Ex parte Harris (9357/2015) [2016] ZAWCHC 4; [2016] 1 All SA 764 (WCC) (26 January 2016)

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[2016] ZAWCHC 4
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Ex parte Harris (9357/2015) [2016] ZAWCHC 4; [2016] 1 All SA 764 (WCC) (26 January 2016)

IN THE HIGH COURT
OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE
TOWN
CASE NO: 9357/2015
DATE: 26 JANUARY 2015
REPORTABLE
In the ex parte application of:
DAVID HARRIS
for his
rehabilitation
...........................................................................................................
APPLICANT
And in the
application for leave to intervene by
FAIRHAVEN COUNTRY ESTATE (PTY)
LIMITED
................................
INTERVENING
PARTY
JUDGMENT
DELIVERED
ON 26 JANUARY 2016
GAMBLE, J:
INTRODUCTIO
N
[1] On 2 June 2010 the
estate of the applicant (“Harris”) was sequestrated by
order of this court. The amended first
and final liquidation and
distribution account in respect of his estate was confirmed by the
Master on 22 November 2012.
[2] On 10 April 2015
Harris gave notice in the Government Gazette of his intention to
apply for his rehabilitation in this court
on 2 June 2015. In this
application Harris complied with the relevant statutory requirements
of the Insolvency Act, 24
of
1936 (“the Act”) insofar as notice and time limits are
concerned. The application for rehabilitation was brought
pursuant to
the provisions of section 124 (2) of the Act
[1]
,
in light of the fact that at the time that the application was
launched more than 12 months had elapsed after the date of the

confirmation of the liquidation and distribution account. In her
report the Master noted certain shortcomings in the application
to
which I shall refer later but otherwise indicated that she would
abide the decision of the court.
[3] On Friday 29 May 2015
the intervening party (“Fairhaven”) gave notice that it
intended making making application
the following Tuesday (2 June
2015) for leave to intervene in the rehabilitation application for
purposes of procuring the dismissal
of such application,
alternatively for the postponement of the rehabilitation application
pending the completion of an envisaged
enquiry in terms of section
152 (2) of the Act, which enquiry was to take place within three
months of the Master authorising same.
It bears mention that the
founding papers in the application to intervene are substantial and
run to 182 pages.
[4] The application to
intervene was opposed and on 2 June 2015 was postponed, together with
the rehabilitation application, for
hearing before this court on 17
August 2015 with a timetable fixed for the filing of further papers.
When the matter commenced
on that day Harris was represented by Advs.
G.W Woodland SC and D.Melunsky, and Fairhaven by Advs.W.R.E Duminy SC
and F.S.G Sievers.
On the second and third days Mr Melunsky appeared
alone. While counsel originally estimated that the matter would only
last a day,
it did not finish on the second day and was postponed to
a date to later to be fixed in Chambers. On 1 September it was agreed
that the matter would continue on 16 October 2015. On that day a
substantive application by Fairhaven for a postponement to enable
it
to prepare a formal application for the court’s recusal was
refused and argument was then completed whereafter judgment
was
reserved. The reasons for the refusal of the postponement application
will form part of this judgment.
THE APPLICATION
FOR REHABILITATION
[5] The application for
rehabilitation was made in the perfunctory fashion in which so many
of these applications are brought in
the motion court. In terms of
section 126 of the Act, historical background is given regarding the
alleged factual basis for the
erstwhile insolvency of Harris, brief
details are furnished of the application for sequestration itself,
there is a summary of
assets and liabilities at the time of
sequestration, a report by the trustees of the insolvent estate is
placed before the court
and details are given of Harris’
current income and expenditure. In this regard Harris says that he is
currently employed
as an estate agent with a monthly income of
R30 000. His list of alleged monthly expenses appears to total
R28 469, 78.
[6] The requirement
in section 126 that an applicant for rehabilitation “
shall
include a statement of assets and liabilities…[as]… at
the date of the application”
is
purportedly complied with as follows:
“
16. Since
my estate was sequestrated, I did not acquire any assets and did not
incur any debt”.
As to the reasons
why rehabilitation is sought, Harris says that he is 62 years old and
urgently needs to get back into the property
market and become
commercially active in order to provide for himself and his wife as
old age approaches. He concludes that –
“
I cannot
fully unlock my earning potential whilst being an unrehabilitated
insolvent and desperately need to be rehabilitated so
as to enable me
to freely and fully participate in commercial activities.”
[7] I should observe at
this stage that in terms of section 127A of the Act an insolvent is
entitled to rehabilitation through
effluxion of time after the lapse
of a period of 10 years. In such circumstances no application to
court is required. Section 124
of the Act, on the other hand,
provides for an application for rehabilitation which may be brought
within various stipulated timeframes.
These vary between three and
five years depending on the circumstances to hand. Of importance for
an application under section
124 (2) is that a period of four years
must have lapsed post sequestration, “
except upon the
recommendation of the Master”.
In the present case that
four year period has lapsed and, under section 124 (2) (a), the
requisite twelve month period after the
confirmation by the Master of
the first trustees’ account in the estate has also lapsed. In
the circumstances it seems to
me that Harris has brought himself with
in the parameters of the Act, as far as the lapsing of time is
concerned. Ordinarily, I
would have thought that, subject to what I
have to say hereunder in regard to the short-comings pointed out by
the Master, on the
founding papers as they stand, a court would have
been entitled to exercise its discretion to rehabilitate Harris.
BASIS FOR THE
APPLICATION TO INTERVENE
[8] An application for
leave to intervene is not a prerequisite to a party being heard in
opposition to an application for rehabilitation.
In terms of section
127 of the Act, at the hearing of the application -
“
the
trustee or any creditor or other person interested in the estate of
the applicant may appear in person or by counsel to oppose
the grant
of the application.”
[9] Nevertheless Fairhaven
considered it prudent to apply for leave to intervene on the grounds
that it is a creditor in the insolvent
estate whose debt has not been
satisfied in full. Just how Fairhaven acquired its claim against
Harris involves a fairly detailed
account of the disintegration of a
previously successful business relationship. If it be stated at this
stage that Fairhaven was
not a creditor in the insolvent estate, did
not participate in the
concursus creditorum
and only purchased
a claim from Nedbank Limited on the eve of the launching of the
application to intervene (28 May 2015), it will
be appreciated that
Fairhaven’s intervention appears
prima facie
to be out
of the ordinary.
[10] Harris claims
that Fairhaven is not acting
bona fide
and that its application to intervene and oppose his rehabilitation
is an abuse of the process of the court. Fairhaven on the other
hand
alleges that Harris has conducted a successful estate agency business
and has effectively secreted assets acquired through
his employment
as such in a family trust. It further disputes the integrity of the
allegations made by Harris in the founding affidavit
regarding his
income and asset base and suggests that he is not entitled to be
rehabilitated. At the very least, Fairhaven says
that Harris and
others should be interrogated in terms of section 152(2) of the Act
before consideration can be given to his rehabilitation.
[2]
Allegations of this nature necessitate careful consideration of the
extensive background detail relevant to this case.
THE PARTIES’
COMMERCIAL RELATIONSHIP
[11] The commercial
relationship between the parties to this dispute and the other
drammatis personae
is a fairly complex web of contractual
arrangements. The nature thereof is not particularly material to the
resolution of the dispute
and I shall accordingly deal with it as
briefly as possible. The commercial setting is the sale of units in
various residential
developments in the Somerset West area.
[12] On 26 July 2012 a
marketing management agreement was concluded in respect of a
development known as Somerset Lakes. The marketing
of units in that
development was to be undertaken by a company which came to be named
Summerclub Real Estate (Pty) Ltd. Summerclub
was mandated by Omwieco
(Pty) Ltd to undertake the marketing of Summer Lakes. The directors
of Summerclub were Shaun Harris (the
son of the insolvent who for
convenience sake will be referred to as “Shaun”) and Zane
Mauritz de Decker, who deposed
to the founding affidavit in the
intervention application in his erstwhile capacity as the sole
director of Fairhaven. Shaun, who
also practices as an estate agent,
runs his business affairs through a close corporation called Finman
119 CC, which trades as
“Schonenberg Real Estate” and of
which he is the sole member.
[13] The shares in
Summerclub are owned in equal shares by Proventus Property (Pty) Ltd
and the Avodah Trust. Avodah is a family
trust which was established
in September 2012 by Harris and his wife, as founders, for the
benefit of the Harris family, all of
whom (including the insolvent)
are beneficiaries of the trust. Harris himself could not be appointed
a trustee of Avodah due to
his insolvency and so the trustees
currently are his wife and daughter, Shaun and an attorney from the
Strand, Mr Bosman, who was
appointed as an independent trustee. The
trust deed records, however, that upon rehabilitation Harris will be
appointed as a trustee
of Avodah.
[14] Proventus is a
company effectively controlled by a property developer by name of
Otto Wiehahn (“Wiehahn”) who also
has an indirect
interest in Omwieco. In the application for postponement on 16
October 2105 it was drawn to the attention of the
court that Wiehahn
was then the sole director of Fairhaven, having replaced de Decker in
the interim.
[15] During 2012,
Fairhaven was used to purchase a distressed property development in
Somerset West known as Fairhaven Country Estate
from Nedbank.
Fairhaven is effectively controlled by Wiehahn and his brother, Eric,
(each of whom has a 25% stake in the company)
and a certain Dennis
Venter (50%), all of whom manage their respective interests through
corporate entities controlled by them.
As the erstwhile sole director
of Fairhaven, de Decker took his instructions from Wiehahn and
Venter. In 2012 Fairhaven granted
Summerclub a sole mandate to market
the undeveloped plots in Fairhaven Country Estate and Summerclub in
turn granted Finman a sub-mandate
to market the plots.
[16] For reasons which
need not be expanded upon, the relationship between the Harris family
and Wiehahn and Venter deteriorated
with serious recriminations being
made either way, to the extent that on 6 May 2014 Fairhaven purported
to cancel the mandate to
Summerclub. A dispute arose in this regard
and eventually a settlement agreement was brokered and drafted by a
Cape Town attorney,
Mr Korber, who represents Fairhaven in these
proceedings. The settlement agreement was signed by the trustees of
Avodah, and the
duly authorised representatives of Fairhaven,
Summerclub, Proventus and Finman, as well as Harris’ trustees.
The purpose
of the settlement was, inter alia, to effect a commercial
divorce between Harris and the interests which controlled Fairhaven
(and
who,for the sake of convenience, I shall call the “the
Fairhaven interests”). Shaun, on the other hand, was regarded

