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[2024] ZAGPPHC 282
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Trustees of the N Georgiou Trust and Another; Poole v Saffy N.O (2566/2021) [2024] ZAGPPHC 282 (18 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case No:
2566/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE: 18 March 2024
SIGNATURE
In the matter between:
THE
TRUSTEES OF THE N GEORGIOU TRUST
Applicant for
leave
to appeal
In re the intervention
application of:
THE TRUSTEES OF THE N
GEORGIOU TRUST
Intervening Party
In re the matter between:
SYDNEY
CLARENCE WILLIAM
POOLE
Applicant
and
LUKE
BERNARD SAFFY
N.O.
Respondent
JUDGMENT
HF
JACOBS, AJ:
[1]
On
5 February 2024 I dismissed the application to intervene as
respondents brought by the trustees of the N Georgiou Trust in the
sequestration proceedings of the estate of late Mr Georgiou and
granted the provisional sequestration order returnable 29 April
2024. This is an application for leave to appeal against the
dismissal of the application to intervene and dismissal of the
application for postponement of the sequestration proceedings.
The law applicable to applications for leave to appeal are
recorded
in
Hunter
[1]
and I do restate the applicable principles here.
[2]
Leave to appeal is sought on the basis that
the appeal would have reasonable prospects of success on three
grounds namely:
(1)
That another court may find that the
trustees of the trust have the required standing in law that amounts
to a real and substantive
interest in the litigation and, therefore,
a “
legal right”
to apply and be allowed to intervene in the sequestration proceedings
as respondents;
(2)
That the two trustees have the capacity to
intervene in the sequestration proceedings on a proper, contextual
and purposeful interpretation
of the trust deed, especially mindful
of the content of clause 5 thereof; and
(3)
That the trustees have the right to
intervene by reason of the legal consequences of the adopted Business
Rescue Plan by the substantial
majority of the body of creditors of
the company mentioned in the main judgment.
[3]
The trustees contend for a finding on the
facts of the case that a provisional order for sequestration should
not have been issued
but that the proceedings should have been
postponed and the trustees joined as respondents to have their rights
considered later.
In my opinion, for reasons recorded in the
main judgment, the evidence does not justify such relief and that no
prospect of success
exists on appeal in this connection.
[4]
Cumulatively to the above grounds of appeal
leave to appeal is also sought in terms of sub-section 17(1)(a)(ii)
of Act 10 of 2014
on the basis that doubt about the contextual
interpretation of sub-section 152(4) of the
Companies Act of 2008
exist and uncertainty prevails about its application to the facts of
the present matter that require that leave to appeal should
be
granted to the Supreme Court of Appeal to resolve the mischief.
[5]
I am not of the opinion that appeal would
have reasonable prospects of success or that there exist conflicting
judgments on the
application of sub-section 154(2) of the
Companies
Act of 2008
or that there exist any other compelling reason why leave
to appeal should be granted.
[6]
The application for leave to appeal is
refused with costs.
H
F JACOBS
ACTING
Judge of the High Court
GAUTENG DIVISION,
PRETORIA
Delivered:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by e-mail. The date
and time for hand-down is
deemed to be 14h00 on the 18
th
March 2024.
APPEARANCES
Applicant’s
counsel:
Adv R
Du Plessis SC
Applicant’s
attorneys:
Mr
Stefan Redelinghuys
Respondent's
counsel:
Adv L
Bolt
Respondent’s
attorneys:
Le
Grange Attorneys
[1]
Hunter
v Financial Services Board
2017 JBR 0941
(GP)