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[2023] ZAFSHC 420
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Knoop N.O. and Another v Islandsite Investments 180 (Pty) Ltd and Others (1410/2023) [2023] ZAFSHC 420 (26 October 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 1410/2023
In
the matter between:
KURT
ROBERT KNOOP N.O.
First
Applicant
JOHAN
LOUIS KLOPPER N.O.
Second
Applicant
and
ISLANDSITE
INVESTMENTS 180 (PTY) LTD
First
Respondent
RONICA
RAGAVAN N.O.
Second
Respondent
DINESH
APPAVOO N.O.
Third
Respondent
HUGH
VINCENT COOKE
Fourth
Respondent
CORAM:
CRONJÉ, AJ
HEARD
ON:
15
AUGUST 2023
JUDGMENT
BY:
CRONJÉ, AJ
DELIVERED
ON:
26 OCTOBER 2023
[1]
The Applicants and the Fourth Respondent, dissatisfied with my
Judgment, bring applications for
leave to appeal against the whole of
my Judgment handed down on 2 May 2023.
[2]
To the extent that I do not deal with each of the elements of the
grounds of the respective appeals,
it should not be deemed that they
were not considered.
FIRST
GROUND: NO APPLICANT VALIDLY BEFORE COURT:
[3]
It is stated that the Applicants delivered a Notice in terms of Rule
7, disputing the authority
of the First and Second Respondents
(referred to as “
Islandsite
” and “
Mrs
Ragavan
” respectively). It is argued that I should
have held that only the BRP’s had the power to bring and defend
litigation
on behalf of Islandsite as it was in business rescue and
they did not authorize the main application. The company was
therefore
not properly before Court.
[4]
It is alleged that I failed to follow or refer to the decision of
this Court in
National
Director of Public Prosecutions v Sharma
[1]
which is binding on me unless I found that the decision was clearly
wrong. I also allegedly failed to apply or refer to the
numerous decisions in this Court and other divisions that found that
only BRP’s could institute litigation. I incorrectly
distinguished the decision of the SCA in
Ragavan
v Optimum Cole Terminal (Pty) Ltd.
[2]
[5]
A Board of a Company is not a distinct legal entity capable of suing
and being sued in its own
name. I therefore erred in making the
distinction and neither Islandsite or Mrs Ragavan were validly before
Court.
[6]
In
National
Director of Public Prosecutions v Sharma
and
others
[3]
the
learned Musi JP
stated:
“
[1]
This judgment concerns a point in
limine. The applicant contended that the directors of the third
defendant and their attorneys do not have locus standi to oppose a
provisional order (order), issued by this court on 2 June 2021,
in
terms of section 26 of the Prevention of Organised Crime Act (POCA).
[2]
The directors of the third
defendant resolved that it begin voluntary business rescue
proceedings and that the company be placed under supervision in terms
of section 129 (1) of the Companies Act.
[29]
It is correct that the directors remain
directors but, importantly, they operate under the authority
of the
business rescue practitioners. If Mr Hellens’ proposition is
correct, it would mean that the directors may perform
certain
governance functions without the authorisation, consent, instruction
or direction of the business rescue practitioners.
This would
undermine the whole business rescue scheme and would give rise to an
undesirable parallel management of a company. It
would effectively
mean that the directors may hold meetings and resolve to institute or
defend legal proceedings without the intervention
or knowledge of the
business rescue practitioners. This cannot be correct.
[30]
Instituting or defending legal proceedings
has financial implications. Costs orders against a financially
distressed company may have far-reaching implications for the
implementation of a business rescue plan and may result in the
company
not achieving a better return for its creditors or
shareholders. This, on its own, is more than enough reason why the
business
rescue practitioners must be centrally involved when
litigation on behalf of the company in business rescue is embarked
upon.”
[7]
Section 133 of the Act provides:
“
133.
