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[2021] ZAGPPHC 459
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Paradise Creek Investments 34 (Pty) Ltd v Mjejane Farm Management (Pty) Ltd (22790/2021) [2021] ZAGPPHC 459 (1 July 2021)
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE
NO:22790/2021
In the matter between:
PARADISE CREEK INVESTMENTS 34 (PTY)
LTD Applicant
and
MJEJANE FARM MANAGEMENT
(PTY) LTD First
Respondent
THE MASTER OF THE HIGH
COURT, PRETORIA Second
Respondent
THEODOR WILHELM VAN DER
HEEVER N.O
Third
Respondent
TSEPO CHARLES RAMPATLA
N.O Fourth
Respondent
HENDRIK PETRUS
JOUBERT
Fifth
Respondent
WILLEM MARTIN
JOUBERT Sixth
Respondent
P ZEELIE. N.O
First
Intervening Party/Seventh Respondent
KRUGERCORRIDOR CC
Second
Intervening Party/Eighth Respondent
J U D G M E N T (Leave to appeal)
This
matter
has
been
heard virtually via
Teams
and
otherwise
disposed
of
in
terms of
the Directives of the Judge President of this Division. The
judgment
and
order are
accordingly published and
distributed electronically.
DAVIS.J
[1]
Introduction
On 28 May 2021 this court set aside the liquidation of
Mjejane Farm Management (Pty) Ltd (MFM) on an urgent basis. The fifth
and
sixth respondents in that application (referred to in the
judgment as "the Jouberts") and the seventh respondent, a
Mr
Zeelie NO (in his capacity as described in the judgment), by way
of two separate applications, seek leave to appeal that order.
[2]
The application of the Jouberts
2.1 The finding by this court that the meeting and the
resolution purportedly taken on behalf of the shareholder of MFM,
Keysha
Investments 187 (Pty) Ltd (Keysha), had been unlawful and
taken in a clandestine fashion, was not attacked in the application
for
leave to appeal.
2.2 The consequences of the above, which amount to fraud
and which tainted the liquidation proceedings, remain weighty
considerations
in evaluating the question of whether there is a
reasonable prospect whether a court on appeal would set aside the
liquidation
proceedings or not.
2.3 The Joube1ts raise four grounds in support of their
application for leave to appeal:
The non-joinder of Keysha;
The wishes of the creditors;
MFM's inability to pay its debts;
The court's discretion was exercised "wrongly".
2.4 The issue of non-joinder is a highly technical one:
although Keysha was not separately cited as a juristic person, the
whole
basis of the application was that only the two Jouberts, as two
of the three directors, purported to take a decision on behalf of
Keysha. Once this decision is found to be void, as it has, Keysha
effectively falls out of the picture. This was the point made
by the
other director, Roux, who was the deponent to the founding papers.
Neither he, nor the Jouberts, asserted the existence
of any "direct
or substantial" interest on behalf of Keysha, which would have
precluded the granting of an order. The
Joubert' s assertion that the
order was given "behind Keysha's back" when any knowledge
of proceedings to be acquired
by the juristic person, fell within the
knowledge of the natural persons who represent it, namely Roux and
the Jouberts, is facetious
to such an extent that I find no
reasonable prospect that this point would succeed on appeal.
2.5
The wishes of creditors not only include Zeelie NO, but also the
applicant that of the eighth respondent (Krugercorridor CC).
The fact
that the claims of the trust represented by Zeelie might be the
largest, is perhaps the best point but that does not mean
that
Zeelie's wishes should be determinative of the matter. The case is
also to be distinguished from the case law mentioned in
the judgment
where liquidation proceedings have progressed a Jong way and, after
some liquidation and distribution steps, a company
is "taken out
of liquidation". One can readily understand that the wishes of
then as yet unpaid creditors, should count
for a lot. In the present
case, that is not the situation. There was not even yet a first
meeting of creditors. Apart from the
initial seizures of books and
assets (in which Zeelie's office participated on an as yet
undisclosed basis), the liquidation process
has not actually
progressed. All that has happened, was that the Jouberts'
clandestine operations were reversed. The creditors
were thereafter
left in the same position as before and no better nor worse off.
Zeelie's wishes in this regard were into account
when this court
exercised its discretion.
2.6 The discretion is an unfettered one and it was not,
and neither could it be alleged that it was exercised arbitrarily,
capriciously
or for any improper reason on an improper basis. Courts
of appeal are generally reluctant to interfere with the exercise of
an
untainted discretion.
2.7 MFM's financial distress was noted in the judgment
but this was subject to a fact-specific fluid situation such as, in
particular,
the harvest which was "coming in"
during the proceedings or which was imminently pending. This was
another
factor taken into account in deciding whether the court
should leave the Jouberts' fraud intact or not.
2.8 I do not find sufficient prospect that another court
would on appeal place its imprimatur on the improperly obtained
liquidation
of MJM and allow it to continue.
[3]
The application of Zeelie NO
3.1 Mr Zeelie
raised much the same points as above.
3.2 In respect of the non-joinder of Keysha, the same
argument as above applies.
3.3 In respect of Zeelie's wishes as a representative of
a creditor, yes, these are substantial, but they were not
"discounted"
as argued, they were only held not to be
determinative. During the hearing of the main argument, Adv Egan, who
appeared for Mr
Zeelie, was asked what his client as creditor would
do if the liquidation contrived by the Jouberts were to be set aside
and Mr
Zeelie's application for conversion of that liquidation
pending in the Mpumalanga Division were to fall by the wayside? The
answer
was simply that Mr Zeelie would then probably launch a
separate new application for winding-up. In my view, should he be
advised
to do so, that is then what should happen. Then the claims of
the trust, disputed as some of them are, can be properly ventilated
in an application untainted by fraud. I find no reasonable prospect
of success that a court of appeal would find that a tainted
process
is to be preferred over an untainted process or that Mr Zeelie's
wishes as a creditor should be acceded to if the former
would then be
the result thereof.
[4] In all the premises, I find no reasonable prospects
of success on appeal to exist.
[5]
Order
The applications for leave to appeal by the fifth, sixth
and seventh respondents are refused, with costs.
Date of Hearing: 18 June 2021
Judgment delivered:1 July 2021
APPEARANCES:
For the Applicant:
Adv. M.P van der Merwe SC
Attorney for Applicant:
Weavind & Weavind Atomeys,Pretoria
For the 3& 4"Respondents:
Adv.
D Van den Bogert
Attorney for 3& 4 "Respondents: Murphy
Kwape Marits Attorneys,
Centurion
co AJ Kempen Incorporated, Pretoria
For the 5& 6th Respondents: Adv.
A.S.I van Wyk
Attorney for 5&6"Respondents:
Macintosh Cross &
Farquharson
Attorneys, Pretoria
For the 7" Respondent:
Adv.
G Fgan
Attorney for 7 Respondent: Du
Toit-Smuts
Attomeys, Mpumalanga
c/o
Vermaak Beeslaar Attorneys, Pretoria