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[2014] ZAGPJHC 11
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Greenberg v Scheepers and Others (11/43162) [2014] ZAGPJHC 11 (28 February 2014)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
SOUTH
GAUTENG
LOCAL
DIVISION OF GAUTENG COURT
JOHANNESBURG
CASE NO: 11/43162
DATE: 28 FEBRUARY 2014
In
the matter between:
GREENBERG,
LIONEL
MERVIN
...............................................................
Plaintiff
And
SCHEEPERS,
JAN
GABRIËL
............................................................
First
Defendant
JOUBERT,
NICOLAUS JOHANNES
.............................................
Second
Defendant
THEODORE
WILHELM VAN DER HEEVER NO
.........................
Third
Defendant
J U D G M E N T
N F
KGOMO, J
:
INTRODUCTION
[1] It would be apt to quote the
following from a judgment of the late Patel J in Case Number
13439/2002 delivered on 7 August 2003 in the matter of
Delia Sybil
Dall and Hazel Clara Ucko
as applicants and
The Registrar of
Close Corporations, The Sheriff, Germiston, Seagate Technologies CC,
Esther Greenberg, Felicia Greenberg and Lamprecht
Incorporated
as
respondents, which in my view and finding, snugly fit the
circumstances of this case:
“
PATEL J
[1] This
matter can aptly be described as another episode in the Greenberg
saga.
[2]
The two applicants, Delia Dall
and Hazel Ucko are the sisters of one Lionel Greenberg who
features
prominently in this application but he is not a party to the
proceedings. They applied for a litany of declaratory
orders.
They sought to be declared the lawful members of the third
respondent, Seagate Technologies CC (‘the Close
Corporation’),
that was with effect from 1 November 2001 being the date of transfer.
The first respondent, the Registrar
of Close Corporations (‘the
Registrar’), was caught in the cross-fire between the
applicants and certain of the respondents
in an on-going family feud,
especially with the fifth respondent, Felicia Greenberg. She
was divorced from Lionel Greenberg
(‘Lionel’). The fourth
respondent, Esther Greenberg, the mother of the applicants and Lionel
was central in the transfer
of
[the]
member’s
interest in the close corporation.
[3]
The Registrar opposed the
application because the applicants alleged that he was
mala
fide
and
should be penalised with an order of costs. The fifth
respondent also opposed the application. She filed a
conditional
counter-application that in the event the court found
that her attachment of the membership interest in the close
corporation on
21 February was ineffective, then the further
attachment effected on 16 May 2002 was declared valid. Then
concomitantly arising
from it a declaratory order that the fourth
respondent is the sole member of the close corporation.
”
[2] I also consider it
appropriate, as part of the introductory remarks in this judgment,
that I reproduce the order issued by Patel J in that matter. It reads
as follows:
“
A1. That the
Applicants’ application be and is hereby dismissed;
A2. That the First and
Second Applicants jointly and severally, the one paying the other to
be absolved,
to pay the costs of this application on the scale as
between attorney and client;
B1
(i)
That
declaring the Fourth Respondent to be the sole member of the Third
Respondent; and
(ii)
The
Fifth Respondent’s attachment of the Fourth Respondent’s
membership and interest in the Third Respondent which was
effected on
16 May 2002 is valid;
B2
That the Second Respondent is permitted to proceed with the sale in
execution of the Fourth
Respondent’s membership and any
interest in the Third Respondent at the instance of the Fifth
Respondent; …
”
[3] Our present action by the
plaintiff, Mr Lionel Mervin Greenberg, is an action for damages
against the first defendant in respect of Claim A and against the
first and second defendants jointly and severally in respect
of Claim
B.
[4] The plaintiff claims the sum
of R76 000,00 in respect of Claim A and R1 980 000,00 in
respect of
Claim B.
[5] This case concerns the
validity of the attachment of the plaintiff’s alleged 100%
members’ interest in Seagate Technologies CC (“
Seagate
Technologies
”) by the first defendant in his capacity as an
appointed sheriff of the court; and the registration of a
caveat
against the title deed of an immovable property belonging to
Seagate Technologies, allegedly at the instance of the second
defendant;
and the plaintiff’s alleged damages suffered as a
result of the aforegoing.
[6] The plaintiff herein is the
self-same Lionel Greenberg the late Patel J made mention of
in his
afore-quoted judgment of 7 August 2003. The close corporation in
issue here is the self-same close corporation that was
the focal
point of issues in that case.
[7] After perusing the papers
filed of record herein, examining the numerous court judgments
delivered by various judges of this Court concerning or about Seagate
Technologies and/or the plaintiff herein and listening to
evidence as
it unfolded in court, I cannot help it but also say:
“
Yeah! This is yet another one of
the episodes in the Greenberg saga.
”
[8] It deserves mention at this
stage that the plaintiff was all the time represented –
both in
the drafting and exchange of pleadings and the leading of evidence in
court – until the plaintiff discharged or terminated
his
attorney, Larry Marx Attorneys’ mandate towards the end of the
case. He (plaintiff) then proceeded to call that same
attorney, Mr
Larry Marx, as one of his witnesses, after re-opening the plaintiff’s
case. The defendants did not have
any objection to this strange
phenomenon and
ex post facto
, I am satisfied that nobody
suffered any prejudice as a result.
