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[2020] ZAGPJHC 384
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Sibanye Gold Ltd t/a Sibanye-Stillwater and Others v Sevigraph 42 CC; Rand Uranium (Pty) Ltd v Sevigraph 42 CC; Sibanye Gold Ltd t/a Sibanye-Stillwater v Sevigraph 42 CC (28249/2019; 28248/2019; 28247/2019) [2020] ZAGPJHC 384 (22 October 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
1.REPORTABLE:
YES
/NO
2.OF
INTEREST TO OTHER JUDGES:
YES
/NO
3.REVISED
22/10/2020
CASE NUMBER: 28249/2019
In the matter between:-
WAYNE ROBERT CLARK N.O
First
Intervening Party
RAYNOLD
SELLO MKHONDO N.O.
Second Intervening Party
THEMBA MBATHA
Third Intervening
Party
Identity Number: [….]
OPEN VICUS NKOSI
Forth
Intervening
Party
Identity Number: [….]
In Re:
SIBANYE GOLD LTD t/a
First
Applicant
SIBANYE-STILLWATER
RAND URANIUM (PTY)
LTD
Second Applicant
EZULWINI MINING COMPANY (PTY)
LTD
Third
Applicant
And
SERVIGRAPH 42
CC
Respondent
In the matter between:
CASE NUMBER: 28248/2019
RAND URANIUM (PTY) LTD
Applicant
And
SERVIGRAPH 42 CC
Respondent
In the matter between:
CASE NUMBER: 28247/2019
SIBANYE GOLD LIMITED
t/a
SIBANYE-STILLWATER
Applicant
And
SERVIGRAPH 42
CC
Respondent
JUDGMENT
DIPPENAAR J
:
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e-mail. The date and time
for hand-down is deemed to be 10h00 on the 22
nd
October
2020.
[1]
These three applications were enrolled for
hearing and allocated as a special motion with a two day duration by
the Acting Deputy
Judge President (“ADJP”) on 23 July
2020. The parties had agreed that the three main applications, under
case numbers
28247/2019, 28248/2019 and 29249/2019 were to be heard
together as the issues which arose were the same or similar in all
the proceedings.
The applications were not however formally
consolidated.
[2]
The applicants’ heads of argument
[1]
referred to the applications as “being consolidated” and
stated “
It is common cause that
the applications should be heard together considering that the
decision in one will determine the result
in all of them”.
[3]
The relief sought by the applicants in the
main applications were declaratory orders that the lease agreements
concluded between
the respective applicants and the respondent
(“Servigraph”) have been duly cancelled together with
eviction orders
and ancillary relief. Servigraph disputed the
lawfulness of the termination of the lease agreements and, inter
alia, sought a referral
of the matter to trial or oral evidence. It
further contended for a counterclaim for damages based on the
applicants’ unlawful
termination of the lease agreements. The
lawfulness of the termination of the various lease agreements lies at
the heart of the
applications.
[4]
In the proceedings under case number
28249/2019, two applications for leave to intervene were launched
shortly before the hearing.
The first was launched on 18 October 2020
by two employees of Servigraph, Messrs Mbatha and Nkosi (“the
intervening employees”).
The second was launched the following
morning shortly before the hearing by Servigraph’s business
rescue practitioners, Messrs
Clark NO and Mkhondo NO.
[5]
The respondent supported both the
intervention applications. In its heads of argument, the respondent
had raised the non-joinder
of the business rescue practitioners as
one if its grounds of opposition to the application.
[6]
As correctly pointed out by the applicants,
the respondent had not raised the issue of non-joinder in its
affidavits. Neither the
applicants or respondent dealt with this
issue in their affidavits in the main application as the respondent
was only placed under
supervision after the delivery of the replying
affidavits and on 8 May 2020. None of the parties applied for leave
to deliver further
affidavits to deal with this subsequent event.
[7]
The applicants opposed the two intervention
applications launched under case number 28249/2014 and elected not to
deliver any answering
papers. The applications were thus argued on
the basis of the founding papers in the intervention applications.
