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[2021] ZAGPPHC 409
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Murray N.O v Ramphele (25067/2020) [2021] ZAGPPHC 409 (13 June 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER:25067/2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED
DATE
13 June 2021
In
the matter between :
CLOETE
MURRAY
N.O.
Applicant
and
RAMPHELE,
TSHEPISO
DAVID
Respondent
([…])
JUDGMENT
Heard
on:
1 and 4 June 2021
Judgment
handed down: 13 June 2021 (by publication on
CaseLines)
VAN
ZYL AJ
I
NTRODUCTION
1.
This is an application for the provisional sequestration of Mr T.
D.
Ramphele, an attorney and director of Ramphele Attorneys, in terms of
the provisions of sections 8 and 9 of the Insolvency Act
(Act 24 of
1936) (“the Act”).
2.
The Applicant is Mr Cloete Murray in his capacity as curator
bonis
of Mr Norman Molubi Tloubatla following a provisional preservation
order obtained by the South African Revenue Services on 29 July
2014,
which was confirmed by Mali J on 31 March 2017.
3.
The aforementioned preservation proceedings was followed by
proceedings
before Windell J brought by Mr Tloubatla, in which he was
represented by the Respondent and Adv Dauds. The nature of
these
proceedings is not relevant, but the costs order made is.
In light of conduct described by Windell J as conduct that was
“
inappropriate and unbecoming of an attorney and counsel”
and “a clear deviation from the standard expected of legal
practitioners
”, Windell J ordered Mr Dauds and the
Respondent to pay the costs of the application before her
de bonis
propriis
, jointly and severally, the one paying the other to be
absolved, on the scale as between attorney and client.
4.
The Respondent sought leave to appeal against Windell J’s cost
order, which was refused. He then petitioned the Supreme Court
of Appeal, which was also refused. Not deterred, he
then
applied to the Constitutional Court for relief, but was also
rebuffed. In each instance a cost order was made against
the
Respondent in person and in favour of the Applicant.
5.
As a result of these costs orders, the Respondent is indebted to the
Applicant in the sum of R428,723.13, which amount is comprised of
taxed legal costs awarded in favour of the Applicant against
the
Respondent in his personal capacity. This amount was not
in dispute, nor was it in dispute that the Applicant was
a creditor
of the Respondent.
6.
The Applicant relies on the Respondent having committed acts of
insolvency
as contemplated in sections 8(b), (e) and (g) of the Act,
as well as the Respondent being insolvent as contemplated in section
10 of the Act. In argument this was challenged. I say in
argument, because a study of the answering affidavit shows
that these
grounds were not materially challenged and the Respondent’s
opposition is directed at trying to foist the liability
which
personally bears onto Ramphele Attorneys. He is both wrong upon
the facts and wrong in law.
The proceedings in court
7.
It is convenient to start with the proceedings before this court
during the motion week when this matter was heard.
8.
These proceedings were supposed to afford the Applicant a simple and
speedy remedy for preserving the Respondent’s estate and
enforcing his claim. Attempts at derailment by the Respondent
were, however, the order of the day. First the Applicant’s
application to supplement its papers, by the insertion of
the
statement that it bore no security for its claim, was resisted on
grounds as far ranging as that the admission of the statement
into
the record would be flogging the proverbial dead horse. The
Applicant’s application was granted by this court
on 1 June
2021.
9.
After the aforementioned order was made, the Respondent was offered
the opportunity of considering his position. The initial
indication was for a request for a postponement. However,
after
taking instructions from his client, I was informed by counsel for
the Respondent that he (the Respondent) did not intend
to file any
supplementary affidavit to the single statement inserted by the
Applicant by way of its supplementary papers.
The matter then
stood down until 4 June 2021. Prior to standing down, the court
was also informed that the Respondent intended
making a settlement
offer to the Applicant before proceedings commenced again on 4 June
2021.
10.
On 4 June 2021, the proceedings recommenced. Fifteen minutes
before the
start of proceedings a notice of leave to appeal against
the order made on 1 June 2021 was served. After hearing full
argument
from both parties, the application for leave to appeal was
dismissed with costs. The court was then informed that the
Respondent
had instructed his counsel to petition the Supreme Court
of Appeal and I was requested to hold the proceedings in abeyance
until
that process had been completed. The request was refused.
The facts
11.
Since these are provisional proceedings, the court need merely be of
the opinion
that
prima facie
the necessary facts exist to
provisionally sequestrate the Respondent. In order to do so,
section 10 of the Act requires
that the following requirements have
to be met:
11.1
the Applicant has established against the debtor
a liquidated claim
for not less than R100;
11.2
the Respondent has committed an act of insolvency,
or is insolvent;
and
11.3
there is reason to believe that it will be to
the advantage of
creditors of the debtor if his estate is sequestrated.
12.
The Applicant relies on the Respondent’s insolvency as well as
the following
acts of insolvency contemplated in sections 8(b), 8(e)
and 8(g) of the Act.
13.
As stated above, the Respondent did not dispute his indebtedness. The
Applicant’s
locus standi
as a creditor is therefore
established.
14.
An argument was raised by counsel for the Respondent that the actual
creditor
of the Respondent is either SARS or the estate of the now
late Tloubatla. The argument is without merit – the
orders
were granted in favour of the Applicant in person (albeit
acting in an official capacity) and he is entitled to claim upon
them.
15.