General moratorium on legal proceedings against company.—(1)
During business rescue proceedings, no
legal proceeding, including
enforcement action
,
against the
company
, or in relation to any
property
belonging to the company
, or
lawfully in its
possession
, may be commenced or proceeded with in any
forum, except— …”
[8]
My reading of the section, applied to the present matter, is that the
application is not against
the company. I revisited paragraphs [35] –
[46] of my judgment, but still maintain that the directors are
entitled to approach
the Court to ensure that there are checks and
balances in place in respect of the way the BRP’s deals with
the company, they
are not the company. Section 137(2) does not
relieve directors of their duties as directors. They therefore remain
an integral
part of the management of the company.
[4]
[9]
The BRP’s in any event never indicated that they would have
authorised or approved the institution
of the application against
themselves. A Court that finally determines Part B will be able to
exercise its discretion in ordering
that the costs, if the
application fails, should be borne by any respective party.
[10]
Mr Wickens SC argues that Mrs Ragavan’s heads of argument
foreshadows a supplementary founding affidavit
in Part B, apparently
premised on the findings in my judgment. Whether this is so, is not
for me to decide. I dealt with the papers
as they stood. The Court
hearing Part B would be able to finally determine all the issues
after exchange of all the papers, which
I did not have the benefit of
when I heard the matter. This also applies to the submission in
paragraph 14 of his heads. The matter
came before me on an urgent
basis.
[11]
Applying the test on appeal, the first ground therefore has to fail.
SECOND
GROUND: NO PRIMA FACIE RIGHT
[12]
It is alleged that I failed to consider whether the
prima facie
right asserted by Islandsite and Mrs Ragavan was, as a matter of
law, a sustainable basis upon which an interdict could be granted
pending finalization of Part B. They state that I should have
found that Islandsite and Mrs Ragavan requires preservation
pendente
lite
by way of an interim interdict and not merely a
prima
facie
right to review.
[13]
I allegedly failed to consider whether the Curator was entitled to
sell the property in terms of paragraph
1.21 of the Restraint Order,
notwithstanding the terms of paragraph 1.11 of that Order. Paragraph
1.21 does not contain any of
the requirements in paragraph 1.11 of
the Restraint Order, which formed the basis of Islandsite and Mrs
Ragavan’s case.
[14]
Mr Hellens SC argues that those provisions has to be read with
paragraph 1.44 of the preservation order.
[15]
To the extent that Islandsite and Mrs Ragavan bear an onus of
establishing a
prima facie
right, they failed to do so as a
matter of fact. There was no evidence upon which it could
concluded that the purchase price
of R20 million was not a fair
purchase price reflective of the property’s value.
Annexure “FA3” had no
probative value as it was merely a
screenshot from a website and the claim by Mrs Ragavan that it could
be sold for over R30 million
was pure speculation and
unsubstantiated. The statement from an estate agent was
inadmissible hearsay. The business
rescue plan valued the
property for R19 250 000.00 with a forced sale value of
R13 400 000.00. The Curator’s
second report valued
the property at R9 500 000.00 and a forced sale value
R6 650 000.00 based on professional
valuations.
[16]
I furthermore allegedly erred in concluding that it was not apparent
from the papers what the BRP’s
did for approximately five (5)
years to maintain the property whereas paragraphs 62 – 85 of
the BRP’s answering affidavit
sets out the history of the
proceedings, involving
inter alia
, Mrs Ragavan. The
BRP’s only exercised control for approximately nine (9) months
during 2018 and the Curator thereafter
administered the property.
Perusing the papers again, I concede that this is a valid point.
[17]
It is furthermore averred that there was no evidence upon which I
could conclude that the company was not
illiquid as Islandsite and
Mrs Ragavan did not present such evidence and Islandsite and Mrs
Ragavan in fact made proposals where
a third party would advance
funds. Paragraphs 103, 108 and 143 of the BRP’s answering
affidavit stated that the company did
not have the financial means to
maintain the property. I also failed to consider paragraphs 19
– 25 of the Curator’s
answering affidavit which provided
evidence of the municipal account owed in respect of the property and
costs of repair.
