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[2020] ZAWCHC 63
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A.J v J.J and Others (4366/2016) [2020] ZAWCHC 63 (24 June 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
[REPORTABLE]
Case
No:4366/2016
Before
the Hon. Ms Justice Slingers
Hearing:
3 June 2020
Judgment
Delivered:
24 June 2020
In
the matter between:
A
J
Applicant
and
J
J
First
Respondent
J
J N.O.
in
his capacity as Trustee for the time being of the
Tafika
Trust
Second Respondent
CHRISTEL
SADLER N.O. in her capacity as
Trustee
for the time being of the Tafika
Trust
Third Respondent
THE
MASTER OF THE HIGH COURT,
WESTERN
CAPE
DIVISION
Fourth Respondent
L
C ABELHEIM LIMITED
(in
his capacity as the Mauritian Trustee of the
Tafika
Trust,
Mauritius)
Fifth Respondent
JUDGMENT
SLINGERS J
INTRODUCTION
[1]
On 6 December 1980 the
applicant and the first respondent were married to each other, out of
community of property and the marriage
still subsists. On 14
March 2016 the applicant instituted divorce proceedings wherein she
pleaded
inter alia
that the assets of
The Tafika Trust registered with the Master of the High Court under
IT number 5317/2007
(“the
Tafika trust”)
and the Tafika Trust Mauritius, (herein after collectively referred
to as “
the
trusts”)
are
beneficially owned and controlled by the first respondent, do not
constitute assets owned by the trusts and form part of the
first
respondent’s estate. Furthermore, the applicant pleads
that the trusts are the alter ego of the first respondent
who abused
the trust’s form by utilising the trusts as vehicles to
accumulate personal wealth.
[2]
In pleading to the
particulars of claim, the first respondent admits that he financed
the acquisition of certain assets of the trusts,
caused the growth in
value of certain of the assets of the trusts and assisted in the
maintenance and running costs of certain
of the assets of the
trusts. The first respondent denies that the trusts were
beneficially owned and controlled by him or
that they form part of
his estate. Furthermore, the first respondent denies that he
was utilising the trusts as vehicles
to accumulate personal wealth.
[3]
It is evident from the
pleadings in the divorce action that the disputed issues include
whether or not it would be just and equitable
for the first
respondent to be directed, in terms of
section 7(3)
of the
Divorce
Act 70 of 1979
, as amended
(“the
Divorce Act&rdquo
;)
,
to transfer to and in favour of the applicant an amount equal to
fifty percent of the difference between the net value of the
assets
of the parties respective estates. Related hereto is the
disputed issue of whether or not the net value of the trusts’
assets held by the trustees at the time of the dissolution of the
parties’ marriage should be added to the net value of the
first
respondent’s personal estate for the purposes of determining
the applicant’s claim in terms of
section 7(3)
of the
Divorce
Act read
with subsections 7(5)(a) and (d) thereof.
[4]
To this end the
applicant seeks the following relief in the divorce action:
i)
an order declaring that
the assets of the trusts are held and controlled by the first
respondent in his personal capacity and for
his personal benefit;
ii)
an order in terms of
section 7(3)
of the
Divorce Act directing
the first respondent to pay
to the applicant an amount equal to fifty percent of the difference
between the net value of the assets
(including those of the trusts)
in the parties respective estates;
iii)
as against the second
to fourth respondents and, subject to the recognition of any order
granted by the court against the fifth
respondent in Mauritius, and
in the event that the first respondent holds insufficient assets in
his personal capacity to satisfy
the applicant’s claim in terms
of
section 7(3)
of the
Divorce Act an
order:
a)
directing the second to
the fourth respondents and the fifth respondent within 60 days of the
granting of the relief sought to transfer
to the first respondent, in
his personal capacity and at their costs, the assets held by them in
their names; and
b)
directing the
respondents to sign all documents and take all steps which may be
necessary to give effect to prayer (iii)(a) and
in the event of the
respondents failing to do so within 14 days of written demand, an
order authorising the Registrar of the court
to sign all necessary
documents on their behalf; and
c)
in respect of the fifth
respondent and upon recognition of the order by the Mauritian courts,
an order directing the registrar of
that court or his equivalent to
sign all such documentation on its behalf.
[5]
The applicant seeks the
production of various documents from the first respondent which she
alleges are material to the quantification
of her claim in terms of
section 7(3)
of the
Divorce Act. Consequently
, she instituted
this interlocutory application in accordance with the provisions of
Uniform
Rule 35(11)
for the production of the following categories of
documents:
i)
statements in respect
of offshore banking and investment accounts held by the first
respondent for the period 1 January 2011 or
the date of opening of
such account or investment, until date of reply;
ii)
statements in respect
of offshore banking and investment accounts held by the Tafika Trust
for the period 1 January 2011 or the
date of opening of such account
or investment, until date of reply;
iii)
statements in respect
of offshore banking and investment accounts held by the Tafika Trust
Mauritius for the period 1 January 2011
or the date of opening of
such account or investment, until date of reply;
iv)
statements
in respect of offshore banking and investment accounts held by the
entities set out on annexure
A
to
annexure
Y
(“the entities”)
[1]
for the period 1 January 2011 or the date of opening of such account
or investment, until date of reply;
v)
documentation submitted
on behalf of the first respondent, the trusts or the entities to the
South African Reserve Bank
(“SARS”)
,
the Financial Services Department or the South African Revenue
Service in respect of any foreign exchange transactions during
the
period 1 January 2011 to date of reply, such documentation to include
applications and documents submitted by any bank or other
financial
institution, correspondence relating to the transactions and
documentation reflecting the outcome of any such applications;
vi)
credit finance
applications submitted by the first respondent, the trusts or the
entities to any financial institution to secure
credit whether as
principal debtor or surety in respect of any credit finance liability
secured outside of the jurisdiction of
the South African High Court;
vii)
documentation, other
than as requested above, reflecting any offshore investments held by
the first respondent, the trusts or the
entities during the period 1
January 2011 to date of reply;
viii)
documentation relating
to the Tafika Trust Mauritius;
ix)
documentation submitted
for or on behalf of the first respondent or the trusts or entities in
respect of compliance requirements
in any jurisdiction pursuant to
the OECD Common Reporting Standards (or Standard for Automatic
Exchange of Financial Account Information)
and related legislation
and regulations or regulatory requirements in the relevant
jurisdiction;
x)
documentation relating
to the entities;
xi)
documentation, to the
extent that any of the entities are not incorporated but rather
investment funds; and
xii)
documentation in
respect of the immovable property in respect of which the first
respondent is a co-owner and which is situated
at […],
Florida, United States.
