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[2016] ZAGPJHC 286
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Daag Investments CC and Others v Sheriff of Roodepoort and Others (2015/19426) [2016] ZAGPJHC 286 (14 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)Reportable:
No
(2)Of
Interest to other judges: Yes
(3)REVISED
Case
number: 2015/19426
In
the matter between:
Daag
Investments
CC First
Applicant
Dale
Shafer
Second
Applicant
Steven
Karp Third
Applicant
and
Sheriff
of Roodepoort
First
Respondent
Mike
Trenchard
Second
Respondent
Trebelin
Investments (Pty)
Ltd Third
Respondent
Anthony
John
Joseph Fourth
Respondent
Krishna
Periasamy
Naicker Fifth
Respondent
Coram:
VALLY J
Heard:
16 May 2016
Reasons
sought: 19 May 2016
Delivered:
14 October 2016
Summary:
Opposed-Unwarranted Resistance to application-Costs
Order
The
application is dismissed with costs.
Judgement
Vally
J
Introduction
1
In this matter, after reading the papers
filed on record and after extensive robust discourse with counsel for
the parties, I issued
an order
ex
tempore. The order reads:
1.1That
the sale in execution of one Anthony Brian Lansdell’s 25%
member’s interests in Daag Investments CC, which sale
took
place by way of Sheriff’s auction by the Sheriff of Roodepoort
on 2 April 2015 under case number 33101/2013 is set aside;
1.2
That the attachment of one Anthony Brian
Lansdell’s 25 % member’s interest in Daag Investments CC
is set aside.
2
That the following costs order is made:-
2.1
The Second and Third Respondents are liable for the costs jointly and
severally on a scale as between party and party.
2.
The second and third respondents have asked
for reasons for my order. These are they.
3.
The first applicant, Daag Investments CC,
(Daag) was established in 2009. The second applicant (Dale Shafer),
the fourth respondent
(Anthony Joseph), the fifth respondent (Krishna
Naicker) and one Anthony Brian Lansdell (Anthony Lansdell) each held
a 25% interest
in Daag. The business of Daag concerned
investments in commercial immovable property for purposes of deriving
rental income.
Lansdell was entrusted with taking care of the
day-to-day management affairs of Daag. He engaged in unlawful
activities to the
detriment of Daag. He was eventually arrested,
charged and convicted on numerous counts of fraud, theft and
contraventions in terms
of the Value Added Tax Act 89 of 1991. He has
received a custodial sentence for his misdeeds.
4.
Prior to his arrest and conviction Lansdell
partook in various private commercial transactions and as a result
had become indebted
to the third respondent, Trebelin Investments
(Pty) Ltd (Trebelin Investments), for a substantial sum of money. On
5 March 2014,
Trebelin Investments secured a money judgment of R1m
against Lansdell from this Court. It had also secured other money
judgments
against Lansdell from this Court. However, relying on the
judgment of 5 March Trebelin Investments issued a writ of execution
against
the 25% interest held by Lansdell in Daag. A sale in
execution was conducted by the first respondent, the Sheriff of
Roodepoort,
on 2 April 2015 for purposes of selling Lansdell’s
25% interest in Daag. The second respondent, Mike Trenchard,
purchased
the interest for R100.00.
5.
This application, which is referred to as a
counter-application in the papers because it was a
counter-application to an application
brought by the second
respondent for the liquidation of Daag, will nevertheless be referred
to as “the application”
in this judgment. It concerns the
setting aside of the sale in execution as well as the writ of
execution. The notice of motion
reads:
“
1.
Ordering and directing the Sheriff of Roodepoort (“the
Sheriff”) to comply with section 34A read with section 34
of
the Close Corporations Act 69 of 1984 (the Act) and in particular
directing:
1.1
in terms of section 34(2)(a) of the Act
that the Sheriff offers the 25% interest of judgment debtor, Anthony
Brian Lansdell in Daag
Investments CC (the members interest), which
was put on auction on 2 April 2015 and in terms of which the judgment
creditor accepted
on auction the value of R100 for the member’s
interest, to the first applicant and the existing members of the
first applicant
pursuant to their pre-emptive right to acquire the
member’s interest;
1.2
that in terms of section 34(2)(b) of the
Act the first applicant and its members are provided a period of 28
days within which to
exercise their right/rights to be substituted as
the purchaser/s of the of the member’s interest at the price of
R100 and
on the terms as set out in the written statement issued by
the Sheriff in terms of section 34(2)(a).
