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[2010] ZAGPPHC 293
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Montic Dairy (Pty) Ltd and Others v Moraitis Investments (Pty) Ltd and Others (41065/2006) [2010] ZAGPPHC 293 (18 January 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
DIVISION)
CASE
NO.: 41065/2006
DATE:
18 JANUARY 2010
In the matter
between
MONTIC DAIRY
(PTY) LTD + 9
Others
.........................................................
Applicants
And
MORAITIS
INVESTMENTS (PTY) LTD + 6
Others
...............................
Respondents
In re:
MORAITIS
INVESTMENTS (PTY) LTD + 3
Others
....................................
Applicant
And
MONTIC DAIRY'
(PTY) LTD + 9
Others
................................................
Respondents
DATE HEARD: 8th
September 2009
JUDGMENT HANDED
DOWN ON: I8,h January 2010
JUDGMENT
EBERSOHN AJ.
[1] In this matter
the notice of motion reads as follows (first and seventh prayers not
quoted):
“2. The
warrant of execution issued by the Registrar of this Honourable Court
on 10 June 2009 is suspended in terms of Rule
45A, alternatively set
aside pending the institution and finalisation of the proceedings
referred to in paragraph 3 below:
3. The Applicants
are to launch an application, alternatively institute an action
within 30 (thirty) days of date of this order
for the sotting asido
and/or rectification and/or amendment of the share valuation
performed by the Fifth Respondent in terms of
the court order granted
by Sapire AJ on 25 October 2007;
4. In the event of
the Applicants failing to institute the proceedings contemplated in
paragraph 3 above within the 30 (thirty)
day time period, this order
will lapse and the Applicants will be liable to pay the costs of this
application;
5. The costs of this
application are reserved for determination by the Court hearing the
proceedings contemplated in paragraph 3
above;
6. In the
alternative to paragraph 5 above, and only in the event of any of the
Respondents opposing the relief sought in this application,
that such
Respondents, jointly and severally, pay the costs of opposition to
this application, such costs to be taxed on the scale
as between
attorney and own client; “
[2.] On the 10®"
October 2007 Sapire AJ issued an order regarding the sale of 20%
interest in the Mora it Is Group to tne
Kerbei Group
[3 ] Paragraph 3 of
the order reads as follows:
" 3. That the
purchase prise shall be conclusively and finally determined by an
independent third party who shall act as valuer
and not as
arbitrator.”
[4 ] Paragraph 5 of
the order reads as follows:
“ 5. That the
valuer shall entertain and consider, but need not necessarily act on
representations from both purchaser and
Seller as to the value to the
placed on the interests bought and sold, and may make all such other
enquiries as he may deem necessary
including referenco to third
parties relative to the value of tho fixed and movable assets of the
companies to enable him to arrive
at and determine a fair purchaso
price."
(5 ] Paragraph 7 of
the order reads as follows:
“ 7. That the
parties shall render to the valuer all assistance and co-operation
which he might reasonably require in order
to facilitate his
valuation."
[6.] It is common
cause that Ernst & Young Advisory Services, the 5’"
respondent was appointed to do the determination
[7.] Ernst &
Young purportedly did the determination and a wnt in execution was
issued and this application followed
[8.] A notice of
opposition was signed on the 25" June 2009 in Johannesburg.
[9.] The respondents
did not file an answering affidavit
[10.] Heads of
argument were filed by the applicant's counsel and by Mr Bailey on
behalf of the respondents. In the heads Mr Bailey
raised certain
legal points
[11 .J The
respondents dtdht file a nobce in compliance with rule 6(5)(d)(iii)
which subrule reads as follows
“ (d) any
person opposing the grant of an order sought in the notice of motion
shall:
(I) ....
(ii) ....
(iii) if he intends
to raise any question of law only he shall deliver notice of his
intention to do so, within the time stated
in the proceeding
sub-paragraph, setting forth such question."
The period referred
to is 15 days.
[12-1 It seems as if
Mr Bailey therefore ts not entitled to argue legal points from the
Bar
[13 ] In any case
sufficient grounds were stated in the founding affidavit and the
annexure thereto to warrant the grant ing of
the relief sought
[14 ] I accordingly
make the following order:
“1. The
warrant of execution issued by the Registrar of this Honourable Court
on 10 June 2009 is suspended in terms of Rule
45A pending the
institution and finalisation of the proceedings referred to in
paragraph 2 below:
2. The Applicants
are to launch an application, alternatively institute an action,
within 30 (thirty) days of date of this order
for the setting aside
andVor rectification and/or amondment of the share valuation
performed by the Fifth Respondent in terms of
the court order granted
by Sapire AJ on 25 October 2007;
3. In the event of
the Applicants failing to institute the proceedings contemplated in
paragraph 3 above within the 30 (thirty)
day time period, this order
will lapse and the Applicants will be liable to pay the costs of this
application:
4. The costs of this
application are reserved for determination by the Court hearing the
proceedings contemplated in paragraph 3
above;
P.Z. EBER^OHN AJ
ACTING JUDGE OF
THE HIGH COURT
Applicant's
counsel A.G. SOUTH
Applicant's
attorneys GROSS, PAPADOPULO & ASS
Ref.S. GROSS/
BDP/MON2/0040 TEL. 012X3416607
Respondent's
counsel ADV. K. BAILEY
Respondent's
attorney STEVE IOUL1ANO ATTORNEY
Tel. 011x453 8138