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[2012] ZAGPJHC 252
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Matsela v Moloto (35589/11) [2012] ZAGPJHC 252 (16 October 2012)
IN THE HIGH COURT OF SOUTH
AFRICA (
SOUTH GAUTENG
)
JOHANNESBURG
CASE NO
: 35589/11
DATE
: 2012-10-16
In
the matter between
MATSELA,
ZACHARIA & OTHERS
Applicant
and
MOLOTO,
MICHAEL & OTHERS
Respondent
J U D G M E N T
WILLIS, J
:
[1] Earlier this morning I gave a
judgment which dismissed an application for a postponement with
costs.
[2] We are now dealing with the
substantive application, which relates to the application for the
removal of Mr Moloto as the appointed
liquidator of Newtown Housing
Co-operative Limited and another.
[3] I repeat, by way of completeness,
that an application was made to liquidate Newtown Housing
Co-operative in 2008. The
liquidation order was granted on 7
August 2009. In November 2009, members of the co-operative
received notice that the property
was advertised for sale by way of
public auction. The public auction took place on 26 November
2009, and transfer of the
property took place sometime during the
course of 2011.
[4] The application has been opposed
by the first respondent, being Mr Moloto, the liquidator, and by the
fourth respondent, being
the Johannesburg Housing Company.
[5] The first point that has been
taken by the respondents is that the application is fatally defective
inasmuch as the applicants
have no
locus standi
. In
response thereto the applicants rely,
inter alia
, purportedly
on the fact that they were appointed as directors. Their
certificates of appointment as directors, however,
date sometime
between 3 November 2010 and 26 March 2011, when, as I have already
indicated, Newtown Housing Co-operative had been
put into liquidation
in 2009. They simply could not have been directors at the
critically relevant time.
[6] The other ground upon which the
applicants claim
locus standi
is that they were creditors.
There is no merit in this particular ground, as they have failed
utterly to comply with the
requirements of the
Co-operatives Act, 14
of 2005
, insofar as proving any claim as creditors is concerned.
They have, in particular, failed to allege or even prove compliance
with
section 74
of the
Co-operatives Act.
[7] A further ground upon which the
applicants claim
locus standi
is that they were members of the
co-operative. This is a baldly asserted allegation. If
they were members, it would
not be difficult, in terms of the
Co-operatives Act, to
annex some kind of certificate indicating that
they had been appointed.
[8] A further fatal difficulty for the
applicants, with which I fully agree with counsel for the
respondents, is that the applicants
have failed to join the primary
liquidation creditor to the application, being the National Housing
Finance Corporation.
This is a major creditor who has a
substantial interest in this matter.
[9] The relief sought also seeks
orders against the Master of the High Court. The Master does
not feature in the
Co-operatives Act. The
property was sold in
execution in terms of the
Co-operatives Act, and
not as a result of a
liquidation of a company. Furthermore, the allegation is
incorrectly made that the property was sold
in execution. It
was not sold in execution, it was sold on a public auction.
[10] Another allegation has been are
made, namely that there is something suspicious in the fact that the
property was transferred
despite there being an amount alleged of
R1.5-million due to the City of Johannesburg. The fact of the
matter is that the
evidence suggests that the amount that was owed to
the City of Johannesburg was of the order of several hundred thousand
Rand rather
than R1.5-million, and that this was paid, and that the
City of Johannesburg issued a rates clearance certificate.
[11] It has also been alleged that an
inadequate purchase price was obtained at the public auction.
The fact of the matter
is that the property was sold in question for
an amount of almost R28-million, which was very close to the sworn
valuation of an
estimated market value of R30 500 000,
which was approved by the third respondent, who is the Registrar of
Co-operatives.
[12] In all the circumstances of the
matter, it seems to me that there is no merit whatsoever in the
application. Clearly
this a contentious matter, involving vast
sums of money, and unbelievable stress. The huge stress of
trying to seek evictions
in the city certainly warrants the
employment of two counsel. Mr van der Merwe has asked for the
costs to be on a punitive
scale. I am not inclined to go so
far. I shall simply dismiss the application with costs,
including the costs of two
counsel.
[13] The following is the order of the
court:
The application for the removal of Mr
Michael Moloto as liquidator of Newtown Housing Corporation is
dismissed with costs, which
costs are to include the costs of two
counsel.
WILLIS J
JUDGE OF THE HIGH COURT