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[2022] ZANCHC 48
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Taljaard and Another v Land and Agricultural Development Bank of South Africa and Others (1094/2022) [2022] ZANCHC 48 (15 August 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 1094/2022
Heard:
05/08/2022
Date
delivered: 15/08/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
SHANIE
TALJAARD
(Previously
Fourie, ID No: [....])
1
st
Applicant
CURO
CONSULTANCY (PTY) LTD
2
nd
Applicant
and
THE
LAND AND AGRICULTURAL DEVELOPMENT BANK
OF
SOUTH AFRICA
1
st
Respondent
MINISTER
OF TRADE AND INDUSTRY
2
nd
Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
3
rd
Respondent
COMPANIES
AND INTELLECTUAL PROPERTY
COMMISSION
(CIPC)
4
th
Respondent
JOCHEN
ECKHOFF N.O.
(in
his capacity as provisional co-liquidator of Project Multiply
(Pty)
Ltd (in provisional liquidation) (Reg No: 1993/005325/07)
and
Velvetcream 15 (Pty) Ltd (in provisional
liquidation)
Reg No: 2005/033276/07); and in his capacity as
provisional
co-trustee of the Merwede Trust (IT1534/98) in his
capacity
as co-trustee of the insolvent estate of Carel Aaron
van
der Merwe)
5
th
Respondent
DEON
MARIUS BOTHA N.O.
(in
his capacity as provisional co-liquidator of Project Multiply
(Pty)
Ltd (in provisional liquidation) (Reg No: 1993/005325/07)
and
in his capacity as co-trustee of the insolvent estate of Carel
Aaron
van der Merwe)
6
th
Respondent
JOHANNES
ZACHARIAS HUMAN MULLER N.O.
(in
his capacity as provisional co-liquidator of Velvetcream 15
(Pty)
Ltd (in provisional liquidation) (Reg No: 2005/033276/07;
and
in his capacity as provisional co-trustee of the Merwede
Trust
(IT1534/98)
7
th
Respondent
FUSI
PATRICK RAMPOPORO N.O.
(in
his capacity as provisional co-liquidator of Project Multiply
(Pty)
Ltd (in provisional liquidation)
(Reg
No: 1993/005325/07)
8
th
Respondent
SIMON
MALEBO RAMPOPORO N.O.
(in
his capacity as provisional co-liquidator of Velvetcream 15
(Pty)
Ltd (in provisional liquidation)
(Reg
No: 2005/033276/07)
9
th
Respondent
ANGELINE
POOLE N.O.
(in
her capacity as provisional co-trustee of the Merwede
Trust
(IT1534/98)
10
th
Respondent
CATHARINA
SUSANNE VAN DER MERWE N.O.
(in
her capacity as sole remaining trustee of the Merwede
Trust
(IT1534/98)
11
th
Respondent
PHILEMON
TATENDA MAWIRE N.O.
(in
his capacity as co-trustee of the insolvent estate of
Carel
Aron van der Merwe)
12
th
Respondent
AGRI
SOUTH AFRICA NPC
13
th
Respondent
MASTER
OF THE HIGH COURT, KIMBERLEY
14
th
Respondent
MASTER
OF THE HIGH COURT, CAPE TOWN
15
th
Respondent
AFFECTED
PARTIES OF PROJECT MULTIPLY (PTY) LTD
AS
PER LIST ANNEXED HERETO, MARKED “A”
16
th
Respondent
AFFECTED
PARTIES OF VELVETCREAM 15 (PTY) LTD
AS
PER LIST ANNEXED HERETO, MARKED “B”
17
th
Respondent
AFFECTED
PARTIES OF THE MERWEDE TRUST AS PER
THE
LIST ANNEXED HERETO, MARKED “C”
18
th
Respondent
AFFECTED
PARTIES OF CAREL ARON VAN DER MERWE
AS
PER LIST ANNEXED HERETO MARKED “D”
19
th
Respondent
In
re:
Case
No: 963/2021
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH AFRICA
Applicant
and
JACQUES
DU TOIT N.O.