[18]
There was no evidence upon which the Court could find that the BRP’s
were not consulted as the Curator
consulted and obtained the BRP’s
consent to sell the property and the BRP’s considered the
proposal made by Ms Ragavan
prior to the sale. Therefore, the
Court should have dismissed Part A of the application on any of the
grounds.
[19]
My view is that the
prima facie
right open to doubt was
satisfied. A right to obtain declaratory orders, to review and set
aside decisions, under Part B, is recognised
in our law. The
distinction that the Applicants wish to draw between the test in Part
A and the test in Part B is not evident.
I only had to establish
whether there is a
prima facie
right to protection and also a
prima facie
right to review, not whether the review
could/would succeed. There were in my view sufficient facts and
allegations set out in
Part A which foreshadowed Part B, to grant
interim relief.
[20]
It would not, in my view, have been appropriate to strictly apply
Plascon Evans
where all the papers were not exchanged and the
merits of Part B not fully canvassed before me.
[21]
It is also important to note that by the time that I heard the
application, the BRP’s did not yet fully
answer to Part B. They
only filed a preliminary answering affidavit to Part A.
[5]
I was not called upon to determine the de/merits of Part B but only
whether processes that were already undertaken and underway
may
prima
facie
be to the detriment of the Company.
[22]
My views in respect of the value of the property, the probative
value, if any of hearsay, and the process
followed by either the
Curator alone, or the BRP’s alone, or them acting in concert,
are not binding on a Court hearing the
full application. I only had
to consider a
prima facie
right
THIRD
GROUND: NO IRREPARABLE HARM:
[23]
In the papers, which were not yet complete, and not having the
advantage of
viva voce
evidence or full argument, I had to
exercise a discretion in deciding whether there may be harm and
whether it would be irreparable.
In this respect I was faced with the
same dilemma in respect of a lack of certainty how the full picture
would unfold.
[24]
The BRP’s refer to
City
of Tshwane Metropolitan Municipality v Afriforum and Another
[6]
where
it was held:
“
[59] Irreparable
implies that the effects or consequences cannot be reversed or
undone. Irreparable therefore highlights
the
irreversibility
or permanency
of the injury or harm.
That
would mean that a favourable outcome by the court reviewing allegedly
objectionable conduct cannot make an order that would
effectively
undo the harm that would ensue should the interim order not be
granted
.”
[25]
In
Moller
N.O and Another v Murray N.O and Others
[7]
it
was also held that:
“
[16]
This entails a reasonable apprehension that the continuance of the
alleged wrong will cause irreparable harm to
the Applicant. See LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969
(2) SA 256
(C). Irreparable harm or loss is the loss of
property (including incorporeal property and money) in circumstances
where
its recovery is impossible or improbable. The loss need not
necessarily be any financial loss, it may consist of an irremediable
breach of the applicant’s rights. Braham V Hood
1956
(1) SA 651
(D) at 655B and Cliff v Electronic
Media Network (Pty) Ltd and Another
2016
(2) All SA 102
(GJ).
[17]
The Applicants assert that the irreparable harm which they will
suffer is apparent. The only assets in the
estate of the surety are
the two immoveable properties. Moreover, as a property-owning
company that does not trade, the sale
of the immoveable properties in
circumstances where the setting aside application subsequently
succeeds, there can be no doubt
of prejudice ensuing.
The
Applicants assert further that a risk that the immovable properties
will be sold for far less than their value is real because
the amount
claimed by FirstRand Bank is far less than the value of the
properties
.”
[26]
It is stated that it has not been proven that the effects or
consequences sought to be interdicted cannot
be reversed or undone
and that a damages claim is available against the
Curator
.
