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[2021] ZAWCHC 197
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Commissioner for the South African Revenue Service v Van der Merwe and Others (7255/2019) [2021] ZAWCHC 197; 83 SATC 19 (21 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 7255/2019
In
the matter between:
THE
COMMISSIONER FOR THE SOUTH AFRICAN
Applicant
REVENUE
SERVICE
and
GARY
WALTER VAN DER
MERWE
First Respondent
GARY
WALTER VAN DER MERWE
N.O.
Second Respondent
(in
his capacity as a trustee of the Eagles Trust IT 3019/95)
FERN
JEAN CAMERON N.O.
Third Respondent
(in
his capacity as a trustee of the Eagles Trust IT 3019/95)
DAVE
TADEO NKHOMA N.O.
Fourth Respondent
(in
his capacity as a trustee of the Eagles Trust IT 3019/95)
Date
of hearing:
10 August 2021
Date
of judgment:
21
September 2021
JUDGMENT
SAVAGE
J:
Introduction
[1]
The
applicant, the Commissioner for the South African Revenue Service, on
behalf of the South African Revenue Service (“SARS”),
[1]
seeks an order in terms of section 2(b) of the Vexatious Proceedings
Act, Act 3 of 1956 (“the VPA”), that no legal
proceedings
may be instituted by the first respondent, Mr Gary Walter van der
Merwe (“GVDM”), in his personal capacity,
or in his
capacity as a director, member or trustee of any company, close
corporation or trust, or by the second, third and fourth
respondents,
in their capacities as trustees of the Eagles Trust, IT 3019/95,
against any person in any court without the leave
of the court and
only if the court is satisfied that the proceedings are not an abuse
of the process of the court and that there
are
prima
facie
grounds for the proceedings.
[2]
In the
alternative, SARS seeks that an order be made that GVDM, in his
personal capacity, or his capacity as a director, member
or trustee
of any company, close corporation or trust, or the second, third and
fourth respondents, in their capacities as trustees
of the Eagle
Trust, be ordered to set security for any legal proceedings
instituted by them against SARS, in an amount to be determined
by the
Registrar of the High Court, as provided in rule 47 of the Uniform
Rules of Court, within ten (10) days of such legal proceedings.
[3]
The
respondents, GVDM in his personal capacity and the trustees of the
Eagles Trust, being GVDM, his mother, Ms Fern Cameron (“FC”),
and Mr Dave Nkhoma in their representative capacities, oppose the
application. All are represented by GVDM in doing so. Two striking
out applications are also before the Court: one brought by SARS in
relation to certain allegations contained in the answering affidavit
filed by GVDM; and the other brought by GVDM in relation to certain
allegations and annexures to CSARS’ founding affidavit.
[4]
The matter
came before Henney J on 6 August 2020 when it was ordered that:
‘
Pending
the final determination of the application, no legal proceedings may
be instituted by the first respondent (“Mr Van
der Merwe”),
in his personal capacity, or his capacity as a director, member or
trustee of any company, close corporation
or trust, or by the second,
third or fourth respondents, in their capacities as trustees of the
Eagles Trust, IT 3019/95, against
any person in any court or any
inferior court, without the leave of the court, or any judge thereof,
or that inferior court, as
the case may be, and only if that court,
judge or inferior court is satisfied that the proceedings are not an
abuse of the process
of the court and that there are
prima
facie
grounds for the proceedings; …’
[5]
The matter was
postponed
sine
die
with
the parties to reach agreement with Henney J regarding a virtual
hearing. GVDM and the Eagles Trust filed an application for
leave to
appeal against the order of Henney J. In due course the parties
agreed to this application being heard virtually and the
matter was
allocated for hearing by the Judge President of this division. Costs
of the hearing on 6 August 2020 were reserved for
determination with
the main application.
Background
[6]
A long history
of litigation exists which is relevant to this matter. GVDM was
investigated by the South African Revenue Service
(“SARS”)
and was arrested in 2004, following which he was charged criminally
with various fraud and tax-related offences
.
Litigation related to the validity of search and seizure warrants
issued persisted until 2010 when the Constitutional Court found
against the Minister of Safety and Security. Following an
unsuccessful application for legal aid and an unsuccessful
application
to this Court in 2012 for an order that the Legal Aid
Board fund his representation in the criminal trial, GVDM represented
himself
at the trial which
continued
for 15 years. In June 2016 GVDM was convicted of certain charges but
acquitted on eight tax-related counts (counts 4 to
11). The appeal in
the matter remains ongoing.
[7]
In a second
criminal trial, GVDM obtained a discharge in terms of section 174 of
the Criminal Procedure Act, Act 51 of 1977 on alleged
exchange
control violations. This followed his arrest after foreign currency
was found in his possession and
seized
on 13 July 2004 as he was attempting to leave the country.
I
n
an urgent application in July 2004
GVDM
and
Zonnekus Mansion (Pty) Ltd
(“Zonnekus), of which GVDM was director and which was owned by
the Eagles Trust, sought the return
of the foreign currency seized.
Many years after the seizure of the currency, despite the dismissal
of the urgent application as
well as subsequent appeals, the foreign
currency was returned.
[8]
In
2008 GVDM was unsuccessful in an urgent application for a declaratory
order in terms of section 172(1) of the Constitution to the
effect
that the Directorate of Special Operations, known as the Scorpions,
in relation to his alleged exchange control violations
had acted
outside of its
mandate and in a manner which was unlawful, invalid and
unconstitutional in investigating him. The refusal of this
Court to
make such an order was upheld on appeal by the Supreme Court of
Appeal (“the SCA”).
[9]
In May 2013,
after attempts by SARS to recover his assessed tax liability for the
years 2002 and 2003 had been unsuccessful, it
was reported to SARS
that US$15 million had been received by GVDM’s daughter,
Candice van der Merwe (“CVDM”),
paid from a foreign
source into her local savings account. On 30 August 2013 SARS
obtained an
ex
parte
preservation order in terms of section 163 of the Tax Administration
Act, Act 28 of 2011 (“the TAA”), against the assets
of
Zonnekus, GVDM, CVDM and other related entities. That order was made
final in February 2014 and in May 2015 the SCA confirmed
such order,
finding that GVDM “
controls
Zonnekus Mansions and that he does so through his mother to escape
judgment creditors
”
and, in addition, appears to control the affairs of CVDM. In
September 2015 CVDM’s application for leave to appeal
to the
Constitutional Court failed.