PLANTIFF’S
CLAIMS
[9] In Claim A, the plaintiff
alleges that the first defendant made material misrepresentations
and
falsely indicated that he had validly attached the members’
interest in Seagate Technologies. He is claiming the amount
of R76
000,00 allegedly lost by him as legal fees he expended in defending
himself in the Commercial Crimes Court around 2008 where
he faced
charges of fraud related to issues around Seagate Technologies’
affairs.
[10] In Claim B, after repeating the
allegations of misrepresentations and/or misleading made in Claim
A,
the plaintiff went further to allege that –
10.1
The
first defendant received a letter from Felicia Greenberg’s
former attorneys, Messrs Lamprechts Incorporated, instructing
him
(first defendant) to register a
caveat
in the Deeds Registry Office against the immovable property of
Seagate Technologies being Erf DG72, Dowerglen in Edenvale, Gauteng
Province;
10.2
The
second defendant caused the registration of the
caveat
;
10.3
He
(plaintiff), unaware of the registration of the
caveat
,
proceeded to attempt to raise a second bond on the property so that
he could settle debts or satisfy some existing writs of execution,
mostly, if not all, relating to cases instituted against him by his
ex-wife, Felicia Greenberg;
10.4
The
second bond was approved by Absa Bank in the amount of R505 000,00;
10.5
Because
of the
caveat
registered, Absa Bank cancelled the bond, thereby depriving him of
the right to obtain the finances to satisfy the writs and also
purchase another property, ultimately leading to the sale in
execution of the members’ interest in Seagate Technologies on
9
November 2001, leading at the end of it all to his provisional and
final sequestration on 10 December 2001 and 22 January 2002
respectively;
10.6
The
first respondent was squarely to blame for the unlawful registration
of the
caveat
,
which was a direct cause of his woes ultimately.
[11]
The plaintiff thus alleged that the unlawful
deeds or conduct complained of are that the first defendant
and
second defendant intentionally,
alternatively
,
maliciously,
further alternatively
,
with ulterior motive,
further
alternatively
,
negligently cause the
caveat
to be registered, precipitating the chain of events leading to him
suffering the losses.
[12] He alleged that the immovable property
sold in execution as a result was valued at R1 800 000,00
around the
date it was sold. The one he intended purchasing was valued at R700
000,00. Subtracting the amount realised when the
members’
interest was sold, being the amount of R510 000,00, his total loss
amounts to the sum of R1 980 000,00.
DEFENCES
RAISED TO ACTION
[13] In addition to general pleas of denial
of liability, the defendants raised three special pleas, namely:
13.1 Plaintiff’s lack of
locus
standi
;
13.2
Prescription; and
13.3
Res
judicata
.
[14] I intend to first deal with the special
pleas before going to the defences on the merits as it is
my view
that if upheld, there would be no need to go to the merits, more so
that in dealing with the special pleas, the merits
also come to the
fore.
[15] Before doing the above it is proper
that the parties herein are identified.
THE
PARTIES
[16] The plaintiff, Lionel Mervin Greenberg,
is an adult male businessman ordinarily residing at 9…..
S…..
Street, S……., Johannesburg.
[17] The first defendant, Jan Gabriël
Scheepers is an adult male person and a duly appointed Sheriff
of
this Court to service the district of Germiston North, with his
principal place of business situated at 1
st
Floor, T….
House, Corner D…. S….. and 1…. Avenue, E……,
Gauteng.
[18] The second defendant, Nicolaus Johannes
Joubert, is an adult male Deputy-Sheriff for the Germiston
North
district, Gauteng, with the same principal place of business as the
first defendant.
[19] The third defendant, Theodore Wilhelm
van den Heever NO is an adult liquidator trading under the
name, D &
T Trust (Pty) Ltd under registration number 79/030334/07, with his
principal place of business situate at 4….
and 4…. O….
Road, F…. Park, R….., Gauteng.
THE
TRIGGER TO THESE PROCEEDINGS
[20] After the sequestration of the
plaintiff he was charged in the Commercial Crimes Court in Pretoria
for fraud and related offences that arose from the activities related
to Seagate Technologies. Around or about 16 or 17 October
2008 it
came to the plaintiff’s attention that there was no clarity or
certainty around the registration of the
caveat
, hence the
decision to sue the first and second defendants. The third
defendant is being sued because according to the plaintiff,
he
failed, neglected or refused to institute legal proceedings against
the first and second defendants, hence he did so himself.
RELATED
CASES OR CASES TO DO WITH THIS ONE
[21] There are several matters decided in
our courts between the years 2001 and 2009 which has Seagate
Technologies as the centre piece. Some of the issues thereat
decided as well as the parties in some of them deserve being
alluded
to. Some of the special pleas would be better understood if brief
outlines thereof are set out.
Case
No 14647/2001 (Van der Merwe J
)
[22] This matter was finalised on 21 August
2001. The applicant therein was Felicia Dora Greenberg
(plaintiff’s ex-wife) and the respondents were Lionel Mervin
Greenberg, Esther Greenberg (plaintiff’s mother), Seagate
Technologies and the Registrar of Close Corporations as the first to
fourth respondents respectively.
[23] Without stating the facts thereof, it
is my view that the order granted adequately serves to illustrate
the
points that need to be emphasised.
[24] Van der Merwe J issued the following
order:
“
1.