(in
his erstwhile capacity as
Business
Rescue Practitioner of Project Multiply (Pty)
Ltd
(in provisional liquidation
1
st
Respondent
PROJECT
MULTIPLY (PTY) LTD
(in
provisional
Liquidation)
(Reg No: 1993/005325/07)
2
nd
Respondent
THE
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
(CIPC)
3
rd
Respondent
ALL
AFFECTED PARTIES
4
th
Respondent
AND
in re:
Case
No: 964/2021
In
the matter between:
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH AFRICA
Applicant
and
JACQUES
DU TOIT N.O.
(in
his erstwhile capacity as
Business
Rescue Practitioner of Velvetcream 15 (Pty)
Ltd
(in provisional liquidation)
(Reg
No: 2005/033276/07)
1
st
Respondent
VELVETCREAM
15 (PTY) LTD
(in
provisional liquidation)
(Reg
No: 2005/033276/07)
2
nd
Respondent
THE
COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION
(CIPC)
3
rd
Respondent
ALL
AFFECTED PARTIES
4
th
Respondent
AND
in re:
Mahikeng
Case No: M557/2021/27
Kimberley
Case No: 2436/2021
THE
LAND AND AGRICULTURAL DEVELOPMENT
BANK
OF SOUTH AFRICA
Applicant
and
CAREL
ARON VAN DER MERWE (SNR) N.O.
1
st
Respondent
CATHARINE
SUSANNA VAN DER MERWE N.O.
2
nd
Respondent
CAREL
ARON VAN DER MERWE (JNR) N.O.
3
rd
Respondent
(in
their capacities as co-trustees of the Merwede
Trust
(IT 1534/98)
JUDGMENT
Mamosebo
J
[1]
The applicants, Shanie Taljaard and Curo Consultancy (Pty) Ltd, are
seeking relief
divided into three parts:
1.1
Part A –
Intervention and Joinder
1.
That the First and Second Applicants be joined as First and Second
Intervening Parties in the winding-up
applications of Project
Multiply and Velvetcream, brought by THE LAND AND AGRICULTURAL
DEVELOPMENT BANK OF SOUTH AFRICA (“Land
Bank”), under
case numbers 963/2021 and 964/2021;
2.
That the First and Second Applicants be joined as First and Second
Intervening Parties in the sequestration
application of the Merwede
Trust, brought by Land Bank, under case number 2436/2021;
3.
That those parties that choose to oppose this application be ordered
to pay the costs of this application.
1.2
Part B – Constitutional Challenge
4.
Declaring that the differentiation brought about by the adoption of
Chapter 6 of the Companies Act in
the applicability of business
rescue proceedings between companies and close corporations on the
one hand, sole proprietorships
and natural persons and trusts, on the
other, is arbitrary, contrary to section 9(1) of the Constitution and
invalid.
5.
Declaring section 1 of the Companies Act 71 of 2008 (“the Act”)
as unconstitutional in that
it unfairly discriminates between:
5.1
juristic persons which are trusts, on the one hand and juristic
persons such as companies and close corporations, on the other hand,
as there is no justification for the omission of a trust from
business rescue proceedings, in circumstances where the trust is in a
subsidiary relationship to a company or companies and that
company or
any one or more of those companies have commenced business rescue
proceedings.
5.2
natural persons, on the one hand and juristic persons such
as
companies and close corporations, on the other hand, as there is no
justification for the omission of a natural person from
business
rescue proceedings, in circumstances where the natural person is in
an inter-related and subsidiary relationship to a
company or
companies and that company or any or more of those companies have
commenced business rescue proceedings.
6.
Suspending the declarations made in paragraphs 4 and 5 above for a
period of two years for Parliament
to correct the defect.
7.
Directing that, until such time as Parliament corrects the defect, an
extension of the definition of
‘companies’ in section 1
of the companies Act, is granted, by a reading-in of the following
subsection immediately
after the subsection (c) thereof:
“
or
(d)
for purposes of the application of chapter 6 of the act,
a trust
and/or natural person which are/is in an inter-related and subsidiary
relationship with a company or companies, but only
in so far as that
company or any or more of those companies have commenced business
rescue proceedings, and will the ‘trustees
of the trust’
have a similar meaning to ‘board of a company’ and will
such a natural person be equated to a ‘board
of company’.
