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2021
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[2021] ZAGPJHC 170
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Benjamin and Another v Govender and Others (2021/22981) [2021] ZAGPJHC 170 (17 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER:
2021/22981
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
NO
17
May 2021
In
the matter between:
CHERYL
ANN BENJAMIN (nee GOVENDER)
1
ST
APPLICANT
RYAN
MARK
RABEY
2
ND
APPLICANT
And
COLIN
PREMLAN GOVENDER
1
ST
RESPONDENT
COLIN
PREMLAN GOVENDER NO
2
ND
RESPONDENT
(In
his capacity as Trustee of the
ABISHAI
TRUST, (No 4270/2012)
NICOLE
ODELL BALKARAN NO
3
RD
RESPONDENT
(In
her capacity as Trustee of the
ABISHAI
TRUST, (No 4270/2012)
SPIDERWEBB
ALTITUDE SYSTEMS (PTY) LTD
4
TH
RESPONDENT
MASTER
OF THE HIGH COURT
5
TH
RESPONDENT
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
6
TH
RESPONDENT
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
7
TH
RESPONDENT
ABISHAI
CAPITAL (PTY)
LTD
8
TH
RESPONDENT
JUDGMENT
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 17th of May 2021.
DIPPENAAR
J
:
[1]
The applicants sought, in an urgent
application launched on Monday 10 May 2021, enrolled for hearing on
11 May 2021, variation of
an order granted in the urgent court by
Victor J on 20 April 2021 under case number 14808/2021, enforcement
of that order by way
of further interdicts and contempt relief,
together with a punitive costs order. In the applicants’ heads
of argument, the
purpose of the application was stated to be “
for
variation/amplification and the handing over of the fourth
respondents financial and other records and banking accounts and
assets to enable the applicants to administer the fourth respondent
as required under the Companies act (sections 66 et sec)”
.
The application was opposed by the first to fourth and eighth
respondents (“the respondents”). The respondents launched
a counter application, conditional upon the granting of the
interdictory relief sought by the applicants, in which a variation
to
the Victor J order was sought, attaching a number of conditions to be
attached to applicants’ access to the fourth respondent.
[2]
When the matter was called on 11 May 2021,
the applicants requested the matter to stand down until 13 May 2021.
The founding papers
had afforded the respondents some 4 hours to
deliver their answering papers. A partial answering affidavit was
delivered under
protest at 09h45 on the morning of 11 May 2021. On
the evening of 12 May 2021, at 20h49 a supplementary answering
affidavit was
delivered. The applicants had delivered a replying
affidavit, dealing only with the partial answering affidavit during
the afternoon
of 12 May 2021. In their heads of argument, the
applicants objected to the supplementary affidavit and sought the
dismissal of
the counter application. They did not however deliver
any supplementary replying affidavit. When the matter was
argued on
13 May 2021, the applicants did not seek a postponement of
the application, nor an opportunity to supplement their replying
papers.
The applicants must be held to their election not to respond
to the supplementary answering affidavit.
[3]
The respondents further launched a
condonation application for the late delivery of their answering
affidavits. No opposing papers
were delivered by the applicants. I am
satisfied that good cause has been shown and that condonation should
be granted.
[4]
According
to the applicants, the basis of their case is “to enable the
applicants to perform their fiduciary duties under
the Companies Act”
[1]
(“the Act”).
Reliance was placed on paragraph 2.5 of the order of Victor J which
provides: “
The
Applicants are to be placed in the position to exercise their duties
under the Companies Act and its regulations and the fiduciary
duties
for the fourth respondent”.
[5]
The respondents’ grounds of
opposition were: (i) the application was not urgent; (ii) the court
is functus officio and the
issues are
res
iudicata.
The court has no power to
vary the Victor J order either under r 42 or the common law; (iii)
the order of Victor J is currently
suspended under s18(1) of the
Superior Courts Act as it is final in effect; and (iv) the applicants
have failed to make out a case
on the facts that the respondents are
not complying with the order of Victor J.
[6]
The present application is predicated on
the alleged non-compliance by the respondents with the Victor J order
in terms of which
interdictory relief was granted in favour of the
applicants, directing the first to fourth respondents
inter
alia
, not to deny the applicants access
to the premises and records of the fourth respondents. The order was
granted “
pending the final enquiry
into the directorships of the fourth respondent by the sixth
respondent and any litigation arising therefrom
”.
The respondents launched an application for leave to appeal
against the Victor J order on 21 April 2021.
[7]
The proceedings before Victor J were
preceded by an earlier urgent application before Windell J on 10
March 2021. The present proceedings
are also related to four other
legal proceedings and certain investigations by the South African
Police Services and others. The
issues between the parties traverse a
wide ambit in respect of which there are multiple factual disputes
between the parties. Various
of those disputes are again raised in
the present proceedings.
[8]
I
agree with the respondents that the present application was brought
with undue haste and without the requisite urgency, resulting
in a
haphazard delivery of papers at the last minute. The respondents
argued that the matter should be dismissed on the basis that
it
constituted an abuse
[2]
. The
matter could have been struck from the urgent roll for the lack of
urgency illustrated in the founding papers. I have however
elected to
consider the application on its merits in order to consider whether
it constitutes an abuse of process.
