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2021
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[2021] ZAGPPHC 225
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Liebman and Others v Moloto N.O and Others (86185/19) [2021] ZAGPPHC 225 (28 April 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1.
REPORTABLE:
NO
2.
OF INTEREST TO OTHER JUDGES:
NO
3.
REVISED
: YES
28/4/2021
CASE NUMBER:
86185/19
In the matter between:
BRADLEY BRETT
LIEBMAN
FIRST APPLICANT
ANDREA ANTHEA
LIEBMAN
SECOND APPLICANT
BRADLEY BRETT
LIEBMAN N.O.
THIRD APPLICANT
ANDREA ANTHEA
LIEBMAN N.O.
FOURTH APPLICANT
ALFREDO FIGUEIREDO PEREIRA CAMPOS N.O.
and
FIFTH APPLICANT
LEBOGANG
MICHAEL MOLOTO N.O
FIRST RESPONDENT
MABATHO SHIRLEY MOTIMELE N.O
SECOND RESPONDENT
MALEBO RIAN ELISA MOLOTO N.O
THIRD
RESPONDENT
THE MASTER OF
THE HIGH COURT
FOURTH RESPONDENT
REASONS FOR THE ORDER
MADE ON 17 MARCH 2021
COERTZEN
AJ:
[1] These are
the reasons for the order dismissing the application on 17
March
2021.
[2] In terms of
the notice of motion the applicants sought to interdict the
first,
second and third respondents (“the liquidators’) from
selling, disposing or otherwise alienating any of the
assets of Villa
Rivage (Pty) Ltd (in liquidation) - (‘Villa Rivage’),
pending the finalization of an action to be instituted
within 30 days
of the order to set aside the voluntary liquidation of Villa Rivage,
and/or from finalizing the winding up of Villa
Rivage, pending the
finalization of the contemplated action.
[3]
The liquidators opposed the application.
[4] Leading up
to the application, and since March 2019, there has already
been
extensive and acrimonious litigation between the first applicant and
his father relating to the different companies and entities
in which
they have or had interests. These entities are referred to by
the first applicant as “the Liebman Group”.
The
liquidators point out that on 6 December 2019 (after the date of the
institution of these proceedings) this court by order
of Van der
Westhuizen J
under case number 50451/ 2019, placed
seven
[1]
of the entities referred to by the first applicant as part of the
Liebman Group, in final liquidation. The first applicant’s
father was the applicant in those proceedings and the first
applicant, as the first respondent in those proceedings, opposed the
relief sought for final liquidation. Allegations of fraud,
mismanagement and
mala fides
were made and are made by the
first applicant against his father and
vice versa
.
The first applicant’s father deposed to a confirmatory
affidavit in support of the liquidators’
opposition to the
present application. This is yet another in a series of legal
proceedings resulting from a family dispute
between the first
applicant and his father. In his judgment Van der Westhuizen J
described the relationship between the first
applicant and his father
as:
“
The one regards the
other as either a patriarchal father or an insolent, insubordinate
and disloyal son.”
I must confess that is also my
impression from the papers.
[5] On date of
its liquidation the only directors of Villa Rivage were the
first
applicant’s father and the first applicant’s sister.
The first applicant and his wife (the second applicant),
occupy the
immovable property of Villa Rivage. The third to fifth applicants are
alleged in the founding affidavit to be the trustees
of the BBL
Trust. In respect of the BBL Trust the first applicant
alleges in the founding affidavit that “
the shareholding in
Villa Rivage and River Lake was held in the said companies as
nominees of the BBL Trust and the K&RL Trust,
for tax purposes.”
The statement is not further substantiated, but the allegation is in
any event disputed by the liquidators and the first
applicant’s
father.
[6] Villa
Rivage was placed in voluntary liquidation by way of a special
resolution on 8 August 2019. The notice of motion in this
matter is dated 13 November 2019 and was issued in this court as
far
back as 15 November 2019. The applicants’ replying affidavit is
dated 25 February 2020.
[7] It was
common cause at the hearing that the applicants have not instituted
an action as contemplated in terms of the notice of motion, or at
all. It was further common cause that none of the applicants
are directors, shareholders or creditors of Villa Rivage.