[10]
In December
2013, SARS obtained an order appointing a presiding officer for
purposes of an inquiry to be held in terms of section
50 of the TAA
into the tax affairs of GVDM, CVDM, Zonnekus and various related
entities. In February 2014 GVDM, CVDM and twelve
other applicants
failed in an application to interdict the tax inquiry, alternatively
to have certain provisions of the TAA declared
unconstitutional and
invalid; and were refused an order allowing them access to the court
file. Leave to appeal was refused with
costs, including those of two
counsel. In March 2014 the SCA dismissed an application for special
leave to appeal and in June 2014
the Constitutional Court dismissed
an application for leave to appeal. The tax inquiry proceeded and
resulted in letters of audit
findings being issued in respect of
inter alia
GVDM, CVDM and Zonnekus, culminating in assessments being raised
against them by SARS.
[11]
In May 2014,
in accordance with the terms of the preservation order, SARS
instituted an action under case number 8569/2014
inter
alia
against GVDM, CVDM, Zonnekus and Pearl Island Trading 712 (Pty) Ltd
(“Pearl Island”). SARS filed its discovery and
supplementary discovery affidavits in March 2015. In March 2016 SARS
withdrew its claims against CVDM in this action and CVDM withdrew
her
counterclaim instituted. This followed the resolution reached by SARS
and CVDM of the disputes between them. SARS nevertheless
persisted
with its claims
inter
alia
against GVDM and Zonnekus and seeks an order that GVDM be held
personally liable for the tax debts of certain of the defendants
cited in the matter. In April 2016 SARS launched an application in
terms of rule 35(2) to compel GVDM and other defendants to make
discovery. The application was opposed by GVDM in his personal
capacity and on behalf of the other defendants. In August 2016 SARS
succeed in its application to strike out a number of allegations made
in GVDM’s opposing affidavit and discovery was ordered.
In
striking out certain of the material contained in GVDM’s
affidavit Dolamo J noted that GVDM in his affidavit “
went
overboard and vented his perceived frustrations with
[SARS].
In
doing so he strayed into the realm of scandalous, vexatious and
irrelevant matter, which are prejudicial to SARS
…”.
In March 2017 application was made by the Eagles Trust to obtain
further and better particulars in respect of its
request for further
particulars, with a similar application brought in April 2017 by
GVDM. On 2 June 2017 SARS amended its particulars
of claim to reflect
the withdrawal of its claims against CVDM and claim F against GVDM.
On 8 June 2017 SARS was ordered to provide
certain better and further
particulars, which were thereafter provided, and in September 2017
SARS filed its expert summary in
terms of rule 36(9)(b) of the rules.
[12]
In January
2018 GVDM and other of the defendants, in a rule 7(1) application,
challenged the authority of attorneys MacRobert Inc.
(“MacRobert”)
to act on behalf of SARS. After a detailed response was filed by
SARS, no replying papers were filed
by GVDM. A rule 30A application
was served in June 2018, which was withdrawn in October 2019. Prior
to answering papers being filed,
an affidavit from the Acting
Commissioner was provided confirming authority had been granted, with
GVDM invited to withdraw the
application. GVDM persisted with the
application which was opposed by SARS and MacRobert. SARS opposed the
application on the basis
that it had complied with the notice in
terms of rule 7(1) and rule 30A was not applicable, the application
was out of time, vexatious,
without merit and constituted an abuse of
process and that there was no basis on which to allege that SARS
could not engage the
services of a private firm of attorneys. GVDM
was granted until August 2018 to file his replying affidavit. In
August 2018 GVDM
brought an application in terms of rule 35(13) and
(14) for the rules of discovery to apply to the rule 30A application
to allow
a handwriting expert to determine the validity of the
signature on the document. The rule 30A application was postponed
sine die
,
with GVDM having taken no further steps to ensure the enrolment of
the application. In October 2018 the rule 35 application was
dismissed with costs, including those of two counsel, with the
application found by Papier J to be an abuse of process, “
doomed
,
“
frivolous
and spurious
”
and an attempt to delay the hearing of the rule 30A application. An
application for leave to appeal was filed one day prior
to the main
application being heard. It was dismissed in October 2018 with costs,
including two counsel, with it noted by the court
that this was “
yet
another example of the applicant’s dilatory approach designed
to frustrate the hearing of the matter
”.
Leave to appeal was sought by GVDM from the Constitutional Court and
the application remains pending.
[13]
In June 2014
Standard Bank instituted proceedings for the winding up of Zonnekus
on the basis that it was commercially insolvent.
The application was
opposed but no answering affidavit was filed. After an application to
postpone the hearing was unsuccessful,
Zonnekus was placed into
provisional liquidation in September 2014, with the provisional order
made final in October 2014. Following
their appointment, the
liquidators applied for an extension of their powers under section
386(5) of the Companies Act, Act 61 of
1973 (“the 1973 Act”)
on an urgent
ex
parte
basis.
In March 2015 the liquidators applied to convene an inquiry in terms
of section 417 of the 1973 Act into the affairs and
business dealing
of Zonnekus. Shortly before the section 417 inquiry was due to
commence, in April 2015, GVDM and other applicants
launched a first
business rescue application (“BR1”) in relation to
Zonnekus, with Zonnekus, Standard Bank and SARS
cited as respondents.
Standard Bank and SARS raised a preliminary point which was
unsuccessful and after an earlier agreed postponement
of the matter,
BR1 was heard in February 2016. Condonation for the late filing of a
replying affidavit two days before the hearing
was refused by Koen AJ
as “
an
entirely improper attempt to defer the hearing
”
and BR1 was dismissed with costs, including the costs of two counsel.
Application for leave to appeal was dismissed in March
2016 and in
July 2016 the SCA refused leave to appeal.
[14]
In May 2015
SARS issued a letter of audit findings in respect of Zonnekus in
which it advised that it intended to raise assessments
which would
result in additional normal tax liability in the amount of R12
million, excluding interest on the underpayment of provisional
tax.
Various extensions were granted by SARS to GVDM and the liquidators
of Zonnekus to respond to the audit findings pending determination
of
the BR1. In November 2015 SARS raised the assessments against
Zonnekus and thereafter refused an extension to the period within
which to file an objection. Reasons for the assessment were requested
but refused by SARS on the basis that the period within which
to file
an objection had expired.
[15]
In November
2017 the liquidators of Zonnekus requested information from GVDM to
consider the quantum and validity of the assessments.