by the Fairhaven interests as a hard-working and effective
salesperson and his services were to be retained. In the preamble to

that settlement agreement it is recorded that the insolvency of
Harris was unknown to Fairhaven at the time that the Summerclub

sub-mandate was granted to Shaun.
[17] The 50% shareholding
of Avodah in Summerclub had throughout presented an obstacle to the
Fairhaven interests in assuming effective
control of Summerclub.
Various stratagems were unsuccessfully employed to acquire that
interest in the Trust, but, eventually,
in early 2015 an opportunity
arose for the Fairhaven interests to tighten the screws on the Harris
family.
THE DOMAIN NAME
LITIGATION
[18] Fairhaven owned
a series of internet domain names relevant to its business and
discovered in January 2015 that Shaun had allegedly
taken steps to
appropriate use of the domain name
www.fairhavenestate.co.za
to Finman. Fairhaven commenced urgent interdictory proceedings in
this court to restrain Shaun from passing off that name (and
any of
its other domain names) either personally or through Finman.
Fairhaven was ultimately successful in that litigation and
on 8 July
2015 obtained the relief it sought (see
Fairhaven
Estate v Harris and another
2015(5)
SA 540 (WCC).
[19] The papers
filed in the intervention application show unequivocally that when
the misappropriation of the domain name came
to the attention of the
Fairhaven interests Venter went to extraordinary ends to put pressure
on Harris to force a settlement in
the domain name litigation with
Shaun. I shall deal with the full extent of this campaign of
vilification and abuse against Harris
shortly but point out that it
culminated in settlement proposal put forward by Korber on 11 June
2015 on behalf of the Fairhaven
interests pursuant to an invitation
on 9 June 2015 from Harris’ erstwhile attorneys, Louw Inc, who
were also the attorneys
for Shaun in the domain name litigation.
Fairhaven’s proposal not only made provision for settlement of
the domain name litigation
but also provided for the transfer to the
Fairhaven interests of Avodah’s 50% interest in Summerclub. In
the result, as I
shall demonstrate later, the settlement which was
intended to finally achieve a clean break between the warring
factions did not
materialise.
VENTER’S PURSUIT
OF HARRIS AND RELATED DEVELOPMENTS
[20] It seems that during
mid January 2015 Venter was away overseas. During his absence a
certain Jan Hofmeyr of G-Studio Branding
Agency (Pty) Ltd (the agent
of Fairhaven responsible for managing its internet website) received
an an email from Shaun requesting
the transfer of the aforesaid
Fairhaven domain name to him (Shaun). Hofmeyr took the matter up with
de Decker who immediately alerted
Venter. This development drew the
ire of Venter who immediately contacted Harris. I shall quote
extensively from a string of correspondence
and events which ensued
and, for the sake of completeness must include all of the invective,
innuendo and sarcasm contained therein.
All quotations will reflect
the text in its original form replete with grammatical, spelling and
punctuation errors.
[21] The first salvo was
an sms message from Venter to Harris on Thursday 15 January 2015 at
19h54 to the following effect:
“
If you
want me to fuck you and your gay son up, continue with your shit!!! I
am leaving Europe early, make sure that dimain is transferred”.
[22] Then, some time
after 21h00 on Saturday 17 January 2015 Venter arrived at the
entrance to the gated village in Somerset West
where Shaun and his
family resided and informed the security guard on duty that he was
there to see Shaun. The guard phoned through
to Shaun and informed
him that there was someone at the gate who claimed to be from the
Hell’s Angels
[3]
and who said (in foul language) that he was there to beat Shaun up
and break his neck. Shaun refused Venter entry and after the
security
guard had informed him of this he left uttering profanities. Shaun
immediately sent several explanatory sms messages to
Louw, reported
the incident to the police and stepped up his personal security.
[23] On Monday 19 January
2015 Venter sent an email to Harris and copied it to Wiehahn and de
Decker. The subject of the email is
Mr. Bryan Shaw, one of Harris’
trustees, and it reads as follows –
“
Hi Dave
Its your nightmare
here. I have contacted Brian Shaw today and have a meeting with him
on friday morning. He is a nice fellow, i
really like him….He
is understanding.
I have a file of 105
pages that i am due to share with him (sharing is caring). If you
want to have a discussion before i go and
see him, please send me a
time that you will be available tomorrow.
I hope we can sort this
mess out and that we never have to deal with one another again.
Looking forward
to hearing from you.
Sleep well.”
[24] The following day,
Tuesday 20 January 2015, Venter made good on his promise and sent
Shaw a lengthy email detailing various
aspects which he wished to
raise with him at their upcoming meeting. The email commences with
the following introduction –
“
Hi Brian
I refer to my telephone
discussion yesterday with you regarding the estate of David Harris.
Can you please confirm when and where
we can meet on friday? I am
unfortunately not available after this date for three weeks. I have a
file of 115 pages that I would
like to take you through. In a
nutshell we believe that millions of rands of income has been
diverted by Dave to a trust and via
an entity controlled by his son.
I have various emails and agreements that will make it pertinently
clear that the trust is Daves
alter ego and that his creditors have
been defrauded by the diversion of income and assets (in particular a
50% shareholding in
a marketing company, for which there is a buyer)
to this trust and his son.
I have attached a
scanned copy of to relevant documents for your perusal. (Attachments)
I will provide another approximate 80 when
I see you. These documents
contain ‘acknowledgments’ by Dave that all the income is
his personally and that the trust
was simply interposed to divert the
income and disguise the true nature thereof. Could you please also
advise me if the sequestration
file of Dave is a public document? Or
will I have to bring a PAI application to obtain the contact names
and numbers of the creditors
who suffered in his estate?
Lastly below I supply
my comments on the paginated file that I will supply you on Friday.”
The rest of the email
contains comments on various annexures attached thereto. No purpose
would be served by referring to each and
every comment but I
highlight the following three -
“…
..
Daves
son owns Finman and was another one of the Harris vehicles used to
hide money from Daves creditors. Hence both entities were
part of the
same agreement. His son was and still is a puppet in Daves hands,
with Dave heading up the den of thieves……..
This is the deal done
on Summerclub/now Somerset Lakes. In terms of this agreement David
via his trust has 50% holding. Once again
the shareholding would have
been directly in Daves hands. The asset of the 50% shares should form
part of his estate. I have a
buyer for this 50%. The other 50%
partner has indicated that they want to buying it. Presently there is
also an amount of R750
000 outstanding to Dave via this entity…..
Dave does not even know
the name of the trust if he refers to it as THE DAVE HARRIS TRUST.
This is the closest he came to the truth.
It is nothing other than
David Harris. I believe this was likely to be the name, but he
realised that it was to close to the truth
and was advised to change
it…”
[25] The interdict
application against Shaun was launched as a matter of extreme urgency
on 19 January 2015 to be heard the following
day, a provisional day
during this court’s summer recess. The matter was postponed and
after the exchange of affidavits,
was heard on the semi-urgent roll
by Henney J on 23 April 2015. As I have said, final relief was
granted in favour of Fairhaven
on 8 July 2015. While the interdict
application was running its course there were further on-going
developments in the background.
[26] On 19 January 2015 an
employee in one of Wiehahn’s companies, a certain Zeanie
Marais, forwarded documents to Shaun confirming
a resolution passed
at an alleged meeting of the directors of Summerclub at 10h00 that
day. The resolution recorded the resignation
of de Decker as a
director and the appointment of Venter in his stead. Shaun responded
to this by averring that he had no knowledge
of any such meeting and
emphasised that he required proper notice thereof.
[27] On 19 March 2015
Venter wrote to Shaw on behalf of a company described as Dream World
Investments 401 (Pty) Ltd (‘Dream
World”) with an offer
to purchase all of the claims in Harris’ estate –
“
We hereby
tender to purchase all and any of the proven claims in the David
Harris estate for an amount equivalent to 5c(five cents)
for every
rand proven. Please contact all the creditors with proven claims in
the estate and make the offer on our behalf. This
offer is valid for
a period of 14 days.”
[28] On 27 March 2015 Louw
gave notice to the Master and Harris’ three trustees (including
Shaw) of his client’s intention
to apply for his
rehabilitation. Thereafter, on 10 April 2015 the statutory notice in
terms of section 124(2) was published in
the Government Gazette.
[29] On 17 April 2015
Korber wrote to Shaw on behalf of Dream World on the instruction of
Venter. The following paragraphs are relevant
–
“
3. I think
that the matter can easily be resolved and I accordingly propose the
following solution, namely that:
3.1.
I prepare a letter to the Master on behalf of the trustees of the
Estate (to be signed by you)
in terms of
Section 152(2)
of the
Insolvency Act
- naturally Dream World will indemnify the trustees
for the costs of the enquiry;
3.2
I write to the bank creditors of the Estate (i.e. ABSA, FNB, RMB and
Nedbank) in regard
to the cession to Dream World of the unpaid
portions of their proved claims.
4.  In regard to
3.2 above, I would appreciate it if you could furnish me with the
confirmed L&D accounts. This would obviate
the need to obtain
them from the Master’s file.”
[30] Shaw responded to
Korber’s solicitation later in the day as follows –
“
I have not
had a case previously where an interested party has wanted to acquire
the claims of creditors in order to pursue an insolvent
due to a
breakdown in business relationship. I had discussed this matter with
various parties informally and tried to seek advice
on how best to
deal with the matter.
Be that as it may I was
then advised that I could not make the offer directly to the
creditors and it was at this stage that I submitted
the details to
your client of the various creditors.
Possibly your client or
you should communicate with the various creditors in order to acquire
the claims and thereafter once this
has been secured attend to the
application for a 152 enquiry.
A copy of the account
together with the confirmation notice are attached as requested.”
[31] Korber had, on his
own initiative, already taken the suggested steps earlier that day,
having written to the 4 creditor banks
and offering to purchase the
unpaid portions of their respective claims for 5c in the Rand upon
cession thereof to Dream World.
[32] After judgement had
been reserved in the interdict application Venter sent Harris the
following sms message on Wednesday 29
th
of April 2015 –
“
Hey Dave.
That domain is costing you more by the day!!!! I don’t want
your money….I have enough of my own. If you want
to pay our
costs and transfer the domain before it costs you everything….Give
me a call”
[33] First National Bank
and ABSA were not interested in the proposal put forward on behalf of
Fairhaven but Nedbank was. In an
email dated 5 May 2015 an employee
in its Bad Debt Recovery Centre in Paarl, a certain Ms. Susan
Erasmus, wrote to Korber as follows:
“
After
thorough investigation we ar e prepared to sell the unpaid portion of
our claim (R1 042 854,92) for an amount of
40c in the
Rand.”
[34] This development led
to the following direct response from Venter a couple of hours later
that afternoon:
“
Hi Susan
I am the guy chasing
David Harris. I am chasing for reasons mainly other than commercial
gain. Unfortunately there will not be a
fortune (if anything) out of
an investigation. They will definitely not be anything close to the
40 cents in the rand. Could we
possibly meet and I can take you
through what I know. At worst you can contribute to a 152
investigation (with us) and possibly
get some dividend for Nedbank. I
could come through on Thursday.”
[35] Thereafter Venter
discussed the matter with Erasmus’ manager, Mr. Andre
Potgieter, who was persuaded to conclude a deal.
On 21 May 2015
Venter confirmed the position to Erasmus in the following terms:
‘
Hello
Susan
Ek het vanoggend
met Andre gesels. Ons gaan Nedbank se eis vir 30c .in die rand koop.
Ons gaan ‘n maatskapye gebruik Fairhaven
Country Estate
(
www.fairhavenestate.co.za
)?
Patricia sal die detail van die maatskapy vir jou stuur. My venoot
Otto sal die betaling reel en dokumente teken. Dit is net
uiters
belangrik dat ons die transaksie vining afhandel.’
[36] The apparent urgency
referred to in the concluding sentence of this correspondence relates
to the allegation by de Decker in
the replying affidavit that
notwithstanding publication in the Government Gazette on 10 April
2015 and the notice to the trustees
on 1 April 2015, the Fairhaven
interests had only become aware of the application for rehabilitation
on 20 May 2015, the day upon
which the application was issued out of
this court. In any event, it acquired the claim a week later (28 May
2015) and the next
day launched its application for leave to
intervene. As I have said, that application was voluminous and the
rehabilitation application
was postponed by agreement on 2 June 2105
for hearing on the semi-urgent roll.
[37] Behind the scenes,
there were further developments which merit mention. On 9 June 2015
Korber wrote to the Master (without
notice to Shaw or Harris’
attorneys) requesting the establishment of an enquiry in terms of
section 152(2) of the Act before
the magistrate, Somerset West. That
application was granted, without more, by the Master on 15 June 2015.
Also on 9 June 2015,
and quite fortuitously, Louw had made a without
prejudice approach to Korber in an attempt to settle all outstanding
issues between
the parties. It is common cause that Louw was not
aware of the application to the Master for the enquiry and was
certainly not
informed thereof by Korber when the parties spoke
telephonically on 8 June 2015.
[38] In his email dated 9
June 2015 Louw wrote to his colleague as follows:
“
I confirm
that I am seeking a method to get rid of all the acrimonious
litigation surrounding my client Mr David Harris, since his
health is
not good.
My instructions are
that the family is prepared to forego the ‘website’
application and to tender the costs thereof,
in an attempt to get rid
of all the animosity.
Kindly take instruction
on what basis your client’s will be prepared to come to an
agreement on all the issues between them.”
[39] Korber replied
promptly to this request in a detailed letter dated 11 June 2015.
Having first sketched some background detail,
the following proposal
was made on behalf of the Fairhaven interests –
“
4. While
my clients are not averse to the idea of a clean break with Mr Harris
and his family, it would be iniquitous were he and
his family to
escape scot-free without paying any compensation to our client.
5. In the
circumstances, our client has proposed the following solution to the
current impasse, namely that it will withdraw its
applications in
case numbers 735/15 (the website application) and its application to
intervene in and oppose your client’s
rehabilitation
application (in case number 9357/2015) and its complaint and request
to the Master for an enquiry in terms of
section 152
(2) of the
Insolvency Act, against
:
5.1
receipt of a notice of withdrawal of your client’s opposition
to our client’s
application in case number 735/15 and a
consent to final relief being granted in terms of paragraphs 2.1 to
2.5 of our client’s
notice of motion in that application;
5.2
receipt of a transfer form signed in blank by the Avodah Trust (“the
Trust”),
and dated as at date of signature thereof, in terms
whereof the Trust transfers its 50% shareholding in Summerclub Real
Estate
(Pty) Ltd for no compensation to a recipient to be filled in
by our client on the blank space on the form concerned (your client