”
8.
That those parties that choose to oppose this application be ordered
to pay the costs of this application.
1.3
Part C – Business Rescue
9.
An order dismissing the winding-up and sequestration applications of
Project Multiply, Velvetcream and
Merwede Trust.
10.
An order placing Project Multiply, Velvetcream, Merwede Trust and Van
der Merwe under supervision and that business rescue
proceedings be
commenced with in terms of Section 131(1) of the Companies Act 71 of
2008 (“the
Companies Act&rdquo
;);
11.
An order appointing Jacques du Toit and a business rescue
practitioner nominated by Land Bank, as the joint business rescue
practitioner to conduct the business of Project Multiply,
Velvetcream, Merwede Trust and Van der Merwe with all powers and
duties
entrusted to them in terms of the
Companies Act;
[2
]
The Land Bank, setting the matter down for 05 August 2022, filed an
affidavit serving
a dual purpose, first as an answering affidavit to
the main application and as an urgent counter-application seeking a
declarator
that the business rescue as proposed by the applicants to
the present application is not achievable on reasonably objective
grounds.
The
applicants then filed a notice in terms of Rule 30(1) of the Uniform
Rules of Court
objecting to the method adopted by the Land Bank in
bringing the counter-application.
[3]
On 05 August 2022, the parties before me were the following: the
applicants in the
main application, Ms Shanie Taljaard and Curo
Consultancy (Pty) Ltd, represented by Adv. J De Vries. The
first respondent
who is also the applicant in the
counter-application, the Land and Agricultural Development of South
Africa, represented by Adv.
FH Terblanche SC assisted by Adv. S
Tsangarakis. The second respondent, the Minister of Trade and
Industry, represented by
Adv. W Coetzee SC. The 5
th
to 10
th
and 12
th
respondents (the provisional
liquidators and trustees) represented by Adv. U Van Niekerk while
Adv. D Jankowitz was on a brief
by Transvaal Landbou Unie (TLU).
The
amicus curiae
[4]
Mr Jankowitz submitted that the
amicus
application papers were
only served on the other parties on the eve of these proceedings, 04
August 2022, and the original was
definitely not in the court file.
According to Mr Jankowitz, a formal application for admission
of TLU as
amicus
was to be heard on 19 August 2022 in the
unopposed motion court. It is inexplicable why the application
by TLU would only
be set down for the 19
th
of August 2022
when TLU was already aware of the urgent set down of the matter.
[5]
The Rule 16 notice by TLU is already five (5) days out of time. Mr
Terblanche
SC submitted that the approach adopted by TLU in this
application is, in itself, prejudicial to the Land Bank and urged me
to proceed
with the application and not entertain the submissions
made by Mr Jankowitz and the Rule 30 application but hear the
counter-application.
Mr Coetzee SC also intimated that while
not having any stance on the application by TLU, the second
respondent also received
TLU’s papers on the eve of this
application and did not have sufficient time to consider the
application. Counsel also
reiterated the lateness of the TLU
application. Mr De Vries not only took a shot at the Land Bank
contending that it filed
its answering affidavit one day late but
also argued that the Land Bank enrolled the application which would
otherwise have afforded
the applicants 10 days to file their papers.
Mr De Vries further submitted that this application is of
national importance
and TLU has a constitutional right to be heard
and should be afforded the opportunity to file its submissions.
Counsel disagreed
with the submission that TLU’s
application was five days late as the return date remains 11 October
2022. Ms Van Niekerk
submitted that the liquidators and the
trustees were not served with the TLU application. Counsel
intimated that TLU should
have brought their application on an urgent
basis and filed a proper condonation application. Though the
liquidators’
and the trustees’ application hinges on the
success of the counter-application, they are not receiving
cooperation from the
applicants and Mr Van der Merwe who has since
been finally sequestrated in 2021.