The applicants
further argued that the applications under case
numbers 28247/2019 and 28248/2019 should proceed in the event that I
was inclined
to grant the employees’ intervention application,
which would necessitate the postponement of the proceedings under
case
number 28249/2019.
[8]
I turn first to the intervention
application of the intervening employees, who stated that they are
employees of the respondent
who reside on the farm
Waterpan/Jachtfontein/Modderfontein, properties in respect of which
the applicant seeks eviction orders.
They also represent the group of
Servigraph’s employees who live on the farm and have no other
place of residence. A list
of employees was attached to the affidavit
as well as a photograph depicting some 6 employees. The intervening
employees only found
out about the application and their possible
eviction on 17 October 2020 when they were told by a member of
Servigraph and were
not notified of the eviction proceedings earlier.
Thus they were only able to launch the intervention application on 18
October
2020. Very little information is presently available
regarding how many other employees may be in the same position.
It is
also unclear on exactly what portion of the leased properties
they reside.
[9]
The applicant’s heads of argument in
the main application stated: “
There
are no people residing on the properties and therefore the provisions
of section 4 of the Prevention of Illegal Eviction from
and Unlawful
Occupation of Land Act 19 of 1998 [“PIE”] do not apply”.
The applicants’ founding papers in the main application did not
refer to any occupiers and did not aver that there are no
people
residing on the properties.
[10]
The eviction applications were not served
on any individuals residing or occupying the property. The applicants
did not strenuously
contend that the employees’ application
should be dismissed, although it was expressly not conceded that
there are indeed
any employees of the respondent or other persons
presently residing on the properties.
[11]
From the main application papers, it
appears that Servigraph conducts farming activities from the farms
leased by the various applicants
and has some 25 full time employees
who work on all the farms as well as some 20 monthly casual
employees. It is thus conceivable
that many of these employees may be
resident on the farms with or without their families.
[12]
As correctly pointed out by counsel for the
intervening employees, occupiers of immovable properties, such as the
farm workers involved
here, enjoy constitutionally entrenched rights
[2]
and are afforded statutory protection either under the Extension of
Security of Tenure Act (“ESTA”)
[3]
or, if not applicable, under PIE when faced with eviction. The
provisions of the Labour Tenure Act
[4]
may also be relevant. Insufficient facts are presently available to
determine which of the statutes apply. Each has specific statutory
requirements pertaining to eviction and the steps which must be taken
to do so.
[13]
These are important issues which must be
given proper consideration before a court will consider the granting
of an eviction order.
It can only be done in due course once all the
relevant facts are available and have been properly placed before a
court. The true
facts must be fully investigated to establish whether
there are other individuals in a similar position to that of the
intervening
employees who need to be considered and how many
individuals are involved.
[14]
For purposes of the intervention
application it must be considered whether the intervening employees
have a direct and substantial
interest in the subject matter in the
proceedings
[5]
.
I am satisfied that Messrs Mbatha and Nkosi have illustrated such a
direct and substantial interest and have shown prima facie
that they
have constitutionally entrenched rights which will be affected by the
order sought by the applicants
[6]
. As such, this court has no discretion and they must be
allowed to intervene. It follows that the intervention application
must succeed.
[15]
Both ESTA and PIE define the concept
“occupiers”. It is in my view appropriate to join all
occupiers of the leased properties
as an additional party to the
application so that all possible occupiers of the property may be
included in the proceedings
[7]
.
This is necessary to accommodate the prospect that there may be other
persons occupying the property who may or may not be employees
of the
respondent or are hitherto unnamed employees of the respondent who
have an interest in the proceedings.
[8]
[16]
It is in my view necessary to further
consider the granting of additional orders regarding service of the
application on persons
occupying the properties in the various
applications, although such relief was not specifically sought in the
intervention applications.
On 19 October 2020, I called for and
afforded the parties an opportunity to provide additional submissions
on 20 October 2020,
after I stood the matter down to consider the
submissions and authorities referred to by the parties.
