IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 11100/2015
In the matter between:
RYNO ENGELBRECHT N.O. First Plaintiff
YUNUS ABOO BAKER ISMAIL N.O. Second Plaintiff
SHONA LE-ROUX MARX N.O. Third Plaintiff
and
CECILIA STADLER Defendant
Bench: I Jamie, AJ
Heard: 6, 7 & 22 November 2024
Delivered: 26 January 2024
This judgment was handed down electronically by circulation to the parties'
representatives via email and release to SAFLII. The date and time for hand- down is
deemed to be 11h30 on 26 January 2024.
JUDGMENT
JAMIE, AJ
2
[1] The plaintiffs are the joint trustees of the insolvent estate of one
Alwyn Bernardus Smit (hereafter ‘ Mr Smit’ or ‘the insolvent’ ) whose
estate was finally wound up by this court on 8 April 2014.
[2] The plaintiffs claim payment of certain monies from the
defendan t, Cecilia Stadler, described as an adult female resident in the
Western Cape Province.
[3] In the original particulars of claim, plaintiffs alleged the following:
“8. Before the sequestration of his estate, the insolvent
made payment s to the defendant, alternatively for the
benefit of the defendant, in the amounts and on the
dates as set out in the schedule annexed hereto
marked “PC2” .
9. Each of the said payments constituted a ‘disposition ’
of his property by the insolvent as contemplated in s 2
of the Insolv ency Act 24 of 1936 (‘the Act’ ).
10. Each such disposition was made at a time when the
liabilities of the insolvent exceeded the value of his
assets.
11. Each such disposition was not made for value and is
liable to be set aside in terms of s 26 of the
Insolvency Act.”
(“The setting aside claim”)
[4] The plaintiff subsequently amended their particulars of claim to
insert an alternative basis for the alleged liability of the defendant to
them. In such amended particulars of claim they retained the
allegation in paragraph 8 of the original particulars of claim, quoted
above, and then pleaded as follows:
3
“9. Each such payment was made on account of the purchase
price of a sale by the defendant to the insolvent of a half
share of the member ’s interest in and half of the member ’s
loan claim against Melkbaai Makelaars CC (“Melkbaai”).
10. Such sale was concluded orally, between the defendant and
the insolvent both acting personally, at Cape Town, about
late 2009 / early 2010, alternatively about March/April 2012,
for a price of R1, 134 million, on the basis of Melkbaai
owning Unit 10 in SS The Cliffs 592/2000 (“Unit 10”) and
being debt -free save for the member ’s loan claim aforesaid.
11. As at the date of sequestration of the estate, the sale
aforesaid remained executory, inasmuch as the insolvent
ha d not yet paid the full purchase price payable by him
thereunder and the defendant had not yet transferred to the
insolvent any part of the said member ’s interest or ceded to
the insolvent any portion of the said member ’s loan claim.
12. On 5 April 2016, Melkbaai sold Unit 10 to ICW Konsultante
BK (“ICW”), and on 8 March 2017 Unit 10 was transferred
from Melkbaai to ICW pursuant to such sale, rendering the
sale mentioned in 9 to 11 above impossible of
implementation on the basis aforesaid.
13. In the premises, the payments aforesaid are refundable by
the defendant to the plaintiffs but have not been so
refunded.”
(“the contractual claim”)
[5] In the amended particulars of claim, and in the alternative to the
contractual claim, the plaintiffs persisted with the allegations in relation
to the setting aside claim.
4
[6] In her amended plea to the plaintiffs’ amended particulars of
claim, the defendant pleaded as follows, insofar as is relevant:
“Ad paragraph 8
2. The content hereof is denied.
3. Defendant specifically denies that the insolvent made any
payments to her or for her benefit.
Ad paragraphs 9 to 11
4. These paragraphs are denied.
5. Defendant specifically denies that a half share of the
member ’s interest in, and half of the member's loan claim
against Melkbaai was sold to the plaintiff.
6. Any and all payments by the insolvent to Melkbaai were
made in respect of the client base of the D efendant’s late
husband’s brokerage business, conducted through Melkbaai,
taken over by insolvent on 2 April 1998 the day after
Defendant’s late husband passed away.
7. The Defendant acted on behalf of Melkbaai at all relevant
times.
Ad paragraph 12
8. Defendant admits that Melkbaai sold Unit 10 to ICW B K and
that this unit was tra nsferred as alleged, but the other
allegations in this paragraph is denied.
