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[2013] ZAGPJHC 10
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Alliance Mining Corporation Ltd and Others v De Kock and Others (48387/11) [2013] ZAGPJHC 10 (8 February 2013)
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Certain
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NOT
REPORTABLE
SOUTH
GAUTENG HIGH COURT JOHANNESBURG
CASE
NO: 48387/11
DATE:08/02/2013
In
the matter between:
ALLIANCE
MINING CORPORATION LIMITED
(In
Liquidation)
..............................................................................
First
Plaintiff
NORMAN
KLEIN N.O.
….............................................................
Second
Plaintiff
JUANITO
MARTINS DAMONS N.O.
........................................
Third Plaintiff
KGASHANE
CHRISTOPHER MONYELA
................................
Fourth
Plaintiff
OSMAN
MOOSA
N.O.
...................................................................
Fifth
Plaintiff
[in
their capacities as the duly appointed joint final Liquidators of
Alliance Mining Corporation Limited (In Liquidation)]
and
EUGENE
ANTHONY DE KOCK
(Identity
Number)
…....................................................................
First
Defendant
ALWYN
JOHANNES PETRUS STEENKAMP
(Identity
Number)
…....................................................................
Second
Defendant
BRIAN
ANDREW DE KOCK
(Identity
Number)
….....................................................................
Third
Defendant
CONNIE
MARGRIET VAN NIEUWKERK
(Identity
Number
)
…....................................................................
Fourth
Defendant/Excipient
JUDGMENT
TSOKA,
J:
INTRODUCTION
[1]
The fourth defendant, Connie Margriet van Nieuwkerk (Van Nieuwkerk)
the erstwhile director of the first plaintiff, a company
in
liquidation, has excepted to plaintiffs’ particulars of claim,
advancing six grounds upon which she contends that the
particulars of
claim are vague and embarrassing and/or lack averments necessary to
sustain an action. The plaintiffs are the company
(in liquidation)
and its four joint final liquidators.
THE
LEGAL PRINCIPLES APPLICABLE
[2]
The test, at the exception stage, in determining whether a pleading
discloses a cause of action is a benevolent one. The excipient,
in
this case, Van Nieuwkerk, has to show that the pleading is excipiable
on every interpretation that can reasonably be attached
to it. The
plaintiffs are then confined to the facts alleged in the particulars
of claim. See First National Bank of Southern Africa
Ltd v Perry NO
and Others
2001 (3) SA 960
(SCA).
[3]
In Steward and Another v Botha and Another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) the
court said it is for the excipient (Van Nieuwkerk) to satisfy the
court that the conclusion of the law, where a conclusion
of the law
is pleaded, that such conclusion cannot be supported by any
reasonable interpretation of the particulars of claim.
[4]
With regard to a pleading being vague and embarrassing, the excipient
must show that the whole cause of action, not only a paragraph
within
the cause of action, is vague and embarrassing, in the sense that
such a cause of action is either meaningless or has two
meanings.
Furthermore, the excipient must also show that the cause of action,
he/she is called to meet, is prejudicial to him or
her with the
result that such an excipient is unable to plead thereto. Thus an
exception would be allowed on the basis of vagueness
and
embarrassment only if such exception results in serious prejudice to
another party. See A/e/ & Others v MacArthur &
Others
2003
(4) SA 142
(TPD); Levitan v Newhaven Holiday Enterprises CC
1991 (2)
SA 297
(C) at 298A; Francis v Sharp & Others
2004 (3) SA 230
(CPD) at 240E-F and the unreported judgment of Joffe J in
PriceWaterhouseCooper v Randgoid and Exploration Company Limited Case
no. 2008/3854 (11 September 2009)
BACKGROUND
FACTS
[5]
Prior to dealing with the complaints raised by Van Nieuwkerk, it is
necessary to briefly set out the facts in this matter and
to then
determine whether the grounds raised are sustainable or not.
[6]
The first plaintiff, Alliance Mining Corporation Limited (In
Liquidation) (“Alliance”) was wound up by order of
this
Court on 15 April 2010. Prior to its liquidation it has at all
material times conducted business in rendering services and
supplying
products to the mining industry. It was listed on the Alternate
Exchange of the Johannesburg Securities Exchange in the
mining sector
during 2007.
