Goldex 16 (Pty) Ltd v Body Corporate of Waterford Gold and River Estate SS139/2006 (3979/2016) [2023] ZAFSHC 369; [2023] 4 All SA 14 (FB) (24 July 2023)

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[2023] ZAFSHC 369
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Goldex 16 (Pty) Ltd v Body Corporate of Waterford Gold and River Estate SS139/2006 (3979/2016) [2023] ZAFSHC 369; [2023] 4 All SA 14 (FB) (24 July 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no.:  3979/2016
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
GOLDEX
16 (PTY) LTD
Applicant
And
BODY
CORPORATE OF WATERFORD GOLF
AND
RIVER ESTATE SS139/2006
Respondent
CORAM:
VAN ZYL, J
HEARD
ON:
9 FEBRUARY 2023
DELIVERED
ON:
13; 24 JULY 2023
[1]
There is an extremely long and protracted history of acrimonious
litigation between
the parties
in casu.
[2]
The papers filed in the present application are very voluminous. In
addition, I arranged
that the files in the previous applications
which I will deal with hereunder, also be placed before me. Since the
facts of the
respective applications are intertwined and since the
present application is directly connected to the other applications,
I deemed
it necessary to acquaint myself with the contents of the
other applications as well. This resulted in files and piles of
papers
which landed up on my desk. Unfortunately, this was a very
time consuming process, as was the writing of this judgment.  I

consequently issued the order herein on 13 July 2023 and made this
full judgment available on 24 July 2023.
[3]
I will refer to the parties as “Goldex” and “the
Body Corporate”.
[4]
Two substantive applications were enrolled to serve before me on 9
February 2023.
The said applications are referred to in the papers as
“the first stay application” and “the second stay
application”,
respectively. I will consequently also refer to
them as such in the judgment, although I will also refer
interchangeably to the
second stay application as “the present
application” when the context so allows and necessitates.
[5]
At the commencement of the hearing, both counsel indicated that they
are in agreement
that the merits of only the second stay application
are to be dealt with and adjudicated at this stage. As to what is to
happen
to the first stay application, counsel made different
submissions which I will deal with later in the judgment.
[6]
In terms of its proposed amendment of its Notice of Motion, Goldex is
seeking the
following relief in the present application:
“
1.
Declaring that paragraph 4.1 of the orders granted by the above
Honourable Court on the 13
th
day of October 2017 and
varied on the 9
th
day of November 2018 (“
the
order”
) was obtained as a result of the respondent’s
fraudulent conduct;
2.
Setting aside the order in its entirety;
3.
Directing the respondent to pay the costs of this application;
4.
Further and/or alternative relief.”
[7]
Goldex furthermore filed a proposed Draft Order to its replying
affidavit in terms
whereof it is seeking an order that the present
application be referred for the hearing of oral evidence on the
aforesaid issues
set out in the proposed Amended Notice of Motion.
THE
PREVIOUS APPLICATIONS BETWEEN THE PARTIES:
[8]
Daffue, J adjudicated all the applications between the parties which
preceded the
present application.
[9]
In the very first application between the parties, to which I shall
refer as “the
main application”, Goldex was the applicant
and the Body Corporate was the first respondent and the Managing
Agent of the
Waterford Sectional Title Scheme at the time, the second
respondent. In the main application the Body Corporate also filed a
counter-application,
to which I shall refer as “the
counter-application” or “the counter-application in the
main application”.
The relief which is being sought in the
present application relates to the relief which Daffue, J granted in
the counter-application
in the main application. The applications
between the parties which served before Daffue, J subsequent to the
main application
and the counter-application are, however, also
relevant to the relief which is being sought in the present
application. I will
consequently have to quote extensively from the
respective judgments of Daffue, J, firstly because they provide the
necessary background
to and understanding of the present application
and secondly because those judgments are currently still in force and
binding on
the parties (subject to the amendment of one of the
orders).
A:
The main application and the counter-application:
[10]
In Daffue, J`s judgment in the main application and the
counter-application, to which I will
refer as “the main
judgment”, dated 13 October 2017 (
Goldex
16 (Pty) Ltd v Body Corporate of Waterford Golf and River Estate SS
139/2006 and Another
(3979/2016)
[2017] ZAFSHC 173
(13 October 2017)), he sets out the following
introduction and description of the parties:
“
I
INTRODUCTION
[1]
The original owner and developer of immovable property
situated in the district of Parys, Free State Province on
the one
hand and the Body Corporate established in respect of the sectional
title scheme registered with the Registrar of Deeds
on such immovable
property and the managing agent of the Body Corporate on the other
hand, are at loggerheads. The correct interpretation
of certain
sections of the Sectional Titles Act, 95 of 1986 (“the
Sectional
Titles Act”
>)
and the Sectional Titles Schemes Management Act, 8 of 2011 (“the
Management Act”) with specific reference to the
obligation of a
holder/owner of a Registered Real Right of Extension to pay levies to
the Body Corporate
in
casu
is
paramount to the main dispute.  In addition to a statutory
obligation to pay levies, the Body Corporate relies on an agreement

between it and the developer.  Other issues must be resolved as
well as will appear soon.
II
THE PARTIES
[2]
Applicant is Goldex 16 (Pty) Ltd, (“Goldex”)
a private company with registered address in Johannesburg,
it being
the original owner of immovable property described as Subdivision 9
(of 4) of the farm Luciana 214, Free State Province,
measuring 23,
0869 hectares.  It is the developer of the Waterford Sectional
Title Scheme (“the Scheme”) which
Scheme is operated on
the aforesaid immovable property and
inter
alia
also still the registered
owner of a Real Right of Extension in the Scheme in respect of 18
vacant stands clearly demarcated on
the Certificate of Real Right of
Extension issued to it.  Adv GF Porteous appeared before me on
behalf of Goldex, duly instructed
by Jordaan and Wolberg Attorneys,
c/o
Rossouws Attorneys,
Bloemfontein.
[3]
First respondent is the Body Corporate
of
Waterford Golf and River Estate
(“the
Body Corporate”), duly established in terms of
s
36(1)
of
the
Sectional
Titles Act.
>
[4]
Second respondent is Mogwele Trading 291 (Pty) Ltd, t/a
Coral Property Management Solutions (“the Managing
Agent”).
[5]
The Body Corporate and the
Managing Agent were represented by Adv P Strathern SC, instructed
by
Brian Kahn Inc, c/o Claude Reid Inc, Bloemfontein.”
[11]
The Managing Agent is not a party to the present application.
[12]
At paragraph [7] of his judgment Daffue, J set out the relief which
Goldex sought in the main
application:
“
[7]
In the amended notice of motion Goldex seeks
the following relief:
‘
1.
declaring that no levies or other amounts whatsoever are due and
payable by the Applicant to the First
Respondent in respect of Real
Rights of Extension Nos [the numbers are not repeated] in
Waterford Golf and River Estate
SS 139/2006
(“the Scheme”),
save and except for such amounts as envisaged in section 3(1)(d) of
the Sectional Title Schemes Management
Act 8 of 2011 (“the
STSMA”) which the First Respondent has necessarily expended in
respect of the actual part or parts
of the common property of the
Scheme reserved in terms of the abovementioned Real Rights of
Extension and which the First Respondent
may, from time to time, seek
to recover from the Applicant in terms of section 3(1)(d) of the
STSMA;
2.
ordering and directing the First Respondent to furnish to the
Applicant within 10 (ten) days of
this order, the following detailed
statements;
2.1
in respect of each of Real Right of Extension No’s [again
not repeated] statements reflecting
only such amounts as may be
due and payable by the Applicant to the First Respondent by virtue of
the provisions of section 3(1)(d)
of the STSMA;
2.2    in
respect of Real Right of Extension No RR82 in the Scheme, a statement
reflecting only such amounts
as may be due and payable by the
Applicant to the First Respondent by virtue of the provisions of
section 3(1)(d) of the STSMA
and of
section
25(5A)(b)
of the
Sectional
Titles Act 95 of 1986
as amended (“the STA”)
read with
section
37(1)(b)
of the STSMA (sic) ;
3.     ordering
and directing the First Respondent, upon receipt of written request
from Knowles Husain
Lindsay Inc or such other conveyancers as the
Applicant may direct and against payment by the Applicant of the
amounts reflected
as due in the relevant statement of account
furnished in terms of paragraph 1 above, to furnish a certificate as
envisaged in
section
15B(3)(a)(i)(aa)
and/or
section
25(4A)(a)
of the STA in respect of any such Real Right of
Extension certifying that all monies due to the First Respondent by
the Applicant
have been paid;
4.     ordering
and directing the First Respondent to furnish, on the last day of the
month following the
month during which this order is granted and on
the last day of every month thereafter, a further detailed statement
of account
as described in paragraph 1 above, in respect of each Real
Right of Extension which remains registered in the name of the
Applicant;
5.      ordering
and directing the First Respondent, upon receipt of written request
from Knowles
Husain Lindsay Inc or such other conveyancers as the
Applicant may direct and against payment by the Applicant of the
amounts reflected
as due in the most recent statement of account
issued in terms of paragraph 1 or 3 above, to furnish a certificate
as envisaged
in
section
15B(3)(a)(i)(aa)
and/or
section
25(4A)(a)
of the STA in respect of any such Real Right of
Extension certifying that all monies due to the First Respondent by
the Applicant
have been paid;
6.      ordering,
directing and authorising the Sheriff of the above Honourable Court
in the event
that the First Respondent fails to comply with any of
the orders contained in paragraphs 1 to 4 above, and at the request
of Knowles
Husain Lindsay Inc or such other conveyancers as the
Applicant may direct and against payment by the Applicant of the
amounts reflected
as due in the most recent statement of account
issued in terms of paragraphs 1 to 3 above, to furnish on the First
Respondent’s
behalf, a certificate as envisaged in
section
15B(3)(a)(i)(aa)
and/or
section
25(4A)(a)
of the STA in respect of any such Real Right of
Extension certifying that all monies due to the First Respondent by
the Applicant
have been paid;
7.      ………
8.     ordering
and directing such of the Respondents who oppose this application to
pay the costs hereof,
jointly and severally, the one to pay the other
to be absolved.’”
[13]
In the main application the Body Corporate did not only oppose the
application, but also filed
a counter-application, as indicated
earlier, in which counter-application it sought the following relief,
as set out in paragraph
[8] of the main judgment of Daffue, J:
“
[8]
The following relief is sought by first respondent in the
counter-application:
‘
1.
Ordering and directing the applicant within thirty days of the date
of granting of an order herein, to
sign all necessary documents, make
all necessary applications and in general do all things necessary so
as to bring about and cause
the registration of praedial servitudes
in favour of the applicant, over the buildings, and/or services which
are situated on adjacent
agricultural land which is owned by the
applicant and held by it under deed of transport T7589/2004 and which
consist of the following:
1.1   The
estate manager’s house;
1.2   The
‘pump house’ which houses the water reticulation system
which supplies potable water to the
scheme and the individual units;
1.3   The
water purification plant and water storage tanks;
1.4   The
sewerage works of the scheme;
1.5   All
other necessary services and accessories which are required for the
security and running of the scheme;
1.6   The
eighth and ninth ‘holes’ of the ‘Classic Par 3
nine-hole Golf Course’;
1.7    Paths
and means of access to the boathouses.
2.     Directing
the applicant to transfer to the first respondent, Units 1 and 2 of
the scheme known as
The Body Corporate of Waterford Golf & River
Estate, with scheme registration number
SS139/2006
,
which are presently held and owned by the applicant and which consist
of
2.1   A
gate house; and
2.2   Ablution
facilities.
3.
Granting judgment against the applicant in favour of the respondent
for
3.1
Payment of the sum of R2 474 652.69;
3.2   interest
thereon at 10.5%
per annum a tempore morae
to
date of final payment.
4.     Ordering
the applicant to pay the first respondent’s costs of the
counter application on the
scale as between attorney and client,
including the costs occasion by the employment of senior counsel.
5.     Granting
the first respondent further and alternative relief.”
[14]
Daffue, J summarised the dispute between the parties at paragraphs
[9] – [11] of the main
judgment as follows:
“
I
V   SUMMARY
OF THE DISPUTES BETWEEN THE PARTIES
[9]
The main issue to be considered is whether Goldex as the
owner of a Real Right of Extension in the Scheme is statutory
obliged
to contribute to the Body Corporate’s levy fund in accordance
with the provisions of the
Sectional
Titles Act and
the Management Act.  In addition, and if
it
is
found that Goldex has no such statutory obligation towards the Body
Corporate, the further matter to be considered is whether
Goldex is
in any event entitled to a declaratory order, or whether it is
contractually bound to settle the levies, special levies
and
penalties claimed by the Body Corporate.
[10]
The other issues,
i.e.
the Body Corporate’s
right to claim transfer of Units 1 and 2 in the Scheme and
registration of certain praedial servitudes,
as well as its monetary
claim in respect of levies allegedly due and payable by Goldex, will
also be considered in due course.
[11]
The parties have different views on the main issue (as is the case in
respect of the others matters).  It is for this
court to decide
in respect of the main issue whether Goldex in its capacity as owner
of a registered Real Right of Extension in
the Scheme is liable for
payment of levies charged by the Body Corporate.  Goldex denies
liability, save in respect of limited
obligations as contained in s
3(1)(d) of the Management Act, whilst the Body Corporate insists that
Goldex is statutory liable
for levies charged against it as if it was
an owner in the Scheme and member of the Body Corporate,
alternatively and/or in addition,
in that it bound itself
contractually to pay levies as if it were the owner of sections in
the Scheme and member of the Body Corporate
as defined in the two
Acts.”
[15]
Daffue, J further provided a very useful exposition and explanation
with regard to the manner
in which Goldex developed the property,
also with specific reference to the
Sectional Titles Act and
the
Management Act.  It will become evident later in my judgment
that it is important to have a proper understanding of the
manner in
which Goldex decided to develop the property.  I therefore also
quote paragraphs [12] – [14] of the main judgment:
“
[12]
Before I proceed to deal with certain principles applicable to
sectional title schemes, it is necessary to emphasise that Goldex

decided to develop the property in a totally different manner than
the accustomed way of developing sectional title schemes,
i.e.
either
to develop the scheme as a whole, or in phases.  Goldex had in
mind to establish a golf and river estate providing
for 48
residential units to be built alongside a mashie golf course and with
access to the river for boating activities.
Initially it merely
erected two buildings, to wit a gate house and ablution facilities,
being units 1 and 2 on the sectional plan
registered in 2006.
Thereafter the sectional plan was amended and/or extended insofar as
provision was made for the reservation
of Goldex as developer’s
right to extend in terms of s
25 of the
Sectional
Titles Act.  A
Certificate of Real Right of Extension
in favour of Goldex in respect of 48 separate real rights of
extension on separate
demarcated areas of the common property was
registered.  The idea was to sell the various real rights of
extension (loosely
referred to as vacant stands) set out in its
Certificate of Real Right of Extension to individual purchasers who
would then for
their own account erect houses on the particular
demarcated areas.  Therefore, instead of Goldex building 48
houses in the
Scheme at its costs and then sell and transfer the
sections to individual purchasers, it decided to sell “vacant
stands”
set out in the Certificate of Real Right of Extension
in terms of s 25 of the Sectional Title Act to individuals, and by
doing
so, shifting the financial risk to the purchasers.
[13]
The downturn in the local economy following the worldwide financial
crisis in 2008 was probably not expected and furthermore,
it was
probably not anticipated that purchasers of real rights of extension
would find it much more difficult to obtain finance
than purchasers
of completed houses.  Consequently, by the time Goldex brought
its application, it was still the registered
owner of a Real Right of
Extension in respect of 18 vacant stands as set out in its
Certificate of Real Right of Extension for
which it could not find
buyers, although a period of nine years has lapsed since opening of
the sectional title register.
[14]
The manner in which Goldex decided to
develop ensured that it as the owner of the Real Right of Extension,

