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[2021] ZAGPPHC 389
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Starbuck N.O and Another v Timana and Others (49784/2020) [2021] ZAGPPHC 389 (11 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no: 49784/2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES
REVISED:NO
DATE:
11
June 2021
In
matter between:
CONRAD
ALEXANDER STRABUCK
N.O.
First Applicant
AMANDA
KANYISA BIKANI N.O.
Second Applicant
(Cited
herein in their capacities as duly appointed
Liquidators
of Timana Properties (Pty) Ltd)
And
MANDLA
PETER
TIMANA
First Respondent
THE
SOUTH AFRICAN POLICE SERVICES
Second Respondent
THE
MINISTER OF SAFETY AND SECURITY
Third Respondent
JUDGEMENT
NE
NKOSI AJ
[1]
The applicants are the duly appointed liquidators of Timana
Properties
(Pty) Ltd (“Timana Properties”). They brought
an urgent application for an interim interdict which was granted on
11
November 2020 in the following terms:
“
1.
In light of urgency, condonation is granted for the
non-compliances with the normal Rules of Court with regard
to
service, form and time-period s as
contemplated in Rule 6(12).
2.
That an interim interdict returnable on 30 November 2020 at 10:00
be granted in terms of which the first respondent and any affected
person must show cause why the order should not be made final:
2.1
That the first respondent and/ or any individual associated
with first respondent
be interdicted and restrained from accessing or
entering the property of Timana Properties (Pty) Ltd known as Farm
Schagen 273
Ptn 5 (“the property” );
2.2
That the first respondent and its employees,
and/ or any other representatives, be restrained from
in any manner
interfering with or conducting themselves in any manner that would
prejudice access or possession of the property
of Timana Properties
(Pty) Ltd, and the applicants’ operations to include applicants
employees, and/ or any other representatives
on behalf of the
applicants.
3.
That prayer 2 be regarded as an interim interdict with immediate
effect;
4
In the e vent that the first respondent or any associated person with
first
respondent fails to adhere to the interdict contemplated in
paragraphs 2 and 3 above, that the applicants
shall
be authorised to appoint the
relevant Sheriff of the above court, with the assistance of
the
South Africa n Police Services if necessary, as their duly
authorised agent, and instruct the Sheriff to take all necessary
steps
to give effect to this order;
5
Costs be granted against the first respondent”
[1]
[2]
The Rule
nisi
was extended several times and eventually the
matter was heard on 31 May 2021 being the return date. On the
return
date, the first respondent appeared in court to oppose
the granting of the final interdict.
[3]
The requirements for an interim interdict are as follows:
“
3.1
a prima-facie right on the part of the applicant;
3.2
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and
the ultimate relief is granted;
3.3
a balance of convenience in favour of granting the interim relief;
and
3.4
the absence of any satisfactory remedy available to the
applicant”
[2]
[4]
In
Joubert
NO and Others
[3]
the court reiterated the grounds of an interim interdict as follows:
“
The
requisites for an interim interdict are well known. The applicants
are obliged to show that the right which is the subject matter
on the
main application which they seek to protect by means of an
interim relief is clear, or if not clear, is prima
facie
established, though open to some doubt. If the right is only prima
facie established then it must be shown that there is
a well grounded
apprehension of irreparable harm to the applicants if the interim
relief is not granted and they ultimately
succeed in
establishing their right; that the balance of convenience favours the
granting of interim relief, and that the applicants
have no other
satisfactory remedy.”
In
casu
, Teffo J in granting an interim relief made a finding
that the applicants succeeded in proving all the requirements of an
interim
interdict. In my view the court's finding was correct. I
shall not burden this judgement by repeating her finding but shall
defer
to the judgment for the full reasons.
[5]
The requirements for a final interdict are:
“
6.1
a clear right on the part of the applicant;
6.2
an injury actually committed or reasonable apprehension; and
6.3
there is no other satisfactory remedy available to the applicant:”
[4]
[6]
In the case of a final interdict, the applicant
bears the onus of
showing on a balance of probabilities
the existence of requirements for a final interdicts.
[5]
[7]
The applicants are the appointed liquidators of Timana Proper ties
(Pty ) Ltd. They
are therefore obligated by legislation to take
control of the affairs of Timana Properties in order,
inter alia,
to protect the interests of creditors.
This fact was not disputed by Mr. Mapila who a p pea re d for the
first
respondent at the hearing of this application. In my
view, the applicants have a clear right to seek a final order.
[8]
It has already been established that the first respondent interfered
with the applicants
in the execution of their duties as liquidators.
It is therefore reasonable to apprehend such interference more so
that the first
respondent still maintains that he never prevented the
applicants to carry out their duties.
[9]
In my view, and in the circumstances of this case, a final order is
an appropriate
remedy. Otherwise, any other remedy would frustrate
the statutory functions of the liquidators to the detriment of the
creditors.
[10]
The defences raised by the first respondent before Teffo J were that,
the debt owed to Nedbank
which formed the subject of the insolvency
proceedings had been paid in full and that there was a pending appeal
challenging the
final liquidation order. There was no proof placed
before court to substantiate these allegations.
[11]
In
casu,
it was submitted by Mr.Van Rensburg, for the
applicants, that the final order should be granted because
nothing had
changed since the granting of the interim order. I am
inclined to agree with Mr. Van Rensburg because, still no proof of
payment
of the debt and the appeal were placed before the court.
Instead, Mr. Mapila conceded that the debt had not been paid in full.
It further emerged as a common cause factor, although made from the
bar, that the appeal was heard and dismissed.
[12]
The contentions made by the first respondent in an attempt to show
cause why a final order should
not be granted were a repeat of what
was said to Teffo J. These contentions were dealt with in the
judgment and rejected.
[13]
I therefore do not find any compelling reason why I should not grant
the order sought by the
applicants. In the circumstances I make the
following order:
1.
The final interdict is granted;
2.
The first respondent is to pay costs inclusive of costs of Counsel.
NE NKOSI, AJ
Acting judge of the
High Court
Date
of hearing:
31 May 2021
Date
of Judgement:
11 June 2021
For
the Applicant:
Advocate SJ
Van Rensburg SC
Instructed
by:
NJ De Beer Attorneys
Pretoria
For
the Respondent:
Advocate M Mapila
Instructed
by:
K Sigama Attorneys
Centurion
[1]
Caselines 009 - 19 to 21
[2]
2 Joubert No and Others v Maranda Mining Company (Pty) Ltd and
Others
[2010] 2 ALL SA 67
(GNP) para 26 also setogelor v Setlogelo
1914 AD 221
at 227
[3]
Footnote 2, Supra, at para 26
[4]
Ladychin Investments (Pty) Ltd v South African National Roads Agency
LTD and Others 2001 (3) SA 344 (N).
[5]
NUMSA and Others v Corn ark Holdings (Pt y) Ltd (1997) 18 ILJ 516
(LC)