2
Alternatively to paragraph 1 above:
2.1
Reviewing and setting aside the sale in
execution of one Anthony Brian Lansdell’s 25% member’s
interest in Daag Investments
CC, which sale took place by way of
Sheriff’s auction by the Sheriff of Roodepoort on 2 April 2015;
2.2
Reviewing and setting aside the Registrar’s
writ of attachment dated 20 January 2014 (“the writ”) in
respect to
[sic] the attachment of Anthony Brian Lansdell’s 25%
member’s interest in Daag Investments CC, a copy of which is
attached
hereto marked “D12”;
3
Ordering the second and third respondents
to pay the costs of this application on an attorney and client
scale.
”
6.
The second and third respondents were from
the very beginning alerted to the reliance on the provisions of s
34(2)(a) of the Act
by the applicants for the relief they sought.
Despite the clear provisions of this section of the Act, these
respondents deemed
it necessary to oppose the application and filed a
detailed answering affidavit. The opposition was vigorous. This
caused the applicants
to incur costs.
7.
The second respondent was adamant that the
sale in execution was valid and that his purchase of the 25% interest
of Lansdell in
Daag was unassailable. He states in his answering
affidavit that he has validly “
purchased
the member’s interest in execution and … that
(he
is)
now the rightful owner thereof
”.
So strongly does he feel about this that he repeats the claim a few
times in his answering affidavit. He also claimed,
more than once,
that the writ of execution against 25% interest of Lansdell was
validly issued. In this regard he averred: “
I
deny that the sale in execution was invalid for non-compliance with
the
Close Corporations Act. I
will provide the Court with the details
and events surrounding me purchasing the members’ interest at
the sale in execution.
Full legal argument will be addressed on this
point at the time of hearing this matter.
”
8.
As a result of the opposition, the
applicants were required to file a replying affidavit
9.
The application rests on the provisions of
ss 34 and 34A of the Act. These provisions are without complication
and their meaning
is crystal clear. Their application to the facts of
this case would have resulted in the Sheriff offering to sell
Lansdell’s
25% interest to Daag or to the other members of
Daag. This would have occurred after the sale in execution where he
would have
furnished a written statement to Daag giving it the
particulars of the second respondent, the purchase price as well as
the time
and manner of payment agreed to between himself and the
second respondent. Thereafter he would have given the other members
of
Daag 28 days to match the price and terms of the sale agreed to
between himself and the second respondent. Should they have matched
the price and terms of the sale the Sheriff would have been required
to sell the Lansdell’s interest to them and not to the
second
respondent. It is common cause that this was not done.
10.
Despite the clear meaning of the provisions
of ss 34 and 34A of the Act the second respondent chose to oppose the
application and
then much later he conceded that the process followed
by the first respondent, the Sheriff, was,
inter
alia
, not fully compliant with the
provisions of s 34A read with s 34 of the Act, as a result of which
the sale in execution had to
be set aside. This concession came very
late in the day. What it reveals though is that the second respondent
had no basis,
ab initio
,
to oppose the application. His opposition was unnecessary and costly
for the applicants. He should bear the consequences of this
by having
to pay their costs.
11.
It is on the basis of these reasons that
the order in [1] above was issued.
__________________
VALLY
J
Counsel
for Applicants:
Instructed
by Karen
Shafer Attorneys
Counsel
for 1
st
and 2
nd
Respondents:
Adv
Steyn
Instructed
by Jay
Mothobi Inc
Date
of
hearing
16
May 2016
Date
of
order
16
May 2016
Reasons
sought on: 19
May 2016
Reasons
furnished on: 14
October 2016