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[2021] ZAGPPHC 143
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Mashaba and Others v Muller and Others (22900/2020) [2021] ZAGPPHC 143 (10 March 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No:22900/2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
10
March 2021
In
the matter between:
MASHABA,
AUSWELL
First Applicant
LANGREBE,
WOLFRAM CARL HELMUTH
Second Applicant
WKH
LANDGREBE &
CO
Third Applicant
JOHN
JOSEPH FINLAY
CAMERON
Intervening Applicant
and
MULLER,
JOHANNES ZACHARIAS HUMAN
First Respondent
MULLER,
JOHANNES ZACHARIAS HUMAN NO
Second Respondent
NDYAMARA
AVIWE NTANDAZO
NO
Third Respondent
MADLALA
MANDLA PROFESSOR NO
Fourth Respondent
THE
MASTER OF THE HIGH COURT
Fifth Respondent
JUDGMENT
SK
Hassim AJ
Introduction
[1]
Swifambo
Rail Leasing (Pty) Ltd
(“
the company in liquidation
” or “
Swifambo
”)
has been in liquidation since December 2018. The second to
fourth respondents, collectively referred to as “
the
respondents
” or “
the liquidators
”, are
the final co-liquidators of Swifambo having been appointed by the
fifth respondent (“
the Master
”) as such on 18
March 2019. The fifth respondent will be referred to as the
“
Master
”.
[2]
The first applicant, Auswell Mashaba (“
Mr
Mashaba
”) was a director of
Swifambo. He was also the director of the latter’s
shareholder, Railpro Holdings (Pty) Ltd (“
Railpro
”).
As such he controlled the shareholding in Swifambo. He also has
interests in other entities related to Swifambo.
Railpro, too,
is in winding-up.
[3]
The second applicant, W
olfram Carl
Helmuth Langrebe (“
Langrebe
”), is a partner in the
partnership
WKH Lan
grebe & Co, the
third applicant, (“
WKH
”). The applicants
allege that WKH proved a claim at the second meeting of creditors.
The respondents admit that
WKH proved a claim at the second meeting
of creditors. They however aver that subsequent thereto they
discovered facts from
which it is clear that WKH has no claim against
Swifambo. I need say no more about this.
Orders
sought by the applicants
[4]
The applicants seek a
mandamus
in the following terms:
“
2.
Ordering the first and second respondents, within 24 (twenty-four)
hours of the grant of
this order, to depose to and thereafter to
furnish an affidavit (by e-mail) to attorney John Joseph Finlay
Cameron, email address
[…]
in
which affidavit he will:-
2.1
identify that person or those persons who directed threats and/or
acted in a manner designed to intimidate
him (as recorded by him in
paragraph 46 of an affidavit dated 8
th
May 2020 under case
no. 20975/2020); and
2.2
indicate the times, dates and places during which the threats and
acts of intimidation were received by him;
and
2.2
indicate the exact nature of the threats and acts of intimidation and
in the event that the threats were in
writing, to indicate same and
to attach same to the affidavit (including copies of the screenshots
of his cellular telephone);
and
3.
that the second respondent shall not be entitled to recover any of
his costs
incurred in opposing the applicants’ application from
the insolvent estate of Swifambo Rail Leasing (Pty) Ltd; and
4.
that the costs of this application be paid by the first respondent on
the scale
as between attorney and client.”
The
application for intervention by the applicants’ attorney
[5]
The applicants’ attorney, Mr John
Joseph Finlay Cameron (“
Cameron
”
or “
the intervening applicant
),
applied to intervene in the application. I was informed at the
commencement of the hearing that the respondents accede
to the
application for Mr Cameron’s intervention. I issued such
an order. The intervening applicant, Mr Cameron,
and the
applicants are collectively referred to as “
the
applicants”.
[6]
The applicants’ withdrew their
application to strike out portions of the respondents’
answering affidavit and tendered
the costs of the application.
[7]
The respondents argue in the heads of
argument that the applicants attempted to make out a new case in the
replying affidavit.
Mr Hollander who appeared on behalf of the
applicants informed me at the hearing that the applicants to not
pursue the new case
in the replying affidavit.
The
relevant historical facts
[8]
It is clear from the papers that there is
deep-seated acrimony between at least the first applicant and the
first respondent, Mr
Muller. The acrimony stems from the
conflict between Mr Mahaba and the liquidators appointed by the
Master to wind up the
company.