or any of its subsequent purchasers, did not obtain ownership of a
portion of the common property in respect of which a Real Right
of
Extension was reserved.  A person/entity only acquires ownership
as defined in the relevant two Acts upon the exercise
of a Real Right
of Extension through the construction of a dwelling on the demarcated
area of the common property for which the
real right was reserved and
the subsequent registration of an amendment of the sectional plan
together with the inclusion of the
unit in the sectional title
register of the Scheme.  At this stage the former holder/owner
of the Real Right of Extension
becomes an owner for purposes of the
two Acts insofar as he/she/it acquires an undivided share in the
common property in accordance
with the participation quota allocated
to the newly created section.”
[16]
The dispute in the present application does not directly relate to
the to the issue pertaining
to the statutory obligation of Goldex to
pay levies to the Body Corporate. I am, consequently, only quoting
Daffue, J`s conclusion
(at paragraph [39] of the main judgment) in
this regard and not the reasons for his finding.
“
[
39]
In conclusion, in respect of this part of the
enquiry, I find that Goldex in its capacity as the owner of
a Real
Right of Extension in the Scheme is not an owner for purposes of
the
Sectional
Titles Act and
the
Management Act and therefore not statutory liable for payment of
levies as claimed by the Body Corporate. The only
possible
liability would be for such contributions specifically stipulated in
s 3(1)(d), but that is not what the Body Corporate
claims from
Goldex.  However, this conclusion does not mean that Goldex is
entitled to the relief claimed.”
[17]
The next issue which Daffue, J considered was the possible liability
of Goldex based on contract;
hence, whether there exist any
contractual undertakings by Goldex to pay levies to the Body
Corporate in respect of all the so-called
vacant stands. After having
dealt with specific evidence which served before him by means of the
affidavits and the annexures thereto
filed in the main application
and the counter-application, and which were relevant for purposes of
the determination of this issue,
Daffue, J concluded as follows at
paragraphs [52], [53] and [60] of the main judgment:
“
[52]
At the AGM of 24 March 2015 it was agreed by majority vote that
Goldex would be charged 50% of the agreed levy on all Goldex
and
owner vacant stands.  This agreement followed upon a memorandum
circulated by Mr Hulme to owners earlier.  Goldex
did not
object
ex facie
the minutes of this meeting to the
above or the further agreement to charge Goldex with 50% of the
special levy to be raised,
i.e.
R6 800 per
vacant stand.
[53]
I am satisfied that the golden thread that emerges from the
minutes of meetings is that Goldex agreed to pay levies
on the same
basis as other subsequent owners/developers of vacant stands over
which they held Real Rights of Extension.
…
.
[60]
Applicant is not entitled to a declaratory order as
sought.  Although it is not liable as owner of a Real
Right of
Extension reserved in terms of
s
25(1)
of the
Sectional
Titles Act for
the payment to the first respondent of any
amounts other than those recoverable in terms of s 3(1)(d) of the
Management Act,
it
has bound itself contractually to settle levies charged from time to
time by the Body Corporate in respect of all vacant
premises,
i.e.
the
areas of the common property demarcated for future construction of
houses, such levies to be calculated and payable on a pro
rata basis
with owners of other sections
.”
(My emphasis)
[18]
The main application therefore stood to be dismissed.
[19]
With regard to the relief sought by the Body Corporate in the
counter-application, Daffue, J
found that prayer 1 of the
counter-application pertaining to the registration of servitudes
could not succeed, but that prayer
2 pertaining to the transfer of
units 1 and 2, was to be granted.  With regard to the “
monetary
claim
” set out in prayer 3 of the counter-application,
Daffue, J concluded that it was to be referred to trial.
[20]
Daffue, J consequently made the following orders in the main judgment
on 13 October 2017:
“
XII
ORDERS
[64]
The following orders are made:
1.
The main application of applicant (Goldex) is
dismissed with costs.
2.     Prayer
1 of the counter-claim is dismissed.
3.     Applicant
is directed to forthwith transfer to the first respondent (the Body
Corporate of Waterford
Golf and River Estate) units 1 and 2,
consisting of the gate house and ablution facilities respectively, in
the Waterford Golf
and River Estate, Scheme registration number
SS139/2006.
4.
First respondent’s monetary claim against applicant
is referred to trial, the counter-application
to stand as simple
summons and further pleadings to be exchanged in terms of the Uniform
Rules of Court.
5.
The costs of the counter-claim are reserved for
adjudication at the trial.”
B.
Goldex`s first application for leave to appeal:
[21]
Goldex subsequently filed an application for leave to appeal against
the whole of Daffue, J`s
main judgment and the orders made therein.
The application was heard on 24 November 2017.
[22]
From the judgment which Daffue, J delivered in the application for
leave to appeal, dated 11
December 2017 (“the first application
for leave to appeal-judgment”), it is evident that the main
thrust of the application
for leave to appeal and the submissions
advanced in support thereof, were directed at the finding that Goldex
contractually bound
itself to pay levies to the Body Corporate.
[23]
On 11 December 2017 Daffue, J dismissed Goldex’s application
for leave to appeal, with
costs.
C.
The Body Corporate’s application in terms of Rule 42(1)(b):
[24]
On 14 August 2018 the Body Corporate launched an application against
Goldex in terms of Rule
42(1)(b) in terms whereof it sought a
variation of paragraph 4 of the order granted in the main judgment,
which order I repeat
for ease of reference:
“
4.
First respondent’s monetary claim against applicant is referred
to trial, the counter-application to
stand as simple summons and
further pleadings to be exchanged in terms of the Uniform Rules of
Court.”
[25]
The application was heard on 25 October 2018 and on 9 November 2018
Daffue, J delivered judgment
in the said application, to which
judgment I will refer as “the Rule 42-judgment”. (
Goldex
16 (Pty) Ltd v Body Corporate of Waterford Golf and River Estate and
Another
(3979/2016)
[2018] ZAFSHC 193
(9 November 2018)
)
[26]
In paragraph 4 of the Rule 42-judgment Daffue, J stated as follows:
“
[4]
The words ‘monetary claim’ caused
confusion as is apparent from the application papers.
The
Body Corporate’s viewpoint is that a variation of the order is
required only insofar as it is necessary to make it clear
that it is
only the
quantum
of
the claim that has been referred to trial, submitting that the
amended order will bring it in line with the judgment.
According
to it the order should read as follows:
‘
4.1
The applicant is liable to pay the first respondent levies in respect
of all vacant premises held by the applicant, (i.e.
the areas of the
common property demarcated for future construction of houses), on the
same basis as other subsequent owners/developers
of vacant stands
over which they held and hold real rights of extension, such levies
to be calculated and payable on a pro rata
basis with owners of other
sections.
4.2
The quantum of first respondent’s monetary claim against
applicant is referred to trial, the counter-application
to stand as
simple summons and further pleadings to be exchanged in terms of the
Uniform Rules of Court.
’
Goldex
denies that the Body Corporate is entitled to relief and I am again
confronted with an opposed application.”
[27]
In the Rule 42-judgment Daffue, J referred to his main judgment and
also cited certain paragraphs
from the first application for leave to
appeal-judgment.  He further duly dealt with the respective
parties’ submissions
and relevant case law. Daffue, J stated at
paragraph [25] of the Rule 42-judgment that the use of the words
“monetary claim”
in paragraph [4] of his order in the
counterclaim is unfortunate and further stated as follows:
“
[25]
The use of the words “monetary claim” in
paragraph 4 of my order is unfortunate.
Erasmus,
Superior Court Practice
2
nd
ed
at D1-570 points out with reference to authority that the ambiguity,
patent error or omission mentioned in rule 42(1)(b)
must be
attributable to the court itself.  If the parties approached me
directly after delivery of judgment, I would have
told them that I
obviously had in mind that the Body Corporate had to prove the exact
amount of levies due and payable,
i.e.
the
quantum
of
its claim.  No wonder the amended order sought is a mirror image
of the conclusion I arrived at in paragraph [60]
quoted
supra
.”
[28]
The paragraph [60] to which Daffue, J referred is paragraph [60] of
the main judgment, which I, for ease
of reference, quote again:
“
[60]
Applicant is not entitled to a declaratory order as sought.
Although it is not liable as owner of a Real Right of Extension

reserved in terms of
s
25(1)
of the
Sectional
Titles Act for
the payment to the first respondent of any
amounts other than those recoverable in terms of s 3(1)(d) of the
Management Act,
it
has bound itself contractually to settle levies charged from time to
time by the Body Corporate in respect of all vacant
premises,
i.e.
the
areas of the common property demarcated for future construction of
houses, such levies to be calculated and payable on
a pro rata basis
with owners of other sections.
”
(My emphasis)
[29]
Daffue, J concluded as follows at paragraph [26] of the Rule
42-judgment:
“
[
26]
I conclude that the Body Corporate is entitled to the relief
requested.  It might not have been necessary to pronounce
the
order in such an elaborate way, but it is apparently ideal to do it
in such a way to prevent any further misunderstanding.
I
possibly could have clarified the order by stating that the order as
granted in paragraph 4 is subject to and must be read with
my
conclusion in paragraph [60] of my judgment.  Paragraph 4.1 of
the notice of motion is directly in line with the explicit
finding in
paragraph [60] of my judgment.”
[30]
With regard to the issue of costs, Daffue, J duly and fully dealt
therewith and concluded that
each party is to be responsible for its
own costs.
[31]
The following orders were consequently issued by Daffue, J in the
Rule 42-judgment, dated 9 November
2018:
“
I
X
ORDERS
[28]
The following orders are issued:
1)
Paragraph 4 of the order of 13 October 2017 in application number
3979/2016 is varied to read as follows:
‘
4.1
The applicant is liable to pay the first respondent levies in respect
of all vacant premises held by the applicant, (i.e. the
areas of the
common property demarcated for future construction of houses), on the
same basis as other subsequent owners/developers
of vacant stands
over which they held and hold real rights of extension, such levies
to be calculated and payable on a pro rata
basis with owners of other
sections.
4.2
The quantum of first respondent’s monetary claim against
applicant is referred to trial, the counter-application to stand
as a
simple summons and further pleadings to be exchanged in terms of the
Uniform Rules of Court.’
2) Each
party shall be liable for its own costs.”
D.
Goldex’s application for leave to appeal against the Rule
42-judgment and orders and Goldex`s application for conditional
leave
to appeal should the appeal against the Rule 42-judgment not be
upheld:
[32]
On 30 November 2018 Goldex filed an application for leave to appeal
against the whole of the
judgment and the orders issued by Daffue, J
in the Rule 42-judgment, dated 9 November 2018.
[33]
On 18 December 2018 Goldex furthermore filed an application for
conditional leave to appeal against
the whole of the judgment and
orders delivered by Daffue, J in the main application, dated 13
October 2017, as amended by the Rule
42-judgment and orders, dated 9
November 2018. The leave to appeal was sought conditionally on the
basis that the appeal would
only be pursued should the appeal against
the Rule 42-judgment and orders not be upheld.
[34]
The two applications were heard on 16 January 2019 and Daffue, J
delivered a single judgment
pertaining to both applications on 21
January 2019, which judgment I will refer to as “the second
application for leave to
appeal-judgment”.
[35]
At paragraph [6] of the said judgment Daffue, J found that there were
no reasonable prospects
of success on appeal against the Rule
42-judgment and orders.
[36]
With regard to the application for conditional leave to appeal,
Daffue, J made a similar finding
at paragraph [8] of the second
application for leave to appeal-judgment.
[37]
Goldex’s applications for leave to appeal were consequently
both dismissed with costs.
E:
Application for leave to appeal from the Supreme Court of Appeal:
[38]
Subsequent to the dismissal of the last-mentioned two applications
for leave to appeal, Goldex
applied for similar leave to appeal at
the Supreme Court of Appeal. It again entailed two applications for
leave to appeal, the
one of which was for conditional leave to
appeal. The relief sought in terms of both the applications were
sought jointly in a
single Notice of Motion filed on 19 February
2019, with a founding affidavit filed in support of both the
applications.
[39]
On 4 July 2019 the Supreme Court of Appeal dismissed the
application(s) for leave to appeal,
with costs, “
on the
grounds that there is
[sic]
no reasonable prospects of success
in an appeal and there is no other compelling reason why an appeal
should be heard”.
F:
The first stay application:
[40]
On 21 July 2022 Goldex issued the first stay application in terms
whereof the following relief
is being sought in the Notice of Motion:
“
1.
Staying the action proceedings pending the outcome of this
application.
2.
Declaring that the alleged express oral agreement between the parties
be ultra vires and void.
3.
Declaring the judgment of 13 October 2017 as varied on 30 August 2018
(
sic
) incompetent and void.
4.
Declaring that the respondent is not entitled to charge levies in
respect of various Real Rights of Extension
belonging to the
applicant.
5.
Declaring that the applicant is only liable to make a contribution in
terms of Section 3(1)(d) of the
Sectional Title Schemes Management
Act, 8 of 2016.
6.
Directing that the respondent pays the costs of this application.”
[41]
The first stay application is being opposed by the Body Corporate and
it duly filed its answering
affidavit on 3 October 2022.
[42]
Goldex failed to file any replying affidavit in response to the
aforesaid answering affidavit.
[43]
I will return to the first stay application later in the judgment.
THE
QUANTUM
TRIAL:
[44]
For the sake om completeness and without dealing with the details
thereof, the exchange of pleadings
and the further pre-trial
procedures have in the meantime continued for purposes of the trial
on the
quantum
of the Body Corporate’s claim against
Goldex as ordered in paragraph 4 of the order in the main judgment,
as amended by paragraph
1 of the order in the Rule 42-judgment.
THE SECOND STAY
APPLICATION/PRESENT APPLICATION:
[45]
Goldex issued the second stay application on 28 July 2022, only a few
days after the first stay
application. The relief which was sought in
terms of the original Notice of Motion was very similar to the relief
which is being
sought in the first stay application.  However,
as indicated at the beginning of the judgment, Goldex indicated in
its replying
affidavit that it will be seeking an amendment of its
Notice of Motion during the hearing of the application, The Body
Corporate
raised no objection against the proposed amendment and for
the sake of procedural formalities, I will grant such an order at the

end of the judgment. I will however adjudicate the present
application on the basis of the Amended Notice of Motion which is
attached
to the replying affidavit as annexure “RA7”, the
contents of which I repeat for ease of reference:
“
1.
Declaring that paragraph 4.1 of the orders granted by the above
Honourable Court on the 13
th
day of October 2017 and
varied on the 9
th
day of November 2018 (“the order”)
was obtained as a result of the respondent’s fraudulent
conduct;
2.
Setting aside the order in its entirety;
3.
Directing the respondent to pay the costs of this application.
4.
Further and/or alternative relief”
[46]
In addition to the aforesaid amendment of its Notice of Motion,
Goldex also indicated in its
replying affidavit that for reasons
which I will deal with later in this judgment, it will, “
at
the commencement of this hearing, seek a referral of the issues in
this application as envisaged in terms of prayers 1 and 2
of the
amended notice of motion to evidence, alternatively, to trial
”.
Goldex consequently, “
for purposes of convenience of the
court and the respondent
”, attached a proposed Draft Order
to its replying affidavit as annexure “RA8”, “
which
the applicant will request to be made an order of the above
Honourable Court”
.
[47]
In all the previous applications between the parties which served
before Daffue, J, Adv GF Porteous
appeared on behalf of Goldex and
Adv P Strathern SC appeared on behalf of the Body Corporate.
However, in the present application
and the first stay application,
Adv SP Pincus is now appearing on behalf of Goldex, whereas Adv
Strathern SC is still appearing
on behalf of the Body Corporate.
Procedural
deficiencies pertaining to the second stay application:
[48]
There are numerous procedural deficiencies which occurred during the
filing of the papers in
the second stay application.  As a
result, a number of interlocutory applications also form part of the
second stay application.
However, at the commencement of the
hearing counsel indicated that they have agreed that I be requested
to condone any and/or all
procedural deficiencies and furthermore
that all the interlocutory applications in respect of the second stay
application be withdrawn.
[49]
I must state that I have great appreciation for the approach and
attitude of the respective legal
representatives (counsel and
attorneys) to have been able to come to such an agreement, especially
considered against the background
of the intense acrimony which has
become one of the overwhelming features of the litigation between the
parties to date. It may
be that the better co-operation between them
is as a result of the presence of a new legal team on the side of
Goldex, I would
not know. Be that as it may, it is definitely in the
interest of both parties to have adopted the aforesaid stance in
order to
get to the adjudication of the merits of the application
instead of wasting time and money on procedural side issues. Counsel
provided
me with a Practice Note which sets out the essence of the
agreement between the parties and I indicated that I will formulate
it
into an order. From a procedural point of view, I deem it
appropriate to make that order at this stage before I deal with the
merits
of the second stay application.
[50]
I therefore make the following order:
“
1.
By agreement between the parties all the interlocutory applications
in respect of the second stay application,
as more fully referred to
below, are withdrawn:
1.1   The
respondent’s application for condonation for the late filing of
its answering affidavit in the second
stay application.
1.2   The
applicant’s application to declare the respondent’s
replying affidavit in the aforesaid condonation
application
pro
non scripto.
1.3   The
applicant’s application for condonation for the late filing of
its replying affidavit in the second stay
application.
1.4   The
applicant’s application to strike out.
2.
By agreement between the parties the following is ordered in respect
of the second stay application:
2.1   The late
filing of the respondent’s answering affidavit and the late
filing of the applicant’s replying
affidavit, are condoned.
2.2   The late
filing of the applicant’s heads of argument is condoned.
3.
The costs in respect of all the applications referred to above are to
be costs in the cause of the second
stay application.”
The
deponents to the affidavits:
[51]
Throughout the litigation between the parties as set out above, Mr
Rob Hulme, in his capacity
as director of Goldex, deposed to all the
main affidavits filed on behalf of Goldex.
[52]
Similarly, Mr Gert André Cowley, in his capacity as
chairperson of the Body Corporate,
and/or Mr Joe Shearer, in his
capacity as a trustee of the Body Corporate, deposed to all the main
affidavits on behalf of the
Body Corporate.
[53]
Although the said gentlemen deposed to the respective affidavits, I
will, however, for the sake
of clarity and for practical reasons,
refer to the respective affidavits or the allegations contained
therein interchangeably to
be those of Goldex/the Body Corporate, on
the one hand, or to be those of the relevant deponent, on the other
hand.
The
alleged fraud:
The
founding affidavit:
[54]
In the founding affidavit Goldex dealt with the background of the
development of the immovable
property and the disputes between the
parties in relation thereto, especially with regard to the payment
obligations of Goldex
to the Body Corporate in respect of levies.
Since I have already dealt with the respective judgments of Daffue, J
from which the
relevant facts and circumstances regarding the
disputes between the parties to date are evident, I am not going to
repeat same.
[55]
Before dealing more specifically with the basis of the relief which
Goldex is seeking in the
present application, I have to categorically
and unequivocally state that one has to be mindful of the fact that I
am not sitting
as a court of appeal on any of judgments of the
Daffue, J, already referred to above. I am not to determine the
correctness of
the judgments – same is presumed and accepted.
Therefore, as point of departure, the factual and legal findings
which
Daffue, J made in his respective judgments, still stand and
remain binding on the parties, subject to my findings in this
judgment
with regard to the alleged fraud by the Body Corporate.
[56]
Therefore, the allegations which Goldex previously made and which are
now repeated in its present
founding affidavit and/or “new”
allegations, but the contents of which were to the knowledge of
Goldex at the time
when it filed its affidavits in the main
application and the counter-application, made in support of its case
that no agreement
existed between Goldex and the Body Corporate with
regard to the payment of levies on the basis as found by Daffue, J
are, in my
view, irrelevant for purposes of the present application.
I am not to revisit or re-consider the merits of those applications,
other than for the consideration of the allegations of fraud.
[57]
Goldex is not to get the proverbial second bite of the cherry.
In my view I am only to
deal with and consider the allegations and/or
documents which, according to Goldex, constitute the basis of or
which are indicative
of the alleged fraud, and which Goldex was not
aware of or which were not within its knowledge during the drafting
and the hearing
of the previous applications.
[58]
In the founding affidavit, Mr Hulme states as follows:
“
13.  As I
shall demonstrate hereunder in great detail, the respondent and/or
Cowley set out intentionally to mislead the Honourable
Court through
and by way of:
13.1    The
intentional and deliberate alteration of e-mail correspondence so as
to provide to such correspondence (through
such alteration)
attributes that supported the case made out by the respondent in the
matter that brought about the Order;
13.2
The intentional omission of numerous documents that were in the
possession and/or under the control of the
respondent and/or Cowley
and which documents both the respondent and/or Cowley were acutely
aware did not support the allegations
made by Cowley in the
affidavits filed of record by the respondent in the matter;
13.3
The intentional making of numerous misrepresentations to this
Honourable Court that Cowley and/or the respondent
knew to be false
at the time that same were made and which representations were
expressly and pointedly designed by the respondent
and/or Cowley to
mislead this Honourable Court into the belief that the respondent’s
version was true and correct and that
the respondent was in fact
entitled to the Order.
14.
…
15.
As shall become patently evident from that set out hereunder, the
fraud perpetrated by Cowley
qua
representative of the
respondent was:
15.1
deliberate and intentional;
15.2
designed and calculated by Cowley and/or the respondent to
intentionally mislead this Honourable Court;
and
15.3
had the effect of causing this Honourable Court to grant the Order in
the respondent’s favour
when, had this Honourable Court not
been misled, no such Order would have been granted in the
respondent’s favour.”
A. The e-mail:
[59]
The original version of the contentious e-mail which Goldex refers to
in paragraph 13.1 of its
founding affidavit, is one which Mr Hulme,
on behalf of Goldex, addressed to the trustees of the Body Corporate,
dated 18 July
2015.
[60]
In its founding affidavit Goldex states that an altered version of
the original e-mail was attached
to the answering affidavit of the
Body Corporate filed in the main application, which affidavit also
served as the founding affidavit
in support of the
counter-application of the Body Corporate. However, in its replying
affidavit in the present application Goldex
rectifies its aforesaid
allegation by stating that due to an error on the side of Goldex, the
allegation was not correct, since
the altered e-mail was attached to
the replying affidavit of the Body Corporate filed in its
counter-application in the main application.
This is indeed factually
correct.
[61]
The original version of the e-mail which Mr Hulme addressed to the
trustees of the Body Corporate,
including Mr Cowley and Mr Shearer,
dated 18 July 2015, is attached to the founding affidavit in the
present application as annexure
“FA5” and I will
henceforth refer to it as such or as the “original e-mail”.
In order to be able to follow
the allegations and submissions of the
respective parties in relation to the e-mail issue, I deem it
necessary to record relevant
aspects of the appearance and the
totality of the contents of the original e-mail:
1.
The totality of the contents of the e-mail are in black lettering.
2.
It reflects “
Sent
” as “18 July 2015 14:18”.
3.
It reflects the “
Subject
” as “RE: Goldex
Debt”.
The
contents read as follows:
“
Hi Joe,
We can spend another year
debating the duration of the free rental of the manager’s house
using different financial assumptions.
The original ‘debt’
write off was justified by the 50% contributions logic without Goldex
having to give away any of
its common law rights iro of ownership of
the manager’s house.
In order to appease the
accounting justification for the write off and to reach settlement,
Goldex has been asked to surrender its
rights to claim any rentals up
to 1 April 2015 AND for a further 11 years.  As proposed
earlier, Goldex is willing to grant
4 years.  This is just one
more Goldex concession that was never part of the original
negotiations.
Simplistically, the
‘without prejudice’ proposal is: -
·
4 years’ free use of the manager’s house from 1 July
2015, 2 years notice if necessary
–
·
Contributions as per Goldex proposal.
Please arrange for the
Goldex statements to be corrected as per our request on 24 April so
that the balance of the contributions
owing since 1 April can be paid
forthwith.
Note:
The trustees appear to be
ignoring our reminder to them that the calculation of the new
contributions for sites with building activities
is contrary to the
STA.  The justifications for most of the quantum of the special
levy are also contrary to the STA as is
the requirement for real
rights owners to pay a special contribution.
Trustees should decide if
they wish to abide by the STA or manipulate it on occasions as in the
examples above.
Any update on the voting
rights via Paddocks?
Goldex’s rights are
reserved.
Regards
Rob Hulme
For and on behalf of
Goldex 16 (Pty) Ltd.”
[62]
The altered version of the original e-mail is attached to the
founding affidavit in the present
application as annexure “FA4”.
However, since it was originally attached to the replying affidavit
in the counter-application
in the main application as annexure
“ACR1”, I will henceforth refer to it as annexure “ACR1”
or “the
altered e-mail”.
[63]
With regard to the appearance of the altered e-mail, I need to point
out the following:
1.
The totality of the contents of the e-mail are still/again in black
lettering.
2.
It reflects “
Sent
” as “Saturday, 18 July
2015 2:18”.
3.
It reflects the “
Subject
” as “RE: Goldex
Debt”.
[64]
The contents of the altered e-mail reflect certain differences from
that of the original e-mail.
In order to clearly reflect the
differences, I will quote the contents of the altered e-mail and
highlight the differences in bold
letters:
“
Hi Joe,
We can spend another year
debating the duration of the free rental of the manager’s house
using different financial assumptions.
The original ‘debt’
write off was justified by the 50% contributions logic without Goldex
having to give away any of
its common law rights iro of ownership of
the manager’s house.
In order to appease the
accounting justification for the write off and to reach settlement,
Goldex has been asked to surrender its
rights to claim any rentals up
to 1 April 2015 AND for a further 11 years.  As proposed
earlier, Goldex is willing to grant
4 years.  This is just one
more Goldex concession that was never part of the original
negotiations.
Agreed.
Simplistically, the
‘without prejudice’ proposal is: -
·
4 years’ free use of the manager’s house from 1 July
2015, 2 years notice if necessary
–
2 year notice after the
4 years.
·
Contributions as per Goldex proposal.
50% of the levy for
vacant stands as agreed and approved at the AGM.
·
Levy contribution for unit 15 and 52 as per the full levy
contribution agreement for a completed unit as specified by the WBC.
Please arrange for the
Goldex statements to be corrected as per our request on 24 April so
that the balance of the contributions
owing since 1 April can be paid
forthwith.
On signature of the agreement.
Note:
The trustees appeared to
be ignoring our reminder to them that the calculation of the new
contributions for sites with building
activities is contrary to the
STA.  The justifications for most of the quantum of the special
levy are also contrary to the
STA as is the requirement for real
rights owners to pay a special contribution.
Trustees should decide if
they wish to abide by the STA or manipulate it on occasions as in the
examples above.
We wish to abide by the STA.
Any update on the voting
rights via Paddocks?
Voting rights will be as per the STA.
Goldex’s rights are
reserved.
As are those of the WBC.
Regards
Rob Hulme”
[65]
In its founding affidavit Goldex states as follows at paragraphs [40]
– [47] thereof:
“
40.  I draw
to the attention of this Honourable Court that annexed to Cowley’s
affidavit is annexure “ACR1”
which purports to be an
email addressed by me to the trustees of the respondent dated 18 July
2015.
41.   …
42.   The
content of FA4 [ACR1] (as is evident from that which follows
hereunder) has been intentionally altered by Cowley
and/or the
respondent to support the case made out by the respondent namely that
an agreement existed between the applicant and
the respondent.
43.   In stark
contrast to the contents of FA4 [ACR1], I annex hereto marked FA5,
the original email that was sent by
me to the trustees of the
respondent dated 18 July 2015.
44.   …
45.   I submit,
and it shall be argued at the hearing of this matter, that it is
self-evident that the alteration of FA5
(to the extent of what is
reflected in FA4 [ACR1]) is unequivocally indicative of the fact that
Cowley and/or the respondent have
intentionally and deliberately
altered FA4 [ACR1] and placed same before this Honourable Court in
order to mislead it into the
believe that FA4 [ACR1] (purportedly
addressed by me) is in fact supportive of the respondent’s
case.
46.   I submit
further that there cannot be any other explanation for the conduct of
Cowley and/or the respondent in this
regard.
47.   What is
of greater gravamen is that both Cowley and the respondent were
acutely aware of the fact that I had in
fact dispatched to the
trustees of the respondent FA5 (and not FA4 [ACR1]) and that despite
such acute knowledge, Cowley and/or
the respondent intentionally
placed FA5 [
sic
] before this Honourable Court so as to mislead
it.”
B. The omission of
documents and the falsehoods:
[66]
The second basis for Goldex’s reliance on fraud appears in its
founding affidavit under
the heading “
The intentional
omission of documents and the falsehoods
”
.
[67]
According to Goldex, both Mr Cowley and/or the Body Corporate had the
express knowledge and were
acutely aware that no express oral
agreement existed between Goldex and the Body Corporate in terms
whereof Goldex bound itself
to pay amounts in excess of that which it
was statutorily bound to pay in terms of the STA and STSMA, as was
found and concluded
by Daffue, J in the main judgment. Both Mr Cowley
and/or the Body Corporate were also acutely aware that no agreement
between Goldex
and the Body Corporate could exist unless same had in
fact been reduced to writing and signed by both Goldex and the Body
Corporate.
According to Goldex absent the conclusion of such written
agreement, the liability of Goldex to the Body Corporate would at all

