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[2022] ZALMPPHC 25
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Baphalane BA Mantserre Beneficiaries and Another v Master of the High Court (Pretoria) and Others (730/2022) [2022] ZALMPPHC 25 (19 May 2022)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO: 730/2022
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED
In the matter between:
BAPHALANE BA MANTSERRE
BENEFICIARIES
FIRST APPLICANT
ASSOCIATION
BASIMANE MARCUS
MOHALE
SECOND APPLICANT
and
THE MASTER OF THE HIGH
COURT
FIRST RESPONDENT
(PRETORIA)
BAPHALANE BA MANTSERRE
COMMUNITY
SECOND
RESPONDENT
DEVELOPMENT TRUST
SHADRACK SELLO
RAMOKOKA N.O
THIRD RESPONDENT
THABO SIMON SELEKE
N.O
FOURTH RESPONDENT
ANNA MONALE RANGWETSI
N.O
FIFTH RESPONDENT
ITSHEGENG ADELAIDE
MAITSAPO N.O
SIXTH RESPONDENT
PINKY DINEO PETA
N.O
SEVENTH RESPONDENT
BAPHALANE BA MANTSERRE
INVESTMENT
EIGHTH RESPONDENT
BAPHALANE SIYANDA
CHROME COMPANY
NINTH RESPONDENT
BAPHALANE SERVICE
COMPANY
TENTH RESPONDENT
CHROMINET (PTY)
LTD
ELEVENTH RESPONDENT
ACACIA TRADING (PTY)
LTD
TWELFTH RESPONDENT
AUTOMATIC TRADING
(PTY) LTD
THIRTEENTH RESPONDENT
OAKWOOD
(PTY) LTD
FOURTEENTH
RESPONDENT
BAPHALANE COMMUNITY
MINERALS
FIFTEENTH RESPONDENT
STANDARD BANK NORTHAM
BRANCH
SIXTEENTH RESPONDENT
JUDGMENT
MAKGOBA
JP
[1] On 12 May 2022 I
granted the following order and indicated to the parties that my
written judgment will follow in due course:
1.
The application is heard as an urgent
application in terms of Rule 6(12) of the Rules of Court and that the
rules relating to form,
time periods and service are dispensed with.
2. The 16
th
Respondent (Standard Bank, Northam Branch) is directed and ordered to
provide the Third to Seventh Respondents in their capacity
as the
Trustees of the Second Respondent with full access to the Second
Respondent’s Bank accounts held at the 16
th
Respondent’s Northam branch pending the outcome of the
application brought by the Applicants under the above case number.
3. The 16
th
Respondent is interdicted from providing the First and Second
Applicants, including the Curator purportedly appointed in terms
of
an order of this Court dated 27 January 2022 with access to the Bank
Accounts of the Second Respondent held at the 16
th
Respondent’s Northam branch pending the determination of an
application brought by the First and Second Applicants under
the
above case number.
4. The First and Second
Applicants’ counter-application is dismissed with costs.
5. The First and Second
Applicants are to pay the costs of this application jointly and
severally, such costs to include the costs
of Senior Counsel.
[2] What follows are my
reasons for the order.
[3] The Third to Seventh
Respondents have launched an urgent application in terms of which
they sought interdictory relief, including,
inter alia
, an
order that the Standard Bank (16
th
Respondent) allow the
Third to Seventh Respondents access to the bank account of the Second
Respondent (“the Trust”).
The Third to Seventh
Respondents are the trustees of the Baphalane Ba Mantserre Community
Development Trust, the Second Respondent
in this application.
[4] The Applicants have
launched an urgent Counter-Application in terms of which they also
seek interdictory relief, including,
inter alia
, that Mr. J F
Baloyi be granted access to the bank account of the Trust, held with
the Standard Bank, the Sixteenth Respondent.
[5] For the sake of
convenience I shall in both application and counter-application refer
to the Third to Seventh Respondents as
“the Trustees” and
to the First and Second Applicants as “the Applicants”.