GVDM obtained
an extension of the period within which to respond to the liquidators
but no response was received. The assessments
therefore became final
and conclusive in terms of section 100 of the TAA, with the total tax
indebtedness of Zonnekus exceeding
R42 million.
[16]
In June 2016 a
second business rescue application (“BR2”) was launched
by employees of Zonnekus days prior to the refusal
of leave to appeal
by the SCA in BR1 and despite the fact that GVDM had stated on oath
in BR1 that Zonnekus had no employees. BR2
relied on the same
allegations as those contained in the BR1, yet both SARS and Standard
Bank were not cited as respondents. In
August 2016 GVDM’s
application for leave to intervene in BR2 on behalf of the Eagles
Trust was refused and the employees
were unsuccessful in an attempt
to set aside that order. SARS and Standard Bank were granted leave to
intervene as an affected
persons in terms of section 128(1)(a) of the
Companies Act, Act 71 of 2008 (“the 2008 Act) in the
application. They obtained
orders striking out large portions of the
founding affidavit and allowing the liquidation to proceed pending
the finalisation of
BR2. In September 2016 BR2 was dismissed with
certain ancillary orders made. Weinkove AJ found that the application
was an abuse
of process and brought in bad faith. An application for
leave to appeal was dismissed in November 2016 with costs, including
the
costs of two counsel. In March 2017, in an application opposed by
SARS and Standard Bank, the SCA granted leave to appeal to a full
bench of this Court against the ancillary orders made. The full bench
set aside a
de
bonis propriis
costs order made against the applicants’ attorney but dismissed
remainder of the appeal.
[17]
A third
business rescue application (“BR3”) was instituted by
GVDM in his capacity as trustee of the Eagles Trust on
2 September
2016, prior to BR2 being heard on 5 September 2016, but served after
the dismissal of BR2. Although the application
was served on SARS,
neither SARS nor Standard Bank were cited as respondents to the
application. In BR3
inter
alia
confirmation of GVDM as a director of Zonnekus and the ratification
of decisions taken by him from 13 April 2015 was sought. SARS
launched an urgent application to intervene in BR3 and the court
dismissed BR3 with costs, including those of two counsel, on the
basis that BR3 was launched while BR2 was pending. An application for
leave to appeal was filed but not pursued. It was dismissed
in May
2018, with costs including those of two counsel, after SARS and
Standard Bank enrolled the application for hearing. In September
2018
the SCA dismissed an application for special leave to appeal and in
November 2018 the Constitutional Court dismissed an application
for
leave to appeal.
[18]
A fourth
business rescue application (“BR4”) was launched in
September 2016 in which relief identical to that sought
in BR3 was
sought. SARS brought an application for leave to intervene and with
Standard Bank opposed the application. In December
2016 BR4 was
dismissed by Gamble J, with it found that GVDM was an experienced
litigator “
on
a mission to discredit SARS
”
and that his explanation as to why he had delayed nine months in
launching BR1 indicated that the application had been launched
“
to
frustrate the liquidators from discharging their obligations
”.
GVDM’s conduct was found to have “
precluded
the liquidators from taking any steps in relation to the company for
more than two years
”,
with it stated that “(m)
anifestly,
procrastination and foot dragging was the preferred approach of the
van der Merwe interests
”
and that a “
clearer
example of abuse of process…could not be found…
”.
It was ordered that pending any application for leave to appeal the
liquidation proceedings of Zonnekus where not suspended
and that GVDM
in his personal capacity and representative capacity as trustee of
the Eagles Trust were interdicted from launching
further applications
to place Zonnekus under supervision and commence business rescue
proceedings without the prior leave of the
duty judge. In February
2017 leave to appeal was dismissed, with special leave to appeal
dismissed by the SCA in March 2017 and
leave to appeal dismissed by
the Constitutional Court in August 2017.
[19]
In August 2017
the Eagles Trust, represented by GVDM, launched an urgent application
that Edward Nathan Sonnenbergs Inc. (“ENS”)
as attorneys
for the liquidators, the liquidators and SARS be declared in contempt
of the preservation order granted in March 2014.
The application was
struck from the roll for lack of urgency in August 2017 and a notice
of withdrawal was filed, with no tender
of costs. A second contempt
application was launched in September 2017 in which MacRobert was
included as a respondent. SARS launched
an application for security
for costs and in July 2018 both the application for security and the
contempt application were dismissed,
the latter with costs. Slingers
AJ found that the application was “brought without sufficient
ground” and was “
vexatious
and an abuse of the court process
”.
In October 2018 leave to appeal was refused, with special leave
refused by the SCA in February 2019. The application for
leave to
appeal is pending before the Constitutional Court.
[20]
In March 2018
the liquidators of Zonnekus brought an application for the eviction
of GVDM and the other occupiers from the Woodbridge
Island property,
being the sole remaining immovable property of Zonnekus. SARS was not
a party to the application. In February
2019, after various
postponements, an eviction order was granted by this Court.
Applications made for leave to appeal were dismissed.
[21]
In November
2018 GVDM in his personal capacity and as a trustee of the Eagles
Trust, with FC and Mr Nkhoma as trustees of the trust,
applied for
the removal of the liquidators of Zonnekus and that liquidation
proceedings be stayed. This was on the basis that the
liquidators had
failed to disclose the existence of the preservation order in respect
of Zonnekus in their
ex
parte
application for the extension of their powers in terms of section
386(5) of the Companies Act; that the application had been brought
immediately after the appointment of the liquidators, which indicated
it had been prepared before their appointment, which was
an abuse of
process; and that in acting on behalf of both Standard Bank and the
liquidators the actions of ENS constituted a “
gross
conflict of interest
”
and allowed excessive legal costs to be incurred by the liquidators.
In March 2019 an interlocutory application under Rule
30A(2) was
launched in the removal application seeking that the liquidators
comply with an earlier notice in terms of rule 7(1)
which attacked
the authority of ENS to represent the liquidators.
[22]
In January
2019 GVDM in his personal capacity and as a trustee of the Eagles
Trust, with FC and Mr Nkhoma as trustees, applied
inter
alia
for
the re-opening and setting aside of the first confirmed liquidation
and distribution account and the institution of an enquiry
into the
conduct of the liquidators under section 381 of the 1973 Act. GVDM
contended that the reason that Zonnekus ceased trading
was that the
preservation order had been imposed against it and that it was as a
result that it became unable to pay its debts.
In addition,
application was made for the repayment of legal costs earned by ENS
with an order sought that the conduct of ENS be
referred to the
Director of Public Prosecutions.