times be limited to the liability prescribed in the STSMA and no more
than that.
[68]
At paragraphs 51 and 52 of the founding affidavit Goldex states as
follows:
“
51. Furthermore,
both Cowley and the respondent were at all times acutely aware of the
fact that the applicant had effected payment
of amounts to the
respondent way in excess of its statutorily prescribed liability and
that such excess payments had been made
by the applicant on an
ex
gratia
basis and without any admission of any liability on the
part of the applicant in excess of the amounts that the applicant was
statutorily
obligated to pay.
52.   What
renders the fraudulent conduct of Cowley and/or the respondent in
this matter that much more abhorrent is that
both Cowley and/or the
respondent have intentionally and deliberately misled the Honourable
Court into the belief that the applicant
entered into the alleged
express oral agreement when the very documents that are (and were at
the time) in the possession and/or
control of Cowley and/or the
respondent expressly and pointedly demonstrate the exact opposite.”
[69]
According to Goldex the parties agreed during 2014 and 2015 that a
written agreement would be
drawn in order to accurately reflect the
terms and conditions of the agreement between the parties relating to
the liability of
Goldex, which agreement also needed to be signed by
the parties.
[70]
Goldex refers to a subsequent Special General Meeting which was held,
without stating the date
of the said meeting, but states that the
minutes of the meeting are attached to the founding affidavit as
annexure “FA6”.
Goldex further states that the said
meeting was attended by,
inter alia,
Mr Cowley as an owner
(and elected as a trustee at this SGM) and therefore Mr Cowley “
was
and is acutely aware of both the issues discussed at the said meeting
and the content of the minutes that were prepared subsequent
to such
meeting
”. According to Goldex it is evident
ex facie
the minutes, “FA6”, that on the Body Corporate’s
own version, “
no agreement of any form could and/or would
exist and/or would come into being until such agreement had been
recorded in writing
and signed by both
” parties. Goldex
then quotes, according to it, from the said minutes the following:
“
The two parties
would be required to agree the Minutes of meeting which would be
reviewed by Strauss Scher Attorneys and finally
then be formalised
into an Agreement to be approved by Owners who had registered
sections.”
[71]
According to Goldex, Mr Cowley`s allegations that Goldex is
contractually bound to the Body Corporate
to pay it amounts in excess
of that which Goldex is statutorily obligated to pay, must, in light
of “FA6”, be false
and known to Mr Cowley to be false.
[72]
I will return to annexure “FA6”.
[73]
The two other documents which Goldex deals with in its founding
affidavit under the heading “
The intentional omission of
documents and the falsehoods
”, are annexures “FA7”
and “FA8” to the founding affidavit. Unfortunately, I
deem it necessary to
quote extensively from the founding affidavit in
this regard. Goldex states as follows at paragraphs 63 – 75 of
the founding
affidavit:
“
63.  In
keeping with the requirement that a written agreement be drawn up
between the Applicant and the Respondent (as reflected
in FA6), the
Respondent, duly represented by Cowley, proceeded to instruct
Attorneys Norton Rose Fulbright ("NRF") subsequent
to the
AGM of 25 March 2015, to prepare such agreement recording the terms
and conditions that had been agreed to, in principle,
between the
Applicant and the Respondent.
64.
I pause to point out that the instruction to NRF to prepare
the written agreement required, expressly and pointedly, flowed from

