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[2010] ZAGPPHC 46
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Winterbreeze Trading 158 Trading (Pty) Ltd and Another v Smith and Another (15266/2010) [2010] ZAGPPHC 46 (15 June 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(
NORTH
GAUTENG HIGH COURT, PRETORIA
)
CASE
No.15266/2010
In
the matter between:-
WINTERBREEZE
TRADING 158 (PTY) LTD
First
Applicant
BUFFALO
INN OVERNIGHT ACCOMMODATION (PTY) LTD
Second
Applicant
and
THOMAS
BUTLER SMITH
First
Respondent
PRICILLE
HENRIETTE SUSANNA JANSE VAN RENSBURG
Second
Respondent
REASONS
FOR ORDER GRANTED IN TERMS OF RULE 49(11) ON 14 JUNE 2010
Van
der Byl, AJ:-
Introduction
[1]
On 14 June 2010 I granted an order in terms of which it is ordered -
(a)
that, pending the hearing of Respondents’ Application for
Leave to Appeal, the operation and execution of the order
granted in
this matter on 31 March 2010, excluding paragraph 3 thereof, not be
suspended and that the operation and execution of
the order
immediately be put into effect;
(b)
that the Respondents should pay, jointly and severally, the one
paying the other to be absolved, the costs incurred by the
Applicants
in respect of this application
,
including such costs as they may have been incurred in respect of the
application for my recusal.
[2]
I granted this order on the basis that my reasons for this order
will be furnished in the course of the day on 15 June 2010.
What
follows are those reasons.
Relevant
facts of the matter
[3]
On 31 March 2010 I granted an order in this matter in terms of which
the Respondents were -
(a)
interdicted from performing certain unlawful actions (
paragraph
1(a) to (f) of the Order
);
(b)
interdicted from entering the business of the Second Applicant and
the property of the First Applicant, but for the house
on the
property which is situated on Erf 99, Marble Hall, which the
Respondents currently occupy (
paragraph
1(g) of the Order
);
(c)
directed and ordered to return to the Applicants all the books and
records, all keys to the premises and specifically the
keys to the
safe of the Second Applicant and all other documents and property
which belongs to the Applicants (
paragraph
2 of the Order
).
[4]
It only, for some inexplicable reason, came to my attention on 25
May 2010 that the Respondents filed a Notice of Application
for Leave
to Appeal on 1 April 2010.
[5]
On or about Thursday, 3 June 2010 I did receive a call from the
Applicants’ attorney of record as is alleged in paragraphs
6
and 7 (
record
pp. 79 and 80
)
of an affidavit by him in this matter. The call was intended to have
been made to my secretary, but, because she was not at her
phone at
the time, I answered the phone. The attorney, Mr. Thompson,
apologised and explained that he actually intended to speak
to my
secretary with a request that she should approach me to establish
when I would be available to hear an application in this
matter in
which I granted an order on 31 March 2010. I had no objection him
having approached me directly and, being under the
impression that he
sought a date for the hearing of the Application for Leave to Appeal,
indicated to him that I would be available
on Wednesday, 10 June 2010
at 9h30 or Thursday, 11 June 2010 at 9h30. I accepted that he would
make the necessary arrangements
with the Respondents’ legal
representatives and requedsted him to ensure that my
ex
tempore
judgment delivered on 31 March 2010 be transcribed and made available
at the hearing of the application and that the file be made
available
to me beforehand.
[6]
The file was eventually made available to me and I noticed that the
matter has been enrolled for Thursday, 10 June 2010 at
9h30, and that
the file contained, in addition to the Application for Leave to
Appeal dated 1 April 2010, an application in terms
of Rule 49(11)
filed on 14 April 2010 and an unsigned amended Application for Leave
to Appeal dated 19 May 2010.
[7]
On 10 June 2010 Mr. Van Zyl who appeared on behalf of the
Respondents informed me that he was briefed only to seek a
postponement
of the matter to 28 June 2010 (which is a date in the
recess) because counsel who appeared in the proceedings
a
quo
was not available as she was on holiday. Mr Woodrow who appeared on
behalf of the Applicants had no objection against the postponement
of
the Application for Leave to Appeal, but objected, for reasons to
which I will refer in a moment, against a postponement of
the
Applicants’ Rule 49(11) application. I, indicating that I
wouldn’t prefer to close the doors to the Court for the
Respondents, then directed the matter to stand down until Friday, 11
June 2010 so as to afford the Respondents an opportunity to
brief
counsel on the Rule 49(11) application.
