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[2015] ZASCA 86
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Commissioner for the South African Revenue Service v Van der Merwe (20152/2015) [2015] ZASCA 86; 2016 (1) SA 599 (SCA); [2015] 3 All SA 387 (SCA); 77 SATC 405 (28 May 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 20152/2014
Reportable
In
the matter between:
THE
COMMISSIONER FOR THE SOUTH AFRICAN
REVENUE
SERVICE
.......................................................................................................
APPELLANT
and
CANDICE-JEAN
VAN DER
MERWE
.........................................................................
RESPONDENT
Neutral
citation:
The Commissioner for the
South African Revenue Service v Candice-Jean van der Merwe
(20152/2014)
[2015] ZASCA 86
(28 May
2015)
Bench:
Ponnan, Wallis and Mbha JJA and Fourie
AJA and Mayat AJA
Heard:
6 May 2015
Delivered:
28 May 2015
Summary
:
Appeal lapsing – application for condonation –
breaches
of the rules of such a nature and explanation offered so unacceptable
and wanting that condonation refused
irrespective
of the applicant’s prospects of success on appeal.
Tax
Administration Act 28 of 2011
–
section 163
– appointment
of a
curator bonis.
ORDER
On
appeal from
:
Western
Cape Division of the High Court, Cape Town (Savage AJ sitting as
court of first instance)
In
the result:
(a)
The application for condonation by Ms
Candice-Jean van der Merwe is dismissed with costs including those of
two counsel on the attorney
and client scale.
(b)
The appeal by SARS is upheld with costs
including those of two counsel.
(c)
The order of the court below is set aside
and replaced with the following:
‘
1.
Save for the exclusion of the “Standard Bank Marketlink account
374170991 (Milnerton)”, paragraph 5(a) of the provisional
order
granted on 30 August 2013 against Ms Candice-Jean van der Merwe (the
second respondent) is confirmed.
2.
Mr Cloete Murray of Sechaba Trust (Pty) Ltd is appointed to act as
curator bonis
in whom the right, title and interest in all the
assets of the second respondent will vest, including, but not limited
to, any
shareholding, loan accounts, member’s interest,
moveable and immovable assets and funds held in bank accounts.
3.
Subject to the conditions and exceptions contained in this order,
save with the prior written consent of the applicant, which
consent
may not be unreasonably withheld, no-one except the
curator bonis
may deal with the second respondent’s assets.
4.
The
curator bonis
is authorised to immediately take control of
the second respondent’s assets.
5.
The
curator bonis
is authorised to take all steps necessary
to ensure the transfer of the shareholding and member’s
interests in the second
respondent’s name into the name of the
curator bonis
.
6.
Where shareholding and/or member’s interest vest in the
curator
bonis
as a result of this order, the
curator bonis
will
have all the powers of a registered shareholder of such shares and/or
of a member with such member’s interest as vested
in him,
including, but not limited to the power to hold shareholder meetings
and to remove and appoint directors.
7.
Any person having books and records or assets of the second
respondent in his/her possession, must, subject to what is provided
below, when this order comes to that person’s knowledge, notify
the
curator bonis
of that fact and hand copies of them to the
curator bonis
on demand, or within such time as the
curator
bonis
may allow.
8.
Save for personal effects, no person may remove any item from the
premises of any property owned or occupied by the second respondent,
without the permission of the
curator bonis
, which permission
may not be unreasonably withheld.
9.
The
curator bonis
is entitled, in order to give effect to this
order, to interview the second respondent, who is obliged to furnish
the
curator bonis
with full particulars within three days of
service of this order on her, of all her assets and how such assets
were acquired.
10.
The
curator bonis
is entitled, in order to give effect to this
order, to interview third parties identified by him and who may have
knowledge of
the whereabouts of the assets of the second respondent.
11.
All the above powers must be exercised by the
curator bonis
strictly in the interests of the second respondent and with the
objective of ensuring that the maximum value of the assets be
maintained and/or recovered.
12.
The powers of the
curator bonis
may be amended or terminated
on application by any interested party.
13.
All reasonable costs of the
curator bonis
occasioned in the
implementation of this order will be paid by the second respondent.
14.
The
curator bonis
will be liable for any damages caused by him
as a result of acting
ultra vires
or unreasonably in the
execution of his duties in terms of this order and the applicant is
responsible to ensure that no-one will
suffer damage as a result of
the
curator bonis
not having put up security or sufficient
security for compliance with his duties in terms of this order.
15.
The second respondent is ordered to pay the costs of the
application, such costs to include those of three counsel.’
JUDGMENT
Ponnan
JA (Wallis and Mbha JJA and Fourie and Mayat AJJA concurring):
[1]
In this matter the appeal by Ms Candice-Jean van der Merwe lapsed for
failure on her part to prosecute it timeously. The initial
question
before us, in relation to her appeal, is thus whether her default
should be condoned and the appeal revived. There is,
as well, an
appeal by the other party to the litigation, the Commissioner for the
South African Revenue Service (SARS). Before
turning to a
consideration of either the application for condonation by Ms Van der
Merwe (the applicant) or SARS’ appeal,
it may be convenient to
first describe how both appeals arose and the one came to lapse.
[2]
The principal protagonists in the matter are SARS and the applicant’s
father, Mr Gary van der Merwe. The latter declared
R60 000
taxable income for each of the 2004, 2005 and 2006 years of
assessment and R70 000 taxable income for the 2007
year of
assessment. He appears not to have declared any taxable income for
the subsequent years of assessment and submitted zero
returns to SARS
for that period. In respect of the 2002 and 2003 years of assessment,
SARS raised additional estimated assessments
in respect of Mr van der
Merwe in terms of the Income Tax Act 58 of 1962 (the ITA), which
resulted in a tax debt of R30 222 881.70.
As at 31 July
2011, the amount, inclusive of penalties, additional taxes and
interest, stood at R66 206 256.53. Mr van
der Merwe did not
object to the assessments and they have become final and conclusive.
On 9 September 2011, SARS obtained a tax
judgment against Mr van der
Merwe by way of an entry in the judgment book of the registrar of the
High Court as contemplated by
s 91(1)
(b)
of the ITA.
[1]
SARS contends
that despite Mr van der Merwe having amassed substantial wealth, he
claims not to own any assets, which so the contention
goes, is a
stratagem designed to obstruct tax collection.
[3]
According to SARS, Mr van der Merwe has over a number of years, been
associated with certain juristic entities that have fraudulently
claimed VAT refunds from SARS. They, so SARS asserts, are
collectively liable to it for tax, additional tax, penalties and
interest
in an amount in excess of R225 million. In the result, on 19
August 2011 SARS applied to the Western Cape Division of the High
Court, Cape Town against a total of 22 respondents, including Mr van
der Merwe, the applicant (Ms van der Merwe) and a host of corporate
entities for a preservation order, as also the appointment of a
curator
bonis
in terms of 163(4)
(a)
of the Tax Administration Act 28 of 2011 (the TAA).
