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[2021] ZAGPPHC 361
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Muller and Others v Gomes and Another (8699/2020) [2021] ZAGPPHC 361 (18 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO.: 8699/2020
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
JOHANNES
ZACHARIAS HUMAN MULLER N.O First
Applicant
AVIWE
NTANDAZO NDYAMARA N.O.
Second
Applicant
MANTLA
PROFESSOR MADLALA N.O. Third
Applicant
(In
their capacities as the joint liquidators of
SWIFAMBO
RAIL LEASING (PTY) LTD:
Registration
No. 2010/007968/07)
AVIWE
NTANDAZO NDYAMARA N.O. Fourth
Applicant
NICHOLAS
TIMKOE N.O.
Fifth
Applicant
(In
their capacities as joint liquidators of SWIFAMBO
RAIL
HOLDINGS (PTY) LTD: Registration No. 2011/109702/07)
And
DOMINGOS
FRANCISCO ANTONIO GOMES
First
Respondent
MARIA
CAETANO DA CRUS GOMES
Second Respondent
JUDGMENT
van
der Westhuizen, J
[1]
This is an application for leave to amend particulars of claim in an
action
instituted by the applicants, as plaintiffs in their
respective capacities as joint liquidators of two companies in
liquidation,
against the respondents, as defendants in the action.
This application for leave to amend is opposed.
[2]
On being served with the combined summons issued by the applicants,
the
respondents filed a notice of intention to defend the action
against them. In response to the summons, the respondents served a
notice in terms of the provisions of Rule 23(1) calling upon the
plaintiffs to remove a cause of complaint, on the grounds that
the
particulars of claim are vague and embarrassing and/or lack averments
to sustain a cause of action. Having received no response
to the Rule
23(1) notice, the respondents filed an exception to the applicants'
particulars of claim.
[3]
The applicants thereupon gave notice of an intention to amend their
particulars
of claim. A notice of objection by the respondents was
filed in response to the notice of the intention to amend. The
applicants
filed a formal application for leave to amend their
particulars of claim. The formal application for leave to amend was
supported
by an affidavit. The respondents filed an opposing
affidavit to which the applicants replied.
[4]
For the purposes of this judgment, it is required to restate the
requirements
when a party intends to amend its pleadings and those
when such application is objected to.
[5]
Rule 28 of the Uniform Rules of Court stipulates the provisions that
apply
when a party intends to amend its pleading. These are:
(a)
A party who desires to amend a pleading, excluding a sworn statement,
shall
give notice of such intention to all parties;
(b)
The said notice shall state that unless written objection to the
proposed amendment
is delivered within a stipulated time, the
amendment would be effected;
(c)
An objection to a proposed amendment shall clearly and concisely
state
the grounds upon which the objection is founded;
(d)
If an objection that complies with the stipulated requirements is
received within
the prescribed time period, the party wishing to
amend may, within a stipulated time period, lodge an application for
leave to
amend;
(e)
Should no objection to the proposed amendment be delivered, every
party who
received the notice of intention to amend shall be deemed
to have consented to the amendment and the party wishing to proceed
with
the amendment shall effect the amendment in the prescribed
manner;
(f)
Where a court has granted an order for amendment, the amendment shall
be effected in the prescribed manner within a stipulated time period;
(g)
A party affected by the amendment may within a stipulated time period
make any
consequential adjustments to its pleading, and may take the
steps contemplated in Rules 23 and 30 of the Uniform Rules of Court;
(h)
A party giving notice of an amendment shall, unless a court otherwise
direct,
be liable for the costs occasioned by the amendment.
