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[2014] ZASCA 170
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Ansafon (Pty) Ltd and Another v Master of the Northern Cape Division of the High Court of South Africa and Others (513/2013) [2014] ZASCA 170 (14 November 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
no: 513/2013
In
the matter between:
ANSAFON
(PTY)
LTD
.........................................................................................
FIRST
APPELLANT
DIAMOND
CORE RESOURCES (PTY)
LTD
..............................................
SECOND
APPELLANT
and
THE
MASTER OF THE NORTHERN CAPE
DIVISION
OF THE HIGH COURT
OF
SOUTH
AFRICA
.........................................................................................
FIRST
RESPONDENT
BRIAN
ST CLAIR
COOPER
......................................................................
SECOND
RESPONDENT
JOHAN
ENGELBRECHT
...............................................................................
THIRD
RESPONDENT
VINCENT
MATSEPE
..................................................................................
FOURTH
RESPONDENT
GARY
BOTHA
..................................................................................................
FIFTH
RESPONDENT
CHRIS
EDLING
...............................................................................................
SIXTH
RESPONDENT
JOHN
WALKER
........................................................................................
SEVENTH
RESPONDENT
Neutral
citation:
Ansafon (Pty) Ltd v The
Master, Northern Cape Division
(513/2013)
[
2014]
ZASCA 170
(14 November 2014)
Coram:
Mpati P, Maya, Majiedt and Pillay JJA and
Gorven AJA
Heard
:
14 November 2014
Delivered:
14 November 2014
Summary:
Interpretation of a court order –
whether interdictory or declaratory relief appropriate in the
circumstances.
ORDER
On
appeal from:
Northern Cape High Court,
Kimberley (Hughes-Madondo AJ sitting as court of first instance):
The
appeal is dismissed with costs save that paragraph 2 of the order of
the court below is altered as follows:
1.
By the deletion of the words ‘inclusive of the costs of the
urgent interlocutory application and the wasted costs of the
postponement of the taxation’.
2.
By the addition of paragraph 3 as follows:
‘
3.
The respondents are directed to pay the costs of the urgent
interlocutory application and the costs of the application for
postponement
jointly and severally, the one paying the others to be
absolved.’
JUDGMENT
Gorven
AJA (Mpati P, Maya, Majiedt and Pillay JJA concurring):
[1]
The basic history of the matter is as
follows. On 3 July 2009, Diamond Core Resources (Pty) Ltd (Diamond
Core) was placed in final
liquidation. The second and third
respondents were appointed provisional liquidators. At the time,
Diamond Core was a wholly owned
subsidiary of a Canadian company
which had a secondary listing on the Johannesburg Stock Exchange,
BRC-Diamond Core Limited (the
Canadian company). On 9 September 2009,
at the first meeting of creditors, the second and fifth respondents
were appointed final
liquidators and the following day the third
respondent was appointed a final liquidator. On 4 December 2009 an
agreement was concluded
between the Canadian company and Ansafon
(Pty) Ltd (Ansafon) in terms of which Ansafon purchased the entire
shareholding of Diamond
Core. After acquiring the shareholding,
Ansafon set about settling all legitimate debts owed by Diamond Core
to its creditors.
During March 2010, after having done so, Ansafon
applied to set aside the liquidation of Diamond Core. During May 2010
the fifth
respondent was removed as a liquidator and the fourth
respondent was appointed in his stead. The application was argued on
9 June
2010.
[2]
On 18 June 2010, the court below issued a
rule nisi
returnable on 27 September 2010 calling on interested parties to show
cause why the liquidation order should not be set aside.
The further
relief ordered by the high court which is material to this appeal was
as follows:
‘
THAT
the applicant is directed, prior to the return day, to provide
security in a form acceptable to the Registrar of this Court
in
respect of:
2.1
. . .
2.2
The fair and reasonable administration fees and expenses of the joint
liquidators relating to the administration of the first
respondent as
determined by the Master of this court.’
[3]
A memorandum relating to the determination
of the security to be provided for this aspect was prepared by the
third respondent.
On 1 September 2010, the Master
determined the amount of security for this aspect in the sum of
R11 309 750.