Ad paragraph 13
9. It is specifically denied that any payments are refundable by
5
the Defendant to the P laintiffs, but admitted that no
payments were refunded.
Ad paragraphs 14 to 19
10. The content hereof is denied. In respect of the allegations
in paragraph 17 of the Particulars of Claim, and with
reference to the content of paragraph 6 hereof, it is
specifically alleged that such dispositions were made for
value.”
[7] Defendant subsequently again amended her plea in the following
respects:
7.1. She admitted that during the period February 2010 through
February 2014 the insolvent paid an amount of R710 412,00
to Melkbaai, abandoned the allegation that such payments
were in respect of the defendant’s late husband’s brokerage
business, and averred that these payments were made by
the insolvent in anticipation of him acquiring Unit 10 from
Melkbaai, alternatively a direct or indirect interest in that
property. She further averred that su ch payments were
made to Melkbaai and inured to its benefit and was applied
by it to pay levies and other expenses in relation to the
proper ty .
7.2. She admitted that, at the time of the payments referred to
by plaintiffs as the ‘dispositions’, the insolvent’s liabilities
exceeded the value of his assets , and also abandoned the
allegation that the payments were for value.
[8] In their amended replication to the defendant’s amended plea the
plaintiffs averred that Melkbaai was established by the defendant’s late
husband, Mr Henk Herbst, who died on 1 April 1998, whereafter the
defendant acquired Mr Herbst’s 100% interest in Melkbaai, which she
6
retained at all relevant times thereafter. These allegations were not
disputed by the defendant.
[9] At the commencement of the trial, Mr Rogers, who appeared for
the plaintiffs, indicated that the plaintiffs did not persist with certain
claims in relation to payments to chartered accountants Rademeyer
Wessen and to BMW, but persisted with the claim in respect of the
remaining pay ments, totalling R751 300,00. Mr Rogers also indicated
that all payments by the insolvent were from his ABSA current account
except for payments totalling R26 008,00, which were from an ABSA
current account in the name of Alwyn Smit Finansiele Dienste CC
(‘ASFD’), R12 625,00, which were from an ABSA current account in the
name of Silver Crow Properties 1 (Proprietary) Limited (‘Silver Crow’) ,
and an amount of R3 595,00, which was from an ABSA current account
in the name of the insolvent’s wife, Mrs Smit. These accounts, Mr
Rogers submitted, were under the control of the insolvent, and the
plaintiffs thus persisted in their claims in this regard.
[10] The battle -lines accordingly drawn, the plaintiff s called four
witnesses, whereafter they closed their case. The defendant closed
her case without testifying or calling any witnesses.
The relevant facts
[11] As indicated, the plaintiffs called four witnesses . T hey were Mr
Andre de Klerk, an attorney who acted for Mr Smit at the time that the
relevant agreements and doc uments were being prepared, Mr Bossau
Boshoff, an attorney at Werksmans who acted for one of Mr Smit’s
creditors, Mrs Bester, Rianna Smit, Mr Smit’s assistant at the relevant
time , and Mr Smit himself.
[12] Each of the aforesaid witnesses testified in a satisfactory
manner, and came across as credible, and testifying only to events
which they had themselves observed or participated in. Where
7
concessions were required, these were made. I accordingly accept
their evidence. I deal with Mr Smit’s position hereu nder.
[13] I agree with Mr Rogers that an inference may be drawn from the
fact that Mrs Stadler did not testify or call witnesses in rebuttal, that
she was not able to gainsay any material aspect of the evidence by
plaintiffs’ witnesses. I further agree that such testimony was not
impugned in any material respect during cross examination by Mr
Tredoux, who appeared for the defendant .
[14] Finally, I am of the view that Mr Smit had nothing to gain from
testifying falsely against Mrs Stadler. In fact, inasmuch as she was his
erstwhile sister -in -law, and given that it was not suggested during
cross- examination that he bore her any malice or ill will, I do not
consider his evidence suspect on that basis.
[15] As to the facts, the evidence, approached on the aforesaid basis,
disclosed the following:
15.1. In or about November 2009 Mrs Stadler requested Mr Smit
for financial assistance as her finances were under strain.
Mr Smit indicated that he was willing to assist her, but that
he wanted a 50% interest in Unit 10 at The Cliffs in return.
15.2. On 2 December 2009 Mrs Stadler sent Mr Smit an email
acknowledging his desire to acquire a 50% share in the
property and proposing a valuation therefor of R2.268
million plus VAT, based on a valuation that she had
received.
