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[2021] ZAGPJHC 450
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Dibakoane N.O v Van Den Bos and Others (28772/2020; 2054/2021) [2021] ZAGPJHC 450 (2 June 2021)
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REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 28772/2020
CASE
NO: 2054/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
2/06/2021
In
the matter between:-
NETTUS
MORAL PHONEY DIBAKOANE N.O
Applicant
and
JAN
VAN DEN
BOS
First Respondent
(Director
of Fourth Respondent)
P
GOVENDER
Second Respondent
(Director
of Fourth Respondent)
M
MOYO
Third Respondent
(Director
of Fourth Respondent)
TRADEWORX
148 (PTY) LTD T/A
Fourth Respondent
PAL
PROPERTY MANAGEMENT
&
ADMINISTRATORS
LESWIKA
GWANGWA
Fifth Respondent
(In
her capacity as duly appointed trustee)
MEISIE
MALAPANE
Sixth Respondent
(In
her capacity as duly appointed trustee)
GIBSON
NDLOVU
Seventh Respondent
(In
her capacity as duly appointed trustee)
SELLO
RAPHELA
Eighth Respondent
(In
her capacity as duly appointed trustee)
RUTH
MOTHIBEDI
Ninth Respondent
(In
her capacity as duly appointed trustee)
MAGGY
KOMANE
Tenth Respondent
(In
her capacity as duly appointed trustee)
THE
BODY CORPORATE OF QUEEN ANNE
Eleventh Respondent
(Registration
number: SS105/1981)
ABSA
BANK
Twelfth Respondent
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
WINDELL,
J:
INTRODUCTION
[1]
This is an application for leave to appeal an order granted by this
court during urgent court proceedings on 9 and 10 March
2021. The
order was granted in respect of a return date of a rule
nisi
that
had its origin in an urgent
ex parte
contempt application,
under case number 2054/202, instituted by Mr Dibakoane, in his
capacity as the appointed administrator of
the Body Corporate of
Queen Anne, against Mr van den Bos and eleven other respondents on 20
January 2021. In this application (hereinafter
referred to as “the
contempt application”) Mr Dibakoane sought an order,
inter alia
, in the following terms:
i.Finding
the first to tenth respondents in contempt of court of an order
granted by Vally J under case number 28772/2020 on 1 December
2020
(hereinafter referred to as “the administration application”).
ii.That
the twelve respondent (“ABSA”) be ordered to freeze the
bank account belonging to the fourth respondent (PAL
Property
Management & Administrators) with account number and the amounts
be transferred into the administrator’s account
held on behalf
of the Body Corporate of Queen Anne at First National Bank.
iii.That
the first to third respondents be committed to prison for contempt of
court for a period of 30 days.
iv.That
a rule
nisi
be issued returnable on 9 March 2021 calling upon the first to fourth
respondents to show cause why the ABSA account should not
be frozen
and the amount transferred into the administrators account for the
Body Corporate of Queen Anne held at First National
Bank.
[2]
It is common cause that Wright J only granted limited relief. He
issued an order in favour of Mr Dibakoane (hereinafter referred
to as
“the Wright J order”) which reads as follows:
“
1.
A rule nisi is issued, returnable on 9 March 2021, calling upon the
respondents to show cause why the following order is not
to be made
final:
1.1
The 12
th
respondent is to freeze the bank account belonging to the 4
th
respondent (ABSA bank account number [....]);
2. Costs reserved.
3. Pending the return
date, the order in paragraph 1.1 to operate with immediate effect.”
[3]
At the time of the hearing of the matter in the urgent court it was
submitted that it was not only the order of Wright J that
had to be
adjudicated, but also the contempt application as well as an
application launched by the respondents against Mr Dibakoane
(hereinafter referred to as the “reconsideration application”),
which I will return to later in the judgment.
[4]
Mr Köhn , counsel appearing on behalf of the respondents,
submitted that the contempt application was not properly before
court. He contended that the respondents only obtained knowledge that
the contempt application and the Wright J order were to proceed
in
urgent court when the consolidated roll for the week of 8 March 2021
was received on 9 March 2021. He also experienced problems
accessing
the pleadings on caselines as he had not been invited by Mr Seloane
(Mr Dibakoane’s attorney) to the two cases
(92504/2021 and
28722/20). He contended that the respondents did not received the
notice of set down for 9 March 2021 despite the
fact that Mr Seloane
was well aware that both applications were opposed.
