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[2022] ZAECELLC 38
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Sipunzi v Youmessi Trading CC and Another (EL 718/2021) [2022] ZAECELLC 38 (13 December 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT COURT)
CASE
NO.: EL 718/2021
Heard
on: 6 October 2022
Delivered
on 13 December 2022
In
the matter between:
KHAKA
SIPUNZI
APPLICANT
and
YOUMESSI
TRADING CC
FIRST RESPONDENT
AMOS
YOUMESSI
SECOND RESPONDENT
JUDGMENT
MOLONY
AJ:
Introduction
[1]
The applicant
launched this application on 9 June 2021, seeking an order in the
following terms:
(a)
That the
business of the corporation (the first respondent) was carried on
recklessly or for fraudulent purposes, or with the intent
to defraud
the applicant who is a judgment creditor of the first respondent.
(b)
In the
alternative, that the incorporation and use of the first respondent
by the second respondent constituted a gross abuse of
the juristic
personality of the first respondent as a separate entity.
(c)
That the
second respondent be held personally liable, jointly and severally
with the first respondent, for the debt incurred by
the first
respondent in terms of section 65, read with section 64(1) of the
Close Corporations Act 69 of 1984 (’the
Close Corporations
Act&rsquo
;), alternatively in terms of the common law.
(d)
That the
respondents pay the costs of this application on a punitive scale,
including the cost of two counsel.
[2]
The applicant,
on 19 September 2022, launched an interlocutory application
requesting leave to file the return of service for the
second
respondent (dated 17 June 2021), and to be permitted to pursue the
relief sought in the main application. Costs were
only
requested in the event of opposition.
[3]
It appears
that the main application was on the opposed motion court roll on 24
February 2022, but was removed from the roll (by
Matebese AJ) with
the applicant to pay the costs of the day.
[4]
A request for
reasons for the above-mentioned order was sought on 11 March 2022.
The reasons provided by Matebese AJ were,
in essence, the following:
(a)
The
respondents had raised the issue of improper service of the
application papers in their opposing papers.
(b)
Counsel for
the applicant then sought to introduce a return of service from the
bar. When asked why the return had not been
properly and
timeously filed, the view taken by counsel was that there was nothing
improper with the manner in which he sought
to file the return of
service.
(c)
In opposed
motion court matters, the court must be provided with all papers
timeously, especially in relation to contentious issues,
in order
properly to prepare.
[5]
For the above
reason, the interlocutory application was necessary.
[6]
The
respondents (aside from taking issue in their heads of argument in
the main application) did not formally oppose the interlocutory
application, and I was satisfied, given the fact that the second
respondent clearly knew of the main application (having filed
notice
to oppose, along with the first respondent, on 17 June 2021, and
having deposed to an answering affidavit on 21 July 2021)
that the
relief sought (in prayers 1 and 2 of the notice of motion) could be
granted. This duly occurred.
Issues
in dispute
[7]
The applicant
is a practicing attorney, practicing as such under Sipunzi Attorneys.
[8]
On
25 March 2015 the applicant purchased an entity called Hartwick
Technical College (‘the College’) from the first
respondent (represented by the second respondent, whom the applicant
avers is the ‘sole director’
[1]
of the first respondent), for the price of R 700 000.00.
[9]
The purchase
price was duly paid, however a dispute arose between the parties.
It related to a request from the second respondent,
who allegedly
wanted the applicant to enter into a sub-lease agreement, apparently
relating to the premises housing the College.
The applicant
wanted a lease agreement directly with the owner of the property, and
demanded assignment or cession or transfer
of all business interests,
together with operational licenses, in regard to the College, as the
College had been sold to the applicant
as a going concern. The
applicant refused to pay any rental absent the aforementioned.
[10]
This led to
the first respondent instituting action proceedings (in this court)
against the applicant for outstanding rental, under
case number
1057/2017 (‘the first action’). The parties will,
when referencing the first action, be referred
to as they are in the
current application, in order to avoid confusion.
[11]
The applicant
defended the matter and launched a counterclaim seeking cancellation
of the sale agreement, together with an order
directing the first
respondent to repay the applicant the sum of R 700 000.00.