15.3. Mr Smit forwarded the email to Mr de Klerk, who prepared
a draft agreement for the sale of 50% of her member’s
interest in and loan claim against Melkbaai for a price of
R1.134 million, being half the valuation of the property,
payable at R7 000,00 per month from 1 February 20 10.
8
These payments commenced on 9 February 2010 and were
effected into the ABSA bank account of Melkbaai. Mr Smit
testified that the payments were for Mrs Stadler, in
response to her request for financial assistance, and in
furtheran ce of the agreement regarding his acquisition of a
half -share in the property. He also testified that the
reason that the payments were effected to Melkbaai’s
account was because that was the account that Mrs
Stadler nominated for such purpose.
15.4. In late 2009 or early 2010 Mrs Stadler pointed out to Mr de
Klerk that she was not prepared to dispose of half of her
member’s interest and loan account in Melkbaai as it
owned other properties, the acquisition of which was not
part of the agreement with Mr Smit.
15.5. In light thereof, it was agreed between Mr Smit and Mrs
Stadler that a company would be established in which they
would be equal shareholders, in order to acquire Unit 10
from Melkbaai. A company called Hedracel Investments
(Proprietary) Limited (‘Hedracel’) was thereafter
esta blished with Mr Smit and Mrs Stadler becoming equal
shareholders and directors thereof, in about June 2010.
15.6. Subsequently, Mr de Klerk prepared an agreement for the
sale of Unit 10 by Melkbaai to Hedracel. That agreement
was never signed and Hedracel remained dormant.
15.7. In July 2011 one of the additional properties owned by
Melkbaai was disposed of by it, and the second additional
property owned by it was disposed of in March 2012. As a
result, Melkbaai thereafter owned only Unit 10 at The
Cliffs, being the property which Mr Smit wished to acquire
50% of.
9
15.8. Given the obvious transfer duty disadvantages of the sale
of the property from Melkbaai to Hedracel, in order for Mr
Smit to acquire an effective 50% share therein, he and Mrs
Stadler discussed the original concept, i.e. his acquisition
of a half -share of her member’s interest in Melkbaai,
including the loan account. The parties agreed to proceed
on this basis, with payments already effected by Mr Smit
being in respect of the purchase price of such half -shar e of
the member’s interest and loan account in Me lkbaai.
15.9. These payments continued until January 2014. In addition,
Mr Smit made ad hoc payments to Mrs Stadler, into the
Melkbaai account, at her request as and when she required
assistance. These payments included an amount of
R202 632,00, paid on 29 November 2011, in respect of
VAT payable by Melkbaai in relation to the disposal of one
of the properties owned by it, referred to in paragraph 15 .7
above.
15.10. Mr Boshoff, in his evidence, confirmed that Mrs Stad ler
had informed him in about November 2013 that Mr Smit
had made substantial payments in respect of the
acquisition by him of 50% of the member’s interest in
Melkbaai.
15.11. In the course of being examined at an enquiry in terms of
s 152 of the Insolvency Act in July 2014, Mrs Stadler
testified as follows:
“ ‘MNR KURZ : Okay. Hy het aan jou in die afgelope
vier jaar ‘n hele klomp geld gegee, is dit nie?
ME STADLER : Dis reg.
MNR KURZ : En daardie gelde soos ek dit verstaan is
10
in jou bankrekening inbetaal?
ME STADLER: Dis in Melkbaai Makelaars se rekening
betal.
MNR KURZ : Maar dis eintlik geld aan jou gegee.
ME STADLER: Dis in Melkbaai betaal ja, Melkbaai is
my enigste … (tussenbeide).
MNR KURZ : Jy kan nie vir my sê waarom hy jou geld
gegee het nie?
ME STADLER: Ek het gevoel dis payback time, dis
maar die geld wat hy my vir tien jaar nooit gegee het
nie, vir die besigheid wat ek hom gegee het, so
aanvanklik het ek aanvaar dis maar hulp, omdat my
finansies begin swaar trek het.
MNR KURZ : Right. Nou gaan ek j ou weer vra waarom
het hy vir jo u geld betaal?
ME STADLER: Hy het aangebied om my te help want
hy geweet my finansies is nie meer so sterk nie, en ek
het dit so aanvaar, hy is my swaer, hy sorg vir baie
mense en hy … (tussenbeide).
MNR KURZ : Dankie mevrou.
ME STADLER : … het my ook geld geskuld so …
MNR KURZ : It’s very easy to just give a
straightforward answer. Okay, payback time en sulke
goed is nie antwoorde mevrou. So hy het aan jou ‘n
klomp geld gegee maa ndeliks, is ek reg?
