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[2010] ZAWCHC 487
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Mad Media (Pty) Ltd v Neal-Belcher (10085/2010) [2010] ZAWCHC 487 (13 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
10085/2010
DATE
:
13
OCTOBER 2010
In
the matter between:
MAD
MEDIA (PTY) LTD
….....................................................................
Applicant
and
SAMANTHA
MARY NEAL-BELCHER
…............................................
Respondent
JUDGMENT
CLEAVER,
J
:
This
is an application brought on an urgent basis for an order in terms of
Rule 6(12)(c) of the Rules of Court, to reconsider the
order made by
Griesel
,
J in this court on 30 September in terms whereof the company, Mad
Media (Pty) Limited, was finally liquidated. Alternative grounds
are
advanced, namely that in terms of Rule 42(1)(a), the order may be
rescinded and alternatively, finally that in terms of the
common-law
it may be rescinded.
When
the matter was called, I indicated to counsel for the applicant that
the allegation that the matter was to be dealt with
as one or
urgency was contested and I heard argument on the question of
urgency only. The grounds advanced in the founding papers
to support
the prayer for urgency are very tersely stated, namely that given
the nature of a final order of liquidation, the
matter is urgent and
that there would not be any prejudice, since on the version of the
applicant, security for the full capital
sum had been paid into the
trust account of the attorneys who had acted for the company in
liquidation. That statement is not
entirely accurate, because the
money had been paid in, subject to certain conditions.
In
fairness to counsel for the applicant, he was hard put to advance
any cogent reasons as to why the matter ought to be dealt
with as
one of urgency. It is common cause, I understand, that the company
in liquidation had been dormant. It is also common
cause that a
period of in excess of two months had expired since the granting of
the final order and there is clearly no reason
why the application
could not have been lodged and dealt with in terms of the rules, and
why it ought to be dealt with as one
of urgency. Counsel suggested
that because of the history of the matter, as set out in the papers,
I should also find some degree
of urgency, but I regret to say that
that argument is, in the very least, unpersuasive.
I
am firmly of the view that no grounds have been made out for urgency
and there is no reason why this application should enjoy
precedence
over other matters. I have had to set aside time, when I could
otherwise be dealing with applications where are properly
before me,
in order to hear a matter in which the applicant has, in effect,
sought to jump the queue in order to have the matter,
which is not
urgent dealt with.
The
law in this respect is clear; that if I find that the matter is not
urgent, it is to be removed from the roll. In the normal
course of
events that would draw an order penalising the applicant by means of
a costs order against the applicant. It is complicated
in this
respect since the company on whose behalf the deponent has purported
to act, is in final liquidation, and a costs order
against that
company would be of little solace to the applicant. That may not
have been bar to making such a costs order, had
the deponent been
properly authorised to bring the application either on behalf of the
directors, or perhaps, and I am not sure
whether this would be
legally correct, on behalf of the provisional liquidator.
However,
the deponent's authority is challenged by the respondent and
justifiably so, because all that is advanced in support
of his
authority, is the terse statement reading as follows:
"The
facts deposed to are true, correct and within my personal knowledge,
unless the context indicates otherwise. I am duly
authorised to
depose to the facts as set out herein."
Well
on the basis of that clause, which is not amplified to any
meaningful degree, the deponent is not authorised to bring an
application on behalf of a company in liquidation. It is common
cause that the deponent is an attorney, who is a partner in a
firm
of attorneys which had represented the company in liquidation. In
response to the challenge to the authority of the deponent,
the
deponent in his reply states as follows:
"Given
the circumstances under which the final order was granted, the
deponent is qualified to depose to the facts contained
herein, as
well as to bring this application."
I
do not propose to go into the circumstances under which the final
order was granted, but whatever such circumstances are, they
alone
can clearly not authorise the deponent to act on behalf of the
company in liquidation.
Counsel
the applicant made available to me, during the course of his
address, a reply, which had been furnished this morning,
to the
request by the respondent to produce in writing the authority of the
deponent to act, that being a document entitled "Special
Power
to Sue and Defend". In this, three parties record that they act
on behalf of Mad Media (Pty) Limited:
"...
do hereby nominate, constitute and appoint Adams Attorneys Inc.,
Unit 3 Doncaster Office Park, Punters Way, Kenilworth
with power of
substitution to be my true and lawful Attorneys and Agents in my
name, place and stead, to appear before the High
Court of South
Africa or wherever else may be necessary and then and there as my
act and deed:
To
defend on my behalf the liquidation claim institute by Samantha
Mary Neale-Belcher.
To
institute proceedings in the High Court of South Africa or wherever
else may be necessary to defend and institute such action(s)
and
costs of suit;
To
negotiate with and accept on my behalf any reasonable offer.
This
document is unsigned. In itself it clearly has no reference to an
application for rescission of the order. Counsel for the
applicant
submitted that since it appeared ex
facie
other
documents put before me, that two of the signatories were directors
of the applicant, that that was sufficient to authorise
the
deponents to bring the application. However, the lack of a date on
this power of attorney, is a worrying factor. When the
authority was
challenged, it would have been a simple matter to provide proper
proof of the authority, had such an authority
been granted, Counsel
for the applicant was left to argue that by inference, the power of
attorney granted by these three people,
who do not record in which
capacities they granted the power, the power of attorney being
granted to Adams Incorporated, is sufficient
to authorise a single
attorney of that firm to apply for the rescission of the order.
The
reason why I have dealt with the power in detail is, of course, to
be found in the submissions made on behalf of the respondent
that in
removing the matter from the roll, an order for payment of the costs
should be made against the deponent. This would
be a relatively
harsh step, but in the circumstances it seems to me not unjustified.
Authority was provided for the grant of
such an order, namely the
judgment in
Coriqrain
Trading SA v Resora (Ptv) Limited
2004
(2) SA 348
(W). There the court found that a provisional liquidator,
who had taken steps to act on behalf of the company in provisional
liquidation, had no authority to do so and was ordered to pay the
costs personally.
I
have come to the conclusion that a similar order is justified in
this matter and the next issue to be decided is whether it
is to
include the costs incurred by the employment of two counsel. On
behalf of the respondent, such an order was urged and as
justification I was directed to the allegations of unprofessional
conduct, which had been levelled against junior counsel for
the
respondent at the time that the final order of liquidation was
granted. Those allegations were to the effect that respondent's
counsel was aware of the fact that the applicant had intended to
oppose the final winding up and that accordingly there had been
an
obligation on her to notify counsel for the applicant that a final
order was to be taken.
It
is clear from the papers before me that that is clearly incorrect.
The respondent had known of the return day for some two
months and
even though the return day had wrongly been set down for hearing
during the recess period, counsel for applicant at
the time, was
able to find the court in which the matter was heard and there is
simply no reason why the counsel who was acting
for the company at
the time, could not similarly have found where the court was
sitting. Further argument advanced on behalf
of the respondent was
that because counsel were called upon to deal with the application
on 24 hours notice, senior counsel had,
for a second reason, to be
called in, the first reason, of course, being to deal with the
allegations of unprofessional conduct.
I
have given earnest consideration to these submissions and I have
come to the conclusion that such an order will be justified.
In the
circumstances, the application is removed from the roll and the
costs of attendant on the removal incurred by the respondent,
are to
be paid by Mr Rusthi Lagadien in his personal capacity. Such costs
to include the costs of two counsel.
CLEAVER,
J