[6]
The respondents lament the applicants' approach to this application
for
leave to amend. First and foremost, the respondents submit that
the proposed amendment does not address the grounds of objection,
and
in the event that the amendment is granted, their objections would
remain. The respondents secondly lament, in the form of
a point
in
limine
taken in their opposing affidavit, that the applicants did
not deliver their application for leave to amend within the
prescribed
time period and hence fell foul of the provisions of Rule
30. However, the respondents did not proceed with the steps to be
taken
as provided in Rule 30. No notice in terms of Rule 30(2) was
delivered, and furthermore, the respondents filed their opposing
affidavit
in lieu thereof, thus taking a further step as contemplated
in Rule 30. Nothing turns on that issue and the point
in limine
stands to be refused. It is to be recorded that the opposing
affidavit is deposed to by the respondents' attorney of record, no
confirming affidavit from either of the respondents was filed.
[7]
The respondents' exception in terms of Rule 23, as uploaded on
CaseLines,
is illegible. It appears as an attachment to the
opposing affidavit. The applicants have summarised the grounds in
their founding
affidavit in support of their application for leave to
amend. The respondents do not appear to dispute that summary.
[8]
The applicants state in their application for leave to amend that the
proposed amendment is pursued, not in acknowledgement of the
complaints, but in an endeavour to obtain a proper ventilation of the
dispute between the parties, so that justice may be done.
[9]
In their exception, the respondents raised 7 grounds. Those are:
paragraph
4 of the particulars of claim was vague and embarrassing,
lacking sufficient particularity to sustain the allegation; paragraph
5.5 of the particulars of claim was vague and embarrassing, lacking
sufficient particularity to support the allegation; a failure
to
plead a connection between Railpro and Swifambo, and Railpro and
Prasa respectively, having pleaded in paragraph 1 (sic) read
with
paragraphs 3.5 and 3.6 of the particulars of claim that Railpro and
Swifambo are separate entities; issue is taken with the
misnumbering
in the particulars of claim at paragraph 7 thereof; a failure to
disclose a cause of action for the purposes of
section 26
of the
Insolvency Act, 24 of 1936
by failing to disclose who had made the
disposition; a failure to disclose a cause of action for the purposes
of
section 31
of the
Insolvency Act by
failing to plead the conduct
of the respondents amounting to collusive and/or fraudulent conduct;
a failure to disclose a cause
of action for the purposes of the
Actio
Pauliana
by failing to plead which entity's estate was diminished
and in what manner. Railpro and Swifambo are the two entities that
are
in liquidation.
[10]
Having delivered the exception following on the notice to remove the
cause of complaint, the respondents failed to enrol the
exception,
presumably due to the filing of the notice of intention to amend the
particulars of claim. The respondents hold the
view that that
exception remains and would be enrolled for adjudication, once this
application for leave to amend the applicants'
particulars of claim
has been dealt with.
[11]
The exception is directed at the applicants' particulars of claim as
un amended. The
objection raised in terms of
Rule 28(3)
is aimed
at the proposed amendment of the particulars of claim. In their
opposing affidavit, the respondents raise grounds of objection,
which
allegedly differ from those stipulated in their notice to remove the
cause of complaint in terms of
Rule 23.
In their opposing affidavit
the respondents rely on 5 grounds of opposition.
[12]
A copy of the notice of objection filed in response to the
application for amendment was
attached to the answering affidavit and
was not uploaded separately on
CaseLines.
When documents are
not uploaded onto
CaseLines
in an appropriate manner,
navigating through a maze of documents bundled together, makes it
extremely difficult to adjudicate upon
the matter. What further
complicates the adjudication of this matter is the fact that the
respondents did not upload onto
CaseLines
their notice calling
for the removal of the cause for complaint in terms of the provisions
of
Rule 23(1).
[13]
The respondents' notice of objection in terms of
Rule 28(3)
does not
comply with the requirements of the said Rule. Apart from an oblique
reference to the notice filed in terms of
Rule 23(1)
, the specific
grounds of objection are not clearly determinable. This is more so
where the objector raises different grounds in
its opposing
affidavit. The primary objection raised in the
Rule 28(3)
notice is a
lamentation of apparent non-compliance on the part of the applicants
with regard to prescribed time periods in respect
of an application
for leave to amend. This complaint would provide a basis for a
Rule
30
notice. It does not form a basis for objection as contemplated in
Rule 28(3).
The
Rule 30
approach was glaringly not followed by the
respondents.
