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2021
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[2021] ZAGPJHC 665
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Moyo v Old Mutual Limited and Others (34004/2019) [2021] ZAGPJHC 665 (23 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO: 34004/2019
In the matter between:
PETER
MTHANDAZO MOYO
Plaintiff
and
OLD MUTUAL
LIMITED
First Defendant
OLD MUTUAL
LIFE ASSURANCE COMPANY (SA) LIMITED
Second Defendant
TREVOR MANUEL
Third Defendant
STEWARD VAN
GRAAN
Fourth Defendant
THOKO MOKGOSI
MWANTEMBE
Fifth Defendant
PAUL BALOYI
Sixth Defendant
PETER DE BEYER
Seventh
Defendant
THYS DU TOIT
Eighth Defendant
SUZEKA
MAGWENTSHU RENSBURG
Ninth Defendant
ALBERT ESSIEN
Tenth Defendant
ITUMELENG
KGABOESELE
Eleventh
Defendant
JAMES MWANGI
Twelfth
Defendant
MARSHALL
RAPIYA
Thirteenth
Defendant
NOSIPHO MOLOPE
Fourteenth
Defendant
JOHN LISTER
Fifteenth
Defendant
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties / their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date of the
judgment is deemed to be 23 August 2021.
JUDGMENT
MALINDI
J:
Introduction
[1]
The first and second respondents shall be referred to as “
Old
Mutual”
, and the third to fifteenth respondents as “
the
Directors”
. Where they are referred to collectively they,
will be referred to as the respondents.
[2]
This matter has a relatively long and heated history. The current
application came
before this Court at what appears to be the crucial
stage for all the live proceedings that have ensued between the
parties to
come to final adjudication, at least at Court of first
instance stages.
[3]
There are three relevant proceedings that require consideration in
this application,
which itself may be considered a fourth matter in
the context. Although there is an appeal pending between the parties
to the Supreme
Court of Appeal, it is of minor consequence in this
application.
[4]
On 27 September 2019 the applicant issued summons against the
respondents wherein
he claims reinstatement, alternatively
contractual damages in the sum of R250 million arising from his
suspension and the
termination of his employment. Pleadings have
closed and what remains is the holding of a pre-trial conference and
perhaps compliances
with certain aspects of the Uniform Rules of
Court and the Practice Directives of the Commercial Court before a
trial date is allocated.
[5]
On 30 September 2019 the applicant instituted application
proceedings in terms
of section 162(5) of the Companies Act, 71 of
2008 (“the Act”), to have Old Mutual’s
non-executive directors
of (“
the Directors”
),
declared delinquent. Pleadings have also closed in this matter.
[6]
On 12 August 2019 the applicant instituted a counterclaim for
contempt of Court against
the respondents (“
the contempt
application”
). I leave out the technical aspects giving
rise thereto. This application is, for all intents and purposes, also
ready for hearing.
[7]
I leave out traversing other interlocutory applications involved in
the above three
matters, and numerous case management conferences
over the last two years, save the ones that are necessary to
determine this application.
Management
of the three proceedings
[8]
As stated above, the trial action is almost ready for hearing. It has
been designated
a commercial dispute which has been referred to the
Commercial Court under the jurisdiction of the High Court. It is
under case
management of a Judge and directives for its expeditious
hearing have been issued. Counsel for the applicant informed the
Court
that another Judge who is responsible for the broader
management of cases as an Acting Deputy Judge President (“Acting
DJP”)
has given an indication at one of the case management
meetings that a trial date can be given before the end of this year.
He couched
it as the Acting DJP having given a “
guarantee”
to this effect. This information was not seriously challenged by
counsel for Old Mutual and counsel for the Directors. A Judge
has
already been allocated to hear the matter.
[9]
The delinquency application has also been allocated for hearing by a
Full Court. The
delinquency application and the trial were allocated
as urgent Commercial Court cases. The contempt application, though
not allocated
to the Commercial Court, has always been treated as
urgent by the inherent nature thereof. It has been allocated for
hearing by
the Acting DJP referred to above. All three matters have
therefore been treated as urgent by such designation through case
management
and by the litigants themselves. For reasons that will be
explained below when I deal with the application for postponement,
the
matters have only become ready for hearing recently although they
enjoyed the status of urgency and could all have been heard during
2020.
