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[2021] ZAGPJHC 607
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BCM Supplies (Pty) Ltd v Minne (20227/2019) [2021] ZAGPJHC 607 (2 September 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 20227/2019
REPORTABLE:
YES
/ NO
OF
INTEREST TO OTHER JUDGES:
YES
/NO
REVISED.
02/09/2021
In
the matter between:
BCM
SUPPLIES (PTY)
LTD
Applicant
and
MARTHINUS
CHRISTOFFEL
MINNE
Respondent
JUDGMENT
MINNAAR
AJ:
1.
This is an opposed application in terms of
which the applicant seeks an order directing the respondent to return
the following assets
to the applicant:
1.1
a white Honda Jazz motor vehicle, registration number [....] (‘the
vehicle’);
1.2
a blue BMW motorcycle, registration number [....] (‘the
motorcycle’);
1.3
a silver 15-inch Apple Mac Book, 2.3 GHZ (‘the Mac Book’);
and
1.4
a Vodacom data card with number [....] under account number [....]
(‘the data card’).
2.
It is the applicant’s case that the
subject assets were placed in the respondent’s possession by
virtue of the respondent’s
employment with the Applicant.
According to the applicant the respondent was previously a director
and employee of the applicant.
On 15 April 2019 the respondent was
removed as a director of the applicant by virtue of a resolution
passed by the majority of
the shareholders of the applicant. On 22
May 2019 the respondent’s employment was terminated as the
applicant placed the
respondent on retirement. It is the case of the
applicant that, since the respondent is no longer employed by the
applicant, that
the assets should be returned to the applicant and
that, despite demand, the respondent refuses to return the
applicant’s
assets to it.
Condonation:
late delivery of the respondent’s answering affidavit:
3.
The respondent brought an application to
condone the late delivery of his answering affidavit.
4.
No formal opposition was noted to the
application for condonation. The applicant rather elected to deal
with the condonation in
the replying affidavit. In this regard the
applicant stated that it will abide by the court’s decision but
proceeded to place
facts before the court in support of a costs
order.
5.
Relevant to the costs is the wasted costs
occasioned on 7 October 2020 when the application was postponed
sine
die
and the respondent was ordered to
file an application for condonation.
6.
As indicated during the hearing of the
application, this court was satisfied with the explanation provided
by the respondent as
to the lateness of the delivery of the answering
affidavit. Same was premised, amongst others, on the challenges faced
by the respondent’s
attorney to finalize the answering
affidavit.
7.
As the respondent seeks an indulgence with
the condonation application, and since the application could not
proceed on 7 October
2020 as the respondent’s answering
affidavit was not at hand, it follows that the respondent should pay
the costs of the
application for condonation and that such costs
should include the wasted costs incurred on 7 October 2020.
8.
The respondent raised three points
in
limine
. These points
in
limine
are:
8.1
Locus standi
of the applicant;
8.2
Non-joinder of Mr. Iain Hampton (‘Mr Hampton’) to the
proceedings; and
8.3
Stay of proceedings.
First
point
in limine
:
Locus standi
of the applicant:
9.
In this instance it is the case of the
respondent that the application is proceeded with by the applicant
without the authority
of Mr Hampton.
10.
Mr Hampton was appointed by an order of
this court on 13 September 2019 to have the sole authority over the
applicant, to the exclusion
of any other directors appointed by the
shareholders or members of the applicant.
11.
In answer, it is the case of the applicant
that the respondent should have invoked the provisions of Rule 7(1)
of the Uniform Rules
of Court if he wanted to challenge the authority
of the applicant to proceed with these proceedings.
12.
In
Ganes and
Another v Telecom Namibia Ltd
2004 (3)
SA 615
SCA it was made clear that the deponent to an affidavit in
motion proceedings need not be authorised by the party concerned to
depose to the affidavit. It is the institution of the proceedings and
the prosecution thereof which must be authorised.
13.
In
Eskom
v Soweto City Council
1992 (2) SA 703
(W) at 705, Flemming DJP
stated that
the
care displayed in the past about proof of authority was rational.
It was inspired by the fear that a
person may deny that he was a party to the litigation carried on in
his name. His signature to
the process, or when that does not
eventuate, formal proof of authority would avoid undue risk to the
opposite party, to the administration
of justice and sometimes even
to his own attorney.
It went on to state that
the
developed view, adopted in rule 7(1) of the Rules of Court, is that
the risk is adequately managed on a different level. If
the attorney
is authorised to bring the application on behalf of a party then the
application necessarily is that of such party.