His determination was framed as follows:
‘
I
hereby determine the amount of security to be provided by the
applicant in respect of the fair and reasonable administration fees
and expenses of the joint liquidators relating to the administration
of the estate of Diamond Core Resources (Pty) Limited (in
liquidation) to be the sum of R11 309 750.00 . . . .’
[4]
As a result, Ansafon provided an
irrevocable undertaking to pay the administration fees and costs as
determined by the Master. These
were defined in the undertaking as
meaning ‘the taxed and allowed costs of administration,
provisionally estimated by the
Master at R11 309 750 . .
.’. On the return day of the
rule
nisi
, an order was made by agreement
which set aside the liquidation of Diamond Core. A dispute arose over
paragraph 5 of the consent
order which read:
‘
THAT
Ansafon pay the fair and reasonable administration fees and expenses
of the second Respondent as determined by the Master of
this court,
but subject to review and subsequent appeal, if any.’
[5]
On 9 March 2011, the second to seventh
respondents submitted fee accounts to the Master whose collective
amount exceeded R32 million.
A further bill was subsequently
submitted by the fifth respondent.
[6]
An application was launched in the court
below by Ansafon. The relief sought was to interdict the Master from
confirming the accounts
submitted by the liquidators and from
determining the administration fees and expenses of the liquidators.
In addition, declaratory
relief was sought to the effect that the
determination made by the Master on 1 September 2010 constituted the
determination referred
to in paragraph 5 of the order and further
orders relating to how the fees of the liquidators should be
determined.
[7]
The court below dismissed the application
with costs. It did not deal with the interdict aspect but only with
the declaratory relief
after having dealt with an initial application
for postponement. It is against this order that Ansafon appealed. The
court below
granted limited leave to appeal. Before us, Ansafon
sought, and was granted, leave to appeal on wider grounds than those
granted
by the court below.
[8]
The crisp issue on appeal is the
interpretation of paragraph 5 of the order of 27 September 2010. This
resolves itself into whether
or not the words ‘as determined by
the Master of this court’ refer to a future determination or to
that of 1 September
2010 regarding the amount of security to be put
up for the fair and reasonable administrative fees and expenses of
the joint liquidators.
Ansafon claims that the determination was made
by the Master on 1 September 2010 and accordingly sought
the interdict
and declaratory relief. The joint liquidators claim
that a determination must still be made by the Master.
[9]
This
court has recently said that the process of interpretation is
objective and ‘[t]he
“
inevitable
point of departure is the language of the provision itself”
read in context and having regard to the purpose of
the provision and
the background to the preparation and production of the document’.
[1]
[10]
What is clear is the following. Ansafon
undertook to pay an amount. The amount was not specified. The manner
of arriving at the
amount was specified. It was to be ‘as
determined by the Master’. A mechanism for reviewing or
appealing the determination
was provided for. At the time the order
was made, the Master had issued a determination. The Master said that
he had determined
‘the amount of security to be provided by the
applicant in respect of the fair and reasonable administration fees
and expenses
of the joint liquidators relating to the administration
of the estate of Diamond Core’. In doing so, he referred to an
annexure
which set out the way he had arrived at the figure. This was
not a determination of the fees and expenses even though the amount
of security took what the Master knew about these at the time into
account. The Master made no determination after that date.
[11]
There is no indication at all in the order
that the determination had already been made. The order embodies an
agreement between
the parties. They were aware of the determination
of 1 September 2010. It does not refer to this determination.
Instead, it uses
precisely the same words as did paragraph 2.2 of the
order of 18 June 2010, being ‘as determined by the Master’.
This
obviously referred to a future determination. Where the same
words were used in paragraph 5 of the order of 27 September, Ansafon
sought to contend that this now referred to a past determination. The
use of the same words suggests that, as with the order of
18 June
2010, the Master had not by then determined what he was required to.