[7]
Van Nieuwkerk, the fourth defendant was appointed as a director of
Alliance on 1 May 2004. She was also appointed as a financial
director and the company secretary of Alliance. She was also the sole
director and company secretary of Image Wealth (Pty) (“Image
Wealth”).
[8]
It is plaintiffs’ allegations that during the period January
2007 to April 2010, Van Nieuwkerk, and each of the other
three
defendants, also the former directors of Alliance, were knowingly
party to the carrying on of the business of Alliance and
released
Alliance’s 2008 Annual Report which purportedly contained the
approved annual financial statements and the directors’
responsibility
statement; a report of the independent directors of Alliance and its
subsidiary companies {"the Group”)
and that the purported
Annual Report of 2008, fairly represented the financial position of
the Group for the year ending 29 February
2008, when in fact this was
not the case.
[3]
According to this 2008 Annual Report, the Group, Alliance and its
subsidiary companies, generated R80 788 135 after tax profit,
up from
R20 163 528 in the previous year: In respect of before tax profits,
the Group, generated R109 683 918 for the year February
2008, up from
R27 936 641 for the previous year ended 28 February 2007. The net
assets were stated as having increased from R77,2
m to R238,2 m as at
29 February 2008. Revenue was stated as having increased 98% from
R157 647 250 to R312 122 920.
[4]
In truth, the financial statements of the Group were false and
inaccurate in that they included non-genuine and fictitious profits
before taxation and contained fictitious assets. During the period 28
July 2008 to 20 May 2009, Alliance, without justification
or cause,
recklessly incurred a liability towards Nedbank Limited relating to a
“Contracts for Difference” exposure
in an amount of R91
742 718,56. This amount was not disclosed in the Alliance’s
financial statements, and in fact it was
deliberately concealed as a
liability. The non-disclosure had materially and adversely impacted
on Alliance’s financial position.
[5]
During the period October 2008 to June 2009 Dartingo Trading (Pty)
Limited (“Dartingo"), Industrial Development Corporation
(“IDC’) and another nominated entity entered into
negotiations for subscription of shares in Alliance. During the
negotiations, Alliance furnished Dartingo and IDC with its Annual
Report containing the incorrect information with regard to its
after
profit tax; the net assets and inflated revenue. The defendants, who
were all the directors of Alliance, inclusive of Van
Nieuwkerk, were
aware of the true position of the after tax profit, net assets and
revenue, and that the information furnished
to Dartingo and IDC was
false and material, and that Dartingo and IDC would act upon such
information. On the strength of the false
information furnished by
the defendants, Dartingo subscribed for shares in Alliance and paid
Alliance the sum of R114 375 600.
Dartingo has since cancelled the
subscription agreement and claimed damages from Alliance.
[6]
Furthermore, it is plaintiffs’ further allegations that the
defendants, including Van Nieuwkerk, intentionally and knowingly
permitted Alliance, without any justification, to make payments in
the sum of R36 925 701 for the benefit of the first defendant,
Eugene
Anthony de Kock, alternatively to entities controlled by him and
similarly made further payments in the sum of R13 259 062
to Alliance
Corporation Holdings Company (Pty) Ltd (“ACH”). It is
further alleged by the plaintiffs that, without justification,
ACH
was paid administration fees. The first defendant was at all material
times a director and a controlling shareholder of ACH.
At the time of
payment, no administration services were rendered by ACH to Alliance,
and ACH had earned no administrations fees
from Alliance. The
purported administration costs, for the years ending 28 February 2007
and 29 February 2008, amounted to the
sum of R663 964 and R1 066 636
respectively. Further financial services were allegedly rendered and
fees paid to Imagine Wealth
where none such services were rendered
and fees earned. For the years ending 28 February 2007, 29 February
2008 and 28 February
2009, Imagine Wealth was paid the sums of R609
116; R670 027 and R2 838 195 respectively.