There is no need that
any other person, whether he be a witness or someone who becomes
involved especially in the context of authority,
should additionally
be
authorised.
It is therefore sufficient to know whether or not the attorney acts
with authority. The
Eskom
-judgment
was also referred to by the Supreme Court of Appeal in
Unlawful
Occupiers of the School Site v City of Johannesburg
2005 (4) SA 199
(SCA) at paragraphs 14 to 16.
14.
In this
instance, I am in agreement with the applicant, that the remedy of a
respondent who wishes to challenge the authority of
a person
allegedly acting on behalf of the purported applicant, is not to
challenge the authority in the answering affidavit, but
instead to
make use of rule 7(1) of the Rules of Court.
15.
The respondent did not invoke the
provisions of Rule 7(1) of the Uniform Rules of Court and as such
this point
in limine
cannot succeed.
Second
point
in limine:
Non-joinder of Mr Hampton:
16.
Respondent takes issue with Mr. Hampton,
being appointed as sole director, by an order of court, to run the
affairs of the applicant,
not being joint to these proceedings.
17.
From the replying affidavit it appears that
Mr. Hampton is aware of these proceedings and does not take issue
with not being joined.
18.
It is common cause that the assets, forming
the subject of this application, is the property of the applicant.
19.
I struggle to see on what legal or factual
basis Mr. Hampton had to be joined to these proceedings and as such
this point
in limine
cannot be upheld.
Third
point
in limine:
Stay of proceedings:
20.
The respondent launched an application, in
this court, under case number 41655/2019.
21.
In that application the following relief,
relevant to this application, is sought:
21.1
That the resolution to remove the respondent as director of the
applicant is set aside (prayer 2 of
the application); and
21.2
Immediate restoration of the respondent’s benefits as a
director of the applicant which includes
use of the vehicle,
motorcycle, the Mac Book and data card (prayer 3.2.2 of the
application).
22.
The relief sought under case number
41655/2019 is interim relief pending the finalization of the
application under case number 26448/2019.
The latter is the
application in terms of which Mr Hampton was appointed to take
control of the applicant. From he replying affidavit
it is evident
that on 5 October 2020, and by consent, these two applications were
consolidated under case number 26488/2019.
23.
The respondent is seeking a stay of the
proceedings
in casu,
pending finalization of the application under case number 42788/2019.
In the replying affidavit the applicant takes issue with
this case
number and states that Me Minne (as deponent to the replying
affidavit) is unaware of such a case number. Premised on
the relief
claimed
in casu,
and the relief claimed under case number 41655/2019, it is accepted
that the reference to case number 42788/2019 should have been
a
reference to case number 41655/2019 and that the respondent is
seeking a stay of proceedings until finalization of the application
under case number 41655/2019. Same has however now been consolidated
under case number 26488/2019.
24.
In case number 41655/2019 the respondent
challenges the resolution to remove him as a director of the
applicant. This is the same
resolution relied on by the applicant and
is attached to the founding affidavit in these proceedings.
25.
Throughout the answering affidavit it is
the case of the respondent that he came into possession of the assets
in four capacities,
being as director of the applicant, as an
employee of the applicant, as a shareholder of the applicant and for
personal use. In
reply the applicant is adamant that the respondent
only had the use of the assets as an employee and as such, since he
is no longer
employed, that he is no longer entitled to the use and
possession of the assets. No specific response is given to the
allegations
pertaining the respondent’s right to possession as
director, shareholder and for personal use.
26.
Respondent has been in possession of the
vehicle since July 2016, the motorcycle since October 2012 and the
Mac Book since April
2013. According to him the data card was
cancelled in 2019 and same was returned to the applicant.
27.
Having regard to the lengthy period
of time the assets have been in the possession of the respondent, it
is difficult to accept
the applicant’s contention that these
assets are (and by implication, was) to be used to advance the
applicant’s business.
It is further difficult to understand how
the respondent, when the assets were acquired and he still was a
director of the applicant,
would have only been placed in possession
of the assets premised on his employment with the applicant.
28.
Nowhere in the applicant’s papers is
it stated in what capacity the respondent was employed. The letter of
termination, attached
to the founding affidavit, also does not shed
any light in this regard. In the applicant’s heads of argument
(paragraphs
1 and 24), it is stated that the assets were placed in
the respondent’s possession by virtue of the respondent’s
employment
and directorship with the applicant. This makes logical
sense on the facts before this court. As such the respondent’s
possession
of the assets must be regarded as, at least, in his
capacity as employee and director.