[8]
On Friday, 11 June 2010, however, the attorney of record of the
Respondents, together with Mr. Woodrow, met me in chambers,
and
informed me that counsel who appeared in the proceedings
a
quo
will only be back from holiday on Sunday, 13 June 2010, but will be
hospitalized on Monday, 14 June 2010, and that he was unable
to
obtain the services of another counsel. In the circumstances he
requested me to postpone the matter to Friday, 18 June 2010,
on which
date, according to him, another counsel would be available. Mr.
Woodrow, however, objected against such a postponement
on the grounds
thereof that, as indicated in the affidavit filed in support of
Applicants’ Rule 49(11) application,
inter
alia
,
that the purchasers of the property (which had been auctioned on 8
April 2010) who were, because of the pending Application for
Leave to
Appeal denied occupation of the property, indicated that should they
be denied occupation any further they will cancel
the sale. I,
thereupon, indicated to Respondents’ attorney of record that I
will under the circumstances consider issuing
a Rule
nisi
with interim relief returnable on Friday, 18 June 2010, and requested
the parties to prepare a draft order.
[9]
However, shortly thereafter the parties returned to my chambers with
counsel which had in the meantime been briefed. He informed
me that
he will attempt to be ready to argue the Application for Leave to
Appeal as well as the Rule 49(11) application on Monday,
14 June 2010
and submitted that interim relief for such a short period might be
inappropriate. I, having regarded the request to
be reasonable,
thereupon, notwithstanding the protestations on behalf of the
Applicant, allowed the matter to stand down until
Monday, 14 June
2010 at 8h30.
[10]
On Monday, 14 June 2010 Ms. De Klerk who appeared in the proceedings
a
quo
on behalf of the Respondents, together with Mr. Woodrow, approached
me in chambers and informed me that it is her instructions
to ask for
my recusal because I discussed this matter over the telephone with
the Applicants’ attorney of record and that
she would hand up
an affidavit to me in that regard.
[11]
In court I was informed by Ms. De Klerk that they are not ready to
argue the Application for Leave to Appeal as they were
still awaiting
the “
record
of the proceedings
”
to be transcribed.
[12]
Mr Woodrow who appeared on behalf of the Applicants had no objection
to the postponement of the Application for Leave to Appeal,
but
insisted that the Applicants’ Application in terms of Rule
49(11) should proceed.
[13]
Ms. De Klerk, thereupon, moved for my recusal to hear this
application and handed up an affidavit by the First Respondent
in
which it is stated, in response to allegations made by Applicants’
attorney of record in paragraph 6 and 7 of the affidavit
to which I
already referred which was handed to me on 11 June 2010, as follows:
“
With
shock and dismay I took notice of the fact that the attorney for the
Applicants had a personal discussion with the learned
Judge Van der
Byl
about
the merits of the case
,
without our attorney and / or counsel present and with no invitation
from the learned Judge to attend such discussion. I have
instructed
our attorney of record to apply that the learned Judge should recuse
himself from this case on the grounds of perceived
bias, which
application will be launched prior to the hearing of this
application.
”
(My emphasis).
(I
need to say that paragraphs 6 and 7 of the affidavit of the
Applicants’ attorney of record, the paragraphs contain no
indication that I discussed “
the
merits of the case
”
with him)
The
application for my recusal
[14]
As is apparent from the aforegoing, there is simply no factual basis
on which it can be contended that the Applicants’
attorney of
record had a personal discussion with me “
about
the merits of the matter
”.
I pointed out to Ms. De Klerk, as is openly and honestly disclosed in
the affidavit of Applicants’ attorney of record,
that the only
discussion that took place related to the dates on which I would be
available to hear the application which I, as
I have already
indicated, perceived to have been the Application for Leave to
Appeal. As a matter of fact I was at that stage not
even aware of the
fact that the Applicants had launched a Rule 49(11) application.
[15]
Ms. De Klerk, however, persisted with her insistence that I should
recuse myself, and submitted that it was her instructions
to bring
this application and that the situation in any event created with the
Respondents a perception of bias which, so she submitted,
was enough.
[16]
The test to be applied in cases of applications for recusal has
recently been laid down by the Constitutional Court in the
case of
President
of the RSA v SA Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC)
where the Court held at
177B,
para [48]
as follows:
“
It
follows from the foregoing that the correct approach to this
application for the recusal of members of this Court is objective
and
the onus of establishing it rests upon the applicant. The question is
whether a reasonable, objective and informed person
would on the
correct facts reasonably apprehend that the Judge has not or will not
bring an impartial mind to bear on the adjudication
of the case, that
is a mind open to persuasion by the evidence and the submissions of
counsel. The reasonableness of the apprehension
must be assessed in
the light of the oath of office taken by Judges to administer justice
without fear or favour; and their ability
to carry out that oath by
reason of their training and experience. It must be assumed that they
can disabuse their minds of any
irrelevant personal beliefs or
predispositions. They must take into account the fact that they have
a duty to sit in any case in
which they are not obliged to recuse
themselves.
