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[2015] ZAGPJHC 95
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Mncube and Others v Januarie N.O and Others (06069/2015) [2015] ZAGPJHC 95 (26 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case number: 06069/2015
DATE: 26 FEBRUARY 2015
In the matter between:
DANIEL MNCUBE & 55
OTHERS
.......................................................................................
Applicant
And
EUGENE JANUARIE
N.O
..........................................................................................
First
Respondent
JOHANNES ZACHARIAS HUMAN MULLER
NO
...........................................
Second
Respondent
in their capacities as the joint
provisional liquidators of
CIDA CITY CAMPUS NCP
(IN PROVISIONAL LIQUIDATION)
Master’s reference no:
G211/2014
MASTER OF THE SOUTH GAUTENG HIGH
COURT
......................................
Third
Respondent
JOFFE CHARITABLE
TRUST
..............................................................................
Fourth
Respondent
CITY OF
JOHANNESBURG
.....................................................................................
Fifth
Respondent
ABSA BANK
LIMITED
..............................................................................................
Sixth
Respondent
CIDA EMPOWERMENT
TRUST
...................................................
….................Seventh
Respondent
STUDENT REPRESENTATIVE COUNCIL
OF
...................................................
Eighth
Respondent
CITY CAMPUS NPC
JUDGMENT
SATCHWELL J:
INTRODUCTION
1. This application was heard in the
urgent court on Wednesday 25th February 2015. I reserved Judgment.
It was my intention to
prepare a judgment and hand down a typed
judgment in the course of the next week. Unfortunately my mother who
is aged 88 was admitted
to hospital this morning. I have only just
learnt of that this afternoon when I came out of court and I am now
flying down to
Port Elizabeth. I do not know if I will be back in
court next week. Because this matter was heard on an urgent basis, I
think
it would be most unfortunate if the judgment were not to be
handed down because of my absence.
2. His Lordship Mr Justice Bashier
Vally handed down an order in this matter on 29th January 2015. He
followed that order with
a careful judgment dated 16th February 2015.
3. Pursuant to that order the Master of
the High Court (third respondent) convened a meeting which ended
without progress or useful
action.
4. The applicants in this matter bring
this application on an urgent basis firstly to have the Master
declared to be in breach of
the order of his Lordship Mr Justice
Vally and secondly to ask for further directions to be given to the
Master.
MASTER’S BREACH
5. I have no doubt that the Master who
is the third respondent in this matter, is neither in contempt of
court nor in wilful breach.
6. His careful report dated 20th
February 2015 (found at pages 340 to 347 of the papers) sets out his
concerns about the legality
of the order, and also issues of concern
to him and also to those parties who were present at and who raised
such concerns at the
meeting which he convened. The Master’s
report also sets out his understanding of the legal position and
certain problems
arising out of the order of his Lordship Mr Justice
Vally.
7. Correctly the Master notes that he
is a creature of statute and that he exercises only those powers
conferred upon him. In no
manner does the Master indicate that he
will not or that he refuses to abide or act upon the order of Judge
Vally. He does no
more than express his difficulties and his
concerns as to implementation of that order. He does so carefully by
reference to legislation
and to reported judgments of our courts.
8. In the result I cannot grant the
order as prayed for in prayer 2.
THE MEETING:
9. Paragraph 3 onwards of the Notice of
Motion is premised upon the existence of a breach by the Master and
the need to remedy or
rectify such breach. As I have already
indicated that causa no longer exists because I do not find that
there has been a breach.
10. However the Master’s own
report clearly indicates that there are difficulties in the
implementation of the order of his
Lordship Mr Justice Vally. There
is clearly a need to clarify and to amend the order of Judge Vally so
as to render the order
capable of lawful implementation.
11. I am indebted to Mr Brickhill’s,
most courteous acknowledgment of the assistance given to the
applicants in this matter
by Advocate Botes who appeared for the
liquidators (First and second respondents). I note that the
liquidators no longer oppose
this application. I too am indebted to
Advocate Botes. I note that Advocate Van Twis who appears for the
creditors (who were
not cited or joined), has also set out his
concerns and has provided assistance, in the amendment of the order
as prayed so as
to ensure both lawful and efficacious clarification.
12. I certainly do not and cannot
regard the order of Vally J as a nullity. This was argued by counsel
for the Master. It remains
a judgment of this court until it is set
aside.
13. I appreciate that the proposed
amendments will assist in ensuring exploration of all opportunities
to possibly ensure continuation
of the educational facility of CIDA.
I need comment no further on the value which such organisation is
considered to provide.