will be required to the initial against such blank space);
5.3
payment into our trust account (and accompanied by Proof of Payment
in regard thereto) of
the sum of R1.5 million, being in respect of:
a) our client’s
costs (on the attorney and own client scale) in respect of case
number 735/15;
b) our client’s
costs (on the attorney and own client scale) in respect of case
number 9357/2015;
c) the purchase
price of our client’s claim (against Insolvent Estate Harris
including the cost of acquiring such claim from
Nedbank) and the
costs involved in preparing the application to the Master in terms of
section 152
(2) of the
Insolvency Act, after
which payment our client
will be regarded as having sold its said claim to the Avodah Trust or
to any other party (acceptable to
our client) as nominated by Mr
Harris and his family.
6. Your
client(s) would, notwithstanding the transfer of their interest in
Summerclub Real Estate (Pty) Ltd, still be entitled
to payment in due
course of such commission as may be due to them as at date hereof.”
[40] I should perhaps
point out at this juncture that both letters from the respective
attorneys are marked “without prejudice”.
Korber’s
letter was annexed to the answering affidavit of Harris in the
intervention application on the basis that it did
not constitute a
bona fide
attempt to settle Fairhaven’s intervention
application, but was rather an attempt to resolve the intervention
application
and the domain name litigation by “extorting”
R1.5 million and seeking to transfer the Avodah Trust’
s 50%
share in Summerclub for no consideration. In the replying affidavit
Louw’s earlier letter was produced by Fairhaven to dispel
any
impression that the Korber letter was unsolicited. In the result,
neither party sought to strike out either letter, and, furthermore,

ample reference was made thereto in argument.
[41] The matter did not
settle and a fortnight later, on Thursday 25 June 2015, Louw withdrew
as Harris’ attorney of record
and was substituted the following
Monday (29 June) by Edward Nathan Sonnenberg Inc (“ENS”)
of Cape Town. The attorney
dealing with the matter was Ms Morgan.
[42] Over the
intervening weekend Venter sent the following lengthy email to Harris
under the title “
Slow train
comming
(sic)”
[4]
“
Hi Dave
Hope all is well
your side and that your health has improved. I have received your
attorneys notice of withdrawal as attorney of
record. He reminds me
of the skipper on the Oceanos who made it to shore first when he saw
that the tide had turned. Clever man,
I will definitely be using him
in future.
Dave, I have been
keeping you fully informed of my actions from day one i.e
1)
When you ‘stole’ the
website, I told you that all I wanted was the website back or I would
go to Brian Shaw (your curator)
and fight ‘dirty’. I gave
you a full copy of the documents and my reasoning that I would use to
institute a 152 investigation.
I did this as I did not want your
money and did not want to fight. I wanted our website back. Your
actions or lack thereof left
me with no alternatives;
2)
You gave me the middle finger and
simply chose to ignore it. Your comments to certain of your staff was
that it would just ‘create
a bit of admin’ for you.
3)
My repeated comments to you that the
website is starting to cost you a fortune, fell on deaf ears. Even
the blind could see that
you had come to a gun fight with a water
pistol with so much water that it could possibly keep you ‘in
liquidation’
for a long time. If you dont settle we will ensure
that you dont rehabilitate;
4)
My last text to you on the 29 April
in which I made it clear that you should pay our legal costs to date
and return our website
or else it would consume you, also fell on
deaf ears. It was at this point that I started buying up the claims
in your estate and
realised that once I start spending serious money
on claims any chances of a throwing you a life raft was over. At the
moment the
life raft that you holding onto is unfortunately tied to
the Titanic with the captain having left by helicopter.
5)
Your sneaky little move to try and
rehabilitate before we could stop you was very feeble to say the
least. Reading your application
brought me to tears…. I
thought I was reading the story of the Dalai Lama…. A good guy
that had been handed a terrible
hand. You should consider writing
fairy tails and not commit your imagination to court papers;
6)
I am in the final stages of
negotiating the purchase of two more BIG claims in your estate that
are going to cost you a fortune.
I dont want to pay as much as I am
about to but unfortunately they have come to realise that there might
be some money in it for
them. They are greedy…. Sorry I am
trying my best not to blow more than another 5 million rand of yours
on claims;
Looking at the crystal
ball:
1)
You will in all likelihood choose to
ignore this email once again and hope that it goes away. It will not.
This website will become
your Bermuda Triangle. It will swallow
everything you have and spit you out the other side… Please
don’t ignore it;
2)
If you don’t settle quickly, I
am going to commit purchasing the next two large claims in your
estate. I have got them down
to 70 cents in the rand (you are welcome
to use your stash and pay them a bit more and become my fellow
creditor in your 152 enquiry….
You can ask yourself questions
and answer them, which would be easier on you because you don’t
have to ask yourself the difficult
ones, I will ask those. At this
point there will be no settlement at all and I will come for every
last cent that you have. You
have also spread so much negativity and
false information that I will be left with no option but running a
series of advertorials
to rectify the situation. I am already
thinking of the headlines…’Dave Harris spends his hidden
treasure on a website’….’
Dave Harris web of
deceit finally sinks him’… could be fun… or on
Twitter ‘Twit overpays for website’.
My suggestion to you is
as follows: (I am typing slowly)
1)
Let’s settle this thing. I
believe that your health has taken a turn for the worse that could
possibly positively effect your
judgement. Dont let this website
become your epitaph
www.fairHEAVENestates.now
2)
Its costing you more and more
daily….STOP IT
3)
Even if you happen to get the
website (which we don’t think will happen), you will be the
loser….BIG time. We will
use our gain on your estate to change
Fairhavens name at YOUR COST;
4)
We have put an offer to you that you
must seriously consider. I cannot believe that after all this water
under the bridge, you think
it is remotely possible to continue at
Somerset Lakes with Otto? Is it the nice Dave that works there? The
bad one stole the website?
We only know one leopard with one set of
spots…. Let me once again tell you what I will be doing….
Your shareholding
in Somerset Lakes is an asset in your estate. I
will be bidding up to the amount of the shortfall in the claims that
I will own
(I intend to own about R7,8 million in claims shortly.
Presently I only own R 1 million for that shareholding i.e I will be
paying
your estate, who will pay me out on the claims I have (less
their 10% commission) I am even sure if I settle your curator his 10%

