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[2022] ZALMPPHC 24
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Sandrivier Helikopters(PTY) LTD v Minnaar and Others (484/2022) [2022] ZALMPPHC 24 (17 May 2022)
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Certain
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 484/2022
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED
.
In the matter between:
SANDRIVIER HELIKOPTERS
(PTY) LTD
APPLICANT
(Registration No:
2019/119785/07)
and
MINNAAR, GERHARD
CORNELIUS
FIRST RESPONDENT
(Identity
No:[….])
MINNAAR,
LAURETTE
SECOND RESPONDENT
(Identity No:[….])
CLEMENTS,
ESTELLE
THIRD RESPONDENT
(Identity No: [….])
SHELDRAKE GAME RANCH
CC
FOURTH
RESPONDENT
(Registration No:
2005/166145/23)
In
Re
:
MINNAAR, GERHARD
CORNELIUS
FIRST APPLICANT
(Identity No:[….])
MINNAAR,
LAURETTE
SECOND APPLICANT
(Identity No:[….])
CLEMENTS,
ESTELLE
THIRD APPLICANT
(Identity No:[….])
SHELDRAKE GAME RANCH
CC
FOURTH APPLICANT
(Registration No:
2005/166145/23)
and
MINNAAR, JACOBUS
CORNELIUS
FIRST RESPONDENT
(Identity No:[….])
MINNAAR, JACOBUS
PETRUS
SECOND RESPONDENT
(Identity No:[….])
THE TRUSTEES OF THE
KOOS MINNAAR TRUST
THIRD RESPONDENT
(IT: 1859/1985)
CJ MINNAAR BEHEREND
(PTY) LTD
FOURTH RESPONDENT
(Registration No:
1985/002461/07)
INDIGO HELICOPTERS
CC
FIFTH RESPONDENT
(Registration No:
2008/255319/23)
SANDRIVIER HELIKOPTERS
(PTY) LTD
SIXTH RESPONDENT
(Registration No:
2019/119785/07)
VOORBURG SAFARIS AND
GAME
SEVENTH RESPONDENT
BREEDERS (PTY) LTD
(Registration No:
2018/584965/07)
ESMELAU EIENDOMME
(PTY) LTD
EIGHTH RESPONDENT
(Registration No:
1981/010520/07)
FONTAINEBLEAU LANDGOED
(PTY) LTD
NINTH RESPONDENT
(Registration No:
1989/000895/07)
ZWARTRAND GAME RANCH
(PTY) LTD
TENTH RESPONDENT
(Registration No:
1985/001655/07)
KLEYNHANS,
VEROESCHKA
ELEVENTH RESPONDENT
(Identity No:[….])
KLEYNHANS, GERT
PETRUS
TWELFTH RESPONDENT
(Identity No:[….])
THE MASTER OF THE HIGH
COURT,
THIRTEENTH RESPONDENT
PRETORIA
THE MEMBER OF THE
EXECUTIVE
FOURTEENTH
RESPONDENT
COUNCIL, DEPARTMENT OF
ECONOMIC
DEVELOPMENT,
ENVIRONMENT AND
TOURISM (LIMPOPO
PROVINCIAL
GOVERNMENT)
JUDGMENT
MAKGOBA
JP
[1] The Applicant in this
matter, Sandrivier Helicopters (Pty) Ltd (“Sandrivier”)
launched the present urgent application
for the rescission of the
ex
parte
order obtained against it and others on the 15 March 2022.
The
essence of the relief sought in the
ex
parte
application launched by the
present respondents was “authorising the Sheriff of the High
Court to attach and place under
his/her control two helicopters
belonging respectively to Sandrivier and Indingo Helicopters CC
(“Indingo”)”.
In
terms of the relief sought in the notice of motion the helicopters
would remain attached under the control of the Sheriff pending
the
final determination of various possible actions and/or applications
to be instituted by the present respondents. This is in
essence an
anti-dissipation type of interdict.
[2] The applicants in
the
ex parte
application sought and obtained an order on 15
March 2022 attaching two helicopters belonging to the fifth
respondent in the main
application (“Indingo”) and the
sixth respondent in the main application (“Sandrivier”).
The
ex parte
order that was granted on 15 March 2022 was only
executed on 14 April 2022, that is almost a month later.