[23]
In April 2019
an application was instituted under rule 6(12)(c) for the
reconsideration of the order granted more than 4 years earlier
extending the powers of the liquidators under s386(5) of the 1973
Act. In September 2019 this application, and in November 2019
the
application to reopen the first liquidation and distribution account
and the application to remove the liquidators, were dismissed
with
costs on an attorney and client scale. In addition, the rule 30A
application was dismissed with costs on an attorney and client
scale.
The removal application, the application to reopen the liquidation
and distribution account, the rule 30A application were
all heard by
Gamble J who dismissed all applications with punitive costs orders.
Gamble J took issue with the “
excessive
claims
”
made by GVDM when he suggested that as part of the “
feeding
frenzy
”
the liquidators and ENS were “
co-conspirators
liable to be charged under the Prevention of Organised Crime Act
”.
GVDM was cautioned by Gamble J in his judgment to “
exercise
restraint lest he go beyond the reasonable bounds of litigation
privilege
”,
with the applications found to be an abuse of process “
carefully
planned and designed to interrupt the winding-up process and to cause
as much collateral damage to the liquidators and
creditors as
possible
”
.
[24]
In 2019 GVDM
instituted an action against the Minister of Finance and SARS seeking
R1 billion in constitutional damages on the basis
inter
alia
that
SARS obtained the preservation order after misrepresenting the facts
to the Court and that he had been the subject of malicious
prosecution. CVDM instituted a similar application also seeking R1
billion in damages. In addition, GVDM instituted a R5.6 billion
claim
for damages against SARS in June 2019 consequent to investigations
instituted by SARS between April 2002 and September 2003
against a
number of companies in which GVDM was a majority shareholder as a
result of which the companies were irreparably prejudiced
and ceased
business operations.
[25]
On 30 April
2019 the current application was the instituted by SARS.
Striking
out applications
[26]
Both SARS and
the respondents seek orders striking out certain material contained
in the founding and answering affidavits filed
in this matter.
Respondents’
strike out application
[27]
In the
respondents’ application to strike out, GVDM, on behalf of the
respondents, sought that paragraphs 30 - 46, 101, 275
– 301 of
SARS’ founding affidavit be struck out, together with Annexures
ML10 - ML14, ML32, ML46 - ML48 and ML51 –
ML 67, on the basis
that the contents are inadmissible in that their disclosure is
unlawful as it constitutes a breach of the provisions
of section
69(1), read with sections 67, 68 and 236 of the TAA, alternatively
that they are irrelevant, vexatious, scandalous and
defamatory. He
claimed that he will be prejudiced if the averments in these
paragraphs and annexures are allowed to remain in the
founding
affidavit as this will allow SARS to use illegally obtained
information in the presentation of its case against him and
unfairly
paint him as a tax defaulter and tax evader when such tax claims are
the subject of other proceedings. Since the TAA requires
taxpayer
information to be protected as confidential, the information in
paragraph 30 – 46 and annexures ML10 - ML14, he
submitted,
should be struck out in that it details his tax number, the amounts
claimed from him by SARS, the steps taken by him
to challenge these
amounts and correspondence relating to his tax affairs. Paragraph 101
and Annexure ML32 contain similar confidential
tax information
relating to Zonnekus; and paragraphs 276-301 and Annexures ML46 -
ML48 and ML51 - ML67 contain confidential taxpayer
information
relating to CVDM and her tax affairs. All of this information is
irrelevant to the main application and beaches GVDM’s
constitutional right in section 14 of the Constitution to privacy.
[28]
SARS opposed
GVDM’s strike out application on the basis that he lacks
locus
standi
in
relation to the objections raised in respect of Zonnekus or CVDM.
Furthermore, it contended that the evidence contained in the
founding
papers is not inadmissible, nor irrelevant or in breach of the
confidentiality provisions of the TAA. This is so in that
in terms of
section 5 of the South African Revenue Service Act, Act 34 of 1997
(“the SARS Act”), SARS is to do all
that is necessary or
expedient to perform its functions properly, including instituting
legal action. In terms of section 68(3)
of the TAA, a SARS official
may disclose confidential SARS information where the information is
public or the disclosure is authorised
by the Commissioner; and
section 69(2) of the TAA allows a SARS official to disclose
taxpayer information when it is in the
course of the performance of
duties under a tax act or the information is public. Since the
information was disclosed in the execution
of the duties of a SARS
official in terms of tax acts, it is admissible evidence. The strike
out application, it was argued, therefore
constitutes an abuse of the
court process and a continuance of strategy to delay and
frustrate SARS’ attempts to recover
the taxes due, when most of
the matter sought to be struck out already forms part of papers filed
in previously pending litigation
between the parties which was or is
being conducted in open court. GVDM’s tax debts were detailed
in the preservation application,
as well as in the action instituted
by SARS and the various business rescue proceedings concerning
Zonnekus, which has been finally
wound up. Furthermore the
circumstances and events concerning the assessments raised by CVDM
are the subject matter of the actions
by GVDM and CVDM against SARS.
SARS’
strike out application
[29]
In its
application, SARS seeks that paragraphs 12 to 15, 62, 64, 67, 69,
115, 117, 157 to 159, 222-227 and Annexure GVDM1 to GVDM’s
answering affidavit be struck out on the basis that such material is
irrelevant, vexatious, scandalous or inadmissible and to the
prejudice of SARS.
[30]
Annexure GVDM1
sets out portions of GVDM’s testimony regarding his life’s
history, including raids directed at him conducted
by SARS and
the South African Police Service (“SAPS”). It is
contended for SARS that this document should be
struck out in that it
is inadmissible and irrelevant to the issues arising in the
litigation between the parties, with the only
mention of raids being
from pages 6436 to 6438; and references made to documents put up in
the criminal trial, to which SARS did
not have access. It is stated
that prejudice will arise if the document is not struck out and GVDM
were to rely on it since SARS
would not have had the opportunity to
respond to it.
[31]
Issue was
taken with paragraphs 12 to 15 of the answering affidavit in which
GVDM states that SARS has “
relentlessly
pursued
”
those he has done business with or been associated with to the point
that his once stellar reputation has been besmirched,
with he and his
family “
tarred
and feathered as criminals and tax delinquents, pilloried to pariah
status, now classed as individuals with whom people would
not even
consider doing business. This is entirely due to SARS, not only
harassing me through the courts, both civilly and criminally,
leaving
me with no option but either to bring applications of my own or
defend myself, but also using the media to sensationalise
that
obviously false allegations against Candice and I
”.