Application
for postponement
[10]
On 10 April 2021 the applicant delivered a notice of motion
headed “
Notice of Motion (Interlocutory Application(s)) for
Postponement and Consolidation”
. He seeks the following
orders:
1.
Granting the postponement and/or stay of the hearing of the
delinquency application instituted under case number 22791/2019 sine
die and until a date falling after the hearing of the trial
action
instituted under case number 34004/2019, which date shall be
nominated by the Honourable Judge President and/or Deputy Judge
President.”
2.
That the contempt application brought and the delinquency
application,
separately instituted under case number 22791/2019, be
and are hereby consolidated to proceed as one application.”
[11]
As explained further by counsel for the applicant, if prayer 2 is
granted, the effect will be that
both the delinquency and contempt
applications will be heard after the trial if prayer 1, seeking the
postponement of the delinquency
hearing is also granted. Hence the
use of the term “
sequencing”
application in the
same breath as postponement application. The alternative in terms of
sequencing is that the consolidated applications
be heard first and
then the trial. This alternative is what the applicant, in effect,
offered to the respondents in the morning
of the hearing as a
settlement offer. The Directors rejected this offer and persisted on
the sequence of the delinquency application
being heard first,
without consolidation with the contempt application, as it is ready
for hearing immediately and the contempt
application not. Counsel for
Old Mutual informed the Court that the offer had not been
communicated to him and had therefore not
taken instructions. That
left their position of opposing the application unaltered. I do not
wish to recapitulate how or why the
miscommunication happened between
counsel in this regard.
[12]
The applicant’s position is that the two applications must be
consolidated to proceed as one
whether before or after the trial.
[13]
The applicant defines the nature of the application as follows:
“
10.
The first is application for relief in the form of an application for
the postponement
and/or stay of the main application to declare the
3
rd
to 15
th
respondents as delinquent directors under case number 22791/2019
(‘the
delinquency application
”),
sine die and/or to a date which must fall after the hearing of the
trial action in the related matter brought by me as
plaintiff under
case number 34004/2019 (“the
trial
action
”).
11.
The second is a separate and self-standing application for the
consolidation
of the aforesaid delinquency application and the
similarly related application for contempt of court brought by me as
applicant
against the respondents, also under case number 22791/2019
(“the
contempt application
”).
…
13.
The purpose and effect of the postponement application is to arrange
the
sequence of the hearings such that the trial action should be
heard before the delinquency application, for the reasons more fully
set out hereinbelow.
14.
The purpose and effect of the consolidation application is to have
the
delinquency application heard together with the contempt
application, in accordance with the provisions of Rule 11 of the
Uniform
Rules of Court, irrespective of the outcome of the
postponement application.”
[1]
[14]
The applicant refers to “
holding in abeyance”
or
“
stay of the hearing”
several times. These
circumstances usually arise when more than one proceedings arising
from the same factual matrix or cause of
action would cause prejudice
to a party if both were to be heard separately. The situation arises
in circumstances as when civil
proceedings are ripe for hearing
before criminal proceeding are, against the same person, and in
typical cases where special pleas
such as
lis pendens
or
referral to alternative dispute resolution applies. In the first
example, a Court may, on application by the accused in the criminal
matter who is also a respondent in a civil matter, hold in abeyance
or stay civil proceedings pending the outcome in criminal
proceedings. This is done in order not to prejudice the accused in
criminal proceedings by forcing them to plead a version in the
civil
proceedings which might expose him or her to a criminal sanction at a
later stage. The current application is neither of
this genre nor
that of the second examples.
[15]
This application is not one to stay proceedings because of some
exceptional circumstances that have
arisen. The classical
circumstances for seeking a stay of proceedings is where a litigant
would be prejudiced in subsequent proceedings
if they are compelled
to speak in the first proceedings. In
Du Toit v Van Rensburg
[2]
the principle was stated as follows:
“
(W)here civil proceedings and criminal
proceedings arising out of the same circumstances are pending against
a person it is the
usual practice to stay the civil proceedings until
the criminal proceedings have been disposed of.”
