About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2010
>>
[2010] ZAGPJHC 87
|
|
Cloete NO and Others v Basson and Others (61907/09) [2010] ZAGPJHC 87 (4 October 2010)
-
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 61907/09
DATE:
04/10/2010
In
the matter between:
CORNELIA
MARIA CLOETE N.O.
…........................................................
First
Applicant
HARRY
KAPLAN
N.O.
.................................................................................
Second
Applicant
ANNA
PAULA DE OLIVEIRA
N.O.
............................................................
Third
Applicant
SOPHIE
MMAPULA POOPEDI N.O.
…....................................................
Fourth
Applicant
and
MICHAEL
MATTHEUS
BASSON
.............................................................
First
Respondent
VANESSA
MARIA JULIA
BASSON
.......................................................
Second
Respondent
IAN
BRUCE
LOCKYER
............................................................................
Third
Respondent
JUDGMENT
GOODEY
AJ
[1]
INTRODUCTION
(1.1)
This matter involves an urgent application for reconsideration in
terms of Rule 6(12)(c) of the Rules of Court pertaining
to the fact
that the applicants brought a substantive application for relief,
pursuant to which an order was granted against the
respondents, ex
parte
and
on an urgent basis, by Kruger AJ on or about
30
August
2010
("the
order").
(1.2)
The
matter came before me on Thursday the
30
th
September
2010
in
the urgent court.
(1.3)
I
indicated that I have not been persuaded that he matter is urgent
enough to be heard during the course of the week of the
28
th
September
2010,
but
in the interests of justice and the fact that certain concessions
were made by the applicants, I exercised my discretion to
hear the
matter and to render some assistance to the respondents.
(1.4)
Due
to the time constraints, this is a brief judgment and of necessity, I
will refer somewhat extensively to the heads prepared
by Counsel.
(1.5)
I
also
wish to extend a word of gratitude to Counsel for their heads of
argument and assistance rendered to the Court.
(1.6)
Both
Counsel prepared draft orders as to how the order should be amended.
(1.7)
In
short:
1.7.1
The
order was already granted on the
30
th
August
2010;
1.7.2
The
return
day
is the 9
th
November 2010 - less
than
5
weeks away;
1.7.3
The
applicants conceded that the order of the 30
th
August 2010 may be too
strict
in
the sense that it impacts too much on the rights / freedom of the
respondents;
1.7.4
Justice
however
ca\\s
for
some
assistance that should be rendered to the
respondent.
[2]
BACKGROUND / URGENCY
(2.1)
As
stated
above,
the applicants brought a substantive application for relief, pursuant
to which an order was granted against the respondents,
ex parte and
on an urgent basis, by
Kruger
AJ
on or about 30 August 2010.
(2.2)
The
respondents
chose
not
to anticipate the return day but to ask for reconsideration.
(2.3)
Fact
is
however
,
if
the order is so
totally
unbearable
to
endure, the question arises why did the respondents wait almost a
month to approach the
court?
(2.4)
However,
in view of:
2.4.1
What I have
said
in
paragraph 1.7 above;
2.4.2
The
fact that the onus in a rule
nisi
-
and
this principle is applicable by analogy to a reconsideration -
remains as it did in the initial application, and does not cast
any
onus on the respondent that it would not have existed in the initial
application. (The onus as to urgency, however, is on the
respondents);
2.4.3
Our
Constitution. In this regard the following passage from Kahn v Kahn
2005(2)
SA272T is to be kept in mind:
"The
Act invokes the Constitution in its preamble. With regard to
interpreting statutes in light of the Constitution, cognisance
ought
to be taken of the words of Langa DP as stated in the decision of
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC)
(2000 (10) BCLR 1079)
in paras [21] and [22]:
'This
means that
all
statutes
must be interpreted through the prism of the Bill of Rights. All
law-making authority must be exercised in accordance with the
Constitution. The Constitution is located in a history which involves
a transition from a society based on division, injustice
and
exclusion from the democratic process to one which respects the
dignity of all citizens, and includes all in the process of
governance. As such, the process of interpreting the Constitution
must recognise the context in which we find ourselves and
the
Constitution's goal of a society based on democratic values, social
justice and fundamental human rights
.
The spirit of transition and transformation characterises the
constitutional enterprise as a whole.
...