[7]
Substantial payments were unjustifiably made to an entity known as
Alliance Consolidated Estates (Pty) Limited (formerly known
as
Granitz Investments CC), of which entity the first defendant was also
a director and a controlling shareholder for the year
ending 28
February 2007, 29 February 2008 and 28 February 2009, respectively.
Further unjustifiable and large dividends were also
made to several
entities, persons and trusts. At the time of such payments, same were
neither due nor owing.
[8]
On 25 June 2009, without any justification, Alliance made payment in
the sum of R1 m to Van Nieuwkerk. The following day, in
similar
circumstances, it unjustifiably made a payment in the amount of R4,5
m to Imagine Wealth. Prior to these payments, on 19
June 2009, an
amount of R2,7 m was, without any justification, and in the
circumstances where such amount was neither due or owing,
paid to
Alwyn Johannes Petrus Steenkamp, the second defendant. And again on
22 June 2009, Van der Merwe Trust was, without justification,
paid an
amount of R4 m in circumstances where such amount was neither due nor
owing to the Trust.
[9]
Alliance was allowed to continue trading, conduct business and incur
debts, to the knowledge of the four defendants, alternatively,
in
circumstances in which the four defendants ought reasonably have had
knowledge, that fairly valued, its liabilities exceeded
its assets
and/or there existed no realistic prospect that the debts of the
company would be paid as and when such debts fell due
and payable in
the ordinary course of business.
[10]
It is the plaintiffs’ contention therefore that, in these
circumstances, it is apt to invoke the provisions of section
424 of
the old Companies Act 61 of 1973 (“the old Act’)
declaring the four defendants, including Van Nieuwkerk, to
be
personally responsible, without any limitation of liability, for all
or any of the debts or other liabilities of Alliance or
as the court
may direct. And further it is alleged that the conduct of the four
defendants, constitutes breaches of fiduciary duties
the four
defendants owed to Alliance, which breaches resulted in Alliance’s
loss of R285 132 839,82. Furthermore, it is alleged
that such conduct
constitutes wrongful conduct, and breaches of fiduciary duties on
their part resulting in the loss and damages
in the same amount. It
is plaintiffs’ further contention that, the conduct of the four
defendants, including Van Nieuwkerk,
constitutes the conduct
prohibited by
section 22
(1) of the
Companies Act No 71 of 2008
, as
amended (“the new Act') for which the four defendants are
liable in accordance with the provisions of section 22 read
with the
provisions of section 77 (2) and/or (3).
[17]
Section 424 of the old Act provides as follows -
“
424.
Liability of directors and others for fraudulent conduct of business
(1)
When it appears, whether it be in winding-up, judicial management or
otherwise, that any business of the company was or is being
carried
on recklessly or with intent to defraud creditors of the company or
creditors of any other person or for any fraudulent
purpose, the
court may, on the application of the Master, the Liquidator, the
judicial manager, any creditor or member or contributory
of the
company, declare that any person who was knowingly a party to the
carrying on of the business in the manner aforesaid, shall
be
personally responsible, without any limitation of liability, for all
or any of the debts or other liabilities of the company
as the court
may direct.”
[18]
Sections 22 and 77 of the new Act, provide as follows respectively -
“22 Reckless trading prohibited
(1)
A company must not carry on its business recklessly, with gross
negligence, with intent to defraud any person or for any fraudulent
purpose.
[Sub-s.
(1) substituted by s. 14 of Act No. 3 of 2011.] Wording of Sections
(2)
If the Commission has reasonable grounds to believe that a company is
engaging in conduct prohibited by subsection (1), or is
unable to pay
its debts as they become due and payable in the normal course of
business, the Commission may issue a notice to the
company to show
cause why the company should be permitted to continue carrying on its
business, or to trade, as the case may be.
[Sub-sec.
(2) substituted by s. 14 of Act No. 3 of 2011.]
Wording
of Sections
(3)
If a company to whom a notice has been issued in terms of subsection
(2) fails within 20 business days to satisfy the Commission
that it
is not engaging in conduct prohibited by subsection (1), or that it
is able to pay its debts as they become due and payable
in the normal
course of business, the Commission may issue a compliance notice to
the company requiring it to cease carrying on
its business or
trading, as the case may be.