CONCLUSION:
14. In the result an order is made
which essentially is the prayers set out in paragraphs 3, 4, 5, 6, 7,
8, 9, 10, 11, 12, 13, 14
and 15 of the Notice of Motion but with
certain amendments. For the benefit of the typist and for those in
court I will read out
the entire order.
Order
1. The creditors of CIDA and any other
concerned party or stakeholders may submit and prove their claims
within 14 days from date
of this order, in accordance with the
provisions of
Section 44
of the
Insolvency Act 24 of 1936
as provided
for in
Sections 354(2)
and
413
of the Act on a suitable date.
2. The parties who prove their claims
as envisaged in paragraph 1 above may attend a general meeting of
creditors in terms of Section
386(1)(d) or 314 of the Companies Act
71 of 1973, as read with Regulation 8(1) of the Winding Up and
Judicial Management Regulations
to the Companies Act at which the
following shall be conducted:
a. First and second respondents shall
table any offers received for the assets and/or business of CIDA;
b. Creditors may give directions to the
First and second respondents regarding the acceptance, with or
without amendments, of any
of the offers tabled at the meeting; and
c. Creditors may give directions to the
First and second respondents to submit any of the offers tabled at
the meeting to creditors
for consideration in terms of
Section 155
of
the
Companies Act 71 of 2008
, in which event the First and second
respondents shall be required forthwith to submit the relevant offer
to creditors in terms
of
Section 155
and to convene the meetings of
creditors as required by
Section 155
for creditors to consider and
vote for the acceptance or the rejection of the offer in terms of
Section 155.
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3. Prospective or interested buyers or
investors may submit written offers to purchase CIDA’s assets
or to purchase CIDA as
a going concern to the First and second
respondents at least 7 days prior to the general meeting, envisaged
in paragraph 2 above.
4. The First and second respondents are
ordered to disseminate all offers or proposals which are received
from interested buyers
or investors, to the creditors of CIDA
referred to in paragraph 2 above, at least 5 days prior to the
general meeting.
5. The First and second respondents are
ordered to disseminate this order to all known creditors of CIDA by
email transmission within
a period of 2 days of the date of this
order, to inform CIDA’s creditors of the existence of this
order and to allow them
the opportunity to prove their claims and to
be present at the meeting envisaged in paragraph 3 above.
6. The third respondent is directed to
convene the meeting forthwith and to place the advertisement
convening the meeting in the
soonest possible Government Gazette.
7. The meeting to convene by third
respondent shall be provided over by Senior Counsel nominated by the
third respondent, in terms
of
Regulation 8(1)
of the Regulations.
8. The Counsel nominated by the third
respondent is directed to file a written report with this Honourable
Court within 72 (seventy
two) hours of the date of the meeting and to
take any further steps necessary to comply with this order. The
following issue should
be identified and addressed in the report:
a. All persons who attend the meeting;
b. A summary of all claims that were
proved;
c. A summary of all offers that were
submitted by prospective buyers or investors to purchase the assets
of CIDA or CIDA itself
as a going concern;
d. The result of votes cast; and
e. The Master’s proposals, if
any, regarding the procedure that should be followed to implement or
execute any offer that
was accepted by CIDA’s creditors at the
meetings.
9. The costs occasioned by this
application together with the costs incurred in respect of the
general meeting, are costs in the
administration of CIDA’s
estate, as provided for in
Section 89
of the
Insolvency Act 24 of
1936
.
10. The First and second respondents
shall be bound by the majority vote (in value) at the meeting and are
directed to implement
any directions made by such majority of
creditors, in terms of paragraph 1 above within 7 (seven) days of
such directions, save
where such directions provided for a different
period of time.
11. First and second respondents are
interdicted from selling or alienating or disposing of any of CIDA’s
assets pending the
meeting of creditors referred to in paragraph 1
herein.
12. Any concerned party is entitled to
set the matter down (with or without supplementation of the founding
papers) upon notice,
as a matter of urgency to seek appropriate
relief in respect of any part of this order.
13. Each party is liable for its own
costs occasioned by this application. Accordingly I make no order in
respect of the use of
Senior Counsel or two Counsel in this matter.
14. In the result the draft order as
amended by myself, and which I have initialled and dated 26th
February 2015, is made an order
of court.
DATED AT JOHANNESBURG MARCH
2015
SATCHWELL J
Date of hearing: 25th February 2015
Date of judgment: 26th February 2015
Appearances:
Applicants: Adv N Ferreira (LRC)
First and Second Respondents: Adv N
Du Toit
Third Respondent: Adv J Suttner