[3] The present
application for the rescission of the aforesaid
ex parte
order
is brought in terms of Rule 42(1) of the Uniform Rules of Court
and/or on the common law. This is so on the basis that the
ex
parte
order was sought and erroneously granted in that:
3.1. Not a single reason
was advanced in the founding affidavit why it was necessary to launch
the application on an
ex parte
basis.
3.2. Not a single fact
allegation was made in the founding affidavit regarding any specific
claim against Sandrivier or Indingo.
3.3. There was no legal
basis to ask for the relief in the notice of motion. Not even one of
the four requirements for an anti-dissipation
type of interdict was
addressed in the founding affidavit.
3.4. A full disclosure of
all the relevant facts were not made in the
ex parte
application.
3.5. There was no legal
basis and no factual basis to justify the granting of the
ex parte
order against Sandrivier and Indingo.
[4] The present
Applicant’s (Sandrivier) case is that if the existing
ex
parte
order is not rescinded, then the helicopter belonging to
Sandrivier will remain under attachment for as long as it takes to
finalise
numerous far-fetched actions and applications against
unrelated parties.
The
ex parte
order
will effectively completely destroy the business of Sandrivier.
If the order is allowed
to remain in place, then Sandrivier will not be able to utilize the
helicopter for many years to come. The
helicopter will no doubt
deteriorate and will eventually have very little value.
The
Order granted
[5] The ex parte order
sought and granted in favour of the Respondents herein is quite broad
and far-reaching. It reads as follows:
PART
A
:
EX
PARTE
RELIEF
1.
The Sheriff of the High Court is authorised
to attach and place under his/her control a Robinson R44 helicopter
registration ZS-RYN
and a Robinson R22 helicopter registration ZS-RIJ
(“the helicopters”) situate at the Baobab Nature Reserve
or such
other place where they may be located.
2.
The Sheriff of the High Court is authorised
to attach and place under his/her control the Twelfth Respondent’s
securities
and loan claims in the Fifth and Sixth Respondents or any
securities held by his nominee/s.
3.
The orders in paragraphs 1 and 2 above
remain in force pending the outcome of an action or actions or review
proceedings to be instituted
by the Koos Minnaar Trust;
alternatively
,
by the First and Second Applicants on behalf of the Koos Minnaar
Trust;
further alternatively
,
by any of its beneficiaries or Trustees including but not limited to:
3.1.
the unlawful actions of the First, Second,
Seventh, Eleventh and Twelfth Respondents, jointly and severally in
dealing with and
dissipating or misappropriating the assets of the
Koos Minnaar Trust;
3.2.
the illegal actions of the First, Second,
Seventh, Eleventh and Twelfth Respondents, jointly and severally in
relation to all and
any activities in respect of game species on the
Baobab Nature Reserve and conducted pursuant to the P3 Wildlife Trade
and Regulation
(Exemption) Permit dated 22 November 2019 allegedly
issued by the Fourteenth Respondent or otherwise, in favour of the
Eleventh
and/or Seventh Respondents;
3.3.
the removal of Cornelius Jacobus Minnaar
(First Respondent) and Jacobus Petrus Minnaar (Second Respondent) as
Trustees of the Koos
Minnaar Trust and directors of the relevant
subsidiary corporate entities;
3.4.
declaratory relief declaring Cornelius
Jacobus Minnaar (First Respondent) and Jacobus Petrus Minnaar (Second
Respondent) as being
delinquent directors;
3.5.
setting aside the purported and unlawful
subdivision of the immovable properties of the Koos Minnaar Trust to
wit the separation
from the Baobab Nature Reserve of the farms
Voorbug 503 MS and Zwartrand 506 MS;
3.6.
setting aside the unlawful conclusion of
lease agreements between Voorbug Safaris and Game Breeders (Pty) Ltd
(the Seventh Respondent)
and/or unknown third parties and the Koos
Minnaar Trust in relation to the farms Voorbug 503 MS and Zwartrand
506 MS, being immovable
properties of the Koos Minnaar Trust;
3.7.
setting aside the unlawful transfer to the
Second Respondent of the Koos Minnaar Trust’s 30% shareholding
in Kobus Minnaar
Vervoer (Pty) Ltd held by the Koos Minnaar Trust by
virtue of its interest in the Fourth Respondent; alternatively,
paying to the
Koos Minnaar Trust the reasonable market value of the
shares together with interest thereon;
3.8.