[12]
The above
culminated in a judgment by Jolwana J (dated 19 January 2021), which
dismissed the first respondent’s claim, and
found in favour of
the applicant in terms of the counterclaim which,
inter
alia
,
ordered that the purchase price of R 700 000.00 be repaid to the
applicant by the first respondent.
[13]
Attempts
to execute on the judgment failed, according to the applicant, as the
first respondent did not have any moveable or immoveable
assets.
Attempts to attach moveable assets led to the discovery that the
assets in question were owned either by the second
respondent, or
another close corporation (Silver Solutions 956 CC
[2]
).
[14]
The applicant
alleges that the second respondent is hiding behind the juristic
personality of the first respondent, and is abusing
the juristic
personality of the first respondent, as he represented the first
respondent during the conclusion of the sale agreement,
and
misrepresented certain material aspects to the applicant during the
course of concluding the sale agreement.
[15]
The applicant
is requesting that this court accept the findings of Jolwana J in the
first action as proof of the alleged abuse of
juristic personality,
and grant the relief sought on that basis.
[16]
The first and
second respondents have opposed the application.
[17]
The answering
affidavit has been deposed to by one
FABRICE
GAEL KOMBOU
,
who refers to himself as being the sole member of the first
respondent since 5 February 2021.
[18]
The first
respondent opposed the application on the following grounds:
(a)
This claim
should have been launched via action proceedings, as there are
numerous disputes of fact (this is raised as a first point
in
limine
).
The respondents should be permitted properly to ventilate their
defence by way of oral evidence and other evidentiary sources.
It is denied that the first respondent carried on business recklessly
or fraudulently, or with the intent to defraud the applicant.
It is denied that the use of the first respondent constituted a gross
abuse of the juristic personality of the first respondent,
or that
the second respondent should be held liable for the debts of the
first respondent.
(b)
Amongst the
factual disputes referred to, the first respondent disputed the
applicant’s version in relation to the sub-lease
dispute,
averring that whilst the first respondent used to act as an agent on
behalf of the owner of the property, and as a result
of various other
tenants not paying timeously (or creating inconvenience) it was
sought that a lease agreement be signed.
(c)
According to
the first respondent, the applicant thereafter ran the College.
The applicant only brought his concerns regarding
the College not
being a going concern (which the first respondent denied), and the
issue of no direct lease agreement with the
owner, to the first
respondent’s attention when the applicant filed his plea in the
first action on 28 May 2019. It
is averred that at no time did
the respondents affect the applicant’s ability to approach the
owner of the property to arrange
for a lease agreement – it was
the owner that did not want to lease directly to the applicant.
(d)
The first
respondent has annexed to his answering affidavit proof of payment of
rental from the applicant who, avers the first respondent,
was
running the College. The relevant annexure shows an email from
the applicant to one Deon Stander (who appears to be the
attorney of
record for the respondents in the current matter) and reflects a
payment of R 10 000.00 to Deon Stander Attorneys,
paid on 7
March 2017. In the aforementioned email the applicant
apologized for delayed payment, stating that it was because
of
students who were failing to pay their fees on time.
(e)
According to
the first respondent, there was only one applicable license to be
provided to the applicant, which was a computer literacy
accreditation, and which was handed over to the applicant when the
business was sold to the applicant on 25 March 2015. The
applicant ran the College from 2015 to 2017.
(f)
The first
respondent avers (as a second point
in
limine
)
that a creditor who wishes to rely on
section 64
and
65
of the
Close
Corporations Act (or
the common law) must show that the respondent
was knowingly party to the carrying-on of the business of the close
corporation recklessly,
with gross negligence or with intent to
defraud any person or for any fraudulent purpose. The applicant has
failed to show that
the second respondent at all times acted as an
agent for the first respondent. The applicant has failed to
show that the
second respondent misappropriated funds for his own
benefit, and on the first respondent’s behalf as required in
terms of
section 64
of the
Close Corporations Act.
(g
)
The first
respondent denied that the applicant made due and reasonable demand
of the first respondent. There was, in addition,
no proper
investigation conducted in regard to the first respondent’s
financial affairs and ability to pay its debts when
they became due,
as well as the functioning and competence of the first respondent,
and the role and function played by the second
respondent in regard
to the first respondent.