[16]
In
Law Society, Cape v Randell
,
[3]
quoting Nugent J with approval in
Davis v Tip NO & Others
,
[4]
Mthiyane DP explained the principle to mean that the prejudice must
relate to whether a party is compelled to disclose a defence
or is
compelled to say something that will prejudice them in subsequent
proceedings. Furthermore, as regards the Court’s
discretion,
the Court exercises a very limited discretion in scope and ambit
because “
once the potential for prejudice has been
established”
the Court intervenes in favour of granting the
applicant to hold the proceedings in abeyance.
[17]
There are other exceptional cases where a stay may be sought but I
need not deal with them as none
have been pleaded. The applicant
herein has pleaded the state of impecuniosity and general wellbeing
of him and his family as the
prejudice he suffers. It is not that the
version he will have to plead in one set of proceedings has a
potential to prejudice him
in the other. In the circumstances, I find
that the applicant has not established a potential prejudice in terms
of the subject
matter of pleadings as required in
Randell.
This
application is therefore strictly one of postponement.
[18]
I deal now with the postponement application.
Requirements/factors
for consideration in an application for postponement
[19]
The applicant sets out factors for consideration of his application
as: unforeseen circumstances, balance
of convenience of the parties,
the convenience of the Court and the administration of justice, and
prejudice or lack thereof. They
coincide with the well-known
requirements that the applicant must show good cause, the applicant
to be
bona fide
, that there be no prejudice to the respondents
that cannot be remedied by an appropriate order as to costs, and the
interests of
justice.
[20]
I will first dispose with the contention that unforeseen
circumstances have led to this application
being brought at this
stage and the convenience of the Court. The respondents have severely
criticised the applicant for his alleged
dilatory conduct of these
proceedings being the
dominus litis
. They have also sought to
discount coronavirus restrictions as sufficient to proffer a full and
reasonable explanation for the
delays. I agree with the respondents
that the delays were caused by his litigation strategies and
disappointing outcomes therein.
They are not of the nature envisaged
as a factor to be taken into consideration in an application for
postponement. Furthermore,
from April 2020 there was no
meaningful response to persistent correspondence from the respondents
regarding the prosecution of
the delinquency application and the
trial, both being under case management by one judge, until 17
December 2020 when the applicant
raised his preference that the trial
precede the delinquency application. To the extent that COVID-19 may
have hampered the applicant,
and I take judicial notice thereof, the
applicant is required to at least explain how it did so. He does not.
The real enquiry
in such circumstances would be to see whether such
delays are capable of punishment by an appropriate order as to costs.
[21]
The applicant accepts that the ordinary sequence would have been for
the delinquency and contempt applications
to be heard separately and
before the trial. I elaborate further on the applicant’s
failure to give a full and reasonable
explanation. He avers that
various turns of events have led to all three matters being not too
far apart in their state of readiness
for hearing.
[5]
As a result of these turns of events, including the arrival of the
coronavirus pandemic on our shores, progress in expediting the
two
applications stalled. Given what the applicant calls “
new
and unforeseen developments which took place between February and
December 2020”
[6]
he, through his attorneys, wrote a letter on 17 December 2020 to
the respondents, through their attorneys, a letter which
was a
response to their letter of 16 November 2020. I reproduce the
letter herein.
“
1.
We apologise for the delayed response to your letter dated
16 November
2020 due to logistical and time pressures on our
side.
2.
After extensive consultations, analysis of the pleadings and
seeking
the necessary opinions it is our considered view that the sequence
which will be most convenient, efficient and practical
to the parties
and the court will be for the trial action to be heard ahead of the
delinquency application. Naturally both proceedings
are based on the
same factual complex and in so far as there is any possibility of
disputes of fact in the application proceedings
it would be better to
deal with those as part of the oral evidence which will inevitably be
led during the trial.
3.