[Sub-s.
(3) substituted by s. 14 of Act No. 3 of 2011.]
77. Liability of directors and
prescribed officers
(1)
In this section, “directo”' includes an alternate
director, and -
(a)
a prescribed officer; or
(b)
a person who is a member of a committee of a board of a company, or
of the audit committee of a company,
irrespective
of whether or not the person is also a member of the company’s
board.
(2)
A director of a company may be held liable -
(a)
in accordance with the principles of the common law relating to
breach of a fiduciary duty, for any loss, damages or costs sustained
by the company as a consequence of any breach by the director of a
duty contemplated in section 75, 76 (2) or 76 (3) (a) or (b);
or
(b)
in accordance with the principles of the common law relating to
delict for any loss, damages or costs sustained by the company
as a
consequence of any breach by the director of-
(i)
a duty contemplated in section 76 (3)(c);
(ii)
any provision of this Act not otherwise mentioned in this section; or
(Hi)
any provision of the company’s Memorandum of Incorporation.
(3)
A director of a company is liable for any loss, damages or costs
sustained by the company as a direct or indirect consequence
of the
director having -
(a)
acted in the name of the company, signed anything on behalf of the
company, or purported to bind the company or authorise the
taking of
any action by or on behalf of the company, despite knowing that the
director lacked the authority to do so;
(b)
acquiesced in the carrying on of the company’s business despite
knowing that it was being conducted in a manner prohibited
by section
22 (1):
(c)
been a party to an act or omission by the company despite knowing
that the act or omission was calculated to defraud a creditor,
employee or shareholder of the company, or had another fraudulent
purpose;
(d)
signed, consented to, or authorised, the publication -
(i)
any financial statements that were false or misleading in a material
respect; or
(ii)
a prospectus, or a written statement contemplated in section 101,
that contained -
(aa)
an “untrue statemen’” as defined and described in
section 95; or
(bb)
a statement to the effect that a person had consented to be a
director of the company, when no such consent had been given,
despite
knowing that the statement was false, misleading or untrue, as the
case may be, but the provisions of section 104 (3), read
with the
changes required by the context, apply to limit the liability of a
director in terms of this paragraph; or
[Sub-item
(bb) substituted by s. 49 (a) of Act No. 3 of 2011.1]
(e)
been present at a meeting, or participated in the making
of
a decision in terms of section 74, and failed to vote
against
-
(i)
the issuing of any unauthorised shares, despite knowing that those
shares had not been authorised in accordance with section
36;
(ii)
the issuing of any authorised securities, despite knowing that the
issue of those securities was inconsistent with section
41;
(Hi)
the granting of options to any person contemplated in section 42 (4),
despite knowing that any shares
(aa)
for which the options could be exercised; or
(bb)
into which any securities could be converted, had not been authorised
in terms of section 36;
(iv)
the provision of financial assistance to any person contemplated in
section 44 for the acquisition of securities of the company;
despite
knowing that the provision of financial assistance was inconsistent
with section 44 or the company’s Memorandum of
Incorporation;
[Sub-para,
(iv) substituted by s. 49 (b) (i) of Act No. 3 of 2011.1
Wording
of Sections
(v)
the provision of financial assistance to a director for a purpose
contemplated in section 45, despite knowing that the provision
of
financial assistance was inconsistent with that section or the
company’s Memorandum of Incorporation;
[Sub-para,
(v) substituted by s. 49 (b) (i) of Act No. 3 of 2011.1
Wording
of Sections
(vi)
a resolution approving a distribution, despite knowing that the
distribution was contrary to section 46, subject to subsection
(4);
(vii)
the acquisition by the company of any of its shares, or the shares of
its holding company, despite knowing that the acquisition
was
contrary to section 46 or 48; or
(viii)
an allotment by the company, despite knowing that the allotment was
contrary to any provision of Chapter 4.