(h)
Any improper
conduct on the part of the second respondent was denied.
(i)
The first
respondent further avers that the applicant’s cause of action
has prescribed.
[19]
The first
respondent has requested that the application be dismissed with a
punitive costs order.
[20]
The second
respondent also filed an answering affidavit, disclosing grounds of
opposition which are essentially the same as those
advanced by the
first respondent. The second respondent raised prescription as
a first point
in
limine
,
whilst the failure to launch this matter via action proceedings, and
the failure to make out an appropriate case in regard to
reliance on
sections 64
and
65
of the
Close Corporations Act (alternatively
the
common law in this regard), are both raised as a ‘second point
in limine’.
[21]
The applicant,
in reply, questioned how the deponent of the answering affidavit for
the first respondent had any personal knowledge
of what occurred,
denied the factual sequence of events contained in the answering
affidavit, denied that there are any disputes
of fact, and averred
that insofar as showing that the second respondent at all material
times acted on behalf of the first respondent,
with an intention to
defraud the applicant, ‘
one
need to look no further than 2
nd
Respondent’s evidence under oath on the transcript and the
findings of this Court on its judgment under case No. EL 1057/2017,
all of which is binding on 2
nd
Respondent.’
[22]
Whilst a copy
of the judgment of Jolwana J is annexed to the founding affidavit, no
copy of the transcript (or any other evidence)
has been provided.
[23]
The
applicant’s reply to the second respondent’s answering
affidavit, similar to the reply to that of the first respondent,
amounts to a bare denial.
Analysis
[24]
Sections 64
and
65
of the
Close Corporations Act state
as follows:
’
64
Liability for reckless or fraudulent carrying-on of business
of corporation
(1)
If it at any time appears that any
business of a corporation was or is being carried on
recklessly, with gross negligence
or with intent to defraud any
person or for any fraudulent purpose, a Court may on the application
of the Master, or any creditor,
member or liquidator of
the corporation, declare that any person who was knowingly a
party to the carrying on of the business
in any such manner, shall be
personally liable for all or any of such debts or other liabilities
of the corporation as
the Court may direct, and the Court
may give such further orders as it considers proper for the purpose
of giving effect to the
declaration and enforcing that liability.
(2)
If any business of a corporation is
carried on in any manner contemplated in subsection (1), every person
who is knowingly
a party to the carrying on of the business in any
such manner, shall be guilty of an offence.
65 Powers
of Court in case of abuse of separate juristic personality
of corporation
Whenever
a Court on application by an interested person, or in any proceedings
in which a corporation is involved, finds
that the
incorporation of, or any act by or on behalf of, or any use
of, that corporation, constitutes a gross abuse
of the juristic
personality of the corporation as a separate entity, the
Court may declare that the corporation is
to be deemed not
to be a juristic person in respect of such rights, obligations or
liabilities of the corporation, or of such
member or members
thereof, or of such other person or persons, as are specified in the
declaration, and the Court may give such
further order or orders as
it may deem fit in order to give effect to such declaration.’
[25]
In
the first action the second respondent testified on behalf of the
first respondent, but was not a party to the litigation.
It
appears further that Jolwana J refused to accept a belated attempt to
introduce certain evidence on behalf of the first respondent.
[3]
[26]
The judgment
of Jolwana J concluded, on the evidence available in that matter,
that the College did not exist when it was sold,
stating as follows
in paragraph 37:
‘
On
a preponderance of probabilities the college that was sold did not
exist, was probably a sham or even fraudulence on Mr Youmessi’s
part. What is troubling was his audacity to come to this Court
to enforce a lease agreement based on a possibly fraudulent
transaction of a sale of a business that did not exist for premises
that were probably never occupied or really handed over for
occupation to the defendant.’
And
in paragraph 38:
‘
It
is difficult to avoid the suspicion that the sale of business
agreement was deliberately designed to give credence to the existence
of the college that was sold as a going concern and to hide the fact
that it was possibly a fraudulent vehicle true (sic) which
the
defendant, despite being an attorney was duped into parting with R
700 000.00 for nothing, exploiting his gullibility.’