[6]
As can be seen from the
categories of documents listed above, the applicant seeks the
production of documents, including credit
finance applications,
submitted on behalf of and by the trusts and documentation reflecting
offshore investments held by the trusts
and documents relating
specifically to the Tafika Trust Mauritius. Although the
trustees of the trusts are cited as parties
in the main divorce
action no relief is sought against them in this application.
The applicant seeks an order directing only
the first respondent to
produce, under oath, the requested documents as well as a costs order
against him on the scale as between
attorney and client.
[7]
The
first respondent opposes the application and avers that it is an
abuse of the court process that stands to be dismissed with
costs.
In opposing the application the first respondent states that
‘
numerous
documents sought by the applicant either do not exist or are not in
my possession or under my control, or are in her possession
and...’
[2]
RULE 35(11)
[8]
Rule 35(11)
reads as
follows:
‘
The
court may, during the course of any proceeding, order the production
by any party thereto under oath of such documents or tape
recordings
in his power or control relating to any matter in question in such
proceedings as the court may think meet, and the
court may deal with
such documents or tape recordings, when produced, as it thinks meet.’
[9]
As can be seen from the
nature of the first respondent’s opposition and the wording of
Rule 35(11)
, the concept of ‘
in
his power or control’
is
central to the determination of this application. If it is
found that the documents sought are under the first respondent’s
power or in his control, then he may be directed, in accordance with
the provisions of
Rule 35(11)
, to produce same.
[10]
American
courts have long grappled with this notion of being
in
control
of
documents and have adopted three main standards to determine whether
or not a party controls documents and is therefore obliged
to produce
them for purposes of litigation. These are (i) the legal right
standard, (ii) the legal right plus notification
standard and (iii)
the practical ability standard.
[3]
[11]
In
terms of the legal right standard a party is deemed to be in
possession, custody or control of documents if he/she is in actual
possession, custody or control thereof or has a legal right to obtain
the documents.
[4]
[12]
In
terms of the legal right plus notification standard, a party is
deemed to be in possession, custody or control of the documents
if
he/she has possession, custody or control of the documents to which
he/she has a legal right. If a party does not have
a legal
right to obtain the documents requested in discovery, but knows a
third party possess them he/she must advise the requesting
party that
the third party has the documents.
[5]
This position is similar to the position set out in
Rule 35(3)
where a party believes that there are, in addition to the documents
disclosed, other documents which may be relevant to any matter
in
question in the possession of the other party thereto and gives
notice to such party to make same available. In accordance
with
the provisions of
Rule 35(3)
, in those instances where the documents
are not in a party’s possession or custody, that party is then
obliged to state the
whereabouts of such documents, if known.
[13]
In
terms of the practical ability standard, a party is deemed to be in
control of the documents and is obliged to discover same
if he/she
has the practical ability to obtain them.
[6]
During the hearing of the application Advocate Buikman SC, for the
applicant, argued that the respondent has demonstrated
an ability in
the past to produce documents pertaining to the Tafika Trust
Mauritius and as such he should be legally obliged to
produce
documents pertaining thereto in terms of
Rule 35(11).
This
argument clearly favours the practical ability standard.
[14]
The issue of whether or
not a party is in control of documents and therefore obliged to
disclose same during litigation is also
encountered in England and
Wales. Civil Procedure
Rule 31.8
for England and Wales sets out
the duty of a party to disclose documents which are or have been in a
party’s control and
reads as follows:
‘
31.8
(1)
A party’s duty to disclose documents is limited to documents
which are or have been in his control.
(2)
For this purpose a party has or has had a document in his control if
–
(a)
It is or was in his physical possession;
(b)
He has or has had a right to possession of it; or
(c)
He has or has had a right to inspect or take copies of it.’
[15]
In the matter of
North
Shore Ventures Ltd v Anstead Holdings Inc
[2012]
EWCA Civ 11
(18 January 2012)
(“
North
Shore”)
,
the Court of Appeal
(Civil Division) for England and Wales comprehensively set out the
law pertaining to the issue of control.
[16]
North Shore
revisited the old rules of discovery
in terms whereof a party was required to discover if the documents
were in his/her possession,
custody or power. It went on to
quote Lord Diplock in
Lonrho
Ltd v Shell Petroleum Co Ltd
1980
1 WLR 627
at 635 who interpreted
power
as being ‘
a
presently enforceable legal right to obtain from whoever actually
holds the document inspection of it without the need to obtain
the
consent of anyone else.’
[17]
Furthermore,
North
Shore
approved of
Shaw LJ’s observation that a document can be said to be in the
power of a party for the purposes of disclosure
only if, at the time
and in the situation which obtains at the date of discovery, that
party is, on the factual realities of the
case virtually in
possession or otherwise had a present indefeasible legal right to
demand possession from the person in whose
possession or control it
is at that time.
[18]
Whether
or not a party’s ability to obtain documents could translate
into that party being obliged to disclose same for discovery
purposes
was also considered by
North
Shore
which
quoted Floyd J in
Schlumberger
Holdings Limited v Electromagnetic Geoservices AS
[7]
who reasoned that:
“
I
accept that the mere fact that a party to litigation may be able to
obtain documents by seeking the consent of a third party will
not of
its own be sufficient to make that party’s documents
discloseable by the party to the litigation. They are not
within his present or past control precisely because it is
conceivable that the third party may refuse to give consent.
But what happens where the evidence reveals that the party has
already enjoyed, and continues to enjoy, the co-operation and consent
of the third party to inspect his documents and take copies and has
already produced a list of documents based on the consent that
has
been given and where there is no reason to suppose that that position
may change? Because that is the factual situation
with which I
am confronted here. In my judgment, the evidence is this case
sufficiently establishes that relevant documents
are and have been
within the control of the claimant.’
[19]
Thus,
the ability of a party to obtain documents does not necessarily
render that party in control of the documents and consequently
obliged to discover same during litigation. However, each case
has to be evaluated on its own facts to determine whether
or not a
party is in control of the documents. In determining whether or
not the requested documents are in the physical
possession or in a
litigant’s control, the court may have regard to the true
nature of the relationship between the third
party and the litigant
as it may be that the third party in possession of documents is for
all practical purposes the agent of
the litigant, in which
circumstances it can be accepted that the litigant is in control of
that document and have to make it available
for discovery.