[17]
I have now considered all the submissions
made by the various parties on this issue and have concluded that it
would be appropriate
to direct that service of the application be
effected on all the individual occupiers of the various properties,
including on all
the respondent’s employees. It would however
be inappropriate at this juncture to give any specific directives as
to how
service is to be effected on the occupiers as it could result
in service which may not be in accordance with the procedures and
requirements of the applicable legislation. It goes without saying
however that such service must be effective.
[18]
Turning to the intervention application of
the business rescue practitioners of Servigraph, their case for
intervention is predicated
on their statutory rights and duties under
Chapter 6 of the Companies Act
[9]
(“the Act”). It was contended that in their capacity as
duly appointed business rescue practitioners, they had a substantial
interest in the subject matter of the application. In argument,
emphasis was placed on the provisions of s 128, s133, s144(3) and
s145(1)(a) of the Act, which, in very broad terms, defines affected
persons to include the employees and creditors of the respondent,
creates a moratorium on legal proceedings against the respondent and
requires notification of employees and creditors of any court
proceedings. It was argued that service or notification of the
application should be affected on all employees and creditors of
the
respondent.
[19]
The applicants’ opposition to their
intervention was by and large predicated on the contention that the
respondent was in
unlawful occupation of the property since 6 May
2019 pursuant to the valid cancellation of the lease agreements on 5
February 2019.
It was argued that there was no challenge to the
letters cancelling the lease agreements and that the provisions of
clause 14 of
the lease agreement was similarly not challenged. As the
moratorium envisaged by s133 of the Act was only applicable to
property
“lawfully in possession” of the company, s133
was not applicable. It was argued that the business rescue
practitioners
thus had no legal interest in the applications. My
attention was further drawn to the letter of applicants’ legal
representatives
addressed to the ADJP on 7 July 2020 in terms of
which the present allocation was sought. Therein, it was stated by
the applicants
that s133 of the Act is not applicable.
[20]
The applicants further argued that the
business rescue proceedings constituted an abuse and that the
approach of the respondent
was a strategy aimed at frustration and
delay, not only in respect of the averments in its affidavits but
also in relation to its
conduct. On this basis, a punitive
costs order was sought against the respondent.
[21]
Reliance was placed by the applicants on
Kythera Court v Le Rendez- Vous
Café CC and Another
[10]
(“Kythera”)
where Boruchowitz J found that the general moratorium in s 133 did
not encompass legal proceedings for eviction where a lease has
been
validly cancelled and the company under business rescue is an
unlawful occupier
[11]
. A similar finding was made in
Southern
Value Consortium v Tresso Trading 102 (Pty) Ltd
[12]
(“Tresso”),
by
Blignaut J.
[22]
Whilst I respectfully agree with the
conclusion reached by Boruchowitz J and Blignaut J, at this stage
such proposition does not
assist the applicants. In both
Kythera
and
Tresso
the court determined the validity of the cancellation of the lease
and the company’s status as unlawful occupier in the same
judgment and pursuant to argument on all the issues.
[23]
In the present instance, the validity of
the cancellation of the lease agreements, and thus Servigraph’s
status as lawful
or unlawful occupier, lies at the heart of the
disputes in the main application, which still has to be determined.
This will determine
whether s133 of the Act is applicable or not. It
would be inappropriate to effectively prejudge the merits of the main
application
as part of the intervention application and without
argument being advanced. In the presence of substantial
disputes between
the parties in an application which still has to be
adjudicated upon, it cannot presently be accepted as a fact that s133
of the
Act is not applicable, as the applicants aver.
[24]
Whether the section is applicable and
whether leave is required by the applicant under s133, as contended
by the respondent, is
not an issue which can or should be determined
at this stage. The applicability of s133 of the Act is in any event
not the end
of the enquiry.
[25]
The only relevant enquiry is whether the
business rescue practitioners have illustrated a direct and
substantial interest matter
in the subject matter of the proceedings.
I have already referred to the authorities and the relevant test, in
the context of the
other intervention application referred to
above.