On 22 July 2019, the Applicant demanded payment of the bills then
taxed in the
amount of R396,372.84. At that stage it only
excluded the taxed costs of the application to the Constitutional
Court.
16.
In an email dated 19 August 2019, the Respondent wrote as follows:
“
I
was away yesterday. I have not had any undertaking from Counsel on
arrangements and it means I have to make (sic) Ramphele (Pty)
separately from his. At moment I am thinking an Offer in the sum of R
15 000-00 per month would be practical.
Kindly let me engage with
current company creditors who are owed by government. I have a
meeting with some next week and might be
able to increase on the
Offer.
Will
appreciate if you could accept by proposal which by all accounts
stretch my practice to the limits.
Sincerely
TDH
Ramphele”
17.
In his answering affidavit the Respondent contended that his response
was on
behalf of Rhampele Attorneys because of his interpretation of
who was liable for the costs orders. This contention was based
on the Respondent’s refusal to accept that he was the person
liable, not his firm. There is no room to argue away his
personal liability on the facts and his persistence in seeking to
advance this argument can at best be described as obtuse.
In
any event, in all the time since the aforementioned email, the
Respondent has not paid any portion of the amounts claimed from
him.
18.
A warrant of execution was issued in the sum of R396,372.84 and on 24
February
2020, the Sheriff sought to execute this warrant.
Certain movables were attached which were valued by the Sheriff at
R2,254.84.
Mrs Ramphele subsequently filed an affidavit claiming that
the movables all belonged to her. On that version, the return
was without any satisfaction sounding in money.
19.
Section 8(b) of the Act provides:
“
A
debtor commits an act of insolvency—
(b)
if a court has given judgment against him and he fails, upon the
demand of the officer whose
duty it is to execute that judgment, to
satisfy it or to indicate to that officer disposable property
sufficient to satisfy it,
or if it appears from the return made by
that officer that he has not found sufficient disposable property to
satisfy the judgment;
20.
The requirements of section 8(b) of the Act have accordingly clearly
been met.
In the premises it is not necessary for me to
pronounce on the other acts relied upon by the Applicant.
21.
An argument was advanced by counsel for the Respondent that because
the initial
cost order had been granted jointly and severally with Mr
Dauds, the Applicant was not entitled to proceed against the
Respondent
until Mr Dauds had also been claimed from. At the
outset this argument overlooks that it is, at best, aimed only at the
proceedings
before Windell J, but can have no application to the
Supreme Court of Appeal and Constitutional Court proceedings, where
Mr Dauds
played no role. Be that as it may, counsel for the
respondent was unable to point me to any authority that founds an
argument
that a creditor is not entitled to proceed against only one
debtor where a claim lies jointly and severally also against another
debtor. I also know of none.
22.
The parties
are
ad
idem
that the Respondent owns a property in the North West Province.
What its exact value is, is not clear at this point in time,
nor does
it have to be.
23.
These facts
satisfy the test in enunciated in
Meskin
& Co v Friedman
1948
(2) SA 555
(W) at 559
that
there be a reasonable prospect, which is not too remote, that some
pecuniary benefit will result to creditors.
(See also:
Stratford
and Others v Investec Bank Limited and Others
2015 (3) SA 1
(CC) at
[42] – [45].)
T
HE
COURT'S DISCRETION
24.
Counsel for the Respondent entreated me to exercise my discretion in
favour
of the Respondent by not ordering a provisional sequestration
of the Respondent.
25.
The argument advanced was that the provisional sequestration order
may unduly
violate the Respondent’s constitutional rights.
I could find no authority for such a proposition, nor could I find
facts that show that the Respondent’s constitutional rights
were being impacted by what is a law of general application.
But even if I am wrong in my assessment of the facts, the Respondent
is not deprived of raising this argument (buttressed by additional
facts if he so chooses) on the return day of the rule.
26.
Counsel for the Respondent also entreated me to not order a
provisional order
for sequestration because there is some indication
that the property owned by the Respondent in the North West province
exceeds
the Applicant’s claim. This too may be something
that the court hearing the application for final winding-up may
consider
with the benefit of more facts. As it stands at
present, the court has not been furnished with sufficient facts about
this
property to properly consider what its relevance should be
(beyond showing that there is a benefit to creditors should the
Respondent
be provisionally sequestrated).
27.
On the facts before me, I find no grounds to exercise my discretion
against
the granting of a provisional order sequestrating the
Respondent in terms of section 10 of the Act.
28.
The Applicant is accordingly entitled to a provisional sequestration
order.
O
RDER
:
In
the premises I make the following order:
1.
The Respondent estate is hereby placed under provisional
sequestration in the hands of the Master of the High Court,
returnable
on 2 August 2021.
2.
The Respondent, and all other interested parties, is called upon to
show cause, if any, why a final order for the sequestration
of his
estate should not be granted on the return date mentioned in
paragraph 1 above.
3.
This order is to be served upon:
3.1
The Respondent;
3.2
The Master of the High Court;
3.3
The South African Revenue Services;
and
3.4
The employees of the Respondent
.
4.
The costs of this application are costs in the administration of the
insolvent estate.
DIRK R. VAN ZYL
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
PRETORIA
Appearances:
For
the Applicant:
Adv Z. Schoeman
Instructed
by:
Roestoff Attorneys
For
the Respondent:
Adv P. W.
Makhambeni
Adv Shai
Instructed
by:
Ramphele Attorneys