the Respondent in the person of Cowley and to such extent as is
relevant, I again reiterate that such instruction is clearly
indicative
of the fact that Cowley was expressly aware that no
agreement could or would indeed come into existence between the
Applicant and
the Respondent unless same had been reduced to writing
and signed by both parties.
65.   I annex
hereto marked FA7 a copy of the draft Memorandum of Understanding
("MOU") prepared by NRF on the
instructions of Cowley and
circulated to the trustees of the Respondent and l.
66.   I submit
that the content of FA7 is unequivocally clear in its substance and
import in that it comprehensively records
both the historical issues
pertinent to the dispute between the Applicant and the Respondent
and, moreover, it sets out the agreement
reached between the parties.
67.   Having
received FA7 from NRF, both the trustees of the Respondent and I (on
behalf of the Applicant) made certain
alterations and/or amendments
thereto.
68.   I annex
hereto marked FA8 a copy of the MOU with the amendments and
alterations that the trustees of the Respondent
and I (on behalf of
the Applicant) required to be made to the MOU.
69.   Again, I
point out, that Cowley was acutely aware of the changes that had been
suggested to the MOU and that Cowley
was inextricably linked to the
process of the finalization of the MOU. In fact, Cowley`s suggested
changes appear
ex facie
FA8 in the ‘tracking changes’
of the said document.
70.   I
reiterate that until such time as the MOU had been finalized and
signed by both the Applicant and the Respondent,
there existed no
agreement between the parties and that the liability of the Applicant
was and at all times remained such liability
as is statutorily
imposed on the Applicant by the STA.
71.   The MOU
was never finalized and was never signed by either the Applicant or
the Respondent. Consequent thereupon,
and based on the Respondent's
own version, no agreement could have and/or would have, been brought
into existence. Much less, could
there have been an express oral
agreement as contended for by Cowley in his affidavit.
72.   It is
self-evident from the affidavit of Cowley that not only has Cowley
withheld from this Honourable Court the
minutes (annexure FA6) but
also the MOU (annexures FA7 and FA8) but Cowley has intentionally and
deliberately set out to mislead
this Honourable Court into the belief
that an express oral agreement existed between the Applicant and the
Respondent in circumstances
where known to Cowley no such agreement
could exist in the light of the Respondent's own requirements
(recorded in the minute FA6)
and the provisions of the STSA.
73.
I submit that the allegations made by Cowley and/or the
Respondent to this Honourable Court that any agreement existed (much
more
so an express oral agreement) are per se fraudulent in that they
have been made with the express intention of misleading this
Honourable
Court.
74.   The
fraudulent conduct of Cowley and/or the Respondent is compounded
substantially by the failure on their part
to bring to the attention
of this Honourable Court, the content of the minutes and the MOU
which clearly and unequivocally demonstrate
that on the Respondent's
own version, no agreement could and/or would exist and/or come into
existence unless same had been reduced
to writing and signed by the
Applicant and the Respondent.
75.   Having
due regard to the Order that was granted in favour of the Respondent,
it appears clearly from the content
thereof that the fraudulent
conduct of Cowley and/or the Respondent indeed had the effect of
misleading this Honourable Court into
the belief that an express oral
agreement in fact existed between the Applicant and the Respondent.”
[74]
I will later also return to “FA7” and “FA8”
and the averments in relation
thereto.
[75]
In its founding affidavit Goldex further alleges that the order which
was fraudulently obtained
by the Body Corporate has far reaching and
substantial consequences on Goldex.  The finding by Daffue, J
that Goldex is liable
for payment to the Body Corporate of an amount
equivalent to 50% of the levies payable by the registered section
owners has the
effect that Goldex stands to suffer a potential loss
through the fraudulent conduct of Cowley and/or the respondent in
excess of
8 million rand. The direct loss suffered by Goldex is just
as substantial in that its legal costs and the costs that the Court
has ordered Goldex to pay, amounted to a sum in excess of
R700 000.00.
[76]
Goldex further avers in its founding affidavit that it has referred
the fraudulent conduct of
Mr Cowley to the South African Police
Services (“SAPS”) and that the matter is currently the
subject matter of an investigation.
[77]
Goldex also deals with its delay in the launching of the second stay
application. It explains
that Goldex was previously represented by
Jordaan and Wolberg Attorneys, but that Goldex terminated the mandate
of Jordaan and
Wolberg during October 2019.  In August 2021
Goldex appointed TC Hitge Attorneys to represent it.
[78]
Goldex further refers to the procedural steps which have in the
meantime occurred in preparation
for the
quantum
trial and
states as follows at paragraphs 99 to 102 of its founding affidavit:
99.   In simple
terms, prior to the discovery of the minutes that the Respondent has
now discovered, the Applicant was
not possessed of all of the
relevant minutes pertinent to the issues that prevail in this
application and it was only post the
discovery by the Respondent of
various previously unseen minutes that the Applicant sought advice
from its new attorneys of record
as to how to approach the issue of
the fraud perpetrated by Cowley and/or the Respondent on this
Honourable Court. It warrants
mention the Respondent has, at the date
of deposing hereto, still not provided to the Applicant various
additional documentation
that the Applicant has sought from the
Respondent notwithstanding various notices served on the Respondent.
100. In accordance with
the advice provided to the Applicant by its new attorneys of record,
the Applicant set about preparing the
criminal complaint (annexure
FA9) hereto and this application after a thorough investigation
conducted by the Applicant and its
new attorneys.
101. I submit and it
shall be argued at the hearing of this matter that the Applicant was,
prior to the launching of this application
and the criminal
proceedings linked hereto, compelled to ensure that such allegations
as the Applicant would make in both such
proceedings had been fully
investigated.
102.  The Applicant
has approached this Honourable Court post the conclusion of such
detailed investigations on facts and circumstances
that appear ex
facie documentary evidence located by the Applicant and which facts
and circumstances unequivocally and clearly
indicate the fraud
perpetrated on this Honourable Court by Cowley and/or the
Respondent.”
The
answering affidavit:
A:
The e-mail:
[79]
In the Body Corporate’s answering affidavit Mr Cowley responded
and explains as follows
with regard to the attachment of the altered
e-mail as annexure “ACR1” to its replying affidavit in
the Body Corporate’s
counter-application in the main
application:
“
9.4
‘ACRI’ was annexed by me to the replying affidavit in
connection with the proposed settlement
of GoIdex 16’s
indebtedness for arrear levies owed to the body corporate, as well as
the matter of servitudes (
which included the estate manager`s
house
) to be registered by Goldex 16 in favour of the body
corporate.
9.5
The origin of this aspect is contained in paragraph 45 of Hulme's
answering affidavit on behalf of
Goldex 16 in the body corporate's
counter-application dealing with the estate manager's house situated
on land reserved for the
extension of the scheme but still owned by
Goldex 16.
10    In
my reply on behalf of the body corporate, it was necessary for me to
put the issue of the estate manager`s
house in context:
10.1 Hulme had been using
the estate manager's house as a bargaining chip in the settlement
negotiations aimed at reaching agreement
on Goldex 16's arrear
indebtedness for levies;
10.2 Put differently,
Hulme had suggested that Goldex 16 should be afforded the benefit of
the estate manger's house which the scheme
had used rent free since
July 2007 and this should be set off against any levies owed by
Goldex 16;
10.3 In paragraph 33 of
my replying affidavit, I dealt with the position regarding the estate
manager's house and stated as follows:
‘
33.4. The body
corporate was informed by Mr Hulme that the estate manager's house
belonged to Goldex.
33.5. As it turns out
this assertion was false.
33.6. At the lime I
and the other trustees did not appreciate the falsehood of this
assertion and we considered offsetting the historical
and future use
of the estate manager's house against the Goldex debt.
.
33.7. Had we
appreciated that the estate manager's house actually belonged to the
body corporate, we would not have entertained
discussions to off-set
the estate manager's house against Goldex’s historical debt.
33.8. I deny the
allegations in paragraph 45.5 to 45.7.
33.9 Goldex
represented that the estate manager`s house belonged to it, and I
took it at its word.
33.10 In support of my
assertion that Mr Hulme represented that the estate manager`s house
belonged to Goldex, I annex an email
written by him to Mr Shearer
which clearly conveys Goldex`s representation that the estate
manager`s house belonged to it, a copy
of which is annexed hereto
marked ‘ACR1’.’”
[80]
With regard to the alterations to the original e-mail, Mr Cowley
explained that it is accepted
practice when responding to e-mails, or
commenting on them amongst one or more recipient, to include in-line
comments thereon,
normally in another colour. This practice was also
used in this particular instance between the trustees to comment
amongst each
other on the aspects raised in the original e-mail which
had been sent by Mr Hulme to the trustees of the Body Corporate. The
email
trail between the trustees continued with an exchange between
the parties up to 19 October 2015 and is attached to the present
answering affidavit as annexure “SSA2”. The said e-mail
trail includes the altered e-mail, being the original e-mail
sent by
Goldex to the trustees of the Body Corporate, but containing Mr
Shearer`s comments “
which were in red, to distinguish such
comments from the contents of Hulme`s original e-mail to the
trustees”.
Mr Cowley further states as follows in the
answering affidavit with regard to the altered e-mail:
“
14.4
The document which was submitted into evidence as ‘ACR1’,
is an extract from the abovementioned email
trail, to highlight the
estate manager`s house, and Goldex 16`s (
incorrect)
stance
that it still belonged to Goldex 16.
14.5
Annexing the entire email trail was entirely unnecessary and would
have detracted from the point that
the body corporate wanted to make
about the estate manager`s house being used as a bargaining chip.
…
15.1
Upon review of Shearer`s draft response to Hulme, and after
discussion amongst the trustees, the trustees
agreed not to respond
in that manner, but differently as appears from the email trail
annexed above.
15.2
Nothing turns on the fact that the trustees did not send Shearer`s
marked-up version of Hulme`s email
of 18 July 2015 back to him,
because it was only used for internal discussion purposes between the
trustees at the time.”
[81]
Mr Cowley consequently states that there was clearly no intention to
mislead Mr Hulme by annexing
an e-mail which initially originated
from himself and which he and his (previous) legal team would have
had access to and could
have considered in the lead-up to the main
application which served before Daffue, J on 29 June 2017, especially
considering that
the Body Corporate`s replying affidavit to which the
altered e-mail was attached, was filed during February 2017 already.
If Mr
Hulme felt that the e-mail had been altered for any untoward
purpose, he would have and could have raised it at that stage
already.
The comments on the altered e-mail did not impact on the
point which the Body Corporate was trying to make by annexing the
e-mail
in the first place.
[82]
The subsequent responses and averments by the Body Corporate in
relation to the e-mail issue,
can, in my view, be best recorded by
quoting same:
“
17.1
Importantly, Hulme's email of 18 July 2015, would
undoubtedly have been in the possession of Goldex 16 and Hulme
and
available to them at the time Goldex 16 launched the main application
and prepared its opposition to the counter-application.
17.2
It is most significant that Hulme and Goldex 16
did not take issue with the copy of the email annexed as
‘ACRI’
at any time until supposedly
having the ‘alteration’ pointed out to them by counsel
who allegedly conducted a forensic
investigation (I
refer
the above Honourable Court to annexure "SSA12" which is
introduced below
).
17.3
There was never any intention to defraud or
mislead Goldex 16 or the above Honourable Court, when all that
the
trustees were doing was inserting their comments in red in response
to Hulme's settlement proposals.
17.4
If there was any merit in this allegation, it begs
the question as to why this aspect was not picked up
by Hulme on
receipt of the body corporate's replying affidavit in the
counter-application (
which was served
on Goldex 16's attorneys, Jordaan and Wolberg Attorneys on 27 January
2017
).
17.5
The application was only heard 6 (six) months
later and in the interim, the parties had ample time to consider
the
papers
(including the affidavits and
annexures thereto
) and prepare their
cases for the upcoming argument.
17.6
Annexure ‘ACRI’ does not feature in
either party`s heads of argument in the main application
(
or
the counter-application in terms of which the finding that Goldex 16
was obliged to pay levies was made
)
and there is no mention of it whatsoever in the judgment of Daffue,
J.
17.7
There is only one mention of the estate manager's house in the
judgment of Daffue, J in paragraph 8
recording that the body
corporate had sought an order in its counter-application for the
registration of a servitude to the estate
manager's house (
this
relief was not granted in the counter-application
).
17.8
Hulme does not indicate how this aspect would have
impacted on the judgment of Daffue, J or how he would
have found
differently.
17.9
‘ACRI’ accordingly had no bearing on
the order granted by Daffue, J and was only included to
demonstrate
that there had been discussions regarding the off-setting of the use
of the estate managers house against Goldex 16's
historical
indebtedness for arrear levies, but that the body corporate had
subsequently found this to be disingenuous on the part
of Goldex 16
as it had marketed the estate from the outset as including the estate
manager's house.
17.10
The correctness — or put another way; the legitimacy — of
the documents submitted into evidence in
the application and
counter-application was never disputed by Goldex 16, whether during
the application proceedings in 2017, the
application for a variation
of an order or the applications for leave to appeal, whether this
court or the Supreme Court of Appeal
(
the
‘SCA’
).
17.11
It is not open for Goldex 16 now, almost 3 (three) years after
finality of the dismissal of Goldex 16's application
for leave to
appeal by the SCA to latch onto this aspect opportunistically and
allege that it demonstrates a fraud committed by
the body corporate.
when this is simply not the case.
17.12
There was accordingly no intentionally altered email as
alleged by Hulme at paragraphs 40 to 47 of his founding affidavit
in
this second stay application.
17.13
There was no intention to defraud or mislead the above
Honourable Court which was not misled, and this ground must
be
rejected.
[83]
Towards the end of the answering affidavit, Mr Cowley states as
follows:
“
74.1
Notwithstanding that I was strongly of the view that I could
demonstrate that the allegations by Hulme in
regard to the “
altered”
e-mail could be refuted by myself alone - more so with confirmation
from Shearer -  it was determined,
ex abundante cautella,
to have the respondents attorneys of record, BKI, retain the services
of a forensic company called Cyanre, The Digital Forensic
Lab, who
specialises in cyber forensic services through software technologies
and procedures and who could investigate the veracity
of both the
allegations raised by Hulme in regard to the "
alleged”
altered email (
as Hulme alleges in, inter alia, paragraph 42 of
his founding affidavit
) and "
intentional alteration
and/or falsification of documents
" as referred to in the
heading above paragraph 38 of the criminal complaint statement under
oath being annexure "FA9"
to Goldex 16's founding
affidavit.
74.2
The affidavit of one Johan Roux ("Roux") is annexed hereto
marked ‘SSA14'.”
[84]
I will later deal with the outcome of the aforesaid forensic
investigation.
B: The omission of
documents and the falsehoods:
[85]
In response to Goldex’s reliance on the intentional omission of
certain documents and the
falsehoods by the Body Corporate, more
specifically Goldex`s allegations that Mr Cowley and the Body
Corporate knew that no agreement
existed in terms of which Goldex was
to pay levies on the same basis as other owners and holders of real
rights of extensions,
the Body Corporate responded,
inter alia,
by again referring to the findings which Daffue, J made in the main
judgment pertaining to the different meetings. In this regard
the
Body Corporate specifically pointed out that this agreement was
recorded in the minutes of the first special general meeting
of the
members of the Body Corporate on 23 August 2007 already, as was also
dealt with by Daffue, J.
[86]
Mr Cowley further states as follows with reference to annexure “FA6”
to the founding
affidavit, which, according to Goldex, is the minutes
of the special general meeting of 10 May 2014:
“
19.
Mr Hulme has now opportunistically latched on to the minutes of the
special general meeting …
held on 10 May 2014, as:
19.1 requiring all
agreements to be in writing; and
19.2 negating the
agreement reached at the first general meeting of members almost 7
(seven) years earlier.
20.1
…the special general meeting of 10 May 2014 was concerned with
ongoing negotiations aimed at
resolving
Goldex 16`s historical
indebtedness for arrear levies (emphasis added).
20.2
Given the disputes which had arisen between the parties …  it
was agreed that any
settlement agreement
would be reduced to
writing, for the avoidance of any future uncertainty (
emphasis
added).
20.3    The
agreement that the “
minutes of meeting
” would be
reviewed by Strauss Scher Attorneys and be formalised into an
agreement and approved by owners who had registered
sections, was a
settlement agreement which had nothing to do with the initial
agreement of 2007 in terms of which Goldex 16 agreed
to pay levies.”
[87]
In response to Goldex`s averments and complaints regarding annexures
“FA7” and “FA8”
to the founding affidavit,
the Body Corporate responds as follows:
“
21.1
In further support of Goldex 16's claim that a fraud was
perpetrated on the above Honourable Court, Hulme complains
that the
body corporate has ignored the existence of the various settlement
negotiations and the involvement of the attorneys,
Norton Rose
Fulbright, in the preparation of settlement agreements.
21.2
The involvement of Norton Rose Fulbright Attorneys
in drawing up of a settlement agreement is something
of which Goldex
16 has been fully aware of since it launched the main application.
21.3
Hulme devotes part of his founding affidavit to
the settlement negotiations aimed at resolving Goldex 16's
historical
debt (
see paragraph 79 of Hulme's
founding affidavit
).
21.4
Hulme dealt further with these negotiations and
the involvement of attorney Pieter Niehaus of Norton Rose
Fulbright
Attorneys (
see paragraphs 92 to 95 of
Hulme's founding affidavit
).”
[88]
The Body Corporate consequently concludes as follows at paragraph 22
of the answering affidavit:
“
22
This demonstrates that Goldex 16 and Hulme were aware of all facts
relative to the disputes
that had arisen between the parties.”
[89]
However, the Body Corporate deals even further with Goldex`s
complaints regarding the abovementioned
“FA7” and
“FA8”:
“
26.1
Hulme's reliance on the draft agreements prepared by Norton Rose
Fulbright Attorneys
is entirely
misplaced.
26.2
Those draft agreements were not annexed by the body corporate in the
main application and counter-application
because they were drafts of
a proposed settlement agreement aimed at settling Goldex 16's
historical indebtedness and were privileged
in circumstances where
they consisted of settlement negotiations, and it is common cause
between the parties that no settlement
agreement was ever reached.
26.3
As I stated in the founding affidavit in the first stay application,
Hulme himself says that he was presented
with the agreement but was
advised not to sign it.
26.4
If Hulme had thought that the content of those drafts of the
settlement agreements were relevant and admissible,
he and Goldex 16
should have made more of them in their papers.
26.5
Hulme and Goldex 16 obviously had access to the drafts of the
settlement agreements when Goldex 16 launched
its application, and
always thereafter until the application was argued on 29 June 2017.”
[90]
Mr Cowley responds in extensive details to the allegation in the
founding affidavit that Mr Hulme laid a
criminal complaint against
him. For reasons which will become evident, I do not deem it
necessary to deal with this aspect at this
stage.
The
replying affidavit:
[91]
I will deal with certain averments made in the replying affidavit
during my evaluation of the
merits of the application.
Applicable legal
principles and Goldex`s request that the application be referred for
the hearing of oral evidence:
[92]
At common law a judgment can be set aside on restricted grounds, one
of which is fraud.
In
Moraitis Investments (Pty) Ltd v
Montic Dairy (Pty) Ltd
2017 (5) SA 508
(SCA) at para [12] the
court stated as follows:
“
In contested
proceedings the test is more stringent.  A judgment can be
rescinded at the instance of an innocent party if it
were induced by
fraud on the part of the successful litigant, or fraud to which the
successful litigant was a party.  As the
cases show, it is only
where the fraud – usually in the form of perjured evidence or
concealed documents – can be brought
home to the successful
party that
restitutio in integrum
is granted and the judgment
is set aside.  The mere fact that the wrong judgment has been
given on the basis of perjured evidence
is not a sufficient basis for
setting aside the judgment.  That is a clear indication that,
once a judgment has been given,
it not likely set aside, and De
Villiers, JA said as much in
Schierhout
[1927 AD 94
at
98].”
[93]
In
Erasmus, Superior Court Practice,
DE van
Loggerenberg, Jutastat, at RS 18, 2022, D1 – 563 the following
principles are set out with reference to applicable
case law:
“
In order to
succeed on a claim that the judgment be set aside on the ground of
fraud it is necessary for the applicant to allege
and prove the
following:
(i)
that the successful litigant was a party (i.e. privy) to the fraud;
(ii)
that the evidence was in fact incorrect;
(iii)
that it was made fraudulently and with the intent to mislead; and
(iv)
that it diverged to such an extent from the true facts that the court
would, if the true facts had been placed
before it, have given a
judgment other than that which it was induced by the incorrect
evidence to give.
It is submitted that to
the above may be added the requirement that it must be alleged and
proved that, but for the fraud, the court
would not have granted the
judgment.”
[94]
Mr Pincus correctly pointed out that a distinction is to be drawn
when considering the rescission
of an order, the granting of which
does not amount to a final order and the setting aside of an order
which has a final effect.
In
Storti v Nugent
2001
(3) SA 783
(W) at 806H – I this distinction and the consequent
applicable principles were set out as follows:
“
If the application
involves a rescission of an order which should not have been granted,
an applicant for a rescission under the
common law need only made out
a prima facie case.  …  The effect of the order is
interim only, and not final,
and therefore factual disputes are
ordinarily not a bar to success.  If on the other hand the order
was correctly made, but
it is to be set aside (permanently) because
of, for instance, a composition with creditors, the
order
of setting aside is expected to have final effect and factual
disputes would then become an obstacle to the applicant.
(
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E – 635C).”
[95]
Mr Pincus consequently referred to the judgment of
Pepkor
Holdings Ltd and Others v AJVH Holdings (Pty) Ltd and Others
2021
(5) SA 115 (SCA) at para [39] where the following principle was
reaffirmed:
“
[39]
… And the cases make it clear that it is inappropriate and
unwise for findings of fraud or deceit to be made on the
basis of
untested allegations on motion, which are denied on grounds that
cannot be described as far-fetched or untenable. This
is based not
only on common sense, but also on 'many years of collective judicial
experience'.”
[96]
In the judgment of
J.A.N v
N.C.N
(2283/2021)
[2022] ZAECMKHC 14 (17 May 2022) the principle was similarly stated
at para [31]:
“
[31]
It
has
been suggested that it is, as a general rule, practically impossible
to establish fraud using motion proceedings.”
See
also
Shomang
v Moamogoe and Others
[2021]
ZAGPJHC 772 at para [10].
[97]
Mr Pincus acknowledged that the
Plascon Evans
-Rule is
applicable to the present matter should the application be determined
on the papers, with the result that a final order
will only be
granted if the facts averred in the applicant`s affidavit that have
been admitted by the respondent, together with
the facts alleged by
the respondent, justify such an order, unless the Court is satisfied
that the respondent`s allegations or
denials are so far-fetched and
untenable that the Court should reject them simply on the papers. At
the same time Mr Pincus acknowledged
the principle referred to above
that findings of fraudulent conduct should not be made in application
proceedings and that it is
practically impossible to establish fraud
by means of application proceedings.
[98]
Mr Pincus referred to the fact that the Body Corporate advanced
reasons as to why, according
to the Body Corporate, the altered
e-mail did not influence Daffue, J regarding his judgment and orders.
Mr Pincus also referred
to the averments which the Body Corporate
made about the failure of Goldex`s legal team to have picked up the
issue of the altered
e-mail at a much earlier stage already. Mr
Pincus submitted that the said issues, together with the question as
to why the Body
Corporate attached the altered e-mail instead of the
original e-mail to the replying affidavit, are the very issues which
should
be dealt with by means of oral evidence. In that way witnesses
will be subjected to cross-examination and the issues can then be

adjudicated based on the credibility of the witnesses and the
probabilities; hence it can be determined whether Goldex proved the

alleged fraud on a balance of probabilities (or not), instead of
having to merely consider and determine it on the basis of the
Body
Corporate`s version as required by the
Plascon Evans
- Rule.
[99]
Therefore, at the commencement of his oral argument and before he
addressed the merits of the
second stay application, Mr Pincus in
limine
and
out-front indicated that Goldex, as the applicant, is requesting that
the matter be referred for the hearing of oral evidence.
He submitted
that he is duty-bound to make the request
in
limine
in
view of the following dicta enunciated by the Supreme Court of Appeal
in the judgment of
Law
Society, Northern Provinces v Mogami and Others
2010
(1) SA 186 (SCA) at para [23]:
“…
An
application for the hearing of oral evidence must, as a rule, be
made
in
limine
and
not once it becomes clear that the applicant is failing to convince
the court on the papers or on appeal. The circumstances
must be
exceptional before a court will permit an applicant to apply in the
alternative for the matter to be referred to evidence
should the main
argument fail (
De
Reszke v Maras and Others
2006
(1) SA 401 (C)
([2005]
4 All SA 440) at paras 32 - 33). …”
[100]
Mr Pincus indicated of his own accord that he cannot submit that the
Body Corporate`s version is so outright untenable
that I can simply
reject it on the papers. Mr Pincus conceded that there are disputed
issues and submitted that those disputed
issues, as identified in the
proposed Draft Order attached to the replying affidavit in the
present application as annexure “RA8”,
are to be referred
for the hearing of oral evidence as provided for in the said Draft
Order.
[101]
The proposed Draft Order reads as follows:
“
1.1  The
matter is referred for the hearing of oral evidence, on a date and at
a time to be arranged with the Registrar of
the above Honourable
Court, on the issues as to whether:
1.1.1
paragraph 4.1 of the order (“
the order”)
granted
by the above Honourable Court on the 9
th
day of November
2018, and as referred to in prayer 1 of the applicant`s amended
notice of motion, was obtained as a result of the
respondent`s
fraudulent conduct (“
the fraudulent conduct”)
and
as envisaged in the applicant`s founding and replying affidavits;
1.1.2
the applicant is entitled to have the order set aside in its
entirety, in
the event of the order having been granted as a result
of the fraudulent conduct.
1.2
Unless the court directs otherwise, in relation to the aforesaid
issues:
1.2.1
the parties are entitled to call any witnesses who deposed to any
affidavit
in these application proceedings;
1.2.2
the parties are obliged to make available for cross-examination such
witnesses
who depose to affidavits in these proceedings to the extent
that such party persists in seeking to place any reliance on that
person`s
evidence in the affidavits;
1.2.3
the parties are entitled to call any further witnesses who were not
deponents
to affidavits in these application proceedings:
1.2.3.1
provided that such party has at least 30 (thirty) court days before
the
date of the hearing of the oral evidence served on the other
party, a statement of the evidence-in-chief to be given by such
person;
1.2.3.2
but subject to the court, at the hearing of the oral evidence,
permitting
such further witnesses to be called notwithstanding that
no such statement has been served in respect of his or her evidence;
1.2.4
the parties may subpoena any witness to give evidence at the hearing
or to furnish documents whether such
person has consented to furnish
a statement or not in relation to the issues referred to oral
evidence.
1.2.5
that a party has served a witness statement in terms of sub-paragraph
1.2.3.1 above or has subpoenaed a
witness shall not oblige such party
to call the witness concerned.
1.2.6
Uniform Rule of Court 35 will apply to the discovery of documents.
1.3   The
incidence of the costs incurred up to now shall be reserved for
determination after the hearing of the oral
evidence.”
[102]
Mr Pincus acknowledged and conceded that a final judgment will not be
lightly set aside on the ground of fraud,
but submitted that in
instances where there is a basis for a finding of fraud, it is to be
set aside.  In support of his submission
he referred to the
judgment of
Schierhout v
Union Government
1927
AD 94 at 98:
“
Now
a final judgment of a court of law being
res
judicata,
is
not to be lightly set aside. On the other hand, it stands to reason
that a judgment procured by the fraud of one of the parties
whether
by forgery, perjury or in any other way such as fraudulently
withholding material documents, cannot be allowed to stand.
That was
the Roman law (C. 7. 58), and that is our law (
Voet
42.1.28).”
The
merits of the present application: consideration of the submissions,
in conjunction with applicable legal principles, the evidence
and the
previous judgments by Daffue, J:
[103]
In order to give proper consideration to the aforesaid request for
the referral of the application for the hearing
of oral evidence, the
merits of the present application obviously need to be considered.
[104]
Mr Strathern referred in his heads of argument to the judgment of
Botha N.O. v
Leboko-Radebe and Others
(16835/2021)
[2022] ZAGPJHC 724 (22 September 2022) which recently affirmed the
following principles at para [11] thereof:
“
[11] As
was held by the SCA in
Namasthethu
Electrical (Pty) Ltd v City of Cape Town
[2020
JDR 1279 SCA], it is trite law that fraud is conduct which vitiates
every transaction known to the law. In affirming this
principle, the
SCA, in
Esorfranki
Pipelines (Pty) Ltd and Another v Mopani District Municipality and
Others
[
[2014]
2 All SA 493
(SCA)
para 11]
,
referred
with approval to Lord Denning's dicta in
Lazarus
Estates Ltd v Beasley
[
[1956]
1 QB (CA) at 712]
,
when he said:
‘
No
court in this land will allow a person to keep an advantage which he
has obtained by fraud. No judgment of a court, no order
of a
Minister, can be allowed to stand if it has been obtained by fraud.
Fraud unravels everything.
The
court is careful not to find fraud unless it is distinctly pleaded
and proved; but once it is proved it vitiates judgments
,
contracts and all transactions whatsoever … '.” (My
emphasis)
[105]
Mr Strathern therefore submitted that it is incumbent upon Goldex to
prove the fraud it relies on, on a balance
of probabilities. I agree
with this submission.
A party wishing to rely on fraud
must not only plead it but also prove it clearly and distinctly.
See
Courtney Clarke v Bassingthwaighte
1991 (1) SA 684
(Nm) at 689 F - G.  The
onus
is the ordinary civil
onus,
one that must be discharged on a balance of
probabilities,
bearing in mind that fraud is not easily
inferred.  See
Gilbey Distillers & Vintners (Pty) Ltd
v Morris NO
1990 (2) SA 217
(SE) at 225 J – 226 A.
[106]
Based on the averments by Goldex in the present application,
Mr
Pincus summarized in his heads of argument the case of Goldex to be
the following:
“
5.1
The applicant seeks the setting aside of the order on the basis of
the
respondent`s fraudulent conduct
in
that:
5.1.1
The respondent
intentionally and
fraudulently altered a document
…
5.1.2
The respondent
fraudulently and
intentionally omitted/suppressed certain documentation from being
placed before the learned Judge
.
5.2
The
respondent`s aforesaid conduct was perpetrated with the intention to
mislead the learned Judge
and
furthermore,
if
the learned Judge had been made aware of the true facts at the
material time, and had regard to intentionally omitted documentation