[4]
In support of the application Ms Elle-Sarah Rossato, a senior SARS
official as contemplated in s 163 of the TAA, who deposed
to the
founding affidavit, stated that:
‘
The
preservation order is sought to secure assets, which may be executed
against in respect of existing indebtedness to SARS, but
also in
respect of indebtedness still to be established. All indications are
that such indebtedness will be for a considerable
amount, which I
believe will be in excess of the values of the assets made subject to
this order.’
She
added that SARS entertained the ‘reasonable belief that Mr van
der Merwe uses the respondents, other persons and entities
to hide
his assets’ and asserted that ‘the appointment of a
curator
bonis
will be required for the collection of the outstanding taxes’.
[5]
Despite relatively modest earnings from her modelling career (she
declared taxable income of R20 023, R20 912, R24 995
and R45 336 for the 2009 to 2012 tax years) lady luck, it would
seem, suddenly smiled on the applicant during 2013. According
to
SARS, it had been made aware by the Financial Intelligence Centre
that the Standard Bank of South Africa had received USD 15,3
million
for her benefit on 16 May 2013. The remitter of those funds, which
had been transferred from the Bank Med Sal in Lebanon,
was identified
as Muhamad Muhamad Nazih Rawwas. Moreover, she acquired two motor
vehicles during May and June of that year, namely
an Audi R8 Spyder
and a Range Rover Evoque collectively valued in excess of R 2, 5
million. SARS asserted that: (a) the applicant
was simply a conduit
and had received the funds in question on behalf of and for the
benefit of her father; and (b) the income
declared by her could not
sustain the acquisition of those vehicles.
[6]
On 20 August 2013, Rogers J issued a provisional preservation order
in terms of s 163(4)
(a)
of the TAA. But the learned judge, who
dealt with the matter ex parte and in chambers, did not appoint the
curator
bonis
sought by SARS. In respect of the
applicant, the order read:
‘
5.
A provisional order is made in respect of the second respondent
(Candice van der Merwe) as follows:
(a)
Candice van der Merwe is interdicted from dealing with, disposing of,
encumbering or removing from the Republic any of the following
assets:
(i)
Audi R8 Spyder (CA481415; engine BUJ008480);
(ii)
Land Rover Evoque;
(iii)
any monies standing to the credit of any bank accounts in her name or
in respect of which she has signing powers to the extent
that such
monies represent any residue of the sum of US$15,3 million (converted
into the rand amount of R142 901 673)
received by her on or
about 16 May 2013, such accounts to include (without derogating from
the generality of the foregoing) any
amounts held in any of the
following bank accounts: FirstRand Bank account 62403543756 (Rosebank
branch, Gauteng) in the name of
Lucra Movables (Pty) Ltd; Standard
Bank third party administration account 271783230 (Kromboom branch);
and Standard Bank Marketlink
account 374170991 (Milnerton branch);
(iv)
any monies held on trust by Perold & Associates and/or Bill
Tolken Hendrickse in the name of or for the benefit of Candice
van
der Merwe or in the name of any other person or entity on whose
behalf Candice van der Merwe is accustomed to give instructions
in
respect of such monies;
(v)
any other assets acquired by Candice van der Merwe from the proceeds
of the said amount of R142 901 673.’
The
order continued:
‘
(b)
This provisional preservation order is granted to preserve assets in
respect of which there is
prima facie
evidence indicating:
(i)
that the assets in question in truth belong to Gary van der Merwe and
are thus realisable in respect of his alleged tax debts;
(ii)
alternatively, that they will be realisable to satisfy any claim
which Gary van der Merwe may have against Candice van der
Merwe in
respect of funds made available to her at his instance;
(iii)
alternatively, that Candice van der Merwe may, in terms of s 182 or s
183 of the Act, be held jointly and severally liable
for the tax
debts of Gary van der Merwe by virtue of her participation in the
receipt and further handling of the sum of R142 901 673
previously mentioned.’
But
paragraph 5(b) is, in truth, an explanatory note and ought not to
have formed part of the order.
[7]
After the grant of the order by Rogers J, the applicant alone chose
to anticipate the return day, with the result that SARS’
application in relation to her proceeded separately from the other
respondents.
In her answering affidavit,
she explained her acquisition of the two vehicles and this large sum
of money as follows:
‘
12.
When I was 15 I had met Ryan Hignett (“Hignett”). He
books models to travel to the Seychelles (and possibly other
destinations) to be in attendance at such resorts. I was too young at
that time to travel and work abroad on my own. When I was
19 years
old he contacted me and asked me if I was interested in travelling to
the Seychelles for this work. I replied in the affirmative.
He then
contacted Ice Models on my behalf for this purpose.
13.
In 2012 I was contracted th[r]ough Ice Models to travel to the
Seychelles to the Plantation Club on Mahé Island.
14.
The Plantation Club is a private resort in the Seychelles which is
owned and frequented by some of the richest private individuals
in
the world. They include multi US dollar billionaires for whom money
is no object. This type of resort is the playground of the
super
wealthy where they can relax in total privacy away from the
intrusions that normally accompany their lifestyles such as paparazzi
and constant security threats due to their extreme wealth and status.
Privacy and more importantly security is paramount to these
persons.
For this reason only people who have been vetted and security checked
are allowed at the resort. It often poses a security
risk should it
be public knowledge that a specific high profile individual is at a
specific location. It is the norm for lavish
parties and events to be
held at the resort. Such parties and events will often feature
celebrity entertainers or disc jockeys
with international acclaim.
Models from only the trusted agencies are routinely flown in from all
over the world to lend a sense
of glamour and exclusivity to these
events and by definition the resort.
15.
Models such as myself who are employed at the Plantation Club are
prohibited from taking photographs or disclosing the identity
of any
persons who they meet at the resort. When we arrive we are picked up
in a bus. Our passports are taken from us and only
returned when we
leave. If you are found taking a photograph, your contract is
terminated and you are sent home.
16.
On my first trip to the Seychelles from 13 October to 17 October 2012
I got on very well with the persons I met at the private
resort.
While I cannot be certain as to the reasons for this, I suspect that
it included the following factors: I have a very healthy
lifestyle
and I do not smoke at all or drink alcohol other than in negligible
quantities on social occasions and I follow a strict
exercise regime.
I have also been told that I have a very engaging personality.
17.
This resulted in me being booked through Ice Models (Ice Genetics
section) to travel to the Seychelles on subsequent occasions.
18.
The trips so far for the above mentioned purpose have been over the
following dates:
.
. .
19.
The initial request for me to travel to the Seychelles came through
Ice Models.
20.
I travelled economy class on the first two trips. Thereafter I was
elevated to travelling business class and then first class
(when
available). All travel arrangements were made by Ice Models and they
e-mailed the airline tickets to me, sometimes on notice
of a few
hours.
21.