[
Sub-para,
(viii)
substituted by
s. 49 (b) (ii) of Act No. 3 of 2011.1
]
[19]
Schedule 5 deals with transitional arrangements. It reads as follows:
“
Schedule
5 TRASITIONAL ARRANGEMENTS [Sch. 5 amended by s. 126 of Act No. 3 of
2011.1
1. Interpretation -
(1)
In this Schedule-
(a)
general effective date’ means the date on which section 1 of
this Act came into operation; and
(b)
previous Act’ means the Companies Act, 1973 (Act No. 61 of
1973).
(2)
A reference in this Schedule -
(a)
to a section by number, is a reference to the corresponding section
of-
(i)
the previous Act, if the number is followed by the words ‘of
the previous Act’; or
(ii)
this Act, in any other case; or
(b)
to an item or a sub-item by number is a reference to the
corresponding item or sub-item of this Schedule.
(3)
Despite any other provision of this Act -
(a)
the Minister, by notice in the Gazette, may determine a date on which
the Commission may assume the exercise of any particular
function or
power assigned to it in terms of this Act; and
(b)
until a date determined by the Minister in terms of paragraph (a) -
i)
the Commission may not perform that particular function or exercise
that particular power; and
ii)
the Minister has the authority to, and bears the responsibility of,
exercising any such function or performing any such power
assigned by
this Act to the Commission.
7. Company finance and governance.-
(7)
A right of any person to seek a remedy in terms of this Act applies
with respect to conduct pertaining to a pre-existing company
and
occurring before the effective date, unless the person had commenced
proceedings in a court in respect of the same conduct
before the
effective date.
9. Continued application of previous
Act to winding-up and liquidation.-
(1)
Despite the repeal of the previous Act, until the date determined in
terms of subitem (4), Chapter 14 of that Act continues
to apply with
respect to the winding-up and liquidation of companies under this
Act, as if that Act had not been repealed subject
to subitems (2) and
(3).
11. General preservation of
regulations, rights, duties, notices and other instruments-
(1)
Any right or entitlement enjoyed by, or obligation imposed on, any
person in terms of any provision of the previous Act, that
had not
been spent or fulfilled immediately before the effective date is a
valid right or entitlement of, or obligation imposed
on, that person
in terms of any comparable provision of this Act, as from the date
that the right, entitlement or obligation first
arose, subject to the
provisions of this Act.”
[20]
Having dealt with the background facts and the legal principles
applicable, I turn to deal with the six grounds of complaint
raised
by Van Nieuwkerk against the plaintiffs’ particulars of claim.
First
Ground of Complaint
[21]
The graveman of the complaint is that the plaintiffs do not allege
any basis upon which section 424 of the old Act would continue
to be
of application in the circumstances where the oid Act has been
repealed, and where there is presumption of non-retrospectivity
of
the new Act, and in the circumstances where the plaintiffs’
action against the defendants was instituted after 1 May 2011,
the
coming into operation of the new Act. It is Van Nieuwkerk’s
assertion that, the plaintiffs cannot rely upon item 9 (1)
of
Schedule 5 to the new Act as section 424 of the old Act only deals
“with respect to the winding-up and liquidation of
companies".
[22]
Van Nieuwkerk’s contention is narrow and short-sighted. Chapter
14 of the old Act deals generally with winding-up of
companies and
amongst other things, personal liability of delinquent directors and
other offences. The Chapter, with the necessary
modifications,
applies to the new Act.
[23]
In Contemporary Company Law (Second Edition) at 1015, Cassim and
Others opined that, since s 424 of the 1973 Act, which deals
with the
liability of directors for fraudulent or reckless conduct of business
forms part of Chapter XIV of the old Act, it may
be preserved and may
continue to apply in the winding-up and liquidation of companies.
[24]
Henochsberg, in Henochsberg on the
Companies Act 71 of 2008
, at 100,
commenting on the provisions of
section 22
of the new Act, maintains
that Item 9 (1) of Schedule 5 provides that Chapter 14 of the old Act
will continue to apply with respect
to the winding-up and liquidation
of companies under the new Act until a date determined by the
Minister in the Gazette. The implication
is that section 424, dealing
with the liability of directors and others for fraudulent conduct of
business, will continue to apply.