setting aside the unlawful transfer from
the Koos Minnaar Trust to the Second Respondent of Erf [….],
Duivelskloof (Modjadjiskloof),
Extension 5, Limpopo Province
previously held by the Koos Minnaar Trust by virtue of its interest
in the Eighth Respondent;
3.9.
setting aside the purported notice of 2
August 2021 calling a meeting of directors of the Fourth Respondent;
3.10.
setting aside the purported shareholders’
meetings of the Fourth, Eighth, Ninth and Tenth Respondents for the
purposes of
removing the First Applicant as a director of the Fourth,
Eighth, Ninth and Tenth Respondents and declaring them null and void;
3.11.
setting aside any purported resolution of
the Fourth, Eighth, Ninth and Tenth Respondents removing the First
Applicant as a director
of such Respondents;
3.12.
interdicting and restraining the First and
Second Respondents from convening and holding any meetings on 29
October 2021, or on
any as yet undetermined dates thereafter, that
may purport to have the effect of amending managerial control of the
Koos Minnaar
Trust and/or subsidiary corporate entities and/or
dealing in any manner with the assets owned by the Koos Minnaar Trust
and/or
or the subsidiary corporate entities;
3.13.
condoning the First Applicant’s
failure to seek a review of the determination by the First and Second
Respondents to remove
him as a director of the Fourth, Eighth, Ninth
and Tenth Respondents as contemplated in
Section 71(5)
of the
Companies Act, 71 of 2008
, in the event of this Court finding that
this application falls outside of the prescribed timeframe in this
respect;
3.14.
restoring managerial control over the
Baobab Nature Reserve in accordance with a draft Management Agreement
submitted to the Fourteenth
Respondent;
3.15.
claims for damages,
alternatively
,
claims for the restitution of property against the First, Second,
Seventh, Eleventh and Twelfth Respondents, jointly and severally
arising from the receipt of proceeds of unlawful trading and/or
hunting activities of game species conducted on the Baobab Nature
Reserve under a P3 Wildlife Trade and Regulation (Exemption) Permit
dated 22 November 2019;
3.16.
claims for damages,
alternatively
,
claims for the restitution of property against the First, Second,
Seventh, Eleventh and Twelfth Respondents, jointly and severally
arising from the unaccounted for loss of game species of the Koos
Minnaar Trust pursuant to unlawful trading and/or hunting activities
conducted on the Baobab Nature Reserve;
3.17.
directing that the First, Second, Seventh,
Eleventh and Twelfth Respondents/Defendants submit to a statement and
debatement of account
in respect of their individual/collective
dealings with movable and immovable property of the Koos Minnaar
Trust and the subsidiary
corporate entities;
3.18.
ejecting the Second, Seventh, Eleventh and
Twelfth Respondents from the property of the Koos Minnaar Trust to
wit the Baobab Nature
Reserve.
4.
The action or actions or review proceedings
contemplated in paragraphs 1 and 2 above are to be instituted within
30 days from the
date of this order.
5.
Alternatively
,
the order in paragraphs 1 and 2 above is to remain in place until the
delivery to the Applicants by any or all of the First, Second,
Fifth,
Sixth, Seventh, Eighth and Twelfth Respondents of a written bank
guarantee or other guarantee or collateral security acceptable
to the
Applicants equivalent to the reasonable combined market value of the
helicopters.
6.
Further alternatively
,
that the order in paragraphs 1 and 2 above is issued by way of a
rule
nisi
with return date
19
January 2023
on which date the First,
Second, Fifth, Sixth, Seventh, Eleventh and Twelfth Respondents, or
any party who can show an interest
in the subject matter of the order
under paragraphs 1 and 2, may show cause why the
rule
nisi
should not be confirmed.
7.
This order is to be served on the
respondents forthwith by Deputy Sheriff.
8.
The costs of
PART
A
of these proceedings are to stand
over for adjudication in the course of
PART
B
of the proceedings as set out in the
notice of motion.
Vagueness of Ex Parte
Order
[6] It is appropriate to
point out from the onset that the aforesaid
ex parte
order is
vague. The orders in paragraphs 3, 5 and 6 are mutually contradictory
and make no sense.
In
paragraph 3 of the
ex parte
order it is stated that the attachment orders remain in force
“pending the outcome of an action or actions or review
proceedings
to be instituted by the Koos Minnaar Trust”
alternatively by other parties.