[8]
[20]
The general position in
England and Wales closely resembles the legal right standard set out
above. However, it allows for
each case to be evaluated on its
own facts to establish whether or not a party can be said to be in
control of the requested documents.
[21]
In South Africa, the
concept of
in
his/her power or control
as used in
Rule 35(11)
is not defined generally in the Uniform Rules
of Court nor in Rule 35 itself.
[22]
In
Ramakarane
v Centlec (Pty) Ltd
[9]
the
court was called upon to widen the meaning of the word ‘
possession’
as
used in Rule 35(3) to include those situations where a party is not
in actual physical possession of the documents, but which,
according
to the applicant, is readily available to the respondent from
relevant third parties. Therefore, the court was
called upon to
widen the concept of
possession
to include the ability to obtain the requested documents. After
a thorough analysis of Rule 35 that included the application
of the
legal principle of interpretation as encapsulated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[10]
the court decided against widening the meaning of
possession
as
used in Rule 35. It reasoned that the purpose of Rule 35, and
the intention of the legislator, was not to oblige a party
to search
for and obtain documents that were previously in his or her
possession in order to disclose and make same available for
inspection. All that is required of a party is for that party
to specify when the documents were last in his/her possession
or
power, and what has become of those documents and in whose possession
they are.
[23]
In
Loureiro
and Others v Imvula
Quality
Protection (Pty) Ltd
[11]
the
court was called upon to consider whether or not a party, under the
rules of discovery, could be required to approach SARS to
obtain his
tax assessments and tax returns in order to make them available to
the requesting party. Furthermore, it had to
consider whether
or not the fact that a party could procure his tax assessments and
returns from SARS rendered them under his control
or in his power
even if he was no longer in physical possession of them.
[24]
In determining this
issue, the court analysed the words
control
and
power
and found them to have a wide connotation. It found that
control
meant something different to possession and that
power
suggests an even wider scope than
control
which includes the function or power of directing. It also
found that
power
includes the
ability to effect something.
[25]
After having regard to
the provisions of
section 69(6)
of the
Tax Administration Act 28 of
2011
, the court held that as a taxpayer is not only empowered to
request his/her tax information from SARS but is also able to
authorise
SARS to make the information available to another person,
the information is within his/her power.
[26]
As the taxpayer had a
legal right to his tax information and could direct SARS to make it
available to another party, it was found
that the tax returns and
assessments remained within his power. The approach adopted in
Loureiro and Others
v Imvula
Quality
Protection
strongly
resembles the legal right standard and the approach adopted in
England and Wales.
[27]
Having regard to:
i)
the reasoning by the
court in
Ramakarane
which resulted in the court’s refusal to widen the meaning of
the concept of
possession
as used in
Rule 35
;
ii)
the analysis of the
concepts of
power
and
control
by the court in
Loureiro;
iii)
the
caution against converting an ability to obtain documents into a
legal obligation to disclose same in
North
Shore
[12]
;
and
iv)
the
fact that ordering a party to disclose documents which he/she may or
may not be able to obtain could result in an order possibly
being
de
facto
impossible to implement and could expose not only the offending party
to contempt proceedings but could also expose the court order
to
ridicule
[13]
,
I am of the view that the
phrase ‘
in his/her power or control’,
as used in
Rule 35(11)
, refers to documents which are physically in a party’s
possession and/or to which a party has a legally enforceable right
to
access. Furthermore, the phrase ‘
in his/her power or
control’
does not include a party’s ability to obtain
same without a legally enforceable right thereto. It follows
that if a
party is physically in possession of the requested
documents he can direct how the documents can be used as well as have
the power
or control to direct who is given access thereto.
Furthermore, if a party has a legally enforceable right to access the
documents
then it follows that not only can that party direct that
the documents be made available to him/her but that he/she can also
direct
and/or authorise that the documents be made available to a
third party. However, where a party is not in physical
possession
of the documents and/or has no legally enforceable right
thereto, he/she will not be able to direct how the documents are used
nor would he/she have the power to direct or authorise that the
documents be made available to a third party.
THE REQUESTED
DOCUMENTS
[28]
I turn now to examine
whether or not the documents requested fall within the first
respondent’s control or are in his power
either by being in his
physical possession or are documents which he has a legally
enforceable right to access. Should the
first respondent be in
control of or have in his power the requested documents, he may be
directed to produce same in accordance
with the provisions of
Rule
35(11).
[29]
The applicant requests
the production of statements in respect of offshore banking and
investment accounts held by the first respondent
for the period 1
January 2011 or the date of opening of such account or investment,
until date of reply. In response to this
request the first
respondent states that he has discovered all the statements in his
possession. Furthermore, to the extent
that such further
documentation exists, same can be obtained from the relevant banks.
As the account holder of any offshore
banking and investment
accounts, the first respondent would have a legally enforceable right
to obtain such statements and therefore,
these statements would be in
his power or under his control for the purposes of
Rule 35(11).
Consequently, it is inadequate for the first respondent to state that
to the extent that further documentation as requested
exists same can
be obtained from the relevant banks as this would not constitute
compliance with the provisions of
Rule 35(11).
Therefore, save
for such statements already discovered by the first respondent, he is
directed to produce, under oath, statements
in respect of offshore
banking and investment accounts held by him for the period 1 January
2011 or the date of opening such account
or investment, until the
date of reply.
[30]
The second category of
documents requested is statements in respect of offshore banking and
investment accounts held by the Tafika
Trust for the period 1 January
2011 or the date of opening of such account or investment, until date
of reply. In accordance
with the provisions of section 10 of
the Trust Administration Act 57 of 1988, whenever a person receives
money in his/her capacity
as trustee, he/she is obliged to deposit
such money in a separate trust account at a banking institution or
building society.
It follows that the trustee, as the person
operating the banking and/or investment account on behalf of the
trust, would be the
person legally entitled to the statement in
respect thereof.
[31]
The
applicant does not seek relief against the first respondent in his
capacity as a trustee of the Tafika Trust and only seeks
an order
against him in his personal capacity. However, it is trite that
formalism in the application of the rules of court
are to be
discouraged in favour of a spirit that would facilitate the work of
the courts and which would enable litigants to resolve
their dispute
in as speedy and inexpensive a manner as possible.