It was never the Respondents case that the company had plans with the
property or would lose an opportunity. Reference
is made to
paragraphs 45 – 46 of the founding affidavit. A loss
would be quantifiable. I disagree.
[27]
Considering this ground of
appeal, and the case law referred to, I conclude that another Court
would not come to a different conclusion.
FOURTH
GROUND OF APPEAL: BALANCE OF CONVENIENCE
[28]
Mr Cooke, the purchaser, did not oppose the relief. He however
entered the fray at the stage where leave
to appeal is sought. I
concluded that he was not of the view that he would be
inconvenienced. It is argued that there was no averment
by him that
he lost interest in the property or that he cancelled the agreement
to purchase.
[29]
The BRP’s state that I erred in concluding that they did not
state that the estate is illiquid. In
their answering affidavit they
said that “
Islandsite
has no liquid assets
”.
[8]
My understanding, although I could not find case law that compared
both these tests, is that liquid assets are those that can be
easily
converted into cash without affecting their market value, whilst
illiquid assets are those that cannot be converted into
cash as
easily as liquid assets and require more time or effort to do so. Not
much, if any, was said about other assets that can
be liquidated.
[30]
Whether there are reputational issues surrounding the Gupta family
cannot in my view be the test. If the
process of disposal in a case,
which in my view raised
prima facie
concerns in this case, is
not debateable, the property may still be sold for value. I already
referred to the way the valuation
was done, what the precise terms of
the mandate was and the question raised in respect of who in fact had
authority to legally
sell the property and whether all the
prerequisites were met.
[31]
In
Gibb
(Pty) Ltd v Passenger Rail Agency of South Africa and Another
[9]
:
”
13
Finally, the balance of convenience must favour the grant of an
interim interdict. It has long been held that the stronger the
prima
facie right, the less the balance of convenience need tilt in the
applicant’s favour. In other words, a relatively
weak prima
facie right may be compensated for by a balance of convenience firmly
in the applicant’s favour, and a very strong
prima facie right
can make up for a balance of convenience adverse to the applicant.
This is little more than common sense. Apparently
weighty cases in
the main claim ought to be heard out even if it puts the opposing
parties to a great deal of trouble. Even weak
but still arguable
cases ought nonetheless to be entertained if they cause relatively
little trouble to those who have to defend
them (Eriksen Motors
(Welkom) Ltd v Protea Motors Warrenton
1973 (3) SA 685
(A) at
691E-G)”
[32]
I conclude that another Court would not come to a different
conclusion.
FIFTH
GROUND: SATISFACTORY ALTERNATIVE REMEDY:
[33]
It is alleged that I should have found that the harm asserted by
Islandsite and Mrs Ragavan is the difference
between the sale price
and the properties’ alleged worth, which was purely financial.
This could be remedied in a damages
claim. The problem that the BRP’s
are faced with is that there is a material dispute as to the value of
the property as elucidated
above. In my view, this requirement has
been met.
[34]
Mr Hellens argues that as a matter of law, a claim for damages is
controversial referring to
Bothongo
Agriculture GP (Pty) Limited v Johannesburg Water Soc Limited
.
[10]
FIST
SUPPLEMENTARY GROUND: JURISDICTION:
[35]
In its supplementary application for leave to appeal, the Applicants
raise the issue of jurisdiction as there
was neither a common law or
statutory basis in the Act to provide for this in this matter. I
reaffirm my views.
SECOND
SUPPLEMENTARY GROUND: SECTION 133 OF THE COMPANIES ACT:
[36]
I already dealt with most of the aspects under the ground raised in
respect of
locus
standi
.
The BRP’s refer to
SA
Airlink v SAA (SOC) Ltd
[11]
and
Cloete
Murray N.N.O. v Firstrand Bank Ltd t/a Wesbank
[12]
.
Airlink was a creditor effectively seeking to enforce a claim for
monies. I considered it and it remains distinguishable.