[26]
Applying the same principles, I am
satisfied that the business rescue practitioners have illustrated a
sufficient legal interest
in the subject matter of the
application
[13]
to be joined as parties to the proceedings under case number
28249/2019. The duties and powers of the business rescue
practitioners
are set out in s140 of the Act. These duties include
the duties to take full management control of the company and to
develop a
business rescue plan. The cancellation of the lease
agreements and eviction from the properties would clearly have a
substantial
impact on the development of a successful business rescue
plan and the management of the farming business operations conducted
by Servigraph.
[27]
Under s140(3) the business rescue
practitioners have the responsibilities, duties and liabilities of a
director of the company
[14]
and are officers of the court who must report to it in terms of any
applicable rule of or orders by a court. One of the issues
raised in
the main application pertains to Servigraph’s substantial
damages claims against the applicants due to the applicants’
alleged unlawful termination of the lease agreements.
[28]
In my view, the business rescue
practitioners have established a direct and substantial legal
interest in the subject matter in
the proceedings and have shown
prima facie that they have rights which will be affected by the order
sought by the applicants in
the pending proceedings
[15]
.
It follows that their intervention application must succeed.
[29]
Moreover, the business rescue practitioners
can in due course reliably report to the court on the relevant facts
and circumstances
surrounding the Servigraph employees and their
occupation on the various leased properties. It would in my view be
in the interests
of justice to direct them do so.
[30]
It is in my view not necessary in the
present proceedings to determine whether all creditors and employees
of the respondent must
be notified or receive service of the
application in terms of s 144(3) and 145(1)(a) of the Act, as argued
by the business rescue
practitioners and the respondent. It was
further not fully canvassed at the hearing whether these affected
persons should be joined
to the proceedings or whether notification
would be sufficient. I am mindful of the fact that I have not been
called upon in the
intervention application to determine this issue,
which may require a nuanced debate in due course.
[31]
The business rescue practitioners have not
sought leave to intervene in the remaining applications under case
numbers 28247/2019
and 28248/2019, where Servigraph is also the sole
respondent. Neither have the intervening employees.
[32]
The applicants in those proceedings argued
at the hearing on 19 October 2020 that as the intervention
application only related to
those under case number 28249/2019, the
remaining two applications should be determined on their merits now
as they pertained to
different farms, to wit Libanon and Panvlakte,
whilst the proceedings under case number 28249/2019 are postponed.
[33]
During the hearing on 20 October 2020 and
after hearing all submissions pertaining to service, as I had
requested from the parties,
I ordered that all three the applications
were to be postponed sine die as it was not in the interests of
justice to proceed with
the two applications under case numbers
28247/2019 and 28258/2019. The reasons for reaching such conclusion,
follow hereunder.
[34]
The applicants’ argument was
predicated on the statement that there were no persons resident on
the farms Libanon and Panvlakte
and it was vacant land. It was argued
that PIE and/or ESTA accordingly did not apply and there was thus “
no
legitimate reason on the papers or elsewhere why the two matters
[16]
could not proceed”
. This
statement was repeated in a new affidavit made by a unit manager,
employed by one of the applicants, Mr Jooste, delivered
during the
evening of 19 October 2020. In the affidavit, reliance was also
placed on clause 10.1 of the lease agreement, which
prohibits any
person from residing on the leased properties absent consent from the
applicants, which was not sought or granted
by the applicant. The
irresistible implication is that the applicants consider any
occupiers of any of the properties as unlawful.
[35]
In addition to the fact that this affidavit
was filed irregularly and without leave being sought or granted for
its delivery, the
affidavit is inadequate and bald in its content. In
it, Mr Jooste makes the bald statement that the farms Libanon and
Panvlake
are unoccupied but does did not describe any steps taken by
the applicants to either establish the present position or to verify
whether the information available to them that the properties are
vacant, is indeed correct. I am not satisfied on the available
facts
that it can unequivocally be accepted that there are no employees of
the respondent or other individuals occupying the properties,
absent
a proper investigation and report on the issue by the business rescue
practitioners, so that all relevant facts may be placed
before a
court in due course.