As previously mentioned, I am specifically not in any circumstances
entitled to name any of the persons who I meet at the resort
or what
events take place (famous entertainers are sometimes flown in).
22.
During my trip to the Seychelles from 9 to 23 March 2013, one of the
topics of conversation which came up was cars that I liked.
I made no
secret of the fact that my dream car is an Audi R8. I even had a
picture of one on my cell phone.
23.
When I returned to Cape Town after the March 2013 trip I was involved
in a car accident in which the car I was driving was written
off. I
was also injured (sprained ankle and abrasions). My cell phone was
damaged (the screen was cracked) and I did not have a
car to drive.
Arising out of this I was very traumatised and discussed the incident
with numerous people including persons with
whom I have become
friendly while I have been in the Seychelles.
24.
A few days later I was thrilled to receive a phone call from a
salesman by the name of Jacques Taljard at the V&A Waterfront
Audi dealer who told me to come to the dealer to fetch my car. I went
to the Audi dealer with my mother, Monique van der Merwe
and was
presented with an Audi R8 Spyder which Mr Taljard told me had been
paid for in cash and it was already registered in my
name. . . .
25.
Just before I received the car, I also received two brand new cell
phones via courier (iPhone 5 and Z10 Blackberry, one cell
phone with
international roaming) which had already been paid for and which I
currently use on an unlimited basis, including international
use
anywhere in the world – and I have not had to pay one cent at
all for the use thereof.
26.
Notwithstanding the fact that I now had an Audi R8, in June 2013 I
was given a Land Rover Evoque. Again, I did not pay anything
at all
for this vehicle. . . .
27.
Earlier this year a number of my friends whom I had met in the
Seychelles came on a trip to Cape Town. In the course of my chatting
with them we spoke about different areas in Cape Town and I said that
when I start looking for a house it will be in the Camps
Bay,
Clifton, Fresnaye area.
28.
It was suggested to me that I look for a house in one of those areas
which I liked because I would receive funds to pay for
it. Price was
not mentioned. I looked at about 30 houses in areas such as Camps
Bay, Bantry Bay, Clifton and Fresnaye. I then saw
50 Ave St
Bartholomew in Fresnaye with Jackie Rosenberg of Pam Golding
Properties. I loved the property. The asking price was R110
million
which I communicated to my friends with whom I had discussed buying a
property in Cape Town.
29.
Subsequent thereto, and as stated by the Applicant, the amount of
US$15.3 million (“the funds”) was remitted to
me by Mr
Mohamed Rawas (“Rawas”). It is this amount which forms
the subject matter of and catalyst for the bringing
of this
application.
30.
As I have no commercial or business experience I requested my father,
who is an experienced businessman, to assist and represent
me in
dealing with the funds and the negotiations for the purchase of the
property and the acquisition thereof.
31.
Arising out of the negotiations by my father on my behalf I bought
the property and it has been transferred to me.’
[8]
The matter eventually came before Savage AJ, who, on 28 February 2014
confirmed the whole of the provisional order granted by
Rogers J with
costs including the costs of three counsel. As paragraph 5(b) ought
not have been included in the provisional order,
it should not have
been confirmed by the learned judge. For reasons that are entirely
unclear, Savage AJ did not enter into the
question of the appointment
of the curator sought by SARS. As a result, SARS initially attempted
in terms of Uniform rule 42 (alternatively
the common law) to have
the order of Savage AJ corrected, on the basis, so it was suggested,
that the learned judge had erred in
the formulation of her order. Its
attempt to have the order rectified came to nought because as SARS’
attorney explained
in a letter on 27 March 2014:
‘
SARS’
advice is that the court in so acting rendered itself
functus
;
the omission was (as now explained by the court) not inadvertent, -
as SARS had pleaded and argued from the outset – but
simultaneously intended by the court and (with respect)
misconceived.’
The
letter continued:
‘
4.
The parties have endeavoured in these circumstances to resolve the
complex situation which has arisen, and to avoid further papers,
hearings, rulings, and costs.
5.
It has been agreed as between SARS and Ms van der Merwe accordingly
that:
5.1
SARS will withdraw its application to correct the orders of 28
February (and pay Ms van der Merwe’s costs in relation
to that
application)
5.2
An order will be sought by consent granting leave to appeal to Ms van
der Merwe as sought, and leave to SARS to cross-appeal
in relation to
the exclusion from the court order of the ancillary preservation
orders comprising annexure “B” to the
notice of motion.
6.
We attach in this regard:
6.1
The draft order to be sought by consent;
6.2
A formal notice of cross-appeal to comply with the requirements of
Rule 49(1)(
b
);
6.3
SARS’ notice of withdrawal of the correction application, in
terms of Rule 41(1).’
[9]
On 28 March 2014, the draft order was made an order of court, in
terms of which leave was granted to: (a) the applicant to appeal
to
this court against the grant by the High Court of the preservation
order; and (b) SARS to cross-appeal against the failure of
the High
Court to appoint the curator sought by it. However, the applicant
failed to take any steps whatsoever to prosecute her
appeal with the
result that it lapsed.
[2]
On 21
May 2014 and on the basis that it was now
dominus
litis
in the appeal, SARS served and filed its notice of appeal. On 9 June
2014 and in terms of rule 9(a) of this court’s rules,
SARS’
attorney requested the applicant’s then attorney, Cornel
Stander, to consent to documents that were considered
to be
irrelevant, being excluded from the appeal record. That letter went
unanswered. On 17 July 2014, SARS’ attorney repeated
that
request to Deon Perold and Associates, who had since placed
themselves on record as the applicant’s new attorney. On
25
July 2014, SARS’ attorney recorded, with reference to a
telephonic discussion held with Mr Perold three days earlier,
that
the applicant did not agree to SARS’ proposal ‘to omit
unnecessary material from the appeal record’. The
letter
continued ‘your instructions, as we understand them, are that
the entire contents of the court file . . . –
exceeding 3 000
pages – are to form part of the record . . . despite the
limited nature of the appeal. Kindly now provide
us with your
client’s formal response in compliance with SCA Rules 8(9)(b)
and 8(9)(c) . . . to omit unnecessary parts of
the papers from the
appeal record’. The next day Mr Perold responded ‘we
confirm that we have once again obtained
our client’s further
instructions herein. Our client is in agreement that the majority of
the record can be omitted as per
you[r] suggested index provided’.
[10]
On the basis of the agreement eventually reached, the record was
finalised by SARS and filed with the registrar of this court
on 26
August 2014. It was only thereafter on 29 August 2014 that Mr Perold
formally enquired whether SARS would be willing to ‘agree
to
the late filing of our client’s Notice of Appeal’. By
this stage some four months had expired since the applicant’s
appeal had lapsed. On 2 September 2014, Mr Perold was informed that
SARS would not accede to the applicant’s request. In
any event
in terms of rule 7(4) of this court’s rules, which provides:
‘
[t]he time limit for lodging of the
notice of appeal may be extended by written agreement of all the
parties to the appeal for a
period not exceeding a further month’,
SARS was precluded from consenting to the
late filing of the applicant’s notice of appeal inasmuch as the
further month envisaged in the rule had
long since elapsed
. Almost the entire month
of September was to pass before an application for condonation was
served on SARS’ attorney by email
on 30 September 2014. That
application, however, was not properly served or filed thereafter.
