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[2011] ZAGPPHC 91
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Van Zyl In re:Kruger NO and Others v Blue Dot Properties (Pty) Ltd (70273/2009) [2011] ZAGPPHC 91 (5 May 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 70273/2009
Date:
5 May 2011
In
the matter between:
JACOB
JOHANNES VAN
ZYL
.........................................................................
Intervening
Party
In
re:-
PAUL
DANEEL KRUGER
N.O.
...............................................................................
1st
Applicant
ERNEST
LODEWYK BERMAN
N.O.
....................................................................
2nd
Applicant
THEODOR
WILHELM VAN DEN HEEVER
N.O.
.................................................
3rd Applicant
(In
their capacities as the joint liquidators of Spitskop
Village
Properties Limited (in liquidation))
and
BLUE
DOT PROPERTIES (PTY)
LTD
......................................................................
Respondent
JUDGMENT
PRETORIUS
J,
This
is an application for leave to appeal against the court's judgment
which refused the application for intervention in the winding-up
application of Blue Dot Properties (Pty) Ltd by the present
applicant, Mr. JJ van Zyl.
Rule
12 provides:
"Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties,
at any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application
make such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem
meet."
The
court had indicated that Mr HC Lamprecht did not have locus standi to
oppose the application as he was an unrehabilitated insolvent
and
that the HCL Family Trust had been sequestrated. The applicant
launched an application to intervene as a respondent in the
winding-up of Blue Dot Properties (Pty) Ltd. The application to
intervene was dated the same day of the winding-up, but was only
served and filed the afternoon after argument for the winding-up had
been heard. Mr Puckrin, for the liquidators, as well as Mr
Badenhorst
for the trustees, opposed the application to intervene as being an
opportunistic application to intervene as the applicant
did not set
out facts to establish a prima facie case in the main application.
Mr
van Zyl, the applicant, stated:
'Ek
is voorts geadviseer en meegedeel dat dit noodsaaklik is dat ek
toetree tot die verrigtinge onder Saaknommer:70273/09 hierbo
na
verwys ten einde toe te sien dat die belange van die Respondent na
behore beskerm word. Voorts is dit van uiterste belang vir
die
regverdige en billike beregting van die aansoek van die Applikante en
die opponering van die Respondent dat die verwere soos
waarna verwys
word in die Beantwoordende Beedigde Verklaring afgele deur Mnr HC
Lamprecht voordat hy voorlopig gesekwestreer is,
behoorlik beredeneer
en geargumenteer word voor die Hof ten einde 'n billike beregting van
die aansoek daar te stel."
In
Shapiro v SA Recording Rights Association Ltd
2008 (4) SA 145
W
Gautschi
AJ found at p 152:
"[
17] In Minister of Local Government v Sizwe Development White J held
that an applicant for intervention has to satisfy the
court that:
(i)
(H)e has a direct and substantial interest in the subject-matter of
the litigation, which could be prejudiced by the judgment
of the
Court...
(ii)
the application is made seriously and is not frivolous, and that
the
allegations made by the applicant constitute a prima facie
case or
defence - it is not necessary for the applicant to satisfy
the
court that he will succeed in his case or defence. . . .
This
passage is quoted with approval in Ex parte Sudurhavid (Pty) Ltd.
Both those cases concerned an application for leave to intervene
as a
defendant or respondent. Whilst this test applies to persons wishing
to intervene as respondents or defendants, it is too
limited, and
will be generally inapplicable, for persons wishing to join as
applicants or plaintiffs." (Court's emphasis)
This
is applicable in the case of a respondent who wants to intervene as
is presently the case.
In
Ex parte Moosa: In Re Hassim v Harrop-Allin
1974 (4) SA 412
(T) Bliss
AJ held at 416 G:
"In
my opinion, at the leave to intervene stage, it is sufficient for the
party seeking leave to intervene to rely on allegations
which, if
they can be proved in the main action, would entitle him to succeed.
This
is in my opinion the criterion which should be applied at this stage
and it is the same criterion which constitutes a bona
fide defence as
reguired by a defendant who wishes to stave off an application for
summary judgment in terms of Rule 32 of the
Supreme Court Rules"
(Court's emphasis)
In
Shapiro {supra) Gauthschi AJ further found at para 19 p 153:
"[19]
It is furthermore required that an applicant for intervention show
that he or she has a prima facie case, that the application
is
seriously made and is not frivolous."
No
allegations are set out in the application to intervene which could
be proved in the main application which would entitle him
to success
in the main application. The applicant failed to deal with this in
his affidavit.
It
is clear from the affidavit of the applicant that he relies on
hearsay evidence and does not make out a prima facie case at all.
There are no allegations or submissions in his application that the
application is seriously made and that it is not frivolous.
He does
not set out that if he is not allowed to intervene that he will be
prejudiced at all in any way.
It
was clear that the application was brought as an afterthought after
the court had indicated that a final order will be granted
on the
next day as the court wanted to provide written reasons for the final
winding-up.
In
the leave to appeal application the applicant makes no mention that
the court erred in any way in granting the final winding-up
order.
There is no attack on the judgment on the merits of the winding-up or
any reasons set out to establish a prima facie case
that warrants the
intervention. The applicant does not aver that he will be prejudiced
if he is not allowed to intervene.
The
court finds that it is highly unlikely that under these circumstances
another court may come to a different conclusion.
The
following order is made:
1.
The application for leave to appeal is dismissed with costs;
2.
Costs to include the costs of two counsel for the respondent and
costs of counsel for the trustees.
Judge
Pretorius
Case
number : 70273/2009
Heard
on : 21 April 2011
For
the Applicant : Adv CE Puckrin SC
:
Adv MA Badenhorst SC
:
Adv J Hershensohn
Instructed by : Schabort INC
For
the Intervening Party : Adv B Pretorius SC
:
Adv J Gouws
Instructed
by : Lombard en Vennote ING
Date
of Judgment : 11 May 2011