Setting aside the transfer of membership by the first respondent,
into the name of the second
respondent, of the first respondent’s
entire membership of the third respondent, which transfer was
registered by the fourth
respondent on the 18
th
April 2001.
2.
Issuing
a declaratory order to the effect that the first respondent is the
sole member of the third respondent.
”
[25] The Registrar of Close Corporations was
also ordered to comply with the order by amending its records
accordingly.
Case
No 13439/2002 (Patel J
)
[26] The applicants here were Delia Sybil
Dall and Hazel Clara Ulco, the daughters of Esther Greenberg
(fourth
respondent therein) and sisters of Lionel Greenberg, the plaintiff in
our case. The six respondents were The Registrar
of Close
Corporations, Sheriff Germiston North, Seagate Technologies, Esther
Greenberg, Felicia Greenberg and Lamprecht Incorporated
(formerly
Felicia’s attorneys) respectively.
[27]
In this case Lionel Greenberg (plaintiff in
our present case) had purported to have transferred his
100% members’
interest in Seagate Technologies to his mother Esther Greenberg
(fourth respondent in that matter) despite
the fact that such
members’ interest had already been attached by the Sheriff
(second respondent) on 6 October 2000 at the
instance of Felicia
Greenberg (fifth respondent). The registration was effected on 18
April 2001. This precipitated the urgent
application under Case
Number 14647/2001 whereat Van der Merwe J set aside that
transfer.
[1]
While the urgent application was still pending before court, the
fourth respondent (Esther) applied for the conversion of
the close
corporation (Seagate Technologies CC) into a private company. The
fourth respondent signed the necessary forms on 21
June 2001 while
the urgent application was pending and lodged the application on 13
July 2001. At this date the application
for the setting aside
of the transfer of the close corporation’s members’
interest to her was still pending.
[28]
As stated above
[2]
Van der Merwe J set aside that transfer.
[29] Before the records of the close
corporation were corrected or amended, the close corporation was
converted into a company on 6 September 2002. This conversion
was set aside by Van der Westhuizen J on 18 October 2001. The
learned
judge declared in his order that Lionel Greenberg was still the sole
member of the close corporation, Seagate Technologies.
The court also
interdicted both Lionel and his mother Esther from dealing with the
members’ interest in Seagate Technologies.
That was when
Felicia Greenberg (“
Felicia
”) caused writs to be
issued and attachments pursuant thereto were made by the Sheriff,
Germiston North. On 6 November
2001 Lionel Greenberg launched
an urgent application in this Court to set aside the sale in
execution that was to take place of
the members’ interest.
Blieden J refused that application, leading to the members’
interest being sold in execution
for the sum of R510 000,00.
[30] On 9 November 2001, Lionel Greenberg
prepared and signed paperwork which among others tendered his
resignation as the sole member of Seagate Technologies and purported
to transfer same to his mother, Esther. On the same
day Esther
also signed papers purporting to transfer her 100% members’
interest to her two daughters, Delia and Hazel, the
applicants in
this case (13439/2002).
[31]
As already stated elsewhere in this
judgment,
[3]
Patel J dismissed the application.
[32]
Although Lionel Greenberg was not a party to
this application before Patel J, he nevertheless knows
about it as he
did something that really rubbed the learned late Judge the wrong
way. The judge remarked as follows in his judgment:
[4]
“
[6]
But, before I do so (give reasons for
an
ex tempore
ruling
already made), it is pertinent to allude to two disquieting aspects
that arose after the
ex
tempore
judgment
and order and which certainly touches upon the administration of the
civil justice system.
First, it is worrying that the entire court file in this matter
disappeared and a duplicate file had to be opened …
It
is rather disturbing that the contents of a court file can go astray
or be missing without any plausible explanation.
Missing court
record simply frustrate speedy judgment writing. Perhaps the moment
has arrived in this technological era to introduce
a document
tracking system to overcome the perennial problem of lost court
papers and files.
The
second aspect is a matter of some concern. Although Lionel
Greenberg was mentioned in the application papers but he was
not a
party to the proceedings before me. However, he had the audacity to
write a letter on the letterhead of ‘Kid-Kinder
Divorce’
to the Registrar indicating that the judgment in this matter was not
handed down and imploring - … ‘to
favour me with a reply
in respect of the status of when the judge contemplating handing down
the judgment …’.
For all intents and purposes
Lionel Greenberg was an outsider to the proceedings. Therefore
it was not his business to query
when judgment was to be handed down
in spite of having given an
ex
tempore
judgment.
The cavalier attitude on Lionel Greenberg’s part was an attempt
to embarrass the judicial office. It was rather
disdainful for him to
intervene when it was not his business to do so. He is simply a
meddlesome interloper …
”
[33] Further on towards the end of this long
paragraph [6] the learned judge continues to say the following:
“…
I
reject Lionel Greenberg’s call for judgment. Even if he
has some indirect interest in the present proceedings but
he was and
still is an outsider … His intervention tantamounts to
undermine judicial neutrality. Under the circumstances,
I will
not countenance such intrusion.
”
[34] Very strong words indeed!
However, for purposes of our judgment, this only serves to indicate
that the plaintiff here was very much aware of what was taking place
in the Patel J matter, way back between 24 October 2002 and
7 August
2003.