and altered documentation, the learned Judge would not have made the
order which the learned Judge ultimately made
.”
(My emphasis)
[107]
Mr Strathern emphasized that the averments in the preceding paragraph

consequently constitute the basis upon which Goldex contends fraud by
the Body Corporate and which need to be proved by Goldex.
The
e-mail:
A:
The origin of the altered e-mail:
[108]
In the answering affidavit Mr Cowley gave a detailed explanation as
to the origin of the altered e-mail. I have
quoted the relevant
paragraphs from the answering affidavit earlier and do not consider
it necessary to repeat same. Mr Cowley
explained that “
it
was used for internal discussion purposes between the trustees at the
time”.
The altered parts to the original e-mail were
comments which were added by Mr Shearer for the aforesaid discussion
purposes.
[109]
In addition to Mr Cowley`s explanation, a supporting affidavit of Mr
Shearer was attached to the answering affidavit
as annexure “SSA13”,
in which affidavit Mr Shearer gave a similar explanation to the one
advanced by Mr Cowley.
[110]
Furthermore, like I have indicated earlier in the judgment when I
dealt with the present answering affidavit,
the Body Corporate also
obtained the services of a forensic company called Cyanre to
investigate the allegations by Goldex in regard
to the altered-email,
which investigation was performed by Johan Roux, whose confirmatory
affidavit is attached to the answering
affidavit as annexure “SSA14”.
[111]
I deem it necessary to now deal with the evidence of Mr Roux.
[112]
In the said confirmatory affidavit of Mr Roux, read together with his
Curriculum Vitae attached thereto, he states
that he is a Forensic
Investigations and Digital Forensic Expert and employed at Cyanre as
Head: Digital Forensics. Mr Roux further
states as follows in his
affidavit:
“
3.1  Cyanre
is one of the largest companies/concerns on the African continent
that delivers state of the art cyber forensic
services through
software technologies and procedures that exceed conformities of
major law enforcement agencies across the globe;
and
3.2   The cyber
forensic investigations that Cyanre conducts complies with
internationally accepted standards by,
inter alia
, making use
of state of the art hardware and software.”
[113]
Mr Roux further states that he was approached by the Body Corporate`s
attorney of first instance, who advised
about the nature of the
allegations made by Mr Hulme regarding the altered e-mail and
requested him to undertake an investigation
regarding the veracity of
those allegations. Mr Roux thereupon undertook an investigation and
produced a report, attached to his
affidavit as annexure “JR2”,
which he confirms to be accurate in all respects.
[114]
In the said report he explains the process which he followed to
conduct the investigation. The report contains
reproductions of some
of the e-mails which formed part of the e-mail trail referred to
earlier and were marked with the letters
“CR” followed by
a figure. Mr Roux reported his conclusion to be the following:
“
3.
CONCLUSION
3.1
From the evidence at our disposal. and our analysis thereof, we can
conclude the following:
3.1.1
An email message was sent from Mr Rob Hulme to Mr Joe Shearer, Mr
Andre Cowley, Mr Dave Singleton and Ms
Henriette Rust, on 18 July
2015 (attached as annexure ‘CRI’).
3.1.2
After receiving the email message from Mr Rob Hulme, the Trustees
discussed and suggested additions/changes
to the email message
received from Mr Rob Hulme. The additions and changes were added to
the body of the original email message
body received from Mr Rob
Hulme, marked in red.
3.1.3
On 19 August 2015 a response to the email message (annexure ‘CRI’)
was drafted by Mr Joe
Shearer, and sent to Mr Andre Cowley, Mr Dave
Singleton and Ms Henriette Rust (attached as annexure ‘CR2’)
so as to
approve the intended response. This email contains the
trailing email message. with the response from the Trustees, marked
in red.
It is to be noted that annexure 'CR2’ was not sent to
Mr Rob Hulme.
3.1.4
The response, drafted by Mr Joe Shearer (annexure ‘CR2’)
was discussed between the recipients
of the annexure ‘CR2’.
This discussion can be viewed as per the email addressed by Mr Dave
Singleton on 20 August 2015
(attached as annexure ‘CR3’).
3.1.5
After the above-mentioned discussions, it was decided to send a
shortened response on annexure ‘CR1’,
to Mr Rob Hulme,
from Mr Joe Shearer. Mr Joe Shearer addressed the shortened response
to Mr Rob Hulme on 20 August 2015 (attached
as annexure ‘CR4’).
3.1.6
We established that the email with the suggested comments (annexure
‘CR2’), marked in red,
was not directly sent to Mr Hulme,
nor was it part of any trailing conversation to any mail that was
sent to him directly, which
was supplied to us.
3.1.7
We compared the email in question (annexure ‘CR2’) on
both Mr Cowley's mailbox as well as Mr
Singleton, as well as compared
annexure ‘CR2’ against annexure ‘ACR1’ as
attached to Mr Cowley's affidavit,
and found it to be an exact
extract from the version of the mail as it was communicated between
the Trustees.”
[115]
From the contents of the report and the respective e-mails referred
to therein, it is evident that the e-mail
referred to as annexure
“CR1” is the original e-mail and the e-mail referred to
as annexure “CR2”, is the
altered e-mail.
[116]
The crucial aspect of the report is that the findings by the expert,
Mr Roux, corroborate and confirm the explanation
provided by Mr
Cowley, as confirmed by Mr Shearer, regarding the origin of the
altered e-mail, as set out in the present answering
affidavit.
[117]
Mr
Strathern, at the outset of his argument, submitted that certain time
frames are very relevant to the adjudication of the present

application. In this regard he,
inter
alia
,
referred to the fact that the altered e-mail originated in response
to the original e-mail. The original e-mail is dated 18 July
2015 and
the altered e-mail which contains the comments of Mr Shearer, was
drafted on 19 August 2015. Mr Strathern highlighted
the fact that the
altered e-mail therefore already originated just over a year prior to
the date when litigation ensued between
the parties by means of the
issuing of the main application on 25 August 2016.  He therefore
contended that the altered e-mail
could not have been created by the
Body Corporate with any fraudulent intention for purposes of the
later litigation between the
parties.
[118]
I have to agree with the aforesaid submissions of Mr Strathern. The
altered e-mail cannot be described or considered
to be a “
doctored
e-mail
” as Mr Pincus referred to it. The altered e-mail is
nothing more and nothing less than the original e-mail with the added

comments by Mr Shearer, which was drafted at the time with the
intention to send it to Mr Hulme in response to the original e-mail.

The fact that the Body Corporate subsequent to discussions between
the trustees, decided not to send that particular response,
but to
rather respond on 20 August 2015 by means of a short and crisp answer
to the effect that the Body Corporate have decided
to appoint legal
counsel and that all future communications should be channeled
through them, is neither here nor there in relation
to the purpose
and intention with which the altered e-mail was drafted.
[119]
Technically speaking it would therefore actually be more
correct to refer to “additions” to the original
e-mail
rather than “alterations” thereto, but I will continue
using the terms “alterations” and “altered
e-mail”
for purposes of consistency throughout the judgment.
B:
Reason for attachment of the (altered) e-mail:
[120]
At this stage of the judgment I am only going to deal with the reason
advanced by the Body Corporate for having
attached the (altered)
e-mail to the replying affidavit in the counter-application, without
dealing with the issue as to why the
altered e-mail was attached as
oppose to the original e-mail. I will later herein deal with the last
mentioned issue.
A1: The first part of
the altered e-mail:
[121]
In paragraph 9.5 of the present answering affidavit (which I have
already quoted earlier), Mr Cowley states that
he responded to
paragraph 45 of Goldex`s answering affidavit filed in the
counter-application by means of paragraph 33 of his replying

affidavit filed in the counter-application (to which replying
affidavit the altered e-mail was attached as “ACR1”)

since the said paragraph 45 dealt with the estate manager’s
house and he deemed it necessary to put the issue of the estate

manager`s house in context. In paragraph 10 of the present answering
affidavit Mr Cowley explains thát context to be the
following:
10.1 Hulme had been using
the estate manager's house as a bargaining chip in the settlement
negotiations aimed at reaching agreement
on Goldex 16's arrear
indebtedness for levies;
10.2 Put differently,
Hulme had suggested that Goldex 16 should be afforded the benefit of
the estate manger's house which the scheme
had used rent free since
July 2007 and this should be set off against any levies owed by
Goldex 16.
[122]
A copy of the abovementioned paragraph 45 is attached to the present
replying affidavit of Goldex as annexure
“RA2” and a copy
of the abovementioned paragraph 33 is attached thereto as annexure
“RA3”. However, to
put all the averments in proper
perspective, I consider it necessary to go even a further step back
and quote the relevant parts
of paragraph 27 of the Body Corporate`s
answering affidavit filed in the main application and which affidavit
also served as the
founding affidavit in the counter-application
(which I obtained from the copy of the main application and the
counter application
which I obtained), since the mentioned paragraph
45 was in response the said paragraph 27:
“
27.1
A further AGM of the body corporate was held … on 10 November
2015, attended by,
inter alia,
Mr Hulme and Mr Corrigon.
…
27.11    A
further issue raised at this meeting was the status of the estate
manager`s house.
27.12
Mr Hulme maintained that this house belonged to Goldex and he
attempted to use it as a bargaining chip to
obtain a reduction in
levies.
27.13
It was minuted that the estimated value of the use of the estate
manager`s house equated to R1.6 million.
27.14
However as I have been advised by the body corporate`s legal
representatives from a perusal of various sale
agreements obtained
from Goldex in terms of a Rule 35(12) notice, this estate manager`s
house was promised to a number of purchasers
as part of the scheme,
and accordingly Mr Hulme had no right to regard it as something with
which he could negotiate a reduction
of amounts payable by Goldex in
respect of arrear levies.
27.15    A
copy of the minutes of this meeting is annexed hereto marked “AC16”.
[123]
The response by Goldex to the aforesaid paragraph 27 was the
following as contained in the mentioned paragraph
45:
“
Ad paragraph 27
45.1
I respectfully submit that the allegations contained herein amount to
a blatant distortion of the truth aimed
at showing Goldex in a poor
light and fabricating substantiation for the Body Corporate's
baseless counter application.
45.2
It is correct that discussions were underway concerning an agreement
to be reached between Goldex
and the Body
Corporate aimed at settling the dispute which existed between

the parties and providing an acceptable way forward. Goldex
indicated that once the agreement was
finalised it would make
payment to the Body Corporate of an amount to be agreed and

that it would make payment of contributions in respect of the
unsold Real Rights of Extension at
an agreed rate upon certain
terms and conditions.
45.3
The trustees instructed the Body Corporate’s then attorneys,
Norton

