant to regard a meaning extracted from

a miscellany of dictionary definitions as conclusive of the entire issue (cf
Fundstrust (Pty)Ltd (in liquidation) v Van Deventer 1997 (1) SA 710 (A)).
The better approach, so it seems to me, is to bear that meaning in mind
when examining the provisions of the Act itself in order to determine
whether there is anything in the context in which the word is used that adds
to or detracts from its ordinary commercial meaning.
[6] The same approach applies to case law.  Counsel for DBM sought to
gain some support for their contention from two old English cases viz
Muller v Baldwin (1873) 9 QB 457 and Fox v Kooman (1919) LTR 575
(KB).  In the first case ‘export’ was defined in the relevant Act as ‘carried
out of port’;  as such it had a technical meaning.  The second case simply
followed the first and moreover stressed the fact that the goods in question
(chamois leather) were due to be taken abroad.  Not much guidance, I
think, can be gleaned from either of these decisions.  The recent decision

of this Court in Engen Petroleum Ltd and Others v Commissioner of
Customs and Excise and Another 1999 (3) SA 690 (SCA) dealt with
rebates and is thus only peripherally in point.
[7] ‘Export’ in s 20(4) of the Customs Act must in my opinion take its
colour, like a chameleon, from its setting and surrounds in the Act.  It is
used in s 20(4) in contradistinction to ‘home consumption’ (cf the Engen
case, supra, paras 7 and 12).  Between them the two antipodes cover (save
for s 20(4)(b)) all possible permutations of  purpose.    The purpose of the
removal of manufactured goods from a warehouse can only be to use or
consume it.  Such use and consumption may take place either locally or
abroad.   What is intended to be used or consumed locally is (in respect of
excise duty and fuel levy) taxed locally;  conversely, what is intended to be
exported is not to be taxed locally.  Export from South Africa implies,
according to counsel for the Commissioner, an import elsewhere where

such goods will likely be subjected to import charges.  I agree.  To require
the local exporter to pay excise duty and a fuel levy on goods not destined
to be used or consumed in this country but abroad would place an undue
burden on him and may well discourage export.  Conversely, if DBM is
right in its interpretation of ‘export’, it would mean that no excise duties
and fuel levies are payable at all in respect of the supplies of the bunker
fuel to DBM’s vessels on the high seas, to the benefit of DBM  and to the
ultimate detriment of the general body of taxpayers.
[8] The true antithesis of ‘home consumption’ is ‘foreign consumption’.
Foreign consumption (and hence ‘export’) has two sequential elements:
(a)  physical removal from South Africa;  and (b) use or consumption not
in South Africa.  Foreign use or consumption postulates a foreign
destination for further delivery of the goods taken from the warehouse in
South Africa.  The foreign destination will as a matter of probability

mostly be a foreign country but there is nothing in the actual wording of
the Customs Act that ordains the introduction of such a further refinement
to bring it in line with the ordinary commercial meaning of ‘export’
referred to in para [5];  and counsel for the Commissioner conceded in
argument that ‘a foreign-going ship’ to which bunker fuel is supplied on
the high seas, for use or consumption outside South Africa, either as cargo
or as stores, cannot be ruled out as a foreign destination.  DBM’s vessels, it
is common cause, were not foreign-going ships so that the somewhat
unusual facts of this case pertinently highlight the issue whether the
delivery of bunker fuel to a non-foreign-going ship beyond the territorial
waters of South Africa qualifies as ‘export’ for purposes of s 20(4) of the
Customs Act.
[9] Counsel for the Commissioner launched a subsidiary argument based
on the words in parenthesis in s 20(4)(d).  Inasmuch as the supply of stores

to a foreign-going ship in South Africa is regarded by the Legislature as
‘export’ it would follow, so it was contended, that the supply of stores to a
non-foreign-going ship operating outside South Africa must likewise be a
form of ‘export’.  I cannot agree.  In my opinion this form of flip-side
reasoning leads, as counsel for DBM rightly submitted, to a non sequitur.
[10] I return to the issue raised in para [8] above viz, whether the supply
of  bunker fuel beyond South African waters to a non-foreign-going ship
qualifies as export for purposes of s 20(4) of the Customs Act.  In my view
the question answers itself.  While supply to a foreign-going vessel may
conceivably still be regarded as delivery to a foreign destination, the same
can hardly be said of supplies on the high seas to a vessel belonging to a
South African company and operating out of a South African port.   Such
delivery is not delivery to a foreign destination.  It is not for present
purposes necessary to characterize what precisely a foreign destination is.

It is sufficient that the vessels to which the deliveries were made were
neither foreign nor foreign-going.  The second of the two conceptual
elements referred to in para [8] above have therefore not been satisfied.
The question whether the goods were ‘exported’ must accordingly be
answered in the negative and in the Commissioner’s favour.
[11] That conclusion in effect disposes of the appeal.  But since a large
part of the argument in this Court was devoted to two further issues I
propose to mention and discuss them.
[12] The first of these issues relates to the first of the two elements
mentioned in para [8] above, viz whether the bunker fuel was physically
removed from South Africa.   If the rendezvous point where re-delivery of
the bunker fuel took place is by statutory extension to be regarded as ‘part
of the Republic of South Africa’ then the first element mentioned above
would not have been satisfied and the fuel would not have been ‘exported’.