[9]
It is undisputed that the nub of the
applicants’ complaints underpinning the contempt application
before Makume J and their
present complaints are the same. There is
merit in the respondents’ contention that the present
application constitutes the
proverbial “second bite at the
cherry”. The judgment of Makume J is not presently
available. In dismissing the
application after hearing full argument
on its merits, Makume J already determined that the respondents’
conduct in refusing
to allow the applicants to collect and make
copies of the fourth respondents’ documents, did not constitute
contempt of the
Victor J order. That issue is
res
iudicata
.
[10]
The
contempt relief sought by the applicants is in any event doomed to
failure as the applicants fail to meet the requirements for
contempt
[3]
in their founding
papers. The interpretation of the order is in dispute between the
parties. It is undisputed that the respondents
are acting on legal
advice received from their attorneys and senior counsel, pertaining
to the interpretation of the Victor J order.
In such circumstances it
can hardly be concluded that the applicants have illustrated beyond a
reasonable doubt that the respondents
are in willful and mala fide
contempt of the Victor J order.
[11]
Moreover, the wording of the relief sought
is in peculiar terms and based on what can best be described as a
pre-emptive arrest
for contempt. Such relief cannot succeed and in my
view constitutes an abuse.
[12]
The
application for leave to appeal the Victor J order remains pending.
It is in dispute between the parties whether that order
is
appealable. The applicants contended that the order is interim and
thus not appealable whereas the respondents contended that
the order
is final in its effect, absent any pending proceedings or enquiry
into the directorships of the fourth respondent and
that its
operation is suspended under s18(1) of the Superior Courts Act
[4]
.
The applicants did not in their founding papers establish that in
relation to the fourth respondent, a complaint had been made
under s
168 of the Companies Act
[5]
or
that it has been instituted by the delivery of form CoR 135.1 or that
there was any pending proceedings or enquiry into the
directorships
of the fourth respondent at the time of the granting of the Victor J
order. There is thus merit in the respondents’
argument.
[13]
In addition to an interpretational dispute
between the parties regarding the meaning of the Victor J order,
disputes have arisen
pertaining to what access the applicants were to
enjoy under that order. There is a myriad of factual disputes on the
papers. The
applicants’ case is that the respondents are “in
wanton disregard” of the Victor J order. I agree with the
respondents
that in the present application, the applicants are
attempting to substantially expand on the relief sought and granted
to them
in terms of the Victor J order. The application had been
crafted by the applicants and had been fully argued before Victor J
granted
the order in its terms. The applicants did not refer me to
any authority entitling this court to vary that order and no case for
such variation was made out, either under r 42 or the common law.
They contended that they were entitled to seek an amendment to
the
order on good cause shown.
[14]
It
is well established that once a court has finally pronounced a final
judgment or order, it has itself no authority to correct,
alter or
supplement it, except in limited circumstances
[6]
.
Such limited circumstances do not arise in the present application.
Some three weeks after the granting of the original order
before
Victor J, the applicants sought to tailor the relief sought and
obtained in that application.
[15]
Even if it were open to the applicants to
seek to vary the Victor J order on an interim basis, I am not
persuaded that the applicants
have shown good cause or have made out
a proper case in their founding papers to do so. No attempt was made
to address the requisites
of the additional interdictory relief in
their founding papers. The applicants’ founding papers are
replete with vague references
to “
the
applicants being obliged to exercise their fiduciary duties”
to the fourth respondent. No attempt is made to give content to those
duties other than vague references to the Act and no factual
information has been provided by the applicants in relation to those
issues. In those circumstances, I am not persuaded that the
applicants have made out a proper case or have shown any good for the
proposed variations to the Victor J order.
[16]
I am further not persuaded that it would be
appropriate at this juncture, to grant additional urgent interdictory
relief aimed at
extending the ambit of the order of Victor J, whilst
the very existence of the order is subject to an application for
leave to
appeal.
[17]
It follows that the application must fail.
In light of the conclusions reached, it is not necessary to consider
the respondents’
conditional counter application.
[18]
The normal principle is that costs follow
the result. There is no basis to deviate from this principle. The
respondents sought a
punitive costs order based on their contention
that the application constituted an abusive. Considering the
applicants’ conduct
in relation to the application, which can
be characterised as an abuse, I am persuaded that such an order is
warranted.
[19]
I grant the following order:
[1] Condonation is
granted to the respondents for the late delivery of their answering
and supplementary answering affidavits.
[2] The application is
dismissed with costs on the scale as between attorney and client.
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
13 May 2021
DATE
OF JUDGMENT
:
17 May 2021
APPLICANT’S
COUNSEL
: Adv. JTH. Berdou
APPLICANT’S
ATTORNEYS
: Annie Van Der Merwe Inc.
1
st
to
4
th
& 8
th
RESPONDENTS’ COUNSEL
:
Adv R. Moultrie SC
1
st
to
4
th
& 8
th
RESPONDENTS’ ATTORNEYS
:
Schoonees Belling & Georgiev
[1]
71
of 2008
[2]
Relying
on Vena v Vena 2010 (2) SA 248 (ECP)
[3]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA);: Pheko &
Others v Ekhurhuleni City
2015 (5) SA 600
(CC); Matjhabeng
Municipality v Eskom Holdings Ltd & Others; Mkhonto & Others
v Compensation Solutions (Pty) Ltd
2018 (1) SA 1 (CC)
[4]
10 of 2013
[5]
71
of 2008
[6]
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977 (4) SA 298
(A) at
306F-307G