ME STADLER : Dis reg.”
11
15.12. I further consider there to be merit in Mr Rogers’
submission, in argument, that Mrs Stadler conducted the
Melkbaai account as if it was her personal account, and
that she does not appear to have distinguished between
funds belonging to Melkbaai and those utilised for her own
purposes. The above excerpt from the insolvency enquiry
bears this out. Further , the bank statements reflect a
number of payments, which are clearly personal in nature,
including in respect of accounts with Truworths and
Edgars, as a lso in respect of TV licences , a cell phone
service provider, and DSTV. During the period under
consideration, there were also various payments from
Melkbaai’s account to her personal account.
[16] I now turn to the two bases upon which plaintiffs advanced their
claim.
The contractual claim
[17] As a general proposition, the insolvency of a party does not put
an end to a contract which has not yet been fully executed. In such
instances, the trustee must elect , within a reasonable time, whether or
not she will abid e by the contract ; if she decides to do so, she must
perform in terms thereof while, if she elects not to do so, the other
party cannot demand performance of the insolvent’s contractual
obligations.
1
[18] In the case of supervening impossibility of performance, the
parties’ obligations to perform are extinguished, and the innocent part y
is entitled to rescission of the contract and restitution of whatever he
1 LAWSA, Vol 11 (Second Edition), para 267, footnote 55
12
may have performed thereunder, as also any damages suffered by
him. 2
[19] It was common cause at the trial that Mrs Stadler, via Melkbaai ,
of which she was the sole member, sold Unit 10 at The Cliffs on 5 April
2016, and that same was transferred on 8 March 2017, thereby
rendering any performance of the alleged agreement between Mr Smit
and Mrs Stadler for him to acquire a half -share of Melkbaai in order to
acquire a 50% interest in the property, impossible of performance.
[20] In my view, the evidence, fairly considered, establishes an oral
agreement between the insolvent and Mrs Stadler, the defendant,
concluded in late 2009 / early 2010, alternatively in March or April
2012, in terms whereof the insolvent would acquire half the member’s
interest in Melkbaai, in order to obtain a 50% effective interest in Unit
10, The Cliffs, which property was owned by Melkbaai. In this regard:
20.1. The insolvent ’s evidence was unchallenged that, at all
material times, he wished to acquire a half -share in Unit
10, as quid pro quo for monies that he was prepared to
advance to Mrs Stadler, as she was in financial straits.
20.2. Such payments comme nced shortly after the alleged
agreement, in early 2010 and continued until 2014.
20.3. No other reason was advanced on behalf of the defendant
during the trial as to what other reason or motive might
have induced the insolvent to make the various payments
admitted on the part of the defendant, other than the
proposed acquisition of a half -share in the property.
20.4. The fact that, in early 2010, Mrs Stadler objected to the
acquisition of half the member’s interest in Melkbaai,
2 LAWSA, Vol 9 (Third Edition), para 4 -6, footnote 16
13
inasmuch as it also owned other properti es, does not, in
my view, change the essential nature or content of the
agreement.
20.5. While it is indeed so that the parties thereafter considered
other mechanisms to obtain the objective of the insolvent
to acquir e a half -share in Unit 10, for example its
acquisition by Hedracel, upon the impediment to an
acquisition of half the member’s interest in Melkbaai ( being
the vehicle for the insolvent’s acquisition of a half -share in
Unit 10 ) falling away by the disposal of the other
properties owned by Melkbaai, in my view the evidence
supports the conclusion that the parties thereafter reverted
to the original agreement, i.e. the acquisition by the
insolvent of half the member’s interest in Melkbaai.
20.6. The fact that payments continued throughout this period,
until 2014 into the account of Melkbaai supports this
conclusion.
20.7. Finally, it must be borne in mind that the defendant
asserted a causa, viz payment for her late husband’s
brokerage business, that was not persisted with at the
trial. This must, of necessity, ad versely affect her
credibility, insofar as she sought to contend at the trial that
there was in fact no agreement.
[21] In conclusion, I find that the factual basis of the contractual claim
has been established by the evidence. What remains is the legal basis
therefor.
[22] In this regard, and as can be gleaned from the pleadings, more
especially the amended plea referred to in paragraph 6 above, the
defendant resolutely contended at the trial that the payments by the
insolvent were not made to her or for her benefi t, and that such
14
payments were made to Melkbaai, a separate and distinct legal entity.
The essential question is whether this defence holds water on the facts
established in this case. I do not believe so.