[37]
They seek that the appeal be heard by the SCA, alternatively a Full
Bench of this Court.
IS
THE INTERIM ORDER APPEALABLE?
[38]
The Constitutional Court held in
Machele
and Others v Mailula and Others
[13]
:
“
21.
“[T]he effect of granting leave to appeal against an order of
interim execution will defeat the very
purpose of that order. The
ordinary rule is that the noting of an appeal suspends the
implementation of an order made by a court.
An interim order of
execution is therefore special relief granted by a court when it
considers that the ordinary rule would render
injustice in a
particular case. Were the interim order to be the subject of an
appeal, that, in turn, would suspend the order.”
13
(Footnote
omitted.)
22.
I pause to note, however, that while the rationale for the
non-appealability of interim orders is generally
sound, it does not
always provide for situations where the injustice that arises falls
not on the party in whose favour the interim
order or special relief
is granted, but on the party who would, in the ordinary course of
events, seek to appeal against the interim
order. This matter
presents one of those situations. Such a concern is acknowledged by
the decision in TAC I where, after
holding that “it
will generally not be in the interests of justice for a litigant to
be granted leave to appeal against
an interim order of execution”,
the Court continued to say the following:
“
[F]or
an applicant to succeed in such an application, the applicant would
have to show that irreparable harm would
result if the interim appeal
were not to be granted – a matter which would, by
definition, have been considered by the
Court below in deciding
whether or not to grant the execution order. If irreparable harm
cannot be shown, an application for leave
to appeal will generally
fail.” (My emphasis.)
23.
The primary consideration in determining whether it is in the
interests of justice for a litigant to
be granted leave to appeal
against an interim order of execution is, therefore, whether
irreparable harm would result if leave
to appeal is not granted. The
applicant would have to show that irreparable harm would result if
the interim order were not to
be granted. A court will have regard to
the possibility of irreparable harm and the balance of convenience.
”
(footnotes omitted)
[39]
Mr Hellens refers to a number of cases for support that interim
orders are not appealable,
inter
alia
Zweni
v Minister of Law and Order of the Republic of South Africa
[14]
and
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd
[15]
.
[40]
Zweni
was referred to in
Mineral
Sands Resources (Pty) Limited and others v Reddell and others.
[16]
The Court held:
“
[38] What
bears consideration next, is the appealability of the dismissal of an
exception. In Informal Traders,
this Court held that whether an
interlocutory decision is appealable is an interests of justice
enquiry. A similar "interests
of justice" enquiry
ought to apply here. In Zweni, the Supreme Court of Appeal held
that decisions that can be appealed
must have the following three
attributes: they must be
final
in effect and not susceptible to alteration
by the court of first instance; they must be
definitive
in some respect of the rights of the parties
;
and they must have the effect of
disposing
of a substantial portion of the relief claimed
.”
[my emphasis]
[41]
Mr Wickens quoted extensively from
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[17]
.
The
Court made reference to the fact that the matter needs to dispose of
any issue or any portion of the issue/s in the main action;
whether
any party may suffer an inconvenience of disadvantage which nothing
but an appeal can set right and whether the decision
would cause
irreparable harm. In
Trinity
Asset Management (Pty) Limited v Grindstone Investments 132 (Pty)
Limited
[18]
,
the Court held that where the Respondent has a “
killer
law point
”
it should be decided there and then. I could not and still do not
find such point. This is especially so as all the papers
under Part B
were not exchanged and the pleadings not yet closed. If it was
different, the arguments may have been different and
the outcome
different. The Courts of appeal has warned against kicking for touch
as well as granting leave where there is not basis
on facts or law to
do so. The facts in
Trinity
differs from what I am confronted with.
[42]
My judgment is interlocutory and the test for interim relief open to
some doubt is applied. With reference
to s 133 of the Companies Act,
I applied the
prima facie
test. It is not definitive, either
for the Court hearing Part B or under the precedential argument.