Factual
Background
[6] On 24 January 2022
the Applicants launched an urgent
ex parte
application in
terms of which they sought certain extensive and far-reaching relief,
which relief impacted on the powers of the
Trustees. On 27 January
2022 Mangena AJ granted all of the relief sought in terms of the
Notice of Motion in the
ex parte
application. Of relevance to
the present proceedings Mangena AJ granted
inter alia
, the
following order:
6.1. The 3
rd
to 7
th
Respondents are suspended with immediate effect
from their positions as Trustees of the 2
nd
Respondent and
are interdicted from dealing with the Trust and its properties in any
manner.
6.2. The
banking account(s) of the Trust and all the companies of the Trust
held by the 16
th
Respondent and any other bank are
unfrozen and open to be utilised by the curator for the purposes of
executing his duties.
6.3. The 16
th
Respondent (Standard Bank Northam) or any bank that holds the funds
of the Trust and its companies, upon being served with this
order,
are interdicted from calling the suspended Trustees to change the
signatures and ordered to hand over the Trust account
to the Curator.
6.4. The 16
th
Respondent is ordered, within two days of receiving this order, to
consider the appointed Curator as a signatory of these banking
accounts and allow him immediate access to the funds of the Trust and
its companies without delay.
6.5. That
Jimmy Frans Baloyi is appointed as
curator bonis
with the
purpose of administering the affairs of the 2
nd
Respondent
(the Trust) pending the adjudication of Part B Application.
6.6. The
Curator is authorised to administer the Trust for a period up to the
adjudication of Part B or up to the time
when the current Trustees
become removed or reinstated by order of this Court.
6.7. The
Curator is authorised to operate the banking account of the Trust in
order to discharge the existing obligation
of the Trust.
[7] The relief granted,
as shown above, impacted on the status of the Trustees and granted
full access to the bank accounts of the
Baphalane Ba Mantserre
Community Development Trust (“the Trust”) to a person
nominated by the Applicants, namely Jimmy
Frans Baloyi.
The
ex parte
order granted by Mangena AJ is to the effect that the appointed
Curator, Mr. Baloyi could utilise the monies held in the Trust’s
bank account and that the 16
th
Respondent (Standard Bank) is interdicted from allowing the Trustees
access to the bank account.
[8] On 21 February 2022
the Trustees who are the duly appointed trustees of the Trust
launched an application for the reconsideration
of the Order granted
by Mangena AJ in terms of Rule 6(12)(c) of the Uniform Rules of
Court.
In
the application for the reconsideration of the
ex
parte
order the Trustees sought the
dismissal of the
ex parte
application.
The
Reconsideration Application was heard by Makoti AJ on 01 March 2022,
and on 03 March 2022, Makoti AJ set aside the
ex
parte
order granted by Mangena AJ and
dismissed the
ex parte
application.
[9] On
04 March 2022 the Applicants filed a Notice of Appeal
[1]
against the order of Makoti AJ.
It is
common cause that this Notice of Appeal was served and filed without
the Applicants having first made an Application for Leave
to Appeal.
The
Applicants and their legal representatives believe, albeit
incorrectly, that the filing of a Notice of Appeal suspended the
order of Makoti AJ and therefore revived the order granted by Mangena
AJ.
[10] In the midst of the
two Court orders referred to above, the Standard Bank adopted a
neutral and sensible approach and recorded
that it would not allow
any transactions on the Trust’s bank account or allow any party
access to the bank account. Instead
Standard Bank advised that any
party that wished to gain access to the Trust’s Bank Account
would have to obtain a Court
Order in such regard.
[11] On 11 March 2022 the
Applicants launched an urgent application on an extremely urgent
basis and set it down for hearing on
15 March 2022. The Trust
Respondents were afforded less than a Court day and a half to oppose
and file their opposing papers.
The
urgent application was struck from the roll for lack of urgency by
Pillay AJ on 18 March 2022.
It is
common cause that the Applicants have not pursued such application in
the ordinary course, despite the procedural fact that
such
application is still pending.
Interdictory relief
sought by the Trustees
[12] In the present
application the Trustees seek an order that the Standard Bank allow
them access to the bank account of the Trust
and further that the
Standard Bank be interdicted from providing the Applicants with
access to the Bank Accounts of the Trust.
Both
orders are sought as interim orders pending the outcome of the
application brought by the Applicants under the same case number,
that is Part B of the Applicant’s Notice of Motion dated 24
January 2022.