Paragraph
5 of the
ex parte
order was granted as an alternative to 3, namely that the attachment
orders remain in place until delivery of a “written
bank
guarantee or other guarantee or collateral security acceptable to the
applicants equivalent to the reasonable combined market
value of the
helicopters”.
In
paragraph 6 of the
ex parte
order an order was granted in the further alternative by way of a
rule nisi
with the return date 19 January 2023.
[7] The ex parte order is
so vague that it is unenforceable and therefore invalid. I am of the
view that by reason of its vagueness
alone, the
ex parte
order
should be set aside. Although the relief can be sought in Court
proceedings in the alternative, a Court order cannot be granted
in
the alternative.
Factual Background
[8] The factual
background relating to the bringing of the application and obtaining
the impugned
ex parte
order are common cause.
[9] The Respondents
initially launched an ex parte application under case number
7763/2021 which application served before Muller
J on 02 December
2021. The learned Judge refused to grant the order sought by the
Respondents. The matter was then removed from
the roll. The learned
Judge Muller had indicated to Counsel who appeared before him, one
Advocate Green that the Court did
not believe that the
Applicants at the time made out a case for the relief sought.
[10] On 18 January 2022
the present Respondents launched another
ex parte
application
under case number 484/2022 (the present case number) seeking the same
legal remedy as before but now under a different
case number. The
application was heard by Makweya AJ on the 15 March 2022 and the
Order was granted. This time a different Counsel,
namely Advocate
Smit appeared on behalf of the Respondents. The instructing attorney
remained the same, namely Mr. Christo Reeders.
[11] The application
under case number 484/2022 makes no mention and did not disclose to
the Court the application and the content
thereof under case number
7763/2021 that was dealt with on 02 December 2021.
[12] The present
application for rescission of the
ex parte
order under case
number 484/2022 was set down for hearing on the urgent court roll on
03 May 2022.
Coincidentally
the matter came before Muller J. It was Muller J who became aware of
the duplication of applications and drew the
attention of the parties
to the application that was heard on 02 December 2021.
[13] It is evident that
the present Respondents, represented by Christo Reeders Attorneys at
all material times, have launched the
initial
ex parte
application with which they did not succeed before Muller J. The same
parties and same attorney then proceeded to launch another
ex
parte
application under a different case number, seeking the same
legal remedy and presenting the same evidence to this Court.
What
is most disturbing is that the applicants (present Respondents) their
attorneys and Counsel did not take the Court into their
confidence by
disclosing the existence of the first application under case number
7763/2021 and the content thereof during the
proceedings of 15 March
2022 before Makweya AJ or at any other time thereafter.
This
aspect will be relevant when I consider the issue of costs at the end
of this judgment.
The conduct sought to
be interdicted
[14] The Respondents case
is that:
(1)
they had a well-founded claim for damages against the Applicant
arising out of the misuse of the assets
of the Koos Minnaar Trust;
(2)
the Applicant was dissipating his assets, in particular the
helicopter with intention of frustrating
that claim.
Contrary to the usual
case where the purpose of the interdict is to preserve an asset in
issue between the parties, in this instance
the Respondents are not
claiming a proprietary right to the Applicant’s assets; they
are merely alleging a general right
to damages and seeking to prevent
the Applicant from dissipating its assets.
I am of the view that
although there might be exceptional circumstances in which even a
bona fide
disposition of assets can be interdicted, in the
present case and on the papers the Respondents’ claim for
damages is insubstantial
and they failed to show conduct on the part
of the Applicant which would warrant the grant of an interdict of the
kind sought,
let alone on an
ex parte
basis.
[15] While it is not
correct to say that an application of this nature should never be
brought
ex parte
and without notice to the respondent, an
ex
parte
application should be heard
in camera
only in
exceptional instances where, clearly, justice could not be served
otherwise than by depriving a respondent of the right
to be heard.
The
powers of the Court are to be exercised with due caution, with all
practical safeguards against abuse, and keeping the oppressiveness
of
the order and its interference with the rights and obligations of
third parties to a minimum.
[16]
In his reasons for discharging an interim interdict in the case of
Knox
D’Arcy and Others v Jamieson and Others
[1]
Stegmann J said:
“
The
making of an order which affects an intended defendant’s
rights, in secret, in haste, and without the intended defendant
having had any opportunity to being heard, is grossly undesirable and
contrary to fundamental principles of justice. It can lead
to serious
abuses and oppressive orders which may prejudice an intended
defendant in various ways, including some ways that may
not be
foresseable”.