The author states:
“
...The
use of the words ‘company must not carry on its business’
compared to the words in s 424 of the 1973 Act that
‘the
business of the company’ may be significant as it would seem
that the company, as party to the business described
in s 22, may
also be liable. It may also be significant for business that falls
within the description in s 22 carried on before
the Act came into
operation as item 7 (7) of Schedule 5 provides that the remedies in
terms of the Act apply to conduct pertaining
to a pre-existing
company. However, liability of directors in terms of the Act only
applies from the effective date of the Act,
but possible liability of
the company is not excluded.”
[25]
Item 11 (1) of Schedule 5 provides that any right or entitlement
enjoyed by the plaintiffs in respect of the relevant conduct
or any
obligation imposed
on
each defendant arising from the relevant conduct in terms of any
provision of the old Act, including section 424, is a right
or
entitlement enjoyed by the plaintiffs or is an obligation imposed on
each defendant in terms of a comparable provision of the
new Act.
There being no comparable provision akin to the provisions of section
424 of the old Act in the new Act, the plaintiffs
were obliged, so
contends Van Nieuwkerk, to plead an obligation under the provisions
of section 424 of the old Act in order to
establish a claim under
section 22 (1) of the new Act read with the provisions of section 77
of the new Act.
[26]
It being common cause that there are no comparable provisions in the
new Act, it was open to the plaintiffs to base their cause
of action
on the provisions of section 424 of the old Act as provided for in
item 9 (1) of Schedule 5 or item 11 (1) of the same
schedule of the
new Act. This view is bolstered by what was said in Steward and
Another v Botha and Another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) at para
[4]
where
the court stated that it is for the excipient, the fourth defendant,
to satisfy the court that the conclusion of law pleaded
by the
plaintiffs cannot be supported by any reasonable interpretation of
the claim. In the present matter, the plaintiffs conclusion
of law as
pleaded, is supported by reasonable interpretation of the particulars
of claim.
[27]
The result is the first complaint deserves to be rejected.
Second
Ground of Complaint
[28]
The complaint is directed at paragraphs 14.2 and 14.3 of the
particulars of claim wherein the plaintiffs allege breaches of
fiduciary duties on the part of the defendants, including Van
Nieuwkerk. It is Van Nieuwkerk’s complaint that there is no
allegation in the particulars of claim as to whether and to what
extent the claim is based on common law, the new Act or both the
common law and the new Act, in particular the provisions of section
77
(2)
(a) of the new Act. It is further Van Nieuwkerk’s complaint
that the nature of the fiduciary duty breached is not alleged
and
that the plaintiffs rely on undefined and unidentified fiduciary
duties.
[29]
In paragraph 13 of the particulars of claim, the plaintiffs state the
conduct of the defendants which they allege constitute
fiduciary
duties. They further state the conduct which in their view
constitutes the breaches of the fiduciary duties. It is as
a result
of those breaches of fiduciary duties that the plaintiffs allege a
loss in the amount of R285 132 839,32. It is further
plaintiffs’
contention that the conduct complained of, constitutes wrongful
conduct and breaches of fiduciary duties on the
part of the
defendants resulting in the loss and the damages of R285 132 839,32.
[30]
The conduct of the defendants as alleged by the plaintiffs is not
mutually exclusive. Such conduct arises under both the common
law as
well as in terms of the provisions of section 77 (1) (a) of the new
Act.
[31]
In Picbel Group Voorsorgfonds (In Liquidation) & Others v
Somerville & Others [2012] ZAGPJHC 48 (30 March 2012), Sutherland
J, dealing with a similar complaint as in the present matter, said
the following -
“
[47]
The further complaint is that there is no exposition of what acts
were committed that constitute the breaches of the common
law
fiduciary duty. This complaint is unsound. The particulars mention in
paragraph 31 several acts or omissions attributed to
Nedbank in
addition to the details of the dishonest scheme hatched by Glavalas
and Somerville in paragraph 26. Among the averments
are references to
a failure to preserve the assets to dealt with under the control of
their owners, the Funds; the removal without
authorisation or proper
cause, the failure to prevent improper disadvantage or prejudice to
the Funds, the failure to be impartial,
and the failure to act
prudently and put the best interests of the Funds first in the
dealings undertaken. In my view, the factual
foundation for the
averments of a breach of a common-law fiduciary duty is amply
asserted
[32
In my view, this complaint is unsound.