And
in paragraph 43:
‘
The
plaintiff’s case was, both in respect of his claim for arrear
rentals and in respect of the plea to the counterclaim badly
pleaded. Mr Youmessi’s evidence in respect of both the
main claim and the counterclaim was not only so inadequate as
to be
non-existent and connived. It was also founded on falsity
craftily designed to cover the possible rental fraudulence
he sought
to enforce in these proceedings or the fleecing of the defendant
which was done with near perfection.’
[27]
The first
respondent’s claim was dismissed, and the applicant’s
counterclaim upheld, with the sale agreement being set
aside and
restitution ordered, on the basis that the applicant had been
fraudulently deceived into signing a document to buy a
non-existent
school. There does not appear to have been any attempt to
appeal the judgment.
[28]
Both
parties relied,
inter
alia
,
on the matter of
Cape
Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Others
[4]
in regard to the issue of piercing the corporate veil, as would be
required in order to grant the relief sought by the applicant.
In that regard the following was stated in the
Cape
Pacific
matter:
[5]
‘
It
is trite law that '(a) registered company is
legal persona distinct from the members who compose it'
(Dadoo Ltd
and Others v Krugersdorp Municipal Council
1920
AD 530
at
550). Equally trite is the fact that a court would be justified in
certain circumstances in disregarding a company's separate
personality in order to fix liability elsewhere for what are
ostensibly acts of the company. This is generally referred to
as lifting
or piercing the corporate veil. (I shall confine
myself to the use of the word piercing.) The focus then shifts from
the company
to the natural person behind it (or in control of its
activities) as if there were no dichotomy between such person and the
company
(Henochsberg on the Companies Act 5th ed vol 1 at 54).
In that way personal liability is attributed to someone who misuses
or abuses the principle of corporate personality.
The
law is far from settled with regard to the circumstances in which it
would be permissible to pierce the corporate veil. Each
case involves
a process of enquiring into the facts which, once determined, may be
of decisive importance. And in determining whether
or not it is
legally appropriate in given circumstances to disregard
corporate personality, one must bear in mind
'the
fundamental doctrine that the law regards the substance rather than
the form of things - a doctrine common, one would think,
to every
system of jurisprudence and conveniently expressed in the maxim plus
valet quod agitur quam quod simulate concipitur',
(Dadoo
Ltd and Others v Krugersdorp Municipal Council (supra at
547).)Whatever the position, it is probably fair to say that
a court
has no general discretion simply to disregard a company's separate
legal personality whenever it considers it just to do
so (Botha v Van
Niekerk en 'n Ander
1983
(3) SA 513 (W)
at
524A; Gower's The Principles of Modern Company Law 5th ed
at 133).’
And:
[6]
‘
The
principle of a company's separate juristic personality was first
asserted in the House of Lords in Aron Salomon v A Salomon
and
Co Ltd
[1897] AC 22.
There already it appears to have been
recognised that proof of fraud or dishonesty might justify the
separate corporate personality
of a company being disregarded. (See,
in this regard, the speeches of Lord Halsbury at 33 and Lord
Macnaghten at 52-3.) And over
the years it has come to be accepted
that fraud, dishonesty or improper conduct could provide grounds for
piercing the corporate
veil. Recently this was confirmed in The
Shipping Corporation of India Ltd v Evdomon Corporation and
Another
1994
(1) SA 550 (A)
where
Corbett CJ expressed himself as follows at 566C-F:
'It
seems to me that, generally, it is of cardinal importance to keep
distinct the property rights of a company and those of its
shareholders, even where the latter is a single entity, and that the
only permissible deviation from this rule known to our law
occurs in
those (in practice) rare cases where the circumstances justify
"piercing" or "lifting" the corporate
veil. And
in this regard it should not make any difference whether the
shares be held by a holding company or by a Government.
I do not find
it necessary to consider, or attempt to define, the circumstances
under which the Court will pierce the corporate
veil. Suffice it to
say that they would generally have to include an element of fraud or
other improper conduct in the establishment
or use of the company or
the conduct of its affairs. In this connection the words "device",
"stratagem", "cloak"
and "sham" have
been used. . . .'