Rose Fulbright, and the agreement was to be drafted by   Mr
Peter Neuhaus ("Neuhaus") of that firm. In due
course, a
draft agreement was prepared   and submitted to me for
consideration but I was advised against signing it.
45.4
One major stumbling block in the draft agreement was that Cowley
and/or Neuhaus proposed that the arrears
which the Body Corporate
contended were owed by Goldex be written off against a retrospective
charge by Goldex of rental in respect
of the estate manager's house
which had been utilised by the Body Corporate free of cost since the
inception of the Scheme.
45.5
Before that, there had never been any discussion of a rental payable
by the Body Corporate to Goldex in
respect of the estate manager's
house. It was always accepted by Goldex that it had been built for
the Scheme and it was always
made available to the Body Corporate
free of cost.
45.6
Cowley explained to me that it was necessary for Goldex to charge the
rental to provide the Body Corporate
with justification for
reversing the various charges it had made against Goldex in respect
of the unsold Real Rights of Extension
and in respect of penalties
and other charges imposed on Goldex. I pointed out to him that no
such justification was necessary
because there was never any
legal or contractual basis for the charges raised by the Body
Corporate and that they ought simply
to be reversed.
45.7 Cowley’s
allegation that I maintained that the estate manager's house belonged
to Goldex and that I attempted to use
it as a bargaining chip to
obtain a reduction in levies is untrue. It was Cowley himself who
suggested placing a rental value on
the estate manager’s house
and who estimated the value of the use thereof to be R1,6 million.”
[124]
The reply by the Body Corporate in the mentioned paragraph 33 in
response to the aforesaid paragraph 45 (which
has previously also
been quoted as part of the answering affidavit of the Body Corporate
in the present application) was the following:
“
Ad paragraph 45
33.1
The proposed settlement agreement would have been the end result of a
long and arduous process aimed
at providing the parties with
finality.
33.2
In the absence of an agreement of settlement, the body corporate was
entitled to enforce the pre-existing
position which was that Goldex
had agreed to pay levies (
including penalties and special levies
)
on the basis that it was subsequent developer of real rights of
extension which had not yet been developed.
33.3
The body corporate was opposed to erasing Goldex debt, because the
debt had arisen from legitimate
charges. Had the body corporate
erased Goldex debt, it would have exposed the body corporate to
similar claims by other subsequent
developers.
33.4.
The body corporate was informed by Mr Hulme that the estate manager's
house belonged 10 Goldex.
33.5.
As it turns out this assertion was false.
33.6.
At the lime I and the other trustees did not appreciate the falsehood
of this assertion and we considered
offsetting the historical and
future use of the estate manager's house against the Goldex debt.
.
33.7.
Had we appreciated that the estate manager's house actually belonged
to the body corporate, we would not
have entertained discussions to
off-set the estate manager's house against Goldex’s historical
debt.
33.8.    I
deny the allegations in paragraph 45.5 to 45.7.
33.9
Goldex represented that the estate manager`s house belonged to it,
and I took it at its word.
33.10
In support of my assertion that Mr Hulme represented that the
estate manager`s house belonged to Goldex,
I annex an email
written by him to Mr Shearer
which clearly conveys Goldex`s
representation that the estate manager`s house belonged to it, a copy
of which is annexed hereto
marked ‘ACR1
’.” (My
emphasis)
[125]
From the aforesaid it is evident that there was a dispute between the
parties as to whether Goldex indeed claimed
ownership of the estate
manager`s house, or not, and consequently whether Goldex attempted to
use it as a bargaining tool in relation
to Goldex`s debt towards the
Body Corporate, considering the consequential entitlement to receive
and/or the obligation to pay
rent.
[126]
For ease of reference I again quote the part of the altered e-mail
which dealt with the estate manager`s house,
with the alterations in
bold:
“
We can spend
another year debating
the duration of the free rental of the
manager’s house
using different financial assumptions.
“
The original
‘debt’ write off was justified by the 50% contributions
logic
without Goldex having to give away any of its common law
rights iro of ownership of the manager’s house.
In order to appease the
accounting justification for the write off and to reach settlement,
Goldex has been asked to surrender its rights to claim any rentals
up to 1 April 2015 AND for a further 11 years.  As proposed
earlier,
Goldex is willing to grant 4 years
.  This is
just one more Goldex concession that was never part of the original
negotiations.
Agreed.
Simplistically, the
‘without prejudice’
proposal is
: -
·
4 years’ free use of the manager’s house
from 1
July 2015, 2 years notice if necessary –
2 year notice after
the 4 years.
” (Underlining my emphasis)
[127]
Mr Cowley at the time very specifically specified in paragraph 33.10
of his replying affidavit filed in the counter-application
for what
reason he attached the altered e-mail thereto, being “
i
n
support of my assertion that Mr Hulme represented that the estate
manager`s house belonged to Goldex,
I annex an email …
which clearly conveys Goldex`s representation that the
estate manager`s house belonged to it, a copy of which is annexed
hereto
marked ‘ACR15’”
. (My emphasis)
[128]
The above underlined parts of the extract from the altered e-mail in
fact do support and corroborate the version
of the Body Corporate as
oppose to that of Goldex in respect of the mentioned dispute with
regard to the estate manager`s house,
in that those underlined parts
clearly show that Goldex was claiming ownership of the estate
manager`s house and was indeed using
it as a bargaining chip. Mr
Cowley`s explanation as to the reason for and purpose of having
annexed the (altered) e-mail, is therefore,
in my view, very
reasonable and acceptable – definitely not untenable.
[129]
Furthermore, the essence of the aforesaid extract from the altered
e-mail did not contain any information which
at the time of the
filing of the replying affidavit in the counter-application, had not
in any event already been fully dealt with
in the respective
affidavits filed in the main application and the counter-application.
This much is very evident from the mentioned
paragraphs 27, 45 and 33
of the respective affidavits which I quoted above.
[130]
The parts of the altered e-mail in relation to the number of years
were of no consequence considering the nature
of the disputes which
Daffue, J had to adjudicate.
[131]
In my view the said alterations did in any event not alter the
essence of that extract from the altered e-mail
when compared to the
contents of the same extract from the original e-mail. The two
alterations in relation to the estate manager`s
house could therefore
not have advanced the case of the Body Corporate in relation to the
disputes Daffue, J had to determine,
in any manner, nor could it have
been misleading to the Court in any respect.
[132]
As already quoted earlier in the judgment, the Body Corporate averred
in paragraph 17.6 of its present answering affidavit
that the altered
e-mail did not feature in either party`s heads of argument filed in
the main-application and the counter-application.
This was not denied
in reply. There is also no mention made of the altered e-mail in the
main judgment of Daffue, J. Daffue, J
did not even deal with the
aforesaid issues in his judgment. The only reference to the estate
manager`s house in the main judgment
is contained in paragraph [8]
thereof where Daffue, J quoted the relief which was sought in prayer
1 of the counter-application
for the registration of praedial
servitudes in favour of the Body Corporate over buildings etc
situated on adjacent cultural land
which is owned by the Goldex, one
of which buildings was the estate manager`s house. The said relief
was not granted, but not due
to the aforesaid dispute between the
parties regarding the ownership thereof.
[133]
The aforesaid extract from the altered e-mail in itself could
therefore not have had any impact or effect on the
main judgment and
orders of Daffue, J, as amended.
A2: The second part of
the altered e-mail:
[134]
Mr Pincus pointed out that one should be mindful of the fact that the
answering affidavit filed in the main application
by the Body
Corporate served both as answering affidavit in the main application,
as well as founding affidavit in the counter-application.
The greater
part thereof was an exposition of facts and circumstances which
concerned both the opposition of the main application
(and hence
including the issue pertaining to the alleged agreement between the
parties regarding the payment of levies) and the
substantiation of
the counter-application, without any distinction between which
averments pertain to the opposition of the main
application and which
pertain to the counter-application. The response by the Body
Corporate in paragraph 33 of its replying affidavit
in the
counter-application, which included the altered e-mail, consequently
also related to and dealt with the issues raised in
both the main
application and the counter-application.
[135]
Mr Pincus consequently referred to the quoted paragraph 45 of
Goldex`s replying affidavit in the main application,
which also
served as its answering affidavit in the counter-application and
submitted that it is evident that paragraph 45 did
not only deal with
the issue of the estate manager`s house, but also with the alleged
agreement between the parties regarding the
payment of levies. Mr
Pincus further pointed out that paragraph 33 of the Body Corporate`s
replying affidavit filed in the counter-application
consequently also
partly dealt with the agreement regarding the payment of levies and
not only with the issue about the estate
manager`s house, as did the
altered e-mail. Mr Pincus therefore contended that it cannot just be
accepted that Daffue, J would
only have read the part of the altered
e-mail which dealt with the estate manager`s house and not the rest
of it which dealt with
the alleged agreement regarding the payment of
levies.
[136]
In support of the aforesaid contention, Mr Pincus pointed out, with
reference to paragraph [44] of the main judgment,
that Daffue, J
expressly stated that he considered all the evidence which was placed
before him, but that he will not be referring
to everything. That,
according to the submission of Mr Pincus, would therefore have
included the totality of the contents of the
altered e-mail.
[137]
I agree with the submission of Mr Pincus that it is to be accepted
that Daffue, J would have read the totality
of the altered e-mail,
since it formed part and parcel of the evidence which was placed
before him. The other relevant parts of
the altered e-mail are
therefore also to be considered.
The relevant
extract from the altered e-mail which dealt with the agreement in
issue, reads as follows:
“
Simplistically,
the ‘without prejudice’ proposal is: -
·
4 years’ free use of the manager’s house from 1 July
2015, 2 years notice if necessary
–
2 year notice after the
4 years.
·
Contributions as per Goldex proposal.
50% of the levy for vacant
stands as agreed and approved at the AGM.
·
Levy contribution for unit 15 and 52 as per the full levy
contribution agreement for a completed unit as specified by the WBC.”
[138]
I have already dealt with the contents of the first bullet point.
With regard to the second and third bullet points,
Mr Pincus
contended that the altered parts are misleading. He submitted that
one has to be mindful of the important fact that Mr
Cowley referred
to this altered email as an e-mail from Mr Hulme addressed to the
Body Corporate; hence,
the
reasonable reader of the altered e-mail, including the presiding
Judge, would have interpreted the altered e-mail on the basis
that
the totality of the contents thereof was written by Mr Hulme.
Therefore, on a reading thereof, it would
have brought Daffue, J under the impression that on Mr Hulme`s
(Goldex`s) “own
version”, such an agreement had in fact
been agreed upon and approved at the AGM, whilst the true fact is
that Goldex is
vehemently denying the conclusion of such an agreement
between the parties, either at the said AGM or at any other stage.
[139]
Mr Strathern, on the other hand, pointed out that the events at the
AGM of 24 March 2015 had already been spelt
out in the answering
affidavit of the Body Corporate filed in the main application, which
also served as the founding affidavit
in the counter-application,
read with the minutes of the said meeting, which were attached to
that affidavit as annexure “AC15”.
Thereafter it was
fully responded to by Goldex in its replying affidavit filed in the
main application, which also served as its
answering affidavit in the
counter-application and it was only subsequent thereto that the Body
Corporate filed its replying affidavit
in the counter-application to
which the altered e-mail was attached as annexure “ACR1”.
Mr Strathern consequently submitted
that the issues which the altered
parts of this extract from the e-mail dealt with and the contents
thereof had already been fully
canvassed by both parties in their
respective affidavits at the stage of the application when the
altered e-mail was attached and
put before Daffue, J. By then it
would have been as clear as daylight to Daffue, J that Goldex is in
fact disputing the conclusion
of such an agreement. Mr Strathern
submitted that in those circumstances it cannot be accepted or found
that Mr Cowley attached
the e-mail with the intention to have misled
Daffue, J in favour of the Body Corporate with regard to the alleged
conclusion of
an agreement regarding the payment of levies.
[140]
Mr
Pincus then furthermore referred to the contents of paragraph [52] of
the main judgment and stated that although Daffue, J may
have
considered other meetings and minutes as well, it is his submission
that Daffue, J’s specific reference to this AGM
and the terms
of the alleged agreement concluded between the parties at the AGM
correspond with the very contents of the relevant
part of the altered
e-mail. Mr Pincus consequently submitted that the altered e-mail was
clearly crucial to the said finding, because
it is the very altered
parts of the e-mail which reflect a fraudulent misrepresentation that
such an agreement had been “
agreed
and approved at the AGM
”
.
Mr Pincus submitted that a mere agreement by majority vote at the AGM
as such did not bind Goldex to any contract/agreement with
the Body
Corporate. The minutes as such did therefore not reflect an agreement
as found by Daffue, J.  Mr Pincus consequently
contended that
Daffue, J`s conclusion regarding the existence of an agreement that
Goldex would pay 50% of the agreed levies, could
therefore only have
been based on a consideration of the above extract from the
“fraudulently” altered e-mail.
[141]
Mr Strathern, on the other hand, pointed out that the minutes of a
number of meetings were attached to the answering
affidavit of the
Body Corporate filed in the main application, which also served as
the founding affidavit in the counter-application.
With regard to the
timing of the relevant events, Mr Strathern referred to paragraph 26
of that affidavit which contains the specific
reference to the AGM of
the Body Corporate held on 25 March 2015 and which deals with some of
the issues that were dealt with at
the said AGM, to which affidavit
the minutes of the meeting were also attached as annexure “AC15”.
He referred to the
fact that Mr Pincus submitted that Daffue, J made
the conclusion regarding the existence of an agreement to pay 50% of
the agreed
levies purely on the basis of the stating thereof in the
altered e-mail. Mr Strathern submitted that this is incorrect, since
the
altered e-mail was only prepared in response to the original
e-mail dated 18 July 2015. The minutes of the aforesaid AGM reflect

that already on 25 March 2015 “
The meeting carried a
majority motion that Goldex be charged 50% of the agreed levy on all
Goldex and Owner vacant stands.”.
With reference to the
submission by Mr Pincus that the said motion was not an agreement,
but merely an obligation which the Body
Corporate imposed on Goldex,
Mr Strathern contended that Daffue J`s finding that such an agreement
was indeed concluded during
that AGM, still stands and is binding on
the parties. Mr Strathern submitted that when one reads the whole of
paragraph [52] of
the main judgment, it is abundantly evident that
the rationale for that finding was the minutes of the AGM of 25 March
2015.
[142]
I have already found that it is to be accepted that Daffue, J would
have read the totality of the altered e-mail,
as contended by Mr
Pincus. However, in so far as Mr Pincus stated that Daffue, J
expressly indicated in paragraph [44] of the main
judgment that he
considered all the
evidence
which was placed before him, but
that he will not be referring to everything, I cannot completely
agree with the statement. What
Daffue, J stated in the said paragraph
was the following:
“
[44]
The Body Corporate attached
numerous
minutes and deeds of sale
to
the answering affidavit. It is not my intention to discuss and/or
refer to each of
these
documents.
However,
I shall mention some and quote from
them
when
I believe it is necessary to do so.” (My emphasis)
[143]
Although I undoubtedly accept that Daffue, J did indeed also read and
considered all the
evidence
which
was placed before him, paragraph [44] of the main judgment
specifically referred to “
numerous
minutes and deeds of sale
”
.
It is to be noted that the said paragraph [44] is contained in the
part of the judgment with the heading “
THE
BODY CORPORATE`S RELIANCE ON A CONTRACTUAL UNDERTAKING TO PAY
LEVIES
”
.
[144]
In the paragraphs of the judgment which followed upon the said
paragraph [44] up to the paragraphs in which Daffue,
J made his
relevant conclusions regarding the existence of an agreement, he
referred to and dealt with certain facts and events
which I will
point out shortly. However, before I do so, I believe it is necessary
to (again) state that I am not to revisit the
merits of the main
application and the counter-application and determine the correctness
of findings made by Daffue, J. I therefore
deem it unnecessary to
refer to the detail of the facts and events I am about to point out,
since it is not for me to determine
the interpretation and/or the
effect thereof. That had already been done by Daffue, J.  The
said events and facts which he
referred to and dealt with, are the
following:
1.
The Body Corporate`s first General Meeting which was held on 23
August 2007, the minutes of which meeting
were attached as annexure
“AC5” to the answering affidavit filed in the main
application, which also served as the
founding affidavit in the
counter-application.
Daffue,
J, quoted,
inter
alia,
an
extract from the said minutes which states that the “Developer”,
hence Goldex, “…
will
pay his share of the levies in respect of actual costs incurred of
the unsold 48 stands pro rata”.
After
an explanation of certain further considerations which emanated from
the minutes, Daffue, J concluded,
inter
alia
,
as follows at paragraph [47] of the main judgment:
“
It
is therefore no surprise that Goldex agreed to pay pro rata in
respect of all of the unsold 48 stands. The use of the term ‘pro

rata’
can
mean nothing else than that Goldex accepted an obligation in respect
of each vacant unsold stand measured against the entire
costs of the
Scheme. …
and
consequently it is accepted that it was agreed that a levy was to be
paid [by Goldex] in respect of each vacant stand or section.
”
(My
emphasis)
2.
The fact that the respective deeds of sale entered into by Goldex and
the various purchasers made provision
for the payment of levies.
Daffue,
J stated as follows at paragraph [48] of the main judgment in this
regard:
“
It
escapes any logic that Goldex would be insisting on such payments to
be made to the Body Corporate
if
it had no statutory or contractual obligation towards the Body
Corporate
.”
(My emphasis)
Considering
Daffue, J`s conclusion that there was no such statutory obligation,
it could only have been a contractual obligation.
3.
At paragraph [49] of the main judgment Daffue, J stated the
following:
“
I
reiterate that Goldex must have known that the Scheme would collapse
unless it provided
financial
assistance in the form of levies
to
ensure that the Body Corporate`s books balance.” (My emphasis)
4.
A trustee meeting which was held on 9 December 2010, which was
attended by Messrs Hulme and Sneech on
behalf of Goldex.
The
minutes thereof were attached to the answering affidavit filed in the
main application, which also served as the founding affidavit
in the
counter-application, as annexure “AC7”. Daffue, J stated
as follows at paragraph [50] of the main judgment:
“…
it
was recorded that Goldex was in arrears. If read in context,
it
could only mean that its levies were in arrears.
”
(My
emphasis)
5.
A meeting of trustees held “
nearly
two years later”,
on
5 October 2012, the minutes of which were attached as annexure “AC9”
to the answering affidavit filed in the main
application, which also
served as the founding affidavit in the counter-application.
Daffue,
J stated as follows at paragraph [51] of the main judgment with
reference to those minutes:
“…
Mr
Hulme on behalf of Goldex for the first time queried the correct
calculation of levies,
although
Goldex acknowledged its obligation to pay levies
.
Mr Hulme stated during the meeting that “
he
was not happy with
what
he had to pay over the years”. However, Goldex accepted that
levies be increased…” (My emphasis)
6.
The very important AGM held on 25 March 2015, the minutes of which
were attached as annexure “AC15”
to the answering
affidavit filed in the main application, which also served as the
founding affidavit in the counter-application.
Daffue,
J found as follows at paragraph [52] of the judgment,
which
I have already quoted earlier in the judgment, but repeat same for
the sake of convenience:
“
[52]
At the AGM of 24 March 2015 it was agreed by majority
vote that Goldex would be charged 50% of the agreed levy
on all
Goldex and owner vacant stands.  This agreement followed upon a
memorandum circulated by Mr Hulme to owners earlier.
Goldex did
not object
ex facie
the
minutes of this meeting to the above or the further agreement to
charge Goldex with 50% of the special levy to be raised,
i.e.
R6 800
per vacant stand.
[145]
Daffue, J then eventually concluded as follows at paragraphs [53] and
[60] of the main judgment, which I have
also already quoted earlier,
but also repeat same for the sake of convenience:
[53]
I am satisfied that
the
golden thread that emerges from the minutes of meetings is
that Goldex
agreed to pay levies on
the same basis as other subsequent owners/developers of vacant stands
over which they held Real Rights of
Extension
.
(My emphasis)
…
[60]
Applicant is not entitled to a declaratory
order as sought. …
it has
bound itself contractually to settle levies charged from time to time
by the Body Corporate in respect of all vacant premises,
i.e.
the
areas of the common property demarcated for future construction of
houses, such levies to be calculated and payable on
a pro rata basis
with owners of other sections.
”
(My emphasis)
[146]
There is therefore, in my view, not even as much as a hint in the
main judgment that Daffue, J based his aforesaid
conclusions on the
contents of the altered e-mail or that it had any influence on his
conclusion. Had he relied upon it, I would
have expected that he
would specifically have referred to the contents of the altered
e-mail as corroboration for his findings,
like he did with the deeds
of sale and the minutes of relevant meetings.
[147]
I
agree with Mr Strathern`s contention that when one reads the whole of
paragraph [52] of the main judgment, it is evident that
the rationale
for that finding was the minutes of the AGM of 25 March 2015.
[148]
It is also important to note that Daffue, J dealt with the aforesaid
events and facts in date sequence. He concluded
that “process”
with his reference to the AGM of 25 March 2015, where after he
recorded his conclusion at paragraph
[53] of the judgment. Daffue, J
did not deal with or refer to events or facts beyond that date for
purposes of reaching his conclusion.
The altered e-mail dated 18 July
2015 (although the alterations were only effected on 19 August 2015)
clearly played no part and
did not impact upon Daffue, J`s conclusion
regarding the existence of the agreement between the parties.
[149]
The earlier submission of Mr
Pincus
that the mere fact that the AGM meeting carried a majority motion
that Goldex be charged 50% of the agreed levy on all Goldex
and Owner
vacant stands, did not constitute an agreement between Goldex and the
Body Corporate, but merely constituted an obligation
which the Body
Corporate imposed on Goldex and that the minutes do not reflect an
agreement as found by Daffue, J, does not assist
Goldex. Mr Strathern
correctly submitted that the said finding by Daffue, J stands.
[150]
In the first application for leave to appeal-judgment, dated 11
December 2017, hence the application by Goldex
for leave to appeal
against the judgment and orders made in the main judgment, in
particular against the finding that Goldex contractually
bound itself
to pay levies to the Body Corporate, Daffue, J stated the following
at paragraphs 9 and 10 thereof:
“
[9]
I do not intend to repeat my reasons and conclusions arrived at in my
judgment. I merely refer to paragraphs [41]
to [53] of the judgment
and the contents of the minutes as well as the Body Corporate`s
allegations in that regard which are not
in dispute. If Goldex
intended to ensure that the Scheme did not collapse, it would be to
agree with the Body Corporate to settle
any deficit on the income and
expenditure account as and when it arises, or even pay an amount in
advance, but making it clear
that it is done
ex
gratia
, and without any statutory or
other obligation. However,
it agreed to
pay levies as stipulated in the minutes referred to.
[10]
I am satisfied that the Body Corporate`s defence to Goldex`s claim
based on the contractual undertaking was pleaded
with clarity,
setting out detailed facts, to such an extent that it was not
possible to reject the Body Corporate`s version as
being untenable
and/or false bearing in mind the test in
Plascon-Evans
.
In fact, and unlike as suggested on behalf of applicant,
the
Body Corporate did not rely on a tacit contract, but on an express
oral agreement confirmed in various minutes of meetings.
”
(The
emphasis was absent in the first application for leave to appeal
judgment.)
[151]
In the subsequent Rule 42-judgment, dated 9 November 2018, Daffue, J
again referred,
inter alia
, to the aforesaid paragraphs [9]
and [10] of the first application for leave to appeal-judgment, but
then added the emphasis reflected
above.
[152]
Daffue, J`s conclusion at paragraph [53] of the main judgment that
“
the golden thread that emerges from the minutes of
meetings…”
, read with the aforesaid quoted
paragraphs [9] and [10], especially with the emphasis added by
Daffue, J himself, are, in my view,
undeniably indicative thereof
that the minutes of the consecutive meetings, which meetings
eventually culminated in the AGM of
25 March 2015, were the decisive
basis for Daffue`s findings regarding the agreement.
[153]
The judgment and orders granted in the subsequent Rule 42-judgment,
dated 9 November 2018, did not negate any
of Daffue, J`s findings in
the main judgment and the first application for leave to appeal
judgment. To the contrary, he cited
a number of paragraphs from both
those judgments. In addition, he reconfirmed the finding he made at
paragraph [60] of the main
judgment when he stated at paragraph [25]
of the Rule 42-judgment that “
no wonder the amended order
sought is a mirror image of the conclusion I arrived at in paragraph
[60]”
of the main judgment, where after he granted the Rule
42-order, which order corresponds with the findings he made at
paragraph
[60] of the main application concerning the agreement.
A3: The third part of
the altered e-mail:
[154]
The third extract from the altered e-mail reads as follows,
again with the bold letters indicating the altered part:
“
Please
arrange for the Goldex statements to be corrected as per our request
on 24 April so that the balance of the contributions
owing since 1
April can be paid forthwith.
On signature of the agreement.
”
[155]
Before I deal with this extract from the altered e-mail, I deem it
necessary for the sake of clarity to specifically
record that the
aforesaid agreement is not to be confused with the agreement which
Daffue, J found to have been concluded between
the parties regarding
the payment of levies by Goldex. The agreement which I will be
dealing with now, is an agreement which the
parties anticipated
before the litigation to settle the disputes between them and which
was to be drafted by the Body Corporate’s
then attorneys,
Norton Rose Fulbright.
[156]
Earlier in the judgment I quoted certain sub-paragraphs of paragraph
27 of the answering affidavit of the Body
Corporate in the main
application, which also served as the founding affidavit in the
counter-application, which dealt with the
issue of the estate
manager`s house. The other sub-paragraphs of the said paragraph 27
dealt with the aforesaid agreement:
“
27.1
A further AGM of the Body Corporate was held … on 10 November
2015, attended by,
inter alia,
me, Mr Hulme and Mr Corrigan.
…
27.3
The question of levies payable by Goldex arose again.
27.4
At item 12 of the minutes it was recorded that Goldex “…
provided an undertaking to settle all outstanding levis on
formalising the Agreement between the parties”.
27.5
The reference to “
the agreement”
is an agreement
which was to be prepared by the body corporate`s previous attorneys
dealing with a number of outstanding issues.
27.6
For reasons which are not relevant to this application, that
agreement was never concluded.
27.7
What is however relevant is the Acknowledgement by Goldex that there
were outstanding levies due by
it which would be settled after the
formalisation of the agreement.
27.8
The undertaking to pay these levies was not conditional on the
agreement being concluded.
27.9
Rather the conclusion of such agreement would constitute the agreed
time for payment of the outstanding
levies.
…
27.16    A
copy of the minutes of this meeting is annexed hereto marked
“AC16”
[157]
Earlier I also quoted the response of Goldex to the averments in
paragraph 27, as set out at paragraph 45 in its
replying affidavit in
the main application, which also constituted its answering affidavit
in the counterclaim. For the sake of
ease of reference, I will repeat
the sub-paragraphs of paragraph 45 which dealt with this agreement:
“
Ad paragraph 27
45.1
I respectfully submit that the allegations contained herein amount to
a blatant distortion of the truth aimed
at showing Goldex in a poor
light and fabricating substantiation for the Body Corporate's
baseless counter application.
45.2
It is correct that discussions were underway concerning an agreement
to be reached between Goldex
and the Body Corporate aimed at settling
the dispute which existed between the parties and providing an
acceptable way forward.
Goldex indicated that once the agreement was
finalised it would make payment to the Body Corporate of an amount to
be agreed and
that it would make payment of contributions in respect
of the unsold Real Rights of Extension at an agreed rate upon certain
terms
and conditions.
45.3
The trustees instructed the Body Corporate’s then
attorneys, Norton Rose Fulbright, and the agreement
was to be
drafted by Mr Peter Neuhaus ("Neuhaus") of that firm.
In due course, a draft agreement was prepared and
submitted to me for
consideration but I was advised against signing it.”
[158]
Earlier when I dealt with the issue of the estate manager`s house, I
quoted the response of the Body Corporate
to the aforesaid paragraph
45 as contained in paragraph 33 of its replying affidavit in the
counterclaim. I will, however, repeat
the sub-paragraphs which dealt
with this agreement.
“
Ad paragraph 45
33.1
The proposed settlement agreement would have been the end result of a
long and arduous process aimed
at providing the parties with
finality.
33.2
In the absence of an agreement of settlement, the body corporate was
entitled to enforce the pre-existing
position which was that Goldex
had agreed to pay levies (
including penalties and special levies
)
on the basis that it was subsequent developer of real rights of
extension which had not yet been developed.”
[159]
From the aforesaid it is, in my view, evident that the issues
regarding this anticipated agreement, were also
fully dealt with in
the respective affidavits. Therefore, it was not a topic which was
sneaked in by the Body Corporate by means
of the altered e-mail in
order to mislead Daffue J. In addition, the altered words “
On
signature of the agreement
” had in any event become
irrelevant and of no consequence by the time that the litigation
ensued between the parties and
therefore
mutatis mutandis
at
the time when the altered e-mail was put before Daffue, J by means of
the replying affidavit of the Body Corporate filed in the

