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2024
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[2024] ZAGPPHC 7
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Ndamase v Commissioner: Private Inquiry into the affairs SNS Holdings (Pty) Ltd (In Liquidation) and Others (2023/019694) [2024] ZAGPPHC 7 (17 January 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NUMBER: 2023/019694
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
DATE:
17 January 2024
SIGNATURE:
In
the matter between:
Mandlakayise
Prince Ndamase
APPLICANT
And
COMMISSIONER:
PRIVATE INQUIRY INTO THE AFFAIRS OF SNS HOLDINGS (PTY) LTD (IN
LIQUIDATION)
FIRST RESPONDENT
KURT
ROBERT KNOOP
SECOND RESPONDENT
TASMEEN SHAIK
MAHOMED
THIRD RESPONDENT
ZAHEER SHAIK
MAHOMED
FOURTH RESPONDENT
THAMSANQA EUGENE
MSHENGU
FIFTH RESPONDENT
Delivery
:
This judgment is
issued by the Judge whose name appears herein and is submitted
electronically to the parties /legal representatives
by email. It is
also uploaded on CaseLines and its date of delivery is deemed 17
January 2024
.
Summary:
Commission of inquiry -liquidated
company-applicant summoned. Thus-application from Bar-postponement.
Rule 41-Uniform Rules of Court-bona
fide discretion. Constitutional
Court-judgment-likely to influence the matter at hand.
Application-without affidavit-justified
and was granted.
JUDGMENT
NTLAMA-MAKHANYA
AJ
[1]
This application was set down as an opposed motion before me on 06
November 2023.
The crux of the main application was the summons
issued against the applicant to appear before an enquiry to
investigate the private
affairs of a liquidated company (Supreme
National Stocks Holdings (Pty) Limited (NSH). I postponed the matter
sine die
until the finalization of the Constitutional Court
matter after hearing the submissions regarding the postponement of
this matter
from the parties.
[2]
The applicant sought relief for:
[2.1]
the review and setting aside of a summons issued by the first
respondent directing the applicant to
appear before the enquiry
convened in terms of sections 416 and 417 of the Companies Act 61 of
1973; alternatively, review and
setting aside the annexure attached
to the summons.
[2.2]
an order declaring the venue of the enquiry, namely, offices of the
second-fifth respondents inappropriate
for the purpose of an
impartial enquiry by an impartial Commissioner; the first respondent.
[2.3]
a costs order in the event of the application being opposed.
[3]
The matter was opposed by the defendants.
[4]
Before I could deal with the merits of this application, Counsel for
the applicant
applied for the postponement of the matter from the bar
due to another similarly situated case that is before the
Constitutional
Court, wherein its outcomes would be of direct
relevance to the determination of the case at hand. I must mention,
the application
was submitted orally with no substantive
documentation or affidavit that contextualised and captured the
essence of the application
regarding the quest for the postponement.
[5]
On the other hand, Counsel for the defendants vehemently opposed the
postponement
of this case matter highlighting amongst other reasons
the unnecessary delay on the finality of the matter. The urgency on
the
speedily resolve of the matter considering the public interest on
liquidation matters. Further, there was no formal documentation
or
affidavit tabling the reasons and rationale for the application.
Regulating the
postponement proceedings
[6]
The postponement of proceedings are regulated by Rule 41 of the
Uniform Rules of the
Court which require the court to exercise a
bona
fide
discretion in granting the application for
postponements. The implication of this Rule is not about ‘
justice
being done
’ but ‘
justice being seen to be
done’
considering the interests of both parties in the
litigation. ‘
Seeing justice being done’
with a wider focus on the general implications for human rights give
content to sections 34 of the Constitution, 1996. The latter
section
provides that ‘
everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing before
a court or where appropriate, another
independent and impartial tribunal or forum’
. Mokgoro J in
Beinash v Ernest & Young
(CCT12/98)
[1998] ZACC
19
contextualised the substance of this provision and held that
‘
this right is of cardinal importance for the adjudication
of justiciable disputes
,’ (
para 17
). This
court is equally guided by this provision in the consideration of
this application from the bar that the main application
would not be
‘
judicially impoverished
’ on the
development of principles that have a potential to guide the
interpretation of the substance of the core application.
Also, to
expand the evolution of the principles of access to court which
encapsulate the broader development of the principles
of access to
justice.
[8]
I also need not restate the caution to be exercised by this court on
granting an application
for the postponement of this matter in that
Nkabinde ACJ in
Psychological Society of South African v
Qwelane
2017 (8) BCLR 1039
(CC)
held that:
postponements are not
merely for the taking. They have to be properly motivated and
substantiated. And when considering an application
for a postponement
a court has to exercise its discretion whether to grant the
application. It is a discretion in the true or narrow
sense –
meaning that, so long as it is judicially exercised, another court
cannot substitute its decision simply because
it disagrees. The
decision to postpone is primarily one for the first instance court to
make, (
para 30
).
[9]
The quest for a substantive submission enables a more and concise
discretion that
is based on sound and sufficient reasons that inform
the interpretation of the applicable rules and principles.