Two
matters arising from the quoted passage merit further comment. First,
reference is made to 'those (in practice) rare cases where
the
circumstances justify "piercing" or "lifting" the
corporate veil'. It is undoubtedly a salutary principle
that our
Courts should not lightly disregard a company's separate personality,
but should strive to give effect to and uphold
it. To do
otherwise would negate or undermine the policy and principles that
underpin the concept of separate corporate personality
and the legal
consequences that attach to it. But where fraud, dishonesty or other
improper conduct (and I confine myself to such
situations) is found
to be present, other considerations will come into play. The
need to preserve the separate corporate
identity would in such
circumstances have to be balanced against policy considerations which
arise in favour of piercing the corporate
veil (cf Domanski 'Piercing
the Corporate Veil-A New Direction' (1986) 103 SALJ 224).
And a court would then be entitled
to look to substance rather than
form in order to arrive at the true facts, and if there has been
a misuse of corporate personality,
to disregard it and attribute
liability where it should rightly lie.
Each
case would obviously have to be considered on its own merits
.
[7]
The
second is the reference to the inclusion of 'an element of fraud or
other improper conduct in the establishment or use of
the
company or the conduct of its affairs'. (My emphasis.) It is not
necessary that a company should have been conceived and founded
in
deceit, and never have been intended to function genuinely as a
company, before its corporate personality can be disregarded
(as
appears in some respects to have been the view of the trial Judge -
see the judgment at 821G-J). As Gower (op cit) states
(at 133):
'It
also seems clear that a company can be a façade even though it
was not originally incorporated with any deceptive
intention;
what counts is whether it is being used as a façade at the
time of the relevant transactions.'
Thus
if a company, otherwise legitimately established and operated, is
misused in a particular instance to perpetrate a fraud, or
for a
dishonest or improper purpose, there is no reason in principle or
logic why its separate personality cannot be disregarded
in
relation to the transaction in question (in order to fix the
individual or individuals responsible with personal liability)
while
giving full effect to it in other respects. In other words, there is
no reason why what amounts to a piercing of the veil pro
hac
vice should not be permitted.’
[29]
The applicant
asks this court to grant the requested relief on the basis of the
outcome of a judgment in a separate action, submitting
that any
disputes of fact raised by the respondents have already been
determined by the judgment of Jolwana J.
[30]
The court in
the first action in essence determined that the second respondent,
when representing the first respondent during the
sale negotiations,
fraudulently misrepresented to the applicant that a business existed
which did not in fact exist.
[31]
The court in
the first action was not called upon to decide whether or not, in so
doing, it followed that the business of the first
respondent was
carried on recklessly or for fraudulent purposes, or with the intent
to defraud the applicant as the judgment creditor
of the first
respondent. Nor was it called upon to decide whether or not,
given the circumstances, the incorporation and/or
use of the first
respondent by the second respondent constituted a gross abuse of the
juristic personality of the first respondent.
The court in the
first action was not called upon to decide that the second respondent
should be held personally liable, jointly
and severally with the
first respondent, for the debt incurred by the first respondent.
[32]
In
the matter of
Prinsloo
NO and Others v Goldex 15 (Pty) Ltd and Another
[8]
the following caution was sounded:
‘
[18]
This brings me to the appellants' second proposition: that it
was inappropriate and unwise for
Webster J to find Prinsloo
guilty of fraud purely on the basis of allegations against him on
affidavit, which he disputed on feasible
grounds. This proposition
emanates from the same considerations as the previous one. The
appellants were also entitled to have
their version approached
with caution on the basis that it could only be rejected if it were
clearly untenable, which it was not.
What rendered a final rejection
of the appellants' version in principle even more unwise and
inappropriate was, of course, that,
as the respondents' version could
not be rejected out of hand, the application was in any event bound
to fail.
[19]
I therefore agree with the appellants' contention that Webster J
should not have made a finding
of fraud against Prinsloo on the basis
of untested allegations against him on motion papers that were denied
on grounds that could
not be described as far-fetched or untenable.