[17] The Appellate
Division (as it then was) agreed with the above comments by Stegmann
J in
Knox D’Arcy and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(AD)
when E M Grosskopf JA said:
“
I
agree entirely with these comments, and would add that the procedure
adopted is even more objectionable if the applicant’s
case
rests largely on untested hearsay. While it is probably not correct
to say that an application of this sort should never be
heard in
camera and without notice to the respondent,… I consider that
this should happen only in very clear cases where
justice cannot be
served otherwise than by depriving the respondent of his right to be
heard. In the nature of things such cases
would be exceptional.
Where, exceptionally, the powers to issue an order in this way are
exercised, the following warning by Stegmann
J is apposite (1994 (3)
SA at 708 B-D):
“
The
exercise of such powers must be attended with due caution, with all
practical safeguards against abuse; and with careful attempt
to
visualize the ways in which the order may prove to be needlessly
oppressive to the intended defendant. Consideration must also
be
given to the manner in which the order may interfere with the rights
and obligations of third parties, such as banks or other
debtors of
the intended defendant, or other custodians of the intended
defendant’s assets. Both the oppressiveness of the
order to the
intended defendant and its interference with the rights and
obligations of third parties must be kept to the minimum…”.”
[18] In the present case
the Respondents’ claim for the attachment of the helicopter is
neither vindicatory nor quasi-vindicatory
and therefore the
Respondents cannot obtain an interdict unless they prove that in
addition to a
prima facie
case an actual or well grounded
apprehension of irreparable loss if no interdict is granted. This
must be established by the Respondents
as an objective fact. It is
not sufficient to say that the Respondents themselves
bona fide
fears such loss.
See
Stern and
Ruskin v Appleson
1951 (3) SA 800
(WLD) at 813
.
[19] What the Respondents
herein have to establish is that the Applicant has no
bona fide
defence to the action they contemplate instituting and that,
objectively considered, there are good grounds for fearing that the
Applicant intends to make away with his assets in order to defeat the
Respondents’ claims.
In my
view, the Respondents have dismally failed to establish that the
Applicant intends to dissipate its assets, in particular
the
helicopter in question.
[20] The above
notwithstanding, the Respondents sneaked an order
ex parte
(without any notice at all to the Applicant) that the Applicant’s
property be attached and preserved pending numerous proceedings
to be
instituted that only concern disputes in juristic entities that bear
no relation at all to the Applicant save for the far-fetched
alleged
claim by the Koos Minnaar Trust that is not even party to the
proceedings.
Locus
Standi
of the Respondents
[21]
The general rule of our law is that the proper person to act in legal
proceedings on behalf of a trust is the trustee. A beneficiary
in a
trust does not have
locus
standi
to do so.
[2]
A
distinction must be drawn between actions brought on behalf of a
trust to, for instance, recover trust assets or nullify transactions
entered into by the trust or to recover damages from a third party
(like in the present case), on the one hand, and on the other
hand,
actions brought by trust beneficiaries in their own right against the
trustee for maladministration of the trust estate,
or for failing to
pay or transfer to beneficiaries what is due to them under the trust.
For
convenience of reference I shall call the former type of action the
“representative action” and the latter “the
direct
action”. The general rule applies only to the representative
action.
[22] In the present case
we have to do with the representative action wherein the general rule
is applicable.
The
present trustees of the Koos Minnaar Trust are:
(1)
Gerhard Cornelius Minnaar (First Respondent
in this application);
(2)
Laurette Minnaar (Second Respondent in this
application);
(3)
Cornelius Jacobus Minnaar (First Respondent
in the main application);
(4)
Jacobus Petrus Minnaar (Second Respondent
in the main application).
In all legal actions
and/or transactions involving the affairs of the Trust the
aforementioned trustees must act jointly.
The question arises as to
whether the two trustees, being the First and Second Respondents in
this matter have the powers to institute
a legal action against a
third party without the consent of the other two co-trustees, namely
Cornelius
Jacobus Minnaar
and Jacobus Petrus Minnaar. The general rule is that joint trustees
of a trust must act jointly.
[23] The Respondents in
the present application state that they contemplate instituting an
action on behalf of the Koos Minnaar
Trust against the Applicant and
other respondents in the main application in order to recover damages
or losses the Koos Minnaar
Trust has suffered consequent upon the
Applicant’s unlawful activities, namely illegal hunting,
capturing, selling, relocation
and trade in game species to the
detriment of the Trust.