Case
No 18819/2002 (Farber A
)
[35] This matter was determined or judgment
handed down on 1 September 2003. The applicant was Mr
Theodore
Wilhelm van den Heever (the third respondent in our matter) and the
respondent was Seagate Technologies.
[36] This matter dealt with interrogatories
of Lionel Greenberg as the insolvent close corporation’s
(Seagate Technologies’) controller and the attempt to liquidate
Seagate Technologies. This application (for liquidation of
Seagate)
did not succeed.
Case
No 16749/2006 (Goldblatt J
)
[37] In this matter, judgment was handed
down on 28 September 2006
ex tempore
. Lionel Greenberg
was the applicant. The respondents were Fiona Dippenaar and 15
others. Mr Van den Heever (third
respondent in our matter) was
the second respondent thereat. Lionel was asking the court to
compel Mr Van den Heever, the
trustee of the insolvent close
corporation, to take legal action against some of the respondents
thereat.
[38] The application was dismissed.
Case
No 317/2007 (Southwood J
)
[39] Southwood J handed down judgment in
this matter on 18 March 2009. The applicant was Theodor Welhelm
van
den Heever NO. The five respondents were respectively, Ucko-Stein,
Hazel Klara NO, Greenberg, Felicia Dora, Seagate Technologies
CC,
Sheriff of the High Court, Germiston North, and The Registrar of
Close Corporpations.
[40] Our plaintiff, Lionel Mervin Greenberg
joined these proceedings as an Intervening Party. It
is
interesting to note that he did what he did in our case in that case
: he excused his counsel and he represented himself, as
he is doing
in our present action. He opposed the application.
[41] This matter before Southwood J also
revolved around the issue that the membership held by Lionel
Greenberg in Seagate Technologies be declared to form part of his
insolvent estate to be dealt with also in the winding-up of the
affairs of his insolvent estate. The Registrar of Close Corporations
was to amend its record accordingly.
[42] At the end of the hearing Southwood J
issued the following order:
“
18. The following
orders are made:
(1)
It
is declared that the membership interest held by Lionel Mervin
Greenberg in Seagate Technologies CC forms part of the insolvent
estate of Lionel Mervin Greenberg;
(2)
It
is declared that the member’s interest of Lionel Mervin
Greenberg in Seagate Technologies is to be dealt with in the winding
up of the affairs of the insolvent estate of Lionel Mervin Greenberg;
(3)
The
fifth respondent is directed to take all such steps as are necessary
to amend his records to reflect that Lionel Mervin Greenberg
is the
sole member of Seagate Technologies CC …
”
Case No
A1670/2004 (Du Plessis J
et
Ranchod and Mabesele AJJ
[43]
This was an appeal heard by a full bench
against the judgment of Patel J.
[5]
The full court issued the following order:
“
1.
The appeal against the dismissal of the application is dismissed;
2.
The
appeal against the granting of the fifth respondent’s
counter-application (Felicia Greenberg’s) is allowed to the
extent that the order made in respect of the counter-application is
set aside and the following order is made in its stead:-
(a)
‘
It
is declared that the fourth respondent (Lionel Greenberg) at all
relevant times had a right to the sole membership interest in
the
third respondent;
(b)
It is declared that the second
respondent (Sheriff, Germiston-North) on 21 February 2002 validly
attached the fourth respondent’s right to the membership
interest in the third respondent (Seagate Technologies).
”
3.
The
appeal against the costs order of the court
a
quo
is
dismissed;
4.
The appellants are ordered
to pay the first, second, fifth and sixth respondents’
costs of
the appeal.
”
[44]
The correctness and/or validity of the
attachment of the members’ interest in Seagate Technologies
as
well as other issues incidental thereto was the focal point of all
the above judgments. Southwood J summarised the net
rulings by
the above courts when he stated as follows:
[6]
“
The
correctness of the attachment has not been challenged previously and
has been accepted by both Patel J and the full court. Furthermore,
on
6 November 2001 Blieden J refused Lionel Greenberg’s
application to stop the sale in execution. There is nothing
to
indicate how proof of the invalidity of the attachment prior to the
sale will affect the judgment and order of the courts who
have ruled
on the dispute. As pointed out in the reasons for refusing the
application for postponement, the disposition of the
members’
interest by Lionel Greenberg would offend against the provisions of
section 26 of the Insolvency Act and in all
probabilities would be
set aside.
”
[45] That much by way of introduction.
It would appear that this would also be another episode in
the
Greenberg saga.
EVIDENCE
BY THE PLAINTIFF
[46] For the umpteeth time, the plaintiff
has testified about the invalidity or voidness of the attachment
of
this 100% interest in Seagate Technologies. He re-hashed previously
advanced arguments that those attachments were irregular.
I
deliberately started this judgment by dealing with previous court’s
judgments that had something to do with Seagate Technologies
and/or
any or some of the parties involved or cited in this matter.
[47] In the alternative, the plaintiff’s
opening address was that in the event of this Court not
buying the
argument or submission as set out hereinbefore, then the court should
find that the plaintiff’s 100% members’
interest in
Seagate Technologies was attached
sine causa
as the debts to
be serviced by the proceeds from such attachment had already been
settled in full when the interest was sold in
execution.
[48] As regards Claim B, the plaintiff’s
case was that the
caveat
on the property was registered
pursuant to an unlawful instruction to the first and second
defendants by his former wife’s
erstwhile attorneys, leading to
a bond approved at his instance by Absa Bank being cancelled.