Third
Ground of Complaint
[33]
The complaint is allied to the second ground of complaint. In
paragraph 13 of the particulars of claim, the plaintiffs allege
that
the defendants, as directors of Alliance, were knowingly party to the
carrying on of the business of Alliance as detailed
in paragraph 13.
That the conduct, as alleged, is unauthorised and wrongful, admits no
doubt. Similarly, this complaint is unsound.
Fourth
Ground of Complaint
[34]
The complaint is that the particulars of claim do not allege to what
extent each instance of the relevant conduct complained
of,
constitutes the carrying on of Alliance’s business recklessly,
with gross negligence, with intent to defraud any person
or for any
fraudulent purpose.
[35]
The allegations in paragraph 14 of the particulars of claim, as
pleaded, are sufficient enough to enable the fourth defendant
to
plead thereto. In any event, the fourth defendant fails to state that
the conclusion of law pleaded by the plaintiffs cannot
be supported
by any reasonable interpretation of the particulars of claim.
Furthermore, no prejudice is alleged that would prevent
the fourth
defendant to plead to the particulars of claim or a request for
further particulars would not suffice to cure any vagueness
in the
event that the allegations are vague.
Fifth
Ground of Complaint
[11]
According to Van Nieuwkerk, sections 77 (2) and (3) of the new Act
contain distinct bases for claims and that in the present
case, the
particulars of claim do not allege which of the distinct bases
contained in those provisions the plaintiffs rely upon
in founding a
claim arising from section 22 of the new Act. The conduct of the
defendants complained of is stated in paragraph
13 of the particulars
of claim, in paragraph 14 of the particulars of claim, the plaintiffs
state the conduct of the defendants
that would render them liable in
accordance with the provisions of section 22 read with the provisions
of section 77 (2) and/or
(3) of the new Act. Resultantly, this
complaint has no merit. It must be rejected.
Sixth
Ground of Complaint
[12]
The complaint relates to the declaratory order sought pursuant to the
provisions of section 424 of the old Act. It is Van Nieuwkerk’s
contention that the relief sought is unavailable to the plaintiffs on
the same grounds as stated in the first and second complaints.
Similarly, this ground, on the same reasoning as in both the first
and second ground, has no merit. It must be rejected.
[13]
Having regard to the aforegoing the exception must be dismissed.
[14]
In the result, the exception is dismissed with costs, such costs to
include the costs of two counsel.
M
TSOKA
JUDGE
OF THE SOUTH GAUTENC HIGH COURT, JOHANNESBURG
COUNSEL
FOR THE PLAINTIFF: Adv A Subel SC
Adv
G. W Girdwood
PLAINTIFF’S
A TTORNEYS:Edward Nathan Sonnenbergs
150
West Street Sandton Rosebank Johannesburg f011)269-7600
COUNSEL
FOR THE 1st DEFENDANT: Adv L Morison SC
Adv
Gilbert
COUNSEL
FOR THE 2nd DEFENDANT: Adv Gilbert
COUNSEL
FOR THE 3rd DEFENDANT: Adv Acker
COUNSEL
FOR THE 4th DEFENDANT: Adv L Morison SC
Adv
Gilbert
1sf
DEFENDENS ATTORNEYS: Pagel Schulenburg Inc
Coachman’s
Office Park Block B
Cnr
Brian Street & Peter Place
Bryanston
Johannesburg
(011)
463-1214
2nd
DEPENDENT’S ATTORNEYS: Robert Kanarek Attorney
33
Avenue Orchards
(011)
483-3450
3rd
DEPENDENT’S A TTORNEYS: JW Wessels and Partners
811
Schoeman Street
Arcadia
Pretoria
(012)
343-1410
4th
DEPENDENT’S ATTORNEYS: Allen Levin and Associates
1st
Floor, 80 Corlette Drive
Johannesburg
(011)447-6171/8
DATES
OF HEARING: 5 December 2012
DATE OF JUDGMENT: 8 February 2013