[13] For more than a
century our law has authoritatively required an applicant seeking a
final interdict to:
1. demonstrate a clear
right;
2. show an injury in the
form of irreparable harm actually committed or reasonably
apprehended; and
3. the absence of an
alternative remedy.
See
Setlogelo v
Setlogelo
1914 AD 221
at 227
.
The fourth requirement,
namely, the balance of convenience is applicable in the present
proceedings as the order sought is
of an interim nature.
The granting of an
interim interdict pending an action is within the discretion of the
Court. In exercising its discretion the Court
weighs,
inter alia
,
the prejudice to the applicant, if the interdict is withheld, against
the prejudice to the respondent if it is granted.
The
factors to be considered for interim relief are not considered
separately or in isolation but in conjunction with one another
in
determining whether the Court should exercise its overriding
discretion in favour of the granting of interim relief.
[2]
[14] The Trustees are the
duly appointed trustees of the Trust, and accordingly have a clear
right to act in the best interests
of the Baphalane Ba Mantserre
Community, including, when necessary, incurring expenses on behalf of
the Community, which expenses
are to be funded from the Trust’s
funds, which in this instance, are held with the Northam Branch of
the Standard Bank. The
Trustees not only have a clear right but also
an obligation to act in the best interests of the Community. The
Trustees have a
clear right to perform their functions without
hindrance or interference. Accordingly, the Trustees have shown that
they have a
clear right, or at the very least, a
prima facie
right to the relief sought.
[15]
The Applicants have already stated in their papers that they intend
to disburse monies from the Trust bank account.
[3]
The Trustees have a real and reasonable fear that Trust’s funds
held in the Trust’s bank account will be depleted if
Mr.
Baloyi is not interdicted from gaining access to such bank account.
Mr. Baloyi is not a trustee but an outsider who is not
even
accountable to the Master of the High Court unlike the Trustees in
the present matter. In any event the appointment of Mr.
Baloyi as a
curator has been set aside by order of Makoti AJ on 03
March 2022.
In my
view the Trustees have demonstrated that they have a well-founded
apprehension of irreparable harm, should the relief sought,
not be
granted.
[16] The balance of
convenience favours the granting of the relief sought in the present
application. The trustees hold letters
of authority issued by the
Master and are therefore accountable to the Master in the
administration of the Trust funds. Conversely,
if Mr. Baloyi is
granted access to the Trust’s bank account, there is no
guarantee that he would account to the Master or
any authority for
that matter.
There
is no inconvenience to the Applicants as they are already
beneficiaries that benefit from the conduct of the Trustees.
[17] I
agree with the Trustees’ Counsel’s submission that there
is no other remedy available to the Trustees that would
protect the
Trust’s funds other than seeking the relief in this
application. A damages claim would be hollow, even if a damages
claim
was available.
[4]
[18] I make a finding
that the Trustees have made out a case for the relief sought, hence I
granted the order set out in paragraph
[1] above, on 12 May 2022.
Defence raised by the
Applicants
[19] The Applicants
raised a point
in limine
relating to the present Application
being an abuse of process.
The
allegations of abuse are based on the Applicants’ contention
that rather than opposing the urgency of the application
launched by
the Applicants on 11 March 2022 (which application was struck from
the roll by Pillay AJ on 18 March 2022), the Trustees
should rather
have raised a Counter-Application.
There
is no merit in this contention.
It is
a fact that the Trustees opposed all the relief sought, and pointed
out the lack of urgency as one of the grounds of opposition.
In any
event the Applicants did not provide the Trustees with sufficient
time to launch a Counter-Application, even if the Trustees
wanted to
do so, given the unreasonable truncated time frames afforded to the
Trustees in such urgent application.
[20] The Applicants
contend that since they have filed a Notice of Appeal on 04 March
2022 such notice of appeal suspends the order
of Makoti AJ in terms
of
Section 18
of the
Superior Courts Act 10 of 2013
.
The
Applicants have been advised that the suspension of the Order of
Makoti AJ revives the Order of Mangena AJ.
Such
advice provided to the Applicants is clearly wrong in law.
[21] Firstly, the Notice
of Appeal filed by the Applicants on 04 March 2022 is invalid. This
is so because the Applicants proceeded
to file a Notice of Appeal
before they could apply and be granted leave to appeal by Makoti AJ.