counter-application. By that time the parties were
ad idem
that the anticipated agreement had not been concluded and had not
been signed by the parties.
[160]
I therefore agree with the submission of Mr Strathern that there
could not have been any fraudulent intention
by the Body Corporate
and/or Mr Cowley to mislead the Court by the attachment of the
altered e-mail. This specific extract of the
altered e-mail could
also not have had any impact on the judgment and orders issued by
Daffue, J in the main application or as
amended by the Rule
42-judgment.
A4: The remaining part
of the altered e-mail:
[161]
I do not consider it necessary to deal with the remaining part of the
altered e-mail. There is absolutely no basis
upon which it could have
impacted upon the judgment and orders of Daffue, J and Mr Pincus did
also not advance any arguments to
the contrary.
The attachment of
the altered e-mail instead of the original e-mail:
[162]
Mr Pincus referred to the fact that Mr Cowley states in paragraph
16.1 of the present answering affidavit that
the altered e-mail was
only used for “
internal discussion purposes between the
trustees at the time
”, but then fails to explain that if
that was the only purpose of the altered e-mail, why it was put up
before Daffue, J and
moreover without any indication that it is an
altered version of the original e-mail.
[163]
Mr
Pincus pointed out that nowhere in the present application does Mr
Cowley indicate that he attached the altered e-mail instead
of the
original e-mail by mistake; that he actually intended to attach the
original e-mail. Mr Pincus submitted that Mr Cowley
did also not
advance any other reason why the altered e-mail was attached instead
of the original e-mail, despite the fact that
he specifically stated
in paragraph 33.10 of the Body Corporate`s replying affidavit in the
counter-application that the attached
e-mail, hence the altered
e-mail, was the e-mail which was sent from Mr Hulme to Mr Shearer,
which averment is not correct and/or
true.
[164]
In his argument on this aspect, Mr Pincus duly referred to the
requirements that need to be alleged and proved
by an applicant to
succeed in setting aside a judgment on the ground of fraud, including
the requirement that the representation/misrepresentation
must have
been made fraudulently and with the intent to mislead. However, Mr
Pincus also referred to the judgment of Southwood,
J in
Hyundai
Motor Distributors (Pty) Ltd v Smit NO
2000
(2) SA 934 (T), which judgment he also cited in his heads of
argument. At paragraph 5.69 of his heads of argument Mr Pincus

submitted the following with reference to the
Hyundai
-judgment:
“
Notwithstanding
the aforesaid legal principles, it has been held that the test is
whether material facts have been kept back, whether
willfully and
mala
fide
or
negligently
which
might have influenced the decision of the Court whether to make an
order or not. Furthermore, it is trite that an applicant
should place
all relevant facts before the Court and no incorrect information may
be furnished.
Even
if this is done carelessly, and not recklessly or deliberately
,
a Court would be entitled to set aside the order which had been given
in the light of the false evidence.” (My emphasis)
[165]
In so far as Mr Pincus is attempting to rely on the aforesaid
judgment in support of a contention that intent
is not a requirement
for fraud in the present circumstances, I cannot agree with him. The
Hyundai
-judgment
dealt with the principles applicable to
ex
parte
applications,
which are not applicable
in
casu.
I
will quote only short extracts from the relevant part of the judgment
from 960 B onwards which clearly indicate that it dealt
with the
principles regarding
ex
parte
applications:
“
In
Schlesinger
v Schlesinger
1979
(4) SA 342
(W)
Le Roux  J dealt comprehensively
with the duty of disclosure in
ex
parte
applications.
…
‘
The
utmost good faith must be observed by litigants making
ex
parte
applications in placing material facts before the
Court; so much so that if an order has been made upon an
ex
parte
application and it appears that material facts have
been kept back, whether wilfully and
mala fide
or
negligently, which might have influenced the decision of the Court
whether to make an order or not, the Court has a discretion
to set
the order aside with costs on the ground of non-disclosure. It
should, however, be noted that the Court has a discretion
and is not
compelled, even if the non-disclosure was material, to dismiss the
application or to set aside the proceedings.'
This
synopsis is certainly supported by venerable authority in
this country…
That
is still the legal position - Herbstein and Van Winsen The
Civil
Practice of the Supreme Court of South Africa
4th ed at 367.
The test is whether 'material facts have been kept back,
whether wilfully and
mala fide
or negligently,
which might have influenced the decision of the Court whether to make
an order or not'.
In
Hall
and Another v Heyns and Others
1991
(1) SA 381 (C)
Conradie J summarised the positions as
follows (at 397B – C):
'It
is trite law that an applicant should, especially in the case of
an
ex parte
application, place all relevant facts
before the Court.
A fortiori
, no incorrect information
may be furnished. Even if this is done carelessly and not recklessly
or deliberately I think
that I am entitled to discharge the
rule
nisi
on that ground alone.'”
[166]
The
intent
to defraud is and remains a requirement for purposes of fraud.
[167]
In any event, it has throughout been Goldex`s case that the Body
Corporate and/or Mr Cowley intentionally defrauded
the Court.
[168]
As also indicated earlier in the judgment, Mr Pincus submitted that
in the circumstances the reasonable reader
of the altered e-mail,
including Daffue, J would have interpreted the altered e-mail on the
basis that the totality of the contents
thereof was written by Mr
Hulme. This is all the more so, in the submission of Mr Pincus, in
view of the absence of any difference
in colour of the lettering of
the alterations made to the original e-mail so as to differentiate
between the original e-mail and
the alterations, since the copy which
was attached to the replying affidavit of the Body Corporate in the
counter-application as
annexure “ACR1”, only reflected
black lettering throughout the altered e-mail.
[169]
Mr Strathern, on the other hand, submitted that whether the altered
e-mail instead of the original e-mail was
annexed by mistake or as
part of a trailing e-mail and whether there was an appreciation by
the trustees at the stage when it was
attached that it contains the
comments of Mr Shearer, are neither here nor there.
[170]
Mr Strathern submitted that the fact of the matter is that it was
annexed for a very specific purpose only, which
purpose was spelt out
in paragraph 33.10 of the replying affidavit of the Body Corporate
filed in the counter-claim:
“
33.10  In
support of my assertion that Mr Hulme represented that the estate
manager`s house belonged to Goldex, I annex an
email written by him
to Mr Shearer
which clearly conveys Goldex`s representation that
the estate manager`s house belonged to it
, a copy of which is
annexed hereto marked ‘ACR1’.”
[171]
Considering the findings which I have already made regarding the
origin of the altered e-mail, the purpose for
which it was attached
and the fact that it did not impact upon Daffue, J’s judgment
and orders, I have to agree with the
submission of Mr Strathern that
it becomes irrelevant as to why the altered e-mail was attached and
not the original e-mail. The
fact is that it can never be considered
to be a document which was intentionally and deliberately altered
with the intention to
mislead or defraud the Court. Therefore, the
attachment thereof instead of the original e-mail could also not have
been with the
intention to mislead or defraud the Court. The
aforesaid findings also lend credence to the following averments of
Mr Cowley contained
in the present answering affidavit:
“
14.6
The omission of the entire e-mail from annexure “ACR1”to
the replying affidavit in the 2017 proceedings
was of no consequence
whatsoever, and none of the trustees foresaw or appreciated any
possibility of misinterpretation on the part
of Hulme or Goldex 16.”
“
16.2
Firstly, there was clearly no intention to mislead Hulme by annexing
an e-mail which had originated form
him and which he and his legal
team would have no doubt access to and considered in the lead-up to
the opposed application before
Daffue, J on 29 June 2017.”
“
16.4
The commented-on version of “ACR1”
(as
opposed to the email sent by Hulme)
does
not impact upon the point that the body corporate was trying to make
by annexing that email in the first place.
16.5
Put differently, the e-mail sent by Hulme
(which
is without the trustees’ comments thereon)
adequately
made the point that Hulme was opportunistically using the estate
manager`s house as a bargaining chip …”
“
17.13
There was no intention to defraud or mislead the above Honorable
Court, which was not misled, …”
[172]
The Body Corporate consequently stood nothing to gain from having
attached the altered e-mail instead of the original
e-mail. It is
therefore, in my view, of no consequence.
The
alleged intentional omission of documents and the falsehoods:
[173]
From the present founding affidavit it appears that with regard to
the alleged intentional omission of documents
and the falsehoods it
is Goldex`s case that the Body Corporate intentionally withheld
certain documents and unseen minutes of meetings
from Goldex and that
Goldex was consequently not aware and in possession thereof prior to
the discovery procedure in preparation
for the
quantum
trial.
It was only subsequent to discovery that the said documents and
minutes have come to the knowledge of Goldex, which occurred
only
after the finalization of the previous litigation between the
parties.
[174]
For ease of reference, I will again quote some extracts from
the present founding affidavit in this regard:
“
52.
What renders the fraudulent conduct of Cowley and/or the Respondent
in this matter that much more abhorrent is that both
Cowley and/or the respondent have intentionally and
deliberately misled the Honourable Court into the belief that the
applicant
entered into the alleged express oral agreement when the
very documents that are (and were at the time) in the possession
and/or
control of Cowley and/or the respondent expressly and
pointedly demonstrate the exact opposite.”
“
72.  It is
self-evident from the affidavit of Cowley that not only has Cowley
withheld from this Honourable Court the minutes
(annexure FA6) but
also the MOU (annexures FA7 and FA8) …”
[175]
In the present founding affidavit Goldex deals with and relies upon
three documents which were apparently withheld
from it and the Court.
I will now deal with those three documents.
[176]
The first document is the minutes of
a
Special General Meeting, but Goldex did not state the date of the
said meeting. Goldex states that the minutes of the meeting
is
attached to the founding affidavit as annexure “FA6”.
Goldex further states that the said meeting was attended
by,
inter
alia,
Mr
Cowley and that it is evident
ex
facie
annexure
“FA6” that on the Body Corporate’s own version, no
agreement could have come into being between the parties
until such
agreement had been recorded in writing and signed by the parties.
However, what is attached as “FA6” is
not such minutes,
but a document described as “Contribution negotiations between
Goldex (original developer) and WBC”.
I will not deal with this
document, since it clearly is the wrong document. The response of the
Body Corporate in the present answering
affidavit with regard to the
aforesaid meeting, is of assistance, since it makes it clear that the
meeting which Goldex is referring
to, was the meeting held at 10 May
2014.  This is confirmed by the fact that the extract from the
said minutes on which Goldex
is relying, does in fact appear at
paragraph 3 of the said minutes, dated 10 May 2014. I was able to
trace a copy of the said minutes
since those very minutes had already
previously been dealt with by the Body Corporate in paragraph 21 of
its answering affidavit
in the main application, which also served as
its founding affidavit in the counter-application. A copy of the said
minutes was
even attached to that affidavit as annexure “AC10”.
[177]
I consequently deem it unnecessary to deal any further with the
allegations pertaining to this meeting and the
minutes thereof, since
it is abundantly clear that the averment of Goldex that it did not
have previous knowledge of these minutes
and/or the contents thereof,
is blatantly false. Therefore, not only did Goldex previously had the
opportunity to have dealt with
these minutes in the main application
and the counter-application, but its allegation that Mr Cowley and/or
Goldex intentionally
and fraudulently withheld these minutes from
Goldex and the Court, is blatantly unfounded and false. From the said
minutes it is
evident that Mr Hulme even attended the meeting
himself.
[178]
The second document Goldex is relying on is a draft Memorandum of
Understanding (“MOU”), a copy of
which is attached to the
present founding affidavit as annexure “FA7”. This
document is the first draft agreement between
Goldex and the Body
Corporate which was prepared by the attorneys Norton Rose Fulbright
on instructions of the Body Corporate,
but which was never signed. It
reflects the date of 30 October 2015. On Mr Hulme’s own version
at paragraph 65 of the present
founding affidavit, “FA7”
was at the time “
circulated
to the trustees
and I
”
.
At paragraph 67 Mr Hulme states that after having received “FA7”
“
both
the trustees of the respondent
and
I
(on
behalf of the applicant) made certain alterations and/or amendments
thereto”
.
[179]
The third document Goldex is relying on, attached to the present
founding affidavit as annexure “FA8”,
is a copy of the
MOU “
with
the amendments and alterations that the trustees of the respondent
and I
(on
behalf of the applicant) required to be made to the MOU”.
(paragraph
68) However, “FA8” was also never signed by the parties.
[180]
On Mr Hulme`s own version as referred to above he has clearly been
aware of the existence and the contents of
both draft agreements and
also in possession thereof. In fact, already in Goldex`s answering
affidavit filed in the counter-application,
which also served as its
replying affidavit in the main application, Mr Hulme referred to
these draft agreements at paragraph 45.3
thereof:
“
45.3
The trustees instructed the Body Corporate’s then attorneys,
Norton Rose Fulbright, and the agreement was
to be drafted by
Mr Peter Neuhaus ("Neuhaus") of that firm. In due course, a
draft agreement was prepared
and submitted
to me
for
consideration but I was advised against signing it.” (My
emphasis)
[181]
In addition thereto these draft agreements were also referred to in
the minutes of some of the meetings.
[182]
It is consequently evident that similarly to “FA6”,
Goldex and/or Mr Hulme were not only acutely aware
of the existence
of these two draft agreements, but had them in their possession and
Mr Hulme had intimate knowledge of the contents
thereof.
[183]
Therefore, Mr Hulme`s allegations that Mr Cowley and /or the Body
Corporate intentionally and fraudulently withheld
the two draft
settlement agreements, “FA7” and “FA8” from
him and/or Goldex and that they were unaware
of the, are similarly
blatantly unfounded and false.
[184]
If Goldex had been of the view that the aforesaid three documents
support Goldex`s case and/or rebut the Body
Corporate`s case, it
should have raised it and dealt with in in the main application and
the counter-application. The Body Corporate
cannot be blamed for the
fact that Goldex failed to do so.
[185]
Although there was an attempt in the present replying affidavit to
allege that there are minutes of other meetings
which Goldex
allegedly were not aware of and/or did not have in their possession,
Mr Pincus of his own accord conceded that since
these allegations had
only been raised in the replying affidavit and not in the founding
affidavit, he will not persist with any
submissions in relation
thereto.
[186]
Goldex and Mr Hulme also dismally failed to provide any evidence of
Mr Cowley`s and/or the Body Corporate`s alleged
falsehoods.
Request for
referral of application for oral evidence:
[187]
I
have already dealt with the arguments which Mr Pincus advanced at the
commencement of the hearing in support of his
in
limine
request
that the application be referred for the hearing of oral evidence in
accordance with the proposed Draft Order.
[188]
Towards the end of Mr Strathern`s oral argument in Court, he
submitted that in the present instance, oral evidence
can only ever
be considered or indicated if there is some basis on which Goldex can
get past the “first hurdle” by
establishing the alleged
fraud and only then the onus shifts to whether the Body Corporate`s
version can be rejected on the papers,
which it can`t. He submitted
that this is the reason why Mr Pincus is requesting the referral for
the hearing of oral evidence,
since there is nothing that entitles
Goldex at this stage to a finding of fraud - no document which was
intentionally altered or
“doctored” with the intention to
defraud Goldex and/or Mr Hulme and/or the Court. Mr Strathern
submitted that the cross-examination
of witnesses on behalf of Goldex
will constitute a mere fishing expedition in an attempt to supplement
Goldex`s fatally flawed
cause of action on its affidavit. Mr
Strathern submitted that Goldex`s case can and should be dismissed on
the application papers
as they stand.
[189]
In reply Mr Pincus contended that the reason he is requesting a
referral for the hearing of oral evidence is not
because Goldex did
not make out a proper case on the papers, but because he is compelled
to be cautious because of the case law,
which he dealt with in his
oral arguments, that findings of fraudulent conduct should not be
made in motion proceedings and that
it is practically impossible to
establish fraud in motion proceedings.
[190]
A C
ourt will refuse to order oral evidence when
oral evidence would enable an applicant to amplify affidavits by
additional evidence
where the affidavits themselves, even if
accepted, do not make out a clear case, but leave the case ambiguous,
uncertain, or fail
to make out a cause of action at all. See
Carr
v Uzent
1948 (4) SA 383
(W) at
390. A Court will also refuse to order oral evidence when it is clear
that the sole purpose of cross-examination would be
a 'fishing
excursion' designed to elicit admissions that might supplement the
allegations in the supporting affidavit. See
Hopf
v Pretoria City Council
1947 (2)
SA 752
(T) at 768.
[191]
Considering the findings I made hereinabove regarding the merits of
the present application, especially with regard
to the
fraud-allegations as such, both in respect of the altered e-mail and
the three documents (minutes (“FA6”) and
the draft
agreements (“FA7”) (“FA8”)), I have to
re-confirm that, in my view, the allegations of fraud
which Mr Hulme
and/or Goldex made against Mr Cowley and/or the Body Corporate, are
baseless, unfounded and unsubstantiated. Contrary
thereto the
explanations provided by the Body Corporate, Mr Cowley and Mr
Shearer, as corroborated by the expert evidence of Mr
Roux, are
reasonable, acceptable and moreover, probable – definitely not
untenable.
[192]
In
Kalil v Decotex (Pty) Ltd and Another
1988 (1) SA
943
(A) at 979 H – I the Court enunciated as follows with
regard to the approach a Court is to follow in exercising its
discretion
when dealing with a request that an application be
referred for the hearing of oral evidence:
“
Naturally,
in exercising this discretion the Court should be guided to a large
extent by the prospects of
viva
voce
evidence tipping the
balance in favour of the applicant. Thus, if on the affidavits the
probabilities are evenly balanced,
the Court would be more inclined
to allow the hearing of oral evidence than if the balance were
against the applicant.
And the more
the scales are depressed against the applicant the less likely
the Court would be to exercise the discretion in
his favour. Indeed,
I think that only in rare cases would the Court order the hearing of
oral evidence where the preponderance
of probabilities on the
affidavits favoured the respondent
….”
(My emphasis)
[193]
The Court determined as follows in the judgment of
Administrator,
Transvaal, and Others v Theletsane and Others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 197 A – B:
“
As
a general rule, decisions of fact cannot properly be founded on a
consideration of the probabilities unless the court is satisfied
that
there is no real and genuine dispute on the facts in question,
or
that the one party’s allegations are so far-fetched or so
clearly untenable or so palpably implausible as to warrant their

