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[2021] ZAGPJHC 507
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Van Den Heever N.O. and Another v Ally and Another (48084/2017) [2021] ZAGPJHC 507 (29 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 48084/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
29/01/2021
In
the matter between:
VAN
DEN HEEVER, THEODOR WILHELM N.O
First
Applicant
JOHANNES,
CLINTON ARTHUR N.O
Second
Applicant
and
ALLY,
DHANESHA
First
Respondent
THE
LIBERTY GROUP
LIMITED
Second
Respondent
JUDGMENT
ROME,
AJ:
INTRODUCTION
1.
This
judgment is in respect of an application for postponement.
2.
The
postponement is sought by the applicants. It is necessary to provide
some procedural
context.
3.
The applicants are the
trustees of the insolvent estate of the late
Mr
Moodley. The first respondent is Mr Moodley’s daughter.
4.
Mr Moodley passed away in
February 2016. His estate was shortly
thereafter
placed in provisional and then final sequestration.
5.
Prior to his death, Mr
Moodley had taken out certain insurance policies with
the second
respondent (Liberty).
6.
It is the first
respondent’s case that these policies have been lawfully ceded
to her. The
applicants disputed the alleged cession and so litigation has ensued.
7.
This court and on 4 July
2016, Matojane J provisionally interdicted and
restrained
Liberty from paying any benefits in respect of any policy, annuity
and/or similar interest in respect of with which Mr
Moodley was the
owner, to any person. Matojane J further directed that payment in
respect of the
said
policies was to be made upon written authorisations or instructions
of the applicants.
8.
On 26 July 2016 Weiner J
confirmed and made final the order granted by
Matojane J
(“the Matojane order”) on 4 July 2016.
9.
Thereafter, and in April
2017, the applicants gave written instructions to
Liberty to make
payment of the policies to them as trustees of the insolvent estate.
This led to the first respondent launching
an urgent application on
15
May 2017. The urgent application was heard before Nicolls J on 27 May
2017. The outcome of the urgent application was that it
was as per
the relevant court order “
dismissed
”
with costs. As is so often the case in urgent court, the judgment and
order (“the Nicolls judgment”) were delivered
on an
ex
tempore
basis.
10.
The above is prelude to the present (main)
application. In the main
application
(I use the term ‘
main
application’
simply
to distinguish between the main case and the present interlocutory
application for postponement), the applicants contend
that prior to
the date of the Matojane order, an amount of some R100,000.00 (one
hundred thousand Rand) was already paid out by
Liberty to the first
respondent. According to the applicants, this amount was paid out of
the policies at a time when the first
respondent was aware
alternatively should have been aware of the fact of the provisional
sequestration. The applicants thus contend
that the payment of this
amount ought to have been made to the estate and not to the first
respondent.
11.
The main
application was issued in December 2017. The answering affidavit
in the main
application was served during April 2018. In the answering affidavit,
the first respondent admitted that the urgent
application had been
dismissed with costs. In somewhat contradictory fashion, the first
respondent also alleged that the reason
for the dismissal was the
finding by the court that the application was not urgent. I do not
(save for the one aspect addressed
in the paragraph below) comment
further on the contents of the answering affidavit in the main
application as it is not necessary
to do so for purposes of this
interlocutory judgment.
12.
I note that in the answering affidavit, the
first respondent alleged that she
ought
to be entitled to the relief in respect of her notice of
counterapplication “
filed
herewith
”.
Nonetheless no notice of counterapplication was filed simultaneously
or together with the answering affidavit. Instead
in June 2018 some
three months subsequent to her answering affidavit the first
respondent served her notice of counterapplication.
The
counterapplication is for declaratory relief to the effect that
certain payments (in respect of the relevant polices) were
unlawfully
paid to the applicants and such payments should accordingly now “be
paid over” (for want of a better expression)
by the applicants
to the first respondent. As I understand the amount claimed by the
first respondent now totals approximately
R1,1 million.
13.
The matter was set down for hearing during
October 2018, both parties
having
filed heads of argument. In respect of the October 2018 hearing, and
before the matter was adjudicated upon, the first respondent
presented the
applicants
with an application to introduce a further answering affidavit (as an
answer to the main application) and which would
also serve as a
founding affidavit in the counterapplication. As a result, the entire
matter was postponed
sine
die
.
14.
This matter was then set down for hearing
during January 2021. Shortly
before
the present hearing, the first respondent served supplementary heads
of argument. These supplementary heads of argument are
dated
15
December 2020 but according to the applicants, they were served on
5
January 2021. A comparison between her two sets of heads of argument
indicates that in the later heads of argument the nature
of the first
respondent’s contentions has shifted substantially. The later
heads of argument put the interpretation and effect
of the Matojane
order at the centre of this matter. What is further apparent from the
later heads of argument is that the first
respondent no longer
persists with her application to introduce her further
answering/founding affidavit,
15.
