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[2010] ZAGPPHC 120
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Monkam v Monkam Holdings (Pty) Ltd and Others (39736/09) [2010] ZAGPPHC 120 (22 September 2010)
Not reportable
IN THE NORTH GAUTENG HIGH COURT
(HELD AT PRETORIA)
CASE NO: 39736/09
DATE: 22/09/2010
In the matter between:
PASCAL MONKAM
(SENIOR)
...........................................................
APPLICANT
And
MONKAM HOLDINGS (PTY)
LTD
......................................
FIRST
RESPONDENT
PASCAL MONKAM
(JUNIOR)
......................................
SECOND
RESPONDENT
FUSIE
TRUST
.....................................................................
THIRD
RESPONDENT
PASCAL MONKAM (JUNIOR)
N.O
...............................
FOURTH
RESPONDENT
DIEUDONNE TEJEU KADJI
N.O
.......................................
FIFTH
RESPONDENT
JUDGMENT
TOLMAY, J:
BACKGROUND
The applicant brought an application
and asked that the transfer of 100% shares of Hoopstraat Beleggings
(Pty) Ltd (“Hoopstraat”)
and Monkam Investment Properties
(Pty) Ltd (in liquidation) (“MIP”) be set aside and be
declared to be of no force
and effect. He also asks the Court to
declare that he is the owner of 100% shares in Hoopstraat and MIP and
that the share certificates
of both aforesaid companies be delivered
to him.
I
set out a short summary of the background of this application.
The applicant who is a citizen of
Cameroon, and who has permanent residence in South Africa, decided to
invest in South Africa.
In this process the applicant
inter
alia
bought the entire
issued share capital in Hoopstraat. Hoopstraat also purchased certain
immovable properties. Applicant also bought
the entire issued share
capital in Cresta Properties (Pty) Ltd (“Cresta”).
Cresta’s name was in due course changed
to MIP. MIP also bought
a residential property. The applicant acquired the entire share
capital of Madeleine Properties (Pty) Ltd
(“Madeleine”).
The applicant and fourth respondent managed the applicant’s
affairs in South Africa.
This relationship between applicant
and fourth respondent in due course went sour as the applicant
alleges that fourth respondent
divested him of his assets. It would
seem that fourth respondent
inter
alia
established first
respondent and transferred the entire share capital in Hoopstraat and
MIP to first respondent. Fourth respondent
claims that he transferred
the shares in Hoopstraat and MIP in accordance with an oral mandate
of the applicant. The applicant
denies the existence of such a
mandate. Apparently all the assets in MIP were transferred to
Madeleine and the shares in Madeleine
was according to fourth
respondent donated to him by applicant. This is categorically denied
by applicant.
The aforesaid set of circumstances led
to a protracted legal battle between the applicant and the
respondent.
At the outset of the hearing an
application to strike out was brought by the applicant regarding
certain offending material contained
in the answering affidavit. In
the light of my conclusion I need not deal with this application.
On 16 August 2007 an order was made in
this Court in an application between applicant and second respondent
that the dispute regarding
the ownership and directorship of
inter
alia
Hoopstraat and MIP be
referred to arbitration.
The arbitration proceedings commenced
and the particulars of claim was served during June 2008. On a
perusal of the particulars
of claim the disputes between the parties
were substantially the same as that contained in this application.
The prayers sought
in the particulars of claims were also
substantially the same than those which are sought in this
application.
The arbitration proceedings commenced
during February 2009. Apparently the second and third respondents
were in default regarding
the applicant’s claims against
Hoopstraat and MIP and applicant obtained an award by the arbitrator
by default. The arbitrator’s
award is yet again substantially
the same as the prayers sought in this application.
The trustees of the second and third
respondent brought an application for review of the arbitration
proceedings, as well as interim
relief, pending the outcome of the
review.
CONCLUSION
It was argued on behalf of the
respondents that this court is not competent to deal with the
application as the applicant chose
the road of arbitration and a
review of the arbitrator’s award is pending. Consequently it
was argued that the dispute cannot
be revisited by this court. It was
also argued that as a result of the dispute of facts between the
parties this matter cannot
be decided by way of application.
The applicant argued that the first
respondent was not a party to the arbitration and consequently this
court can entertain this
application, and also submitted that on a
proper analysis of the alleged factual dispute the court is well able
to determine the
disputes by way of application.
It is to be noted that the
substantially same relief is requested in this application than what
was granted in the arbitration award.
If this court grant an order
that order may be in conflict with the arbitration award or the
review judgment. Certainly such a
position will be untenable.
The applicants’ legal
representative indicated that they may not execute the arbitration
award. In correspondence that was
attached to respondent’s
supplementary heads of argument it would seem that the applicant did
at the very least attempt to
execute the arbitration award. This
court can in any event not merely ignore the arbitrator’s award
and pending review application.
The fact that the first respondent was
not a party to the arbitration proceedings does not save the
application. Even if the defense
does not strictly constitute a
defence of
lis alibi pendens
a Court can, in the exercise of its discretion debar a person from
ventilating a dispute already decided under the guise of an
action
against another party.
In this regard the see
Cook and Others v Muller 1973(2) SA 241 NPD on 245.
Consequently I find that the dispute
before me cannot be determined pending the finalization of the review
application. In my view
the decision to approach this court knowing
that the arbitrator already made an order and that there is a pending
review constitutes
an abuse of process.
I
am furthermore not convinced that the disputes between the parties
can be determined by way of application due to the considerable
factual disputes. The parties must have envisaged such a factual
dispute when the route of arbitrate was chosen. This dispute was
foreseeable and this must lead to a dismissal the application.
The
parties referred me to the fact that the costs of the joinder
application we reserved for determination by this Court. As the
court
granted the joinder I am willing to revisit the question of joinder
and those costs should follow the result this matter.
I
make the following order:
1.
The application is dismissed,
2.
The applicant is to pay the costs which include the costs of joinder
application and which furthermore include the costs senior
counsel.
PASCAL MONKAM (SENIOR VS MONKAM
HOLDINGS AND OTHERS
CASE NO: 39736/09
JUDGE: TOLMAY
DATE OF HEARING: 24 AUGUST 2010
ATTORNEYS
FOR THE PLAINITFF:
MALAN & MOHALE ATTORNEYS
462
JULIUS JEPPE STREET
WATERKLOOF
PRETORIA
TEL: 012 – 460 9567
REF: T FINCK
ADVOCATE
FOR THE PLAINITFF: ADV S J MARITZ (SC)
ADV N LOUW
ATTORNEYS
FOR RESPONDENTS:
HENNING
ATTORNEYS
3
RD
FLOOR, ROOM 302
467
KING’S HIGHWAY
CNR
MEIRINGS NAUDE & KING’S HIGHWAY
LYNNWOOD
PRETRIA
TEL:
012 361 1084
ADVOCATE
FOR RESPONDENTS: ADV Q PELSER (SC)
DATE
OF JUDGMENT: 22 SEPTEMBER 2010