[14]
As recorded earlier, the complaint raised in the notice of objection
relating to the proposed
amendment, obliquely records that the
proposed amendment would not address the issues raised earlier in the
notice in terms of
Rule 23(1).
The grounds of objection are thus to
be determined with reference to a different document (which is not
accessible), and clearly
does not comply with the requirements of
Rule 28(3).
If that process is to be followed, then it is not
understood why different, and less, grounds were raised in the
opposing affidavit,
particularly when no indication is given which of
the initial 7 grounds have become resolved. The notice of objection
in terms
of
Rule 28(3)
does clearly not comply with the requirements
of being "clear and concise". An oblique reference to a
different document
is not
"clear and concise"
.
[15]
Furthermore. the respondents in their opposing affidavit record
emphatically that the
"majority of the proposed amendments
are uncontroversial and merely address
a
number of drafting
errors in the particulars of claim".
The respondents then
state that having regard to the exception and the
Rule 28(1)
notice,
"there are
a
number of causes of complaint which arise
and render the proposed particulars of claim excipiable for the
purposes of Uniform
Rule 23.
"
[16]
What is then pied, are grounds of objection that relate to different
paragraphs in the
particulars of claim, with oblique reference to the
initial particulars of claim in its un-amended form. The focus is
diverted
to different complaints.
(a)
In ground one, and with reference to paragraphs 5, and 8 of the
proposed
amendment, the focus is on payment of amounts that
apparently do not implicate the respondents;
(b)
Ground two is directed at paragraph 7 of the proposed amendment. The
complaint
is that the proposed amendment lacks clarity as to what
money was
"disbursed"
by the defendants due to
further lacking allegations of what moneys they had received. This
ground is linked to the first ground;
(c)
In ground three it is alleged that an increase of the amount
initially
claimed is sought in the proposed amendment. The complaint
raised is that no allegations are pleaded to support any
alternative
amount claimed as proposed to be amended. The complaint is
directed at an alleged "no connection" between Railpro and
the respondents;
(d)
Ground four is directed at a lack of support for alternative claims,
either
in respect of amounts, or parties;
(e)
The fifth ground relates to proposed paragraphs 9,10 and 11 of the
proposed
particulars in its amended form that relate to the claims
under
sections 24
and
31
of the
Insolvency Act and
it is stated that
those paragraphs remain excipiable. The complaint in a non-specific
manner being apparently one of lack of particularity.
[17]
From the opposing affidavit, read as a whole, it appears that the
only connecting theme
between the exception (which is accessible) and
the
Rule 28(3)
objection is that of a lack of particularity. That
issue is insufficient to determine what the precise complaint of the
respondents
is.
[18]
Considering the respondents' objections, one apparently has to read
the exception (which
is accessible) together with the complaints set
out in the opposing affidavit, despite not being clearly stated, or a
request,
to do so. The respondents in their opposing affidavit fail
to deal with the grounds raised in the
Rule 23(1)
notice to remove
the cause of complaint, or the exception. The court is now required
to wade through the exception and the opposing
affidavit to ascertain
the
"clear and concise"
objections supposedly raised
by the respondents in their non specific
Rule 28(3)
notice. That
clearly does not comply with the requirement of
"clearly and
concisely".
[19]
It is clear
from a purposive reading of the respondents' exception and their
subsequent
Rule 28(3)
objection, that the respondents pick on
specific passages in the particulars of claim as un-amended and the
proposed amendment.
However, the respondents fail to read those
passages in their respective own contexts and fail to read same
within the respective
contexts of the two documents as a
whole.
[1]
[20]
When reading the initial particulars of claim as a whole, and in
conjunction with the proposed
amendment as a whole, in my opinion,
the particularity pied is sufficient to enable the respondents to
plead thereto. The applicants
are not obliged to plead the
facta
probantia,
but only the
facta
probanda
in
support of the particular cause of action. From the aforementioned
lamentations of the respondents, they seek detailed allegations
in
regard to the pied causes of actions. The respondents are not
entitled to that. That much would be revealed by the evidence,
such
of which the applicants may be able to present to the court.