[36]
The applicants are further seeking to
jettison an agreement reached by them with the respondent that the
applications should be
heard together. The decision to do so seems to
be based on expedience when the shoe pinched consequent upon the
intervention applications.
Considering the correspondence to the ADJP
regarding the allocation, this agreement formed the basis on which
the matters were
ultimately allocated as a special allocation.
[37]
The applicants further disregard an
agreement with the respondent that the findings in one of the matters
would follow in the other
matters, as articulated in the applicant’s
heads of argument. If the matters are dealt with separately by
different courts,
different factual and/or legal findings may follow.
[38]
In order to adjudicate the remaining two
applications, it would require of this court to disavow my mind of
information provided
in the proceedings under case number 28249/2019
which is pertinent to the proceedings in the other matters and to
ignore the facts
placed before me pertaining to the business rescue
proceedings of the respondent and the possible existence of employees
of the
respondent who reside or occupy the properties.
[39]
It is also now apparent that the matters
are not ripe for hearing and the papers require supplementation
before they can be adjudicated
on all the relevant facts. Whilst
there have been no intervention applications in the other two
applications, the issue of non-joinder
of the business rescue
practitioners of Servigraph has been raised by the respondent in its
heads of argument. Although belatedly
raised by Servigraph, it is
nonetheless a factor which I must consider.
[40]
Lastly, the main applications were launched
during August 2019 and Servigraph’s answering papers were
delivered during October
or November 2019 respectively, well prior to
Servigraph being placed in business rescue. It could thus not have
been expected of
any of the parties to deal with this issue in their
papers. Material events have now occurred which must be placed before
the court
so that the applications can be properly considered. The
issues surrounding employees and other individuals who occupy the
properties
must also be properly canvassed to ensure a proper
adjudication of the applications based on all the relevant facts.
[41]
I turn to the issue of costs. The
applicants sought a punitive costs order against the respondent. In
turn, adverse punitive costs
orders were sought against the
applicants by the intervening parties and the respondent. In short,
the applicants contended that
the business rescue proceedings were an
abuse and part of a strategy to frustrate and delay the eviction
applications; whereas
the intervening parties and the respondent
contended that the applicants, as
dominus
litis,
had failed to take all of the
necessary steps in relation to the applications, which resulted in
the need for the intervening employees
and the business rescue
practitioners to launch intervention applications to protect their
interests and ultimately the postponement
of the main applications.
[42]
On the available facts, it cannot be
concluded that the business rescue proceedings were an abuse. Nor can
the intervention applications
be characterised as such. The
conduct of the applicant and how it resulted in the present position,
must be considered.
[43]
It was undisputed that Servigraph’s
voluntary business rescue resolution was signed on 7 May 2020 and
registered with CIPC
on 8 May 2020. Its creditors were notified of
the business rescue on 15 May 2020. On 23 June 2020, Servigraph’s
attorney
addressed a letter to each of the applicants in the three
main applications, advising them that it had been placed under
supervision
and business rescue and advising them of the identity of
one of the business rescue practitioners, Mr Clark. In that
correspondence,
attention was drawn to the provisions of s133 of the
Act and the moratorium contained therein. The letter further drew
attention
to the fact that the validity of the cancellation of the
lease agreements formed a major dispute in the pending main
applications
and it was contended that the applicants required the
permission of the business rescue practitioner to proceed with the
three
applications.
[44]
On 7 July 2020, the applicants’
attorneys addressed a letter to the ADJP requesting the allocation of
the three matters as
a special motion. In that letter reference was
made to the 23 June letter and the dispute regarding the
applicability of s133.
It was contended that the business rescue
constituted an abuse of process designed to delay the finalisation of
the eviction proceedings.
In the same letter the applicants expressed
the view that s133 of the Act was not applicable as the lease
agreements were validly
cancelled and Servigraph was thus in unlawful
occupation of the properties. The same argument was advanced in
opposition to the
business rescue practitioner’s intervention
application.