rejection merely on the papers
, or
that
viva voce
evidence
would not disturb the balance of probabilities appearing from the
affidavits.” (My emphasis)
[194]
In the circumstances I conclude that that Goldex’s request that
the second stay application be referred
for the hearing of oral
evidence in terms of the proposed Draft Order, cannot be granted.
The
relief sought in terms of the Amended Notice of Motion:
[180]
From the findings and conclusions already made hereinabove, it is
evident that the relief sought in terms of the
Amended Notice of
Motion cannot be granted and the second application stands to be
dismissed.
The
first stay application:
[181]
Mr Pincus and Mr Strathern had different submissions as to what order
should be made in relation to the first
stay application.
[182]
As I have already indicated, t
he
relief which is being sought by Goldex in the Notice of Motion in the
first stay application is very similar to that which was
sought in
the original Notice of Motion in the second stay application.  I
have quoted the Notice of Motion in the first stay
application
earlier in the judgment. I also indicated that although the Body
Corporate filed and answering affidavit in the first
stay
application, Goldex has to date not filed an answering affidavit.
[183]
At the commencement of the hearing, Mr Pincus requested that the fist
stay application be postponed pending the
finalization of the present
application. He did at one stage during his submissions as to what
order I should make with regard
to the first stay application,
conceded that should the present application be dismissed, the first
stay application also stands
to be dismissed. However, immediately
after the said concession, Mr Pincus indicated that he would rather
request that the first
stay application be postponed. Should Goldex
decide not to continue with the said application, the parties will
hopefully be able
to settle the issue of costs, in the absence of
which the Body Corporate will still be entitled to approach court for
the necessary
relief.
[184]
Mr Strathern, on the other hand, pointed out that the relief sought
in the first stay application entails the
rescission of a final
order, which is legally untenable. He submitted that the application
is ill-conceived and that there is consequently
no use putting the
application on the back burner. He submitted that the first
application stands to be dismissed, with costs,
moreover so should
the present application be dismissed.
[185]
I have considered counsel’s respective submissions. The parties
agreed at the commencement of the hearing
that I am only to
adjudicate the present application at this stage.  The merits of
the first stay application have consequently
not been argued or
properly considered. In the absence of an agreement between the
parties in this regard, I am not comfortable
to dismiss the first
stay application on the merits thereof merely because the present
application stands to be dismissed.
[186]
In order to avoid unnecessary costs should Goldex decide not to
persist with the first stay application, I deem
it apposite not to
postpone the application, but to rather remove it from the roll, with
the applicant to pay the wasted
of
9 February 2023 occasioned by the removal from the roll of the first
stay application, on a party and party scale.
Costs
of the present application:
[187]
In the present answering affidavit of the Body Corporate, it
requested that Goldex and Mr Hulme, in his personal
capacity, be
ordered to pay the costs of the application jointly and severally,
payment by the one the other to absolved, on an
attorney and own
client scale.
[188]
Mr Strathern repeated the aforesaid request in the heads of argument
filed on behalf of the Body Corporate.
[189]
During his oral argument Mr Strathern submitted that the Body
Corporate is duty bound to act in the best interest
of its members.
Considering the monetary judgment which the Body Corporate has in its
favour against Goldex of which only the quantum
is still to be
determined, the Body Corporate was obliged to have opposed the
present application. Mr Strathern stated that costs
on a party and
party scale invariably leaves a successful litigant out of pocket. He
submitted that Mr Hulme made allegations of
fraud against Mr Cowley
and/or the Body Corporate which were ill-conceived and unmeritorious.
Mr Strathern consequently submitted
that costs on a punitive scale
are appropriate in the circumstances. With regard to the issue of
costs
de bonis propriis
, Mr Strathern submitted that it is an
option which I can consider in the circumstances, although he is
leaving it in my discretion.
[190]
Mr Pincus submitted that the present litigation has been caused by
the conduct of the Body Corporate by having
put up in evidence a
document which has been amended or changed, but which changes were
not pointed out and not explained. Therefore,
a mere finding that it
did not have an effect on the judgment and orders of Daffue, J does
not constitute a reason or basis to
punish Mr Hulme with a costs
de
bonis propriis
order against him personally. Mr Pincus submitted
that it is not warranted and justified in the circumstances. He
further submitted
that costs on a punitive scale against Goldex as
opposed to the normal party and party scale, is also not justifiable.
[191]
A punitive costs order, such as costs on an attorney and client
scale, may be awarded,
inter alia,
in circumstances where the
conduct of a litigant is vexatious, unscrupulous and constitutes an
abuse of court process.
[192]
A body corporate is, in general, responsible to control, manage and
administer the common property for the benefit
of all its members,
which include the financial affairs thereof. The financial
contributions to the different funds are obtained
from its members by
means of different types of levies. As a result of the judgment of
Daffue, J in the main judgment, as amended
by the Rule 42-judgment,
the Body Corporate has a merits judgment in its favour, the quantum
of which is still to be determined,
but which will probably be a
substantive amount of a couple of million rand. I agree with the
submission by Mr Strathern that the
Body Corporate is consequently
obliged to take all reasonable and necessary steps to ensure that it
obtains the amount due and
payable, either by the pending litigation
or by means of a settlement, the last-mentioned of which seems highly
improbable. Be
that as it may, the Body Corporate consequently had an
obligation to have opposed the present application, not in its own
interest,
but in the interest of its members.
[193]
In the judgment of
Singh v Sheriff Sandton North and Another
(Body Corporate of Umoya as intervening respondent)
[2019]
JOL 46075
, the Court held as follows at paras [9] – [13:
[9]
The body corporate, having endured continuous
delaying tactics
employed by the applicant in an attempt to avoid payment of levies
,
now seeks an order declaring the applicant a vexatious litigant.
[10]   I am
satisfied, having considered the applicant’s litigation in
regard to the property, which I have alluded to
above,
that the
proceedings were instituted persistently and without any reasonable
ground
…
[11]   The
applicant’s
persistent vexatious attempts to avoid payment
of levies and his reliance, once again in the present application, on
unsustainable
grounds, warrant a punitive costs order.
…
[13]
In the result the following order is made:
1. The application …
is dismissed.
2. The applicant is to
pay the costs of the intervening respondent, the Body Corporate of
Umoya,
on the scale as between attorney and client
. …”
(My emphasis)
[194]
Considering the findings I made in this judgment, I further agree
with the submission of Mr Strathern that the
present application was
ill-conceived and unmeritorious. Mr Hulme, in his capacity as sole
director of Goldex and on behalf of
Goldex, recklessly accused the
Body Corporate and Mr Cowley, its chairperson, of fraudulent conduct,
without any proper justification.
To make allegations of fraud
against the Body Corporate who is merely fulfilling its official
obligations in circumstances where
there is no evidence of fraud, is
particularly culpable.
[195]
In order to ensure that I exercise my discretion regarding the
appropriate order as to costs judicially, I gave
due and proper
consideration to the submission of
Mr
Pincus that this litigation has in fact been caused by the conduct of
the Body Corporate.
Mr
Pincus pointed out that it is common cause that it is the altered
e-mail which the Body Corporate attached to its replying affidavit

and that it was not pointed out or explained by Mr Cowley that it was
not the original e-mail sent by Mr Hulme to the Body Corporate,
but
indeed the altered version containing the comments by Mr Shearer.
[196]
However, one should be mindful that Mr Hulme was also a trustee of
the Body Corporate at the time when he sent
the original e-mail to
the Body Corporate and also at the time when Mr Shearer added his
comments thereto, although it is common
cause that the altered e-mail
was not sent back to Mr Hulme at the time, but a different e-mail
with a crisp response. However,
as part of the trailing e-mail which
Goldex attached to its answering affidavit in the present application
as “SSA2”,
is an e-mail dated 3 July 2015, which Mr
Hulme, on face value thereof, sent to the (other) trustees of the
Body Corporate (paginated
pages 442 and 443). Parts thereof are in a
lighter shade of black than the other parts. At the very same page
442, right above
the e-mail dated 3 July 2015, is an e-mail which Mr
Shearer sent to Mr Hulme, with the inclusion of the other trustees,
dated 15
July 2015, which reads as follows:
“
Hi
Rob
Please
find the trustees’ response in red below. We look forward to
your positive response and action so that we are able
to bring these
long outstanding matters to finalization once and for all.
Regards
Joe”
[197]
When one then once again considers the e-mail “
below
”,
being the one originally dated 3 July 2015 mentioned above, it is
abundantly clear that Mr Hulme sent the e-mail of 3 July
2015 to the
other trustees of the Body Corporate, one or more of them then added
comments thereto in the body of the e-mail and
then Mr Shearer sent
it back to Mr Hulme by means of the mentioned 15 July 2015 e-mail
above it. Those comments, similarly to the
comments on the altered
e-mail which forms the main subject matter of the present
application, also reflect the words “
Agreed
”,
“
Not Agreed”
,
with or without further comments thereto. The aforesaid e-mails
correspond with the copies of the very same trailing e-mail which
the
expert, Mr Roux, attached to his report as part of “CR1”
(paginated pages 515 and 516). It was in response to this
e-mail that
Mr Hulme addressed the original e-mail, dated 18 July 2015, to the
Body Corporate.
[198]
The aforesaid two e-mails are, in my view, of great importance for
the following reasons:
1.
Mr Hulme clearly understood and was
au fait
with the practice
which the trustees of the Body Corporate followed at the time when
they discussed an e-mail amongst themselves
and/or for purposes of
responding to e-mails, by adding remarks within the e-mail they
received, as explained in the present answering
affidavit by Mr
Cowley, and confirmed by Mr Shearer.
2.
Mr Hulme, in any event, did not deny Mr Cowley`s averments and
explanation in the present answering affidavit
that the trustees of
the Body Corporate followed the said
modus operandi
at the
time.
3.
Consequently, irrespective of when Mr Hulme and/or his legal
representatives became aware of the fact
that “ACR1” was
not the original e-mail, Mr Hulme must have realised that the
“alterations” to the original
e-mail are in fact merely
comments which the trustees of the Body Corporate added to the
original e-mail in accordance with the
practice it followed at the
time. This is moreover so considering that the comments reflected the
same wording and style as previously
used by the Body Corporate in
the e-mail dated 3 July 2015.
4.
Alternatively, and at best for Mr Hulme, even if it is to be accepted
that he did not at the time realise
that the altered e-mail merely
contained added comments by one or more of the trustees of the Body
Corporate in accordance with
the practice they followed at the time,
and that it consequently had not been intentionally “doctored”,
he must have
realized it after having  read the explanation set
out in the present answering affidavit, which, in my view,
constitutes
a reasonable and acceptable explanation which corresponds
with the objective facts, especially those contained in the report of

the expert, Mr Roux.
5.
Despite the aforesaid, Mr Hulme persisted with the present
application and his unfounded allegations
of fraud against Mr Cowley
and/or the Body Corporate.
[199]
Even more incriminatory as the aforesaid, is the conduct of Mr Hulme
to have referred the alleged “
unadulterated fraud committed
intentionally
” by Mr Cowley   to the SAPS for
investigation. This conduct of Mr Hulme was, to say the least,
reprehensible, especially
in view of:
1.
The unfounded and reckless allegations of fraud contained in the
present application, which were repeated
in the referral to the SAPS;
and
2.
The fact that Mr Hulme took no steps whatsoever after the filing of
the answering affidavit in the present
application, when he
must
have
realized that the altered e-mail is not a fraudulent document and
that Mr Cowley and/or the Body Corporate had no intention
to mislead
or defraud the Court.
[200]
In the judgment of
Chris
Vlok Property Services Tshwane CC
[2021]
JOL 50552 (GP) the Court also granted an attorney and client costs
order in circumstances where the Court found that to persist
with a
completely untenable defence is
prima
facie
frivolous
and vexatious and that the cumulative effect of the respondent`s
conduct to refuse to entertain
bona
fide
attempts
to settle the disputes and to persist with an unsustainable defence,
amount to an abuse of the Court process.
[201]
In
Phillips and
Others v Van den Heever NO and Another
2007
(4) SA 511
(W) the following is stated at para [45]:
“
Appointment
to such a fiduciary position, whether it be as
curator ad
litem
or
curator bonis
, trustee, guardian,
executor, administrator or even
company director
,
usually affords
prima facie
protection
against personal liability for costs of unsuccessful litigation.
”
(My emphasis)
[202]
Costs
de
bonis propriis
are
applicable where a person acts or litigates in a representative
capacity.  In
Law
of Costs
,
AC Cilliers,
March
2023 - SI 47, at para 10.22, the following principles are stated:
“
It
is unusual to order an unsuccessful litigant in a fiduciary position
to pay costs
de bonis
propriis
. There must be good
reasons for such an order, such as improper or unreasonable
conduct or lack of
bona
fides
. In
Vermaak’s
Executor v Vermaak’s Heirs
Innes
CJ said:
‘
The
whole question was very carefully considered by this court in
Potgieter’s case,
1908 TS 982
and a general rule was
formulated to the effect that in order to justify a personal order
for costs against a litigant occupying
a fiduciary capacity
his
conduct in connection with the litigation in question must have been
mala fide, negligent or unreasonable.’
”
[203]
In the present matter Mr Hulme is not a litigant. However, he is the
sole director of Goldex and he has been the
voice and conductor of
Goldex throughout the pre-litigation dispute between the parties and
thereafter throughout all the stages
of litigation between the
parties and currently still. His position as director has been
affording him protection against personal
liability for costs of unsuccessful litigation, although he has
actually been the “real
litigant”. He is also the “real
litigant” in the present application. Considering the findings
that I have already
made regarding the conduct of Mr Hulme in respect
of the present application, I am, in exercising my discretion in the
particular
circumstances, convinced that Mr Hulme no longer deserves
the said protection against personal liability in respect of the
costs
of the present application. He is to share such responsibility
with Goldex.
[204]
Mr Hulme is to pay the costs of the present application
de bonis
propriis,
hence in his personal capacity, jointly and severally
with Goldex, payment by the one the other to be absolved.
[205]
The aforesaid costs are to include the costs referred to in paragraph
3 of the order granted by agreement between
the parties pertaining to
the interlocutory applications and the granting of condonation, as
set out earlier in the judgment, since
the parties agreed that those
costs are to be costs in the application.
ORDERS:
[206]
The following orders are made:
A:
The first stay application:
1.
The first stay application is removed from the
roll.
2.
The applicant is ordered to pay the wasted costs of 9 February 2023
occasioned by the removal from the
roll of the first stay
application, on a party and party scale.
B:
The second stay application:
3.
The applicant`s Notice of Motion in the second stay application,
dated 28 July 2022, is amended to read
as follows:
“
1.  Declaring
that paragraph 4.1 of the orders granted by the above Honourable
Court on the 13
th
day of October 2017 and varied on the
9
th
day of November 2018 (“
the order”
)
was obtained as a result of the respondent’s fraudulent
conduct;
2.   Setting
aside the order in its entirety;
3.   Directing
the respondent to pay the costs of this application;
4.
Further and/or alternative relief.”
4.
The second stay application in terms of the Amended Notice of Motion
is dismissed.
5.     The
applicant and Mr RRH (Rob) Hulme (in his personal capacity) are
ordered to pay the costs of the second
stay application, jointly and
severally, payment by the one the other to be absolved, on a scale as
between attorney and client,
which costs are to include the costs
referred to in paragraph 3 of the order granted by agreement between
the parties pertaining
to the interlocutory applications and the
granting of condonation, as set out earlier in the judgment.
C.
VAN ZYL, J
On
behalf of the applicant:
Adv
S.P. Pincus SC
Instructed
by
:
Howard
S Woolf
C/O
AP Pretorius and Partners
BLOEMFONTEIN
On
behalf of the respondent:
Adv
P. Strathern SC
Instructed
by:
Brian
Kahn Inc
C/O
Claude Reid
BLOEMFONTEIN