The
Constitution requires that
j
udicial
officers read legislation
,
where possible, in ways which give effect to its fundamental values.
Consistently with this, when the constitutionality of legislation
is
in issue, they are under a duty to examine the objects and purport of
an Act and to read the provisions of the legislation,
insofar as is
possible, in conformity with the Constitution.'
In
the
Daniels
decision,
Ngcobo J made the following comment with regard to the proper
approach to legislative interpretation:
'Section
39(2) of the Constitution contains an injunction on
the
interpretation of legislation. It requires courts when interpreting
any legislation "to promote the spirit, purport and
objects of
the Bill of Rights"
.
Consistent with this interpretative injunction, where possible,
legislation must be read in a manner that gives effect to the
values
of our Constitution"
(my
underlining); And
MAJAKE
v Commissioner for Gender Equality and Others 2010(1)SA87(GSJ) where
the possible violation of a constitutionally guaranteed
right was an
important consideration in the court finding that a matter was
urgent; I have heard the matter.
[3]
THE LAW
(3.1)
Rule
6(12)(c) allows for the reconsideration of urgent applications
granted in the absence of a cited party.
(3.2)
The
purpose of Rule 6(12)(c) is to afford an aggrieved party a mechanism
to re-visit and redress imbalances and the injustices flowing
from an
urgent application that has been granted in his absence.
(See:
Oosthuizen v Mijs 2009(6)SA266(W) at 267)
(3.3)
The
purpose has also been described as follows: "The dominant
purpose of Rule 6(12)(c) of the Uniform Rules of Court (which
provides that a 'person against whom an order was granted in his
absence in an urgent application may by notice set down the matter
for reconsideration of the order') is to F afford an aggrieved party
a mechanism designed to redress imbalances in, and injustices
and
oppression flowing from, an order granted as a matter of urgency in
his absence. In circumstances of urgency where an affected
party is
not present, factors which might conceivably impact on the content
and form of an order may not be known to either the
applicant for
urgent relief or the Judge required to determine it. The order in
question may be either interim or final in its
operation.
Reconsideration
may involve a deletion of the order, either in whole or in part, or
the engraftment of additions thereto. (At 486I-487A/B.)
The framers
of Rule 6(12)(c) have not sought to delineate the factors which might
legitimately be taken into reckoning in determining
whether any
particular order falls to be reconsidered. What is plain is that a
wide discretion is intended. Factors relating to
the reasons for the
absence of the aggrieved party, the nature of the order granted and
the period during which it has remained
operative will invariably
fall to be considered in H determining whether a discretion should be
exercised in favour of the aggrieved
party. So, too, will questions
relating to whether an imbalance, oppression or injustice has
resulted and, if so, the nature and
extent thereof, and whether
redress can be attained by virtue of the existence of other or
alternative remedies. The convenience
of the protagonists must
inevitably enter the equation. These factors are by no means
exhaustive. Each case will turn on its facts
and the peculiarities
inherent therein. (At 487A/B-D.)
Although
no hard and fast rule need be laid down, it seems desirable that a
party seeking to invoke Rule 6(12)(c) ought in an affidavit
to detail
the form of I reconsideration required and the circumstances upon
which it is based. (At 487D-D/E.)"
[See:
The head note to ISDN SOLUTIONS (PTY) LTD v CSDN SOLUTIONS CC AND
OTHERS
1996 (4) SA 484
(W)]
[4]
THE GIST OF RESPONDENTS' ARGUMENT
(4.1)
Paragraph 9 of the heads of argument reads as follows:
"9.
There
are three principal problems with the order:
9.1
First,
the activities of a company known as "Brusson Finance (Pty) Ltd
(in liquidation)" were declared unlawful, so detrimentally
affecting the rights of other parties, in an ex
parte
application,
when the proper course should have been a hearing in due course with
adequate
audi
alteram partem.
Simply
put, there was no basis for the Court to have considered and ordered
this relief without notice to the respondents.
9.2
Second,
the balance of convenience did not favour the granting of a
Mareva
injunction,
the wording of which is, moreover, unduly harsh in its ambit, and
incompetent in its lack of precision;
9.3
Third,
the affidavits filed in support of the application did not contain
the facts and evidence necessary to support the orders
sought, and,
moreover, contained hearsay and opinion evidence - which is
inadmissible."