[45]
The dispute regarding the applicability of
s133 of the Act and the position of the business rescue practitioners
is thus not new
and existed even before the ADJP was approached for
an allocation, yet no steps were taken by the applicants to address
the issue
timeously or to raise it as an issue in the application
papers so that it could be considered at the hearing. No leave was
sought
to file additional papers to bring the existence of the
business rescue proceedings to the attention of the court. The
applicants
also manifestly failed to take any active steps to involve
the business rescue practitioners in the proceedings and unreasonably
opposed their intervention application.
[46]
In launching the eviction proceedings, the
applicants further at no stage considered the position of employees
of the respondent
who may well be residing on the various properties
and took no steps to establish what the position was in relation to
people who
may be occupying any of the properties. The applicants
should have notified the employees of the proceedings earlier and
afforded
them an opportunity to exercise their rights. At the very
least, the applicants should have properly investigated the facts
surrounding
individuals who may occupy or reside on the properties
when launching the eviction proceedings and thereafter. The founding
papers
do not even address the issue properly or comprehensively.
[47]
Considering that Servigraph conducted
farming activities, it would be unreasonable for the applicants not
to anticipate that it
has multiple employees and that at least some
of them may be in occupation of or resident on the properties and
that this issue
should be taken into consideration.
[48]
Although the applicants complained that the
intervention applications were an ambush, it was as a result of their
own failure to
do what was necessary that the events unfolded at the
hearing as they did, ultimately necessitating the postponement of the
main
applications.
[49]
The granting of a punitive costs order is
warranted and in the interests of justice in these circumstances, at
the very least so
that the intervening parties and the respondent are
not out of pocket for the legal expenses incurred.
[17]
This is specifically apposite in respect of the intervening employees
who are not people of means and whose rights require protection.
[50]
The position of the respondent in the
proceedings under case number 28249/2019 however stands on a slightly
different footing. In
the correspondence, the applicants justifiably
criticised Servigraph for failing to timeously deliver their
affidavits and heads
of argument. The complaint was echoed in the
correspondence to the ADJP and resulted in a directive being given on
23 July 2020
that the respondent’s heads of argument were to be
served by 21 August 2020. The respondent failed to do so. After
allocation
of the matter to me, I gave a further directive for the
respondent to deliver its heads of argument. In response, a practice
note
was filed by respondent’s counsel explaining that he had
recently been briefed in the matter, that he was under the impression
heads had been filed previously and that it would be impossible to
deliver heads of argument by the deadline. In those circumstances,
I
granted a further indulgence for the heads of argument to be
delivered so that a postponement could be avoided. During the
hearing,
and in all the respondents’ papers, including its
heads of argument, no explanation was tendered why respondent’s
heads
were not delivered timeously, other than the limited
explanation proffered in the practice note, and why counsel was
briefed late.
It does not avail the respondent to blame the
applicants for failing to bring a compelling application in relation
thereto, whilst
it, independently, was fully aware of its obligation
to deliver its heads of argument timeously under the rules, enforced
by the
ADJP’s directive to do so by 21 August 2020.
[51]
I agree with the applicants’
contention that the respondent’s conduct is worthy of censure
on this issue. An appropriate
way to illustrate displeasure would be
to deprive the respondent of the punitive costs order I intend to
grant under case number
28249/2019 and to direct such costs to be on
the usual scale as between party and party.
[52]
I grant the following orders:
Case number 28247/2019
[1] The application is postponed sine die.
[2] The applicant is directed to pay the wasted costs on the scale as
between attorney and client.
Case number 28248/2019
[1] The application is postponed sine die.
[2] The applicant is directed to pay the wasted costs on the scale as
between attorney and client.
Case number 28249/2019
[1] The application is postponed sine die.
[2] The first and second intervening parties, Messrs Clark NO and
Mkhondi NO, in their capacities as the duly appointed business
rescue
practitioners of the respondent, are granted leave to intervene and
are joined as the second respondent and third respondent
respectively.
[3] The third and fourth intervening parties, Mr Mbatha and Mr Nkosi
are granted leave to intervene and are joined as the fourth
respondent and fifth respondent respectively.