[43]
Mr Wickens refers to
Firm-O-Seal
CC v Wynand Prinsloo and Van Eeden Inc and another
[19]
.
That judgment was set aside in
Firm-O-Seal CC v Wynand Prinsloo & Van Eeden Incorporated
and another
[20]
where the Court held:
“
[6]
Locus standi in iudicio is an access mechanism controlled by the
court itself. Generally, the requirements
for locus standi are
these: the plaintiff must have an adequate interest in the subject
matter of the litigation, usually
described as a direct interest in
the relief sought; the interest must not be too remote; the interest
must be actual, not abstract
or academic; and, it must be a current
interest and not a hypothetical one. Standing is thus not just
a procedural question,
it is also a question of substance, concerning
as it does the sufficiency of a litigant's interest in the
proceedings. The
sufficiency of the interest depends on the
particular facts in any given situation. The real enquiry being
whether the events
constitute a wrong as against the litigant.
[7]
The High Court failed to consider whether, in each instance, the
claim asserted was indeed in
the nature of an "action" that
"requires the approval of the practitioner" as contemplated
by the section.
Absent that determination, the special plea could not
succeed. This, because where locus standi is challenged, it
must
be dealt with on the assumption that all allegations of fact
relied upon by the party whose locus standi is attacked are
true. Properly construed, as the debate at the bar in this
Court appeared to demonstrate, the question perhaps is rather
whether
the claims as pleaded are bad in law. But, that is not before us for
the present and need not detain us.”
(footnotes
omitted)
[44]
I did not find that section 133 should be differently interpreted
from what the case law states. Mr Wickens
refers to
Absa
Bank Limited v Marotex (Pty) Ltd and Others
[21]
and the other cases referred to in his heads. I concluded that based
on the relief sought, the BRP’s would never consent
to the
relief claimed against themselves. They never did. Every case is
determined on its own facts.
[45]
I understand the enabling legislation that Mr Wickens refers to as
POCA and not the Companies Act. The preservation
order was granted in
terms of POCA.
[46]
I did not tie the BRP’s hands. The pleadings were not yet
closed. My finding is not definitive on law
or fact. That question
will be finally disposed of under Part B.
[47]
Absa Bank
also states:
“
(a)
In a wide and general sense the term “interlocutory”
refers to all orders pronounced by the Court, upon matters
incidental
to the main dispute, preparatory to, or during the progress of, the
litigation. But orders of this kind are divided
into two classes: (i)
those
which have a final and definitive effect on the main action
;
and (ii) those, known as “simple (or purely) interlocutory
orders” or “interlocutory orders proper”, which
do
not. (See generally Bell v. Bell,
1908
T.S. 887
at
pp.
890
-1; Steytler, N.O. v. Fitzgerald,
supra at pp. 303, 311, 325-6, 342; Globe and Phoenix Gold
Mining
Co. Ltd. v. Rhodesian Corporation Ltd.,
1932
A.D. 146
at
pp.
153
,
157
-8,
162
-3; Pretoria
Garrison Institutes v. Danish Variety Products, supra at
pp. 850, 867.)”
[48]
My order is not definitive. If the relief was final, it would have
been definitive. I conclude that the ground
cannot succeed.
[49]
I ordered that the cost under Part A be costs in the cause. The
outcome of Part B may either be in favour
or adverse to the
Applicants. I, specifically, do not distinguish between the
Applicants as a Court who hears Part B would be in
a better position
to determine the respective liabilities of the parties to the
litigation as a whole.
[51]
There has been a flurry of correspondence served and exchanged
subsequent to my judgment. I did not consider
those, especially the
letters that were sent to my chambers, as they were not sent by
consent and had no bearing on the application
for leave to appeal.
[52]
On 31 July 2023, Mr Cooke filed an answering affidavit to Islandsite
and Mrs Ragavan’s Rule 30 application.