We are also advised that there is a real possibility that, depending
on the outcome of the trial proceedings, the delinquency application
be rendered moot or at worst, capable of either settlement
and/or a
much more shortened hearing on limited issues. This will also result
in a total or partial saving of costs and scarce
judicial resources.
4.
We are accordingly instructed to request that your clients seriously
consider the above proposal and, if agreed, the parties can jointly
approach Honourable Judge Wright with a revised timetable.
Subject to
the above, we are in broad agreement with the matters ought property
to be heard as soon as possible and hopefully be
finalised by the
second or latest third term in 2021.
5.
We look forward to your response.”
[22]
Various exchanges of correspondence took place between the parties,
including the holding of further
case management conferences in
respect of both the trial and delinquency application. At the case
management conference of 10 March
2021 there was an
insignificant period of time between the dates on which the trial and
delinquency applications would be heard.
In a letter written by the
respondents to the applicant on the same day, they recapitulated the
salient points and directions given
by the Judge.
[7]
A pre-trial conference was set for 31 May 2021 which would have
resulted, in all probability, in a trial date being allocated
before
the end of the year seeing that it has been designated as urgent in
the Commercial Court. Heads of argument in the delinquency
application were to be filed by the end of June 2021.
[23]
On 14 March 2021 the case management Judge enquired, through his
Registrar, whether he could make
an order by agreement that the trial
be “
finally disposed of before the delinquency application
is heard”
. He was minded to ask the applicant to launch an
application to that effect if the parties do not agree to the
sequence.
[8]
This prompted the applicant to ask whether the respondents agreed
with the Judge’s “
inclination”
upon which
the respondents promptly responded that the judge had not expressed
such an “
inclination”
in his email of 14 March
2021 and stated that they do not agree to the trial being disposed of
before the delinquency application.
[24]
After a few rounds of exchanges of correspondence and telephone
exchanges between the attorneys, and
with no agreement as to the
applicant’s preferred sequence, the current application was
launched on 10 April 2021. As
stated above, there is no
explanation why these matters were not prosecuted between March and
December 2020.
[25]
Secondly, the balance of convenience between the parties has been
described as balancing the interests
of the parties so as to avoid
either being put in a position of hardship needlessly and to avoid it
being denied the right to put
to finality the dispute between the
parties. It is common cause between the parties that the
multi-pronged proceedings have put
a burden on all parties in more
than one way. These proceedings are expensive and have consumed a lot
of the litigants’ time.
The initiator of proceedings carries
the burden to ensure the most efficient manner of disposing of
proceedings that they have
initiated. I have expressed a view already
that the applicant’s explanation for the delays is not adequate
and is not reasonable.
The respondents have argued that the balance
of convenience should not favour the applicant when he has caused the
delays and now
the question as to which proceedings should be heard
first.
[26]
The purport of the Rules of Court, the Practice Manual and
particularly, the Commercial Court Practice
Directives are applicable
herein.
[27]
I am of the view that the Practice Manual and the applicable
directives have been introduced precisely
to force litigants and the
Courts to be more efficient in the bringing of matters to court and
the adjudication over them and to
strict adherence to them. The
Courts accept that they would be greatly inconvenienced in the
pursuit of delivering swift justice
where the circumstances demand if
cases are not closely managed. That has been demonstrated by the
extensive case management endeavours
that have been made in these
matters. Several Judges, including the former Deputy Judge President,
and several Acting Deputy Judge
Presidents during different periods
from 2020, have put themselves out to attend to these matters in
addition to their normal and
usually heavy judicial functions.
Directions by case managing judges may be modified or even reversed
in certain circumstances
on request or by agreement between the
parties. The provisions of Rule 27 should ordinarily be applicable
here too.
[28]
Counsel for the applicant submitted that this matter should be viewed
in the context of the readiness
of all three matters being concluded
by the end of the year and therefore that not much more undue
inconvenience will be suffered
by the respondents. He submitted that
the 2020 delays are irrelevant at this stage. This submission would
have been strong if the
trial directions had been adhered to fully
and that there was more than the Acting Deputy Judge President’s
undertaking or
guarantee that the trial would also be set down for
hearing before the end of the year. Strict adherence with the
Practice manual
and Directives has been emphasised, not only in the
Directives but a full judgment has had to be given in this regard.