There is no Application for Leave
to Appeal filed by the Applicants
and granted by Makoti AJ.
In
the circumstances there is no appeal pending against the Order of
Makoti AJ to date hereof.
[22] Secondly, even if
there were to be a proper and valid Notice of Appeal filed, this does
not assist the Applicants as regards
the suspension of the Order
of Makoti AJ and the revival of the Order of
Mangena AJ.
[23]
In the matter of
Quits
Aviation Services Limited v Empire Engineerings (Pty) Ltd and
Others
[5]
Van der Linde J considered the suspension and revival of an Order.
The Court held that the filing of a Notice of Appeal against
a
reconsideration order (like in the present case) does not suspend the
reconsideration Order and accordingly does not resuscitate
the
ex
parte
order.
Also
in the earlier matter of
MV
Snow Delta: Discount Tonnage Ltd v Serva Ship Ltd
[6]
it was held that the filing of a Notice of Appeal against the
reconsideration order setting aside an order obtained
ex
parte
does not revive the
ex
parte
order. The Court found that even the grant of leave to appeal would
not revive such an
ex
parte
order.
This
decision was upheld by the Supreme Court of Appeal.
[7]
See also:
Chrome Circuit Audiotronics (Pty) Ltd v Recton European
Holdings Inc
2000 (2) SA 188
(W) at 190 E – F
;
and
Motor
Vessel Asturcon v Afriline Denizcilik Veg EMI Kiralama Ltd
2015 JDR 2386 (WCC)
.
[24] In the circumstance
it is trite that an application for leave to appeal or Notice of
Appeal against a reconsideration Order
(by Makoti AJ) that has set
aside an order granted
ex parte
does not suspend the
reconsideration order and does not revive the
ex parte
Order
(by Mangena AJ).
On
this basis alone, the relief sought by the Applicants in their
Counter-Application (to be dealt with hereunder) cannot be granted.
There is simply no purpose in granting interim relief pending an
appeal that cannot succeed.
Applicants’
Counter-Application
[25] The Applicants
brought a Counter Application against the Third to Seventh
Respondents (the Trustees) as well as the Standard
Bank Northam
Branch. The latter is cited as the Eighth Respondent in such
Counter-Application.
[26] Essentially the
Applicants seek the following orders against the Respondents:
26.1. That the Third to
Seventh Respondents remain suspended as Trustees of the Second
Respondent pending the Applicants’
appeal of the order granted
in favour of the Trustees by Makoti AJ on 04 March 2022.
26.2. That the Third to
Seventh Respondents be interdicted from communicating with the Bank
and accessing the Trust Banking Account
pending the adjudication of
appeal in Case No: 730/2022.
26.3. That the Eighth
Respondent (Standard Bank) be compelled to allow the appointed
curator (Mr. Jimmy Frans Baloyi) access to
the Trust Bank Account for
the administration thereof as per court order granted on the 27
th
of January 2022 for the benefit of the community.
26.4. That the Curator be
permitted by this Court to procure a service provider who will fix
the water crisis of the beneficiaries
of the Second Respondent
immediately after the granting of this order.
26.5. That the Eighth
Respondent be ordered to provide bank statements to the Curator for
the period between the 1
st
of January 2022 and 27
th
of January 2022 within 5 days of receipt of this order.
[27] It is clear from the
orders sought by the Applicants in the Counter-Application that they
still rely on the existence of the
ex parte
order obtained on
27 January 2022. To that extent, the Applicants are misguided. As a
matter of fact the
ex parte
order was reconsidered by Makoti
AJ and their
ex parte
application was dismissed on 03 March
2022.
The
purported Notice of Appeal against the dismissal of the
ex
parte
application is invalid as stated
earlier in paragraph [21] hereabove.
In
any event their noting of the appeal against the order of Makoti AJ
does not revive the
ex parte
order granted by Mangena AJ on 27 January 2022. This issue has been
dealt with in paragraphs [22] to [24] of this judgment.
[28] Clearly, the
appointment of Mr. Jimmy Frans Baloyi as a Curator has been set aside
by virtue of the dismissal of the
ex parte
application by
Makoti AJ on 03 March 2022.