[14]
In my view, it would be overly formalistic to disregard the fact that
the first respondent is a trustee of the Tafika Trust
and has been
cited in the main action in such capacity when determining this
application, more so as there can be no prejudice
to the first
respondent in his capacity as a trustee of the Tafika Trust.
[32]
In his response to the
request for this category of documents, the first respondent states
that
to the best of
his knowledge
Tafika
Trust has no offshore banking and investment accounts and that he has
no such documentation in his possession and that he
does not believe
that any such documentation exists. As a trustee of the Tafika
Trust, the first respondent should know whether
or not the trust has
any offshore banking and investment accounts as he could easily
ascertain same. If regard is had to
the purpose of discovery
which is to assist the parties as well as the court in determining
the truth and to arrive at a just determination
of the mater, it is
insufficient to state that to the
best
of his knowledge
no
such offshore and investment accounts exist.
[33]
As a trustee of the
Tafika Trust, the first respondent would be legally entitled to
statements in respect of any offshore banking
and investment accounts
held in the name of the Tafika Trust. Consequently, these
statements would be in his power and under
his control for the
purposes of Rule 35(11) and he may be directed to disclose same.
Therefore, the first respondent is directed
to produce, under oath,
statements in respect of offshore banking and investment accounts
held by the Tafika Trust for the period
1 January 2011 or the date of
opening of such account or investment, until date of reply,
alternatively, the first respondent is
directed to state under oath
that, as a trustee of the Tafika Trust, he as definitively
ascertained that no offshore and/or investments
accounts are held by
Tafika Trust.
[34]
The third category of
documents requested is statements in respect of offshore banking and
investment accounts held by the Tafika
Trust Mauritius for the period
1 January 2011 or the date of opening of such account or investment,
until date of reply.
It is common cause that the first
respondent is not a trustee of the Tafika Trust Mauritius and that
the fifth respondent, against
whom no relief is sought in this
application, is a trustee thereof. During the hearing of the
application it was argued that
the first respondent had previously
obtained documentation pertaining to the Tafika Trust Mauritius and
therefore, he could be
directed to produce the requested documents in
terms of Rule 35(11). However, as set out above, an ability to
obtain documents
does not translate into a legal obligation to
discover same.
[35]
In his answering
affidavit to the Rule 35(11) application, the first respondent states
the following:
17.1
I have already disclosed all documents in my possession, or under my
control, in respect of the Tafika Trust, Mauritius.
I refer
specifically to what I have stated in my reply to the Applicant’s
Annexure “
X”,
particularly at paragraphs 3, 7 and
8 thereof.
17.2
There is no possible reason why I would be a party to any strategy to
deprive the Applicant of information relevant to the
assets in the
Tafika Trust, Mauritius. I am desperate that the matter be
resolved.
17.3
Any further documentation in respect of the Tafika Trust, Mauritius
are in the possession or under the control of the trustee,
the Fifth
Respondent herein.
17.4
On 14 October 2019, Mr Greenbaum provided a schedule of documentation
that he required from the Tafika Trust, Mauritius.
17.5
On 17 October 2019, my attorneys addressed a letter to the Fifth
Respondent requesting that the trustee provide the Applicant
with
that schedule of documentation requested by Mr Greenbaum. A
copy of my attorney’s letter is annexed hereto marked
“
H3”
.
17.6
On 1 November 2019, my attorneys addressed an urgent follow up letter
for the documentation, a copy of which is annexed hereto
marked “
H4”.
17.7
In my trial particulars and in previous discovery I have provided
various schedules of the assets and liabilities of the Tafika
Trust
Mauritius, with whatever supporting documentation I have had in my
possession or under my control. From such documentation,
the
Applicant is well aware that there is insignificant, if any, value in
the Tafika Trust, Mauritius.”
[36]
In replying to the
above, the applicant states:
‘
44.
Ad
Paragraphs 17.1 to 17.6 thereof
44.1
I deny that First Respondent has produced all of the documentation in
his possession or under his control relating to Tafika
Trust,
Mauritius. I have dealt with this hereinbefore.
44.2
That First Respondent has deliberately deprived me of information and
documentation regarding his true financial position and
of the Trusts
is evident from my founding affidavit and this affidavit.
44.3
I have demonstrated that First Respondent is
able
to secure information and documentation relating to the affairs of
Tafika Trust Mauritius
and its underlying assets, directly from the trust, and via Skybound
Capital as he has in the past, by simply asking for it.
(my
emphasis)
44.4
I note that First Respondent asserts that his attorneys have
requested documentation from the trustees of the trust.
I note
that he does not detail whether any response was received. It
is extraordinary in circumstances where the trustees
have previously
responded to requests for documentation that they are conveniently
silent and have ignored my attorney’s
request for
documentation. This is particularly extraordinary in
circumstances where First Respondent is, according to the
trust’s
documents, the settlor of the trust, a beneficiary and the ultimate
beneficial owner of the trust’s assets.
[37]
The
fact that the first applicant has in the past been able to secure
information and documentation relating to the affairs of Tafika
Trust
Mauritius does not necessarily translate into an enforceable legal
right entitling him thereto, thereby rendering the documents
under
his control or in his power. In accordance with the general
rule of he/she who asserts must prove
[15]
,
it would fall to the party who alleges that the documents are under
the control of the requested party to establish same.
In doing
so regard may be had,
inter
alia
to
the true nature of the relationship between the third party and the
litigant. On the papers before me the applicant has
not
established that the first applicant is in control of or has in his
power documentation pertaining to the Tafika Trust Mauritius.
Therefore, the first respondent cannot be directed to produce
documentation pertaining to the Tafika Trust Mauritius in terms of
Rule 35(11).
[38]
In the applicant’s
heads of argument it is stated that:
‘
The
effect of LC Abelheim’s failure to file any opposition to the
action is that the applicant is unable to request discovery
from the
trustee and cannot request information in the form of trial
particulars or admissions. Correspondence directed to
LC
Abelheim by the applicant’s attorneys is simply ignored.’
This is not an accurate
statement of the law. Rule 35(11) clearly states that the court
may order the production by
any party
to the proceedings under
oath of such documents in his power or control relating to any matter
in question in such proceedings
as the court may think meet.
Therefore, there is no legal reason why the applicant cannot invoke
the provisions of Rule 35(11)
against the fifth respondent.
[39]
The applicant also
seeks the production of offshore banking and investment accounts held
by the entities set out on annexure
A
for the period 1
January 2011 or the date of opening of such account or investment,
until date of reply. The first respondent
would only be in
control of or in power of these statements if he had a legally
enforceable right thereto or if he was in physical
possession
thereof.