[4] “
All occupiers of unregistered portions of Portion 3, 5,
8, 14, 19, 21, 24 and 23 of the Farm Waterpan, Portion 24 of the farm
Modderfontein
and Portion 41 of the Farm Jachtfontein”
(“the leased properties”) is joined as sixth respondent.
[5] The first, second third and fourth intervening parties are
directed to deliver their answering papers within 15 days of date
of
this order.
[6] The first and second intervening parties are directed to compile
and submit a report to the Court and the parties within 15
days of
date of this order regarding the employees of the respondent, which
shall include in respect of each employee: (i) whether
such employee
occupies and is presently resident on any of the properties occupied
by the respondent and leased from any of the
applicants (“the
properties”) ; if so (ii) the identification of which part of
the properties is occupied by such employee,
and (iii) how many
individuals occupy such property with such employee.
[6] The applicants are directed to serve the application in an
effective manner and in compliance with the applicable statutory
provisions on all occupiers of the leased properties and on all
employees of the respondent.
[7] The applicants are directed to pay the costs of the intervention
application of the first and second intervening parties, Messrs
Clark
NO and Mkhondo NO, on the scale as between attorney and client,
jointly and severally, the one paying the other to be absolved.
[8] The applicants are directed to pay the costs of the intervention
application of the third and fourth intervening parties, Messrs
Mbatha and Nkosi on the scale as between attorney and client, jointly
and severally, the one paying the other to be absolved.
[9] The applicants are directed to pay the costs of the respondent,
jointly and severally, the one paying the other to be absolved.
EF
DIPPENAAR
JUDGE OF THE
HIGH COURT JOHANNESBURG
APPEARANCES
DATES OF HEARING
: 19
and 20 October 2020
DATE OF JUDGMENT
: 22
October 2020
1
ST
AND 2
ND
INTERVENING PARTIES
:
Adv. J Scherman
COUNSEL
1
st
AND
2
nd
INTERVENING PARTIES
: Venn &
Muller Inc
ATTORNEYS
(business rescue practitioners)
3
rd
AND 4
th
INTERVENING PARTIES
:
Adv. M. Mathaphuna
COUNSEL
3
rd
AND 4
th
INTERVENING PARTIES
:
Mfinci Bahlmann Inc.
ATTORNEYS
(employees)
APPLICANTS’ COUNSEL
:
Adv. TJB Bokaba SC
Adv. H Rajah
APPLICANTS’
ATTORNEYS
:
Werksmans Attorneys
RESPONDENT’S COUNSEL
: Adv. S.
van Rensburg SC
RESPONDENT’S
ATTORNEYS
:
Martin van Vuuren Attoneys
[1]
Drawn by a different senior counsel than who
appeared at the hearing
[2]
Molusi and Others v Voges NO and Others [2016]
ZACC 6
[3]
62 of 1997
[4]
3 of 1996
[5]
Nelson Mandela Metropolitan Municipality v Greyvenouw CC
2004 (2) SA
81
(SE) at 89B-C
[6]
SA Riding for the Disabled Association v Regional
Land Claims Commissioner
2007 (5) SA 1
(CC) at paras 10-11 . see
also Snyders v De Jager 2017(5) BCLR 604 (CC) para 9
[7]
Occupiers of Ompad Farm v Green Horison Farm
(Pty) Ltd 2014 JDR 1030 (KZP) para
[8]
Cape Killarney Property Investments (Pty) Ltd v
Mahamba 2001 (4) SA 1222 (SCA)
[9]
71 of 2008
[10]
2016 (6) SA 63 (GJ)
[11]
Para 13
[12]
2016 (6) SA 501
(WCC) at para 31
[13]
New Garden Cities Incorporated Association not
for Gain v Adhikarie
1998 (3) SA 626
(C) para 10
[14]
S140(3)
[15]
Maake and Others v Chemfit Finechemical (Pty) Ltd
(5772/2016) HCA A04/2018 [2018] ZALMPPHC 71 (22 November 2018)
[16]
under case numbers 28247/2019 and 28248/2019
[17]
Nel v WaterbergvLandbouers Ko-operatiewe
Vereeniging
1946 AD 597
at 607