To that issue I now turn.
[13] The question is whether the bunker drops took place within the
Republic (as the Commissioner contends) or not (as DBM contends).  The
debate turns on the meaning of s 5 of the Customs Act.  It reads as follows:
‘5.
Application of Act. - Notwithstanding anything to the contrary
in any other law contained, for the purposes of this Act -

(a)    …
(b)    the continental shelf as referred to in section 8 of the
Maritime Zones Act, 1994 (Act No. 15 of 1994),

shall be deemed to be part of the Republic.
(c)
Any installation or device of any kind whatever,
including any floating or submersible drilling or
production platform, constructed or operating upon,
beneath or above the said continental shelf for the
purpose of exploring it or exploiting its natural resources
shall be deemed to be constructed or operating within the
Republic.
(d)
Any goods mined or produced in the operation of such
installation or device and conveyed therefrom to the
shore whether by pipeline or otherwise and any person or
other goods conveyed by any means to and from such
installation or device shall be deemed to be so conveyed
within the Republic.’

According to the Commissioner s 5(b) is conclusive of the issue:  re-
delivery, it is common cause, took place at the rendezvous point
immediately above the continental shelf of South Africa and the
continental shelf is, for purposes of the Customs Act, deemed to be part of
the Republic.   According to DBM this is an oversimplification of the
problem:  s 5(b) takes one to s 8 of the Maritime Zones Act 15 of 1994
(‘the MZA’) and s 8 of MZA takes one to article 76 of the United Nations
Convention on the Law of the Sea (‘LOSC’), and all these provisions must
be taken into account, according to DBM, to determine what s 5(b) means
when it refers to the continental shelf.
[14] The MZA legislates for an ever-widening but correspondingly ever-
weakening sphere of South African influence.  Section 4 defines the South
African territorial waters, being 12 nautical miles from the baseline (which

corresponds broadly to the low-water line of the coast) to which all law in
force in South Africa applies.  Section 5 refers to the contiguous zone, 24
kms from the baseline, within which the Republic shall have the right to
exercise certain preventative powers including, incidentally, the prevention
of customs contraventions.  Section 6 provides for a maritime cultural
zone, between 12 and 24 nautical miles from the baseline, for the
protection of objects of an archaeological or historical nature.  Section 7
provides for an ‘exclusive economic zone’, 200 nautical miles from
baseline, for the protection of ‘all natural resources’, which would include
the regulation of commercial fishing within that zone.  Finally, s 8 of the
MZA provides as follows:
‘8.
Continental shelf. - (1) The continental shelf as defined
in Article 76 of the United Nations Convention on the Law of the
Sea, 1982, adopted at Montego Bay on 10 December 1982, shall be
the continental shelf of the Republic.

(2)
…

(3)
For the purposes of -
(a)
exploration and exploitation of natural resources, as
defined in paragraph 4 of Article 77 of the United
Nations Convention on the Law of the Sea, 1982;  and
(b)
any law relating to mining of precious stones, metals or
minerals, including natural oil,

the continental shelf shall be deemed to be unalienated State land.’

[15] Section 8 of the MZA incorporates art 76 of LOSC.  Article 76
provides as follows:
‘1.
The continental shelf of a coastal State comprises the seabed
and subsoil of the submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200 nautical
miles from the baselines from which the breadth of the territorial sea
is measured where the outer edge of the continental margin does not
extend up to that distance.’

Article 76, according to DBM’s argument, defines not only what but also
where the continental shelf is;  and since it refers specifically only to the
seabed and its subsoil it does not extend to the sea above it and accordingly
has no application to vessels floating on the surface.  This, so it was

contended, is placed beyond doubt by art 78(1) and (2) of LOSC which
read as follows:
‘1.
The rights of the coastal State over the continental shelf do not
affect the legal status of the superjacent waters or of the air space
above those waters.
2.
The exercise of the rights of the coastal State over the
continental shelf must not infringe or result in any unjustifiable
interference with navigation and other rights and freedoms of other
States as provided for in this Convention.’

[16] Article 78, assuming it to have been incorporated into South African
municipal law, is concerned with the legal status of the superjacent waters.
Section 5(b) of the Customs Act does not purport to interfere with the legal
status of the waters above the continental shelf.  The article accordingly
has no direct bearing on the present enquiry.  What s 5(b) seeks to do is to
extend the area of operation of appropriate provisions of the Customs Act
to the continental shelf which, for that strictly limited purpose, is deemed
to be part of South Africa.