He states that it is a “
great
rarity
”
for targeted taxpayers like him to fight SARS and to go on the attack
to vindicate themselves and claim substantial damages
“
caused
by this egregious conduct by an organ of state
”.
He states that his “
resolute
defence
”
and “
quest
for justice
”
is motivated by his “
desire
to expose what I can only class as criminality by a small number of
SARS officials, their attorneys and advocates
”
when he has done nothing wrong and has been treated in “
the
most reprehensible and unconscionable manner by people that think
nothing of abusing the process of the courts in order to victimise
a
citizen and taxpayer for nothing more than their own gain
”.
He states that he therefore seeks to “
demonstrate
the naked criminality and wanton greed
”
of which he has been a victim for two decades. It was submitted for
SARS that in stating as much GVDM makes vague and spurious
allegations against SARS, its officials and its legal
representatives, without providing factual support for the vexatious
and
defamatory conclusions reached by him which are inadmissible in
evidence and prejudicial to SARS.
[32]
In relation to
paragraphs 62 and 64 to 67, SARS submitted that unsubstantiated
personal attacks are made on SARS’ legal representatives
which
are vexatious, scandalous and prejudicial to SARS. GVDM states that
it “
became
abundantly clear that the vendetta pursued
”
against him “
was
not about tax, it was an economic hit and an exercise to create fees
for lawyers, MacRobert attorneys and their professional
consultants
who act both for and against SARS, and to destroy me and my family in
circumstances where we are not people of power
or influence and nor
are we people that pose a threat of violence or danger to anyone
.”
[33]
GVDM states in
paragraph 64 that the case against him has been ongoing since 2013,
with discovery consisting of 75 000 pages
of no relevance and
much of it unlawful. This has cost CVDM “
at
least half her wealth and an estimated R50 million to the taxpayer
for the benefit of MacRobert attorneys, in circumstances where
there
was no case to begin with, about a gift to my daughter which was not
taxable income
”.
He states in paragraph 65 that he has placed into a class of
well-known and notorious figures in the criminal underworld
and
organised crime, despite the fact that he has links to neither.
Instead, in paragraph 66, he states that he is “
a
victim of organised crime and state capture by a firm of attorneys
and I am resolute in my belief that the campaign that has been
waged
against me is criminal in nature
”.
In paragraph 67 he records his past successful business career and
the “
generous
gift
”
received by CVDM from one of the wealthiest men in the world, made
them “
prime
targets from whom money could be extracted by unscrupulous attorney
seeking to benefit themselves
”.
[34]
SARS contended
that the innuendo that its officials or legal representatives can be
bought, when GVDM states in paragraph 69
inter
alia
that
he has “
refused
to fall prey to extortion
”,
is unsubstantiated, vexatious, scandalous and to its detriment. It is
contended that the claim in paragraph 115 that SARS’
plea is
“
based
on lies and deceit
”
is equally unsubstantiated, vexatious, scandalous and prejudicial to
SARS. GVDM records further, in paragraph 117
,
that SARS and its officials rely on “
major
nondisclosures, deceit and lies
”
in litigating against him, with the preservation application
“
brought
in stealth
”
and that SARS should be sanctioned for its “
egregious
contact
”.
This, it is submitted by SARS, is unsubstantiated, vexatious,
scandalous and prejudicial to SARS.
[35]
SARS took
further issue with paragraphs 157 to 159 with the suggestion that it
was content to have GVDM’s friend and business
partner’s
farm worth R89 million sold in liquidation for R4 million; that it
acted “
illogically
”
in opposing the business rescue application for Zonnekus which would
have seen it receiving its full claim; and that it
seeks “
to
execute and economic hit against persons identified as enemies
of SARS and not actually retrieve revenue as they are mandated
to
do
”.
SARS submits that these allegations are reprehensible,
unsubstantiated, vexatious and prejudicial to SARS.
[36]
In relation to
paragraphs 222 to 227, SARS objects to what it claims are
unsubstantiated allegations made against its attorneys
and are
scandalous, vexatious, unacceptable and prejudicial. In paragraphs
222-223 GVDM states that it is not coincidental that
the attorney for
Standard Bank is married to the attorney for SARS and that both
senior attorneys were previously partners at MacRobert,
before Mr
Andre Symington moved to ENS. He states that this “
obvious
conflict of interest
”
emerged later when the liquidators, represented by ENS, worked
closely with Standard Bank and SARS to prevent Zonnekus going
into
business rescue. This was despite the fact that Standard Bank was
offered all money owing to it and that “
ENS
Africa have run up at least R10 million in legal fees over the past
few years of dealing with this matter, estimated to be double
what
was owed to the bank by Zonnekus Mansion in the first place
”.
In paragraph 224 GVDM states that “
it
is quite remarkable, and indeed vexatious, that a bank took
the…reckless approach”
when
it had been offered what was due to it. In paragraph 225 GVDM
contends that Standard Bank engineered a shortfall, with the
properties sold for less than their value after the liquidators
agreed to a R1.5 million reduction on a R9 million offered to
purchase the bonded properties. He states that this reduction appears
to have emanated from the liquidators, to avoid further attempts
to
put Zonnekus into business rescue when the SARS claims “
would
be the only alleged debt remaining
”.
In paragraph 226, GVDM states that given the history and regular
correspondence between MacRobert and the liquidators and
the
relationships between the parties “
the
hand of SARS is never far from the actions of the liquidators and the
bank…
”.
In paragraph 227 he posits that “
SARS
have used Standard Bank to get the company into liquidation and then
maintained the status quo in order to avoid the bogus
tax assessments
being challenged
”,
with the attitude of Standard Bank to the matter changing after a
meeting involving SARS.
Evaluation:
strike out applications
[37]
Rule 6(15) of
the Uniform Rules of Courts provides that:
‘
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs including costs as between attorney and
client. The court will not grant the application
unless it is
satisfied that the applicant will be prejudiced in his case if it be
not granted.’
[38]
An
order striking out any matter from an affidavit will succeed where an
applicant has shown that
the
matter to be struck out is scandalous, vexatious or irrelevant and
that he or she will be prejudiced if the matter is not struck
out.
[2]
In
Vaatz
v Law Society of Namibia
[3]
it
was stated that s
candalous
matter consists of “
allegations
which may or may not be relevant but which are so worded as to be
abusive or defamatory
”,
vexatious matter of “
allegations
which may or may not be relevant but are so worded as to convey an
intention to harass or annoy
”
and irrelevant matter of “
allegations
which do not apply to the matter in hand and do not contribute one
way or the other to a decision of such matter
”.