These and other defects were alluded
to in SARS’ heads of
argument filed on 7 October 2014. In the meanwhile on 3 October 2014
and notwithstanding the earlier
consensus in respect of the appeal
record, the applicant’s attorney purported, unilaterally and
without the leave of this
court, to file a supplementary record
consisting of a further 126 pages. Eventually, on 10 October 2014 a
formal condonation application
was served and filed. Also on that
date heads of argument were filed in anticipation of the applicant’s
‘application
for condonation of the late delivery of [her]
notice of cross-appeal being granted’.
[11]
Condonation, as pointed out in
Uitenhage
Transitional Local Council v South African Revenue Service
[2003] ZASCA 76
;
2004 (1) SA 292
(SCA) para 6, ‘is not to be
had merely for the asking’. Factors which usually weigh with
this court in considering
an application for condonation include the
degree of non-compliance, the explanation therefor, the importance of
the case, a respondent’s
interest in the finality of the
judgment of the court below, the convenience of this court and the
avoidance of unnecessary delay
in the administration of justice
(
Dengetenge Holdings
(Pty) Ltd v Southern Sphere Mining and Development Company Ltd
[2013]
ZASCA 5
;
[2013] 2 All SA 251
(SCA) para 11).
[12]
In
Uitenhage Transitional Local Council
it was stated (para
6):
‘
One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be had
merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so
as to enable the Court
to understand clearly the reasons and to assess the responsibility.
It must be obvious that, if the non-compliance
is time-related then
the date, duration and extent of any obstacle on which reliance is
placed must be spelled out.’
What
calls for an explanation is not only the delay in the timeous
prosecution of the appeal, but also the delay in seeking condonation.
An appellant should, whenever she realises that she has not complied
with a rule of this court, apply for condonation without delay
(
Commissioner for Inland Revenue v
Burger
1956 (4) SA 446
(A) at 449G-H).
[13]
The application for condonation was brought by Mr van der Merwe on
behalf of the applicant. It was he who deposed to the founding
and
replying affidavits in the application. He stated in the founding
affidavit:
‘
22.
As a result of the granting of the Rogers Order, i.e. that by
agreement between the parties, the matter was settled on the basis
that a
curator bonis
would be appointed only in respect of the 14
th
Respondent, I believed that no further steps would be taken by SARS
in the prosecution of the Cross Appeal in respect of the Savage
Judgment. In essence I believed that the appeal was no longer of
relevance because the issues in regard to the funds dealt with
therein and in the main application would be dealt with in the High
Court action. I sought a legal opinion on this from my attorney
at
the time, Cornel Stander, whose advice to the
Respondent/Cross-Appellant was not to proceed with the prosecution of
the Appeal.
For this reason Respondent/Cross-Appellant’s Notice
of Appeal was not filed within the prescribed time limits.
23.
At the time of the granting of the leave to Appeal, Deon Perold of
Deon Perold and Associates Incorporated (“Perold”)
and
Cornel Stander from Cornel Stander Attorneys (“Stander”)
were the attorneys of record for our various legal matters.
As stated
above, Stander was the attorney of record for the
Respondent/Cross-Appellant in this matter (“the Appeal”).
24.
Due to the financial constraints placed on us we have had to
terminate the services of Stander and consequently Perold has had
to
take over all the matters with the concomitant administrative and
time constraints that are associated with taking matters in
midstream. Not only was Perold burdened with taking over all the
matters that Stander was dealing with but he was also detained
with
the unbundling of a failed merger with another firm at short notice
and had to relocate his practice on the 2 June 2014. This
and the
associated challenges such as the moving of telephone lines, internet
and infrastructure had an adverse effect on the administration
of the
matters.
25.
As a result of the legal advice that I had received from Stander in
respect of the Appeal, namely that the Respondent/Cross-Appellant
would not continue with the prosecution thereof, I did not inform
Perold of the pending Appeal or our decision not to proceed therewith
as I did not think it was relevant at that time.
26.
SARS filed their notice of Appeal on Stander on the 23 May 2014.
Perold only started acting for the Respondent/Cross-Appellant
in this
matter in and during the middle of June 2014.
27.
As a result the question of the Appeal being prosecuted by SARS only
became an issue during the preparation of the Release of
Funds
application (under this case number), which was initiated by the
Respondent/Cross-Appellant towards the end of June 2014.
28.
When Perold became aware of the Appeal issue he suggested that the
Respondent/Cross-Appellant obtain a second opinion on whether
or not
to proceed with the Cross Appeal as he was of the view that the
Respondent/Cross-Appellant should proceed therewith.
29.
Towards the end of June an opinion was obtained from Counsel and it
was decided that the Respondent/Cross-Appellant would proceed
with
the prosecution of the Cross Appeal. It was only then that Perold
commenced attending to the Cross Appeal and filed the
Respondent/Cross-Appellant’s
Notice of Appeal on the 3 of July
2014.
30.
The Respondent/Cross-Appellant’s however erroneously filed a
Notice of Appeal, which should in fact have been a Notice
of Cross
Appeal as SARS had already filed their Notice of Appeal. Furthermore,
the said Notice of Appeal was served on the
Appellant/Cross-Respondent
and only filed at the High Court and not
at the above Honourable Court. . . . That notice also did not set out
the terms in respect
of which the Order appealed against was sought
to be varied and did not attach a certified copy of the Order in
terms of which
leave to appeal was granted. Annexed hereto and marked
“
V5a
” is a fresh notice correcting the aforegoing
aspects which will be served and filed.
.
. .
38.
As soon as was reasonably possible after reaching a decision to
proceed with the Appeal, the Cross-Appellant, whose legal
representatives
believed at that time was the Appellant, filed her
Notice of Appeal as referred to above. It is respectfully submitted
that this
was a clear manifestation by the Respondent/Cross-Appellant
of her intention to proceed with the prosecution of the Cross Appeal.
39.
As stated above and due to the urgency of the other litigation the
Respondent/Cross-Appellant was only now in a position to
prepare the
application for condonation. This was done on the basis of her being
the Appellant. Her Bloemfontein correspondent
attorneys suggested
that she should be referred to as Respondent/Cross-Appellant and
confirmed this with the Registrar of this
Court. This affidavit and
her heads of argument and practice note therefore had to be amended
to correctly reflect her as the Respondent/Cross-Appellant.
40.
It is respectfully submitted that Respondent/Cross-Appellant’s
non-compliance with the Rules of this Honourable Court
has not
prejudiced SARS – indeed, it is proceeding with its Cross
Appeal in the very same matter.’
