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[2019] ZAFSHC 136
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Cooper NO and Another v Master of High Court, Bloemfontein and Another (Knipe and Others intervening) (6302/2018) [2019] ZAFSHC 136 (2 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.:6302/2018
In
the application of:
JOHN
DOUGLAS JANSEN KNIPE 1
ST
INTERVENING PARTY
ANDRE
BAZZETT JANSEN KNIPE 2
ND
INTERVENING PARTY
JACKIE
VIGNE 3
RD
INTERVENING PARTY
ROBERT
PETER JANSEN KNIPE 4
TH
INTERVENING PARTY
In the
matter between:
CHAVONNES
BADENHORST St CLAIR COOPER N.O.
1
ST
APPLICANT
SIMON
MALEBO RAMPOPORO
N.O.
2
ND
APPLICANT
and
THE
MASTER OF THE HIGH
COURT 1
ST
RESPONDENT
BLOEMFONTEIN
JACOBUS
STRAUSS
N.O. 2
ND
RESPONDENT
CORAM:
I VAN RHYN, AJ
JUDGMENT
BY:
I VAN RHYN, AJ
HEARD
ON:
2 MAY 2019
DELIVERED
ON:
RULING DELIVERED ON 2 MAY 2019
INTRODUCTION.
[
1]
Several applications and counter applications issued under case
numbers 5889/2017, 3864/2018 and
6302/2018 were enrolled for hearing on 2 May 2019 and 3 May 2019. The
applications and counter applications concern the liquidation
process
of the estates of Kameelhoek (Pty) Ltd (in liquidation) and
Schaapplaats (Pty) Ltd (in liquidation), (the “Companies”).
[2]
The applicants, the liquidators of the Companies, launched an urgent
application for an interim order, pending the return day
of the
rule
nisi
and adjudication of a review application (the main
application), suspending a decision of the second respondent (the
“Assistant
Master”) to remove the applicants as
liquidators in the estates of the Companies. By agreement between the
applicants and
the first respondent (the “Master”), the
applicants obtained an interim order on 19 December 2018. The
intervening
parties brought this application to intervene in the main
application. The application to intervene is opposed by the
applicants.
[3]
On 2 May 2019, at the conclusion of arguments and for pragmatic
reasons, I granted leave to the first, second, third and fourth
intervening parties to intervene in the main application. I reserved
my reasons for the ruling. This is my reasons for the ruling
and the
judgment regarding the costs of the application to intervene.
BACKGROUND.
[4]
Provisional liquidation orders in respect of the Companies were
granted on 30 August 2012. The intervening parties, (three brothers
and a sister, referred to by the applicants as “the siblings”)
as well as another sister, me Carol Lotz (who is not
a party to this
application) are the shareholders and directors in both solvent
Companies currently in liquidation. On 6 September
2012 the first and
second applicants were duly appointed as the provisional liquidators
(with Mr Noordman) in the estates of the
Companies.
[5]
The applicants’ final appointment as liquidators followed on 28
Augustus 2017. The Companies were under winding up orders
due to the
continuous acrimony between the shareholders of two Companies. The
intervening parties contend that the applicants have
delayed
finalizing the winding up of the estates and thus have failed to pay
out the free residue due to the shareholders of the
Companies. On the
other hand, the applicants argue that, although the administration of
the estates of the Companies proved to
be not as uncomplicated as
initially anticipated, the delay in filing the final liquidation and
distribution account and finalizing
the winding up process are due to
the animosity and numerous legal battles caused by the intervening
parties.
[6]
Since their appointment as liquidators, the first and second
applicants, apart from their continuing administration of the estates
had to deal with incessant litigation that span a period of seven
years since 2012. According to the calculations done by the
applicants, no less than 22 applications which include appeals, were
opposed and some launched by the applicants. A considerable
number of
these matters were heard by this court and also by the Northern Cape
High Court in Kimberley.
APPLICATION
FOR CONDONATION.
[7]
On 11 December 2018 the Assistant Master notified the applicants that
they are removed as liquidators in both estates with immediate
effect. The Applicants brought an urgent application for interim
relief pending a review of the Assistant Master’s decision.
The
intervening parties were notified by the Registrar of the High Court
on 18 December 2018 that the urgent application will be
heard on 19
December 2018 where after the intervening parties instructed their
legal representatives to appear on their behalf.