Consequently,
there is no basis for the Counter-Application in so far as same
relates to Mr. Baloyi as a curator. Under no circumstances
can this
Court grant Mr. Baloyi access to the Trust’s Bank Account.
[29] In addition to the
relief sought in the Counter-Application, the Applicants seek to
include further relief, by way of an intended
amendment to the Notice
of Motion, filed on 11 May 2022, a day before the hearing of this
matter. In their intended amendment the
Applicants seek to add a
prayer as follows:
“
3.
Removing the 3
rd
to the 7
th
Respondents as Trustees for failure to account to the beneficiaries
since 2017, and for conflict of interest.”
The Respondents/Trustees
objected to the amendment. The intended amendment is
refused/dismissed for failure to comply with Rule
28 of the Uniform
Rules of Court.
[30] The relief sought by
the Applicants in the Counter-Application is the same relief sought
by the Applicants in the
ex parte
Application (which was
dismissed by Makoti AJ on 03 March 2022) and in the Urgent
Application which was struck from the roll by
Pillay AJ on 18 March
2022.
The dismissal of the
ex
parte
order by Makoti AJ constitutes
res judicata
. Insofar
as the Applicants have not finalised the Urgent Application of 18
March 2022, there is clearly pending litigation between
the same
parties, based on the same cause of action and in respect of the same
subject matter.
Therefore, a special plea
of
lis pendens
applies in this matter and the relief sought in
the Counter-Application cannot be pursued herein. The
Respondents/Trustees have,
correctly in my view, raised the defences
of
lis pendens
and
res judicata
.
[31]
In the matter of
Nestle
(SA) (Pty) Ltd v Mars Incorporated
[8]
it was stated as follows:
“
The
defence of lis alibi pendens shares features in common with the
defence of res judicata because they have a common underlying
principle which is that there should be finality in litigation. Once
a suit has been commenced before a tribunal that is competent
to
adjudicate upon it the suit must generally be brought to its
conclusion before that tribunal and should not be replicated (lis
alibi pendens). By the same token the suit will not be permitted to
be revived once it has been brought to its proper conclusion
(res
judicata). The same suit, between the same parties, should be brought
only once and finally. There is room for the application
of that
principle only where the same dispute, between the same parties, is
sought to be placed before the same tribunal (or two
tribunals with
equal competence to end the dispute authoritatively).”
[32] In my view the whole
Counter-Application brought by the Applicants is flawed and same is
doomed to fail. It is on that basis
that I dismissed the
Counter-Application in my order of the 12
th
May 2022.
Conclusion
[33] It is for all the
above reasons that I granted an order in favour of the Trustees and
dismissed the Applicants’ Counter-Application
on the 12
th
of May 2022.
_________________________
E M
MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO DIVISION
APPEARANCES
Heard on
: 12 May 2022
Order granted
on
: 12 May 2022
Judgment delivered
on
: 19 May 2022
For the
Applicants
:
Adv T Maluleke
Instructed
by
: Shinyori Chauke Inc
c/o
FR Chauke Attorneys
For the 2
nd
to 7
th
Respondents
: Adv G Nel SC
Instructed
by
: Fasken Inc
c/o
Pratt Luyt & De Lange Attorneys
[1]
See
Annexure
FA7
to the Trustees’ Founding Affidavit at page 51 of the
paginated papers.
[2]
Eriksen
Motors (Welkom) Limited v Protea Motors Warrington & Another
1973
(3) SA 685
(A) at 691 E – G;
Spur
Steak Ranches Limited & Others v Saddles Steak Ranch Claremont
and Another
1996 (3) SA 714
(C) at
714 D - F.
[3]
Founding
Affidavit
,
paragraph 59, at page 20 of the paginated papers.
[4]
Founding
Affidavit
,
paragraphs 78 – 81 at page 23 of the paginated papers.
[5]
(202198/2016)
[2016] ZAGPJHC 218 (17 August 2016) at paragraphs [7] to [13].
[6]
1996
(4) SA 1234
(C) at 1235 A – E.
[7]
See
MV
Snow Delta Serva Ship Ltd v Discount Tonnage Ltd
2000 (4) SA 746 (SCA).
[8]
[2001]
4 ALL SA 315
(SCA) at 319.