[23] Mr Rogers submitted, in oral argument, that Melkbaai was, in
essence, the defendant’s alter ego and was utilised as such. He also
contended that Melkbaai was essentially the defendant's agent, and
that payment to an agent amounts, in law, to payment to the principal .
In response, Mr Tredoux submitted that the alter ego argument had not
been pleaded and was not open to the plaintiffs to advance.
[24] In PAF v SCF
3 the Supreme Court of Appeal restated the
principles applicable where it is alleged that a basis for a claim or
counterclaim has not been properly raised on the pleadings. The court
reiterated that substance , rather than form, must be considered, as
also whether the issue sought to be relied upon has been fully
ventilated at the trial .
4
[25] The court further stated that it had inherent jurisdiction to decide
a matter even where it has not been pleaded, provided that the matter
has been fully ventilated before it and that, if the real issue emerges
during the course of the trial, it would be proper to treat the issues as
enlarged where this can be done without prejudice to the party against
whom the enlargement is to be used.
5
[26] Proceeding on the aforesaid basis, I conclude that, even if the
alter ego argument was not properly raised on the pleadings, there is
no prejudice to the defendant insofar as the plaintiffs seek to rely
thereupon. Indeed, on a proper construction of the pleadings and
regard being had to the issues ventilated during the proceedings before
me, it was at all times apparent that the plaintiffs’ contention was that
3 2022 (6) SA 162 (SCA)
4 At paras 29 and 30.
5 At para 31.
15
the defendant utilised Melkbaai and its bank account as her personal
property and for her own end s. Most pertinently, the insolvent’s
evidence that the defendant nominated the Melkbaai account for
payment of the amounts that the insolvent paid her in order to assist
her financi ally, was never effectively disputed, nor did the defendant
lead contrary evidence in this regard. She must live with that election.
[27] Accordingly, I find that the plaintiffs may rely on the alter ego
argument.
[28] I find the following to be an accurate description of the applicable
legal position:
“A company may, of course, always act as an agent for those
persons who happen to be shareholders in any matter,
including matters connected with their shareholding. Where
that is the case, the normal relationship between principal
and agent will exist between the company and its members,
one consequence of which is that the shareholders , and not
the company, will be liable on any contract entered into by
the company on their behalf. But in the context of veil
piercing, the term ‘agency’ is used in another sense. A
company is said to have been the ‘agent’, or , perhaps more
accurately, the ‘alter ego’ or ‘instrumentality’, of its
controlling shareholders where it does not, in truth, carry on
its own business or aff airs, but acts merely in the furtherance
of the business or affairs of its shareholders, in other words,
its controllers do not treat it as a separate entity, at least not
in the full sense. Although the form is that of a separate
entity carrying on business to promote its stated objects, in
truth the company is a mere instrumentality or business
conduit for promoting, not its own business or affairs, but
those of its controlling shareholders. For all practical
purposes the two concerns are in truth one. In these cases
16
there is usually no intention to defraud although there is
always abuse of the company’s separate existence (an
attempt to obtain the advantages of the separate personality
of the company without in fact treating it as a separate
entity). Although there are dicta suggesting that ‘agency’
here means agency in the proper sense, it is clear t hat that
is not in fact required. This is not merely because the courts
do not insist upon the existence of a contract of agency
(express or implied) in terms of which the company does act
as an agent properly so called. It is because the company in
question does not in truth even conduct the business as an
agent.”
6
[29] Accordingly, and on the factual basis set out above, I conclude
that the payments by the insolvent into the bank account of Melkbaai
are, effectively, and as a matter of law, payments to the defendant,
which the plaintiffs are entitled to reclaim from her. The fact that they
could also have claimed those payments from Melkbaai, in the
alternat ive, is irrelevant. I intend to make the requisite order in this
regard hereunder.
The setting aside claim
[30] Mr Tredoux raised two defences in relation to t his claim, viz :
30.1. Whether the dispositions at issue related to the property of
the insolvent;
30.2. Whether the defendant benefited from such dispositions.
[31] I deal with these in turn.
[32] The first argument was that the payments to the defendant by,
respectively, AB Smit Finans ië le Dienste CC, the insolvent’s wife, Mrs
6 LAWSA, Vol 6 Part 1 at para 65, p 114, footnotes omitted.
17
Marietjie Smit, and Silver Crow, cannot be attributed to the insolvent,
and thus were not recoverable by the plaintiffs. I consider the
argument to be sound.