[21]
Mr Eagon, who appeared on behalf of the respondents, readily conceded
that the respondents
required
"more flesh to the skeleton".
The submission was not that the
"skeleton"
was
indeed lacking in itself, which may have altered the position in
respect of any objection raised. The said concession implied
"some
flesh" having been pied, i.e. that at least the skeletal
averments in respect of the cause of action were pied.
The
"more
flesh"
required relates to
facta probantia
to support
the
facta probanda
pied.
[22]
What is
required of a party is to either admit, or to deny, or to confess and
avoid the allegations pled.
[2]
This, in my view, the respondents can do. From the foregoing there is
no merit in the oblique objection raised to the proposed
amendment.
It follows that the application to amend stands to be
granted.
[23]
There remains the issue of costs. The applicants seek an indulgence
and in terms of the
provisions of
Rule 28
, the applicant should bear
the costs occasioned by the amendment. However, the applicants seek a
punitive costs order on
the
ground that the opposition was
frivolous. On the other hand, the respondents also seek a punitive
costs order.
[24]
In my view, both parties have been remiss in following and complying
with the stipulated
requirements relating to amendment of pleadings
and the opposition thereto as recorded earlier. A fair and reasonable
order in
this matter would be one that each party is to pay its own
costs.
I
grant the following order:
1.
The plaintiffs' particulars of claim are to be amended in terms
of
the plaintiffs' Notice of Amendment dated 30 June 2020 and annexed
hereto marked NOA1-NOA18;
2.
The plaintiffs are directed to deliver the amended pages of
their
particulars of claim within 10 days from the date of this order;
3.
The normal Court Rules will apply for the delivery of any subsequent
pleading by the defendants;
4.
Each party is to pay its own costs.
CJ
VAN DER WESTHUIZEN
JUDGE
OF THE HIGH COURT
On
behalf of Applicant: P
J Greyling
Instructed
by:
Schabert
Potgieter Attorneys
On
behalf of Respondent: G
R Eagon
Instructed
by:
Chris Greyvenstein Attorney
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case number: 8699/2020
JOHANNES
ZACHARIAS HUMAN MULLER
N.O.
FIRST PLAINTIFF
AVIWE
NTANDAZO NDYAMARA
N.O.
SECOND
PLAINTIFF
MANTLA
PROFESSOR MADLALA
N.O.
THIRD
PLAINTIFF
(In
their capacities as the joint liquidators of
SWIFAMBO
RAIL LEASING (PTY) LTD
Registration
number 2010/007968/07, in liquidation)
AVIWE
NTANDAZO NDYAMARA
N.O.
FOURTH
PLAINTIFF
NICHOLAS
TIMKOE
N.O.
FIFTH
PLAINTIFF
(In
their capacities as the joint liquidators of
SWIFAMBO
RAIL HOLDINGS (Pty) Ltd
Registration
number 2011/109702/07, in liquidation)
And
DOMINGOS
FRANCISCO ANTONIO GOMES FIRST
DEFENDANT
MARIA
CAETANO DA CRUS GOMES
SECOND
DEFENDANT
NOTICE
OF AMENDMEND
PLEASE
TAKE NOTICE
that the Claimants intend to amend its Particulars of
Claim dated the 4th of February 2020.
PLEASE
TAKE
FURTHER NOTICE
that the Claimants
intend to amend its Particulars of Claim in the following respects:
1.
By
inserting a new paragraph 1.3.1 which reads as follows:
"1.3.1
The First to Third Plaintiffs will collectively be referred to as
the "Swifambo liquidators".'
2.
By inserting a new
paragraph 1.7.1 which reads as follows:
"1.7.1
The Fourth and Fifth Plaintiffs will collectively be referred to as
the "Railpro liquidators"
3.
By
deleting the word
"Applicant'
and substituting it with
the word
"Plaintiff'
where it appears in paragraphs 1.6
and 1.7 respectively.
4.