29.
The respondent relies on the principle of
lis pendens
in seeking a stay of these proceedings.
30.
It would appear that the application under
case number 41655/2019 was instituted subsequent to the application
before this court.
But that would not be a bar to entertain the
respondent’s request for a stay of proceedings. In
Van
As v Appollus en Andere
1993 (1) SA 606
at 610D-G the following was found:
‘
Na
my mening gaan hierdie submissie nie op nie. Die Hof het 'n diskresie
om te besluit watter van die verrigtinge voortgaan. Hoewel
dit seker
dikwels sal gebeur dat 'n Hof sal besluit dat die lis wat eerste
aanhangig gemaak is die een is wat behoort voort te
gaan, is dit nie
'n onwrikbare reël nie. In
Geldenhuys
v Kotzé
1964 (2) SA 167
(O)
,
byvoorbeeld, het die Hof op grond van oorwegings van gerief en
billikheid toegelaat dat mosieverrigtinge wat ná 'n aksie
ingestel is, eerder as die aksie self voortgesit word. Insgelyks is
daar in
Loader v Dursot Bros
(Pty) Ltd
1948 (3) SA 136
(T)
beslis dat die Hof 'n diskresie besit om die een of die ander van die
verrigtinge te laat voortgaan. Die later ingestelde verrigtinge
vir
voorlopige vonnis is op grond van billikheidsoorwegings toegelaat om
voort te gaan.
Oorwegings
van gerief en billikheid oorheers by hierdie vraagstuk. Dit blyk uit
die sake wat ek reeds hierbo bespreek het asook
uit
Kempster
Sedgwick (Pty) Ltd v Rajah
1959 (1) SA 314
(N),
Osman v
Hector
1933 CPD 503
,
Michaelson v Lowenstein
1905 TS 324
en
Dale v Dale
1948 (4) SA 741
(K) te 744.’
31.
In
Janse van
Rensburg and Others NNO v Steenkamp and Another Janse van Rensburg
and Others NNO v Myburgh and Others
2010 (1) SA 649
(SCA), at paragraph 35, it is stated that
lis
alibi pendens
is a discretionary
remedy. It requires a balance of the interests of the affected
parties to achieve a fair result.
32.
The respondent has been in possession of
these assets for many years and as such the scale of balance should
tip in his favour:
it is only interim relief that is sought by the
respondent at this stage.
33.
In this application it is evident that the
relief claimed under case number 41655/2019 might have a direct
influence on the relief
claimed in the application before this court.
34.
In the premises this third point
in
limine
raised by the respondent will be
upheld.
Merits:
35.
As the third point
in
limine
is upheld, there is no need for
this court to consider the merits of the application.
Costs:
36.
The applicant is being represented by Me
Brenda Minne. The respondent is the father of Me Minne. It is a sad
day when family members
drag one another to court in commercial
disputes between them. This sentiment was conveyed to the respective
counsel at the commencement
of the hearing.
37.
Although the applicant was more successful
than the applicant (in that the applicant was successful in opposing
two of the three
points
in limine
)
the normal order that costs should follow the cause will not be
applied. This is to show this court’s disapproval to the
fact
that, in essence, it is a daughter and her father who are litigating
herein. Under normal circumstances, one would expect
parties in such
close relationship to find alternative means to settle their
disputes. The court should not be a battleground for
such purpose. In
the premises neither of the parties will be rewarded any costs in
this application.
ORDER:
In
the premises the following order is made an order of court:
1.
The respondent’s late delivery of the answering affidavit is
condoned;
2.
The respondent is ordered to pay the costs of the application for
condonation,
such costs to include the wasted costs incurred on 7
October 2020;
3.
The respondent’s first point
in limine
is dismissed;
4.
The respondent’s second point
in limine
is dismissed;
5.
The respondent’s third point
in limine
is upheld and as
such the proceedings herein are stayed pending finalization of the
application under case number 26488/2019;
6.
There shall be no order as to costs.
J
MINNAAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
This
judgment was handed electronically by uploading same on CaseLines and
by circulation to the parties’ legal representatives
by e-mail.
The date and time for hand-down is deemed to be 10h00 on 2 September
2021.
Appearances:
Applicant’s
Counsel:
Adv A Coetzee
Applicant’s
Attorney:
Senekal Simmonds
Inc.
Respondent’s
Counsel: Adv E
van der Hoven
Respondent’s
Attorney:
Walter Niedinger
Date
of hearing:
16 August 2021
Date
of judgment:
2
September 2021