[5]
THE
GIST OF THE APPLICANTS' ARGUMENT
(5.1)
Paragraph
6
of
the applicants' heads reads as follows:
"Under
the circumstances the pretences of urgency and the lack of factual
allegations contained in paragraph 6 supporting what
are no more than
conclusions are indicative hereof. This is furthermore illustrated by
the fact that notwithstanding this having
been pointed out in the
answering affidavit the Respondents have to date hereof not revealed
one single bank account or one single
amount of money which has been
"frozen"."
(5.2)
Paragraph 7 reads as follows:
"The
Respondents have furthermore decided not to deal with any of the
factual allegations contained in the founding papers
nor is there any
indication as to why they have not done so. This is clearly a
stratagem in an attempt to avoid dealing with the
merits of the
matter. Under the circumstances the allegations contained in the
founding affidavits must be accepted as correct
for purposes hereof.
In this regard
inter
alia
the
following must be accepted :-
7.1
the
activities of the insolvent company Brusson became a pyramid scheme
for the reasons set out in paragraph 44 of the affidavit
namely that
payments made by certain people were used to make payment of debts of
other people;
7.2
that
payments made to Brusson were then diverted to a separate account in
the name of another close corporation controlled by the
Respondents
being Storm Fire Trading CC;
7.3
these
funds were used for various other matters by the Respondents which
had nothing to do with payment of the debts of the investors
or the
mortgage bonds;
7.4
the
activities of Brusson were a harmful business practice;
7.5
Brusson
was, as already found in the Bloemfontein High Court, carrying on the
business of a credit supplier and was not registered
as same, as a
result of which
inter
alia
all
the transactions entered into were void;
7.6
Brusson
was furthermore providing financial products while it was not
registered as a financial advisor or intermediary in terms
of Act 37
of 2002;
7.7
properties
to which Brusson had become entitled in terms of the agreements and
which should have been transferred to Brusson were
in fact
transferred to the personal estates of the two Respondents;
7.8
Brusson
had acted as a bank contrary to the Banks Act, 94 of 1990;
7.9
all
income which Brusson had earned (and which had thus been paid to its
shareholders, the Respondents or to any other persons)
had to be
recovered for the estate;
7.10
in
the light of the illegality of the scheme all the properties which
had formed part of the Brusson scheme had to be recovered
for the
concursus
creditorum;
7.11
numerous
luxury vehicles worth millions of Rands had been purchased in the
name of Brusson and these have not be returned by the
directors."
[6]
CONCLUTION
(6.1)
I
have already indicated that the respondents need assistance.
(6.2)
After
careful consideration and having taken all the factors and arguments
by Counsel into account, I make the following order:
(The order is in
Afrikaans as the Order of the 30
th
August 2010 is also in Afrikaans)
"1.
Die bevel op 30 Augustus 2010 word soos volg gewysig :-
1.1
Paragrawe 3.2.1 en 3.2.2 daarvan word met die volgende vervang :-
"3.2.1
Die
Respondente word verbied om enige van hulle
noemenswaardige
bates (synde die bates waarop beslag gele is en enige ander bate met
'n waarde van meer as R80 000,00) wat aan hulle
behoort te verkoop,
vervreem of beswaar sonder die vooraf-verkryde skriftelike
toestemming van die Applikante, welke toestemming
nie onredelik
weerhou sal word nie."
"3.2.2
Die
Respondente sal geregtig wees om uit bates wat aan
hulle
behoort hulle redelike :-
3.2.2.1
lewens- (wat insluit kos, klere, vervoer, onthaal, ens);
3.2.2.2
regs-;
en
3.2.2.3
besigheidsuitgawes
in die gewone loop van besigheid aangegaan, te betaal."
1.2
Die verwysing in paragraaf 10 tot "die bevel in 11 hierbo"
gewysig word na "die bevel in 9 hierbo".
2.
Dat die koste van die heroorweging van die bevel gereserveer
word."
GOODEY
AJ
Applicants'
Attorneys:
....................................
CROUSE
INCORPORATED
Applicants'
Counsel.
.......................................
D
M LEATHERN SC
Respondents'
Attorneys:
................................
BDK
Attorneys
…
......................................................................
(David
H Botha, Du Plessis and Kruger Inc)
Respondents'
Counsel:
..................................
M
Welz