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[2020] ZAWCHC 46
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AJVH Holdings (Pty) Ltd and Others v Steinhoff International Holdings NV and Another; AJVH Holdings (Pty) Ltd and Others v Steinhoff International Holdings NV and Others (8276/2018) [2020] ZAWCHC 46 (4 June 2020)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Before: The Hon. Mr Justice
Binns-Ward
Hearing: 2 June 2020
Judgment:
4 June 2020
Case
number: 8276/2018
In
the matter between:
AJVH
HOLDINGS (PTY)
LTD
First
Applicant
FULL
TEAM SURE TRADE (PTY) LTD
Second Applicant
AQUILAM
HOLDINGS (PTY)
LTD
Third Applicant
LIBER
DECIMUS (PTY)
LTD
Fourth Applicant
XANADU
TRADE AND INVESTMENTS 327 (PTY) LTD
Fifth
Applicant
and
STEINHOFF
INTERNATIONAL HOLDINGS NV
First Respondent
TOWN
INVESTMENTS (PTY) LTD
Second
Respondent
Case
no. 6757/2019
And
in the matter between:
AJVH
HOLDINGS (PTY)
LTD
First
Applicant
FULL
TEAM SURE TRADE (PTY) LTD
Second Applicant
AQUILAM
HOLDINGS (PTY)
LTD
Third Applicant
LIBER
DECIMUS (PTY)
LTD
Fourth Applicant
XANADU
TRADE AND INVESTMENTS 327 (PTY) LTD
Fifth
Applicant
and
STEINHOFF
INTERNATIONAL HOLDINGS NV
First Respondent
TOWN
INVESTMENTS (PTY) LTD
Second
Respondent
PEPKOR
HOLDINGS
LTD
Third Respondent
PEPKOR
SPECIALITY (PTY)
LTD
Fourth Respondent
TEKKIE
TOWN (PTY)
LTD
Fifth Respondent
JUDGMENT
Delivered by email to the
parties and release to SAFLII.
BINNS-WARD J:
[1]
In this application, the applicant
companies, which are the plaintiffs in case no. 8276/2018
and also in case no. 6757/2019,
seek orders in the following terms in
their notice of motion dated 11 November 2019:
1.
The
actions instituted in the above Honourable Court under case number
8276/18 and 6757/19
[1]
are consolidated under case number 8276/18.
2.
The proceedings in case no. 6757/19 shall
stand in abeyance and the costs of those proceedings shall be
determined in case number
8276/18.
3.
The third, fourth and fifth respondents are
joined as the third, fourth and fifth defendants in case number
8276/18.
4.
The applicants are to deliver all pleadings
filed of record under case number 8276/18 on the parties joined in
terms of paragraph
3 within 10 days of the date of this order.
5.
The applicants are to deliver all pleadings
filed under case number 6757/19 on (sic) the first and second
respondents.
6.
The applicants are granted leave to amend
the particulars of claim in the action under case number 8276/18 in
accordance with the
notice of intention to amend annexed hereto
marked “A”.
7.
The costs of this application are to stand
over for determination in the action under case number 8276/18,
alternatively, if this
application is opposed, the costs are to be
paid by any party who opposes the application, including the costs of
two counsel where
employed.
[2]
The originally cited defendants in case
no. 8276/2018 are Steinhoff International Holdings NV and Town
Investments (Pty) Ltd.
They are the first and second defendants
respectively in that action. Those two companies are also the
first and second defendants
in case no. 6757/2019 and are cited as
the first and second respondents in the current application.
The third, fourth and
fifth respondents in the current application,
viz. Pepkor Holdings Ltd (Pepkor Holdings), Pepkor Speciality (Pty)
Ltd and Tekkie
Town (Pty) Ltd, are the third, fourth and fifth
defendants in case no. 6757/2019. Tekkie Town (Pty) Ltd and
Pepkor Speciality
(Pty) Ltd are wholly owned subsidiaries of Pepkor
Holdings. Those three respondents will henceforward, when
referred to collectively
in this judgment, be called ‘the
Pepkor respondents’.
[3]
Only the Pepkor respondents played an
active part as respondents in the current matter.