The reasons why he should not have done so derive not only from
common sense,
but from many years of collective judicial
experience. They were thus formulated in Sewmungal and Another,
NNO v Regent Cinema
1977
(1) SA 814 (N)
at
819A – C:
'In
approaching this particular type of problem [of factual disputes
arising on affidavit] it is not wrong for a court at the outset
to
have some regard to the realities of litigation. What appears to be a
good case on paper may become less impressive after
the
deponents to the affidavits have been cross-examined. Conversely,
what appears to be an improbable case on the affidavits,
may turn out
to be less improbable or even probable in relation to a particular
witness after he had been seen and heard by a court.
An incautious
answer in cross-examination may change the whole complexion of a
case.'’
[9]
[33]
The
applicants, instead of asking this court to decide the matter on
motion, go one step further and ask, on motion, that the findings
in
the first action be adopted as the findings of this court, with the
logical conclusion allegedly being that the relief sought
should be
granted.
[34]
In the first
action the court had before it
inter
alia
the
original sale agreement, as well as the lease agreement that the
applicant allegedly refused to sign. It also had the
benefit of
observing the witnesses who testified, and hearing the oral evidence
tendered on behalf of the parties.
[35]
Certain
discrepancies, arising from the papers in this matter, accordingly
cannot be addressed.
[36]
For
example, according to Jolwana J the applicant never paid any rental
whatsoever for the premises upon which the College was apparently
located.
[10]
This is confusing
when considered in conjunction with the email from the applicant
(dated 7 March 2017), annexed as ‘FK3’
to the first
respondent’s answering affidavit in this matter, to the
respondents’ attorney of record, apologising for
a delayed
payment (which the respondents aver is a rental payment) and
referring to students failing to pay their fees on time.
The
full purchase price of R 700 000.00 had been paid by 30
September 2015, and so the aforementioned payment could presumably
not have been in relation to the purchase price. The applicant
does not address this aspect in reply, save to deny it.
[37]
The above
takes on some significance when it is noted that the judgment of
Jolwana J does not appear to refer to any evidence being
tendered on
behalf of the applicant in relation to what he actually did with the
College between 2015 and 2017.
[38]
The second
respondent was not a party to the first action, and the approach to
the litigation may have been entirely different from
the respondents’
side had that been the case.
[39]
The applicant,
as proof of his attempts to execute in regard to the debt owed by the
first respondent, emanating from the first
action, has annexed to his
founding affidavit two returns of service.
[40]
The first
(annexure ‘SK2’) is dated 12 May 2021 and reflects an
attempt to attach the second respondent’s moveable
assets at
the home address of the second respondent, despite it being the first
respondent that was liable for the debt.
[41]
The second
(also annexure ‘SK2’) is dated 14 May 2021, and discloses
an attempt to demand payment from the second respondent
(on behalf of
the first respondent) at the business address of the first
respondent. It is recorded that the first respondent
is unable
to pay the judgment debt and costs in full or in part, whereupon it
appears a vehicle (apparently belonging to Silver
Solutions 956 CC)
was attached on the instructions of the applicant.
[42]
The applicant
avers that he conducted an investigation to establish whether the
first respondent had any immoveable assets against
which he could
execute, and established that no assets were registered in the name
of the first respondent. No further information
or
documentation is provided in this regard.
[43]
Whilst
it does not appear to be necessary that the applicant comprehensively
pursue execution against the first respondent before
taking action
against the second respondent,
[11]
the fact remains that aside from the above-mentioned returns of
service, the applicant provides no further information in relation
to
the first respondent’s ability to pay its debt,
[12]
and relies entirely on the judgment in the first action in claiming
the relief sought in this matter.
[44]
In
my view the applicant has not made out an appropriate case for the
relief sought, as he has asked that the findings of another
court be
adopted as the findings of this court (absent sight of any of the
evidence before that court), and that this court use
those findings
to reach conclusions in relation to issues which were not before the
original court.
[13]
[45]
It was
submitted on behalf of the applicant that
sections 64
and
65
of the
Close Corporations Act require
that this matter be determined on
application.
[46]
In
my view the above-mentioned sections are not limited in such a
manner, and it is open to the applicant to launch action proceedings
in this regard.