By
correcting the name of the First Defendant where it appears in
paragraph 2.1 by substituting
"Anotnio"
with
"Antonio".
5.
By
deleting the content of paragraph 3.8.3 and substituting it with the
following:
3.8.3
"did not have a B-BBEE plan for the procurement of goods and
services for the duration of the
contract;"
6.
By
deleting the words "the insolvent company" in paragraph
3.10 and substituting it with the word
"Swifambo".
7.
By
inserting the words
"by Swifambo,"
after the words
"On appeal to if'
in paragraph
3.15.
so that the amended paragraph 3.15 reads as follows:
8.
By
deleting the current paragraph 4 in toto.
9.
By
renumbering paragraphs 5.1 to 5.4 to 4.1 to 4.4.
10.
By
inserting a new paragraph 4.5 which reads as follows:
"4.5
Knew Mr Auswell
Mashaba;
11.
By deleting the current
paragraph 5.5 in toto and substituting it with a new paragraph 5
which reads as follows
"5. Swifambo,
Railpro and Mr Auswell Mashaba (being both entities' only director),
together with Mr Makhensa Mabunda, Mr Lucky
Montana and the
Defendants knew that the tender process was irregular, as set out in
paragraph 3 supra and conspired to a fraudulent
scheme to utilize
this irregular process to ensure that Swifambo is awarded the tender
and subsequent contract
HO/SCM/223/11/2011 and
in
so
doing to defraud
PRASA
by;
5.1
Using the position of Mr Lucky Montana at PRASA during
the relevant
period as the GCEO to ensure that the tender and subsequent contract
is awarded to Swifambo;
5.2
Using Makhensa Mabunda to assist Swifambo, Railpro and Auswe/1
Mashaba in preparing and setting up the tender process
and
fraudulent scheme;
5.3
Using Railpro as an agent and payee of monies authorised to be
paid to Swifambo by PRASA under the above tender and subsequent
awarded
contract so as to sypher monies away from Swifambo;
5.4
Using the Defendants and their company Similex to act as a
conduit to orchestrate the flow of monies syphered away from Swifambo
to
Railpro and onwards to Simile
x;
5.5
Using the monies paid to Simi/ex for their personal benefit;
5.6
Using Simi/ex to further sypher monies to other third-party
beneficiaries;
5.7
Acting as aforesaid, the Defendants knew that -Swifambo will
never be in
a
position to honour its obligations towards PRASA
in terms of the awarded tender and subsequent contract
HO/SCM/223/11/2011 and defrauded
PRASA.
12.
By
deleting the current paragraphs 5.6 to 5.6.7 in toto.
13.
By
deleting the first sentence of the current paragraphs 6 and replacing
it with the following:
"6.
In
furtherance of the fraudulent scheme, set out in paragraph 4 and
5
above, PRASA was instructed to make payment of the first and
second amounts payable in terms of the contract HOISCM/223/11/2011 to
Railpro, instead of Swifambo and PRASA paid to Railpro the following
amounts:"
14.
By
amending the amount set out in paragraph 6.2 to
R444
565
613.96.
15.
By
inserting a new paragraph 7 which reads as follows:
"7.
In
furtherance of the fraudulent scheme, set out in paragraph 4 and 5
above, and after PRASA effected the payments, as set out in
paragraph
6 above, the Defendants:
7.1
used AM Consulting Engineers (Pty) Ltd to redistribute monies so
received;
7.2
used AM Investments (Pty) Ltd to redistribute monies so received;
7.3
used Nkosi Sabelo Incorporated Attorneys to redistribute monies so
received;
7.4 used
Knowles Hussain Lindsay Incorporated Attorneys to redistribute monies
so
received;
7.5
used Moyo Incorporated Attorneys to redistribute monies so received;
7.6
used Similex to redistribute monies so received.
16.
By renumbering the old
paragraph 7 to 8 and by deleting the content in toto and substituting
same with the following:
"8.