[9]
During 2013
Swifambo was awarded a
tender for the supply of locomotives to the Passenger Rail Agency of
South Africa (“
PRASA”).
On the application
of PRASA, Francis J on 3 July 2017 set aside PRASA’s decision
to award the tender to
Swifambo.
In December 2018,
Swifambo and its holding company Railpro were voluntarily wound up by
a special resolution adopted in terms of
section 351 (1) of the
Companies Act, Act No 61 of 1973 (“
the Act”
) and
registered on 18 December 2018.
[10]
The respondents were authorised to hold an
enquiry in terms of section 417 and 418 of the Act. They aver
that they conclusively
established that the affairs of the company in
winding up had been mismanaged and hundreds of millions of rands had
been dissipated.
They also aver that evidence of
prima
facie
criminal conduct on the part of
amongst others Mr Mashaba has been uncovered.
[11]
In addition to this application, the
parties are entangled in a number of matters pending in this court
and/or in the Gauteng Division,
Johannesburg. Mr Mashaba as a
co-applicant has brought three applications against, among others,
the respondents.
(i)
under case number 88912/19 (“
the
first application”)
launched on
26 November 2019 he seeks amongst others the setting aside of the
appointment of the respondents as provisional liquidators
as well as
final liquidators;
(ii)
under case number 12450/20 (
the
second application”)
launched on
25 February 2020 he seeks amongst others the setting aside of the
shareholders’ meeting at which the shareholders
resolved to
wind up
Swifambo;
(iii)
under case number 20975/20 (“
the third application
”)
launched on 25 March 2020 he seeks relief which overlaps with the
relief claimed in the other applications.
The
basis for the application and the opposition thereto
[12]
Mr Mashaba, or entities associated with him, amongst others,
are defendants in four pending actions by the liquidators of Swifambo
and Railpro instituted in the Gauteng Division of the High Court in
Johannesburg for the repayment of astronomical sums of money.
[13]
The genesis of this application is paragraph 46.1 of the
affidavit deposed to by Mr Muller in opposition to the third
application
which reads:
“
During
the time when my previous affidavits were being prepared, signed and
thereafter delivered, several threats and acts which
I perceived were
calculated to intimidate me, were received.
”
[14]
The applicants consider the threats to be
aimed at compelling Muller to abandon, the actions brought by the
liquidators and/or,
the opposition to the applications refered to in
paragraph 11 above. The applicants contend that the alleged
threats constitute
an offence contemplated in section 1 (1) (a)(ii)
and/or section 1 (1)(b) of the Intimidation Act, Act No 72 of 1982.
[15]
The applicants interpret (or as Mr Mashaba
describes it ‘accurately speculate’) the statement in
paragraph 46.1 of the
opposing affidavit in the third application as
an accusation by Mr Muller that the threats were made at their behest
to persuade
him not to persist with the actions brought by the
liquidators and to withdraw the opposition to the applications
referred to in
paragraph 11 above. The applicants claim in this
regard that:
(i)
they have “
a
fundamental right to protect [themselves] against any suggestion or
possible finding, (by a Court in the Main Application), that
[they]
have employed a ‘heavy’or ‘heavies’to
intimidate and to harass Mr Muller so that he is ‘persuaded’
from carrying out his legal obligations and, ... to withdraw the
legal actions against [them](and third parties in which [they]
have
an interest) and to withdraw the opposition by the liquidators of
[
Swifambo] to at least two pending applications and
possibly as regards the opposition by the liquidators of another
insolvent estate
(Railpro Holdings (Pty) Ltd), one of the liquidators
being Ndyamara [the third respondent]”.
(ii)
“
[
by]
virtue of... the serious nature of the unlawful misconduct of the
intimidator/s [the applicants] are compelled to protect [themselves]
(including [their] dignity and professional images)”
by
pursuing two courses of action. Firstly, lodge criminal
complaints against the intimidator/s because they have a “
fundamental interest
”
in the unlawful misconduct and have not only a right but a duty to
lodge a complaint with the South African Police Service.
Secondly,
demand that the intimidator/s “
suspend
”
the intimidate treat tactics against Mr Muller and in the event the
demand is not met, to bring an urgent application interdicting
further intimidation of Mr Muller.