[33] The applicable legal position is the following:
“Generally, where money is deposited into a bank account
of an account -holder it mixes with other money and, by
virtue of commixtio becomes the property of the bank
regardless of the circumstances in which the deposit was
made or by whom it was made. The account -holder has no
real right of ownership of the money standing to his credit
but acquires a personal right to payment of that amount
from the bank, arising from their bank -customer
relationship. This is also so where, as in this case, no
money in it s physical form is in issue, and the payment by
one bank to another, on a client’s instruction, is no more
than an entry in the receiving bank’s account. The bank’s
obligation, as owner of the funds credited to the customer’s
account, is to honour the customer’s payment instructions.
Where the depositor is not the account -holder he
relinquishes any r ight to the money and cannot reverse the
transfer without the account -holder’s concurrence.”
7
[34] Accordingly, the fact that the insolvent testified that he paid the
monies claimed by the plaintiffs in this regard into the aforementioned
three accounts, and that he at all times controlled such funds , is legally
irrelevant. He was unable, as a matter of law, to reclaim those
amounts from the receiving banks or any third party to whom they
made payment on their client’s instructions , and nor can the plaintiffs.
The plaintiffs’ claim must be reduced accordingly.
7 Trustees of the Insolvent Estate of Whitehead v Dumas and Another 2013 (3) SA 331 (SCA) at para
13
18
[35] The parties were not ad idem as to the amount of the reduction
required. The defendant contended that the claim had to be reduced by
the following amounts:
35.1. AB Smit Finans ië le Dienste CC : R27 608,00
35.2. Mrs M Smit: R16 220,00
35.3. Silver Crow: R 2 627,00
Total : R46 455,00
[36] The plaintiffs however contended that the relevant amounts were:
36.1. AB Smit Finansiele Dienste CC: R26 008,00
36.2. Mrs M Smit: R 3 595,00
36.3. Silver Crow: R12 625,00
Total: R42 228,00
[37] The differe nce is de minimis and I consider justice to be served
by reducing the plaintiffs’ claim by the amount of R45 000,00.
[38] As to Mr Tredoux’s second argument, viz that the defendant did
not benefit from the payments made by the insolvent to Melkbaai, the
argument ignores, in my view, the facts established at the trial. In
short, the defendant utilised Melkbaai, and its bank account, as her
alt er ego and private property. I have set out the reasons for this
conclusion above.
[39] The argument that she, as opposed to Melkbaai, did not benefit
from the payments made to her is a strained and inaccurate one.
Precisely because of the fact that the defendant and Melkbaai were
interchangeable, any of the latter’s obligations would ultimately have
had to be settled by the defendant, and she was also the beneficiary of
any amounts received by Melkbaai, including the proceeds of the sales
of the various properties held by it.
19
[40] I accordingly find that, to the extent set out above, the setting
aside claim has also been established. The reduced amount to which
the plaintiffs are entitled must, ho wever, obviously also apply in
respect of the contractual claim.
Costs
[41] Mr Rogers submitted that the defendant should be ordered to pay
the qualifying expenses of the expert witnesses, Ms Fey and Mr
Bahlman, whose evidence was required to counter, respectively, the
denial of insolvency and the abandoned defence that the payments at
issue were in respect of the insolvent’s acquisition of the defendant’s
late husband’s brokerage business. Mr Tr edoux did not contend
otherwise.
[42] Mr Rogers also sought the wasted costs occasioned by the
postponements of the matter on, respectively, 2 November 2020, 2
August 2021, 25 October 2021, 1 February 2022, and 4 May 2023, as
the defendant bore responsibility therefor . The record supports that
submission, and I did not understand Mr Tredoux to contend to the
contrary. I consider that such costs should be on the ordinary scale,
including in respect of the postponement on 25 October 2021.
Order
[43] For all of the afor esaid reasons, I make the following order:
1. The defendant shall pay the plaintiffs the sum of
R706,300,00;
2. The defendant shall pay the plaintiffs’ costs, such costs to
include the following:
2.1 The qualifying expenses of the plaintiffs’ expert
witnesses, Ms Fey and Mr Bahlman;
20
2.2 The wasted costs occasioned by the postponement s of
this matter on 2 November 2020, 2 August 2021, 25
October 2021, 1 February 2022, and 4 May 2023.
___________________________
I JAMIE
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the Plaintiffs: Adv J Rogers
Instructed by: Mr B Kurz
Biccari Bollo Mariano Inc.
For the Defendant: Adv P Tredoux
Instructed by: Mr J van Wyk
Du Plessis & Hofmeyr Inc.