[4]
It was eventually agreed between the
actively participative parties that directions should be given as
sought in terms of paragraphs
3, 4 and 6 of the notice of motion, and
that the costs related to that part of the application should stand
over for determination
in case no. 8276/2018. The orders
to be made will give effect to that agreement. Accordingly, the
only matter
in contention at the hearing before me on 2 June 2020 was
whether the applicants should be afforded the relief sought in terms
of paragraphs 1 and 2 of the notice of motion. (The relief
sought in terms of paragraph 5 of the notice of motion would be
germane only if the applicant’s succeeded in obtaining a ruling
in terms of paragraph 1.)
[5]
It will suffice for the purpose of
determining the issue in contention to describe what the action in
case no 8276/2018 is
about in simplified terms. It was
instituted in May 2018 and concerns a claim by the plaintiffs for the
return to them of
the Tekkie Town business consequent upon their
rescission of the contract in terms of which they and the second
defendant, Town
Investments (Pty) Ltd (previously named K2016159084
(South Africa) (Pty) Ltd), disposed of the business as a going
concern to Steinhoff
International Holdings NV (Steinhoff). The
contract was concluded on 29 August 2016. The
plaintiffs claim
restitutio in integrum
,
alternatively compensation in money, on the grounds that they were
entitled to rescind the contract because they had been induced
to
enter into it by certain fraudulent misrepresentations by Steinhoff’s
then chief executive officer, one Markus Jooste.
As
consideration for their disposal of the business, which was effected
by means of the transfer to Steinhoff of their respective
shares in
and claims against Tekkie Town (Pty) Ltd, which was the company in
which the Tekkie Town business was conducted, the
plaintiffs were
individually allotted shares in Steinhoff in numbers directly
proportionate to the value of their respective interests
in Tekkie
Town (Pty) Ltd. Having regard to the ostensible value of the
allotted shares, the total consideration given by
Steinhoff for the
acquisition was in the amount of approximately R3,257 billion.
[6]
It is common ground that shortly after its
acquisition of the business Steinhoff transferred the shares in
Tekkie Town (Pty) Ltd
that it had acquired from the applicants to a
subsidiary company, Steinhoff Investments Holdings Ltd (SIHL).
That transaction
occurred for a consideration equal to approximately
R2,983 billion. On the same day, 2 February 2017, SIHL in turn
transferred
the shares to Steinhoff Africa Holdings Ltd (Steinhoff
Africa) for the same consideration as it had acquired them. On
1 July
2017, Steinhoff Africa sold the shares to Pepkor Holdings
for a purchase consideration of approximately R3,391 billion, which,
according to the Pepkor respondents, was discharged by the transfer
to the seller of shares of that value in Pepkor Holdings.
The
shares in Pepkor Holdings became publicly tradeable when that company
listed on the Johannesburg Securities Exchange in September
2017.
Pepkor subsequently split the operation of the Tekkie Town business
by causing the South African based business of
Tekkie Town (Pty) Ltd
to be sold to Pepkor Speciality (Pty) Ltd.
[7]
It is readily understandable in the given
context that the applicants would need to join the Pepkor respondents
as defendants in
their action for restitution under case no.
8276/2018. They intend, in terms of the proposed amendments to
their particulars
of claim in that action, to overcome any
difficulties that the separate juristic personalities of the
companies through whose hands
ownership of the Tekkie Town business
has passed prior to the institution of the action might present to
their ability to obtain
effective relief by claiming a declaration,
in terms of
s 20(9)
of the
Companies Act 71 of 2008
, that
Pepkor Holdings and Pepkor Speciality (Pty) be ‘
deemed
not to be
[?separate]
juristic
persons in respect of any right, obligation, or liability of those
companies or of
[Steinhoff]
to
any of the plaintiffs
’.
Equally understandably in the circumstances, the Pepkor respondents
appreciated that no point would be served by
trying to oppose their
joinder as defendants in the action, whatever their view of its
merits. Hence, the agreement to their
joinder as parties in
case no. 8276/2018 mentioned at the outset of this judgment.
[8]
The action in case no. 6757/2019 (the
summons was issued on 23 April 2019), which was instituted
almost a year after that of
case no. 8276/2018, concerns a claim
by the applicants for an interim interdict
pendente
lite
. The pending action to which
the interim relief sought in case no. 6757/2019 relates is that
in case no. 8276/2018.