(iii)
they have “
every
right to fear that the intimidator/s will continue with [the] threats
against [Mr] Muller as [they have] no doubt that Muller
has not
‘given into’ the threats i.e. the consequence of this is
that the intimidator/s will cause further prejudice
to [the second
applicant] and [Mr Mashaba] and more particularly [they] would
‘face’ additional criminal complaints
from [Mr] Muller
i.e. [they] obviously need to ‘stop intimidator/s’ in his
tracks
”.
(iv)
without
the name/s of the intimidator/s and the nature of the threats the
intimidator/s could continue “
the
campaign
”
to intimidate Mr Muller. The intimidation of Mr Muller will be
prejudicial to the applicants’ professional image
“
and
no doubt, the possibility exists that the Presiding Judge at the main
application
[1]
,
may question the conduct of the intimidator/s and whether [the
applicants] ‘played a part’ in the intimidation
process
”.
They also fear a complaint to the professional bodies to which they
belong and are concerned that criminal conduct
imputed to them will
be professionally detrimental.
[16]
The applicants submit that they have the
right (i) to preserve their professional status and dignity; and (ii)
to take steps against
the intimidator/s. To this end, they
require Mr Muller’s cooperation which has not been
forthcoming. They aver
that Mr Muller has “
resisted
[Mr Mashaba’s] attempts to obtain the demanded information
”.
[17]
In
the replying affidavit, the applicants call in aid various
provisions
[2]
in the
Constitution of the Republic of South Africa, 1996 (“the
Constitution”). As indicated earlier the applicants
did
not pursue the application on the constitutional grounds. Mr
Hollander argued that the applicants’ cause of action
is a
mandatory interdict; it is not located in the Promotion of Access to
Information Act, Act No. 2 of 2000 (this is of course
consistent with
the abandonment of a course of action located in the Constitution).
Have
the applicants made out a case for the relief sought?
[18]
The respondents deny that the applicants
have made out a case for an interdict. Their case is that the
law does not recognise
a right to information asserted by the
applicants nor a right to information for the purpose for which it is
being sought by the
applicants. In the notice of motion the
applicants seek an order compelling Mr Muller amongst others to
identify the person
who threatened him. Mr Muller disputes that
the applicants have a right to the information sought. In the
answering
affidavit Mr Muller reveals the identity of the person who
intimidated him (“
the
intimidator
”) . He further
discloses that he has preferred a charge of intimidation against the
intimidator at the Villieria police
station, identifies the date on
which this occurred and provides the case number. He mentions
that the intimidator “
held out to
[him] that he had been mandated by Mr Mashaba and Mr Cameron to
approach him”.
[19]
The applicants are seeking final
interdictory relief. They cannot succeed unless they
demonstrate the three requisites for
an interdict: (i) a clear right;
(ii) an injury has been committed or is reasonably apprehended; and
(iii) the only remedy they
can invoke to protect the right and avert
the injury, is an interdict. The first hurdle the applicants
must overcome is to
show that they have a clear right. If they
cannot do so, then the application must immediately fail.
[20]
I am unable to identify the right which the
applicants wish to protect by a prohibitory interdict. The
right identified in
the heads of argument appears to be a right to
information. While the Constitution guarantees a broad right to
information,
the applicants’ case does not rest in the
Constitution. (I am not required to make a finding whether
persons such as
the applicants may call the Constitution in aid
either directly, or through legislation contemplated in the
Constitution to give
effect to the broad right to information, for
the relief they seek. I therefore refrain from expressing a
view on the issue).
[21]
At
the hearing I invited Mr Hollander to identify the substantive right
which the applicants contend they wish to protect.
He argued
that a party does not have to show that an interdict is required to
protect a substantive right and a party may resort
to interdictory
relief to protect a procedural right. He submitted that the
right which the applicants sought to protect
stems from, and is the
right which Unterhalter J recognised in,
Nampak
Glass (Pty) Ltd v Vodacom (Pty) Ltd and Others
[3]
.
He submitted that if the applicants are unable to show that
Nampak
applies they must fail. He attempted to persuade me that the
facts align with those in
Nampak
.
[22]
Mr Terblanche SC, who appeared for the
respondents argued that interdictory relief is only available to a
party who is able to demonstrate
that a substantive right has been
infringed (or there exists a reasonable apprehension that this will
occur) and that an interdict
is required to prevent the infringement
and the resultant harm. He submitted that the decision in
Nampak
finds no application. I am inclined to agree with Mr
Terblanche.