[53]
Mr Cooke advances the argument that it is not necessary to file an
affidavit by him in the application for
leave to appeal and that he
is not perempted from participating in the proceedings. It is argued
that an application for leave
to appeal is a question of substance
and not a procedural matter regulated by the Rules of Court. A Court
will, however, extend
the period for filing an application for leave
to appeal on good cause shown.
[54]
His non-participation, he says, was due to the fact that he believed
that there were no reasonable prospects
for success in the urgent
application. Mr Katz SC argues that my order is appealable as the
issue of
locus
standi
is
a discrete question of law as it is dipositive of both the Part A and
Part B relief. For the reasons stated above, I do not
agree. I had to
determine whether there was a
prima
facie
right asserted, not a clear right. The arguments in respect of s 133
of were fully argued before me and I dealt with this above.
My
reading of the Act does not provide that the BRPs were appointed in
substitution
of the Board in respect of all matters. Section 140 provides that
they exercise
full
management
control
of the company
.
The relief in the matter before Musi JP also differed from the relief
sought in the application before me. The caution that I
expressed was
premised on the facts and the argument raised before me.
[55]
The argument that there is a novel question about whom has to be
consulted where the company was placed in
the hands of BRP’s
and a Curator appointed. My considerations went wider, when I,
inter
alia,
considered the timelines and the fact that the agreement was
apparently concluded outside the mandate period. I agree with Mr
Hellens that there needs to be finality. However, on the principles
enunciated in
National
Union of Mineworkers of SA and Others v Fast Freeze
[22]
,
I grant Mr Cooke the opportunity to participate in the appeal, this
is notwithstanding that Mr Cooke may still participate in
Part B of
the application..
[56]
Considering the history of the litigation and Mr Cooke’s
statement that he thought that there was not
reasonable prospects for
success, I cannot find that peremption applies. I suspect that the
trigger for his participation may be
that I remarked that he did not
advance any grounds in the main application of prejudice and
inconvenience.
[57]
Islandsite and Mrs Ragavan served and filed a Rule 30 notice on the
BRP’s and Mr Cooke.
[58]
In respect of Mr Cooke, Islandsite and Mrs Ragavan state that the
dies
for lodging an application for leave to appeal expired,
that he is perempted from an appeal and no valid condonation
application
was filed under oath.
[59]
In respect of the BRP’s I conclude that there is nothing
prohibiting a party to amend and expand its
grounds of appeal. It is
a question of prejudice and I cannot find any.
[60]
In
Booi
v Amathole District Municipality and others
[23]
the Court stated that:
“
[29]
Another preliminary obstacle that must be overcome before I deal with
the merits of this appeal is the issue of
peremption. It cannot be
gainsaid that the doctrine of peremption serves the important purpose
of legal certainty, but it is trite
that its application is not
absolute. When a court faces the possible operation of the
doctrine, the relevant enquiry is whether
there are overriding policy
considerations that militate against the enforcement of peremption of
the party’s right of appeal.”
(footnotes omitted)
COSTS
[62]
Mr Hellens askes that the BRPs pay the cost of the application
de
bonis propriis
. In my judgment I ordered that the costs in Part A
be costs in the cause. I am of the view that the costs of this
application should
be costs in the cause.
[63]
I therefore make the following order.
ORDER
1.
The First and
Second Applicants’ application for leave to appeal is
dismissed.
2.
The costs of
the dismissal shall be costs in the cause.
3.
Each party
pays its own costs in respect of the balance of the relief sought.
4.
The Fourth
Respondent’s application for condonation is granted.
5.
The Fourth
Respondent’s application for leave to appeal is dismissed.
6.
The costs of
the dismissal of shall be costs in the cause.
7.
Each party
pays its own costs in respect of the balance of the relief sought.
P R
CRONJÉ, AJ
On
behalf of the First and Second Applicants:
Adv.
G D Wickens SC
Adv
T Scott
Instructed
by:
Smit
Sewgoolam Inc.