[9]
Had this been achieved, it could be said realistically that not much
prejudice would be caused to the respondents if the delinquency
application were to be heard soon after the trial action. Revising or
reversing some directions would make sense.
[29]
However, the latest direction in relation to the trial that the
pre-trial conference be held on 31 May
2021 (and which has not
been held yet) has widened the time period between the imminent
hearing of the delinquency application
and the trial probably much
later in the year or even early next year. Counsel for the applicant
postulated the possibility of
a hearing in the new year. In the
circumstances, the respondents should not be put through the
inconvenience of adding a few more
months to the already lengthy
period when they have not been able to arrange their affairs in the
environment of clarity. The balance
of convenience favours the
respondents as a result.
[30]
During argument and in the respective written submissions by the
parties, it was common cause that
considerations of prejudice will
ordinarily constitute the dominant factor in considering whether to
grant a postponement.
[10]
It predominates the other factors although they must all be taken
cumulatively. There is a slight overlap between this requirement
and
balance of convenience to the parties.
[31]
On the balance of convenience, the applicant states that the
litigation has put him in a financially
precarious position and that
at this stage he would rather concentrate his efforts and the limited
resources that he still has
in pursuing the trial as a priority and
the other proceedings thereafter.
[11]
He asserts that to the contrary, the respondents will suffer no
inconvenience and that the requested sequencing will benefit the
respondents as the outcome of the trial either way, will bring to an
end what has been an inconvenience for the last two years.
[32]
As to prejudice, the applicant adds to what he says regarding the
balance of convenience between the
parties that his general wellbeing
and that of his family has been affected.
[12]
This must be viewed in the broad sense that the applicant was
dismissed from a very high position, if not the highest, within the
first respondent’s organisation after being accused of
egregious charges bordering on dishonesty. He concludes that the
respondents have failed to demonstrate any prejudice on their part.
[33]
On the other hand both sets of respondents have set out the prejudice
they would suffer if the postponement
was to be granted and a further
few months be added to the already long period of prejudices that
they have endured. Old Mutual
avers that it is greatly prejudicial to
it that its directors have been stigmatised by an allegation that
they are delinquent directors
guilty of the forms of misconduct set
out in
section 162(5)
of the
Companies Act. This
prejudice will be
perpetuated by a postponement when it could be dealt with immediately
as the delinquency application is ripe
for hearing.
[13]
It is indeed important that Old Mutual accounts to local and
international regulatory bodies without the burden of its directors
carrying the stigma of impropriety.
[34]
The Directors set out the prejudice they continue to suffer at paras
89-91 of their answering affidavit.
[14]
These are an elaboration of their accountability to regulatory bodies
in the financial and insurance sectors. They submit that
their
prejudice far outweighs the applicant’s self-created prejudice,
if any.
[35]
It is true that the applicant has not offered any evidence to counter
the prejudice suffered by both
sets of respondents in their business,
professional and personal respects. These unfortunately outweigh his
financially capricious
position that he now finds himself as the
initiator of proceedings and his personal and family distressful
circumstances. Whereas
it can be readily accepted that this is like a
David fighting a Goliath, as his counsel submitted, he has not shown
that the Goliath
has employed the “
tyranny of litigation”
upon him or abused the process of Court in any way in order to wear
him down by litigating him out of Court.
[36]
Even where the applicant has failed to show good cause, the Court
still has to consider whether it
is in the interests of justice to
grant a postponement.
[15]
What is in the interests of justice is to be determined “
not
only by what is in the interests of the parties themselves, but also
by what … is in the public interest”
. As appears in
Shilubana
what is in the public interest will include
considerations of “
the scope of the issues that ultimately
must be decided”
. By this I understand to mean that the
issues must be of importance not only to the parties but must also be
of importance to the
public.
[37]
The scope of the issues to be decided in this case attach to the
applicant’s personal interests
mainly, that is, the damages
claim against Old Mutual. The two applications now occupy a secondary
role in his quest to vindicate
himself. Despite his counsel’s
strong argument in this regard, this requirement does not save the
inadequacies of the application
for postponement.