[23]
Nampak is distinguishable and is not
authority for a right to seek the information which the applicants
seek. The first point
to be made is that Nampak was not seeking
an interdict but an order which Unterhalter J described as “
bear[ing] a certain family resemblance
to the Anton Pillar that preserves evidence in advance of the
institution of substantive
litigation
”.
[24]
Nampak
does not confer a substantive right to information. It confers a
procedural right to remedy the harm inflicted upon an injured
person.
[4]
It is to assist
a person wronged (victim) to identify the perpetrator to give effect
to a victim’s substantive right
which in Nampak was found to be
the right of a victim (or the person wronged) to access court to
remedy the harm suffered.
[25]
The court in
Nampak
found that Nampak had been wronged; it suffered a robbery and was
entitled to pursue an action against the wrongdoers if they could
be
identified. An order of the sort issued in Nampak is aimed at
assisting an injured person. Vodacom possessed information
that
might have assisted Nampak in identifying the perpertrators for it to
approach a court for relief remedying the wrong.
[26]
Unterhalter J adopted the decision in
Norwich Pharmacal Co and Others v
Customs and Excise Commissioners
[1973] UKHL 6
;
1974
AC 133
(HL) ([1973]
2 All ER 943)
and set out the conditions which an
applicant must satisfy for a court to exercise the power to issue an
order compelling the disclosure
of information and in this regard
stated as follows:
“
[16]
In English law, the requirements for obtaining
Norwich Pharmacal
relief have been summarised as follows:
‘
The
three conditions to be satisfied for the court to exercise the power
to order
Norwich Pharmacal
relief are:
(i)
A wrong must have been carried out,
or arguably carried out, by an ultimate wrongdoer;
(ii)
There must be a need for an order to
enable action to be brought against the ultimate wrongdoer; and
(iii)
The person against whom the order is
sought must (a) be mixed up in so as to have facilitated the
wrongdoing; and (b) be able or
likely to be able to provide the
information necessary to enable the ultimate wrongdoer to be sued.
[17]
Apart from these requirements, the court enjoys a discretion even if
the requirements are met, to determine whether an order
should be
granted and, if so, on what terms.”
[27]
There is a fundamental misunderstanding, of
the
Nampak
decision, on the part of the applicants. Unterhalter J found
that the common law should be developed to create procedural
mechanisms. However the circumstances under which the
mechanisms are available is limited as set out in
Norwich
Pharmacal
.
[28]
The relief granted in
Nampak
is available only to a person who has been injured or wronged and the
relief is available against a person who is “
mixed
up in so as to have facilitated the wrong
”.
The applicants have not proven that they have been wronged.
Furthermore, they are seeking relief against Mr
Muller who (i) is the
person wronged (Mr Muller has had a wrong perpetrated on him); and
(ii) did not facilitate the wrong.
The requirements for the
Norwich Pharmacal relief are not met in this case.
[29]
I accordingly find that the applicants have
not demonstrated a clear right for an interdict; the
Nampak
decision does not apply to this application. The applicants
have not overcome the first hurdle that confronted them; they
have
not satisfied the requirements for a final interdict. Nor have
they satisfied the requirements for the type of relief
granted in
Nampak
(the Norwich Pharmacal relief). This application must therefore
fail.
Costs
[30]
The respondents seek punitive costs against
the applicants, including Mr Cameron, on the scale between attorney
and own client.
I am not inclined to mulct the applicants with
punitive costs. There is however no reason why costs should not
follow
the result.
Order
[31]
Consequently, I make the following order:
(a)
The application is dismissed.
(b)
The applicants and Mr Cameron, must jointly
and severally pay the costs of the application as well as the costs
of the application
to strike out, which costs include the costs
occasioned by the employment of two counsel.
S
K Hassim AJ
Acting
Judge: Gauteng Division, Pretoria
(electronic
signature appended)
10
March 2021
This
judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
plaintiff’s legal representatives by email and by uploading it
to the electronic file of this matter on CaseLines.
The date
for hand-down is deemed to be 11 March 2021.
For
the applicants:
Adv. L Hollander
For
the first to fourth respondents:
Adv F H Terblanche SC
Adv JG
Cilliers SC
Adv H
Struwig
[1]
It
is not clear which of the application is the main application.
This is of no consequence in the adjudication of this
application.
[2]
Section
10(right to dignity), 32(1) (right information), and 38 (the right
to enforce in a court of law the Bill of Rights).
[3]
2019(1)
SA 257 (GJ).
[4]
Cf.
Nampak
para 11.