McIntyre
Van der Post Attorneys
BLOEMFONTEIN
On
behalf of the First & Second Respondents:
Adv
MR Hellens SC
Adv
Ben Prinsloo
Instructed
by:
Van
der Merwe & Van der Merwe
c/o
Honey Attorneys
BLOEMFONTEIN
On
behalf of the Fourth Respondent:
Adv.
A Katz SC
Adv
K Perumalsamy
Instructed
by:
Werksmans
Attorneys
c/o
Symington & De Kok
BLOEMFONTEIN
[1]
2022 (1) SACR 289 (FB)
[2]
[2023] ZASCA 34
[3]
[2021]
JOL 53845 (FB); The SCA did not finally determine the issue. See
Ragavan
and Others v Optimum Coal Terminal (Pty) Ltd and Others
(136/2022)
[2023] ZASCA 34; 2023 (4) SA 78 (SCA) (31 March 2023); See also
Tayob
and Another v Shiva Uranium (Pty) Ltd and Others
(336/2019) [2020] ZASCA 162 (8 December 2020)
[4]
See s 139 of the Companies Act as well as s 165
[5]
Pleadings, p. 131
[6]
(157/15)
[2016] ZACC 19; 2016 (9) BCLR 1133 (CC); 2016 (6) SA 279 (CC) (21
July 2016)
[7]
(2308/2021) [2021] ZAMPMBHC 34 (26 July 2021). My reading of that
judgement is that the Court took no issue with irreparable
harm but
with the
prima
facie
right asserted.
[8]
Pleadings, p. 158, para 143
[9]
(35870/2021) [2021] ZAGPJHC 146 (26 August 2021)
[10]
(2023-013882)
[2023] ZAGPJHC 246 (20 March 2023); see para [70]
[11]
[2020]
ZASCA 156
[12]
2015 (3) SA 438
(SCA), para [14]; see also para [17]
[13]
(CCT
99/08) [2009] ZACC 7; 2010 (2) SA 257 (CC) ; 2009 (8) BCLR 767 (CC)
(26 March 2009)
[14]
(310/91)
[1992] ZASCA 197; [1993] 1 All SA 365 (A) (20 November 1992)
[15]
(CCT 59/09)
[2010] ZACC 6
;
2012 (4) SA 618
(CC);
2010 (5) BCLR 457
(CC) (9 March 2010)
[16]
2023
(2) SA 68 (CC)
[17]
1977
(3) SA 534
(AD) at p. 53
[18]
(CCCT248/16)
[2017] ZACC 32; 2017 (12) BCLR 1562 (CC); 2018 (1) SA 94 (CC) (5
September 2017)
[19]
[2021]
JOL 52709 (ML)
[20]
[2023]
JOL 59780 (SCA)
[21]
(1046/15) [2016] ZAGPPHC 1190 (28 October 2016)
[22]
(1992)
13 ILJ 963 (LAC)
[23]
[2022]
1 BLLR 1
(CC)
;
See
SANDFU
fn 19 at para [23], where the Supreme Court of Appeal cited its
earlier decision in
Von
Abo
above
in footnote 19 at para [19], and stated as follows:
“
The
general rule that a litigant who has deliberately abandoned a right
to appeal will not be permitted to revive it is but one
aspect of a
broader policy that there must at some time be finality in
litigation in the interests both of the parties and of
the proper
administration of justice. Bearing in mind the policy underlying the
rule it must necessarily be open to a court to
overlook the
acquiescence where the broader interests of justice would otherwise
not be served. As this Court said recently in Government
of the
Republic of South Africa v Von Abo, in response to a similar
contention that the appeal had been perempted: ‘It
would be
intolerable if, in the current situation, this Court would be
precluded from investigating the legal soundness of the
first order,
as a result of the incorrect advice followed by the appellants or an
incorrect concession made by them
.’”