The plaintiffs in case no 6757/2019
seek the following substantive relief ‘
pending
the determination of case number 8276/2018
’:
A.
That the first
defendant be directed to hold available for delivery to the
plaintiffs, alternatively to Steinhoff Investment Holdings
NV, the
Sale Shares (being the shares in Tekkie Town (Pty) Ltd which
Steinhoff Investment Holdings NV obtained from the plaintiffs)
with
the values, rights and exigibility as they were on the date they were
delivered to the first defendant.
B.
That the second
defendant be directed to hold available for delivery to the
plaintiffs,
alternatively
to the third defendant Tekkie Town (Pty) Ltd the South African
business and assets it acquired from Tekkie Town (Pty) Ltd, with
the
same values, rights and exigibility as that business and those assets
had at the date they were delivered to the second defendant.
C.
That the first
defendant be interdicted and restrained from alienating, transferring
ceding, assigning and/or otherwise encumbering
the shares it holds in
Tekkie Town (Pty) Ltd.
D.
That the second
defendant be interdicted and restrained from alienating,
transferring, ceding, assigning and/or otherwise encumbering
the
business trading under the name and style of Tekkie Town in South
Africa, otherwise than as reasonably required in the normal
course of
operating a retail business.
[9]
The Pepkor respondents have already
delivered their pleas in case no. 6757/2019. They pleaded
lis
alibi pendens
in a special plea and
also pleaded over on the merits. In their general plea the
Pepkor respondents deny any knowledge concerning
the allegations by
the plaintiffs of fraudulent misrepresentation by the chief executive
officer of Steinhoff or that company’s
alleged knowledge
thereof, and in any event deny that the alleged knowledge of
Steinhoff concerning the misrepresentation or the
reliance by the
plaintiffs thereon when the contract was concluded was attributable
to Pepkor Holdings and Pepkor Speciality (Pty)
Ltd. They put
the plaintiffs to the proof of all the alleged facts and rely on
their respective separate juristic personalities
to distance them
from any liability on the part of Steinhoff that might be
established.
[10]
The context for the Pepkor respondents’
special plea of
alibi pendens
was an application for interim interdictory relief
pendente
lite
instituted as a matter of urgency
by the applicants in the current matter. The Pepkor respondents
were cited as the second,
third and fourth respondents in that
application, which was brought under case no. 5872/2019, and
heard by Erasmus J
on 25 April 2019. The substantive
relief sought in that application was framed as follows in paragraph
2 of the notice
of motion:
2.
Pending
the final determination of the action instituted in the Western Cape
High Court under case number 8276 2018 [an order]
2.1 Interdicting and
restraining the second respondent from alienating, transferring,
ceding, assigning and/or otherwise encumbering
its shareholding in
the fourth respondent or any part thereof;
2.2 interdicting and
restraining the fourth respondent from allotting and or issuing any
further shares in the fourth respondent;
2.3 interdicting and
restraining the third respondent from alienating, ceding, assigning,
or otherwise encumbering the business
trading under the name and
style Tekkie Town (including the assets thereof), acquired in terms
of the sale agreement entered into
by the parties with effective date
1 October 2017 (as amended in addendum No. 1), otherwise than as
reasonably required in the
normal course of operating a retail
business;
2.4 interdicting and
restraining the first respondent from dealing with the shares in the
second respondent in any manner which
would result in its loss of
control of second respondent or prevent it from giving effect to the
relief sought in prayer A in case
number 8276/2018.
It was only after the Pepkor
respondents’ answering papers had been filed in the interim
interdict application in case no. 5872/2019
that the interdict
action seeking comparable relief was instituted in case
no. 6757/2019. I think it may reasonably
be inferred that
the action was instituted because of an appreciation by the
applicants that there were flaws in their application
under case
no. 5872/2019, but it is not necessary in the current
proceedings to make any determination in that regard.
