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[2020] ZAGPJHC 253
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Cell C Limited v Mohamed; Cell C Limited v Pillay; Cell C Limited v Mohamed and Others (20424/2020) [2020] ZAGPJHC 253 (16 October 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 20424/2020
In the ex parte applications
:
1.
CELL C LIMITED
Applicant
and
MOHAMED ADAMJEE
Respondent
(Identity number: […])
2.
CELL C LIMITED
Applicant
and
ADRIAAN
PILLAY
Respondent
(Identity number: […])
3.
CELL C LIMITED
Applicant
And
MOHAMED ADAMJEE
(Identity number: […])
First Respondent
ADRIAAN PILLAY
(Identity number: […])
Second Respondent
THE STANDARD BANK OF SOUTH
AFRICA LIMITED
(Registration
number: 1962/000738/06)
Third Respondent
FIRST NATIONAL BANK, A DIVISION
OF FIRST RAND BANK LIMITED
(Registration number:
1929/001225/06)
Fourth Respondent
NEDBANK
LIMITED
(Registration number:
1951/000009/06)
Fifth Respondent
REGISTRAR OF DEEDS, JOHANNESBURG
Sixth Respondent
REGISTRAR OF DEEDS,
PIETERMARITZBURG
Seventh Respondent
REASONS
FOR JUDGMENT
MODIBA
J
[1] I wrote this judgment in response
to a request for reasons by Mohamed Adamjee and Adriaan Pillay
(individually referred to as
Adamjee and Pillay and collectively as
the respondents) dated 6 October 2020. The request relates to the
orders that I granted
on 28 September 2020 when the above three
matters served before me in the unopposed motion court.
[2] On the said date, I granted an
order disallowing the respondents leave to file opposing papers in
all three matters. I also:
2.1 Confirmed the rule nisi granted by
Wepenaar J in the third matter on 18 August 2020, returnable on 28
September 2020, to operate
as an interim order pending the
determination of legal proceedings which Cell C would institute
against the respondents within
60 days of the said order;
2.2 Allowed Cell C leave to access the
evidence preserved in terms of the rules nisi in the first and second
matter for the purpose
of instituting legal proceedings against the
respondents;
2.3 Granted other ancillary relief.
[3]
On the same date that the respondents filed a request for reasons,
they filed a notice of application for leave to appeal in
all three
matters. The later application suggests that they only intend seeking
leave to appeal the orders referred to in 2.1 and
2.3 above. I
nonetheless deem it appropriate to furnish reasons for all the orders
that I granted on 28 September 2020 to set out
the context in which I
dealt with the rules
nisi
on the return date.
CONFIRMATION
OF THE RULES NISI
[4]
I confirmed the rules
nisi
having been satisfied that Cell C
has made out a proper case for the relief set out therein. I found
that it has
prima
facie
established that:
4.1
It has
a cause of action against the respondents which it intends to pursue;
4.2
The
respondents have in their possession email and WhatsApp communication
which constitutes vital evidence in support of Cell C’s
cause
of action;
4.3
Cell C
has no personal right in respect of the email and WhatsApp
communication;
4.4
Cell C
has a real and well-founded apprehension that this evidence may be
hidden or destroyed or in some manner spirited away by
the time it
calls on the respondents to discover it as part of the legal
proceedings it intends pursuing against the respondents;
[5]
The order was
specifically designed to preserve the evidence by allowing Cell C,
its forensic experts and the sheriff to enter the
respondents’
premises, search and copy the material under the watch of a
supervising attorney, who would safeguard the respondents’
privacy rights against undue intrusion when the rules nisi are
executed. The sheriff would assume custody of the material so copied.
[6]
Cell C’s cause of action arises from possible collusion between
the respondents, Cornastone Enterprise Systems (Pty)
Ltd
(Cornastone), and an entity named Techno Genius CC (Techno
Genius) in respect of IT goods and services Cell C procured
from
Cornastone between 2012 to date. Cornastone is one of Cell C’s
vendors.
[7]
Adamjee was employed by Cell C for the period January 2002 to 7 May
2020. Since September 2011, he was employed by Cell C as
an
Executive: Business Operations Support. During his employment with
Cell C, Adamjee was involved in IT related procurement.
[8]
Pillay was employed by Cell C for the period September 2004 to July
2014. He was Adamjee’s subordinate and reported to
him. He
resigned from Cell C in July 2014 while disciplinary proceedings were
pending against him. The background to the disciplinary
proceedings
is not disclosed.