As referred to above the first respondent’s
new arguments bring into sharp
focus
the correct construction of the Matojane order and what effect the
order has on the counterapplication and the main application.
It is
thus clear that facts bearing on the correct interpretation of the
Matojane order are relevant to the adjudication of this
matter. The
applicants in argument stated that the purpose of the postponement is
directed at procuring the transcript of the Nicolls
Judgment. The
applicants in their application for postponement (dated 20 January
2021) state that they are now taking
urgent
steps to procure the transcript of the Nicolls judgment. The question
is thus why is this judgment relevant.
16.
The applicants annexed to their founding
affidavit in the postponement
application,
a contemporaneous memorandum prepared by counsel who was tasked with
noting the oral judgment. In this document, it
is recorded that in
her judgment, Nicolls J
inter
alia
stated that:
“
The
applicant
[i.e.
the present first respondent]
argues
that the Matojane J order only allows the second and third
respondents
[i.e.
the present applicants]
to
dictate when payment should be made. The argument is that on a proper
interpretation of the order, once the second and third
respondents
have provided the written authorisation to Liberty, Liberty must then
make payment not to the trustees but in terms
of the policies - that
is to say the applicant herself. In my view this is a disingenuous
interpretation of the order, which if
properly interpreted allows the
first respondent (Liberty) to make payment to the insolvent estate
upon written authorisation of
the trustees.
”
17.
The first respondent in her later heads of
argument submitted that even if
the
Matojane order is to be interpreted as empowering the trustees to
elect who should be paid, it could never have been the intention
of
the Matojane order that the trustees could do so regardless of what
the law dictates as to who the rightful payee should be.
18.
As I am dealing with a postponement
application, I do not comment on the
correct
construction or effect of the Matojane order or the merits of the
above submission. I simply note that the contents of the
above
memorandum indicate that the Nicolls judgment may have some bearing
on the correct construction of the Matojane order and
the question of
whether that order dictates who the rightful payee, of the polices
ought to have been.
19.
In the circumstances, it cannot in my view
be seriously contended that any
court
adjudicating on the main application and counterapplication should
not ideally be in possession of a transcript of the Nicolls
judgment.
Indeed, at the hearing of this postponement application, the
applicants’ counsel (Mr Aucamp) made it clear that
the sole
purpose of the postponement application was to obtain the transcript
of Nicolls J judgment as, according to the applicants,
this would
assist in meeting the first respondent’s “
new
contentions
”
(as they appear from the later first respondent’s later heeds
of argument), with the plea of
res
judicata
.
20.
To this contention, Mr Sawma SC, who
appeared for the first respondent,
asserted
that if the applicants wished to raise a defence of
res
judicata
,
to the counterapplication they should have done so from the outset
(i.e. from 2018 and from the time that the counterapplication
was
brought to their attention).
21.
The first respondent’s argument is
that the applicants were thus entirely
remiss
in failing to apprehend the need to procure the transcript of the
Nicolls judgment. However, having regard to the procedural
history of
this matter, the now abortive attempt of the first respondent to
introduce a further
answering
affidavit/founding affidavit in the counterapplication and comparing
the contents of the first respondent’s previous
heads of
argument with her later heads of argument, I do not agree that the
applicants were so remiss. Had the arguments now advanced
by the
first respondent been raised or disclosed at the proper time i.e.
when her first set of heads of argument were filed, no
doubt the
applicants would have then taken steps to ensure that the transcript
of the judgment was before this court when the matter
was argued.
22.
I am accordingly of the view that the
applicants ought to be granted the
postponement
so as to enable them to ensure that the transcript of the judgment of
Nicolls J is filed and is available to the court
hearing the main
application and the counterapplication.
23.
The above brings me to the issue of costs.
It is correct that ordinarily the
party
applying for a postponement is seeking an indulgence and is required
to pay the costs thereof. However, in considering the
issue of costs,
I have taken account of the complex and unusual set of circumstances
in this matter, the counterapplication’s
strange procedural
history (including the very recent aborting of the first respondent’s
application to introduce a further
affidavit in support of her
counterapplication) and the relative lateness of the first
respondent’s second set of heads of
argument. In these
circumstances, I am of the view that the costs of the postponement
fall to be reserved. In the circumstances,
I make the following
order:
23.1.
the application for postponement is granted;
23.2.
the matter is postponed
sine die
;
23.3.
the costs of the postponement application are reserved.
G
ROME
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
Appearances
For
the applicants:
Adv. S.
Aucamp
Instructed
by:
Lanham - Love Attorneys
For
the first respondent: A Sawma SC
AB
Omar
Instructed
by:
Zehir Omar Attorneys
Date
of hearing:
26 January 2021