commission he will net my offer and my claim off. I am not sure if
Otto has a pre-emptive right on the shares? Possibly I will
become
Ottos partner…. exciting times;
A FINAL FINAL
FINAL FINAL attempt at settling. I dont want to talk to you but dont
mind if it will help to resolve the situation.
I suggest that you sit
with Otto and agree on a deal so that this utter madness can stop. I
will be committing another approximately
R 6 million of your money on
Tuesday. I dont believe that it is too late to stop the ‘Slow
train coming’ It has unfortunately
cost you a fortune to date.
It has the potential to cost you everything. Its in your ability to
stop it. If you dont accept this
generous olive branch, we will see
you in court and I suggest you see a psychologist….and o yes…
if you want me to
send you the list of questions we will be asking at
the 152 I will gladly do so…. You can take crib notes.
Your call….
THIS EMAIL IS SENT TO
YOU WITHOUT PREJUDICE AND I RESERVE ALL OUR RIGHTS IN THIS REGARD IN
TOTO “
[43] Later on the same day
Shaun received a text message from a certain Mark Bune, formerly a
friend of Shaun’s but by then
an acquaintence of Venter, which
read as follows-
“
Hi matey,
I know that we no longer associate on a social basis but I’m
sure you know why! I do however care about you and
Carin. If you are
even aware of today’s email from Dennis and the extent of the
problem you should swallow your pride and
consider it carefully. You
and your dad have so picked the wrong guy to piss off. He is prepared
blow millions just to get even
with you. We really don’t want
to see you guys burn. Think about yourself and Carin mate.”
[44] In terms of the
timetable agreed upon when the matter was postponed on 2 June 2015,
Harris was required to file his answering
affidavit in the
intervention application on 29 June 2015. When Morgan took over the
representation of Harris she wrote to Korber
on that day informing
him of the position and indicating the inability of her client to
immediately file his affidavit. Collegial
indulgence was requested by
Morgan but she was not afforded the courtesy of a reply to her letter
which was hand delivered to Korber’s
office shortly after 14h00
on the 29th. Instead Fairhaven’s attorney launched an urgent
Chamber Book application the following
day in which an order was
sought obliging Harris to file his affidavit within five days of
receipt of the Chamber Book application
(ie Tuesday 7 July 2015). The
Chamber Book application was served on ENS at 15h30 on the 30
th
June and was lodged with the Registrar the following day. In the
event the matter only came before the recess Duty Judge, Ndita
J,
more than a week later (Friday, 10 July 2015) when an order was made
directing the filing of the affidavit a week hence. The
Registrar’s
stamp indicates that the affidavit was in fact filed on 21 July 2015.
[45] In the meanwhile,
Venter sent a text message to Harris on Wednesday, 1 July 2015 to the
following effect-
“
Please
look after my new VW. Please don’t scratch it.”
Harris says this was
understood to be a reference to a Volkswagen motor car of Shaun’s
which was being driven by Harris’
wife at the time and to which
Venter laid claim.
DEVELOPMENTS DURING
ARGUMENT
[46] Argument commenced
before this court on Monday 17 August 2015, the compulsory practice
note having indicated that the matter
was not likely to last longer
than a day. Counsel for Harris completed his address shortly after
the morning tea break on the Monday.
By the close of proceedings on
the first day counsel for the intervening party was still busy with
his address and the matter continued
the following day. Senior
counsel for Harris asked to be excused at that stage and junior
counsel continued to represent Harris
until the conclusion of the
matter. By the close of proceedings on the second day counsel for the
Fairhaven interests had still
not completed his address and the
matter was postponed to a date to be fixed later in Chambers in
consultation with the parties.
Ultimately an order was made by
agreement in Chambers on 1
st
September 2015 that argument
should be completed on Friday, 16 October 2015.
[47] The application to
the Master for the
section 152
(2) enquiry was convened for hearing
before the magistrate, Somerset West on 26 September 2015. During
argument in August 2015,
counsel for Fairhaven indicated that the
enquiry would be held in abeyance until this court had finally
determined the application
to intervene.
[48] During the course of
Wednesday, 14 October 2015 the court was approached in Chambers by
counsel for Fairhaven who indicated
that a postponement of the matter
would be sought on Friday, 16 October 2015. Counsel for Harris
indicated in Chambers that his
client would oppose the application.
Accordingly, a set of papers requesting a postponement of the matter
was filed late in the
day on the Thursday. In the affidavit deposed
to in support of the application Korber indicated that the purpose of
the postponement
was to enable Fairhaven to draft papers in a formal
application for the court’s recusal: a postponement of 2-3
weeks was
contemplated in that regard. Harris’ papers opposing
the application for postponement were filed at around 09h00 on the
Friday.
From those papers it appeared that the
section 152
(2)
enquiry had been postponed until 26 November 2015. As already
indicated the application for postponement was refused after
morning
tea on Friday 16 October 2015 whereafter argument, including the
reply on behalf of Harris, was completed late in the day.
I shall
deal with the application for postponement in more detail later when
I furnish the reasons for its refusal.
THE RIGHT TO INTERVENE
[49] As already
stated, the provisions of section 127(1) of the Act contain an
in-built right entitling a creditor or ‘
any
party interested in the estate’
to object to an application for rehabilitation. In the instant case,
Fairhaven contends that it may avail itself of that staturory
right
by virtue of its status as a creditor in Harris’ estate. The
fact that Fairhaven only became a creditor in the estate
after
sequestrartion does not
per se
preclude
it from intervening. Both of the leading authorities on insolvency,
Meskin
[5]
and
Mars
[6]
,
are of the view that, even in the case of a post-sequestration
creditor properly so-called
[7]
,
the right to object is available. As is pointed out in
Meskin
such a creditor may, for instance, wish to execute against property
acquired by the insolvent during administration adversely to
the
trustee and there is accordingly no logical basis to refuse that
right of action. But in the present case Fairhaven has taken
cession
of an existing claim against the estate and
per
se
has the requisite
locus
standi
in terms of sec 127(1) of
the Act to object to the proposed rehabilitation.
[50] The real issue
in this matter is whether Fairhaven has availed itself of that right
for a
bona fide
purpose. It is argued on behalf of Harris that where a party such as
Fairhaven exercises that right for an ulterior purpose, and
this
amounts to an abuse of the process of the court, a court may exercise
its inherent jurisdiction to protect itself and other
litigants (such
as Harris) from the abuse of its process. Indeed, it is the duty of a
court to step in and prevent such abuse.
[8]
Just what constitutes abuse will be determined by the particular
facts and circumstances of each case, but generally speaking,
‘
an abuse
of process takes place where the procedures permitted by the Rules of
Court to facilitate the pursuit of the truth are
used for a purpose
extraneous to that object.’
[9]
[51] In
National
Potato Co-Operative
[10]
the Supreme Court of Appeal was called
upon to determine whether litigation pursuant to an alleged
champertous agreement
[11]
amounted to an abuse of process. Southwood AJA described the factors
to be considered as follows –
“
In
general, legal process is used properly when it is invoked for the
vindication of rights or the enforcement of just claims and
it is
abused when it is diverted from its true course so as to serve
extortion or oppression; or to exert pressure so as to achieve
an
improper end. The mere application of a particular court procedure
for a purpose other than that for which it was primarily
intended is
typical, but not complete proof, of
mala
fides
. In order to prove
mala
fides
a further inference that
an improper result was intended is required. Such an application of a
court procedure (for a purpose other
than that for which it was
primarily intended) is therefore a characteristic, rather than a
definition, of
mala fides.
Purpose or motive, even a mischievous or malicious motive, is not in
general a criterion for unlawfulness or invalidity. An improper