[11]
On
26 April 2019, Erasmus J granted interim interdictory
relief in case no. 5872/2019 in terms materially different
from
those in which it had been sought in terms of paragraph 2 of the
notice of motion in that case. The learned judge thereafter
refused an application by the Pepkor respondents for leave to appeal,
but I was advised from the bar that leave to appeal was subsequently
granted by the Supreme Court of Appeal, and that the parties are
expecting to learn before the end of July this year when the appeal
will be scheduled for hearing in that court. I was also advised
that there is an interim undertaking by the Pepkor respondents
concerning the preservation of the Tekkie Town business in place
until the end of July. Ordinarily, an application for leave
to
appeal, and,
a
fortiori
,
an order granting such leave, has the effect of suspending the effect
of the impugned order until the appeal has been determined.
That is, of course, assuming that the order appealed against is an
appealable order. Notwithstanding the absence of a fixed
rule
to that effect, an interim interdict is not usually regarded as
appealable,
[2]
and it is authoritatively established that an order granting to leave
to appeal from an interim order does not, of itself, serve
as a
warrant of appealability.
[3]
Whether the interim order made in case no. 5872/2019 is in point
of fact appealable will therefore only be determined
when the appeal
court determines whether or not to entertain the appeal. In the
circumstances the status of the order made
by Erasmus J is
currently regarded by the parties as uncertain, although it seems to
me on reflection (without making any
finding in that regard) that it
is effective by reason of
s 18(2)
of the
Superior Courts Act 10
of 2013
.
[12]
So much for the contextual setting of the
current proceedings.
[13]
It cannot escape notice that the action for
interdictory relief in case no. 6757/2019 is, in itself, a
paradoxical phenomenon.
While it might be technically
unexceptionable, as contended by Mr
Duminy
SC who appeared (together with Mr
Traverso
)
for the applicants, to seek interim interdictory relief by way of
action proceedings instead of on motion, it is most unusual
to do
so. So much so, that I cannot recall ever previously
encountering such an action in practice. The reasons for
this
are obvious. Firstly, interim relief
pendente
lite
is invariably required urgently,
or at least within a short period of time, if it is to be effective.
If that were not the
case on the given facts, the circumstances would
be strongly indicative that there was not a need for it at all.
Secondly,
it can be obtained without the court having to make
final and determinative findings on the facts when those are in
dispute.
The combination of those factors makes proceeding on
motion the obviously indicated procedure. Proceeding for
interim relief
pendente lite
by action is a course that, by reason of the time that it usually
takes to bring an action to trial, heightens the risk of the
apprehended harm against which interim protection is sought being
realised before the remedy can be achieved. For the same
reason
it also courts the prospect that the claim will be rendered redundant
because by the time the interdict proceedings are
ready for trial, so
also, very feasibly, could be the action in the principal case.
[14]
The application for consolidation is
brought in terms rule 11 of the Uniform Rules of Court. The
test is convenience.
The rule provides that a consolidation of
actions may be ordered ‘[w]
here
separate actions have been instituted and it appears to the court
convenient to do so
’. In
urging that a consolidation would be ‘convenient’, the
applicants’ counsel stressed that most
of the factual issues
involved in both actions are in common and submitted that it would
result in a saving of time, resources
and costs if they were tried
together. Mr
Duminy
argued that in addition to these considerations the Pepkor
respondents had not identified any cognisable prejudice to which they
were likely to be exposed were a consolidation of the actions to be
ordered.
[15]
Whilst the features identified by Mr
Duminy
are important factors in the ordinary course when it comes to a
weighing of convenience for the purposes of rule 11, they have
to be
judged in their peculiar context in the given case if the wide
judicial discretion that is engaged in the adjudication of
applications under the rule is to be properly exercised. As
acknowledged in
Mpotsha v Road Accident
Fund and Another
2000 (4) SA 696
(C) at
700I-701A, the word ‘convenient’ connotes not only
facility or expedience or ease, but also appropriateness
in the sense
that a consolidation would be fitting in all the circumstances.
Jali J, at the place cited, said ‘
fitting
and fair to the parties concerned
’,
but his reference ‘to the parties’ does not, in my view,
derogate from the broader essence of what the learned
judge was
articulating, namely that the word ‘convenient’ in the
given context ‘
should not be used
in the narrow sense
’. A
consolidation of actions that would be procedurally inappropriate can
never be convenient.
[16]
It does not appear to me to be in any sense
fitting or appropriate for an action for interim relief pending the
determination of
a principal case to be consolidated with the action
in that principal case so that both actions can be determined
contemporaneously.