[9]
Cell C discovered the aforesaid collusion during March 2020. It
specifically discovered that:
9.1 Whenever it made payments to
Cornastone for goods delivered or services rendered following a
procurement process, Cornastone
would pay a portion of the payment to
Techno Genius and/or Pillay, that portion being the amount by which
the invoice by Cornastone
to Cell C has been exaggeratedly inflated;
9.2 From 2012 to date, and
whenever it was necessary for Cell C to procure IT goods and/ or
services, it would send a Request
for Quote (RFQ) to three or four
vendors with specific business requirements. Cornastone was one of
these vendors. Adamjee was
tasked to consider the quotes received
from the targeted vendors. Owing to his insight into the prices by
other vendors, Adamjee
benchmarked the prices and quotes provided by
Cornastone to Cell C, thereby facilitating the success of
Cornastone’s quotes.
Through Adamjee’s influence, Cell C
would contract with Cornastone as its “preferred supplier”
for the required
IT goods and/ or services not knowing that
Cornastone’s quotes are exaggerated.
9.3 When Cell C paid Cornastone for
the goods and services so procured, Cornastone would retain the
amount for the
bona fide
price and pay over the exaggerated
portion to Techno Genius and/or Pillay. Pillay was at all relevant
times the sole director of
Techno Genius. Adamjee and Pillay are
business associates. They each hold a co-50% beneficial ownership of
House and Home Refurbishments
CC.
9.4 The total payments made by Cell C
to Cornastone during the period 2012 to date amount to R357, 329,
677.30 of which approximately
R61, 625, 713.30 was on-paid to Techno
Genius and/or Pillay as described above. Cell C believes that Adamjee
has received part
of the funds that were paid to Techno Genius and/
or Pillay.
9.5 During May 2020, several
representatives of Cell C met with Adamjee and presented to him an
email which they have uncovered,
sent from his Google mail account to
Cornastone relating to a payment to be made to Techno Genius. This
discovery led Cell C to
believe that Adamjee used his Google mail
and/or other private email accounts to correspond with Cornastone and
Techno Genius relating
to the procurement activities referred to
above.
[10]
Cell C intends instituting legal action against Adamjee and Pillay
but fears that by the time it requires them to make discovery,
they
would have destroyed the emails on their private email accounts as
well as WhatsApp messages relating to the irregular procurement
activities set out above. Hence, it sought and obtained rules nisi
against them on an
ex parte
basis, which Wepener, J granted on
18 August 2020. The rules nisi have been executed. The evidence is in
the custody of the sheriff
as per Wepenaar J’s order.
[11]
Wepenaar J’s order also
authorizes the freezing of the respondents’ specified bank
accounts held with the cited banks.
Further, it compels the banks to
disclose any accounts held with them in which the respondents hold an
interest, as well as bank
statements for the specified bank accounts
for the period of the alleged collusion. I am satisfied that the
basis for this relief
is consistent with the dictum in
NAMPAK
[1]
in that:
11.1 The cited banks are the
respondents’ bankers;
11.2 The respondents may have utilized
their bank accounts in relation to Cell C’s cause of action;
11.3 The banks may hold other accounts
in which the respondents have an interest, which they may also have
utilised in relation
to Cell C’s cause of action;
11.4 Information in respect of the
accounts in 11.3, if the accounts exist, is not at Cell C’s
disposal. So is information
in respect of transactions in the
specified bank accounts.
11.5 Disclosing of this information to
Cell C serves its right of access to the courts, as it will
substantiate its cause of action
against the respondents.
[12]
A caveat placed against the respondents immovable property registered
in the deeds office would prevent them from alienating
it to defeat
Cell C’s cause of action in the event that they lack sufficient
funds to satisfy its substantial claim against
them. Cell C’s
apprehension that they may dissipate their assets to defeat its claim
is reasonable and well-founded given
their evasive response to it
since it has discovered the alleged collusion.
REFUSAL
OF LEAVE TO FILE OPPOSING PAPERS
[13]
The respondents were served with the rules
nisi
on 18 August
2020. They waited until 17 September 2020 to request documents they
purportedly require to file opposing papers. They
did so by letter.
It took them a further 4 court days to file their notice of
opposition. They failed to file an answering affidavit.
Their
attorney prepared a detailed Practice Note urging the court not to
read the papers because the respondents have filed a notice
of
intention to oppose.