[40]
The applicant lists 45
entities on annexure
A.
It is not disputed
that the first respondent is a director of the following 6 of the 45
entities:
(i)
Piorex (Pty) Limited;
(ii)
Proxivax (Pty) Limited;
(iii)
AmaLocker (Pty)
Limited;
(iv)
Lerosign (Pty) Limited;
(v)
Domestly; and
(vi)
K2 Design Group Inc.
[41]
In the founding
affidavit it is alleged that the first respondent is a director of
the entity operating as Pempera Investments Limited
(“Pempera”)
.
In his answering affidavit, the first respondent states that he has
never been a shareholder nor director of Pempera Investments
Limited. This denial stands uncontested in the applicant’s
replying affidavit. Therefore, it can be accepted
that the
first respondent is not a director nor a shareholder of Pempera.
In the circumstances, it has not been established
that the first
respondent is in control of or has under his power any documentation
pertaining to Pempera and the provisions of
Rule 35(11) cannot be
utilised to direct him to produce any documentation in relation
thereto.
[42]
Similarly,
it is alleged in the founding affidavit that the first respondent is
a shareholder of the entity known as WMSA2012 Ltd.
In his
answering affidavit the first respondent states that he has never
been a director nor a shareholder of WMSA2012 Ltd.
In her
replying affidavit, the applicant challenges the truth of this
averment and attaches annexure “
AR
32”
in
support hereof. “
AR
32”
is
undated correspondence addressed to the directors of WMSA2012 Ltd by
the first applicant. The subject line of the correspondence
reads ‘
Transfer
of 100% of my personal shareholding of the WMSA2012 Ltd’
and requests the directors to ‘
transfer
the entire shareholding of the above named company to L C Abelheim
Ltd as the Tafika Trust Mauritius.
[16]
’
It
is evident from annexure “
AR
32
”
that at some stage the first respondent was a shareholder of WMSA2012
Ltd. As annexure
AR32
is undated the court does not know when the first respondent ceased
being a shareholder of WMSA2012 Ltd. Furthermore, it
is not
disputed that the applicant has been placed in receipt of the latest
financial statements for the year ending 30 June 2018
for WMSA2012
Ltd. On the papers before me, it has not been established that
the first respondent is currently in control
of or has under his
power any further documentation pertaining to WMSA2012 Ltd.
[43]
The
applicant also alleged that the first respondent was a shareholder of
440.NG and 88MPGH, which was denied by the first respondent.
In
her replying affidavit the applicant does not take issue with this
denial.
[17]
Therefore,
it has not been established that the first respondent is in control
of or has in his power any documentation relating
to these entities.
[44]
In respect of the
entity, Nomanini the applicant alleged that the first respondent has
been appointed to the board thereof.
This was denied by the
first respondent in his answering affidavit. This denial was
not challenged by the applicant in her
replying affidavit.
Therefore, it has not been established that the first respondent is
in control of or has in his power
any documentation relating to
Nomanini.
[45]
On the papers it has
not been established that the first respondent is in control of or
has in his power any documents relating
to the remaining 34 entities
set out on annexure
A
.
Therefore, it follows that the provisions of Rule 35(11) cannot be
used to direct the first respondent to produce any documents
pertaining to thereto.
[46]
I turn now to the
request for statements in respect of offshore banking and investment
accounts held by the 6 entities of which
the first respondent is a
director.
46.1
Piorex (Pty) Limited:
the first respondent states that
to
his best of his knowledge
the company has no bank or investment accounts and that he discovered
all the documents pertaining thereto. As stated above,
it is
insufficient to state that to the
best
of his knowledge
no
such bank or investment accounts exist. Therefore, the first
respondent is directed to produce, under oath, statements
in respect
of offshore banking and investment accounts held by Piorex (Pty)
Limited for the period 1 January 2011 or the date of
opening of such
account or investment, until date of reply, alternatively, the first
respondent is directed to state under oath
that, as a director of
Piorex (Pty) Limited, he as definitively ascertained that no offshore
and/or investments accounts are held
by Piorex (Pty) Limited;
46.2
Proxivax
(Pty) Limited: the first respondent stated that the company had no
offshore bank or investment accounts whilst he was involved
with the
company. It is trite that the contents of a discovery affidavit
are deemed
prima
facie
conclusive
with regard to the existence of the requested documents and a court
is slow to go behind the affidavit,
[18]
requiring
a sufficient degree of certainty that the documents do exist before
doing so.
[19]
In the
present instance no such degree of certainty has been provided;
46.3
Amal Locker (Pty)
Limited: in his answering affidavit, the first respondent states that
this entity ceased operating in 2016, was
deregistered in April 2019
and that he has discovered all the documents in his possession or in
his control. The applicant
does not take issue with this
response in her replying affidavit. Consequently, it is
accepted that the first respondent
has discovered all the documents
that are in his possession or under his control in respect of this
entity;
46.4
Lerosign (Pty) Limited:
the first respondent states that the company never had an offshore
bank or investment account. As
stated above, the court will be
reluctant to go behind the discovery affidavit which states that
documents do not exist.
In the present instance, no basis has
been established for the court to do so;
46.5
Domestly: the first
respondent states that he does not know if this entity has offshore
bank or investment accounts. As director,
the first respondent
can ascertain whether or not this entity holds any offshore bank or
investment accounts and his response is
inadequate to comply with the
provisions of Rule 35(11). Therefore, the first respondent is
directed to produce, under oath,
statements in respect of offshore
banking and investment accounts held by the Domestly for the period 1
January 2011 or the date
of opening of such account or investment,
until date of reply, alternatively, the first respondent is directed
to state under oath
that, as a director of Domestly, he as
definitively ascertained that no offshore and/or investments accounts
are held by Domestly;
46.6
K2 Design Group Inc.:
the first respondent is silent on whether or not this entity has any
offshore bank or investment accounts.
As a director of this
entity the first respondent would have a legally enforceable right to
statements pertaining to any offshore
bank or investment accounts
held by it. Therefore, he is directed to produce, under oath,
statements in respect of offshore
banking and investment accounts
held by the K2 Design Group Inc for the period 1 January 2011 or the
date of opening of such account
or investment, until date of reply.