”.
See
also:
Sager
v Smith
2001 (3) SA 1004
(SCA) at 1009E
S
v Shackell
2001 (4) SA 1
(SCA), 10D-E
S
v Basson
2007 (3) SA 582
(CC) at 606G, para [31]
[17]
It is clear from these authoritative judgments that the test to be
applied in applications for the recusal of a presiding
officer is
whether a reasonable, objective and informed person would, on the
correct facts, reasonably apprehend that the Judge
has not or will
not bring an impartial mind to bear on the adjudication of the case.
[18]
In applying this test to the facts in hand, there is in my view not
the remotest possibility that any “
reasonable,
objective and informed person
”
on the facts set out in the attorney of record of the Applicant would
reasonably apprehend that I discussed the merits with
the attorney
and that I will, true to the oath of my office, not administer
justice in this matter “
without
fear or favour
”.
[19]
I accordingly dismissed the application for my recusal and wish to
add that I regard, having regard to the true facts, the
actions of
the Respondents’ counsel and attorney of record as highly
irresponsible, reprehensible, unprofessional and unethical
and a
gross insult to my integrity. As I have already indicated, the
application was not only based on wrong legal principles,
but also on
obviously wrong and unsubstantiated factual averments. I have no
doubt that the representatives should have realized
and, perhaps,
most probably did realize that there is no legal or factual basis for
an application of this nature and should have
advised the
Respondents’ accordingly. In failing to do so they merely
created unrealistic expectations with the Respondents
to such an
extend that the First Respondent had, after I granted the order in
this matter, loudly expressed his dissatisfaction
with my decision in
open court.
[20]
This brings me to the merits of the Rule 49(11) application.
Submissions
raised
in
limine
in the Rule 49(11) application
[21]
Ms. De Klerk raised two points
in
limine
,
namely -
(a)
that the “
Notice
of Motion
”
in Rule 49(11) application is fatally defective because it does not
comply with provisions of Rule 6 in that it does not
comply with Form
2A as set out in the Rules;
(b)
that it does not comply with the so-called Judge Southwood
directions and is, therefore, not be entertained as an urgent
application
and that in any event this application can only be heard
in the urgent court.
[22]
With due deference to Ms. De Klerk, her submissions are
ill-perceived.
[23]
The Rule 49(11) is an application incidental to the Application for
Leave to Appeal and, therefore, an interlocutory application
which
may be brought under Rule 6(11), may be brought by notice (and not by
Notice of Motion) and is not hit by the provisions
of Rule 6(12)
(
Erasmus,
Superior Court Practice, p. B1-370A; Airy and Another v Cross_border
Road Transport Agency and Others
2001 (1) SA 737
(T) at 741F-H
);
and
South
Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd
1977
(3) SA 534
(A) at 551E
).
[24]
I am satisfied that, because,
inter
alia
,
of the fact that the agreement of sale of the property is under
threat of being cancelled as the Respondents are refusing to allow
to
take, or preventing them from taking, occupation of the property and
that the Respondents are exercising control over, and the
revenue
derived from, the business of the Applicants, there is sufficient
urgency to deal with this matter as such. There is in
any event no
suggestion that the Respondents are prejudiced in so far as this
matter is enrolled as a matter of urgency. As a matter
of fact they
have been afforded more than ample opportunity to file opposing and
supplementary affidavits.
[25)
I now proceed to deal with merits of the Rule 49(11) application.
Merits
of the Rule 49(11) application
[26]
The principles on which applications of this nature should be
considered have been set out in the leading case of
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd, 1977(3) SA 534 (A)
in which Corbett JA (as he then was) held that in exercising a
discretion in terms of Rule 49(11) the Court should determine what
is
just and equitable in all the circumstances, and, in doing so, would
normally have regard,
inter
alia
,
to the following factors, namely -
the
potentiality of irreparable harm or prejudice being sustained by
the appellant on appeal (respondent in the application)
if leave
to execute were to be granted;
the
potentiality of irreparable harm or prejudice being sustained by
the respondent on appeal (applicant in the application)
if leave
to execute were to be refused;
the
prospects of success on appeal, including more particularly the
question as to whether the appeal is frivolous or
vexatious or
has been noted not with the
bona
fide
intention of seeking to reverse the judgment but for some
indirect purpose, e.g., to gain time or harass the other party;
and
where
there is the potentiality of irreparable harm or prejudice to
both appellant and respondent, the balance of hardship
or
convenience, as the case may be.