[5]
As a result of the confusion, affidavits from both the applicant and
respondents were still being filed on the morning of 9
March 2021 and
10 March 2021. Mr Chiloane in his affidavit filed on 10 March 2021,
conceded that:
“
I
do not know which matter is to be heard on the 09
th
and 10
th
of March 2021, because in so far as I am concerned the appropriate
matter to be adjudicated is the rule nisi issued on 26 March
2021 by
the Honourable Justice Wright J, encapsulating the contempt of Court
as the basis for freezing of the ABSA Bank Account.”
[6]
After hearing the parties and considering the affidavits
(approximately 1051 pages with 61 index entries), this court held
that it was only the Wright J order that was properly before the
urgent court and as result the court would not be dealing with
the
contempt application and the reconsideration application. This court
consequently discharged the rule
nisi
and made the following
order:
1.
The ABSA bank account is released
and unfrozen immediately upon granting of this order.
2.
Mr Dibakoane is to take control of
the Standard Bank Account in the name of Queen Anne Body Corporate
with account number [....]
as per order of Vally J.
3.
Standard Bank is directed to reopen
the Standard Bank account.
4.
The balance of the relief sought in
the contempt and reconsideration application are postponed to the
opposed motion court roll
on 26 April 2021.
5.
The parties to file any further
affidavits if necessary on or before 24 March 2021 and heads of
arguments and practice notes before
21 April 2021.
6.
The costs occasioned in the urgent
court on 9 and 10 March reserved and to be determined at the hearing
on 26 April 2021.
[7]
On the same day of granting the order (10 March 2021) Mr Dibakoane
filed an application for leave to appeal (which was amplified
on 31
May 2021) against this court’s order. It is contended that this
court erred:
i.
in not dealing with the contempt of court
application as far as the court order of 1 December 2020 in
concerned;
ii.
in not making a final determination of the rule
nis
i on
whether the rule
nisi
is confirmed or discharged;
iii.in
finding that the first to tenth respondents’ affidavit filed in
support of the application for reconsideration, constituted
an
answering affidavit to the application heard on 26 January 2021;
iv.in
unfreezing the ABSA bank account of PAL Property Management &
Administrators and not making an order that the funds belonging
to
the Body Corporate of Queen Anne be transferred into the Standard
Bank account or an account in the name of the of the Body
Corporate
of Queen Anne prior to the account being unfrozen;
v.
in unfreezing the ABSA bank account, by so
doing allowing the first to fourth respondents to have access to the
funds belonging
to the Body Corporate of Queen Anne;
vi.in
seeking to deal with both the reconsideration which was struck of the
roll and the rule
nisi
on the return date. The application for reconsideration cannot be
dealt with on the return date;
vii.in
postponing the first to tenth respondents’ application for
reconsideration to the opposed motion court roll on 26 April
2021;
viii.in
postponing the application for reconsideration as once the court has
dealt with the rule nisi, there is nothing left to
be reconsidered
due to the fact that the Respondent is now before court to deal with
an order that was granted in their absence.
BACKGROUND
FACTS
[8]
The following facts are relevant for purposes of the application for
leave to appeal and to put this court’s order in
context. On 1
December 2020 an application (“the administration application”)
was launched under case number 28772/2020
by Ms Ncala Valencia
Gugulethu (the registered owner of a unit in a sectional title scheme
and building known as Queen Anne situated
in Hillbrow, Johannesburg)
against the Body Corporate of Queen Anne. In the application an order
was sought to,
inter alia
, appoint Mr Dibakoane as
administrator of the Body Corporate of Queen Anne for a period of 36
months in terms of the Sectional
Titles Schemes Management Act 8 of
2011. The application was unopposed. (It is averred by the
respondents that the Body Corporate
did not receive proper notice of
this application).