In addition, the order of 27 September refers to the
fair and
reasonable administration fees and expenses whereas the Master had,
on 1 September 2010, determined the amount of security,
not the
actual fees and expenses. This is specifically what he said in his
determination. If it was intended that the amount of
security was to
be that which would be paid by Ansafon, there is no reason why the
specific amount was not included in the order
or reference made to
the determination of 1 September 2010. This was not done. In
addition, if this were the case, there would
have been no need to
provide for review or appeal. If the determination as agreed was
already in place, such a provision would
have been redundant. A
further indication that the determination had not yet been made was
contained in paragraph 8 of the consent
order which reads as follows:
‘
THAT
Savage Jooste is instructed to disburse the funds so held by them
upon agreement between the parties, alternatively upon determination
by the Master, or the court as the case may be, of the amount due to
the Second Respondent immediately.’
[12]
It is clear that this involved a future
exercise. The appellants sought to submit that the reference here to
the Master is to the
Taxing Master of the court and not to the Master
referred to in paragraph 5. It is clear that, in the context of a
liquidation
and particularly after reference to the Master in
paragraph 5 in identical terms, if the taxing master had been
intended, the language
used would not have been the same language as
was used in paragraph 5.
[13]
Still further, Ansafon itself, in putting
up the irrevocable undertaking to pay, defined liquidators’
costs as being ‘the
taxed and allowed costs of administration,
provisionally estimated by the Master at R11 309 750.00’.
This shows
that, even after the determination of 1 September, it was
understood by Ansafon that the determination was not a final one.
[14]
The
requirements for a final interdict have remained unchanged for 100
years. In
Setlogelo
v Setlogelo
,
[2]
Innes JA said:
‘
The
requisites for the right to claim an interdict are well known; a
clear right, injury actually committed or reasonably apprehended,
and
the absence of similar protection by any other ordinary remedy.’
[15]
No case was made out which deals with any
of these apart, perhaps, from asserting a clear right based on an
interpretation of the
court order of 27 September 2010. No
mention was made in the application of an injury actually committed
or reasonably
apprehended nor was there mention of the absence of
protection by any other ordinary remedy. The latter is of great
importance,
particularly because the order mentioned that the
determination of the Master would be subject to review or appeal.
[16]
No case was made out on the papers why the
liquidators should account to Diamond Core. All that was said was
that in law the liquidators
are obliged to account to the company.
There was no indication that any demand was made or a basis for such
demand was laid prior
to the application. Neither was there an
indication that such a demand was refused. The present application
was clearly aimed at
interdicting the Master from acting in
accordance with paragraph 5 of the order. There is no reason why the
issue of an account
should have been dealt with by the court below.
[17]
No basis was laid for the grant of the
declaratory relief sought. As indicated, the construction of
paragraph 5 of the order requires
the Master to make a determination.
This has yet to be done. An order had been granted by consent. The
fact that, in other situations,
the Master does not determine fees
once a company has been taken out of liquidation does not in any way
invalidate that order.
In any event, Ansafon does not seek to set
aside paragraph 5 of the order but to interpret it in its favour. It
has failed in contending
for such an interpretation. It is not
necessary to deal with whether the Master can determine the fees
under the Companies Act
61 of 1973 since this is not the basis on
which the consent order was framed. The Master has been appointed to
make a determination
and this court is not required to give guidance
in this regard.
[18]
The one aspect in which there was agreement
was that the costs order of the court below was incorrect. The
applicant should have
been awarded the interlocutory costs and that
of a postponement of the taxation.
[19]
In the result the appeal is dismissed with
costs save that paragraph 2 of the order of the court below is
altered as follows:
1.
By the deletion of the words ‘inclusive of the costs of the
urgent interlocutory application and the wasted costs of the
postponement of the taxation’.
2.
By the addition of paragraph 3 as follows:
‘
3.
The respondents are directed to pay the costs of the urgent
interlocutory application and the costs of the application for
postponement
jointly and severally, the one paying the others to be
absolved.’
_____
_____________
T
R Gorven
Acting
Judge of Appeal
Appearances
For Appellants: D J
Vetten
Instructed
by:
Thomson
Wilks Inc., Sandton
Webbers,
Bloemfontein
For
2
nd
to 7
th
Respondents: F H Terblanche SC
Instructed
by: John Walker Attorney, Edenvale
Honey
Attorneys, Bloemfontein
[1]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18.
[2]
Setlogelo
v Setlogelo
1914
AD 221
at 227.