[47]
As demonstrated above,
it has not been established that the first respondent is in control
of or has in his power documentation
pertaining to the Tafika Trust
Mauritius and the 34 entities listed on annexure
A
to annexure
Y
.
Therefore, the provisions of Rule 35(11) cannot be utilised to direct
the first respondent to produce any documentation
pertaining to
either the 34 entities nor to the Tafika Trust Mauritius.
[48]
The
next category of documents requested was for documentation submitted
by the first respondent, the Tafika Trust or the entities
[20]
to the South African Reserve Bank, the Financial Services Department
or the South African Revenue Service in respect of any foreign
exchange transactions during the period 1 January 2011 to the date of
reply. In responding to this request, the first respondent
states that he has no such documentation in his possession and is not
aware that any such applications were ever submitted.
The first
respondent in his personal capacity, his capacity as a trustee of the
Tafika Trust and as a director of the 6 entities
listed above can
ascertain whether or not such documentation exists and his response
of not being aware whether or not it does
is inadequate for the
purposes of complying with the provisions of Rule 35(11).
Therefore, he is directed to produce documentation
submitted by him,
the Tafika Trust or the entities to the South African Reserve Bank,
the Financial Services Department or the
South African Revenue
Service in respect of any foreign exchange transactions during the
period 1 January 2011 to the date of reply,
alternatively he is
directed to state under oath that he has definitively ascertained
that no such documentation exist.
[49]
The next category of
documents requested was for credit finance applications submitted by
the first respondent, the Tafika Trust
or the entities to any
financial institution to secure credit whether as principal debtor or
as surety in respect of any credit
finance liability secure outside
of the jurisdiction of the South African High Court. In
response hereto the first respondent
vaguely states that he is not
aware whether the trusts or any of the entities have made such
applications. As stated above,
it is inadequate for the first
respondent to simply state that he is not aware whether or not the
Tafika Trust or the entities
have made such applications and he is
directed to produce any credit finance applications submitted by the
Tafika Trust or the
entities, alternatively he is to state under oath
that he has definitively ascertained that no such applications were
submitted.
[50]
In responding hereto in
his personal capacity, the first respondent states that he has
already discovered the finance application
submitted by him to enable
KaCee Keegan to purchase a home and that he has no further
documentation as requested. However,
it is evident from the
replying affidavit and annexure “
AR25
”
that the document discovered was a closing disclosure which reflected
the loan terms and closing costs. It was not
the finance
application which preceded the closing disclosure. Furthermore,
annexure “
AR26
”,
also attached to the replying affidavit, shows that the first
respondent had to have submitted a finance application to
secure the
approval of a loan in the amount of $410 000 extended over a
period of 10 years granted to him and Ms Jenny Provost.
In
light of annexures “
AR25
”
and “
AR26
”
the court is entitled to go beyond the discovery affidavit pertaining
to the existence of documents pertaining to credit
finance
applications submitted by the first respondent and he is directed to
produce the credit finance applications that preceded
the closing
disclosure in respect of the finance application submitted by him to
enable KaCee Keegan to purchase a home and the
credit finance
application pertaining to the loan extended over 10 years to the
first respondent and to Jenny L Provost.
[51]
The applicant also
requested the production of documentation reflecting any offshore
investments held by the first respondent, the
Tafika Trust or the
entities. In response hereto the first respondent answered
that:
51.1
he has previously
discovered all documentation in his possession in respect of share
options and shares that he obtained as part
of his employment with
Visa Inc and ACI as well as his shareholding in K2 Design Group
Limited and his Sanlam Endowment policies.
Furthermore, that he
has no further documentation in his possession and to the extent that
such further documentation exists, it
would be in the possession of
Visa Inc, ACI, K2 Design Group Limited and Sanlam. Rule 35(11)
seeks the production of documents
which are under the power or in the
control of the first respondent and is not limited to documents in
his possession. As
the first respondent would be in control of
and in power of documents reflecting the investments held by him,
there is no reason
why it should not be disclosed and he is directed
to discover the documentation reflecting any offshore investments
held by him,
other than what already discovered;
51.2
In respect of Tafika
Trust, the first respondent stated
inter
alia
that he has no
documentation other than the documentation previously discovered in
his possession and he does not believe that any
further documentation
exists. As a trustee, the first respondent could ascertain
whether or not any further documents exits
and his response is
inadequate to comply with the provisions of Rule 35(11).
It is evident from the
replying affidavit that further documents do exist and the first
respondent is possibly mistaken in his belief.
The replying
affidavit records that the most recent documents discovered by the
Tafika Trust was on 14 March 2018 and augmented
by a further reply on
1 November 2019. These documents included the RMB portfolio
which was reflected as having a value of
R2 002 719 and the
Standard Bank Portfolio as having a value of R960 039.
However, in the schedule provided
by the first respondent on 14
November 2019 the RMB investments are indicated as having a value of
R7 163 282, and an
investment on the JSE with a value of
R1 350 000. No documentation detailing the current
values of these investments
have been discovered. Therefore,
the first respondent is directed to produce this documentation, save
which has already been
produced, reflecting any offshore investments
held by the Tafika Trust;
51.3 In respect of the
entities, the first respondent stated that he has discovered all the
documentation pertaining to Piorex (Pty)
Limited and that
documentation pertaining to the companies in which Piorex (Pty)
Limited has invested is available for inspection.
He goes on to
state that to the extent that any further documentation as requested
exists, he believes same to be in the possession
of the companies.
As a director of the entities the first respondent would be in
control of the documents and he is directed
to discover the requested
documentation, other than already discovered, reflecting any offshore
investments held by the entities.
52.
The applicant requested
documentation submitted for or on behalf of the first respondent or
the Tafika Trust or the entities in
respect of compliance
requirements in any jurisdiction pursuant to the OECD Common
Reporting Standards (or Standard for Automatic
Exchange of Financial
Account Information) and related legislation and regulations or
regulatory requirements in the relevant jurisdiction.
The first
respondent does not answer this request directly or specifically.
However, his general response is that he has
discovered all the
documentation in his possession but to the extent that such
documentation as requested exists, he believes same
to be in the
possession of the entities. As a trustee and a director, the
first respondent would be in control of and have
in his power the
requested documents pertaining to the Tafika Trust and to the
entities. Therefore, he is directed to produce
the requested
documents submitted for or on behalf of the Tafika Trust and the
entities. In his personal capacity, the first
respondent is
directed to produce the requested documents, other than what has
already been discovered, alternatively he is to
state under oath that
no further documentation pertaining to documents submitted for him or
on his behalf in respect of compliance
requirements in any
jurisdiction pursuant to the OECD Common Reporting Standards (or
Standard for Automatic Exchange of Financial
Account Information) and
related legislation and regulations or regulatory requirements in the
relevant jurisdiction exist.