[4]
In relation to prejudice it was said that this “
does
not mean that, if the offending allegations remain, the innocent
party’s chances of success will be reduced. It is substantially
less than that. How much less depends on all the circumstances
…”.
[5]
[39]
The taxpayer
information relating to GVDM is set out in paragraphs 30 - 44 and
annexures ML10 - ML14 to the founding affidavit,
concerns the origins
of and amount of the tax debt which SARS claims GVDM owes it, to
which SARS notes no objection or appeal has
been raised by GVDM. The
debt is therefore considered to be final and conclusive. Such
information is relevant for purposes of
the current matter insofar as
it sets out the basis on which SARS proceeded against GVDM. The
inclusion of this information remains
directly relevant to the
current application, with any potential prejudice which could arise
from for example of the disclosure
of GVDM’s tax number or
other personal details, countered by the fact that the court file
remains sealed and confidential.
The same applies to paragraph 42,
which is relevant to the extent that it details that portion of the
debt which arose in respect
of 2016 - 2018 years, which forms part of
the total tax debt claimed; and paragraphs 44 - 46 which set out the
history of the write-off
of GVDM’s tax debt by SARS in 2011,
which debt was reinstated in 2013, and the dispute between the
parties as to whether
the write-off was temporary in nature or not.
Paragraph 101 and ML32 set out the detailed basis upon which the tax
debt of Zonnekus
was determined by SARS, which for purposes of this
application is relevant to the litigation which arose related to the
liquidation
of Zonnekus and has not been shown to cause any
prejudice. Paragraphs 275 - 301, together, with annexures ML46 - ML48
and ML51
- ML 67, relate to tax liability determined in 2016 and the
objection raised by CVDM in 2018 to the settlement amount paid by her
to SARS in respect of her tax liabilities in March 2016. This
material is relevant to the current application insofar as it relates
to the preservation application, the withdrawal of SARS’ action
against CVDM and CVDM’s action instituted against SARS,
and its
inclusion has not been shown to cause prejudice to the respondents.
[40]
There is
nothing before this Court to suggest that the material sought to be
struck out is inadmissible, nor that it has been put
up in breach of
the confidentiality provisions of the TAA when the tax affairs of
GVDM, Zonnekus and CVDM are directly relevant
to the issues raised in
the main application. Section 5 of SARS Act expressly permits SARS to
institute legal action such as the
current. Section 68(3) of the TAA
permits a SARS official to disclose confidential SARS information
where the information is public
or the disclosure is authorised by
the Commissioner; and section 69(2) allows a SARS official to
disclose taxpayer information
when it is in the course of the
performance of duties under a tax act or the information is public.
There is no basis on which
to find that the information disclosed in
the founding affidavit was not disclosed in the execution of the
duties of a SARS official
in terms of prevailing tax laws, or that by
putting up such information GVDM’s privacy rights have been
breached when much
of such information has been the subject of
previous litigation between the parties. For these reasons the
respondents’ application
to strike out cannot succeed and the
application is dismissed.
[41]
Turning to
SARS’s application to strike out, there can be little doubt
from a plain reading of paragraphs 12 - 15, 62, 64,
67, 69, 115, 117,
157 to 159 and 222-227 of the answering affidavit that each of these
paragraphs contain allegations which are
worded
in a matter which is abusive or defamatory
and vexatious in the
sense they are
intended
to harass or annoy. As much is evident from the serious and repeated
allegations of fraud, corruption and harassment raised
against SARS
and its attorneys, without evidence put up to support such serious
allegations, as well as the unwarranted and unduly
emotive language
used repeatedly throughout such paragraphs. This is when the facts
advanced by SARS, and not refuted by the respondents,
indicate that
objections had not been raised within the prescribed time limits, or
at all by the respondents, against tax liabilities
assessed by SARS
in relation to GVDM, CVDM and Zonnekus and that appeals against such
assessments were not instituted or pursued.
It is patently clear that
were such scandalous, vexatious and irrelevant material not to be
struck out, SARS would suffer prejudice
in its case.
[42]
Similarly, I
can find no reason why Annexure GVDM1 should not be struck out given
the extensive details it contains relating to
matter which is
irrelevant to the current application. That reference is made in two
pages to raids undertaken by authorities against
GVDM and others does
not alter this fact. To allow material concerned with documents put
up in the criminal trial, to which SARS
has not had access, would
cause prejudice were it not to be struck out. It follows that given
the
irrelevant
matter contained in this annexure and the allegations raised in it,
which are largely unrelated to the current application,
if they apply
at all, SARS would be prejudiced in the current matter were this
document not to be struck out.
[43]
It follows
that SARS’ application to strike out paragraphs 12 - 15, 62,
64, 67, 69, 115, 117, 157 to 159 and 222-227 and annexure
GVDM1 to
the respondents’ answering affidavit succeeds and the offending
paragraphs and annexure are struck out. There is
no reason why costs
should not follow the result, with such costs to include the costs
incurred in respect of the postponement
of the respondents’
strike out application. The respondents must therefore pay SARS’
costs in respect of its application
to strike out, jointly and
severally, the one paying the other to be absolved, including the
costs of two counsel.
Evaluation:
application for declaration as vexatious litigants
[44]
Section 2(b)
of the Vexatious Proceedings Act, Act 3 of 1956 (‘the VPA’)
provides:
‘
(b)
If, on an
application made by any person against whom legal proceedings have
been instituted by any other person or who has reason
to believe that
the institution of legal proceedings against him is contemplated by
any other person, the court is satisfied that
the said person has
persistently and without any reasonable ground instituted legal
proceedings in any court or in any inferior
court, whether against
the same person or against different persons, the court may, after
hearing that person or giving him an
opportunity of being heard,
order that no legal proceedings shall be instituted by him against
any person in any court or any inferior
court without the leave of
the court, or any judge thereof, or that inferior court, as the case
may be, and such leave shall not
be granted unless the court or judge
or the inferior court, as the case may be, is satisfied that the
proceedings are not an abuse
of the process of the court and that
there is
prima facie
ground
for the proceedings.’
[45]
The
Constitutional Court in
Beinash
and Another v Ernst & Young and Others
[6]
found
that while section 2(b) of the VPA limits the right of access to
courts, such limitation is reasonable and justifiable having
regard
to section 36 of the Constitution.