It is
for those reasons that the Respondents obtained the impugned
ex
parte
order on 15 March 2022 for the
attachment and removal for the purpose of preservation and security
of two helicopters owned by the
Applicant and Indingo
Helicopters CC (the Fifth Respondent in the main application).
[24]
In
Goolam
Ally Family Trust t/a Textile, Curtaining and Trimming v Textile,
Curtaining and Trimming (Pty) Ltd
[3]
the applicant, a trust, applied for an interdict against the
respondent on the ground of passing off. The respondent contended
in
limine
that there were two trustees and that there was no proper proof that
both trustees had authorised the bringing of the application.
The
trust deed provides that the trustees had to act jointly in all
matters affecting the trust. There was no provision in the
trust deed
for the appointment of a managing trustee and there was no
allegation, express or implied that the co-trustee had delegated
her
duties or powers to the alleged managing trustee. The Court held that
the alleged managing trustee was not authorised to bring
the
application on behalf of the trust. The point
in
limine
was upheld and the application dismissed.
[25] I make a finding
that the whole application brought by the Respondents was a nullity
in that the two trustees did not have
the authority to institute the
proceedings on behalf of the Koos Minnaar Trust, to the exclusion of
the other two trustees.
On
this ground alone, the
ex parte
order granted on the 15 March 2022 should not have been granted, had
the learned acting Judge been alerted to the correct state
of
affairs.
See
also
Lupacchini NO and Another v
Minister of Safety and Security
2010 (6) SA 457
(SCA)
.
No grounds advanced
for launching the Application on an
Ex Parte
basis
[26] To justify an
ex
parte
order an applicant in such proceedings is required to set
out full reasons to justify such an order. In the present application
the Respondents did not make a single allegation dealing with this
requirement in their founding affidavit. There was also material
non-disclosure in their founding affidavit. It is trite that the most
invasive inroads to a litigant’s right to a fair trial
is to
obtain an order, without affording the other party an opportunity to
have its say, that is, to give effect to the
audi alteram partem
principle.
[27]
Southwood J in
Naidoo
and Another v Matlala NO and Others
[4]
had to consider the rescission of a sequestration order that was
granted on an
ex
parte
basis.
In dealing in particular with Rule 42(1) the learned Judge said the
following at paragraph 6:
“
In
general terms a judgment is erroneously granted if there existed at
the time of its issue a fact of which the Judge was unaware,
which
would have precluded the granting of the judgment and which would
have induced the Judge, if aware of it, not to grant the
judgment –
see Naingwa v Moolman NO
1993 (2) SA 508
(Tk) at 510D-G; Herbstein
and Van Winsen Vol 1 at 931. It follows that is material facts are
not disclosed in an ex parte application:
see Schlesinger v
Schlesinger
1979 (4) SA 342
(W) at 348C - 349E; National
Director of Public Prosecutions v Basson
2002 (1) SA 419
(SCA)…para
21; United Diamond Watch and Diamond Co (Pty) Ltd and others v Disa
Hotels Ltd and another
1972 (4) SA 409
(C) at 414F – 415C –
or if a fraud is committed (i.e. the facts are deliberately
misrepresented to the court) the order
will be erroneously granted.
It has been held that an order granted in an application brought ex
parte without notice to a party
who has a direct and substantial
interest in the matter is an order erroneously granted – see
Clegg v Priestley
1985 (3) SA 950
(W) at 953I – 954I.”
Southwood J proceeded to
set aside the
ex parte
order and ordered the respondents to
pay costs on the scale between attorney and client.
[28]
The heavy duties of an applicant in an
ex
parte
application
were emphasized by Cachalia JA in
Redisa
v Minister of Environmental Affairs
[5]
.
At
paragraphs 46 and 47 the following was said:
“
46.
The duty of utmost good faith, and in particular the duty of full and
fair disclosure, is imposed because orders granted without
notice to
affected parties are a departure from a fundamental principle of the
administration of justice, namely audi alteram partem.
The law
sometimes allows a departure from this principle in the interests of
justice but in those exceptional circumstances the
ex parte applicant
assumes a heavy responsibility to neutralise the prejudice the
affected party suffers by his or her absence.