[6]
It was unclear from Mr Jankowitz whether he was applying for a
postponement and if
so, why a substantive application was not brought
by TLU because it is now settled that a postponement is an indulgence
that a
party is not automatically entitled to
[1]
.
[7]
A brief background is necessary. On 08 June 2022 the applicants
under Case No
1094/22, Ms Shanie Taljaard and Curo Consultancy,
brought an application raising constitutional issues. They
filed a notice
in terms of Rule 16A to the registrar, the purpose of
which was to bring the constitutional challenge to the attention of
persons
who may be affected by, or who may have a legitimate interest
in, the case
[2]
. The rule
enables such persons to seek to intervene either as a party or as
amicus
curiae
.
[8]
TLU SA, a national non-profit agricultural organisation, is seeking
consent to enter
as
amicus curiae
in this matter; to be given
consent to lodge written submissions; and consent to present oral
submissions at the hearing of the
matter. Only the applicants
served and filed their written consent for TLU SA to be admitted as
the
amicus curiae
.
[9]
Rule 16A makes provision for a party who opposes an application for
admission as
amicus curiae
to file an answering affidavit
clearly and succinctly setting out the grounds of opposition. What
seems to be disturbing
and must be discouraged from continuing is
service on the eve of the hearing or no service at all on the other
parties, which,
in my view, has deprived others of meaningful
engagement in the process of complying with Rule 16A.
[10]
The following pronouncements by the Constitutional Court in
Ex
Parte Institute for Security Studies: In Re S v Basson
[3]
are
instructive:
“
[7]
In the exercise of its discretion whether or not to admit a person as
an amicus this Court will have regard
to the principles that govern
the admission of an amicus. These principles are whether the
submissions sought to be advanced
are relevant to the issues before
the Court, will be useful to the Court and are different from those
of the other parties. As
Rule 10(7) indicates, the submission
should raise new contentions and should ‘not repeat any matter
set forth in the argument
of the other parties.’ It is
the duty of this Court, in the exercise of its discretion, to ensure
that these principles
are satisfied before a person can be admitted
as an amicus. Where these principles are not satisfied a person
cannot be admitted
as an amicus. It follows therefore that this
Court is not bound to admit a person who has obtained written consent
of all
the parties. This Court may refuse to admit such a
person where the underlying principles referred to above are not
satisfied.
Nor does the fact that a person was admitted as an
amicus curiae in the Court below matter.”
[11]
Undoubtedly, the failure by TLU to make this application in these
proceedings has contributed
in the matter not being ripe for hearing.
It follows that in order to afford TLU opportunity to make
submissions in line
with the principles outlined in the
Basson
matter the application will be deferred to another date for
hearing. Leave will, however be granted to TLU SA to file its
written submissions not to the unopposed motion court but to form
part of these proceedings to enable this court to assess the
application properly and evaluate the submissions sought to be
advanced in the light of the principles governing the admission of
an
amicus
.
The
Rule 30(1) application: irregular proceedings
[12]
As already alluded to earlier, the Land Bank filed an affidavit
serving a dual purpose, first
as an answering affidavit to the main
application and as an urgent counter-application seeking a declarator
that the business rescue
as proposed by the applicants to the present
application is not achievable on reasonably objective grounds.
The applicants
then filed a notice in terms of Rule 30(1) of the
Uniform Rules of Court objecting to the method adopted by the Land
Bank in bringing
the counter-application. A second Rule 30
application was also filed, on the eve of the hearing, I must add,
against the
liquidators for also allegedly taking an irregular step.
[13]
In the Notice of Motion dated 03 August 2022 the applicants are
seeking the following relief:
13.1
that Land Bank’s Notice of Motion instituting its counter
application dated 28 June 2022 be set aside and that
case number
1094/2022 be struck from the roll;
13.2
that Land Bank be ordered to pay the applicants’ costs on
attorney and client scale, inclusive of costs of two
counsel where
used;
13.3
alternatively to 13.1 and 13.2 above, an order postponing the
counter-application to 11 October 2022 to be heard with
the main
application (case number 1094/2022) and the liquidation and
sequestration applications (963/2021; 964/2021 and 2436 of
2021);
13.4
afford the applicants a period of 15 court days from the date of this
order to deliver their answering affidavit(s) to
the counter
application and their replying affidavit in the main application;
13.5
that Land Bank be ordered to pay the applicants’ costs on
attorney and client scale, inclusive of the costs of
two counsel
where used.