[7]
The purpose of the
section
is to impose a procedural barrier to litigation on persons who are
found to be vexatious litigants so as
to
restrict their access to courts to stop
“
persistent
and ungrounded institution of legal proceedings
”
and
“
the
making of unjustified claims against another or others, to be judged
or decided by the Courts
”.
[8]
Such
an order is not an immutable bar to litigation,
but
aimed at regulating access to courts to protect
the
interests of those at the receiving end of the vexatious litigant who
have repeatedly been subjected “
to
the costs, harassment and embarrassment of unmeritorious litigation
as well as the public interest that the functioning of the
Courts and
the administration of justice
.
[9]
The VPA does not afford protection against vexatious proceedings, or
an abuse of process in respect of legal proceedings, which
have
already been instituted.
[10]
[46]
The
jurisdictional requirements for an order in terms of section 2(1)(b)
are that legal proceedings must in the past have been instituted,
or
there is reason to believe that proceedings will in the future be
instituted, against the applicant; and that the court is satisfied
that the respondent has persistently instituted legal proceedings
without any reasonable ground in a court, or inferior court,
whether
against the same person or against different persons
.
[11]
[47]
There is no dispute that legal
proceedings have in the past been instituted both by GVDM in his
personal capacity, and by GVDM and
the other trustees of the Eagles
Trust, directly against SARS and against a range of other parties.
The thread that runs through
all of this litigation is that its
relationship to the tax affairs or determined tax liabilities of
GVDM, CVDM, the trustees of
the Eagles Trust or other entities to
which GVDM is related. From this litigation it is apparent that GVDM
has acted both on his
own behalf and on behalf of the trustees of the
Eagles Trust, in whom ownership in Zonnekus was vested, or other
entities in which
GVDM holds an interest. He
has
been
the
driving force behind much of the litigation which has increasingly
been litigated personally by him without the assistance of
any legal
representative. From the manner in which he has conducted this
litigation it is apparent that he has gained significant
knowledge
regarding the law, legal process and the workings of the courts. What
is however equally apparent are the dangers incumbent
in holding a
limited knowledge in areas of the law, which has allowed a patently
ill-conceived and unreasonable approach to be
taken by GVDM and the
other respondents to much of the litigation embarked upon.
[48]
What is in issue for purposes of
the current application is whether the respondents have been shown to
have “
persistently and without
any reasonable ground instituted legal proceedings in any court or in
any inferior court, whether against
the same person or against
different persons
” in a manner
which warrants an order to be made against them in terms of section
2(1)(b). This requires a careful consideration
of the legal
proceedings which has been instituted by the respondents.
[49]
In relation to the preservation
application, to the extent that the application to anticipate the
return date of the order granted
ex
parte
against them constituted the
institution of legal proceedings, the respondents were clearly within
their rights to do so. In relation
to the tax enquiry, GVDM and
others instituted an unsuccessful application to interdict the
enquiry, secure access to documentation
in the court file and contest
the constitutionality of provisions of the TAA, with various
applications for leave to appeal thereafter
refused. The court took
issue with the approach taken by the respondents to that application,
including the language, tone and
content of the founding papers. Yet,
despite these objections it is difficult to conclude that the
application was instituted without
any reasonable ground,
particularly when it would have been difficult for the respondents to
have identified the documents in the
court file to which they sought
access when they were not given access to such file and would
therefore have been unaware of the
documents contained in such file.
[50]
GVDM’s stance to that
application, reflected equally in his approach to other of the
applications referenced in this matter,
indicates his strongly held
belief that he and the businesses in which he has been involved have
been unfairly treated by SARS.
However, what appears to be absent
throughout the litigation is a recognition on his part that avenues
have been available to him,
or individuals and entities with which he
is associated, including to object and appeal timeously against
assessments raised by
SARS, of which use has not been made and there
has been a resounding failure to explain why this is so.
[51]
In respect of the action
instituted in 2014 by SARS, although a number of interlocutory
skirmishes have arisen between the parties,
it is pertinent to note
that SARS has not to date driven the matter to finality, with the
action not set down for hearing. In addition,
while GVDM was
unsuccessful in interlocutory applications brought under rules 7(1)
and 30A, SARS has equally been the ordered to
comply with
interlocutory orders related to the matter. Furthermore, while issue
may be taken with the reasonableness of GVDM’s
decision to
pursue the rule 7(1) and rule 30A applications after SARS had put up
the relevant material was, it appears, patently
unreasonable, it is
relevant to note that the reliance placed by SARS on the contents of
GVDM’s affidavit opposing discovery,
which
were found to have “
strayed
into the realm of scandalous, vexatious and irrelevant matter, which
are prejudicial to SARS
”,
relate to proceedings not instituted by GVDM or the other
respondents.
[52]
The persistent and vexatious
approach taken by GVDM and the other respondents in the unreasonable
institution of legal proceedings
is most clearly apparent in relation
to the liquidation of Zonnekus and applications ancillary to it. The
liquidation application
against Zonnekus was instituted by Standard
Bank, with the liquidators instituting applications to extend their
powers, commence
a section 417 enquiry and secure an eviction order
against the occupants of the immovable property owned by Zonnekus.
The numerous
other applications brought in the matter were instituted
by GVDM, the trustees of the Eagles Trust or both. These included
four
separate unsuccessful business rescue applications, one of which
was launched by the purported employees of Zonnekus but appeared
to
have been directed by GVDM. These applications followed consecutively
upon the other, relying on the same set of facts, and
on one occasion
before the previous application had been finalised. Underlying these
applications was GVDM’s objection to
the extent of the tax
liabilities raised by SARS against Zonnekus despite the fact that the
evidence put up indicated that none
of the respondents had made use
of the SARS’ objection and appeal mechanisms available to
challenge such liabilities; and
when no assistance, as had been
sought, was provided to the liquidators by GVDM or others to do so.
In such circumstances, given
such unchallenged and extensive tax
liabilities, the business rescue applications were patently
unwarranted, instituted without
any commercial justification, were
doomed to failure and set out to achieve an extraneous objective,
namely to frustrate and delay
the liquidation. The single-minded
persistence with which these applications were pursued was
unreasonable, patently vexatious
and constituted an abuse of court
process. This course of action was aimed at, and for an extended
period succeeded in, halting
the liquidation of the company. The
manner in which the applications were pursued, with SARS not always
cited as a respondent despite
the respondents being aware of its
large tax claim against Zonnekus, was equally litigious since it led
to SARS having to seek
leave to intervene in such matters given its
interest in them.