[14]
That affidavit was deposed to on 8 October 2014. Despite the benefit
of SARS’ heads of argument, it still mirrored the
earlier
defective condonation application without purging the identified
defects. The founding affidavit does not explain why the
application,
which was evidently ready on 30 September 2014, was not formally
served and filed then or why it was held in abeyance
until after
SARS’ heads of argument had been filed. The application was
launched approximately: (a) five months after the
applicant’s
notice of appeal should have been filed; (b) three months after the
applicant’s notice of appeal was belatedly
filed in the High
Court; (c) three months after Mr van der Merwe, had stated in an
affidavit filed on 2 July 2014 in support of
an urgent application
for the release of certain funds that were subject to the
preservation order that the applicant’s
‘Notice of
Appeal was served out of time and the necessary condonation
application will be sought’; and (d) three and
a half weeks
after SARS had intimated that it would not consent to the late filing
of the applicant’s notice of appeal.
[15]
On Mr van der Merwe’s own version by 23 May 2014, when SARS
filed its notice of appeal, they knew that SARS was proceeding
with
the appeal. And by the end of June of that year, a firm decision had
allegedly been taken to prosecute the applicant’s
appeal. And
yet a further three months was to expire before the application for
condonation was lodged with the registrar of this
court. Despite
professing to be fully aware of the facts and circumstances leading
up to the application, Mr van der Merwe forbears
revealing the date
when: (a) his erstwhile attorney, Mr Stander, advised that it was not
necessary to prosecute the appeal; (b)
Mr Stander’s mandate was
terminated; (c) in June Mr Perold began to act for him; (d) in June
when Mr Perold advised him not
to prosecute the appeal; (e) counsel
was instructed to provide a second opinion on whether to proceed with
the appeal; and (f)
in June the second opinion from counsel, advising
that the appeal should be prosecuted, was received. This demonstrates
an obvious
lack of attention to matters that plainly called for an
explanation and evidences a failure to fully and candidly enlighten
the
court, as an applicant in a matter such as this was obliged to do
(
Dengetenge Holdings (Pty) Ltd v
Southern Sphere Mining and Development Company Ltd
above). It follows that the explanation proffered is woefully
inadequate and I thus find it impossible to hold that the delay in
bringing this application has been explained in a manner which is
even remotely satisfactory.
[16]
Moreover, the explanation, such as it, fails at virtually every
level. First, Mr van der Merwe attempts to excuse the delay
by
invoking advice from his attorney, Mr Cornel Stander. It is
well-established that a litigant is not permitted to invoke advice
which is demonstrably unreasonable. As it was put in
S
v Longdistance (Natal) (Pty) Ltd
[1989]
ZASCA 129
;
1990
(2) SA 277
(A) at 283I-J, ‘
legal
advice has no magic which justifies the recipient in jettisoning
common sense’
.
Particularly where
such
advice
,
as here
,
is at odds with previous advice.
[3]
Second, Mr van der Merwe suggests that he ‘believed’
(
significantly,
it is his belief relied upon and not that of his daughter - the
litigant in the matter)
that
because of the appointment of a
curator
bonis
in respect of the fourteenth respondent, SARS would not take any
further steps in the prosecution of its cross-appeal. But, there
is
no scope for this mistaken belief, because SARS did timeously and
diligently prosecute its appeal. And, acting consistently
with its
clear intention to do so, SARS’ attorney called upon the
applicant’s attorney to comply with this court’s
rules.
All of that postdated the order on which Mr van der Merwe pins his
‘belief’. Third, Mr van der Merwe seeks to
make the point
that they have been very busy with other litigation in the High
Court. This is no excuse at all. Rule 7(3) of this
court’s
rules simply requires that a notice of appeal be filed which: (a)
states which part of the judgment or order is appealed
against; (b)
states the particular respect in which the variation of the judgment
or order is sought; and (c) is accompanied by
a certified copy of the
order granting leave to appeal. Nowhere does Mr van der Merwe provide
an explanation for failing (on a
very generous approach to him) since
3 July 2014 to file a simple notice of appeal. The notice of appeal
that was eventually filed,
reads:
‘
Be
pleased to take notice that Cross-Appellant intends to cross appeal
against the order and judgment granted by Her Ladyship Acting
Justice
Savage handed down on 28 February 2014 in the Western Cape Division
of the High Court, Cape Town.’
Take
notice further that the cross appeal is against the whole of the
order as referred to above.
Take
notice further that a certified copy of the court order granting
leave to appeal and cross appeal to this court is attached
marked
‘A’.
This,
one imagines, could hardly have taken more than an hour to prepare.
What is more, a host of documents, most of which had already
formed
part of the appeal record already filed by SARS, were rather
indiscriminately and unnecessarily annexed to Mr van der Merwe’s
affidavit. Those included: the judgment of Savage AJ; the order of
Rogers AJ dated 19 March 2014; the respondent’s application
for
leave to appeal filed with the High Court on 7 March 2014; the notice
of application for leave to cross appeal filed by SARS
with the High
Court on 27 March 2014; the order of Savage AJ granting leave to
appeal (to the respondent) and (cross appeal to
SARS) on 28 February
2014; and the respondent’s notice of appeal filed with the High
Court on 3 July 2014.
[17]
Mr van der Merwe’s affidavit also did not identify any of the
grounds sought to be advanced.
It simply
attached the application for leave to appeal in the High Court.
Nor did it address the prospects of success.
As
was stated in
Rennie v Kamby Farms (Pty)
Ltd
[1988]
ZASCA 171
;
1989 (2) SA 124
(A) at 131E it
is advisable, where application for condonation is made, that the
application should set forth briefly and
succinctly such
essential information as may enable the court to assess the
appellant's prospects of success. This was not done
in the present
case: indeed, the application does not contain even a bare averment
that the plaintiff enjoys any prospect of success
on appeal
(
Moraliswani v Mamili
[1989] ZASCA 54
;
1989
(4) SA 1
(A) at 10E). The only reference to prospects of success is
contained in para 20 of Mr van der Merwe’s affidavit, which
simply
states that Savage AJ was satisfied that ‘Appellant’
had reasonable prospects of success.
[18]
SARS
complains that it was precluded from advancing full legal argument in
its heads of argument, because the condonation was brought
at a time
which compelled it to file its heads of argument before the papers in
the condonation application had closed. The condonation
application
was ultimately filed a mere five days before SARS’ heads of
argument were due. Rule 12(2) of this court allows
SARS a month to
respond to an application for condonation. The unreasonable lateness
by the applicant in bringing the condonation
application a mere five
days before SARS’ heads of argument were due, rendered that
time period all but illusory. It would
constitute a departure from
procedural fairness and the ordinary practice of a court of appeal
such as this to countenance a would-be
appellant withholding its
condonation application until as late as occurred here. Not only is
the conduct of the applicant prejudicial
to a party in the position
of SARS - the applicant first failed to lodge a notice of appeal in
the High Court in time and then
repeated that remissness before this
court
[4]
- but to tolerate the
type of conduct encountered here would be prejudicial to the
administration of justice, the integrity of
any appeal process and to
the functioning of our highest courts of appeal.