motive may, however, be a factor where the abuse of the court process
is in issue. (
Brummer v Gorfil
Brothers Investments (Pty) Ltd en andere[1999(3) SA 389 (SCA)]
at 412I-J;414I-J and 416B).  Accordingly, a plaintiff who has no
bona fide
claim but intends to use litigation to cause the defendant financial
(or other) prejudice will be abusing the process (see
Beinash
and Another v Ernst & Young and Others
1999(2) SA 116 (CC)…. para [13]). Nevertheless it is important
to bear in mind that courts of law are open to all and it
is only in
exceptional cases that a court would close its doors to anyone who
wishes to prosecute an action… The importance
of the right of
access to courts enshrined by s 34 of the Constitution has already
been referred to. However, where a litigant
abuses the process this
right will be restricted to protect and secure the right of access
for those with
bona fide
disputes…”
[52] In his argument on
behalf of Fairhaven, Mr Duminy SC resorted to a detailed analysis of
the 2 judgments of the Supreme Court
of Appeal in
Brummer
(Nienaber JA for the majority and Streicher JA for the minority).
He referred to the distinction drawn by Nienaber JA at 412A (in

consideration of the approach adopted by Streicher JA which was said
by Nienaber JA to involve an incorrect application of the
English
law) between an “
abuse of the
process of the court”
and an “
abuse of the legal process
”. Nienaber JA
cautioned that in his view, an abuse of the legal process (‘
misbruik
van die regsproses’)
had to be distinguished from abuse of
the court process itself (more properly, according to the learned
judge to be called the “court
procedure”).
[53] Counsel
observed that, with reference to the judgment of Lord Denning in
Goldsmith v
Sperrings Ltd
[1977]
2 All ER 566
(CA) at 574, Nienaber JA distinguished the fundamental
difference between the position in English law and that in our law.
In our
law , as I understand the approach posited, an improper motive
will not necessarily be regarded by the court as consituting an
unconscionable or unlawful objective
[12]
which merits censure,  if the end result of the application of
that process is not legally tenable or permissible. In relation
to
the English law approach, which Nienaber JA said was to be
distinguished from our law, Lord Denning described the position as

follows:
“
In a
civilised society, legal process is the machinery for keeping order
and doing justice. It can be used properly or it can be
abused. It is
used properly when it is invoked for the vindication of men’s
rights or the enforcement of just claims. It
is abused when it is
diverted from its true course so as to serve extortion or oppression;
or to exert pressure so as to achieve
an improper end. When it is so
abused, it is a tort, a wrong known to the law. The judges can and
will intervene to stop it. They
will stay the legal process, if they
can, before any harm is done. If they cannot stop it in time, and
harm is done, they will
give damages against the wrongdoer….
At other times the
abuse can only be shown by extrinsic evidence that the legal process
is being used for an improper purpose. On
the face of it, in any
particular case, the legal process may appear to be entirely proper
and correct. What may make it wrongful
is the purpose for which it is
used. If it is done in order to exert pressure so as to achieve an
end which is improper in itself,
then it is wrong known to the law.
This appears distinctly from the case which founded this tort.”
[54] The distinction
to which Nienaber JA adverted is embraced in the cited passage from
the judgment of Southwood AJA in
National
Potato Cooperative,
and
is consistent with the following approach of Corbett JA in
Kalil
[13]
to which Nienaber also refers:
“
The
English authorities so relied upon seem to be distinguishable as they
emphasise that it is a scandalous abuse of process of
the court to
seek to use a winding-up procedure to seek to enforce payment by the
company of a disputed debt as a means to exercise
pressure to seek to
exact payment. To seek to enforce payment by way of such proceedings
is legitimate in South Africa.
Estate
Logie v Priest
1926 AD 312
at
319,320;
Laeveldse Kooperasie
Beperk v Joubert
1980(3) SA
1117(T) at 1121H-1122F…. The fact that the application is
intended to enforce payment is irrelevant to the appellant
bringing
his application as a member of the first respondent; and is, in any
event, not a good ground in law, as such intention
is legitimate in
such proceedings.”
Nienaber JA observed
further in
Brummer
at 415 D-E that in
Kalil
Corbett JA
stressed that the emphasis fell on the “
behoorlikheid”
(propriety) of the eventual objective rather than the fact that
it was employed for a secondary or ulterior purpose.
[55] If one applies the
mandated approach to the facts at hand the following issues emerge.
In the sms of 15 January 2015 Venter
was clearly incensed about the
alleged unlawful use of the domain name. While no litigation had yet
commenced, it is clear that
Venter wanted to put a stop to Shaun’s
use of it. His remedy in the circumstances was to approach the court
for appropriate
interdictory relief against Shaun, an approach which
was ultimately vindicated in the judgment of Henney J of 8 July 2015.
To be
sure, Venter could attempt to persuade Shaun in pre-litigation
correspondence to see the light and and to abandon his attempt to

misappropriate the domain name. He might even be permitted, within
limits, to express himself in strong language as some businessmen

seem wont to do. But what Venter could not do was to threaten and
abuse Harris (with whom there was no
lis
, and against whom no
order could be made
)
in an endeavour to indirectly put undue
pressure on Shaun.
[56] Two days later,
on the Saturday evening preceeding the Monday on which the domain
name interdict application was launched,
Venter sought to intimidate
Shaun at his home with threats of violence and foul language. Those
threats
per se
constituted a criminal offence (common assult
[14]
)
and can accordingly never fall within the permissible grounds of
impropriety.
[57] Shortly after the
hearing before Henney J, Venter was at it again: threatening Harris
to procure something which he could not
deliver
viz
an
undertaking that there would be no passing off of the domain name.
Undoubtedly, Venter’s objective was again to put pressure
on
Shaun through the harassment of his father. Not only were the demands
demonstrative of an attitude of paternalism, as with the
sms of 15
January, the threats were made in the absence of any
lis
between
Harris and Venter and it cannot be suggested that they were either
permissible or that they served a legitimate end.
[58] In the “Slow
Train” email of 27 June 2015, following the withdrawal of Louw
as Harris’ attorney in the rehabilitation
application, Venter
relied on dripping sarcasm and puerile one-liners to harass his
nemesis yet again. In para 3 of that email
the purpose of the
harassment was clearly stated by Venter as follows –
“
If you
don’t settle [the domain name litigation] we will ensure that
you don’t rehabilitate.”
Earlier in that
email Venter accused Harris of having “stolen” the domain
name (something which was manifestly not true
- if anything it was
Shaun, through Finnman, who had used the name to compete unlawfully
with Fairhaven) and bragged that he would
make good on his promise to
“
play dirty”.
The
latter was a reference to Venter’s avowed intention to use the
mechanism of the
Insolvency Act to
procure the establishment of an
enquiry under
sec 152(2)
before a magistrate at which Harris would be
questioned
ad nauseam
in
an endeavour to put pressure on him to persuade Shaun to concede the
domain name application.
THE OBJECT OF
INSOLVENCY INTERROGATION
[59] It is necessary
at this juncture to consider the purpose of an interrogation under
the Act. As is pointed out in
Mars
[15]
,
the Act makes provision for three distinct processes of
interrogation. Firstly, there is the procedure contemplated in sec 42

in which the integrity and validity of creditors’ claims
against the insolvent estate is considered. Secondly, there is the

enquiry contemplated under secs 64-66 at which the creditors are
entitled to interrogate the insolvent’s affairs in a public

hearing. That interrogation is similar to the public enquiry
contemplated under secs 415-416 of the old Companies Act of 1973.

Thirdly, there are the provisions of sec 152 of the Act which provide
for a private interrogation before the Master or a designated