[9]
Vally J granted an order appointing Mr Dibakoane as the administrator
of Queen Anne for a period of 36 months. In terms of the
order Mr
Dibakoane was to open and operate an account at a registered
commercial bank in the name of the respondent, “
and/or take
possession of any account open in the name of the Body Corporate or
any modification thereof, and continue to operate
it or transfer such
funds into the aforesaid account opened by him and therefore close
any such account as deems fit”.
[10]
After the order was granted the trustees of the Body Corporate of
Queen Anne issued several notices to all the owners of units
at Queen
Anne. In one of the notices, dated 11 December 2020, the following
was stated:
“
We,
the trustees of Queen Anne, have just been informed that some owners
sneaked into the High Court on the 1
st
of December 2020, to have an administrator appointed, without any
notice of such a date to any owners. Claiming that a notice was
put
under all the flat doors is an outright lie. The way the appointment
was made is not legitimate, because all the owners were
not informed.
We will oppose this appointment. There is no need for an
administrator. We, the trustees are in full control of the
body
corporate affairs, we have managed to settle the municipal accounts,
we are busy with various maintenance projects and getting
full
co-operation from our managing agent. The administrator blocked our
Standard Bank account and without our knowledge opened
an FNB
account. Under no circumstances must owners pay into the FNB account
as we will have no control as what will happen to that
money. It will
take some time to sort out the Standard bank account, so in the
meantime, we have instructed our managing agent
in terms of
regulations of the Sectional Titles Schemes Management Act to collect
the levy payments into their ABSA Trust account.
The account number
will show on your levy statement. use your flat number as reference.
Do not at this stage pay into the Standard
Bank, nor FNB account.
[11]
It is common cause that reference to the ABSA account in the notices
is the same account that is the subject of Wright J’s
order. It
is also common cause that the Body Corporate of Queen Anne had a
Standard Bank Account prior to the appointment of Mr
Dibakoane as
administrator and that Mr Dibakoane opened a First National Bank
account after his appointment as administrator on
1 December 2020.
[12]
On 20 January 2021 Mr Dibakoane instituted the
ex parte
contempt application against the respondents for alleged failure to
comply with the order by Vally J. The application was brought
under a
different case number namely 2054/2021. As alluded to earlier, the
matter came before Wright J who ordered ABSA to freeze
the bank
account belonging to PAL Property Management & Administrators.
It is clear from the order granted by Wright
J that the contempt
application was not dealt with by the court.
[13]
On 18 February 2021 the respondents launched an urgent
reconsideration application of the
ex parte
urgent Wright J
order. In the reconsideration application a host of additional relief
was claimed against Mr Dibakoane and others
namely:
i.That
the parties under case numbers 2054/2021 and 28722/2020 be joined and
dealt with as convenience in terms of the provisions
of Rule 11;
ii.That
the urgent application under case number 2054/2021 be reconsidered
under Rule 6(12)(c) and set aside and that the ABSA bank
account be
released and unfrozen immediately.
iii.
That the appointment of Mr Dibakoane
as administrator be set aside;
iv.
That an interim order be granted interdicting and
restraining Ms Gugulethu, Mr Dibakoane, Nettus Real Estate, Seloane
Vincent Attorneys
and Vincent Seloane from interfering with the
management of the Body Corporate of Queen Anne and with the
contractual agreement
between the Body Corporate and the managing
agent, PAL Property Management & Administrators,
v.
Interdicting and restraining Mr
Dibakoane and others from interfering with the collection of levies
by the duly appointed managing
agent PAL Property Management &
Administrators;
vi.
granting a rule
nisi
returnable on 9 March calling upon the Mr Dibakoane and others to
show cause why they should not be held liable for costs on a
de
bonis propriis
basis and why the
interim order ought not be made final.
[14]
The matter came before Mudau J in the urgent court on 23 February
2021. He struck the application from the urgent court roll
with costs
for lack of urgency. Mudau J held that to his mind “
the
application was poorly concei
ved”, but stated that “
nothing
stops the applicants to approach the court to seek for an appropriate
relation to a reconsideration application for purposes
of the rule
nisi”.
[15]
On 9 March 2021 the matter came before this court. As stated earlier,
the contempt application was not dealt with by Wright
J on 26 January
2021 and the only issue for determination by this court on 9 March
2021 was whether the rule
nisi
should be discharged or
confirmed.