The intervening
parties objected to the matter being heard but did not apply for
intervention in the application at that stage
of the proceedings.
[8]
At the hearing of the urgent application on 19 August 2018, the
parties were informed by the Honourable Musi JP, being the judge
on
recess duty at the time, that he declines from hearing the
application on the merits due to previous interactions with the
intervening parties. By agreement the applicants and the Master
obtained an interim order with the effect that the applicants will
remain as the liquidators in the estates pending the adjudication of
the
rule nisi
on 31 January 2019. On 31 January
2019 the rule nisi was extended to 14
th
March 2019. By
agreement between the intervening parties and the applicants, and in
respect of the application to intervene, the
application was
postponed to 14
th
March 2019, the applicants to file their
answering affidavit on 19 February 2019 and the intervening parties
were granted leave
to file a replying affidavit by no later than 1
st
March 2019.
[9]
The intervening parties failed to file their replying affidavit by 1
March 2019. The replying affidavit was filed on 7 March
2019, four
court days late. By demand of the applicants the intervening parties
filed a substantive application for condonation
on 8 March 2019,
repeating what they determine as a ‘thorough explanation”
and contained in their replying affidavit
for their default. The
explanation for the delay provided by the intervening parties was
that communication between themselves
and their legal team was
hampered due to the fact that the third intervening party resides in
Kimberley, the fourth intervening
party on a farm in the Molopo
district and the other two intervening parties in Bloemfontein. These
obstacles caused logistical
problems to file the replying affidavit
within the time ordered by the court. The first intervening party
attended his son’s
graduation ceremony in Potchefstroom from 4
March 2019 to 5 March 2019 and as a result the replying affidavit
could only be finalized
on 6 March 2019 and filed the following day.
[10]
The applicants contend that the intervening parties deal with their
late filing of the replying affidavit in a manner devoid
of detail or
apology and have therefore not complied with the requirements for
condonation. The application for condonation is
furthermore opposed
on the basis that the intervening parties have a total disregard for
the rules, procedures and orders of the
court as well as agreements
concluded between the parties. The answering affidavit was
delivered to the intervening parties
on 19 February 2019 in
accordance with the court order issued on 31 January 2019. On behalf
of the applicants it was argued that
the intervening parties failed
to give an explanation for the delay covering the whole period of
delay
[1]
and merely referred to
the period subsequent to the 1
st
March 2019.
[11]
A court may on good cause shown, condone any non-compliance with the
time periods prescribed by the Rules or by an order of
court.
[2]
In
Uitenhage
Transitional Local Council v South African Revenue Service
[3]
Heher
JA held that: “
Condonation
is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects
must be
furnished so as to enable the court to understand clearly the reasons
and to assess the responsibility. It must be obvious
that if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must
be spelled out.”
[4]
The circumstances or reasons that caused the intervening parties to
run out of time for filing their replying affidavit by 1 March
2019
were not tendered apart from the statement that the intervening
parties and their legal representatives do not all reside
in
Bloemfontein with the consequential logistical problems. No
particularity of the logistical problems nor any valid or justifiable
reasons were proffered why the intervening parties were unable to
provide instructions to and/or consult with their
legal
representatives since 19 February 2019 in order for them to file
their replying affidavit in accordance with the court order.
[12]
The affidavit in support of the application for condonation is
seriously inadequate. The intervening parties contend that the
applicants would suffer no prejudice by the late filing of the
replying affidavit. The applicants’ heads of argument in the
matter had to be filed by 6 March 2019 in accordance with the
practice directives of this court. The applicants assumed that the
intervening parties, due to their failure to file heads of argument
in this application on 24 April 2019 by 12h00, decided not
to proceed
with their condonation application. Under the prevailing
circumstances, this is of course a logical and normal inference
by an
opposing party. A third requirement
[5]
namely that the grant of the indulgence sought must not prejudice the
other party in any way that cannot be compensated by a suitable
order
as to postponement and costs, is likewise relied on by the
applicants.
[13]
At the hearing of the application for condonation and subsequent to
considering the arguments on behalf of the applicants,
condonation
was granted and Mr Van Rensburg, who appeared on behalf of the
intervening parties, was directed to argue the merits
of the
application to intervene.