[14]
Mr De Vries conceded that the business rescue must be dealt with
expeditiously. Counsel
relied on
Engen
Petroleum Ltd v Multi Waste (Pty) Ltd and Others
[4]
which
basically deals with the notification requirements to all affected
parties and the type of application when applying for business
rescue
in terms of
s 131
of the
Companies Act. Mr
De Vries also relied
on
Taboo
Trading 232 (Pty) Ltd v Pro Wreck Scrap Metal CC and Others
[5]
which deals with the effect of
s 131
(6) of the
Companies Act
regarding
the suspension of liquidation proceedings. In
Standard
Bank of South Africa Ltd v Gas 2 Liquids (Pty) Ltd
[6]
the Court
pronounced
that there must be service of the application for business rescue and
proper notification as required in terms of s 131
of the Act before
it can be said that the application has been ‘made’ and
that the liquidation proceedings have been
suspended. The
applicants aver that although the application was brought on the
grounds of urgency no reasons are set out
in Land Bank’s
affidavit supporting urgency; there is also a
premature set-down of the matter as it is
tantamount to a variation
of the Court orders taken by agreement granted by Mamosebo J on 10
May 2022. Counsel submitted
that Land Bank’s
counter-application should be set aside with costs based on these
reasons alone. Mr De Vries further
submitted that the
applicants did not file their replying affidavit to the application
as that would have resulted in a further
step being taken. Ms
Taljaard has paid senior counsel who could not attend the proceedings
because the date did not suit
him. Should the court find the
step taken by the Land Bank not to be an irregular step then the
applicants seek a postponement
to file the replying affidavit.
[15]
In as far as the liquidators and the trustees are concerned, Mr De
Vries argued that there was
no merit in the submissions by the
liquidators since the applicants would not sabotage themselves.
There was good rain and
production. The period for the
liquidators to remove the cause of the complaint has not lapsed.
There is also no reason
to saddle the insolvent estate with the
costs of this application and the liquidators and trustees must pay
the costs
de bonis propriis
. Mr De Vries concluded with
the submission that even if the applicants’ Rule 30 application
is dismissed they should
be afforded the opportunity to file their
outstanding papers.
[16]
Landbank argued that by merely resorting to the Rule 30(1) procedure
alleging that Land Bank
has taken an irregular step in the
proceedings is an abuse of court process by the applicants and their
transparent attempt to
avoid paying their debt. The application
is also used to fortify delay. It is inexplicable why the
applicants waited
for the appearance date of 05 August 2022 to say to
the Court that they are waiting for the return date of the 11 October
2022
since the date is for the liquidation proceedings and did not
deter the applicants from bringing a business rescue application.
Ordinarily, the applicants should have welcomed the earlier
date to have their matter heard. In May 2022, Ms Taljaard
sought to intervene in the business rescue application but decided to
throw in the towel and consented to the provisional orders.
Counsel
for the applicants argued that litigation must wait for the return
date in October 2022 to hear the new business
rescue application
without any explanation why the application was not brought earlier.
Mr Terblanche submitted the concern
that business rescue is a remedy
that should be expedited, at least two to three months, regard being
had to the tight timelines
afforded by the Act itself. The two
companies in issue, Project Multiply and Velvetcream, went into
business rescue in January
2021 and by May 2022 when the business
rescue was declared a nullity by the Court, a period of 18 months had
already elapsed. The
bank is aware that the sheep are being
slaughtered and yet there is no money paid to it.
[17]
Mr Terblanche referred to the letter by Johann Victor Attorneys
addressed to the joint provisional
liquidators dated 02 June 2022
marked “AA 24” quoted in relevant part:
“
4.