Merely stating the proposition shows it to
be a nonsense. There cannot be any prospect of
interim
relief
pendente lite
being a real issue deserving of a court’s attention if the case
for it is to be decided together with, and at the same time
as, the
principal case. Indeed, Mr
Duminy
was constrained to concede that the action for interim relief would
be rendered redundant if an interdict as sought were not granted
before the determination of the action in the principal case.
His argument therefore did not even try to address the issue
that
whilst there might well be a commonality of factual issues in the two
actions, a court trying them would be called upon to
weigh the
evidence in respect of them in different ways for the purpose of
deciding whether the quite disparate relief sought in
each of them
should be granted or not. For those reasons, I consider that
the contention by Mr
Kuschke
SC,
who appeared, together with Mr
Fitzgerald
,
for the Pepkor respondents, that all the indications are that the
applicants have no real intention, as currently advised, to
move for
relief in the interdict action has considerable force. The
cogency of the contention is supported by the import
of the relief
sought in terms of paragraph 2 of the notice of motion.
[17]
Mr
Kuschke
drew my attention to certain pertinent remarks by Van Wyk J in
Juta & Co Ltd v Legal and Financial
Publishing Co (Pty) Ltd
1969 (4) SA 443
(C) at 445B-F, uttered when refusing an application to condone the
late delivery of replying affidavits and dismissing the application
for an interdict
pendente lite
in relation to which their admission had been sought. They
illustrate that the institution of proceedings for interim
interdictory
relief
pendente lite
imposes a duty on the litigant initiating them to prosecute them with
conscientiousness and expedition, failing which they may
justly be
regarded, in essence, as an abuse of process. The learned judge
said the following in that regard:
Relief
pendente
lite
is a special remedy: it grants relief between the time of
the order and the final determination of the dispute between the
parties
in order to avoid undue prejudice while proceedings are
pending. In view of the long delay that has not been satisfactorily
explained
and the other points referred to, I am not prepared to
allow the replying affidavits to be filed, and the application must
accordingly
be refused.
This decision also
has a bearing on the issue as to whether the Court should, in the
circumstances, allow the applicant to proceed
with the application
for an interdict
pendente lite
. If one bears in mind the long
delays for which no explanation has been given, that as far back as
December the applicant had numerous
clear cases of copying in its
possession, according to the letter written by the applicant, and
that up to now no action has been
instituted, it seems that the
applicant has erred in selecting this method, namely, an application
for an interdict pendente lite,
but even if it was the appropriate
procedure at the time the applicant has, by reason of the facts
stated above, forfeited its
rights to this temporary relief. Had it
issued summons at the time when the notice of motion proceedings were
instituted, the trial
could already have taken place.
There is such a
thing as the tyranny of litigation, and a Court of law should not
allow a party to drag out proceedings unduly.
In this case we are
considering an application for an interdict
pendente lite
,
which, from its very nature, requires the maximum expedition on the
part of an applicant.
In these
circumstances the application to file replying affidavits is refused,
with costs, and the application for an interdict
pendente lite
is dismissed with costs. It is ordered that the costs of two counsel
should be allowed.
It is not for this court in these
proceedings to determine whether the applicants’ action for
interim relief should be similarly
stigmatised, but the quoted
remarks do underscore just how starkly inappropriate it would be to
send it off for trial together
with the main action in consolidated
proceedings.
[18]
The applicants’ papers acknowledge
that they might, depending on developments between now and the
determination of the main
action, be spurred by circumstances to move
for interim relief. In argument, Mr
Duminy
postulated that one such circumstance might be the expiry of the
interim undertaking currently provided by the Pepkor respondents
to
the applicants. He suggested that in such event it would always
be possible to undo the consolidation of the actions if
relief had
been granted in terms of paragraph 1 of the notice of motion in the
current proceedings. In this regard, counsel
pointed to rules
11(b) and 10(5), which conceive that that which has been joined may
be subsequently be separated if that turns
out to be appropriate.
In my view, quite apart from the inherent inappropriateness of a
consolidation of the actions that
has already been discussed, the
acknowledged prospect that if a consolidation were ordered it very
conceivably might need to be
undone in terms of rule 10(5)
affords further grounds for the court not to be persuaded that a
consolidation would be convenient.