APPLICATION
TO INTERVENE
.
[14]
The intervening parties are 20% shareholders each in the Companies in
liquidation. Together with their sister who is not a
party to this
application, Carol Lotz, who also holds 20% shares in both
Companies they are the only directors and shareholders.
The
intervening parties and more particularly the first, second and
third intervening parties, contend that they have the
necessary
locus
standi
to bring this application for intervention on the basis
that they, notwithstanding their previous averments under oath
that
their shares in the estates were sold, did in fact not sell
their shares and merely ceded same
in securitatem debiti.
[15]
On behalf of the intervening parties it was contended that one of
their concerns is the fact that an amount of at least R40 million
was realized from the sale of the properties of the Companies during
November 2017 but they have since learned that an amount of
approximately R25 million is available in the estates’
bank accounts. The intervening parties furthermore contend
that the
applicants’ former attorney, Mr Senekal is colluding with the
applicants to prevent the intervening parties from
receiving their
share of the free residue from the estates of the Companies. It is
alleged that Mr Senekal, who never had a mandate
to act on behalf of
the applicants, was paid an amount of R2 million by the
applicants from the estates’ funds. The
Assistant Master, who
was in control of both files of the Companies in liquidation at the
Masters Office, instructed the applicants
to obtain reimbursement of
the amount of R2 million from Mr Senekal.
[16]
An application under case number 4606/2016 in terms of the provisions
of section 386(3) of the Companies Act N0 61 of
1973 (the
“Companies Act”) by the applicants, authorizing them to
appoint Mr Senekal as their legal representative
was dismissed on 22
June 2017 and the costs to be paid by the applicants
de bonis
proprii
s. It is contended by the intervening parties that Mr
Senekal seemingly claims that an amount of R23 million is owing
to him
for legal costs by the applicants and that Mr Senekal is
holding the applicants ransom for payment of at least R9 million from
the estates’ funds. The applicants contend that, due to the
intervening parties incessant legal battles and failure to settle
taxed cost orders, they owe the applicants in respect of taxed
costs an amount in excess of R2 million.
[17]
In a letter (appended to the application and dated 7 November 2018)
from Zietsman – Horn Attorneys in Bloemfontein, who
acted on
behalf of the intervening parties at that stage, addressed to the
Assistant Master the removal of the applicants as liquidators
in
terms of the provisions of section 379(1)(d) and (e) of the Companies
Act was requested. It is stated in this letter that the
intervening
parties have on numerous occasions, at least since 2013, complained
about the conduct of Mr Senekal and the applicants.
Reference was
made to Rampai J’s finding (Case No956/2014 and 957/2014) that
the Master and the liquidators had “…
administrated the estate in a disturbingly irregular fashion or at
least made incompetent decisions.”
[18]
In the letter the Assistant Master is furthermore referred to Mr M
Modibela’s (the Deputy Master) demand on 5
th
June
2017 to the applicants to furnish him with reasons why they should
not be removed as liquidators and also be suspended from
the National
Panel of Liquidators. Several incidents and complaints are listed in
this letter, comprising nine pages. It
is not necessary to
refer to all these specific issues in detail and I merely refer to
these complaints to illustrate that the
intervening parties have
raised concerns and complaints about the conduct and suitability of
the applicants holding office as liquidators
and their relationship
with Mr Senekal over a period of approximately six years since 2013.
STATUS
OF THE SHAREHOLDING OF THE INTERVENING PARTIES.
[19]
The first point
in limine
raised by the applicants, is the
intervening parties’ lack of
locus standi
on the basis
that, the first three intervening parties previously stated that they
have sold their shares in the Companies in liquidation,
and now
contend that their shares were ceded
in securitatem debiti.
The applicants refer to all four the intervening parties and fail to
distinguish between the first to third intervening parties,
who now
claim to have not sold their shares, but ceded same, and the fourth
intervening party, Peter Knipe, who has not indicated
that his shares
in the companies in liquidation were sold or ceded at any stage.
[20]
The status of the shareholding of the first and second intervening
parties form the crux of the dispute under Case No 3864/2018.