53.
The applicant seeks the
production of the following documents in respect of the entities:
(i) the share register;
(ii) the shareholders’
agreement and amendments thereto, save for the initial agreement
signed by First Respondent in October
2016 in respect of K2 Design
Group Ltd, but including amendments thereto;
(iii) documentation
confirming the incorporation and registration of the entities,
founding documents, including the memorandum
of incorporation
/association agreement regulating the memorandum of incorporation
/association regulating the operations and administrations
of the
offshore companies;
(iv) the financial
statements of each of the entities since the incorporation of the
entities, save for the financial year 2018
for Proxivax;
(v) documentation
reflecting any debit or credit loans held by the entities and the
causa underlying such loan agreements;
(vi) documentation
detailing how the entities were initially funded, including the
funding of incorporation and registration costs
and capital funding;
(vii)
documentation,
including correspondence, with the person or entity responsible for
the incorporation and registration of the offshore
companies;
(viii)
documentation
reflecting any dividends paid by the entities since the incorporation
of each entity; and
(ix)
resolutions and minutes
of the directors and shareholder of the entities since inception.
In his answering
affidavit the first respondent has not furnished any reasons or
grounds why he would be unable to provide this
documentation and he
is accordingly directed to do so.
54.
The applicant seeks the
purchase agreement or agreement in terms whereof the first respondent
acquired an interest in the immovable
property situated at 13087
White Violet Drive, Naples, Florida, USA (“
the
Florida property”)
and documentation reflecting the account which any share of his
interest in the Florida property was financed, other than the
mortgage bond account. This particular request was not part of the
relief sought when the Rule 35(11) application was instituted
and is
reflected in the amended prayers set out in the applicant’s
heads of argument. However, no objection thereto
was raised by
the first respondent. As co-owner of the Florida Property, the
first respondent would have this documentation
in his power or under
his control and the first respondent is directed to produce same in
terms of Rule 35(11).
55.
In the notice of
motion, the applicant sought to have the documents produced within 10
days of the granting of the order.
Given the volume of the
documentation to be produced and the number of entities involved, 10
days may be too short a period within
which the first respondent
would be able to comply with directions issued in terms of the court
order. A failure to comply
timeously with the directions issued
in terms of this court order could result in the institution of
contempt of court proceedings,
which would increase the litigation,
and the costs associated therewith, in an already litigious matter.
56.
On 19 June 2020, the
court was advised that the parties agreed to approach the Judge
President for the allocation of a trial date
at the beginning of
September 2020.
57.
In the circumstances,
it is prudent to extend the time period within which the first
respondent must comply with directions issued
in terms of the court
order to 20 court days.
COSTS
58.
In addressing me on the
issue of costs, Advocate Pincus SC for the first respondent submitted
that, in the event that I was not
with him, the issue of costs should
stand over for later determination. Advocate Buikman SC
submitted that the applicant
would be entitled to a favourable costs
order as she was successful in locating assets in excess of R17
million which had previously
not been disclosed.
59.
Whether or not these
recently discovered assets and the documentation sought in terms of
this application are to be taken into account
when determining the
applicant’s claim in terms of
section 7(3)
of the
Divorce Act
will
be determined during the divorce action. As stated in the
unreported matter of
JA
McWilliam v GS McWilliams
Case
No. 3145/2015 (ECD) it would be somewhat unfair that the first
respondent should bear the costs of the
Rule 35(11)
application at
this point as the question of whether or not this
Rule 35(11)
application was necessary or not can only be determined after the
extent of the applicant’s claim in terms of
section 7(3)
of the
Divorce Act is
determined.
CONCLUSION
60.
In the circumstances, I
make the following orders:
(1) the first respondent
is directed to, within 20 court days hereof:
(a)
produce, under oath,
statements in respect of offshore banking and investment accounts
held by him for the period 1 January 2011
or the date of opening such
account or investment, until the date of reply, save for such
documents previously discovered;
(b)
produce, under oath,
statements in respect of offshore banking and investment accounts
held by the Tafika Trust for the period 1
January 2011 or the date of
opening of such account or investment, until date of reply,
alternatively, the first respondent is
directed to state under oath
that, as a trustee of the Tafika Trust, he as definitively
ascertained that no offshore and/or investments
accounts are held by
Tafika Trust.