[14]
When the matters served before me, Mr Manilla appeared on behalf of
the respondents contending that since the respondents have
filed a
notice of intention to oppose, the matter has become opposed. He
sought leave from the bar for time to file an answering
affidavit. Mr
Hellens SC for Cell C vigorously opposed his request. Mr Manilla
complained that the respondents could not file an
answering affidavit
earlier because various annexures to the founding affidavits and/ or
confirmatory affidavits are missing and/
or illegible. He also
contended that the notices of motion fail to specify the time frames
for the filing of opposing papers. The
court frowned upon his request
for the following reasons:
14.1
The respondents could set down
the rules
nisi
for reconsideration on an urgent basis
[2]
but did not do so, despite the serious allegations made against them
in the founding affidavits. The rules
nisi
made provision for the return date 27 court days after they were
granted. This is a generous allowance for the respondents to file
opposing papers given that the rules
nisi
were granted on the basis of urgency. I pause to mention that this is
the period that the respondents would be afforded in terms
of the
uniform rules to file opposing papers in the ordinary cause.
14.2 The respondents waited until 1
court day before the return date to file their notice of intention to
oppose. When they filed
it, they were evidently out of time to answer
to the applications which, due to their substantial volume, would
require considerable
time to consider and answer to.
14.3 The respondents failed to follow
the procedure provided for in rule 35(12) of the uniform rules of
court to request copies
of the missing and/ or illegible annexures
from Cell C, and if it refused, to compel it following the mechanism
provided for in
the uniform rules.
14.4 When the rules
nisi
were
executed, the respondents were represented by their current attorney
of record. Therefore, their failure to file opposing papers
prior to
the return date is inexcusable.
14.5 They knew that they will not be
able to file their answering affidavits prior to the return date but
failed to file an application
for condonation.
14.6 In the absence of an explanation
for their delay in calling for the illegible and/ or missing
documents, as well as filing
their notice of intention to oppose and
answering affidavits, a finding that the delay was orchestrated to
impose a postponement
of the return date on Cell C is not
far-fetched. The tone of their letter of 17 September 2020 to Cell C
as well as their Practice
Note also suggest so.
[15]
Very serious allegations of failure to exercise the duty of care by
Adamjee towards his erstwhile employer, as well as the
fraudulent
exaggeration of invoices which caused Cell C a loss of R61, 625,
713.30 has been made against the respondents. So are
allegations of
evading accountability by resigning from Cell C. Adamjee did so with
immediate effect when he was confronted with
these serious
allegations and placed on precautionary suspension. Pillay resigned
while disciplinary proceedings against him were
pending.
[16]
Further, Pillay is alleged to have interfered with the process of
executing the rule nisi granted in the second matter by deleting
3GB
of data from his email account, prompting Cell C to seek an extension
of the order. The latter application served before Twala
J on 21
August 2020. He granted it with a punitive cost order against Pillay.
[17]
The respondents had 5 weeks to answer to these serious allegations,
but failed to do so. They have not bothered to show cause
why their
failure to file answering affidavits should be condoned. Their
dilatory and evasive tactics in these proceedings is consistent
with
their response to Cell C since it discovered the alleged collusion.
LEAVE
TO ACCESS THE EVIDENCE
[18]
On the return date, Cell C sought, in addition to confirmation of the
rules nisi, permission to access the evidence in the
custody of the
sheriff. It requires the evidence to institute legal proceedings
against the respondents.
[19]
Given the respondents’ dilatory and evasive conduct, it would
be highly prejudicial to cause Cell C to wait longer to
pursue its
cause of action. Any prejudice which the respondents stand to suffer
as a result of the orders granted on 28 September
2020 is
self-created.
CONCLUSION
[20]
For the reasons set out above, I refused the respondents leave to
file answering affidavits and granted the aforesaid orders
in the
three applications on 28 September 2020.
_____________________________
MADAM
JUSTICE L T MODIBA
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARENCES
Counsel
for applicant:
Mr Hellens SC
Attorney
for applicant:
BDK Attorneys
Counsel
1
st
and 2
nd
respondents:
Mr Manilla
Attorney
for 1
st
and 2
nd
respondents:
HS Patel Attorneys
Date
of hearing:
28 September 2020
Date
reasons for judgment were requested:
6 October 2020
Date
reasons for judgment were furnished:
16
October 2020
Mode
of delivery:
handed down electronically by
circulation to the parties’ legal representatives by email
and uploading on Caselines.
The date and time for hand-down is deemed
to be 12:00pm on 16 October 2020.
[1]
Nampak
v Vodacom and Others
2019
(1) SA 257
(GJ) (31 January 2018)
[2]
Rule 6 (12) (c)