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[2019] ZAGPPHC 87
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Van Rooyen N.O and Another v Minister Of Defence & Military Veterans and Others (2018/2455) [2019] ZAGPPHC 87 (15 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF INTEREST TO OTHER
JUDGES:
NO
(3)
REVISED
CASE
NO
:
2018/2455
DATE
:
15
TH
MARCH 2019
In
the matter between:
VAN
ROOYEN,
ADRIAAN
WILLEM, N O
First
Applicant
MALATSI,
MMALETJEKA
ESTHER, N O
Second
Applicant
and
MINISTER
OF DEFENCE &
MILITARY
VETERANS
First
Respondent
MUDAU,
COLONEL N
L
Second Respondent
MAPHWANYA,
BRIGADIER
GENERAL
Third Respondent
THE
MINISTER OF
POLICE
Fourth Respondent
THE
NATIONAL COMMISIONER OF THE SAPS
Fifth Respondent
THE
COMMANDING OFFICER OF THE HAWKS
Sixth Respondent
JUDGMENT
ADAMS
J:
[1].
This is an opposed application by the first and second applicants,
who act herein in their
official capacities as the joint liquidators
of the insolvent estate of New Generation Arms Management (Pty)
Limited ('NGAM'),
for a declaratory order that an Order of this Court
is enforceable against certain State Officials and named State
Departments.
The applicants also prays for an Order declaring that
they shall immediately be given a reasonable opportunity to inspect
certain
arms and ammunition, which formed the subject of the Court
order, which the applicants are requiring to have enforced.
[2].
The relevant portions of the Order, which was by Vorster AJ on the
26
th
of April 2012, provides as follows:
'1.
That the respondents or any person acting on their instruction shall
not,
subject to paragraph 3 of this order, destroy or otherwise
dispose of the arms and ammunition seized by the South African Police
Service ("the SAPS") listed in the schedule annexed hereto,
marked "X" (hereinafter "the articles",
pending
the finalisation of the investigation being conducted by the SAPS
under enquiry docket CATS 03/02/2012;
2.
… …
3.
… …
4.
That the applicant (in the person of Johan Hendrik Erasmus or a
representative
authorised by him) shall once a month at a mutually
convenient time determined by the investigating officer upon no less
than 48
hours notice be entitled to inspect the articles at the
existing safekeeping facility.
…
…’
[3].
The aforegoing order, which was by agreement between the parties, was
granted in favour
of NGAM against the respondents in this
application. Order number (4) is the portion of the order which the
applicants wish to
have enforced so as to assist them in locating any
assets belonging to the insolvent company.
[4].
The first to third respondents opposed this this application on the
basis that none of
them are in possession of any of the arms and
ammunition which the applicants wish to inspect. In their answering
affidavit these
three respondents aver that the items are in the
possession of the South African Police Service. The articles are kept
at different
sites of the SAPS. These respondents nevertheless
contend that the applicants are not entitled to inspect the weapons.
The weapons
are in the country illegally, so the first to third
respondents contend, and therefore the applicants have no right to
inspect
them.
[5].
The fourth to sixth respondents also opposed the application mainly
on the basis that NGAM
was in unlawful possession of the weapons and
ammunition tabulated as some of the items on Annexure "X".
In any event,
so the argument on behalf of these respondents go, when
NGAM was liquidated, any and / or all permits they held entitling
them
to possess weapons would have expired in terms of
section 14
(6)
of the
National Conventional Arms Control Act 41 of 2002
. This means
that the applicants have no right to possess and / or own the weapons
in question and they have no right to claim return
of the arms and
ammunition, which will probably in due course be forfeited to the
State.
[6].
The applicants' response to the respondents' case is that all that
they seek is compliance
with a Court Order. Mr Naude, Counsel for the
applicants, submit that the respondents have failed to give any
reason, premised
on a sound factual or legal basis, as to why the
applicants may not have access to inspect the various assets seized.
The Order
granted by Vorster AJ afforded NGAM the right to reasonable
access to inspect the items listed. It is furthermore submitted on
behalf of the applicants that the question whether NGAM was in lawful
or unlawful possession of the items seized is irrelevant.
[7].
I find myself in agreement with the applicants' submissions. The
simple fact of the matter
is that there is in existence a Court
Order, which entitles the applicants to the relief prayed for in this
application, and Court
orders should be obeyed. It does not assist
the respondents that, according to them, the applicants are not
entitled to possess
or own the weapons in question. In terms of their
statutory duties, the applicants are required to assess not only the
value of
the assets in the insolvent estate but also the debts due to
creditors of the company.
[8].
In the circumstances, I am of the view that the applicant is entitled
to the relief sought
in the notice of motion.
Costs
[9].
The general rule in matters of costs is that the successful party
should be given his costs,
and this rule should not be departed from
except where there are good grounds for doing so, such as misconduct
on the part of the
successful party or other exceptional
circumstances . See:
Myers v Abramson ,
1951(3) SA 438 (C) at
455.
[10]. I
can think of no reason why I should deviate from this general rule.
[11]. I
therefore intend awarding cost against the first and sixth
respondents in favour of the applicant.
Order
Accordingly,
I make the following order:-
1.
It
is declared that the Order of Vorster AJ of the 25
th
of April 2012 is enforceable against:
2.1.
The
officer, major or any other person currently or in the future
commanding the Special Forces Supply Unit, Weapons System Management,
the Department of Research and Development of the above or other
designations; or
2.2.
Any
unit, department or otherwise where the items referred to in the
Order of Vorster AJ dated the 25
th
April 2012 is kept or stored for whatsoever purpose.
2.
It
is declared that the applicants shall be given a reasonable
opportunity to inspect the articles.
3.
The
first, fourth, fifth and sixth respondents , jointly and severally,
the one paying the other to be absolved, shall pay the applicants'
cost of this application, which costs shall include the cost
consequent upon the employment of two Counsel, one of which is Senior
Counsel.
LR ADAMS
Judge of the High Court
Gauteng
Division, Pretoria
HEARD
ON:
12
th
March 2019
JUDGMENT
DATE:
15
th
March 2019
FOR
THE APPLICANT:
Adv G Naude
SC, together with
Adv
J
Malherbe
INSTRUCTED
BY:
S C Vercueil Attorneys
FOR
THE FIRST, SECOND & Adv
Lesego Mmusi, together with
THIRD
RESPONDENTS:
Adv D Gondo
INSTRUCTED
BY:
The State Attorney, Pretoria
FOR
THE FOURTH, FIFTH & Adv Pingla
Hemraj SC
SIXTH
RESPONDENTS
INSTRUCTED
BY:
The State Attorney, Pretoria