(c)
produce, under oath,
statements in respect of offshore banking and investment accounts
held by the Piorex (Pty) Limited for the
period 1 January 2011 or the
date of opening of such account or investment, until date of reply,
alternatively, the first respondent
is directed to state under oath
that, as a director of Piorex (Pty) Limited, he as definitively
ascertained that no offshore and/or
investments accounts are held by
Piorex (Pty) Limited;
(d)
produce, under oath,
statements in respect of offshore banking and investment accounts
held by the Domestly for the period 1 January
2011 or the date of
opening of such account or investment, until date of reply,
alternatively, the first respondent is directed
to state under oath
that, as a director of Domestly, he as definitively ascertained that
no offshore and/or investments accounts
are held by Domestly;
(e)
produce, under oath,
statements in respect of offshore banking and investment accounts
held by the K2 Design Group Inc for the period
1 January 2011 or the
date of opening of such account or investment, until date of reply;
(f)
produce, under oath,
documentation submitted by him, the Tafika Trust or the entities to
the South African Reserve Bank, the Financial
Services Department or
the South African Revenue Service in respect of any foreign exchange
transactions during the period 1 January
2011 to the date of reply,
alternatively he is directed to state under oath that he has
definitively ascertained that no such documentation
were submitted;
(g)
produce, under oath,
any credit finance applications submitted by the Tafika Trust or the
entities, alternatively he is to state
under oath that he has
definitively ascertained that no such applications were submitted;
(h)
produce, under oath,
the credit finance application that preceded the closing disclosure
in respect of the finance application submitted
by him to enable
KaCee Keegan to purchase a home;
(i)
produce, under oath,
the credit finance application that preceded the loan extended to him
and Ms Provost in the amount of $410 000;
(j)
produce, under oath,
the documentation reflecting any offshore investments held by him,
save for such documents previously discovered;
(k)
produce, under oath,
documentation reflecting any offshore investments held by the Tafika
Trust, save for such documents previously
discovered;
(l)
produce, under oath,
documentation reflecting any offshore investments held by the
entities, save for such documents previously
discovered;
(m)
produce, under oath,
documentation submitted on his behalf in respect of compliance
requirements in any jurisdiction pursuant to
the OECD Common
Reporting Standards (or Standard for Automatic Exchange of Financial
Account Information) and related legislation
and regulations or
regulatory requirements in the relevant jurisdiction, alternatively
he is directed to state under oath that
no such documentation exists;
(n)
produce, under oath,
documentation submitted on behalf of the Tafika Trust in respect of
compliance requirements in any jurisdiction
pursuant to the OECD
Common Reporting Standards (or Standard for Automatic Exchange of
Financial Account Information) and related
legislation and
regulations or regulatory requirements in the relevant jurisdiction,
alternatively he is directed to state under
oath that no such
documentation exists;
(o)
produce, under oath,
documentation submitted on behalf of the entities in respect of
compliance requirements in any jurisdiction
pursuant to the OECD
Common Reporting Standards (or Standard for Automatic Exchange of
Financial Account Information) and related
legislation and
regulations or regulatory requirements in the relevant jurisdiction,
alternatively he is directed to state under
oath that no such
documentation exists;
(p)
produce, under oath,
the following documentation pertaining to the entities:
(i) the share register;
(ii) the shareholders’
agreement and amendments thereto, save for the initial agreement
signed by First Respondent in October
2016 in respect of K2 Design
Group Ltd, but including amendments thereto;
(iii) documentation
confirming the incorporation and registration of the entities,
founding documents, including the memorandum
of incorporation
/association agreement regulating the memorandum of incorporation
/association regulating the operations and administrations
of the
offshore companies;
(iv) the financial
statements of each of the entities since the incorporation of the
entities, save for the financial year 2018
for Proxivax;
(v) documentation
reflecting any debit or credit loans held by the entities and the
causa underlying such loan agreements;
(vi) documentation
detailing how the entities were initially funded, including the
funding of incorporation and registration costs
and capital funding;
(x)
documentation,
including correspondence, with the person or entity responsible for
the incorporation and registration of the offshore
companies;
(xi)
documentation
reflecting any dividends paid by the entities since the incorporation
of each entity; and
(xii)
resolutions and minutes
of the directors and shareholder of the entities since inception; and
(q)
produce, under oath,
documentation pertaining to the purchase agreement or agreement in
terms whereof the first respondent acquired
an interest in the
immovable property situated at […], Florida, USA.
(2) costs of this
Rule
35(11)
application are reserved for determination by the trial court.
_____________________
SLINGERS J
ANNEXURE
“A”
ENTITIES
1.
Pempera Investments
Limited
2.
Piorex (Pty) Limited
3.
Proxivax (Pty) Limited
4.
WMSA 2012 Limited
5.
88 mph Limited
6.
440.NG
7.
660.NG
8.
AmaLocker (Pty) Limited
9.
Lerosign (Pty) Limited
10.
Domestly
11.
Mobijobs
12.
K2 Design Group Inc
13.
Pan Africa Investments
14.
Egcina (Pty) Ltd
15.
Graphflow
16.
Wabona
17.
Apex Peak
18.
8bit.co.za
19.
Pet Heaven
20.
Peach Payments
21.
Ekaya
22.
BabyGroup
23.
Booknow
24.
Adrenalin Hunter
25.
Flexiclub
26.
Solartech
27.
Nomanini
28.
Ivank Inc
29.
Click Right Consult
30.
Prayerbox
31.
Gingerbox
32.
Youngsoul
33.
Taja
34.
Ella Mathew Limited
35.
Fuel Voucher
36.
Obiwezy
37.
Jay Osbie
38.
Catch
39.
Zapacab
40.
Weaver
41.
Mydoorhandle
42.
The Massive
43.
Near A Builder
44.
Bite Money
45.
CitiDoc
[1]
A copy
whereof is attached hereto as “
A”
.
[2]
In opposing
this application the first respondent has not disputed the relevancy
of the requested documents. Consequently,
it is unnecessary in
this judgment to determine whether or not the requested documents
should be disclosed based on relevancy.
[3]
‘
Possession,
Custody and Control’ Tackled by the Sedona Conference,
August
29, 2016
[4]
Kickapoo
Tribe of Indians v Nemaha Brown Watershed Joint Dist. No.
7,
294 F.R.D. 610
, 613 (D kan.2013)
[5]
Lynn v
Monarch Recovery Mgmt.,
285
F.R.D. 350 (D.Mol.2012)
[6]
Tomlinson
v El Paso Corp.,
245
F.R.D. 474 (D.Colo.2007)
[7]
[2008] EWHC
56 (Pat)
[8]
North
Shore Ventures Ltd v Anstead Holdings Inc
[2012]
EWCA Civ 11
(18 January 2012) at paragraph 40
[9]
(4907/2006)
[2016] ZAFSHC 47
(18 Feb 2016)
[10]
2012 (4) SA
593
(SCA) at para 18
[11]
(15228/2009)
[2016] ZAGPJHC 396 (8 July 2016)
[12]
by quoting
Floyd
J in
Schlumberger
Holdings Limited v Electromagnetic Geoservices AS
[13]
Makate v
Vodacom (Pty) Ltd
2014
(1) SA 191 (GSJ)
[14]
Federated
Trust Ltd v Botha
1978
(3) SA 645
(A);
Ncoweni
v Bezuidenhout
1927
CPD 130
[15]
Cecilia
Goliath v Member of the Executive Council for Health, Eastern Cape
(085/2014)
[2014] ZASCA 182
(25 November 2014)
[16]
Annexure
AR7
records
that the first respondent purchased 833 shares in WMSA2012 Ltd on 12
June 2013.
[17]
Paragraph
17.9 of the answering affidavit, page 238 of the record read with
paragraph 46 of the replying affidavit, page 364 of
the record.
[18]
Makate v
Vodacom (Pty) Ltd
2014 (1) SA
191
(GSJ) at para 16
[19]
Continental
Ore Construction v Highveld Steel & Vanadium Corp Ltd
1971
(4) SA 589
(W);
Federal
Wine and Brandy Co Ltd v Kanto
1958 (4) SA 735
(E)
[20]
Any
reference to the entities should be read as a reference to the 6
entities of which the first respondent is a director.