official. This is akin to the machinery available under secs 417-418
of the old Companies Act. Sec 152 incorporates various of
the
procedural aspects of sec 64, including the subpoenaeing of witnesses
and documents, and the like.
[60] The ambit of an
enquiry under sec 152 is limited to the gathering of relevant facts
and no decision is taken by the presiding
officer which is capable of
review. As was said in
Podlas
[16]
-
“
The
presiding officer makes no findings that can detrimentally affect a
person’s rights. Nor does he determine any rights.
He simply
records the evidence and regulates the proceedings.”
[61] Such an enquiry
is traditionally veiled in secrecy and, for instance, the insolvent
is not entitled as of right to prior access
to the documentation
placed before the Master when the application for the enquiry is
requested. Nor is the insolvent entitled
to be present throughout the
enquiry. Harris would be permitted to be legally represented at his
interrogation, but thereafter
would be in the dark as to what
transpired since no record need be kept of the proceedings and the
contents of what is uncovered
are regarded as confidential. In
Strauss
[17]
Mynhardt J observed that there was a similarity between secret
enquiries held under secs 417 and 152, and that the substantial
body
of law that has developed in respect of the former is applicable to
the latter. As to the object of the latter the Learned
Judge said the
following at 663 A-C:
“
Section
152 is an important and valuable mechanism for the
Master
and the
trustee
of the insolvent estate to obtain information which might enable them
to secure assets belonging to the insolvent and to obtain
clarity on
claims or demands that have been made against the estate of an
insolvent. It is therefore also important to safeguard
the interests
of persons who furnish information to the trustee or to the Master in
a confidential manner. Should the Master too
readily make such
information available to persons such as the applicants who have been
summoned to be interrogated, a valuable
source of information for the
Master, or the trustee, might be destroyed. It is therefore also
important for the Master, as a matter
of policy, to keep information
confidential which has been furnished to him in a confidential
manner.”(Emphasis added)
[62] There is however an
important distinction between secs 417 and 152. The former is
controlled through the intercession of the
High Court and the Master,
and in the event that the interrogation is to take place under the
aegis of the Court, a court appointed
commissioner is customarily
appointed as presiding officer (often a legal practitioner or retired
judge with experience in corporate
insolvency). Under sec 152,
however, it is solely the Master that may convene the enquiry before
either a Magistrate or other civil
servant. The parties entitled to
question a witness at a sec 152 enquiry are only the Master (or the
civil servant) and the insolvent’s
trustee. Given the purpose
of a sec 152 enquiry, it would usually be the trustee who would be
the driving force behind the enquiry
since that would be the party
interested in establishing, for example, the existence of hidden
assets which might be recovered
for the benefit of creditors.
Further, there is no provision in sec 152 for a creditor to
interrogate the insolvent or other party
subpoenaed to the enquiry,
and it is difficult to understand how the Fairhaven interests would
give effect to Venter’s avowed
recreation of the Star Chamber.
[63] Be that all as it
may, at the time that this part of the campaign of harassment of
Harris was conceived, it was considered
by the Fairhaven interests
(in whatever corporate guise they decided to cloak themselves) that
they did not have any legal basis
to ask the Master for such an
enquiry since they were not a creditor in Harris’ estate. The
approach of their attorney (then
purporting to act on behalf of the
somewhat paradoxically named “Dream World”) to Shaw
setting out the client’s
intention to acquire such a claim was
met with significant caution by an experienced liquidator. The move
was something which genuinely
surprised Shaw since he confessed that
he had never before come across a situation where an interrogation
under sec 152 had been
employed to resolve the disintegration of a
business relationship. Nevertheless, as we have seen, the attorney
then went about
contacting the known major creditors whose claims had
not been settled in full (all banks) to procure what was seen by
Venter as
the most effective method to ruin Harris financially and
attain complete control of Summerclub.
[64] The position
seems to have been that the procurement of a claim against Harris’
estate would ensure the Fairhaven interests
the right to oppose the
rehabilitation application but, in so doing, would provide them with
a ‘stalking horse’
[18]
with which to approach the Master for the establishment of a sec 152
enquiry. Ultimately such an enquiry would not afford those
interests
an opportunity to interrogate Harris with a view to exposing his
alleged secretion of personal assets in Avodah: that
function is
entrusted to the trustee who, it is clear, has expressed no further
interest in the matter. On that basis alone it
seems to me that the
scheme was still-born and can never have been said to be persuing a
legitimate aim.
THE REAL INTENTION OF
THE FAIRHAVEN INTERESTS
[65] In the “Slow
Train” email to Harris of 27 June 2015 Venter made no attempt
to disguise his intention at that time.
Having explained why he had
made contact with Shaw in January 2015 Venter went on to say the
following:
“
I gave you
a full copy of the documents [handed to Shaw] and my reasoning (sic)
that I would use to institute a 152 investigation.
I did this as I
did not want your money and did not want to fight. I wanted our
website back. Your actions or lack thereof left
me with no
alternatives…”
And later in the same mail
the prospect of financially ruining Harris is highlighted:
“
I am in
the final stages of negotiating the purchase of two more BIG claims
in your estate that are going to cost you a fortune….
“…
.At
this point there will be no settlement at all and I will come for
every last cent that you have.”
[66] It must be borne in
mind that at this stage the domain name litigation had been argued
and judgment was awaited, Fairhaven
having elected to exercise its
legal remedies by way of an urgent application to this court. To the
extent that Venter was intent
upon bypassing the legal route which
his company had adopted, with the issuing of threats and promises of
further harassment ultimately
designed to reduce Harris to penury, he
brought the matter squarely within the the ambit of the proscribed
conduct referred to
by Lord Denning in
Goldsmith.
On behalf of
the Fairhaven interests, Venter turned his back on the “
the
machinery for keeping order and doing justice”
and abused
it by diverting “
it from its true course so as to serve
extortion or oppression; or to exert pressure so as to achieve an
improper end.”
And he did so in the absence of a legitimate
end which may otherwise have saved his admitted abuse.
[67] The duty of the court
in such circumstances was described thus by de Villiers JA in
Hudson
at 268:
“
When
therefore the Court finds an attempt made to use for ulterior
purposes machinery devised for the better administration of justice,

it is the duty of the court to prevent such abuse.”
And in
Beinash
Mahomed CJ said the following in a matter in which the primary
objectives of Rules 35 (discovery) and 38 (subpoena
duces tecum
)
were being considered in relation to allegations that they had been
abused:
“
The object
of Rule 35 is to enable a litigant to discover documents in the
possession of or control of another party to the proceedings,
whereas
the primary object of Rule 38 is to secure the production of
documents from persons who are not necessarily parties in
the main
proceedings… The distinction is perfectly sound, but the
machinery contained in both of these rules must be utilised
in a
bona
fide
manner and not for the
purposes of pursuing ends extraneous to the real objectives sought to
be obtained through these rules. The
existence of
bona
fides
is the basic precondition
upon which both of these rules are premised.”
[68] The absence of
bona
fides
on the part of the Fairhaven interests and the persuit of
extraneous ends by its controlling shareholder are adequately
demonstrated
in the numerous passages to which I have referred but
for the sake of completeness I would highlight the following 2
instances.
Firstly, the unconscionable threats by Venter of physical
violence to Shaun and the intended reduction of Harris to penury over

a protracted period of time can never be considered to have been
bona
fide.
Secondly, and as demonstrated above, the acquisition of the
claim from Nedbank was not for a legitimate purpose as contemplated
by sec 152. Venter himself said so in the “Slow Train”
email of 27 June 2015, but even then he did not reveal to Harris
what
his real quest was. This was left up to the Fairhaven interests’
attorney to negotiate under the protection of without
prejudice
correspondence.
[69] Indeed, the very fact
that Fairhaven’s attorney ignored the caution of Shaw and began
fossicking around to acquire a
claim on behalf of Fairhaven in and of
itself demonstrates that at the outset Fairhaven had neither an
actual nor legitimate interest
in Harris’ estate. It had to
spend a substantial amount of money and time to acquire the
locus
standi
which it considered necessary to persue what it regarded
as a legitimate end – the holding of an enquiry to ostensibly
address
the interests of creditors - but which in truth was an
exercise “
extraneous to the real objectives sought to be
obtained”.
[70] In my considered
view, the settlement proposal put forward in June 2015 by Fairhaven’s
attorney to Louw finally raises
the true motive for the campaign of
harassment of Harris. Not only did Venter wish to regain use of the
Fairhaven domain name,
he wanted to procure Avodah’s share in
Summerclub for no consideration and oblige Harris to pay R1,5m
towards the Fairhaven
interests’ legal expenses and the
acquisition of Nedbank’s claim. That proposal demonstrated
unequivocally that the
“
real objective”
of
Venter’s campaign of abuse and pressure was a commercial
interest: the acquisition of an asset which could not otherwise
be
procured by the Fairhaven interests via the litigation route. While
it is perhaps arguable that an application for the winding
up of
Summerclub under
sec 81(1)(d)
or (e) of the
Companies Act, 71 of 2008
might have facilitated the desired result, neither the urgent
application for an interdict for the passing off of the domain name,

nor an interrogation before the magistrate Somerset West in terms of
sec 152
could ensure that the Fairhaven interests would acquire total
control of the equity in Summerclub.
[71] In his mail to
Shaw of 20 January 2015, Venter casually mentioned half way through
the 2
nd
page thereof that he had a buyer for the Trust’s half share in
Fairhaven. This email was copied by Shaw to Harris who says
that this
remark did not escape his attention. Yet in the correspondence which
followed Venter made no mention of his designs in
regard to that
shareholding. It only cropped up fairly late in the piece in a letter
which his attorney did not expect would find
its way into any court
papers given its classification as “without settlement”
correspondence. Harris’ new attorneys
were quick to point out
that the letter did not truly enjoy litigation privilege as it was
not a
bona fide
attempt
to settle
[19]
and included it as part of the answering papers. The Fairhaven
interests, protest notwithstanding, did not seek to strike out the

letter but sought only to give it context by pointing out that it
followed upon Louw’s solicitation and annexed a copy of
his
letter to the replying affidavit. In my view, it matters little that
the settlement proposal followed upon Louw’s entreaties:
the
importance thereof is that it formally exposed the true motive for
the campaign against Harris.
[72] Finally, there is the
fact that, notwithstanding Fairhaven’s success in the domain
name application, Venter was intent
on proceeding with the
sec 152
enquiry regardless. In light of the repeated demands from 15 January
to 27 June 2015 that if he wished to be left in peace Harris
should
return the domain name which he had allegedly misappropriated, one
would have thought that when the application succeeded
with a
favourable costs order before Henney J early in July 2015, Venter had
achieved exactly what he had set out to do all along
and that he
would abandon his pursuit of Harris. But when regard is had to the
settlement proposal put forward to Louw on 11 June
2015, the very
essence of the scheme is ultimately revealed (as it was, almost in
passing) to Shaw on 20 January 2015. Against
payment by Harris of a
substantial amount of money, and against transfer by Avodah of its
shares in Summerclub, the enquiry would
go away.  The proposal
by the Fairhaven interests to settle the dispute between the parties
on those terms held no pecuniary
benefit for Harris. Rather he was
being offered freedom from further harassment, the cancellation of
the insolvency inquiry and,
ultimately, his status as a rehabilitated
insolvent, against payment of a fairly hefty premium.
[73] In the circumstances
I am not persuaded that the Fairhaven interests have established any
legitimate cause which would bring
the vendetta against Harris within
the ambit of propriety considered by Nienaber JA in
Brummer.
The
point of distinction between the majority and minority judgments in
that case so fervently argued by Mr Duminy SC finds
no basis in the
evidence put up on behalf of Fairhaven. The following extracts from
the 161 page replying affidavit of de Decker
are worth mentioning in
that regard –
“
16. The
only reason
why the parting of the ways between Fairhaven (and in particular
Venter) and the insolvent and his son on the other (sic), developed