Assessment
[10]
This application for postponement was particularly important for the
consideration of the development
of the principles Rule 41 that serve
as a guide for matters not to be postponed just to be dragged to
frustrate the other party
in the litigation. The outcomes of the
Constitutional Court judgment and its effect on the development of
the basic principles
of the law which should serve as a guide on the
apprehension of ‘bias’, is of direct link not for the
immediate parties
to the litigation but broader society. The
‘
specialist inquiries
’ which are to be run by
established Commissions play a central role in ensuring that they are
equally not diverted from their
mandate and have their processes
tainted by what may be perceived as bias or prejudice against the
other party in the investigation.
Therefore, this court was in no
position to ‘
jump-start’
whilst guidance on
similar principles likely to affect the substance of this application
was being considered by the Constitutional
Court.
[11]
I am of the considered view that the applicant’s quest for the
postponement of the matter
was designed by a genuine belief in the
guidance to be received from the outcome of the Constitutional Court
in addressing the
matter at hand. I find no doubt on the credibility
of the application and the Counsel, as an officer of this court,
committed to
uphold the prescripts of the profession at large,
carries an equal responsibility in the dispensation of justice
without fail.
Mogoeng J in
Motshegoa v Motshegoa
995/98
Bophuthatswana Provincial Division of the High Court of South Africa
had to this to say about the applicable principles that should
guide
the court in the exercise of its discretion regarding the granting of
postponements and held:
before or on the day
of the hearing any party may apply on notice for a postponement.
Such
an application need not always be made on affidavit. It may and is
sometimes made from the Bar
. The granting of such an application
is an indulgence and that indulgence is not to be had for the asking.
It lies entirely
within the court’s discretion whether to
grant the indulgence sought. That discretion is a judicial one and
can be corrected
on appeal if not exercised in a judicial manner. A
party who applies for a postponement must therefore show good cause
for the
interference with the other party’s procedural right to
proceed, (
page 4,
my emphasis and footnotes omitted).
[12]
As is the case in this matter, the application for a postponement was
submitted from the bar
and without a substantive affidavit. As guided
by Mogoeng J in the
Motshegoa
judgment, I found nothing
amiss and untoward in bringing this application from the bar
considering the greater effect it would
have on the development of
the principles that are the subject of the main application. This
court acknowledges the urgency on
the finality of this matter; thus,
such undertaking should be informed by properly ventilated principles
which are grounded on
the basic rights and fundamentals that are
envisaged in the Constitution, 1996. The interests of justice that
are infused in section
34 alongside the granting of just and
equitable remedies in section 172 of the Constitution need not be
‘
thumb sucked
’ at the prejudice and anxiety
for finality of the matter that would limit the substantive
conception and broader effect it
would have on human rights. This
application is not a matter of recklessness where the plaintiff must
‘
lie on the bed that he has made it for himself’
,
(
Zulu v Road Accident Fund
(89670/18)
[2023] ZAGPHC
108
,
para 14
). As endorsed by Mokgoro J in the
Beinash
judgment above, in that ‘
the court is
under a constitutional duty to protect bona fide litigants, the
processes of the courts and the administration of justice
against
vexatious proceedings. Section 165(3) of the Constitution requires
that “[n]o person or organ of state may interfere
with the
functioning of the courts.” The vexatious litigant is one who
manipulates the functioning of the courts so as to
achieve a purpose
other than that for which the courts are designed’, (
para
17
, footnotes omitted).
This is the gist of the
reasoning herein for this court to determine the merits of the
application for the postponement of this
matter which it found the
reasons proffered justified. The reasoning herein gives substance to
the significance of the principles
of new dispensation to ensure that
the judiciary is not impoverished and dismisses matters that would be
of value in the generation
of the jurisprudence that intersect the
various principles of the new dawn of democracy. The defendants
opposed this application
and prayed for the matter to proceed as
enrolled and for the finality of this matter. Thus, as expressed
herein, I am not persuaded
that what I would refer as ‘
anxiety
for finality
’ would serve as a guiding determinant of
the substance of the litigation. Legal anxiety has the potential to
destabilise
an orderly and peaceful society that requires a systemic
resolution of disputes and give substance to the foundational values
of
the new dispensation as envisaged in section 1 of the
Constitution, 1996. Therefore, the plaintiff had given a sound and
bona fide
reason that justified the granting of the
postponement of the matter.
[13]
In the circumstances, I make an order for:
[13.1] Postponement
of the matter
sine die
until the judgment of the
Constitutional Court is delivered.
[13.2] The
defendants may also approach the office of the Deputy Judge President
for the allocation of a preferential date
following the guidance from
the apex Court in South Africa.
[13.3] The costs
are reserved for the main cause in this application.
N NTLAMA-MAKHANYA
ACTING JUDGE, THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Date
Heard: 06 November 2023
Date
Delivered: 17 January 2024
Appearances
:
Applicant:
Advocate
Sepheka Mthenjwa
Instructed
by:
Mahlakoane
Attorneys
Suite
110, First Floor
Protea
Towers
246
Pretorius Streets
Pretoria
Respondents
:
Advocate
GME Lots (SC)
Advocates
Chambers
17
Prince Edward Street
Pietermaritzburg
Instructed
by:
Vezi
de Beer Attorneys