We further wish to confirm that our clients’ application to
place the entities of the Merwede Group
in business rescue will be
finalised tomorrow, being 3 June 2022, and thereafter will be duly
issued and served by the Sheriff
on all the necessary parties and
affected persons (who will be properly notified) and which process
will stay the winding up proceedings.”
Counsel
submitted that not only is the statement incorrect and an abuse of
court process but it gives insight into the thinking
of the
applicants.
[18]
When considering the aspect of prejudice to the Land Bank, Mr
Terblache invoked the case of
AG
Petzetakis International Holdings Ltd v Petzetakis (Pty) Ltd and
Others
[7]
where
the Court said:
“
[29]
Chapter 6 of the
Companies Act demonstrates
a legislative intention
that rescue proceedings must be conducted reasonably speedily. The
reason is obvious. Pending
rescue proceedings temporarily
protect the company concerned from legal proceedings by its creditors
for the recovery of legitimate
claims without any input of the
creditors and removes the unfettered management of the company from
the creditors. Delays
will extend the duration of these
temporary statutory arrangements, of which the duration is restricted
by way of the procedure
prescribed by the Act. For example,
section 148 requires the business rescue practitioner to convene a
meeting within 10
business days after being appointed. In terms of
section 150(5), a business plan must be published within 25 business
days after
the appointment of the practitioner. Section 151
requires a meeting to be held within 10 business days after
publication
of the business rescue plan. In terms of s 152 the
fate of the company is decided at the section 151 meeting. If
the
time periods are added up, it appears that the protection of the
company without the cooperation of the creditors from the time
of a
rescue order should not be more than 2 to 3 months, even if there are
many intervening non-business days.”
[19]
Counsel relied on the unreported judgment of this Court in
C Rock
(Pty) v H.C Van Wyk Diamonds Ltd and Others
(2355/2018A)
[2018]
ZANCHC 91(7 December 2018)
paras 12,13 and 17, urging me, that unless
I find that C-Rock is clearly wrong, I should follow it.
Williams J granted the
application and heard the business rescue
application on an urgent basis. These are the other
considerations:
19.1
The allegations of dissipation or spiriting away of sheep of
approximately R6.4 million plus VAT. In addition proceeds
of
about 7 037 head of sheep have been spirited away despite being the
Land Banks’ securities in a form of a cession and
pledge;
disturbingly, the amounts received are deposited into the bank
account of Merwede Ranching (Pty) Ltd which is a separate
company not
under the two companies in liquidation and Merwede Trust. The
directors of Merwede Ranching are Ms Taljaard and
the already finally
sequestrated Mr Van der Merwe.
19.2
A Toyota Land Cruiser VX Luxury 4X4 and a Beechcraft airplane,
registered in the name of Project Multiply has been transferred
to
the Ronnie Van der Merwe Trust. Whereas the contents of the
letter from Johan Victor Attorneys addressed to the corporate
liquidators dated 20 January 2022 dealt with the stock units and
group stock and assets sold it remained silent on the Land Cruiser.
19.3
The fact that the debt is growing exponentially now standing at R83
649 687.34 and there has not been any repayment since
2018.
19.4
The fact that Land Bank is the major secured creditor with over 95%
of the voting right while Ms Taljaard has a disputed
less than 1% is
also not insignificant.
19.5
Land Bank has expressed itself that it does not support the pending
business rescue plan.
19.6
The report by the forensic auditor;
19.7
On
30 May 2022, this date is 12 days after I had granted a
provisional liquidation order,
Ms Taljaard addressed an email to
Belinda under the subject “aansoek vir slagting”
(application for slaughter) and
it reads:
“
Hallo
Belinda
Laat
weet asb indien jy nog ietsie kort?
Onthou
ook asb Dewit en Hernes se kontak nommers? Sal jy asb vleispryse ook
aanstuur? Epos of whatsapp na [....] en [....]
Baie
dankie
Groete
Cura
Consultancies
Shanie
Taljaard
(+27)79
986 2206”
19.8
More importantly is the order on 10 May 2022 terminating the business
rescue proceedings and granting provisional liquidation
of the two
companies and provisionally sequestrating the trust with the return
date of 11 October 2022. Mr Terblanche submitted
that the Rule
30 application should be dismissed with costs on a punitive scale.