[16]
Mr Seloane, the attorney appearing on behalf of Mr Dibakoane, argued
that there was no answering affidavit filed by the respondents
in
opposition of the Wright J order. He contended that the court should
therefore not take cognisance of any of the respondents’
submissions or affidavits filed in the contempt and reconsideration
applications, and confirm the rule
nisi
thereby granting a
final order freezing the ABSA account.
[17]
Mr Köhn , counsel appearing on behalf of the respondents,
contended that there was a comprehensive affidavit filed on
behalf of
the respondents in the reconsideration application and that the court
should accept the affidavit into evidence when
considering the Wright
J order.
[18]
On a perusal of the founding affidavit in the reconsideration
application, it was clear that it dealt not only with the contempt
application, the reconsideration application and the administration
application, but it also constituted an answer to the Wright
J order.
As the Wright J order was granted
ex parte
, and to give effect
to the
audi alteram partem
rule, I exercised my discretion in
favour of the respondents and condoned and relaxed the formal
requirements, and accepted the
affidavit as an answer to the Wright J
order.
THE
APPLICATION FOR LEAVE TO APPEAL
[19]
I do not intend in dealing with each of the grounds set out in the
application for leave to appeal as the bulk of the grounds
of appeal
are incompetent and/or incompatible with the discharge of the rule
nisi
and are not appealable.
The
discharge of the rule nisi
[20]
The applicant sought an order for final relief, namely to freeze the
ABSA account and an order to pay the money belonging to
the Body
Corporate of Queen Anne in the ABSA account, into the First National
Bank Account. There is a clear dispute of fact
on the papers.
It is trite that, being motion proceedings, disputes of fact are to
be dealt with in accordance with the principles
laid down in
Plascon
Evans Paints Ltd v Van Riebeeck Paints Ltd.
[1]
A final interdict may therefore only be granted if the facts stated
by the respondents’ answering affidavits together with
the
admitted facts in the applicant’s founding affidavit justify
such an order.
[21]
The reconsideration application was launched with the support of the
trustees of the Body Corporate of Queen Anne. In
the
respondents’ affidavit it was alleged that the trustees were
duly elected and that the concluded a valid and binding
agreement
with the managing agent namely PAL Property Management &
Administrators on 9 October 2020. It was submitted that
Mr Dibakoane,
even in his capacity as administrator, may not terminate the
agreement between PAL Property Management Administrators
and Body
Corporate of Queen Anne unilaterally without calling a meeting to be
decided upon by a special resolution.
[22]
It was further contended that the ABSA account is the business
account of Tradeworx 148 (Pty) Ltd t/a Pal Property Management
Administrators. This account is a trust account and holds
various funds related to the administration and management of a
number of body corporates within the greater area of Johannesburg,
which are unrelated to the dispute between Mr Dibakoane and
the
respondents. This account is used to administrate the following
sectional titles: San Giulio; Stamford Hall; Queen Anne; Waters-edge
and Sandy Springs. It is submitted that money in the account
therefore does not belong exclusively to the Body Corporate of Queen
Anne. The ABSA account is used to make payments on behalf of the body
corporates, is audited each year and is compliant with all
the
provisions of a trust account in respect of the administration and
management of body corporates. It is submitted that since
the account
has been frozen all the other body corporates are unable to pay their
creditors. The electricity for various units,
including Queen Anne,
will therefore be terminated as Mr Dibakoane is unable or unwilling
to pay the creditors even though he is
in control of the
administration and has full access to the Standard Bank Trust Account
in the name of the Body Corporate of Queen
Anne.
[23]
It was submitted that the ABSA bank account was not created with the
intention to manage the financial affairs of the Body
Corporate of
Queen Anne solely as made out to be the case by the applicant. It was
submitted that as a result of Mr Dibakoane approaching
the court on
an
ex parte
basis, it was not only detrimental to the Body
Corporate of Queen Anne, but the smooth administration of the other
body corporates
listed above and has severely prejudiced them.
[24]
The applicant’s main contention during argument was that the
court should confirm the rule
nisi
and freeze the ABSA account
as the funds in the ABSA account will be dissipated by the
respondents should the order be discharged.