[49] He (plaintiff) also testified to the
effect that his sequestration was directly linked to or can
be traced
to the above acts and conduct that he categorises as being illegal
and unlawful.
[50] It is common cause that at the time the
plaintiff instituted these proceedings he was still an
unrehabilitated
insolvent. He however lays the blame for this at the
door of the trustee of his insolvent estate, the third respondent who
according
to him (plaintiff) failed, neglected or refused to react to
several letters to him to institute them.
[51] He alleged that when these proceedings
were instituted in 2011, prescription had not yet set in.
[52]
It was the plaintiff’s further
evidence that he became aware of the invalidity of the attachment
of
his 100% members’ interest in Seagate Technologies during a
criminal trial in the Commercial Crimes Court where he was
the
accused. He was acquitted of those charges in the year 2008. In
fact, the prosecution was stopped by the State in terms
of
section 6
of the
Criminal Procedure Act 51 of 1977
. The trial Magistrate
then returned a verdict of
not
guilty and discharged
as
evidence had already been led. The actual words used were:
“
Accused acquitted as per …
Section 6
Act 51 of 1977 …
”
The date of finalisation is 25 November 2008.
[53] The plaintiff reiterated that the basis
of his claim was the first defendant’s concession at
the
criminal trial that he (first defendant) did not re-attach the
member’s interest in the close corporation the second
time
round. This trial started in May 2006.
[54] The plaintiff repeatedly stated in
evidence that he only became aware of the above aspect when he
was
acquitted on 25 November 2005.
[55] I will deal with this aspect later as
the date the first defendant allegedly conceded as the plaintiff
alleges will be decisive. It is common cause that the plaintiff
was present when the alleged concession was made. Furthermore,
at
this stage of the proceedings when the plaintiff was testifying he
was still represented and led in evidence by his erstwhile
attorney,
Mr Larry Marx who incidentally is the attorney who prepared and
served the summons in this case and was also his defence
attorney at
the criminal trial.
[56] It is also noteworthy to note that the
plaintiff testified that he issued letters of demand or notifications
of intention to sue in this matter in June 2011, immediately after
Lamont J of this Court had struck a case he (plaintiff) had
instituted as an unrehabilitated insolvent without the assistance,
cogency and citation of the third defendant who was the trustee
of
his insolvent estate.
[57] The above pre-supposes that the
plaintiff’s awareness or knowledge of the facts relevant to
the
institution of proceedings in this case occurred in or before June
2011.
[58] The plaintiff then dealt with the three
special pleas in turn.
[59] He stated further that only after his
100% members’ interest was sold in execution did he complete
and sign the relevant document to resign from Seagate Technologies as
its sole member, which is one of the aspects that led to
Patel J’s
judgment.
[60] The rest of the plaintiff’s
evidence revolved around confirming the circumstances surrounding
the
court judgments by the various courts already alluded to above.
[61] The plaintiff’s major gripe with
the first and second defendants seems to be that the Sheriff
of
Germiston North has no authority to effect the attachment of the
members’ interest in Pretoria’s Close Corporation’s
Registry Office. He also castigates the Sheriffs for complying with
attorneys’ instructions to register or cause the
caveat
to be registered over the property of the close corporation.
[62] It was his further contention that the
previous courts that dealt with these matters never had to
decide
over the validity or not of the attachments in issue.
[63] Cross-examination on behalf of the
defendants rubbished most of the plaintiff’s allegations.
For example, it was clearly demonstrated that the validity of the
attachments and the writs was indeed part of the issues decided
in
the previous judgments by other courts. The plaintiff could
also not explain why he told this Court Blieden J granted
his
application, for the sale in execution of this members’
interest, when the judgment itself, which alluded the opposite
view,
was displayed to him.
[64] He also conceded that the proceeds from
the sale of his members’ interest in Seagate Technologies
were
vended towards the settlement of his liabilities, thus benefitting
his insolvent estate. He also agreed that his final sequestration
occurred after the proceeds of the sale had already been vended
towards extinguishing some of his debts.
[65] It emerged that the plaintiff was
sequestrated at the instance of his own attorney for non-payment
of
fees.
[66] He also agreed that he never brought
any proceedings to compel his trustees to institute legal proceedings
against any persons or instances he was not happy with.
[67] Cross-examination also elicited and the
plaintiff conceded that he told an untruth to this Court
when he
stated that even Goldblatt J’s judgment’s details were
unknown to him as by November 2011. He conceded
that he in fact
knew of the reasons for Goldblatt J’s judgment before the
criminal case but that he was advised by his legal
representative, a
Mr Kriel, not to mention that fact, both in the Commercial Crimes
Court and in this Court.
[68] He stated further in answer to a series
of questions that the matter he had instituted where he was
represented by Mr Kriel was dismissed and costs had been taxed at the
amount exceeding R199 000,00. He indicated that those
costs
have not yet been settled or paid as he is banking on winning this
present case and using the moneys gained therefrom to
settle that
debt.
[69] It became clear from cross-examination
that the third defendant (Mr Scheepers) started testifying
in the
Commercial Crimes Court on 17 October 2008 and the evidence of the
alleged unlawfulness of the attachment of the members’
interest
in Seagate started emerging on that date.
[70] The evidence of the plaintiff’s
further witness, Mr Neil John Fuller and a manageress of Absa
Bank
does not take this matter or either parties’ case any further.