[19]
In applications of this sort the prospects of success are in general
an important, although not decisive, consideration. It
has been
pointed out (
Finbro
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein
[1985]
ZASCA 71
;
1985
(4) SA 773
(A)
at
789C) that the court is bound to make an assessment of an applicant's
prospects of success as one of the factors relevant to
the exercise
of its discretion, unless the cumulative effect of the other relevant
factors in the case is such as to render the
application for
condonation obviously unworthy of consideration. I have not dealt
with the applicant's prospects of success on
appeal because, in my
view, the circumstances of the present case are such that we should
refuse the application for condonation
irrespective of the
prospects of success.
This
court has often said that in cases of flagrant breaches of the rules,
especially where there is no acceptable explanation therefor,
the
indulgence of condonation may be refused whatever the merits of the
appeal.
[5]
This applies even
where the blame lies solely with the attorney.
[6]
Here
the
breaches of the rules are of such a nature and the explanation
offered so unacceptable and wanting that condonation ought not,
in my
view, to be granted,
irrespective
of the applicant’s prospects of success, which were in any
event poor.
It
remains to add that the conduct encountered here is deserving of an
order of costs on the punitive scale. The conduct of the
applicant
and her father throughout has generated costs that should not have
been incurred. Those costs should plainly not be borne
by compliant
taxpayers. It follows that the award of costs on the scale as between
attorney and client is justified in this case.
[20]
Turning to SARS’ appeal: It is confined to a consideration of
whether the order of the High Court should, as well, have
made
provision for the appointment of a
curator bonis
. In terms of
s 163(7)
(b)
of the TAA a court granting a preservation order,
may make any ancillary orders regarding how the assets must be dealt
with including
appointing a
curator bonis
in whom the assets
must vest. In the somewhat analogous context of financial service
regulation, Wallis JA stated in
Executive Officer, Financial
Services Board v Dynamic Wealth Ltd
[2011] ZASCA 193
;
2012 (1) SA
453
(SCA) in para 6:
‘
Provided
the court is satisfied that the registrar’s concerns are
legitimate and that the appointment of a curator will assist
in
resolving those concerns it will ordinarily be appropriate to grant
an order.’
[7]
This
approach is consistent with the Constitutional Court’s judgment
in
Fraser v Absa Bank Ltd
[2006]
ZACC 24
;
2007 (3) SA 484
(CC) para 12, which held in the comparable
scenario of restraint orders under the Prevention of Organised Crime
Act 121 of 1998
(POCA) that
‘
[t]he
effect of a restraint order is to place the defendant’s
property beyond his or her control and into the hands of a
curator
bonis
pending the outcome of the
criminal proceedings.’
The
Constitutional Court made that observation in the context of s 26 of
POCA. Section 26(1) of POCA provides that the National
Director of
Public Prosecutions ‘may by way of an
ex
parte
application apply to any
competent High Court for an order prohibiting any person . . . from
dealing in any manner with any property
to which the order relates’.
Section 28(1)
(a)
,
the operative triggering provision for the exercise of that power,
reads:
‘
[w]here a High Court has made
a restraint order, that court may at any time appoint a
curator
bonis
. . .’
This
statutory formulation is for all material purposes identical to s
163(7)
(b)
.
[21]
SARS sought the appointment of a
curator
and stipulated his powers in its
application. Its founding affidavit made plain that the purpose of
the application was to apply
‘for an order in terms of s 163 of
the [TAA], for the preservation of the [applicant’s] assets and
the appointment
of a
curator bonis
to take control thereof in order to secure the collection of tax.’
The founding affidavit went on to identify the purpose
for which SARS
sought the appointment of a curator as being to investigate ‘the
whereabouts of Mr van der Merwe’s assets
and the assets of the
other respondents’.
[22]
According to the applicant, of the approximately R142 million
received:
‘
41.
R98 578 030,82 was paid to purchase the three immovable
properties (purchase of two directly and one by purchase of
the
shareholding in Promotrade), as dealt with above.
42.
R25 000 000,00 was loaned to Lucra Movable (Pty) Ltd
(“Lucra”), now known as Bank on Assets Holdings (Pty)
Ltd. . . .
42.5.
Furthermore:
42.5.1.
I knew that Zonnekus Mansion (Pty) Ltd (“Zonnekus”) had
been placed under an order of provisional liquidation
at the instance
of Nedbank Limited.
42.5.2.
The shareholding in Zonnekus is held by the Eagles Trust, a family
trust of which my sister, my brother (Richard van der
Merwe) and I
are the sole beneficiaries.
42.5.3.
I was advised that this provisional order was about to be made final
which would have meant the loss of the company and
its assets to the
detriment of myself, my brother and my sister. I have a very good
relationship with my brother and sister and
was very happy to be able
to assist them in addition to myself.
42.5.4.
It was an added bonus of the agreement with Lucra that it would
purchase the Zonnekus Mansion (one of the five properties
owned by
Zonnekus) from Zonnekus for R10 million as R6 187 260,00
million of these funds could then be used to pay Nedbank
which would
(and did) result in the discharge of Zonnekus from provisional
liquidation.
42.5.5.
Lucra paid Nedbank R6 187 260,00 million for this purpose
(which included the bond cancellation costs). . . .
I understand that
a further R2 million was paid to Zonnekus and the balance still
remains to be paid.
43.
In regard to the balance:
43.1.
R7 900 000,00 and R5 000 000,00 was paid to
Zonnekus on 27 May 2013 and 19 August 2013 respectively, making
a
total of R12.9 million, which was credited to loan account in my
favour.
43.2.
The balance in the approximate amount of R5 million remained in my
account.
43.3.
The funds in the above two sub-paragraphs were to be used for the
purposes set out below.
43.4.
The further funding required in relation to the properties was
anticipated to be in the region of R11.5 million to R12.5 million.
The aforesaid loan account is debited as and when expenditure on the
properties is incurred.
43.5.
In addition, Zonnekus required funds to settle certain creditors and
for working capital and I was and am happy to assist
by allowing
Zonnekus to use the funds held by it advanced by me on loan account
as and when required. It went without saying that
I would retain some
of the funds and have access to the loan account for my own personal
purposes as and when necessary.
.
. .
45.
All expenses in regard to the properties were to be (and were) paid
through Zonnekus. Zonnekus has effected and is in the process
of
effecting improvements to the aforesaid properties purchased, payment
of transfer costs and other expenses in respect thereof
(including
R260 445.14 and R508 669.14 for transfer duty and costs in
respect of erven 1990 and 1991, as appears from
the relevant
annexures hereto). I provided the funds for these purposes (being the
R12.9 million referred to above).
46.
