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[2022] ZAGPJHC 133
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Afrika A Mina Engineering CC v Magabe and Another (09248/2020) [2022] ZAGPJHC 133 (9 March 2022)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 09248/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
9/03/2022
In
the matter between :
AFRIKA
A MINA ENGINEERING CC
Applicant
and
MORWANA
BERNARD MAGABE
1
st
Respondent
Identity
number: [....]
MAMA
JOSEPHINE
MAGABE
2
nd
Respondent
Identity
number: [....]
JUDGMENT
ON POSTPONEMENT APPLICATION
STRYDOM
J:
[1]
Before this court the first respondent as applicant (the first
respondent)
brought an application, on notice with a supporting
affidavit, referred to by him as an application for the stay of
provisional
sequestration proceedings pending acquisition of legal
representation.
[2]
In effect, it is a postponement application. The matter was
previously
on the opposed roll of 24 January 2022 when an application
was similarly made for the postponement of this application.
[3]
The court was informed from the bar, and it became common cause, that
the ground for this postponement application was also for the first
respondent to obtain legal representation.
[4]
First respondent in his affidavit in support of this application
avers
that since the previous hearing he did two things:
4.1
He asked Werksmans Attorney’s to act for him
pro bono
but they were not interested to act on this basis.
4.2
He then on 8 February 2022 appointed Mashele Attorneys to act
pro
bono
on his behalf.
[5]
The first respondent informed the court that Mashele Attorneys
previously worked with
him in one of his companies but he is now in
private practice.
[6]
Mr Mashele filed a notice of appearance but on or about 5 March 2022
he filed a notice
of withdrawal as attorney of record.
[7]
First respondent informed the court that his financial circumstances
recently has
changed, as he got involved in a new business ventures.
He can now afford legal representation.
[8]
He argued that he has a constitutional right to a fair hearing which
would entail
the right to legal representation.
[9]
He stated that he will be ready to proceed on the next occasion if
this matter now
gets postponed.
[10]
Mr Daniels appearing for the applicant in the main application
indicated that this matter comes
a long way and that it will be in
the interest of the applicant to proceed with the application at this
stage. The same reasons
for a postponement was advanced at the
previous hearing.
[11]
The respondent’s application is not convincing, particularly
pertaining to the position
of Mr. Mashele whom he previously worked
with, coming on board as attorney of record just to withdraw again.
[12]
Further, a cursory consideration of the possible defences of first
respondent reveals that it
is unlikely that a successful defence can
be raised in the sequestration application. First respondent averred
that he now has
funding available to obtain legal representation This
allegation militates against his defence that it would not be to the
advantage
of creditors to sequestrate his estate.
[13]
Having said that, it is in my view that the first respondent should
get a final opportunity to
file an answering affidavit and oppose the
application. In my view, the application should not thereafter be
postponed again for
the reason that the first respondent wants to
obtain legal representation, unless exceptional circumstances are
shown. I intend
to have this judgment transcribed to be available to
the Judge hearing this application. My registrar has contacted the
opposed
motion division to enquire about available dates. The first
available date was provided and is 25 April 2022. I intend postponing
this application to 25 April 2022 but will determine dates for the
filing of an answering affidavit, a replying affidavit and heads
of
argument. Importantly, the applicant should before Friday, 11 March
2022 approach the registrar who is dealing with opposed
motions to
set the matter down for hearing.
[14]
The following order is made:
14.1 The matter is
removed from the roll;
14.2 The matter is
to be set down for hearing on the opposed roll for 25 April 2022;
14.3 The first
respondent should file his answering affidavit on or before 22 March
2022;
14.4 The applicant
should file its replying affidavit, if any, on or before 4 April
2022;
14.5 The first
respondent should file heads of argument on or before 14 April 2022;
14.6 Unless the
applicant and second respondent elect to file further heads of
argument no further heads of argument need
to be filed by these
parties;
14.7 The first
respondent is ordered to pay the wasted costs occasioned by this
postponement, which will include the costs
of the second respondent.
_________________________
RÉAN
STRYDOM
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION OF THE HIGH COURT
JOHANNESBURG
Date
of Hearing:
09 March 2022
Date
of Judgment:
09 March 2022
APPEARANCES
For
the Applicant:
Adv. AJ Daniels SC
Instructed
by:
Ritcher Attorneys
For
the 1
st
Respondent:
In
Person
For
the 2
nd
Respondent:
Adv. G. Meyer
Instructed
by:
AJ Van Rensburg Incorporated