[20]
Fundamentally, and in my view, refusing to hear the counter-
application for lack of urgency
would be putting form over substance.
The afore-mentioned are but some of the considerations that led
me to agree with the
Land Bank that the counter-application is urgent
or at least semi-urgent.
[21]
The Court has a discretion to be exercised judicially on a
consideration of the circumstances
and what is fair to both sides. I
am not persuaded that I should accede to the argument to set aside
Land Bank’s counter-application
solely on the point taken by
the applicants’ counsel of the lack of urgency or premature set
down. The matter is of
national interest as it does not only
affect a major secured creditor and the provisional liquidators and
their powers but also
the farmers and farm labourers. It is
crucial for the
amicus
and the Minister of Trade and Industry
cited as the second respondent to file their submissions timeously.
The Minister of
Justice and Constitutional Development, the
third respondent has filed a notice to abide the Court’s
decision. I cannot
discern any prejudice to the applicants
should the counter-application be enrolled on an urgent basis. It
is for the reasons
mentioned above that I find that the Rule 30
application is without any merit.
[22]
Resultantly, the parties would need to file all the outstanding
affidavits in respect of the
main and counter applications as well as
the written submissions before the matter can be ripe for hearing.
This does not,
however, support the contention by the
applicants that the matter was set down prematurely because the
issues remain live and warrant
the necessary attention.
[23]
On 10 August 2022 I had a meeting in my chambers with the attorneys
for the respective parties
to consider the dates. These parties
agreed to the truncated timeframes and the dates referred to in the
order.
[24]
In the result, the following order is made:
1.
The
application by TLU SA to be admitted as
amicus
curiae
is
deferred to 08 September 2022.
2.
TLU SA is
granted leave to file its written submissions on or before 19 August
2022.
3.
The application in terms of Rule 30 of the Uniform Rules of Court is
dismissed.
4.
The application under Case Number 1094/2022 and the
counter–application are postponed
to 08 September 2022.
5.
The applicants, Ms Shanie Taljaard and Curo Consultancy (Pty) Ltd are
ordered to file their
replying affidavit (if any) and their answering
affidavit to the counter-application in Case Number 1094/2022 on or
before 26 August
2022.
6.
The Land Bank and the provisional liquidators to file the replying
affidavits (if any) in
the counter-application on or before 26 August
2022.
7.
Indexing and pagination to be completed by 31 August 2022.
8.
All the parties are to serve and file the written submissions by 2
September 2022.
9.
Costs are reserved for later determination.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the 1
st
and 2
nd
applicants:
Adv. J De Vries
Instructed
by:
Johan
Victor Attorneys
c/o
Engelsman, Magabane Inc.
For
the 1
st
respondent:
Adv.
FH Terblanche SC
Assisted
by:
Adv.
S. Tsangarakis
Instructed
by:
Strydom
& Bredenkamp Inc
c/o
Van de Wall Inc.
For
the 2
nd
respondent:
Adv.
W Coetzee SC
Instructed
by:
Office
of the State Attorney
For
the 3
rd
respondent:
Abiding
For
the 4
th
respondent:
For
the 5
th
-10
th
& 12
th
respondent:
Adv. U Van Niekerk
Instructed
by:
JI
Van Niekerk Attorneys
c/o
Majiedt Swart Inc
Amicus
Curiae
:
Adv.
D Jankowitz
Instructed
by:
PGMO
Attorneys
[1]
See National Police Service Union and Others v Minister of Safety
and Security and Others 2000 (4) SA 1110 (CC)
[2]
Shaik v Minister of Justice and Constitutional Development
[2003] ZACC 24
;
2004 (3)
SA 599
(CC) at 610H
[3]
2006
(6) SA 195 (CC) at para 7
[4]
2012 (5) SA 596
(GSJ)
[5]
2013 (6) SA 141 (KZP)
[6]
2017 (2) SA 56 (GJ)
[7]
[2012] JOL 28598
GSJ at para 29