Exercise
of the Court’s discretion
[38]
It is trite that the grant of a postponement is an indulgence within
the wide discretion of the Court
[16]
which must be exercised judicially and properly.
[17]
As enjoined by the Constitutional Court in
Lekolwane
[18]
the Court has to balance the conflicting interests of the parties.
Whilst other requirements for a postponement may rate more important
than others, they must all be considered cumulatively in order to
meet the overriding requirement that the judgment must reflect
both
the need to bring litigation proceedings to finality expeditiously
and the interests of justice that a matter should be fully
ventilated.
[19]
The Rules of Court provide for the full ventilation of issues and
procedure. They fulfil the constitutional requirement that the
interests of justice must always be a consideration in these regards.
These Rules give effect to section 173 of the Constitution.
[20]
The courts have specifically enumerated “interests of justice”
and “in the public interest” in the non-exhaustive
list
of factors for consideration.
[21]
[39]
I conclude that the explanation given by the applicant does not meet
the true requirements of a full
and reasonable explanation and that
it would not be in the interests of justice to grant him a
postponement of the delinquency
application as to do so would unduly
prolong the prejudice that the respondents have suffered as a result
of the applicant’s
failure to prosecute these matters as
directed by the case managing judges.
Consolidation
[40]
The respondents attack the application for consolidation of the
delinquency and contempt applications
as an embodiment of a delaying
tactic. They see it as a means to have these applications heard after
the trial so that Old Mutual
and its Directors continue to bear the
prejudice of being accused of being delinquent directors and
contemptuous of the Court for
as long as the applicant stretches
proceedings out, and that he gains a tactical advantage by having the
trial proceed first so
that he can use the material arising therefrom
in order to strengthen his case in the two applications.
[41]
Counsel for the applicant has disavowed these averments and gave an
undertaking from the Bar that his
client will not do so and that the
consolidation is sought strictly to achieve convenience, efficiency
and cost savings.
[42]
In
Mpotsha v Road Accident Fund & Another
[22]
two actions based on different causes of action were consolidated on
the basis that substantially, the same evidence will have
to be led
in both. The Court stated that consolidation would save costs and
avoid a multiplicity of actions in the circumstances.
[23]
In order to achieve consolidation, the party seeking it bears the
onus of persuading the Court that the consolidation will not
cause
substantial prejudice to the other party.
[24]
[43]
The objection by one of the defendants that it would be forced to
stay in attendance at Court for a
long period after the aspects
relevant to it have been concluded thereby causing it inconvenience
and prejudice, while it waits
for the conclusion of the trial on
aspects relevant to the second defendant, was rejected on the basis
that there was a separation
of issues as agreed and each half dealt
with the defendants separately and therefore that the one does not
have to be at court
when aspects irrelevant to it were being
ventilated.
[44]
Those circumstances would not apply in the consolidation of the two
applications herein. The applicant
has identified the contempt
allegations
[25]
and has bound himself to not supplementing them. As this is the only
overlap with the allegations relevant to the delinquency application,
it can be dealt with neatly and completed before the additional
issues relevant to section 162(5) of the Act are dealt with.
[26]
Furthermore, the same parties and their legal representatives will
remain at Court throughout because they are involved in both
matters.
[45]
The prejudice to the respondents which I have acknowledged in the
postponement application will not
endure for as long in respect of
the period between the trial and the hearing of these applications as
consolidated. In fact the
prejudice would endure longer if they were
to be heard one after the other. As matters currently are, both
applications are ripe
for hearing.
[46]
I am of the view therefore that on a conspectus of the application as
a whole, the applicant has discharged
the onus for consolidation to
be granted and that the respondents will not suffer substantial
prejudice thereby.
Costs
[47]
Old Mutual seeks a punitive costs order against the applicant
whatever the outcome on the scale as
between attorney and client, as
a mark of disapproval of his conduct. The conduct referred to is
mainly his failure to prosecute
these matters in 2020 and his changed
attitude in 2021 regarding his lukewarm attitude about the
applications and preference to
prosecute the action ahead of them,
thereby causing delays in the hearing of the delinquency application,
in particular.