[27]
As far as the potentiality of irreparable harm is concerned, it is
in my opinion clear that the harm to be suffered by the
Applicants,
should the Order remain suspended, by far exceed any harm, if any,
the Respondents may suffer.
[28]
It appears from the initial as well as the amended Notice of
Application for Leave to Appeal that the Respondents are seeking,
as
far as the merits of the matter are concerned, leave to appeal
primarily against the orders set out in paragraph 1(g) and
2 of my
Order.
[29]
The effect of those orders are that they are not deprived of their
accommodation on the property, but are only debarred
from entering
and maintaining the business conducted by the Applicants and ordered
to return the books and records of the business
and the keys to the
property.
[30]
It is in my view evident that under these circumstances the
Respondents stand to suffer no prejudice by complying with the
orders granted pending their application for leave to appeal. They
were merely ordered not to act in an unlawful manner, not
to take
the law into their own hands and to return to the Applicants certain
property belonging to the Applicants. In so far
as they contend that
they have, as shareholders, the right to conduct the business of the
Applicants they are free, in so far
as a shareholder may have such a
right, to pursue their application launched under Case No. 44341/08.
[31]
On the other hand, the Applicants are, as I have already indicated,
about to suffer particular harm in so far as they are
precluded to
exercise any control over, and the income derived from, their
business and in so far as the agreement of sale are
at risk to be
cancelled should they not be able to allow the purchasers occupation
of the property and the business conducted
thereon. The Respondents
have, since they are admittedly not registered owners of any shares
in the Applicants, not entitled
by virtue of their contention that
they have a claim to the shares, to control the business, take
control over the revenue derived
therefrom and to frustrate the sale
of the property (see:
Standard
Bank of SA Ltd v Ocean Commodities Inc
1983 (1) SA 276
(A) at 289A
).
[32]
As far as the Respondents’ prospects of success on appeal are
concerned, I, not yet having heard full argument on
that Application
for Leave to Appeal, am disinclined to express any views on the
Respondents’ prospects of success.
[33]
It would, however, appear, as I have already indicated, that the
Application for Leave to Appeal is primarily directed at
paragraphs
1(g) and 2 of my Order.
[34]
As is apparent from my judgment, I granted the order set out in
those paragraphs on the Respondents’ own version from
which it
appears -
(a)
that they are or were not employees; and
(b)
that they are not registered shareholders of any of the Applicants,
so
that they cannot as a reasonable inference have no right ir
entitlement to exercise control over, and the income derived from,
the business of Applicants.
[35] Leaving
aside all other considerations, it appears to me that their
prospects of success on appeal are relatively slim.
[36]
Whether or not I am correct in this regard, I am satisfied, as I
have already indicated, that the potential prejudice to
the
Respondents is insignificant relative to the potential prejudice to
the Applicants.
[37]
In my view it is apparent that the Application for Leave to Appeal
as well as the various actions taken by the Respondents,
such as -
(a)
the unsubstantiated, abortive and ill-perceived application for my
recusal;
(b)
the repeated challenges on the urgency of the matter, the
unsubstantiated;
(c)
the unsubstantiated
in
limine
points raised; and
(d)
their apparent failure to take any active steps since 1 April 2010
to bring their Application for Leave to Appeal to its
final
conclusion,
have
been launched merely in an attempt to delay the execution of the
order as long as they possibly can.
[38]
As far as the question of costs is concerned, I have been requested
to order the Respondents to pay the costs in respect
of the
application for recusal on a punitive scale. I am not inclined to do
that as it appears to me that the Respondents were
ill-advised by
their legal representatives and I see no reason why the Respondents
should be mulcted with a punitive order of
costs.
[39]
It is for these reasons that I granted to order referred to in
paragraph [1] of this judgment.
...............................
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF THE APPLICANTS
ADV
C WOODROW
On
the instructions of THOMSON WILKS ATTORNEYS
c/o
INGRID VAN GREUNEN ATTORNEYS
608
Reitz Street
Sunnyside
PRETORIA
Ref
: Mr S Thomson/sh/I004
(011)
784 8984
ON
BEHALF OF THE RESPONDENTS ADV J DE KLERK
On
the instructions of: JAN D VAN ZYL ATTORNEYS
Lake
View Office Park
137
Muckleneuk Street
Nieuw
Muckleneuk
PRETORIA
Ref:
Van Zyl/mb/JZ4164/S249
Tel:
(012) 346 4082
DATE
OF HEARING 14 June 2010
REASONS
FURNISHED 15 June 2010