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[2021] ZAGPPHC 167
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M.S v D.S (15002/2020) [2021] ZAGPPHC 167 (29 March 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 15002/2020
Heard on:23 March 2021
Date of judgment: 29
March 2021
In
the matter between:
M[....]
S[....]
Applicant
and
D[....]
S[....]
Respondent
JUDGMENT
SWANEPOEL
AJ:
[1]
The applicant is Mr. D[....] S[....] (although he is referred to in
the application as the respondent). I shall refer to him
as 'the
applicant' and to Ms. S[....] as 'the respondent' as is proper.
Applicant applies in terms of rule 43 (6) that an order
granted by
Mokose J on 12 September 2020 be "set-aside and rescinded".
That order requires applicant to:
[1.1]
pay maintenance
pendente
lite
to respondent in the sum
of R 25 000.00 per month;
[1.2]
maintain respondent and her daughters as members of his medical aid;
[1.3]
pay respondent's daughter's cell phone accounts;
[1.4]
make a contribution towards respondent's costs in the sum of R 20
000.00.
[2]
The matter has quite a litigious history. After the rule 43 order was
granted on 12 September 2020, applicant launched an application
less
than a month later to set it aside. That application was also
ostensibly brought in terms of rule 43 (6). On 24 November 2020
Ranchod J dismissed the application. Respondent opposed the
application on two points in
limine
. The first was that the
application was an abuse of the process, in that it was a rescission
application disguised as a rule 43
(6) application. The second was
that no material change in circumstances had been demonstrated. The
first point
in
limine
was upheld. and the application
was dismissed with costs on the attorney/client scale.
[3]
This application was launched on 15 January 2021, less than two
months after the first rule 43 (6) application was dismissed,
and it
seeks the same relief as had been sought in the first rule 43 (6)
application. Applicant's counsel argued that the application
was not
a rescission application. but rather an application to vary the
maintenance amount to zero. The notice of motion, which
does not
comply with rule 43, says something completely different, and this
application seems to me to have been a second attempt
at the
rescission of the order of Mokose J. The applicant's sworn statement
also states that the application aims to "set
aside and rescind"
the order of Mokose J. In any event, due to the view that I take on
the matter, I will not be labour the
point.
[4]
Applicant admits freely that he has not paid anything towards
maintenance, and he says that he was unable to afford to pay any
money to respondent. Applicant says that the funds in his FNB and
Standard Bank accounts have been attached, and he therefore has
no
money available to satisfy the order. He alleges that the trust
relationship between himself and his erstwhile employer, Eminent
Group Holdings (Ply) Ltd ("Eminent or the company") has
broken down, and that he was dismissed following a disciplinary
hearing on 14 December 2020.
[5]
Applicant says that since 14 December 2020 he has had no income
whatsoever, and he cannot comply with the order. When the
respondent's
sworn reply was filed the arrears maintenance amounted
to R 150 000.00.
Applicant
alleges that his expenses amount to R 19 382.31 per month, and he
applies for an order that respondent should pay him
interim
maintenance of R 19 000.00 per month.
[6]
Respondent says that applicant is in fact the controlling mind behind
Eminent. Respondent was previously a director of Eminent,
and, she
says, they lived off the income generated by the company. If there
had been a disciplinary hearing, it had been instigated
by applicant,
and he will either simply be reinstated later, alternatively she
believes that he is still running the business
of the company under a
different guise. Respondent therefore disputes applicant's version
that he resigned or was dismissed, and
that he is destitute, in its
entirety.
[7]
There is a material dispute on the papers. In
Plascon
Evans Paints
(Ltd)
v
Van
Riebeeck
Paints
(Pty)
Ltd
[1]
it
was
held
that
in
applications
where a dispute of fact
arises, a court is bound
to
determine
the matter on
the
facts
pleaded
by
the
applicant
which
are
not
in
dispute, together
with
facts
pleaded by the respondent. If the case cannot be decided on that
basis,
then
the application cannot
succeed.
That,
it
seems
to
me, puts
paid
to
applicant's
case.
[8]
However, if I do consider the facts before me, I would have to say
that I do not believe applicant's version. On 10 June 2020
applicant
signed a letter on the company's letterhead in his capacity as
managing director in which he stated that two clients
who were
responsible for 80% of the company's total income had gone into
business rescue, causing the company to become financially
distressed. In applicant's sworn reply in the rule 43 application
dated 8 July 2020 he alleged that due to the Covid-19 pandemic
Eminent's income had been adversely affected, and he was in the
process of liquidating the company. Applicant was, at that stage
already, setting the scene that he was in financial trouble.
[9]
In the first rule 43 (6) application applicant blamed his erstwhile
attorney for not including all relevant information in his
original
sworn reply. He made embarrassing comments with regard to his
previous attorney's mental health, and he tried to shift
the blame
for the outcome of the rule 43 application onto his previous legal
team.