[8] Counsel for
the parties filed a joint practice note dated 10 March 2020
indicating the parties’ readiness to proceed with the matter.
THE APPLICATION FOR
REMOVAL:
[9] On the date
of hearing the applicants sought to merely remove the application
from the opposed motion court roll and tendered the costs. No
affidavit explaining the reasons for such request was placed
before
the court. Counsel for the applicants indicated orally from the bar
that the reason for the request was that the applicants
wished to
place a supplementary affidavit before the court, purportedly to more
clearly explain the applicants’
locus standi
, and to
rely on the provisions of s 388 of the Companies Act 61 of 1973 (‘the
Act’)
[2]
.
When I questioned her about the fact that nothing to this effect is
recorded in the joint practice note, counsel for the
applicants
indicated from the bar that the decision to request a removal of the
application from the roll, was only taken by the
applicants on the
morning of 16 March 2021 (i.e. the day before the hearing). Counsel
for the applicants readily conceded that
a reliance on s 388 of the
Act would at the very least have required an amendment of the relief
sought in the notice of motion,
as well as the leave of the court to
file further affidavits to sustain the relief provided for under the
section,
[3]
none of which were applied for, either in terms of an application to
amend, or in terms of a further affidavit presented at the
hearing.
[10] The applicants could have
approached the court in terms of the section, provided they
could
make out a proper case for relief under the section. The words
in s 388(1) “
any question arising in the winding-up”
and “
powers which the Court might exercise if the company
were being wound up by the Court”
, in my view however
presupposes a valid winding-up, which is contrary to what is alleged
in the applicants’ papers as they
stand at present.
[11]
The liquidators opposed the application to remove the application
from the roll.
[12] It is to be mentioned that
the liquidators’ attorney, who is also the attorney of
the
first applicant’s father (who resolved to place Villa Rivage in
liquidation), addressed a letter to the Acting Deputy
Judge President
on 22 September 2020.
[4]
The liquidators requested a date for special hearing of the opposed
motion because the papers in the application exceed 500 pages.
It is also stated in the letter that the first applicant’s
father is, as on date of the letter, already 84 years of age and
he
is in ill health. This fact is confirmed by the first applicant in
the founding affidavit. It is further stated in the
letter that
the litigation between the parties has a negative impact on the
health of the first applicant’s father and that
he needed to
tie up his legal affairs urgently.
[13] Although the applicants did
not apply for a postponement
per se
, the effect of the request
for removal was in my view nothing other than a request for a
postponement. I was not persuaded that
the applicants have shown good
cause. It appeared to me that to merely remove the matter in
these circumstances, would not
be in the interests of justice and
would cause an undue delay – See:
National Police Services
Union and Others v Minister of Safety and Security and Others
(CCT21/00)
[2000] ZACC 15
;
2000 (4) SA 1110
;
2001 (8) BCLR 775
(CC)
(27 September 2000) at paras 4 & 5. After considering the
arguments I refused the application to remove the matter.
[14] Counsel for the applicants
then informed me that the applicants wished to proceed to argue
the
main application on the papers as they are.
THE MAIN APPLICATION:
[15] The applicants must stand or
fall by their pleaded cause of action.
[5]
It is trite that the applicants must make out their case in their
founding affidavit.
[6]
[16] It remains unclear to me
what the basis of the relief is that the applicants will seek
in the
contemplated action. In paragraph 12 of the applicants’
heads of argument it is contended that the applicants
will seek an
order in the action to be instituted “
to declare the
voluntary liquidation of Villa Rivage unlawful due to the acts of
fraud committed”
.
[7]
In the founding affidavit the applicants rely on the alleged
“
unlawful voluntary liquidation of Villa Rivage”
by the first applicant’s father and the first applicant’s
sister. The first applicant states in the founding
affidavit:
“…
my legal representatives (i.e. my attorney and
Junior Counsel), have prepared a Combined Summons in which proposed
action I will
seek an order inter alia to set aside the aforesaid
fraudulent voluntary liquidation of Villa Rivage. I am informed that
at present,
my attorney only awaits the signature of the Particulars
of Claim thereto by Senior Counsel and Junior Counsel (both of whom I
am informed have served as acting judges in the last two weeks).”