There was no merit in
this argument and there was no factual basis to give credence to the
allegations that PAL Property Management
& Administrators will
with the assistance of the duly appointed trustees expend the funds
in the ABSA trust account without
accounting therefore and seeking
prior approval from the trustees. If the facts stated the
respondents’ in their answering
affidavit together with the
admitted facts in the applicant’s founding affidavit are
considered, Mr Dibakoane had failed
to discharge the
onus
to
justify a final order.
[25]
In discharging the rule
nisi
the court also took into
consideration that there is a pending application by the respondents
to set aside the appointment of Mr
Dibakoane as administrator of the
Body Corporate of Queen Anne, in terms of section 16(5)(a) of the
Act. In that application it
is contended that Mr Dibakoane has failed
to make out a case in terms of the provisions of section 16 of the
Act; is not qualified
to administer a sectional title; is a director
of a financially distressed company being Nettus Real Estates (Pty)
Ltd which had
been in final deregistration since 2011; is not in
possession of an EAAB trust account, and does not hold a trust
account in order
to administrate a sectional title scheme in terms of
the provisions of the Act and the Regulations.
[26]
The appellant lodged an application for leave to appeal on 10 March
2021, the same day as when the order was granted.
The
application was filed, whilst knowing that an expedited opposed court
motion date has been made available during which a court
could have
dealt with the reconsideration application as well as the contempt
application (which includes a prayer for an order
to set aside the
appointment of Mr Dibakoane as administrator of the Body Corporate of
Queen Anne).
[27]
In light of the serious allegations against Mr Dibakoane and the
pending litigation between the parties, it would have been
irresponsible for this court to allow any funds to be paid over into
the First National Bank account.
THE
TEST FOR LEAVE TO APPEAL
[28]
The test for when leave to appeal should be granted is set out in
section 17(1)(a)
of the
Superior Courts Act 10 of 2013
which provides
as follows:
“
Leave
to appeal may only be given where the judge or judges concerned are
of the opinion that:-
(i)
The appeal would have reasonable
prospect success; or
(ii)
There is some other compelling
reason why the appeal should be heard, including conflicting
judgments on the matter under consideration.”
[29]
In
S v Smith
2012 (1) SACR 567
(SCA) the court held that the
test to be applied in an application for leave to appeal is as
follows:
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.”
[30]
The applicant contends that the appeal has reasonable prospects of
success. I disagree. I am satisfied that there are
no prospects
of success on appeal. The application for leave to appeal is
dismissed with costs.
[31]
It is trite that the noting of an appeal against the refusal of a
final order where interim interdictory relief was granted
(but the
final relief refused) does not revive the interim order unless the
parties have specifically agreed to the continued existence
of the
interdict pending an appeal. A party who desires further protection
by way of interdict pending the determination of the
appeal could
also make application for the renewal of the interdict. Where an
interim order is not confirmed irrespective of the
wording, the
application is effectively dismissed. There is accordingly no order
that can be revived by the noting of the appeal
and there is nothing
that can be suspended.
[2]
If an
applicant seeks further protection it has to bring a fresh
application which sets out the basis upon which the court should
grant a temporary interdict.
[3]
[32]
The ABSA bank account [....] must be released and made accessible to
PAL Property Management & Administrators upon granting
of this
order.
[33]
In the result the following order is made:
1.
The application for leave to appeal is dismissed with costs.
L.
WINDELL
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(Electronically
transmitted, therefore unsigned)
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 2 June 2021.
APPEARANCES
Counsel
for applicant: Mr
V.O.M. Seloane
Attorneys
for applicant: Seloane - Vincent
Attorneys
Counsel
for respondent: Adv. M.D. Köhn
Attorneys
for respondent: AM Ellis Attorneys
Date
of hearing:
1 June
2021
Date
of judgment:
2 June 2021
[1]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634 E-I.
[2]
Erasmus:
Superior Court Practice Vol 2 2ed A2-66 - A2-67
.
See also
Tapuch
v Aswagen and Others
(19960/2016)
[2016] ZAGPPHC 572 (11 May 2016)
[3]
Southernwind
Shipyard (Pty) Ltd v NUMSA and Others
[2008]
ZALCCT 7