In addition, in the current
matter, were an order granted standing proceedings in case no,
6757/2019 in abeyance, as sought in
terms of paragraph 2 of the
notice of motion, the applicants would presumably also need to apply
for the upliftment of that order
before they could proceed.
That would add a further element of inconvenience.
[19]
If a court is not persuaded that it would
appear to be convenient for a consolidation of actions to be
effected, the question of
the prejudice that might be occasioned to
the opposing party by such consolidation does not come up for
consideration. It
is only when it appears that a consolidation
of actions would be convenient that the court considers whether any
prejudice occasioned
thereby to the opposing party might be
substantial enough to outweigh the advantages of the apparent
convenience of consolidation;
cf.
New
Zealand Insurance Co Ltd v Stone
1963
(3) SA 63
(C) at 69B. The contention that the respondents had
not demonstrated cognisable prejudice, even if it were well founded,
as to which I express no opinion, therefore does not advance the
applicants’ case.
[20]
Mr
Duminy
also argued that there were a number of reasons why it would be
advantageous for the two actions to be case-managed together.
Assuming the good sense in that contention, it does not afford a
reason to consolidate the actions. Consolidation within
the
meaning of rule 11 entails a contemplation that the actions will
proceed together as if they were one action.
[4]
That is by no means intrinsically implicit in the joint case
management of two or more matters. Counsel confirmed the
correctness of my understanding that all the litigation in this
Division concerning the fallout from the discovery of the material
misstatement of the Steinhoff Group’s financial state, of which
the matters in case no.s 8276/18 and 6757/19 reportedly are
but a
small part, are in event being judicially case-managed by a single
judge, Mr Justice Saldanha. The benefits of joint
case
management have therefore already been made available.
[21]
The relief sought in terms of paragraph 2
of the notice of motion is dependent upon that sought in terms of
paragraph 1 being granted.
As the application for consolidation
is to be refused, it follows that paragraph 2 will meet the same
fate.
[22]
In the result an order will issue in the
following terms:
1.
The application for a ruling in terms of
paragraphs 1 and 2 of the notice of motion dated 11 November 2019 is
dismissed with costs,
including the fees of two counsel.
2.
By agreement between the applicants and the
third to fifth respondents, the relief sought in paragraphs 3, 4 and
6 of the notice
of motion being unopposed, it is directed that:
(a)
The third, fourth, and fifth
respondents are joined as the third, fourth, and fifth defendants,
respectively, in the action under
case number 8276/18.
(b)
The applicants are to deliver all
pleadings filed of record under case number 8276/18 to the parties
joined in terms of sub-paragraph
(a)
within
10 days of the date of this order.
(c)
The applicants are granted leave to
amend the particulars of claim in the action under case number
8276/18 in accordance with the
notice of intention to amend attached
to the notice of motion as annex “A”.
(d)
The costs of the application for
relief in terms of paragraphs 3,4 and 6 shall stand over for
determination in the action under
case number 8276/18.
___________________
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicants’ counsel:
W.R.E. Duminy SC
N.
Traverso
(Heads
of argument drafted by N. Traverso and D.M. Lubbe)
Applicants’ attorneys:
Webber Wentzel
Cape
Town
Third, fourth and fifth
Respondents’ counsel:
L.S. Kuschke SC
R.
Fitzgerald
Third, fourth and fifth
Respondents’ attorneys:
Bowman Gilfillan
Cape
Town
[1]
I have
corrected the consistent misnumbering of case no. 6757/2019 as
6567/19 in t
he
notice of motion.
[2]
Section
18(2)
of the
Superior Courts Act 10 of 2013
does acknowledge that an
appeal against an interlocutory order may be entertained
exceptionally, and gives a court the power
in exceptional
circumstances to order the suspension of an interlocutory order
pending the determination of such appeal.
[3]
Cronshaw
and Another v Coin Security Group (Pty)
Ltd [1996] ZASCA 38; 1996 (3) SA 686 (SCA), [1996] 2 All SA 435.
[4]
Rule
11(a)
; and cf.
Qwelane
v Minister of Justice and Constitutional Development and Another
[2014] ZAGPJHC 334 (21 November
2014); 2015 (2) SA 493
(GJ), at para
7.