into a ‘very personal fight’ is because of the actions of
the insolvent and his son in attempting to steal the active
domain
name of the Fairhaven estate (being ‘fairhavenestate.co.za’).
This and this alone
resulted in the prevailing comity between Fairhaven (Venter) and the
insolvent (and his son) being brought to an abrupt end on
15 January
2015 and leading to the domain name litigation.”….
(
Emphasis added)
29. In truth,
the explanation is a simple one. Venter - who is a very wealthy man
and has an interest in Fairhaven - vowed to retaliate
for the
groundless attempt to steal the Fairhaven domain name on 15 January
2015 …..
34. What is
clear - and indeed common cause - is that the approach to Shaw came
in the wake of the attempt by Shaun to steal the
Fairhaven domain
name…
73.1
The investigations into the conduct of the insolvent…
were spearheaded by Venter, as from 15
January 2015, in reaction to
the attempt by Shaun to steal the Fairhaven business…..
155.1 ….
Venter only cried foul once Shaun elected to violate the agreement……
173.7  If
Shaun had not attempted to steal the domain name and jeopardise
Fairhaven’s business, Venter would not have
taken up the
cudgels against the insolvent or his son, as from 15 January 2015, or
at all….”
[74] In these passages
(and various others in the papers) no claim is made to some loftier
purpose or legitimate end which justified
the vendetta of coercion
against Harris or which would render the campaign of abuse tolerable
in the pursuit of another purpose.
Nor is any apology offered in the
court papers for the offensive nature of the demands made by Venter
or the language and innuendo
employed therein. Rather, de Necker
seems to brazenly defend his business partner’s antics by
resorting to the “blame
game” and heaping the
responsibility for the state of affairs on Shaun.
[75] That Fairhaven’s
intervention in the rehabilitation application is manifestly an abuse
of process is further demonstrated
by the fact that, according to the
founding affidavit, its business is that of a property developer.
Fairhaven does not involve
itself in the purchase or factoring of
debts, or debt-collecting. Other than as a vehicle for Venter (and
possibly Wiehahn) it
has no interest in the intervention application.
[76] For these
reasons I am of the view that Fairhaven’s application to
intervene in the rehabilitation application is without
merit, is not
bona fide
and
is an abuse of the process of this court which, in terms of the
authorities to which I have referred, must be stopped dead in
its
tracks. The application falls to be refused with costs.
REFUSAL OF THE
APPLICATION FOR POSTPONEMENT.
[77] As I have already
said, late on Thursday 15 October 2015 Fairhaven launched an
application for postponement of the matter the
following day, a date
which the parties had agreed upon more than six weeks earlier for the
finalization of argument. In the affidavit
filed in support of the
application Korber said that he had belatedly received instructions
from his client to bring a formal application
for the court’s
recusal in the matter. He said that he had procured a transcript of
the proceedings held on 11 and 12 August
2015 on 25 August and had
forwarded a copy on to Wiehahn.
[78] Korber says that he
only read the transcript for the first time on Tuesday 13 October
2015 and when doing so formed the view
that “
the presiding
judge had formed a view adverse to the
intervening party”
as a consequence whereof he was concerned that his client might
not receive a proper hearing or obtain a fair result. After taking

the initiative and discussing the issue with counsel and Wiehahn,
Korber says he was formally instructed by Wiehahn, during the
course
of Wednesday 14 October 2015, to bring an application for recusal.
Annexed to the application for postponement is a précis
of
certain of the passages in the transcript to be relied upon for the
recusal application. These indicate that the cause for complaint

arose within the first hour or two of proceedings on the first day of
the hearing and relate to the Presiding Judge’s interchanges

with Adv Duminy SC regarding the attitude and conduct of Venter.
[79] In an affidavit
opposing the application for postponement Harris points out that
Korber was present in court throughout the
two days of the hearing in
August as Fairhaven’s instructing attorney. He complains that
the application for recusal should
have been brought at a much
earlier stage given the fact that Fairhaven’s attorney was, at
all times, aware of the conduct
of the presiding officer complained
of. He suggested too that the Presiding Judge’s remarks were
within acceptable bounds
in a matter of this sort. The application
for postponement was accordingly opposed on the basis that Fairhaven
had delayed unreasonably
in bringing the application, that it was
part and parcel of Venter and Wiehahn’s “
on-going
campaign
” against him and that a further postponement of
the case would only serve their interests. Harris pointed out that,
to the
knowledge of the Fairhaven interests, his health had
deteriorated during the course of the litigation, and he asked the
court to
dispose of the matter sooner rather than later.
[80] The principles
governing an application for postponement are trite
[20]
.
The respondent in such an application has a procedural right for the
matter to proceed on the day upon which it has been set down.
In the
present instance, as I have pointed out, the date was agreed upon
many weeks before. In order to succeed in such an application
an
applicant must show “a good and strong reason” for the
relief sought, it must give a full and satisfactory explanation
and,
importantly, it must make that application as soon as becomes aware
of the necessity to do so, it must be
bona
fide
and not use it as a tactical
monoevre
[21]
[81] I do not intend
entering upon the merits of the application for recusal at all as
this was not fully argued. But if there is
any merit in that
complaint, the Fairhaven interests would have been aware of the
alleged basis therefore from the first day of
the hearing given that
their attorney was present in court throughout argument of the
matter. In that context the decision to bring
the application for
postponement at the last minute is not adequately explained in the
affidavit. The fact that the Fairhaven interests
left matters late is
consonant with their overall conduct of harassment and disregard for
professional courtesy throughout this
saga.
[82] In this regard one
notes, for example, that the urgent application in the domain name
application was served with very short
notice to Shaun and was
effectively brought
ex parte.
The application for leave to
intervene itself was similarly served on Harris’s attorneys
very shortly before the unopposed
hearing in the motion court was due
to take place. And then when Louw withdrew as attorney of record and
ENS sought an indulgence
to file their client’s affidavit late,
the intemperate response from the Fairhaven interests was an urgent
chamber book application
brought during court recess on minimal
notice to compel the filing of the affidavit.
[83] I was not persuaded
that the Fairhaven interests had shown good cause for interference
with Harris’ procedural right
to proceed to finality , nor that
they had explained the inordinate delay of almost 2 months in
bringing the application for recusal.
Their conduct smacked of mala
fides and the application was accordingly refused. I should add that
Mr Duminy SC was fully prepared
to continue with argument and no
prejudice was occasioned to Fairhaven by virtue of the fact that the
application for postponement
was summarily dismissed. In light of
their conduct in delaying the bringing of the application, and the
inconvenience which it
occasioned in protracting the finalization of
the matter on that day, a punitive costs order was warranted.
THE MERITS OF THE
APPLICATION FOR REHABILITATION
[84] In his
applicantion for rehabilitation Harris must satisfy the court that he
is a fit and proper person to be permitted to
trade with the public
on the same basis as any other honest business person.
[22]
The test was formulated thus by Wessels J nearly a century ago
[23]
,
but despite the myriad changes in commercial practice and business
ethics in that time, it remains very much applicable today
–
“
I have to
enquire whether the applicant is such a person as ought to be
rehabilitated - is he a person who ought to be allowed to
trade with
the public on the same basis as any other honest man? That depends
entirely on how he conducted his trade before he
became insolvent. If
he conducted himself in a negligent manner, or so as to deceive
others, he is not a person who ought to be
rehabilitated until it is
clear that he intends to adopt better methods. His rehabilitation
ought to be withheld from him, or at
any rate it ought to be
postponed for such a time that he will receive a severe lesson as to
the necessity of trading honestly.”
[85] In light of my
refusal of the application to intervene I am not required to deal
with the various grounds relied upon by the
Fairhaven interests in
the affidavit of de Decker which were said to be a bar to
rehabilitation.
The allegations made by
Harris in the affidavits filed in support of the rehabilitation
application therefor stand uncontradicted.
In any event, the founding
affidavit, the answer and the reply thereto in the intervention
application raised material disputes
of fact. Those disputes fell to
be resolved in terms of
Plascon-Evans
[24]
.
Harris did not ask for a referral to oral evidence but rather relied
on dismissal of the intervention. Fairhaven did not
pursue that
option either, believing that any such disputes could be addressed at
the
sec 152
enquiry. I have already demonstrated why this would not
have been possible given the limited rights afforded to Harris at
such
an enquiry, the absence of any record keeping and the fact that
there is no process by which to incorporate such testimony in these

proceedings.
[86] Nevertheless, in
light of the issues raised in the intervention application, and since
I had not come to a firm view on the
matter, when the date for
continuation of argument was fixed in September 2015 I requested the
Master and the trustees to file
supplementary reports. I was
concerned that there may be issues which arose  from the papers
filed in the intervention application
as to the appropriateness of
the proposed rehabilitation which those parties would wish to address
given their fiduciary duties
to the court and which needed to be
considered by the court.
[87] In a comprehensive
affidavit filed on behalf of the trustees, Shaw did not appear to
express any concerns. Having read the
full set of papers filed in
this application, he pointed out repeatedly that he no longer had
access to his file in this matter
since it had been destroyed many
years ago. He was therefore unable to say whether there was any truth
in the allegations by de
Decker that Harris had indeed failed to
comply with his obligations under insolvency to file the necessary
documentation once he
had been reminded by Shaw to do so. Shaw does
say that, from his recollection, Harris had cooperated and assisted
in the winding
up of the estate ‘
where he could’
.
Certainly, there is no recollection on the part of Shaw that Harris
had not done what was required of him and he remains resolute
in his
view (as he did in 2012) that there is no basis to refuse the
application for rehabilitation.
[88] The supplementary
report by the Master is regrettably of little value to the court.
Firstly, there is no indication that the
Master has considered the
full set of papers, including those filed in the application to
intervene and that she hs applied her
mind thereto. In addition, I
have to say that the supplementary report is poorly drafted as the
following example demonstrates:
“
6.
Therefore the letter dated 21 July 2015 is not a proof that, the
Master has received the trustees report and does not have Master
date
stamp. Since now the Master has received copy of the trustee’s
supplementary report attached to the letter dated to
September 2015
from Ens attorneys the master will consider the supplementary reports
for the rehabilitation of Mr Davies Harris.”
[89] The Master goes on to
note that an enquiry in terms of
section 152(2)
has been convened and
offers the court a brief synopsis of the import of that subsection.
While abiding the decision of the court
the Master says that “
based
on the above section
(ie 152(2))”, the application for
rehabilitation should be held in abeyance pending finalisation of the
enquiry. The Master
does not draw to the court’s attention any
additional factors in the rehabilitation application which she
believes would
militate against a rehabilitation order. All that she
seems to say is that the enquiry ought to go ahead because it has
been convened,
although she does not say what benefit would accrue
from the holding thereof.
[90] In her initial report
the Master confirmed that all of the requisite statutory requirements
had been complied with by Harris,
save for the filing of the
trustees’ reports. In his supplementary affidavit dated 31 July
2015 Harris explains that there
were two trustees’ reports
filed with the Master on 29 May and 9 June 2015, and in the garbled
explanation referred to in
para 88 above the Master seems to
acknowledge that this is correct.
[91] The supreme irony in
this matter is that having done business extensively with Harris for
any number of years after his sequestration,
the Fairhaven interests
had no apparent basis to doubt Harris’ integrity as a
businessman until January 2015. And, when they
did so, as I have
found, such professed doubts were predicated on ulterior motive.
Certainly, the Fairhaven interests had no qualms
about paying a large
sum of money to the Trust in May 2014 at a time when they claim they
were fully aware (for the first time,
they allege) of Harris’
status as an unrehabiltated insolvent. It is significant too, I
believe, that Shaw was a party to
that agreement and that there was
nothing untoward in the transaction which appears to have raised any
concerns on his part. Indeed,
when he filed his report in relation to
this application a year later, the May 2014 agreement would
presumably have come to mind
and there appears to have been nothing
at that stage either that troubled him in relation to the lawfulness
of the agreement
[92] As far as the
Ayodah Trust is concerned, I would only add that the use of a trust
by an insolvent to hold a family home, for
example, has been
considered by this court to be a matter of financial prudence and
estate planning
[25]
.
Furthermore, there is no evidence before this court to suggest that
the Avodah Trust was set up deceitfully, or that Harris played
any
roll in relation to the administration thereof. After all, an
independent trustee (a senior attorney who has practised in this