[71] At the end of the plaintiff’s
case the defendants closed their cases without leading any evidence.
SPECIAL
PLEAS RAISED BY DEFENDANTS
[72] It is appropriate at this stage that I
deal with the three special pleas raised by the defendants.
First
Special Plea : Lack of
Locus Standi
[73] The plaintiff was an unrehabilitated
insolvent at the time he instituted these proceedings in November
2011. As stated above, he was provisionally sequestrated on 10
December 2001 and finally sequestrated on 22 January 2002.
In
terms of the provisions of section 20 of the Insolvency Act 24 of
1936 (as amended) the results of the plaintiff’s sequestration
are that he was divested of his estate and it vested in the Master of
the High Court. Upon the appointment of the third defendant
as
the trustee of the plaintiff’s insolvent estate on 31 May 2002,
he became the only instances that could sue and be sued
on any issues
relating to the plaintiff, in his representative capacity of course.
[74] The plaintiff replicated to this
special plea by stating that the third respondent gave him permission
to proceed with the action herein. No evidence was led in support of
this allegation. What emerged during the leading of
evidence
and cross-examination is that the plaintiff may have strived or
attempted to make the third defendant aware of his intention
to
institute legal proceedings. At no stage did he back up his
allegation that the third respondent gave permission or his blessing
for him to institute these proceedings.
[75] In the circumstances, the plaintiff did
not prove his possession of the requisite
locus standi
to
institute and/or pursue these claims.
Second
Special Plea : Prescription
[76] The first and second defendants pleaded
that both Claims A and B as framed by the plaintiff arose
during or
about 2001. On the other hand, according to the plaintiff he ought to
have become aware of the issues that can be regarded
as triggers for
these proceedings on 17 October 2008 when the third defendant
testified in the Commercial Crimes Court. This and
other evidence in
my considered view and finding puts paid to the plaintiff’s
assertion that he became aware of these trigger
facts on 25 November
2008 or 2011 – as there was no clarity as to which date between
these two the plaintiff was relying
on.
[77] Civil proceedings must be instituted
within three years of the date the cause of action arose generally
or
within three years of the date the plaintiff became aware of the
facts giving rise to or justifying the institution of legal
proceedings. Otherwise the right to do so would have prescribed in
terms of
section 11
of the
Prescription Act 68 of 1969
.
[78] The summons herein were issued on 14
November 2011, well over three years after he became aware of
the
alleged causes of action therein. His evidence in court,
instead of substantiating his claim that he was well within
the
prescription period when he did so, actually supported the
defendants’ plea that the claims have or had prescribed.
[79] As such, on the evidence before this
Court, this special plea also stands to succeed.
Third
Special Plea :
Res Judicata
[80]
His Lordship Patel J finally and definitely
found in Case 13439/2002
[7]
that the purported transfer by the plaintiff to his late mother
Esther Greenberg of his 100% members’ interest in Seagate
Technologies (the close corporation) was not valid. The learned
judge also found that the attachment of that interest by
the first
defendant on 16 May 2003 was valid. This judgment was confirmed on
appeal by a full bench or court.
[8]
[81]
The plaintiff’s objection to the above
judgment is that he was not a party therein or thereto.
As
stated hereinbefore
[9]
the learned Judge Patel was obliged to reprimand him for demanding
that he (Judge) hand down his judgment therein nevertheless.
Indeed
that makes one to think!
[82]
The plaintiff’s major problem lies
with Southwood J’s judgment of 18 March 2009.
[10]
He intervened in those proceedings formally.
[83] In Southwood J’s judgment the
parties therein (including the plaintiff) and the issues in question
are the same or similar to those in issue in our present matter.
Consequently, what the plaintiff wants this Court to adjudicate
upon
has already been dealt with finally by the court. It is also
interesting to note that both the honourable justices, Patel
and
Southwood JJ, ruled over substantially the same issues.
[84] In terms of the
exceptio rei
judicata
there is an irrebuttable presumption that a final
judgment upon a claim submitted to a competent court is correct. This
presumption
is founded on public policy which requires that
litigation should not be open-ended or re-cycled, as well as upon the
requirement
of
bona fides
(good faith) which does not permit
of the same thing being demanded more than once or as and when a
party feels inclined to do
so. The principles of this
requirement are that:
84.1
there
ought to be a final judgment;
[11]
84.2
the
judgment must have been between the same parties;
[12]
and
84.3
it
must be in respect of the same
lis
on the same ground.
[13]
[85] It is this Court’s finding from
the common cause facts placed before this Court that this matter
is
“
on all fours
” with the principle of
res
judicata
.
[86]
I have set out the facts and rulings in the
other cases hereinbefore.
[14]
The plaintiff and Seagate Technologies are decidedly the common
denominators therein. If I was permitted to refer to them
as
facta
probantia
to the
facta
probanda
relevant herein, I would do so. However, I will be over-stepping my
beat if I did so. I thus refrain from doing so.
[87] This special plea also stands to
succeed.
DEFENCE ON
THE MERITS
[88] Upholding of the special pleas makes it
academic to go over to evaluate the merits of the plaintiff’s
case
vis-à-vis
the defendants’ defence generally
or on the merits.