[53]
The further applications
concerned with Zonnekus and pursued by GVDM and the trustees of the
Eagles Trust included an application
for the removal of the
liquidators, two applications to hold the liquidators and SARS’
attorneys (in the second application)
in contempt of the preservation
order in the winding up of Zonnekus, an application for the removal
of the liquidators, an application
to re-open the liquidation and
distribution account, an application that ENS repay legal costs paid
to it by the liquidators and
a numerous applications for leave to
appeal in various courts. Each of these applications, instituted in
the persistent and relentless
manner in which they were, were equally
unmeritorious and unreasonable, patently vexatious and constituted an
abuse of court process.
[54]
What
constitutes an abuse of court process is a matter to be determined
from the circumstances of each case. In general, such abuse
arises
where procedures permitted by the rules of court to facilitate the
pursuit of the truth are used for a purpose extraneous
to that
objective.
[12]
The difficulty that arises with the approach of many a lay litigant
is that the legal knowledge held is short of what is required
for the
purpose to which it is applied, with critical gaps in what is
required to succeed in the litigation. As much is apparent
from much
of the litigation instituted by GVDM and the respondents. While it
may be that elements of the complaints raised suggest
that they may
hold some kernel of truth or merit, the persistent manner in which
the applications have been instituted, together
with their content,
has been unreasonable and the litigation has been pursued in so
vexatious a manner as to point squarely to
its intent to harass and
delay in circumstances in which this is plainly unwarranted. As such,
there can be little doubt that all
such litigation has been
vexatious, unreasonable and an abuse of court process.
[55]
It was
argued by GVDM that much of the litigation that could be instituted
by the respondents has already been instituted and that
there is
little purpose served in declaring the respondents to be vexatious
litigants under the VPA. I am not persuaded that this
is so given the
respondents’ past conduct. It seems to me that it remains
entirely within the realm of possibility that a
similar approach to
that adopted to date in litigation could well continue into the
future without regard to the prospects of success,
the legal costs
incumbent in opposing such litigation, the abuse of court process or
the serious objection raised by numerous judges
in this division as
to the vexatious manner and conduct of the respondents in relation to
past litigation.
[56]
The
respondents have been shown to have
persistently
and without any reasonable ground repeatedly instituted legal
proceedings, whether against SARS, its attorneys or others,
in so
unreasonable and persistent a manner as to warrant an order being
made to restrict such litigation into the future. As was
recognised
in
Beinash,
this
is not a total bar on litigation but permits a litigant, once a
prima
facie
case
is made out in circumstances in which the judge is satisfied that the
proceedings to be instituted will not constitute
an abuse of the
process of the court, to proceed with such litigation.
[13]
There is no reason why such evidentiary burden should not be placed
on GVDM in his personal capacity, as well as on each of the
respondents as trustees of the Eagles Trust, given the manner and
approach they have adopted to the institution of legal proceedings
to
date. Since such litigation poses the very real risk of not only
negatively impacting on the court system and the administration
of
justice, but has in the past patently amounted to an abuse of court
process, it follows that in exercise by this Court of its
discretion,
an order in terms of section 2(1)(b) should, for the reasons stated,
be made against the GVDM in his personal capacity,
as well as each of
the respondents as trustees of the Eagles Trust.
The
order made does not apply to those proceedings already instituted in
any court by any of the respondents and, in argument, counsel
for
SARS accepted as much.
[57]
Given
it
s success in
this application it is not necessary to have regard to the
alternative relief sought by SARS. There is no reason that
costs
should not follow the result, with such costs to include those of two
counsel.
Order
[58]
In the result, the
following order is made:
1.
The
applicant’s application to strike out succeeds and paragraphs
12 - 15, 62, 64, 67, 69, 115, 117, 157 to 159 and 222-227
and
annexure GVDM1 to the respondents’ answering affidavit are
struck out, with the respondents to pay the costs of
such
application, jointly and severally, the one paying the other to be
absolved, including the costs of two counsel.
2.
The
respondents’ application to strike out is dismissed, with the
respondents to pay the costs of the applicant’s
opposition to such application, including the costs of the
postponement of such application, jointly and severally, the one
paying
the other to be absolved, including the costs of two counsel.
3.
The first
respondent, Gary Walter van der Merwe, in his personal capacity, or
his capacity as a director, member or trustee of any
company, close
corporation or trust, and the second, third and fourth respondents,
being Gary Walter van der Merwe N.O., Fern Jean
Cameron N.O. and Dave
Tadeo Nkhoma N.O., in their capacities as trustees of the Eagles
Trust, IT 3019/95, may not, in terms of
section 2(1)(b) of the
Vexatious Proceedings Act 3 of 1956, institute any legal proceedings
against any person in any court in
the Republic of South Africa
without the leave of the court to be granted only if the court is
satisfied that the proceedings are
not an abuse of the process of the
court and that there are
prima
facie
grounds for such proceedings.
4.
The
respondents are to bear the costs of this application, including the
costs occasioned by the previous postponement of the matter,
jointly
and severally, the one paying the other to be absolved, inclusive of
the costs of two counsel.
SAVAGE J
Appearances
:
Applicant:
N G D Maritz SC and
C Naude
Instructed
by MacRobert Inc.
Respondents:
G W van der Merwe (in person)
[1]
The
applicant is referred to throughout as SARS.
[2]
Beinash
v Wixley
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA) at 733A-B.
[3]
1991
(3) SA 563 (NM).
[4]
At
566A
– 567A.
[5]
At
566J.
[6]
Beinash
and Another v Ernst & Young and Others (Beinash)
1999
(2) SA 116
(CC).
[7]
Beinash
(supra)
at
para 18.
[8]
Beinash
(supra)
at paras 15 -16.
[9]
Absa
Bank Ltd v Dlamini
(
Absa)
2008
(2) SA 262 (TPD) at para 23 also quoted in
Searll
NO and Others v Hough and Others
[2016]
ZAWCHC 197 at para 95.
[10]
Absa
(supra)
at
para 24.
[11]
See
MEC
for Co-operative Governance and Traditional Affairs, Mpumalanga v
Maphanga
2018 (3) SA 246
(KZN) at paras 15 and 18
.
[12]
Standard
Credit Corporation Ltd v Bester and Others
1987
(1) SA 812
(W)
at 820A B; Taitz The Inherent Jurisdiction of the Supreme
Court (1985) at 16.
[13]
Beinash
(supra)
at
para 19.