[17] The applicants have not
instituted the action as contemplated in the notice of motion.
No such ‘draft’ particulars were placed before the court
at the hearing. The liquidators contend that the present application
is nothing more than a delaying tactic to frustrate the liquidation
process. When I questioned counsel for the applicants about
this, she
was simply unable to explain why the intended action has not yet been
instituted. Be that as it may, in the intended
action the
applicants would have to show special or exceptional circumstances
which justifies the setting aside of the voluntary
liquidation.
[8]
The applicants would also have to prove their
locus standi
to
the satisfaction of the court.
[9]
[18] The liquidators contend that
the applicants do not have
locus standi
. I have already
alluded to the fact that the applicants seemingly came to the
realisation on the eve of the hearing of the
application that the
allegations on which they rely in the founding affidavit, may not be
sufficient to sustain
locus standi
. In support of their
locus standi
the applicants rely on the first and second
applicants’ occupation of the property of Villa Rivage. It is
common cause that
the applicants remained in occupation of the
property after the failure of a bed and breakfast venture that was
being operated
from the property. It is common cause that there
is no lease agreement between the applicants and Villa Rivage.
It
is also not in dispute that the creditors of Villa Rivage remain
unpaid. Rand Merchant Bank (‘RMB’) has a claim
against Villa Rivage slightly in excess of R1 million. RMB’s
claim has its origin in a written suretyship executed
by the
applicant’s father in 2003, binding Villa Rivage as surety in
favour of RMB for a loan to the applicant’s father.
As
collateral RMB registered a mortgage bond over the immovable property
occupied by the first and second applicants. This
all happened
in 2003 already. Eskom, the Emfuleni Local Municipality and
another company referred to as Dibrajac (Pty) Ltd
(which appears to
have been deregistered), are listed on the Statement of Affairs as
unsecured creditors of Villa Rivage.
The liquidators state that
Villa Rivage has no means to pay its creditors. This is not
disputed in reply.
[19] It is common cause that the
liquidators, in terms of a warrant in terms of
s 69
of the
Insolvency
Act, 24 of 1936
, seized and removed certain movable assets from the
property. The first applicant opposed the application on the
return date
in the Magistrate’s Court, Vanderbijlpark.
The rule
nisi
in terms of which the warrant was issued, was
confirmed on 17 March 2020. The liquidators state that the
applicants have
to date not provided the liquidators with proof of
ownership of the movable assets, apart from a BMW X3 motor vehicle
which was
returned to the first applicant. There can therefore
be no question of irreparable harm.
[20] It appeared to me that as
far as
locus standi
and the applicants’ alleged
entitlement to an interim interdict are concerned, the applicants’
case is based on general
allegations of fraud on the part of the
first applicants’ father and on the part of the first
applicant’s sister; in
relation to the businesses of the first
applicant and his father; in relation to the appointment of the first
applicant’s
sister as a director of Villa Rivage; and in
relation to the resolution to place Villa Rivage in voluntary
liquidation. The high-water
mark for the applicants in this regard
appears to be the following statement in the founding affidavit:
“
I submit that my father, sister and Stanger
[the
father’s attorney and attorney of record for the liquidators]
,
have conspired together to fraudulently place the company into
voluntary liquidation as aforesaid, with the sole intention of
ferreting off to my father, the surplus proceeds that will become
available upon the dissolution of the winding up proceedings,
alternatively, the assets of the company.”
[21] A party wishing to rely on
fraud must not only plead it but must also prove it clearly
and
distinctly.
[10]
There is nothing on the papers to show that the applicants have
sufficient legal interest to seek to set aside the voluntary
liquidation
of Villa Rivage. The applicants have further in my
view not shown that
prima facie
Villa Rivage was “
placed
into fraudulent and unlawful voluntary liquidation”
, as
contended in the applicants’ heads of argument, or that some
other reason existed why the company should not have been
placed in
voluntary liquidation, or that subsequent events
would
entitle the applicants to seek to set aside the liquidation.