In
furtherance of the 'fraudulent scheme, set out in paragraphs 4, 5,
and 7 above, and after PRASA effected the payments,
as
set out
in paragraph 6 above, the Defendants paid out monies
as
follows:
8.1
AM Investments (Pty) Ltd
-
R31246859.88 (Attached
hereto as
annexure "C"
is
a detailed breakdown of the payments made and the amounts
so
paid
on
each
occasion as
if
it
was
specifically incorporated and pleaded herein);
8.2
AM Consulting Engineers (Pty) Ltd
-
R29 845 745.72;
(Attached
hereto
as
annexure "D"
is
a detailed breakdown of the payments made and
the amounts so
paid on each occasion as if it was specifically incorporated and
pleaded herein);
8.3
Nkosi Sabela
Inc:
8.3.1
R14·300 000.00 on 11 March
2013;
8.3.2
R14
200
000.00
on
22
March
2013;
8.4
Knowles Hussain Lindsay Inc
-
R10 400
000.00;
8.5
Moyo Attorneys
-
R10 400
000.00;
8.6
Simi/ex (Pty) Ltd as
follows:
8.6.1
R14
100
000.00
on
10
January 2014;
8.6.2
R14
500
000.00
on
20
January
2014;
8.6.3
R9 400 000.00 on 6 May 2014;
8.6.4
R2 050 000.00 in cash (The Plaintiffs are unaware who withdrew
or handed over the cash payments and who received same);
8.6.5
R90 000.00 in cash (The Plaintiffs are unaware who withdrew or
handed over the cash payments and who received same).
8.7
All the payments made from Railpro and set out in paragraphs 8
to 8.6.5 above
to
the
Defendants,
Similex and
the
other
entities
in
the
furtherance of the
fraudulent scheme, as set out in paragraphs 4, 5 and
7
above,
constitutes "dispositions" in terms of
section 2
of the
Insolvency Act, Act
24 of 1936.
17.
By renumbering the old
paragraph 8 to 9 and by deleting the content in toto and substituting
same with the following:
"CLAIM
1
.
CONTRAVENTION
OF SECTION 26
OF
ACT 24 OF 1936:
The
dispositions:
9.1
Set out in paragraph 6 above and made in consequence to the
fraudulent scheme; set out in paragraphs 4, 5, and 7 supra, from
PRASA
to Railpro, of monies belonging to Swifambo, were made not for
value;
9.2
Set out in paragraph 8 (and subparagraphs there) above and
made in consequence to the fraudulent scheme, set out in paragraphs
4, 5, and 7
supra, from Railpro to the entities listed in
paragraph 8, were made not for
value;
9.3
Were all made within two years before the liquidation of the
estates of:
9.3.1
Swifambo, in circumstances where the liabilities of Swifambo
exceeded its
assets
immediately
thereafter;
9.3.2
Railpro, in circumstances where the liabilities of Railpro
exceeded its assets immediately thereafter;
9.4
Alternatively, were all made more than two years before the
liquidation of:
9.4.1
Swifambo, in circumstances where the liabilities of Swifambo
exceeded its assets immediately
thereafter;
9.4.2
Railpro, in circumstances where the liabilities of Railpro
exceeded its assets immediately thereafter;
9.5
As
a result each and every disposition must be
set
aside
in terms of
section 32(3)
of the
Insolvency Act, 24 of 1936
."
18.
By
renumbering the old paragraph 9 to 10 and by deleting the content in
toto and substituting same with the following:
"CLAIM
2
CONTRAVENT/ON
OF SECTION 31 OF ACT 24 OF 1936:
10.1
As
a result of the fraudulent scheme,
as
set out in
paragraphs 4,
5,
6,
7
and 8 supra, the Defendants acted
collusively and fraudulently in conjunction with Swifambo,
Railpro,
Auswell
Mashaba ,
Makhensa
Mabunda
and
Lucky
Montana prior to liquidation of Swifambo and Railpro;
10.2
The
collusive and fraudulent actions of the
Defendants, as set
out in
paragraphs
4, 5, 6, 7 and 8 supra, have prejudiced the creditors of Swifambo and
Rai/pro to the
extent
that
no
recipient of these monies
were ever a creditor of
Swifambo and Railpro or had any other entitlement to receive payment
of these monies;
10.3
As a result each and every of these transactions must be set
aside in terms of
section 31(1)
of the
Insolvency
Act;
10.4
In
setting aside the transactions the Swifambo liquidators,
alternatively the Railpro liquidators are entitled to and order for
the
return
of the amounts paid in terms
of
section 32(3)
of the
Insolvency Act;
10.5
Further
, in setting aside the payments made the court should
impose a reasonable penalty in terms of
section 31(2)
the Act."
