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[2019] ZAGPPHC 168
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Halocure (Pty) Limited v Mostert (25317/2018) [2019] ZAGPPHC 168 (31 May 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
CASE NO :25317/2018
31/5/2019
In
the application between -
HALOCURE
(PTY) LIMITED
(Registration
No. 2010/020569/07)
Applicant
and
PHILLIPUS
JACOBUS MOSTERT
(ID
No. [….])
Respondent
JUDGMENT
STRYDOM
AJ
[1]
On
17 July 2018 the respondent’s estate was placed under
provisional sequestration with return date on 12 November 2018. All
interested parties were called upon to show cause, if any, on this
return date why the respondent's estate should not be placed
in final
sequestration.
[2]
Al
Mayya International Limited (BVI) filed an intervention applicant
(hereinafter referred to as the first intervening applicant)
to be
heard on the return day. By 12 November 2018, the return date, a
further party filed an intervention application. This application
on
behalf of Valley of the Kings (Pty) Ltd (second intervening
applicant) became opposed and by agreement between the applicant,
the
first intervening applicant and the second intervening applicant as
well as the respondent, a draft order was made an order
of court in
terms of which the first intervening applicant was granted leave to
intervene. The parties agreed as to time periods
for the filing of
the respondent's opposing affidavit in the sequestration application,
further affidavits in the second intervening
applicant's application
and to the filing of heads of argument. The return day in the
sequestration application was extended to
3 April 2019. On this date
the return date was further extended to 20 May 2019 when this matter
was heard.
[3]
The
respondent failed to file heads of argument on or before 12 April
2019 as per the court order. At the hearing of this matter
there was
also no appearance for the respondent in the sequestration
application. Although a full set of affidavits were filed
in this
application, it became unopposed before this court.
[4]
The
applicant and the first intervening applicant individually have
proven the three requirements to obtain a final liquidation
order.
Both the applicant and the first intervening applicant have proven a
claim as envisaged in section 9(1) of the Insolvency
Act 24 of 1963.
They have shown that the respondent has committed an act of
insolvency or is factually insolvent. This nulla bona
returns were
issued when the applicants wanted to execute against their taxed cost
orders obtained against the respondent. The
applicants have shown
that there is reason to believe that it will be to the advantage of
the creditors of the debtor if his estate
was sequestrated. The other
formal requirements for a final sequestration were met.
[5]
The
only defence which was put up by the respondent was that the
respondent's costs tender, annexed to the founding affidavit, and
the
taxation of that tendered cost that resulted in the allocator, did
not qualify as a court order, and/or is not equivalent to
a court
order to pay costs, and therefore, the applicant could not proceed by
means of a warrant of execution to recover the taxed
costs. This
defence is without merit as a tender to pay costs shall have the
effect of an order of court for such costs.
[6]
Consequently
the provisional order granted on 17 July 2018 should be made final
and costs of the application should be ordered to
be costs in the
sequestration.
[7]
As
far as the second intervention application is concerned there was
also no appearance for the second intervention applicant and
the
court already dismissed this application ordering that Valley of the
Kings (Pty) Ltd, should pay the costs jointly and severally,
the one
paying the other to be absolved, with the deponent to the founding
affidavit, Thomas Hendrick Samons. Considering that
the court made a
costs order not only against the second intervening applicant but
also against Mr Samons, the court will briefly
provide reasons for
this order.
[8]
The
applicant filed its opposing affidavit to the second intervening
application as per the court order, on 3 December 2018. The
first
intervening creditor filed its opposing affidavit to the second
intervening application in terms of the court order. The
second
intervening applicant then failed to file a replying affidavit to the
applicant. On or about 3 December 2018 the first intervening
applicant (the second respondent in the second intervening
application) filed a notice in terms of Uniform Rule 7(1) whereby it
disputed the authority of DLBM Attorneys Inc to act on behalf of the
second intervening applicant, i.e. Valley of the Kings (Pty)
Ltd in
the intervention application. No proof of authority was filed and
there was also no appearance on behalf of the second intervening
applicant when this matter was heard before this court.
[9]
As
stated, the second intervening applicant never filed a replying
affidavit and the application was not pursued before this court
and
was accordingly dismissed.
[10] Thomas
Hendrick Samons described himself in the founding affidavit in the
second intervening application
as a business rescue practitioner of
the second intervening applicant. This provided him with locus standi
to file this application.
According to his affidavit the beginning of
business rescue proceedings was signed on 4 December 2017 and was
issued by CIPC on
6 December 2017. The first intervening applicant
filed an affidavit opposing the second intervening applicant's
application. In
this affidavit it was pointed out that at the time
when Samons deposed to the founding affidavit in the second
intervening application,
Valley of the Kings (Pty) Ltd was no longer
in business rescue. Accordingly, Samons was no longer the business
rescue practitioner
of Valley of the Kings (Pty) Ltd when he filed
his affidavit. Samons has failed to make any averment or to provide
any supporting
evidence by the directors of Valley of the Kings
evidencing that they have validly resolved to institute the second
intervening
application and that the institution of the proceedings
was properly authorised and validly instituted and that the directors
of
Valley of the Kings have decided to appoint DLBM Attorneys Inc to
represent Valley of the Kings for this purpose.
[11]
What is stated hereinabove is the
unchallenged version of the respondent in the opposed second
intervening application which this
court must accept. No replying
affidavit was filed and it remains unclear whether Samons had the
necessary authority to represent
Valley of the Kings. This is the
reason why the court ordered that Samons should jointly and severally
with Valley of the Kings
be responsible for the cost of the parties
which oppose this second intervention application. The respondents
argued for a punitive
cost order. In my view it is justified. The
second intervention application was nothing less than a stratagem to
delay the final
liquidation order. This resulted in an application
running into close to 500 pages, just to be abandoned when the matter
should
have been heard.
[12]
The following orders are made:
(a)
In the sequestration application -
(i)
The respondent is finally sequestrated.
(ii)
The costs of the sequestration
application will be costs in the sequestration.
(b)
In the second intervention application.
(i)
The
second intervention application is dismissed.
(ii)
The
second intervening applicant and Thomas Hendrick Samons, the deponent
to the founding affidavit in the second intervening application,
are
ordered to pay for the costs of this application jointly and
severally, the one paying the other to be absolved, on the scale
of
attorney and own client.
Date
heard:
20 May 2019
Date
delivered: 31 May 2019 at
10h00
Counsel
for applicant:
Adv
G. F.
Heyns
Counsel
for intervening creditor: Adv C. Cutler