[22] Temporary restraint against
the exercise by the liquidators of their statutory powers
may be
granted only in the clearest of cases.
[11]
[23] The granting of an interim
interdict pending an action is an extraordinary remedy within
the
discretion of the Court.
[12]
[24] In the result the applicants
have not in my view shown on the papers that they have a
prima
facie
right to the relief sought and have not satisfied the
requirements for the granting of an interim interdict.
[13]
[25] For these reasons I
dismissed the application and ordered the applicants, jointly and
severally, to pay the liquidators’ costs.
YVAN COERTZEN
ACTING JUDGE OF THE HIGH
COURT
GAUTENG DIVISION,
PRETORIA
Date of
hearing:
17 March 2021
Date of the
order:
17 March 2021
Date of reasons:
28 April 2021
These reasons were handed
down electronically by circulation to the parties’ legal
representatives by email and by uploading
to the digital CaseLines
system. The date and time for hand-down is deemed to be at
10h00 on 28 April 2021.
Appearances:
Counsel
for the applicants:
Adv H Worthington
Attorneys for the applicants:
David Kotzen
Attorneys
Counsel
for the respondents:
Adv N Nortje
Attorneys for the respondents:
Aaron Stanger & Associates
[1]
These are the following:
Atherb Investments (Pty)
Ltd; OVH Unit No 12 CC; Sweet Loft Properties.(Pty) Ltd; Golden
Wedge Trading (Pty) Ltd; Great Space
Trading (Pty) Ltd; Panaway
Properties (Pty) Ltd and Pollick Properties (Pty) Ltd.
[2]
The section provides:
‘
(1) Where a
company is being wound up voluntarily, the liquidator or any member
or creditor or contributory of the company may
apply to the Court to
determine any question arising in the winding-up or to exercise any
of the powers which the Court might
exercise if the company were
being wound up by the Court.
(2) The Court may, if
satisfied that the determination of any such question or the
exercise of any such power will be just and
beneficial, accede
wholly or partly to the application on such terms and conditions as
it may determine, or make such other order
on the application as it
thinks fit.’
[3]
For instance, to hold an enquiry into the affairs of the company in
terms of
s 417
&
418
– See:
Swart v Heine and Others
(192/2015)
[2016] ZASCA 16
(14 March 2016);
[2016] JOL 35469
(SCA)
at paras 2 & 8.
[4]
A copy of the letter is uploaded on CaseLines.
[5]
Khumalo and Another v Member of the Executive Council for Education:
KwaZulu Natal (CCT 10/13)
[2013] ZACC 49
;
2014 (3) BCLR 333
(CC);
(2014) 35 ILJ 613 (CC);
2014 (5) SA 579
(CC) (18 December 2013) at
para 90.
[6]
Bowman N.O. v De Souza Roldao
1988 (4) SA 326
(T) at 327.
[7]
The applicants’ heads of argument were drafted by different
counsel than who appeared at the hearing.
[8]
Ward v Smit: In re Gurr v Zambia Airways Corporation Ltd 1998 (3) SA
175 (SCA).
[9]
Ex parte Strip Mining: In re Natal Coal Exploration Co Ltd
1999 (1)
SA 1086
(SCA) at 1091 - 1092.
[10]
Blue Crane Eco Mall Ltd and Another v Oh My Restaurants and Coffee
Shops (Pty) Ltd & Nikkel Trading 59 Ltd and Another
(2017/21216/21) [2017] ZAGPJHC 280 (5 October 2017) at para 26.
[11]
National Treasury and Others v Opposition to Urban Tolling Alliance
and Others (CCT 38/12)
[2012] ZACC 18
;
2012 (6) SA 223
(CC);
2012
(11) BCLR 1148
(CC) (20 September 2012) at para 47.
[12]
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and another
[1973] 4 All SA 116 (A).
[13]
Which are a
prima facie
right, a well-grounded apprehension
of irreparable harm if the interim interdict is not granted; the
balance of convenience must
favour the applicant and there must no
ordinary remedy.