19.
By renumbering the old
paragraph 10 to 11 and by deleting the content in toto and
substituting same with the following:
"CLAIM
3
ACTIO
PAULIANA:
As
a
result
of the
fraudulent
scheme, set
out
in
paragraphs 4,
5,
and
7
supra
and
as
a further result of the payments made subsequent
thereto in terms of paragraphs 6 and 8
supra:
11.1
The insolvent estates of Swifambo and Railpro were diminished by the
Defendants' actions;
11.2
The
Defend
ants
were first receiver of the monies,
as
set out in
paragraphs 6 and 8,
albeit only
as
a
conduit in
certain instances, and that the monies were
those of the insolvent
estates;
11.3
The Defendants' scheme had the intention to
defraud;
11.4
The Defendants' fraud had its
effect;
11.5
Alternatively, that the Defendants received the monies ex
titulo lucrative
(as
a donation or any other lucrative
dealing) and in circumstances where Swifambo, Railpro or their
directors, committed and or knew
about the fraud or acted ma/a fide,
knowing that Swifambo and Railpro were
insolvent.
11.6
As
a result all
these transactions must be set
aside."
20.
By
renumbering the old paragraph 11 to 12 and to substitute it with the
following:
WHEREFORE
the Plaintiffs pray for judgement against the Defendants, jointly
and severally, the one to pay the other to be absolved as follows:
(1)
A declarator that all the payments made to the persons and/or
entities
listed in paragraph 8 be set aside;
(2)
The Defendants be ordered to pay to the Swifambo liquidators the
amount
of R905 091 929.75, alternatively the amount of R150 532
605.60 together with any reasonable penalty the court may impose in
terms
of
Section 31
of the
Insolvency Act, Act
24 of 1936;
(3)
Alternatively, the Defendants be ordered to pay to the Railpro
liquidators
the amount of R905 091 929.75, alternatively the amount
of R150 532 605.60 together with any reasonable penalty the court may
impose
in terms of
Section 31
of the
Insolvency Act, Act
24 of 1936;
(4)
Interest a tempora mora at 10% interest from date of judgment to date
of payment thereof;
(5)
Costs of this action on the scale as between attorney and own client.
PLEASE
TAKE FURTHER NOTICE
that you are required to within 10 (ten) days
of receipt hereof lodge your notice of objection to the said
amendments and in the
absence whereof the proposed amendments will
be.affected.
Signed
and dated at Pretoria on this 30
th
day of June 2020.