[10]
In his first rule 43 (6) sworn statement, which he deposed to on 6
October 2020, applicant alleged that he has never been a
shareholder
of the company. This averment is unlikely considering the fact that
applicant started the company in 2005, and that
he was its sole
director for some years. It also contradicts applicant's (undated)
financial disclosure form in which he said that
he owned 70% of the
shares in the company. In the same financial disclosure applicant
alleged that he had been retrenched due to
the company's dire
financial position. Mr. Botes, applicant's counsel, argued that it
was uncertain who had filled in the
form, and that it may not
have been the applicant. That contention is extremely unconvincing.
[11]
What I also find strange is that applicant, who was still a director
of the company at that stage, allegedly received a notice
on 10 June
2020 that the company was considering liquidation. Applicant used the
letter in support of his claim in the first rule
43 (6)- that the
company was insolvent. The "notice" was on a company
letterhead and simply stated that the company was
considering
liquidating itself. Ironically applicant himself was the author of
the letter. He had not 'received' the notice as
he alleged, he had
signed it himself in his capacity as managing director. Applicant
alleges that at a shareholders meeting held
on 26 June 2020 a
decision was taken to liquidate the company. This same 'insolvent
company' granted applicant a loan of R 160
000.00 on 31 July 2020, a
little more than a month after the decision to liquidate. On 15
September 2020, three days after the
order of Mokose J, applicant's
previous attorney wrote to respondent's attorney stating that
applicant had been "laid off
until 16 April 2020"
(sic)
and that he had received no income from June 2020 onwards. The letter
alleges that the directors (not the shareholders) of the
company,
(the directors being the applicant and one Van Rensburg at that
stage), had taken the decision to liquidate the company.
[12]
Miraculously. the company managed to survive until December 2020.
Equally miraculously, applicant remained employed. I am not
sure what
happened to his alleged retrenchment. Applicant remained a director
of the company until 10 December 2020 when he voluntarily
resigned, a
little more than a month after the first rule 43 (6) application was
dismissed. Applicant's version is that he was
summoned to a meeting
on 14 December 2020 where he was charged with gross negligence in
respect of conduct that had allegedly caused
the company to lose R
120 000.00.The chairperson of the disciplinary enquiry was allegedly
one Danie van Rensburg, an independent
person. Applicant had
apparently already decided to fall on his sword, to resign as a
director, and to plead guilty to the char9es.
Nevertheless1
Van Rensburg decided to proceed with the hearing in any event,
and he found applicant guilty of the charge
against him. Applicant
says he was dismissed as employee, and removed from office as
director. This version is hard to accept in
view of the fact that
applicant was not only the founder of the company, but he was also,
on his own version, a 70% shareholder.
Surely he would not simply
walk away from what is, essentially, his own company.
[13]
Strangely, the report on the hearing did not emanate from Van
Rensburg, but from someone within the company itself and was
written
on a company letterhead. It recorded that the majority of the board
of directors (the board then only being comprised of
Van Rensburg)
had decided to remove applicant as a director. The "board"
did so despite the fact that applicant had already
resigned four days
before the hearing was held. The report is remarkably bereft of
any
facts as to what applicant was supposed to have done to warrant his
dismissal. The report concludes with the following statement:
"'You
will receive your nonnal renumeration
for
services
rendered to date
less
all outstanding loans,
money
etc. and a final calculation
of
your
salary
will be
done after this.”
[14]
The report makes a mockery of applicant's version that he had not
received any money since June 2020. He was obviously receiving
a
salary, despite which he did not pay respondent one cent. There are
other discrepancies in applicants version, but I have made
my point
Applicant's version is simply unbelievable. I agree with respondent's
counsel that the application was an attempt at rescission,
contrary
to Mr. Botes' argument that it was intended to vary the Mokose J
order. I also agree that it was brought not because applicant
is
destitute, but because he simply does not want to pay respondent any
maintenance.
[15] Consequently I make
the following order:
[15.1]
The application is dismissed.
[1.5.2]
Applicant shall pay the respondent's costs on the attorney/client
scale, including the costs of senior counsel.
JJC
SWANEPOEL
ACTING
JUDGE OF THE HIGH COURT
GAIUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their 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 29 March 2021.
COUNSEL FOR
APPLICANT: Adv. F Botes SC
ATTORNEY
FOR APPLICANT: Dawte de Beer Attorneys
COUNSEL
FOR RESPONDENT: Adv. L Haupt SC
ATTORNEY
FOR THE RESPONDENT: Van Heerden & Krugel
Attorneys
HEARD
ON: 23 March 2021
JUDGMENT
ON: 29 March 2021
[1]
1984
(3)
SA
623
(AD)
at
634
H