In regard to the improvements to the properties to be effected by and
paid for by Zonnekus:
46.1.
There is a lot of water damage at the properties which requires to be
rectified.
46.2.
There is a gym which still has to be completed (it is approximately
150 m²).
46.3.
R2.3 million has been spent for gym equipment (R1.15 million has been
paid already). . .
46.4.
One of the houses on the properties is in a derelict state and it is
being rebuilt. Three bedrooms are being added on and
parking is being
added on for 8 cars.
46.5.
Work in respect of the aforegoing has been ongoing since the
beginning of July 2013. Contractors, suppliers and labourers
have
been and have to be paid.
47.
I also refer to annexure “CV24” hereto which is a
schedule which my father has prepared setting out details of most
of
the payments made to date from the R12.9 million, with the actual
dates of payment as well as those expected and estimated to
be made
with the expected dates of payment. . . .
47.7.
The fact of the Order has the effect that the building work is about
to ground to a halt because contractors, suppliers and
labourers
cannot be paid. It is urgent that these expenses and the ongoing
expenses in respect of the improvement to the property
are paid.
48.
The remainder of the funds, R4,450 million, is in my account number
374170991 at Standard Bank. I have ongoing expenses which
have to be
paid from this account in addition to what is set out above. For
example, rates, taxes, water and electricity have to
be paid. The 4
domestic servants, 4 gardeners and groundsmen and 3 security guards
have to be paid.’
[23]
On 10 June 2013, and shortly after the receipt of the moneys, the
Moondance Trust (the Trust) was established. The applicant
is the
founder of the Trust and in terms of the trust deed she and her
father are two of the three trustees. On 19 June 2013, two
written
agreements were concluded between the Ocean View Trust (as seller)
and K2013087647 (South Africa) (Pty) (Ltd) (K20130876470)
for the
purchase of Erven 1990 and 1991 Fresnaye for the total sum of R 11
million. Mr Van der Merwe represented both K2013087647
and the Trust,
the latter having bound itself as a surety and co-principal in terms
of each of those agreements. Also on that date
the Trust concluded a
written agreement with the Hyde Park Trust in terms of which it
acquired the entire issued share capital
and the credit loan account
of Promotrade Projects Fifteen (Pty) Ltd (Promotrade) for the sum of
R 86,5 million. Clause 3.4 of
the agreement recorded that
‘
the
consideration . . . has been calculated by taking into account the
following values agreed to in respect of the assets of the
Company:
3.4.1
Movables as set out in Annexure A hereto – R10,500.000.00 (Ten
Million Five Hundred Thousand Rand);
3.4.2
Property – Erf 1917 Fresnaye – R76,000,000.00 (Seventy
Six Million Rand)’
Once
again Mr Van der Merwe represented the Trust. The applicant was
appointed a director of Promotrade with effect from 19 June
2013 and
the next day she was appointed a director of K2013087647. SARS
contends that the various transactions and Mr van der Merwe’s
clear involvement in them, form part of a
modus
operandi
intended to hide assets
realisable for purposes of satisfying his extensive tax debt to SARS
and that the full facts regarding
these transactions remain to be
investigated.
[24]
The applicant was evidently ‘happy’ to allow ‘Zonnekus
to use the funds held by it advanced by me on loan
account as and
when required.’ She further reveals that she engaged Zonnekus
to effect what she styles ‘improvements’
in the amount of
R12.9 million to the property acquired with the funds and that it was
‘convenient’ to operate through
Zonnekus’ bank
account. Mr Van der Merwe’s mother is the sole director of
Zonnekus, but he describes himself as the
‘general manager’
of Zonnekus and
states that he ‘run[s]
[its] affairs’.
On the applicant’s
own version, significant sums passed through the Zonnekus bank
account for which Mr van der Merwe held
exclusive signing powers and
over which he had free access. Further on the applicant’s
deposed version the R110 million property
is urgently in need of
maintenance. As it was put, albeit once again in the context of POCA,
by Streicher JA in
Mngomezulu v National
Director of Public Prosecutions
[2007]
ZASCA 11
;
[2007] 4 All SA 979
(SCA) para 20:
‘
In
terms of the restraint order sought the appellants were prohibited
from dealing with the restrained property which constituted
almost
the entire estate of the appellants. The nature of the restrained
property is such that it requires administration. The
restraint order
therefore necessitated the appointment of a
curator
bonis
to administer the property and
the conferral on him of the powers referred to.’
The
applicant also complains about payments which are required to be made
for inter alia gym equipment. She says that if payment
is not made,
the prejudice to her is ‘self-explanatory’. It is
‘urgent’, so she says, that ‘these
expenses and the
ongoing expenses in respect of the improvement to the property are
paid.’ The schedule of these payments,
according to her, has
been prepared by her father. He is thus closely and intimately
involved in managing those funds. Indeed there
is not a single
financial transaction involving funds, ostensibly the property of the
applicant, that has not been directed by
her father. The apparent
situation is that he does whatever he pleases with the funds and she
acquiesces in his decisions.
[25]
Furthermore, as his approach to this litigation reveals, Mr van der
Merwe has a strong presence in the applicant’s affairs.
He
asserts a mandate to conduct the litigation on her behalf, but has
chosen not to disclose the full details of the mandate. Similarly,
Mr
van der Merwe holds a power of attorney from his mother to run
Zonnekus Mansions (of which she is the sole director) as he sees
fit.
Indeed, Mr van der Merwe himself confirmed that his mother’s
appointment as director of Zonnekus Mansions was a consequence
of
judgments taken against him. The truth however appears to be that he
controls Zonnekus Mansions and that he does so through
his mother to
escape judgment creditors. Mr van der Merwe also appears to control
the affairs of his daughter. She provided his
contact details in the
application to sell the foreign currency. She furnished Standard Bank
with his cellular number, address
and e-mail address. As with
Zonnekus Mansions’ bank account, Mr van der Merwe also held
signing powers in respect of the
account into which the R140 million
was deposited. Thus at the very least the applicant allows her
accounts to be used by her father
(or cannot prevent him from doing
so). It is evidently Mr van der Merwe’s facility to control or
influence the transfer of
the funds between accounts for which he
holds signing powers – which SARS invoked in its founding
affidavit in support of
appointing a curator. SARS asserted that it
may ‘under the circumstances [be] undesirable to leave Mr van
der Merwe in control
of the respondent’.
[26]
Mr van der Merwe’s evident involvement of family members and
his obviously close relationship with the applicant coupled
with the
extraordinary wealth which she suddenly acquired (allegedly as a
gift) requires investigation. It thus seems imperative
that a curator
investigate how and on what basis those funds were effectively placed
at the disposal of Mr van der Merwe and whether
and how he has
disposed of the funds. It follows that
SARS’
application for the appointment of a
curator
bonis
should have succeeded before
Savage AJ and that its appeal in that regard must succeed.