Division for many years) was appointed and it is hard to believe that
the trust would have been permitted by him to be abused by
Harris as
his
alter ego.
[93] If the reasons for
Harris’ insolvency are considered, one sees a property
developer who flew high and ultimately too
close to the sun – a
person who overcommitted himself in terms of a large property
transaction (which leading financial institutions
were prepared to
finance), took his profits before they had actually accrued, and
consequently became entangled in a spiral of
debt. Finally, there is
no evidence before the court which suggests that Harris was deceitful
or duplicitous in his subsequent
employment as an estate agent. On
that score, the undisputed evidence is that Harris discussed his
prospective employment with
Shaw at the time and the latter says that
he urged Harris to find a job and restore his self-esteem and
financial independence.
[94] I am
accordingly satisfied that Harris has made out a proper case for his
rehabilitation and that an order to that effect should
be granted.
COSTS
[95] I have already
granted a punitive costs order in the application for postponement on
16 October 2015. For the sake of completeness
and for the assistance
of the Taxing Master, I shall include that order herein. In regard to
the application to intervene Mr Woodland
SC preferred to ask only for
costs on the party and party scale to be awarded in favour of Harris
in the event that the intervention
was unsuccessful. Those costs,
which include the costs of the affidavits filed in opposition to the
intervention application, will
be awarded.
[96] As I have
already observed, the founding papers in the intervention were
lengthy. The replying papers filed by the Fairhaven
interests were
excessive and unnnecessrily burdened with repetitive and
argumentative matter. Given that they run to some 160 pages,
I
indicated to Fairhaven’s counsel at the outset that I was
minded to apply the advice of Schutz JA in
Phambili
Fisheries
[26]
to “
declare war on unnecessarily
prolix replying affidavits and upon those who inflate them”.
In
the result, however, it was considered more convenient and in the
interests of justice to permit Harris to file a fourth set,
there
being no application by Harris to strike out the reply. As a mark of
my displeasure at the length and content of the replying
affidavit I
shall order that Fairhaven bear the costs of the fourth set.
[97] The costs order which
I shall make is intended to burden Harris with the cost of bringing
the rehabilitation application on
an unopposed basis and, to the
extent that Harris elected to file a supplementary affidavit in that
application detailing events
which occurred after the filing of the
application, I believe that it is only fair that he should carry
those costs. If there are
any other costs incurred in the
rehabilitation application which are not covered by this order and
which arise as a consequence
of Fairhaven’s attempted
intervention, they shall be for Fairhaven’s account
ORDER OF COURT
A.
The estate of David Harris (“Harris”)
is hereby rehabilitated.
B The application by
Fairhaven to intervene in the rehabilitation application is dismissed
with costs on the party and party scale.
C The costs in the
application for rehabilitation, including the
supplementary affidavit filed on 3 August 2015, are
to be borne by
Harris.
D Any other costs in
the application for rehabilitation occasioned as a result of the
application to intervene are to be borne by
Fairhaven Country Estate
(Pty) Ltd (“Fairhaven”) on the party and party scale.
E The costs incurred by
Harris in filing the supplementary affidavit in the intervention
application on 14 August 2015 are to be
borne by Fairhaven on the
party and party scale.
F Fairhaven is to
bear the costs of the application for the postponement of the matter
on 16 October 2015 on the attorney and client
scale. For the
convenience of the Taxing Master it is recorded that that application
lasted for approxiamately one and three quarter
hours of the total
court time taken up on that day.
GAMBLE, J
[1]
The section reads as follows:
“
(2) An insolvent who is not
entitled under subsection (1) to apply to the court for his
rehabilitation and who has previously
given to the Master and to the
trustee of his estate in writing and by advertisement in the Gazette
not less than six weeks’
notice of his intention to apply to
the court for his rehabilitation may so apply-
(a) after 12 months have elapsed from the
confirmation by the Master, of the first trustee’s account in
his estate…..”
[2]
Sec 152(2)
provides that if at any time after
sequestration and before rehabilitation the Master is of the view
that, inter alia, the insolvent
is able to provide information
“
which the Master considers
desirable to obtain, concerning the insolvent, or concerning his
estate or the administration of the
estate or concerning any claim
or demand made against the estate” ,
the
insolvent can be given notice to appear before the Master , a
magistrate or a specified officer in the public service on a
fixed
date for purposes of interrogation.
[3]
A notorious international motorcycle club
regarded in many quarters as thuggish and aggressive  (See
Wikipedia Online Encyclopaedia
sv
“Hell’s angels”)
[4]
No doubt a reference to the 1979 folk-rock album
of that name released by American singer-songwriter Bob Dylan. The
title song
is said to be an allegorical reference to an impending
apocalypse (see Wikipedia Online Encyclopedia  s.v  “Slow

Train (Bob Dylan Song)”)
[5]
Meskin
Insolvency Law and Its Operation in Winding-up (Magid
et al
eds) at 14-18 para14.3.5
[6]
Mars
The Law of Insolvency in South Africa (9
th
ed
, Bertelsman
et al
eds) at 571 para 25.16
[7]
A creditor who acquires a right of action against the insolvent
after the final order of insolvency has been made –
Ex
parte
Dinath
1954(3) SA 748 (T)
[8]
Hudson v Hudson and another
1927
AD 259
at 268;
Clairson’s CC v
MEC for Local Government. Environmental affairs and Development
Planning and another
2012(3) SA 128
(WCC) at 134 D-E
[9]
Beinash v Wixley
1997(3)
SA 721 (SCA) at 734 F-G.
[10]
PriceWaterhouseCoopers Inc and Others v
National Potato Co-Operative Ltd
2004(6)
SA 66 (SCA) para [50]
[11]
“
An agreement in terms of which a person
provides funds to enable a litigant to prosecute an action in return
for a share of the
proceeds”(ibid)
[12]
“’
n Afkeurenswaardige of onbehoorlike
oogmerk”
[13]
Kalil v Decotex(Pty) Ltd and Another
1988(1) SA 943 (A) at
955 G-J
[14]
South African Criminal Law and Procedure Vol II (Third Ed –
Milton)
at 407
[15]
Op cit 418
et seq
[16]
Podlas v Cohen and Bryden NNO and Others
1994(4) SA 662 (T) at 675I
[17]
Strauss and Others v The Master and Others
2001(1) SA 649 (T)
at 662 -3
[18]
In
Phillips v Botha
1999(2) SA 555(SCA) at 565E-F Hoexter
JA cited with approval the following passage from the judgment of
the Australian High Court
in
Varawa v
Howard Smith Co Ltd
[1911] HCA 46
;
(1911) 13 CLR 35
at
91 : “..(T)he term ‘abuse of process’ connotes
that the process is employed for some purpose other
than the
attainment of the claim in the action. If the proceedings are merely
a stalking –horse
to
coerce the defendant in some way entirely outside the ambit of the
legal claim upon which the court is asked to adjudicate
they are
regarded as an abuse for this purpose…’ (Emphasis
added)
[19]
Zeffert and Paizes
, The South African Law of Evidence, 2
nd
ed at 703
[20]
See for example
National
Police Service Union and others v Minister of Safety and Security
and others
2000(4) SA 1110 (CC);
Mc
Carthy Retail Ltd v Shortdistance Carriers CC
2001
(3) SA 482
(SCA)
[21]
Myburgh Transport v Botha T/A SA Truck Bodies
1991(3) SA 310(NmSC) at 315D-E
[22]
Ex parte le Roux
1996(2) SA 419 (C) ;
Ex parte
Greub
v The Master
1999(1) SA 746 (C)
[23]
Ex parte Heydenreich
1917
TPD 657
at 658
[24]
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
1984(3) SA 623 (A)
[25]
Van Zyl NO and another v Kaye NO and another
2014(4) SA 452 (WCC) at 458 para
[17]
[26]
Minister of Environmental Affairs and Tourism
v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs
and Tourism v
Bato Star Fishing (Pty) Ltd
2003(6)
SA 407 (SCA) at 439H