[48]
In my view the applicant’s non-compliances were not motivated
by a desire to delay proceedings
in order to gain any advantage by
having the trial proceed first. His lethargy during 2020 led to a
situation where the closeness
of the hearings in all matters
made it convenient to rather spend his resources on the trial and
consider later whether to
pursue the two applications. A punitive
costs order would be inappropriate in the circumstances.
[49]
The settlement offer made by the applicant, besides not having been
conveyed to Old Mutual, will not
affect the costs order as it has not
resulted in an order affecting the outcome in his favour.
[50]
I therefore make the following order:
1. The application
for granting the postponement and/or stay of the hearing of
the
delinquency application instituted under case number 22791/2019
sine
die
and until a date falling after the hearing of the trial
action instituted under case number 34004/2019, is dismissed.
2. The contempt
application and the delinquency application, separately instituted
under case number 22791/2019, are hereby consolidated to proceed as
one application.
3. The applicant is
to pay the costs of the application on a party and party scale,
including the costs of two counsel where engaged in respect of the
first and second respondents and the third to fifteenth respondents.
4. The applicant is
to pay the wasted costs of 5 May 2021 on a party and party
scale, including costs of two counsel where engaged by the first and
second respondents and third to fifteenth respondents.
G MALINDI
JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
COUNSEL FOR THE
APPLICANT
: D Mpofu SC and N Motlwenya (Heads
of argument drawn by D Mpofu SC, T Ngcukaitobi SC and S
Gaba)
INSTRUCTED BY:
MABUZA ATTORNEYS
COUNSEL FOR FIRST AND
SECOND RESPONDENTS
: IV Maleka SC and N Mayet
COUNSEL FOR THIRD TO
FIFTEENTH RESPONDENTS:
G Marcus SC and M
Stubbs
INSTRUCTED BY:
BOWMAN GILFILLAN INC
DATE OF THE HEARING:
17 August
2021
DATE OF JUDGMENT:
23 August
2021
[1]
CaseLines 1-6 to 1-7: FA, paras 10 and 11.
[2]
1967 (4) SA 433
(C) at 435H.
[3]
2013 (3) SA 437 (SCA).
[4]
1996 (1) SA 1152
(W) at 1157D-E.
[5]
CaseLines 1-9 to 1-13: FA, paras 22 – 35.
[6]
CaseLines 1-13: FA, para 36.
[7]
CaseLines 1-59 to 1-60.
[8]
CaseLines 1-61.
[9]
See
Chongqing Qingxing Industry SA (Pty) Ltd v
Ye & Others
2021 (3) SA 189 (GJ).
[10]
Myburgh Transport v Botha t/a SA truck Bodies
1991 (3) SA 310
(NmS) at 315F-G.
[11]
CaseLines 1-18 to 1-20.
[12]
CaseLines 1-22: FA, para 79.
[13]
CaseLines 3-50 to 3-51: AA, para 39.2 – 39.4;
CaseLines 3-30 to 3-31: para 19.
[14]
CaseLines 3-147 to 3-148.
[15]
Shilubana
and
Others v Nwamitwa
[2007] ZACC 14
;
2007 (9) BCLR 919
(CC) para 11.
[16]
Lekolwane & Another v Minister of Justice and
Constitutional Development
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) para 17.
[17]
Myburgh
(
supra
) at 314G.
[18]
Lekolwane
(
supra)
para 17.
[19]
Persadh & Another v General Motors South Africa
(Pty) Ltd
2006 (1) SA 455
(SE) para 13.
[20]
Randgold and Exploration Co Ltd & Another v Gold
Fields Operations Ltd and Others
2020 (3) SA 251
(GJ) para 133 –
141.
[21]
Shilubana
(
supra
) para 10 – 11.
[22]
2000 (4) SA 696 (C).
[23]
Ibid
at
700G-H.
[24]
Ibid
at
701C-D.
[25]
CaseLines 1-24 to 1-25: FA, par 89-90.
[26]
CaseLines 1-25: para 90.