[27]
The order sought in the court below included prayers: (a) for the
appointment of a retired judge as a mediator (and related
relief);
and (b) authorising the curator to dispose of the applicant’s
property in satisfaction of the tax debt. That relief
was not
persisted with before us. For the rest the order (duly amended to
operate only as against the applicant) that issues in
respect of the
appointment and powers of the
curator
bonis
substantially mirrors that sought
before the High Court. On 8 November 2013 certain assets subject to
the provisional preservation
order of Rogers J, including the
applicant’s Standard Bank account number 374170991, were
released from attachment. The proposed
order must accordingly reflect
this. It, as well, must exclude paragraph 5(b) of the provisional
order of Rogers J, which, for
the reasons given earlier, ought not to
have been confirmed by Savage AJ. Notwithstanding the applicant
failing in her quest to
assail the judgment of the court below on
appeal, it may conduce to greater clarity to simply set aside the
order of that court
and replace it with the one set out hereunder.
[28]
In the result:
(a)
The application for condonation by Ms Candice-Jean van der Merwe is
dismissed with costs including those of two counsel on the
attorney
and client scale.
(b)
The appeal by SARS is upheld with costs including those of two
counsel.
(c)
The order of the court below is set aside and replaced with the
following:
‘
1.
Save for the exclusion of the “Standard Bank Marketlink account
374170991 (Milnerton)”, paragraph 5(a) of the provisional
order
granted on 30 August 2013 against Ms Candice-Jean van der Merwe (the
second respondent) is confirmed.
2.
Mr Cloete Murray of Sechaba Trust (Pty) Ltd is appointed to act as
curator bonis
in whom the right, title and interest in all the
assets of the second respondent will vest, including, but not limited
to, any
shareholding, loan accounts, member’s interest,
moveable and immovable assets and funds held in bank accounts.
3.
Subject to the conditions and exceptions contained in this order,
save with the prior written consent of the applicant, which
consent
may not be unreasonably withheld, no-one except the
curator bonis
may deal with the second respondent’s assets.
4.
The
curator bonis
is authorised to immediately take control of
the second respondent’s assets.
5.
The
curator bonis
is authorised to take all steps necessary
to ensure the transfer of the shareholding and member’s
interests in the second
respondent’s name into the name of the
curator bonis
.
6.
Where shareholding and/or member’s interest vest in the
curator
bonis
as a result of this order, the
curator bonis
will
have all the powers of a registered shareholder of such shares and/or
of a member with such member’s interest as vested
in him,
including, but not limited to the power to hold shareholder meetings
and to remove and appoint directors.
7.
Any person having books and records or assets of the second
respondent in his/her possession, must, subject to what is provided
below, when this order comes to that person’s knowledge, notify
the
curator bonis
of that fact and hand copies of them to the
curator bonis
on demand, or within such time as the
curator
bonis
may allow.
8.
Save for personal effects, no person may remove any item from the
premises of any property owned or occupied by the second respondent,
without the permission of the
curator bonis
, which permission
may not be unreasonably withheld.
9.
The
curator bonis
is entitled, in order to give effect to this
order, to interview the second respondent, who is obliged to furnish
the
curator bonis
with full particulars within three days of
service of this order on her, of all her assets and how such assets
were acquired.
10.
The
curator bonis
is entitled, in order to give effect to this
order, to interview third parties identified by him and who may have
knowledge of
the whereabouts of the assets of the second respondent.
11.
All the above powers must be exercised by the
curator bonis
strictly in the interests of the second respondent and with the
objective of ensuring that the maximum value of the assets be
maintained and/or recovered.
12.
The powers of the
curator bonis
may be amended or terminated
on application by any interested party.
13.
All reasonable costs of the
curator bonis
occasioned in the
implementation of this order will be paid by the second respondent.
14.
The
curator bonis
will be liable for any damages caused by him
as a result of acting
ultra vires
or unreasonably in the
execution of his duties in terms of this order and the applicant is
responsible to ensure that no-one will
suffer damage as a result of
the
curator bonis
not having put up security or sufficient
security for compliance with his duties in terms of this order.
15.
The second respondent is ordered to pay the costs of the
application, such costs to include those of three counsel.’
_________________
VM
Ponnan
Judge
of Appeal
APPEARANCES:
For
Applicant for condonation: RWF MacWilliam SC (with him A Kantor)
Instructed
by:
Deon
Perold & Associates Inc., Cape Town
Webbers
Attorneys, Bloemfontein
For
Appellant: JJ Gauntlett SC (with him FB Pelser)
Instructed
by:
MacRobert
Incorporated, Cape Town
Claude
Reid Attorneys, Bloemfontein
[1]
Section
91(1)
(b)
of the ITA has since been repealed and replaced by
s 172
of the
Tax
Administration Act 28 of 2011
.
[2]
The applicant was required in terms of
rule 7(1)(b)
of the SCA rules
to file a notice of appeal with both the registrar of this court and
the court
a
quo
within one month of the grant of leave to appeal by Savage AJ. And,
in terms of
rule 8(1)
, to lodge six copies of the record of the
proceedings in the court
a
quo
within three months of the filing of her notice of appeal.
[3]
Applying
this court’s judgment in
Longdistance
,
it was held in
Ernst
& Young v Beinash
1999 (1) SA 1114
(W) at 1136G-H that “[w]here persistent
litigation is involved, a litigant is obliged to weigh the advice
given to him
and, in particular, to pay attention to his rate of
failure and compare it to the advice on which he has hitherto
relied”.
[4]
See
eg
Express
Model Trading 289 CC v Dolphin Ridge Body Corporate
[2014]
ZASCA 17
;
[2014] 2 All SA 513
(SCA) at para 10, where reference was
made to the compounding effect of a previous failure to comply with
the Rules of Court
by an applicant for condonation.
[5]
See
inter alia
Blumenthal
v Thomson NO
[1993]
ZASCA 190
;
1994 (2) SA 118
(A) at 121I
;
Ferreira
v Ntshingila
[1989]
ZASCA 149
;
1990 (4) SA 271
(A) at 281J-282A;
Moraliswani
v Mamili
supra
at 10F;
Rennie
v Kamby Farms (Pty) Ltd
1989 (2) SA 124
(A) at 131H-132A
;
P
E Bosman Transport Works Committee v Piet Bosman Transport (Pty) Ltd
1980
(4) SA 794
(A)
at
799;
Mbutuma
v Xhosa Development Corporation Ltd
1978
(1) SA 681
(A)
at
687A.
[6]
Tshivhase
Royal Council v Tshivhase; Tshivhase v Tshivhase
[1992]
ZASCA 185
;
1992 (4) SA 852
(A) at 859E-F.
[7]
Wallis JA was there dealing with
s 5(1)
of the
Financial
Institutions (Protection of Funds) Act 28 of 2001
, which provides:
‘The registrar may, on good cause shown, apply to a division
of the High Court having jurisdiction for
the appointment of a
curator to take control of, and to manage the whole or any part of,
the business of an institution.’