[14]
[47]
Even if I am
wrong in regard to the above it would be impossible, in my view,
appropriately to determine this matter on affidavit
as the factual
matrix of the applicant’s entire claim is provided via the
judgment of another court, meaning that the relevant
issues have not
been properly ventilated before this court. Such ventilation
could only, in these circumstances, occur by
way of appropriate oral
and documentary evidence being provided.
[48]
Rule 6(5)(g)
of the Uniform Rules states as follows:
‘
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems
fit with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the aforegoing,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order any deponent
to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear and be
examined and cross-examined
as a witness or it may refer the matter to trial with appropriate
directions as to pleadings or definition
of issues, or otherwise.’
[49]
Neither
of the parties made a formal application
[15]
that the matter be referred to oral evidence, and it is undesirable
that such an order be made by a court
mero
motu.
[16]
Nor
would such a referral, in my view, serve any purpose, given the
paucity of information contained in the founding affidavit.
[50]
The
application accordingly falls to be dismissed.
[17]
Costs
[51]
All parties
requested costs on a punitive scale.
[52]
Whilst the
applicant’s approach in this regard was ill-advised, it remains
clear that he is simply attempting to recover a
debt that is owed to
him. Notably absent from the respondents’ affidavits was
any information relating to how that
debt might be paid by the first
respondent.
[53]
Given the
above I see no reason why costs should not follow the result.
Order
[54]
In
the result, the first respondent’s first point
in
limine,
and the second respondent’s second
[18]
point
in
limine
,
is upheld, and the application is dismissed with costs.
N MOLONY
ACTING
JUDGE OF THE HIGH COURT
On behalf of the
applicants: Adv Nzuzo
Instructed by:
Sipunzi Attorneys
Office
No. 9, Beacon Park
89
Beaconhurst Drive
Beacon
Bay
EAST
LONDON
Tel:
043 748 1828
Email:
khakhas786@gmail.com
On behalf of the first
and second
respondents:
Adv Burger
Instructed
by:
Deon Stander Attorney
40
Oakhill Road
Berea
EAST
LONDON
Tel:
043 721 1929
Email:
deonstander01@gmail.com
[1]
Incorrectly
so, as the first respondent is a close corporation.
[2]
According
to the judgment of Jolwana J in the first action (in paragraph 11
thereof), this was the entity reflected as the landlord
in the lease
agreement presented to the applicant by the second respondent, which
the applicant refused to sign.
[3]
See
paragraph 14 of the judgment in the first action.
[4]
1995
(4) SA 790 (A).
[5]
Supra
at
pp. 802E – 803B.
[6]
Supra
at
pp. 803C – 804D.
[7]
My
emphasis.
[8]
2014
(5) SA 297 (SCA).
[9]
See
further
Pepkor
Holdings Ltd and Others v AJVH Holdings (Pty) Ltd and Others
2021 (5) SA 115
(SCA) at para 39.
[10]
See
para 25 of the judgment in the first action.
[11]
See
Cape
Pacific
(
supra
)
at p. 805G - 806C.
[12]
See
L
& P Plant Hire Bk en Andere v Bosch en Andere
2002 (2) SA 662
(SCA) at the headnote and paras 39 – 40 and
Saincic
and Others v Industro-Clean (Pty) Ltd and Another
2009
(1) SA 538
(SCA) at paras 26 – 30.
[13]
These
circumstances are, in my view, distinguishable from the
circumstances in the
Cape
Pacific
matter (
supra
at p. 806C-J), in which a factual finding made in a previous action
was combined with a finding in a subsequent action (which
did not
involve all of the same parties), and thus given effect to in the
subsequent action.
[14]
See
Howard
v Herrigel and Another NNO
[1991] ZASCA 7
;
1991
(2) SA 660
(A) at 664 – 665 and
L
& P Plant Hire (supra)
at
para 27.
[15]
There
is, at best, a passing reference to such a referral (as an
alternative to dismissal) in the first respondent’s answering
affidavit.
[16]
See
Santino
Publishers CC v Waylite Marketing CC
2010 (2) SA 53
(GSJ) at paras 2 – 5.
[17]
See
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T)
at
1162 and 1168.
[18]
Found
at p. 60 of the paginated papers.