[89] However, it became common cause as the
trial progressed that the
caveat
registered was registered
properly and for a good cause. In any event, the registration of the
caveat
was the specific instruction of attorneys representing
a non-party herein, the plaintiff’s ex-wife, Felicia
Greenberg.
A sheriff’s duty is to act in accordance with
instructions. Furthermore, the Deeds Office is the authority
that had
to decide whether to accept the registration or not.
Consequently, it is my finding that in the circumstances of this
case,
it should not avail the plaintiff to pursue the messenger.
The instance that sent out the messenger is there to be pursued
if
there is such a need or justification.
CONCLUSION
[90] The plaintiff was an unrehabilitated
insolvent at the time he instituted these proceedings.
Section
20(1)
of the
Insolvency Act 24 of 1936
provides as follows:
“
20.
Effect of
sequestration insolvent’s property
(1)
The
effect of the sequestration of the estate of an insolvent shall be –
(a)
to divest the insolvent of his estate
and to vest it in the Master until a trustee has been appointed,
and,
upon the appointment of a trustee, to vest the estate in him.
”
[91] The plaintiff was obliged to seek the
consent of the third defendant to institute the proceedings
herein or
at the very least, notified the latter of his intention to institute
same in a clear, unequivocal or undoubtworthy manner.
[92]
It is so that an insolvent is at liberty to
institute legal proceedings for damages himself where
a trustee
unreasonably refuses or neglect to do so.
[15]
No such unreasonable refusal, neglect or failure has been proven in
this trial. What makes things worse is that even if the
plaintiff was
justified to institute proceedings against the defendants or any
other party for that matter, any damages awarded
pursuant thereto
would have been for the benefit of the insolvent estate.
[93] In this instance the plaintiff have
claimed for his own personal benefit and he was adamant in evidence
that no cent from this suit should he win, will go to the insolvent
estate or the trustee being the third defendant.
[94] I listened carefully to the evidence
led by the plaintiff. It was not impressive. It consisted mostly
of
conjecture and speculation as well as hearsay. His charge that
the first and second defendants acted with malice or in
cohorts or
co-hoots with the third defendant is not borne out by the facts
and/or circumstances as well as the probabilities inherent
in this
case. When specifically coaxed to indicate the grounds upon which he
accused them of malice, he was not forthcoming.
[95] The first and second defendants’
conduct were accepted by several judges of our court as having
been
regular or above reproach. It is my view that to expect this
Court to pronounce on the same issues pronounced by the
various
judges is improper. This Court cannot sit as some pseudo-appeal
authority over decisions of judge colleagues.
There is no
justification for that or acceptable procedural foundation therefor.
[96] The first and second defendants owe
their appointment and competencies to the Sheriffs Act 90 of
1986.
Section 3(1) of the above Act expects them to execute their duties
which include executing lawful instructions from
litigants. I
have not been convinced or persuaded that the first and second
defendants ought to have seen any reason to refuse
to execute the
instructions issued to them by attorneys who are officers of the
court. When regard is had to the myriad of judgments
validating the
processes that have taken place, which processes the plaintiff now
wants this Court to disregard, it is the finding
of this Court
further, that the first and second defendants did not act outside
their mandates. Not much was said about the
third defendant
except that he is accused of having shirked his responsibilities.
As stated hereinbefore, this aspect was
not proven on the requisite
preponderance of probabilities.
[97] The other question to ask may be : What
should the first and second defendants have done once they
received
the writs of execution and instructions to execute them. It is
my finding that had they failed or refused to execute
them, they
would have opened themselves to disciplinary action or even being
sued civilly.
[98] It is thus illogical and misplaced to
now seek to hold them liable for doing what was expected of
them.
[99] Their conduct and/or
modus operandi
has been approved or given a stamp of approval by various judges of
this Court.
[100] As already alluded to above, those competent courts have
already ruled over the same issues that the plaintiff is
asking this
Court to rule on.
[101] To summarise what the various justices ruled in the
various judgments around Seagate Technologies, the learned justices
frowned upon the plaintiff’s or close relatives’ attempts
to do whatever they could in order to frustrate the execution
of
costs and other orders for which the plaintiff was liable to his
former wife Felicia Greenberg by surreptitiously seeking to
alienate
his 100% members’ interest in Seagate Technologies to his
mother and to some extent, to his sisters. It is
very difficult
not to accept that there could have been whole scale collaboration or
connivance amongst the plaintiff and his family.
It is so that this
is speculation. As such it is not a finding of this Court in
this case. The plaintiff also unsuccessfully
tried to stop a sale in
execution of this members’ interest.
[102]
The
onus
in
this matter rested on the plaintiff throughout.
[16]
His evidence in substantiation of the allegation was at best salutory
and unconvincing. Cross-examination obliterated whatever
could still
be salvaged at that stage.
[103]
It is also trite that a rebuttal of the plaintiff’s
case, the so-called “
rebuttal
onus
”
or “
weerleggingslas
”
in Afrikaans only arises once the plaintiff had established a
prima
facie
case.
[17]
The plaintiff has failed to establish that
prima
facie
case. Furthermore, the defendants have managed to succeed with the
three special pleas they raised against the plaintiff’s
particulars of claim. As a consequence there is no further duty
to rebut from the defendants.
[104] There is correspondingly no need on my part to deal with
the quantum of damages.