47. The applicant must
thus be scrupulously fair in presenting her own case. She must also
speak for the absent party by disclosing
all relevant facts she knows
or reasonably expects the absent party would want placed before the
Court. The applicant must disclose
and deal fairly with any defences
of which she is aware or which she may reasonably anticipate. She
must disclose all relevant
adverse material that the absent
respondent might have put up in opposition to the order…”
[29] When Counsel for the
Respondents appeared before Makweya AJ on 15 March 2022 for the
ex
parte
order it was not disclosed to the Court that the matter
previously served before Muller J and that the matter was removed
from the
roll because Muller J had some reservations regarding the
propriety of the
ex parte
application.
[30] I need to emphasise
that the Judge in Motion Court relies on Counsel, especially in
ex
parte
applications and in those cases where there is no
appearance for the respondent, to inform the Court of any cases of
which the effect
may be that they are not entitled to the orders that
they seek.
It is
not only in contested cases that Counsel has a duty to direct the
Court’s attention to any relevant authority, but also
in
uncontested cases.
See
Ex Parte Hay Management Consultations
(Pty) Ltd
2000 (3) SA 501
(WLD)
at 506 – 507
.
[31]
It is trite that an
ex
parte
applicant
must disclose all material facts that might influence the Court in
deciding the application. If the applicant fails in
this regard and
the application is nevertheless granted in provisional form, the
Court hearing the matter on the return day has
a discretion, when
given the full facts, to set aside the provisional order or confirm
it. In exercising that discretion the latter
Court will have regard
to the extent of the non-disclosure; the question whether the first
Court might have been influenced by
proper disclosure; the reasons
for non-disclosure and the consequences of setting the provisional
order aside.
[6]
Conclusion
[32] On the conspectus of
evidence before me and the authorities referred to hereinabove, I am
satisfied that the Applicant has
made out a case for the setting
aside of the
ex parte
order.
The
Applicant has asked for a punitive costs order against the
Respondents based on the extreme
mala
fides
and abuse nature of the main
application.
The
launching of the
ex parte
application
constituted an incredible abuse of the Court process. The manner in
which the present Respondents implemented the
ex
parte
order only served to exacerbate
the abuse.
[33] The Applicant has
requested this Court to show its displeasure with the
mala fide
conduct of the present Respondents and grant an order for costs on a
punitive scale and
de bonis propriis
.
I oblige. The conduct of
the Respondent’s attorney of record in instituting the same
proceedings under two different case
numbers leaves much to be
desired.
[34] In the result the
following order is granted:
1.
The application is heard as an urgent
application in terms of the provisions of Rule 6(12) of the Uniform
Rules of Court and condonation
is granted to the applicant in respect
of the non-compliance with the prescribed time limits, forms and
service.
2.
The Order granted by Makweya AJ on 15 March
2022 is hereby rescinded and set aside.
3.
The Helicopter, being a Robinson R44 with
registration number ZS-RYM, being the attached helicopter, is
released from attachment
and be returned to the Applicant (Sandrivier
Helikopters (Pty) Ltd) immediately.
4.
The Respondents’ counter-application
is dismissed.
5.
The Respondents are ordered to pay, jointly
and severally, the Applicant’s costs on an attorney and client
scale, including
the costs of two Counsel. Furthermore the
Respondents’ attorney of record, Mr. Christo Reeders is ordered
to pay the Applicant’s
costs,
de
bonis propriis
on an attorney and
clients scale, jointly and severally with the Respondents, the one
paying the other to be absolved, including
the costs of two Counsel.
_________________________
E M
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION
APPEARANCES
Heard on
: 05 May
2022
Order granted
on
: 05 May 2022
Judgment delivered
on
: 17 May 2022
For the
Applicant
:
Adv PG Cilliers SC
:
Adv APJ Els
Instructed
by
: Krone & Associates Attorneys
c/o
Niland & Pretorius
For the
Respondents
: Adv JG Smit
Instructed
by
: Christo Reeders Attorneys
c/o
Kampherbeek & Pogrund Attorneys
[1]
1995
(2) SA 579 (W).
[2]
Gross
and Others v Penz
[1996] ZASCA 78
;
1996
(4) SA 617
(AD) at 624 – 625.
[3]
1989
(4) SA 985 (CPD).
[4]
2012
(1) SA 143 (GNP).
[5]
2019
(3) SA 251
(SCA) at para 45 – 52.
[6]
See
Phillips
and Others v National Director of Public Prosecutions
2003 (6) SA 447
(SCA) at para 29.