SCHABORT
POTGIETER ATTORNEYS
ATTORNEYS
FOR THE PLAINTIFF
189
SOUTPANSBERG ROAD
RIVIERA
PRETORIA
TEL
012 329 0179
EMAIL
admin@schabortpotgieter.co.za
REF
K SCHABORT/S9/20(K)
TO:
THE
REGISTRAR OF THE HIGH COURT
GAUTENG DIVISION,
PRETORIA
AND
TO: THE DEFENDANTS
CHRIS GREYVENSTEIN
ATTORNEYS
804 TERBLANCHE STREET
RIETFONTEIN
PRETORIA
Swifarnbo
Rail Holdings (Pty) ltd
Payments
to AM Investments from Standard Bank account 202538117
No
Date
Description
Amount
1
2016/03/07
AM INVEST
- 2
380 000,00
202538117
2
2016/04/14
A-M I A-M INVESTMEN
- 2
280 000,00
202538117
3
2016/04/15
A-M I A-M INVESTMEN
- 2
280 000,00
202538117
4
2016/05/06
A-M I A-M INVESTMEN
-
114 000,00
202538117
5
2016/06/06
A-M I A-M INVESTMEN
- 2
280 000,00
202538117
6
2016/06/23
A-M I A-M INVESTMEN
-
190 063,36
202538117
7
2016/07/14
AM INVESTMENTS
- 3
500 000,00
202538117
8
2016/08/12
AM INVEST
-
190 068,36
202538117
9
2016/08/12
AM INVEST
- 2
280 000,00
202538117
10
2016/08/18
A-M INVESTMENTS
- 1
083 000,00
202538117
11
2016/09/08
A-M I A-M INVESTMEN
- 2
280 000,00
202538117
12
2016/09/22
A-M I A-M INVESTMEN
-
53 737,31
202538117
13
2016/09/22
A-M I A-M INVESTMEN
-
190 068,36
202538117
14
2016/09/22
A-M I A-M INVESTMEN
-
53 737,31
202538117
15
2016/09/27
A-M I A-M INVESTMEN
- 2
280 000,00
202538117
16
2016/10/04
A-M I A-M INVESTMEN
- 3
420 000,00
202538117
17
2016/10/06
A-M I A-M INVESTMEN
-
570 000,00
202538117
18
2016/11/18
AM INVESTMENTS
-
88 531,59
202538117
19
2016/11/08
AM INVESTMENTS
-
190 068,36
202538117
20
2016/11/08
AM INVESTMENTS
-
190 068,36
202538117
21
2016/11/08
AM INVESTMENTS
-
289 186,87
202538117
22
2016/11/30
AM INVESTMENTS
-
570 000,00
202538117
23
2016/12/05
AM INVESTMENTS
-
587 100,00
202538117
24
2017/01/23
A-M I A-M INVESTMEN
-
763 230,00
202538117
25
2017/02/07
AM INVESTMENTS
- 1
140 000,00
202538117
26
2017/03/09
A-M I A-M INVESTMEN
-
570 000,00
202538117
27
2017/06/21
A-M I A-M INVESTMEN
-
750 000,00
202538117
28
2017/09/07
A-M I A-M INVESTMEN
-
570 000,00
202538117
29
2017/10/31
A-M I A-M INVESTMEN
-
57 000,00
202538117
30
2017/11/23
A-M I A-M INVESTMEN
- 57
000,00
202538117
Total
- 31 246
859,88
Swifambo
Rail Holdings (Pty) Ltd
Payments
to AMCE from Standard Bank account 202538117
No
Date
Descriptio
n
·
Amount
Bank Account
1 2013/04/08
Loan to AMCE
- 5 000000,00
202538117
2 2013/04/09
Loan to
AMCE
- 3 000 000,00
202538117
3 2013/08/07
Refund
- 4 000 000,00
202538117
4 2014/02/14
A-M CONSULTING ENG
- 91 660 , 00
202538117
5 2014/03/04
Refund
- 699 ·360, 28
202538117
6 2014/06/09
Refund
- 114 000,00
202538117
7 2014/06/09
Refund
- 1 692 000,00
202538117
8 2014/10/23
Payment to A-M C
-570000,00
202538117
9 2014/10/24
Payment to A-M C
- 159 500,00
202538117
10
2015/01/28
A-M CONSULTING ENG
- 89 500,00
202538117
11
2015/04/09
Loan to AMCE
- 3 000 000,00
202538117
12
2015/08/25
AM CONSULTING ENG
- 29 725,44
202538117
13
2015/09/30
AM CONSULTING
- 11 400 000,00
202538117
Total
-
29 845 745,72
[1]
Nel et
al NNO v MCarthur et al
2003(4)
SA (T0 at 149BF-G ;
Troskie
v Von Holdt et
al
(2704/2012)
[2013] ZAECGHC 31 (11 April 2013) at [20]
[2]
Rule 27(2) of the Uniform Rules of Court.