[105] There is no enough evidence indicative of the
plaintiff’s allegation that he notified the third defendant
about
his intention to institute these proceedings himself. Evidence
of his former attorney, Mr Larry Marx was not cogent enough to reach
the threshold required, more so that the latter conceded that he was
no expert on how computer software programs worked, thus leaving
no
sufficient evidence around the issue of making the third defendant
aware of his intention to institute these proceedings.
This is
a far cry from the plaintiff’s allegation that he obtained
permission from the third defendant.
[106] Mrs Vermeulen, Absa’s Rosebank branch manager did
not advance the plaintiff’s cause. Worse still, she
conceded
that during 2001 which was the period she purported to be testifying
on, she was not employed by Absa Bank, let alone
working at the
Rosebank branch. She also could not say why she was not in possession
of original documents. She could not furnish
any first-hand evidence.
The copies she was testifying about pointed to two or three instances
having applied for a bond at Absa
Bank during that period and the
plaintiff was not one of those applicants although his names did
appear somewhere in the body of
the forms displayed.
Furthermore, those document copies indicated that there were
conditions precedent to be met before the
bond could be approved
finally. Mrs Vermeulen could not testify about the contents of
those conditions precedent. Whether
they were met or not.
[107] The official from the Deeds Office, Mr Mapumulo
testified that the decision to register the
caveat
was the
Deeds Office’s, not the defendants, hence when they decided to
cancel that registration, that decision was theirs
entirely, as the
mistake of registering it was entirely theirs. To ascribe
liability on the first and second defendants for
the registration of
the
caveat
is not only far-fetched but also misplaced.
[108] At the end of it all, it is common cause that –
108.1
the
plaintiff lacked the requisite
locus
standi
;
108.2
the
plaintiff’s claim became prescribed some time before the action
was instituted;
108.3
the
validity of the attachment of the members’ interest had already
been determined, for purposes of this judgment at least,
by Southwood
J against the plaintiff. That determination constitutes
res
judicata
;
and
108.4
the
plaintiff have failed, on a conspectus of the evidence led, to make
out a
prima
facie
case.
[109] In the absence of a
prima facie
case, especially
in the face of the plaintiff’s failure to successfully
challenge the special pleas raised by the defendants,
the decision by
the three defendants not to take to the witness stand should not be
faulted.
[110] I have considered the question whether to grant
absolution from the instance or to dismiss the action outright.
The plaintiff’s failure to lead evidence going near acceptable
levels at the end of its case points in my view to a situation
where
absolution from the instance cannot be an appropriate order.
COSTS
[111] The issue of costs at the end of a trial is
pre-eminently within the discretion of the court, properly and
judicially
exercised. The general view is that the successful
party should be awarded costs of litigation. However the court may
award
costs to the losing party under certain circumstances. Those
circumstances are not present in this case.
[112] I am mindful of the fact that the plaintiff ended up
conducting his own case after discharging his counsel.
That
happened at the time when he and his counsel were finding it very
difficult to have certain documents and letters form part
of their
evidence. Later the plaintiff called the self-same counsel as his
witness, the purpose being to lead evidence about those
letters and
documents. He insisted to do so despite my strong advice not to
do so. In the interests of progress in the trial
the defendants’
counsel did not object to this
modus operandi
. Unfortunately,
even with this evidence, the plaintiff’s case remained
deficient.
[113] In the circumstances, the costs of this litigation
should follow the result.
ORDER
[114] The following order is made:
“
The plaintiff’s suit is dismissed
with costs.
”
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
FOR THE PLAINTIFF: PLAINTIFF IN PERSON
(PARTLY REPRESENTED BY LARRY
MARX OF LARRY MARX ATTORNEYS)
TEL
NO: 011 485 3822
FOR THE DEFENDANTS: J W STEYN
INSTRUCTED BY CLIFFE DEKKER HOFMEYR INC
c/o
MONTE COETZEE INC
MARKET
STREET
JOHANNESBURG
TEL NO: 011 562 1057
TEL NO: 011 562 1000
DATE OF HEARING: 30 JANUARY 2014
DATE OF JUDGMENT: FEBRUARY 2014
[1]
See
Case discussion in paragraphs [22] to [25] above.
[2]
Paragraphs
[22] to [25] of this judgment.
[3]
Paragraphs
[1] to [2] of this judgment.
[4]
Paragraphs
[6] of Patel J’s judgment.
[5]
Paragraphs
[26] to [34] of this judgment.
[6]
[7]
Paragraphs
[26] to [34] of this judgment.
[8]
See
paragraphs [43] to [45] of this judgment.
[9]
See
quotation from Patel J’s judgment at paragraph [32] of this
judgment.
[10]
See
paragraphs [39] to [42] of this judgment.
[11]
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 564.
[12]
Le
Roux v Le Roux
1967 (1) SA 446
(A) at 463.
[13]
African
Farms and Townships Ltd v Cape Town Municipality (supra)
at
562;
Goldfields
Laboratories (Pty) Ltd v Pomate Engineering (Pty) Ltd
1983 (3) SA 197 (W).
[14]
Paragraphs
[26] to [45] of this judgment.
[15]
Voget
and Others v Kleynhans
2003 (2) SA 148
(C) at 153-4.
[16]
Pillay
v Kirsha
1946 AD, 946.
[17]
See
also C W H Schmidt,
Bewysreg
,
3
rd
Edition at 23 to 24.