[17] To seek to separate the sea surface from the seabed when applying
the provisions of the Customs Act to the continental shelf does appear to
be somewhat artificial.  The continental shelf is, after all, described not
only in relation to the seabed but also in terms of location and area.  It is
within that zone that the bunker drops took place.  Since the place of
delivery has relevance for purposes of s 20(4) of the Customs Act the
deeming provision, so it could be said, is of application; and if the
continental shelf is pro hac vice deemed to be part of the Republic, the
further delivery of bunker fuel that took place above it was delivery within
the Republic.  On that approach the first of the two elements mentioned in
para [8] above would also not have been satisfied;  the bunker fuel would
not have been ‘exported’;  and its subsequent consumption would
accordingly have qualified as ‘home consumption’, even if it took place
physically in Namibian waters.  As such, the relevant entries should have

been for ‘home consumption’ and not for ‘export’.  That in essence was the
finding of the Court a quo.
[18]  On the other hand, it is plain that the provisions of the MZA relating
to the continental shelf are primarily concerned with giving South Africa
exclusive rights in the exploration and exploitation, in their various forms,
of the resources of the seabed and its subsoils on the continental shelf
itself  (cf Dugard, International Law, A South African Perspective, 2ed
298-304).  Activities related to such exploration and exploitation (in
contrast  to  the  normal  activities  and  traffic on the high seas) would
have direct relevance to the Customs Act, as is pertinently demonstrated by
ss 5(c) and (d) of the Customs Act.  It is for that purpose, rather than for
the purpose of s 20(4), that the continental shelf, so it seems to me, is
deemed  to  be  part  of  the  Republic;   and  if  that  is  so, it follows that
the  slant  that  the  Commissioner now seeks to place on s 5(b) goes

beyond  what the Legislature likely intended.  Although it is, for the
reasons  stated  in  para  [10]  above, not  necessary  to  express  a  firm
view  on the issue so formulated, I am disposed to agree with the
arguments advanced by DBM in this regard.  The conclusion suggested on
its behalf is a more palatable one since it was purely coincidental, viewed
from an excise perspective, that delivery of the fuel took place over the
South African continental shelf.
[19] In passing it may be mentioned that s 5(c) is not helpful in the
solution of the present problem.  Even accepting (as the Court a quo for
good reasons did) that the six vessels were ‘devices’ for purposes of
subsection 5(c) and that the five mining vessels would also fall within the
general meaning of ‘installations’ it does not help the Commissioner.  The
reason is that none of these vessels was ‘operating’ above the South
African continental shelf when the bunker drops took place.

[20] Finally, there is the further submission on which the Commissioner
relied and which also found favour with the Court a quo.  That submission
is based on s 18(A) of the Customs Act.  It must be read with the definition
of ‘common customs area’ in s 1 thereof viz, ‘the combined area of the
Republic and territories with the government of which customs union
agreements have been concluded under s 51’.
[21] Section 18A(1) and (2) of the Customs Act provide as follows:
‘(1)   Notwithstanding any liability for duty incurred thereby by any
person in terms of any other provision of this Act, any person who
exports any goods from a customs and excise warehouse to any place
outside the common customs area shall, subject to the provisions of
subsection (2), be liable for the duty on all goods which he so
exports.
(2)
Subject to the provisions of subsection (3), any liability for
duty in terms of subsection (1) shall cease when it is proved by the
exporter that the said goods have been duly taken out of the common
customs area.’

Section 18A(1) and (2) in substance provide that if excisable and leviable

goods are exported it is for the exporter to satisfy the Commissioner that
delivery outside the borders of the Republic had in fact taken place.  The
clear implication is that if the excised goods are not proven to have been
‘taken out’ of the common customs area, excise duties and fuel levies
remain payable in South Africa.  It is common cause in this case (a) that
Namibia is part of the common customs area; (b) that Namibia has a
Customs Act in terms similar to that of South Africa, including a provision
corresponding to s 5(d) thereof; and (c) that the fuel delivered to DBM’s
vessels was largely consumed by them above the continental shelf of
Namibia.  On the basis of those facts the Commissioner contended that
excise duties and fuel levies were duly payable in South Africa:  since the
Namibian continental shelf, where the consumption took place, was
deemed to form part of Namibia via its own equivalent section to our s 5(b)
and since the common customs agreement made Namibia part of the

‘combined area of the Republic’, such consumption qualified, so the
argument went, as ‘consumption for use in the Republic’ for purposes of
the definition of ‘home consumption’.  DBM’s counter-argument was that
the Namibian continental shelf was not by this process of incorporation
made part of the Republic;  that the common customs area did not extend
to the continental shelf but merely to the Namibian land plus, at most, its
territorial waters;  that the South African Customs Act did not purport to
subsume the Namibian Customs Act; and consequently that it was not
capable of being extrapolated  in the manner contended for by the
Commissioner.   Although it is not necessary, in the light of my earlier
conclusion, to resolve this particular aspect of the wider dispute between
the parties, I find myself once again in general agreement with the
submissions made on behalf of DBM.
[22] Having regard to the conclusion reached in para [10] above, the

following order is made:
The appeal is dismissed with costs, including the costs of two counsel.
…………………
P M NIENABER
JUDGE OF APPEAL
Concur:
Zulman JA
Lewis AJA