Case No
3864/2018 was also enrolled to be argued on 2 and 3 May 2019 by the
same presiding judge as the current application and
therefore I also
heard arguments in that application. Carol Lotz launched an
application under Case No 3864/2018 for a declaratory
and
interdictory relief in respect of the sale of the shares in the two
companies in liquidation and an order whereby the Sheriff
is
authorised and instructed to proceed with the sale in execution.
Central to the relief sought in Case No 3864/2018 is the question
whether there had been a sale or cession of the shares in the
Companies in liquidation and what the legal consequences of, more
particularly the alleged cession are.
[21]
Carol Lotz, the applicant in Case No 3864/2018 obtained costs orders
against the first three intervening parties under Case
No 5081/2014
and Case No 4817/2014 and the bills of costs were taxed. The first
three intervening parties’ shares were attached
during January
2018 and the Sheriff was instructed to proceed to auction the
shares so attached on 11 April 2018. The auction
was re-scheduled for
18 July 2018. During the afternoon of 17 July 2018 the Sheriff
received two letters informing him that the
first two intervening
parties had sold all their shares in the companies in liquidation to
third parties, cited as 4
th
and 5
th
respondents
in Case No 3864/2018.
[22]
The third intervening party indicated that she had, long ago, without
providing any details, sold her shares to her husband.
The sale
in execution was forthwith cancelled by the Sheriff. Since then the
first three intervening parties have adopted an alternative
approach
and now contend that their shares in the Companies were in fact ceded
in securitatem debiti.
[23]
On behalf of the applicants it is argued that the first three
intervening parties fail to set out the terms of the cession
in
securitatem debiti
, when such cessions allegedly transpired and
whether such cessions were orally or in writing. In fact, apart from
the bald statement
that the first, second and third intervening
parties’ shares were in fact not sold but ceded
in
securitatem debiti
, no further facts regarding the alleged
cessions of their shares were divulged. Mr Leathern, who appeared on
behalf of the applicants
contends that the argument by the first
three intervening parties that the provisions of section 341 of the
Companies Act, which
prohibits the disposition and share transfers
after winding-up and thus supports the intervening parties’
argument that they
do have the necessary
locus standi
, cannot
be accepted.
[24]
Section 341 of the Companies Act reads as follows: “
Disposition and share transfers after winding-up void.
-
(1) Every transfer of shares of a company being wound up or
alteration in the status of its members effected after the
commencement
of the winding-up without the sanction of the
liquidator, shall be void”.
On behalf of the applicants it
was contended that section 341 of the Companies Act must be
interpreted restrictively and the three
intervening parties’
failure to provide information and/or the relevant facts to support
their allegation regarding the cession
of their shares leads to the
assumption that it must be accepted for purposes hereof that the
intervening parties have ceded all
their personal rights and
therefore have no
locus standi
. This argument is highly
speculative taking into consideration the paucity of information
pertaining to the intervening parties’
apocryphal version of
the sale and subsequent version regarding the cession of their
shares.
[25]
In the event of an outright cession, the first three intervening
parties would have lost all their personal rights embodied
in the
shares by transferring those rights to third parties. Nothing would
remain vested in them. The only way in which they could
again acquire
those rights would be by way of re-cession of the bundle of personal
rights against the Companies in liquidation.
The case argued on
behalf of the first three intervening parties is that the cession of
their shares were not an out-and-out cession,
but a cession
in
securitatem debiti
. In accordance with this construction, the
shares were ceded to the third parties as security for future payment
of their debts.
The intervening parties did not provide copies of the
cession documents to support their allegations nor did they append
letters
or confirmatory affidavits in support of their contentions.
[26]
In motion proceedings the affidavits constitute both the pleadings
and the evidence and the issues and averments in support
of the
applicant’s case should appear clearly from his/her founding
affidavit
[6]
. The founding
affidavit must contain sufficient facts in itself upon which a court
may find in the applicant’s favour and
the applicant must
stand or fall by his/her founding affidavit.
[7]
It is trite that the applicant in motion proceedings must make out
his/her case in the founding affidavit. The first three
intervening parties did not elaborate on their allegations that their
shares were ceded
in
securitatem debiti
in their replying affidavit. The intervening parties contend
that the cessions of their shares do not deprive them of
locus
standi
in this application.
[27]
The initial allegation that the first three intervening parties have
sold their shares is a fabrication. The letters presented
to the
Sheriff caused the stay of the execution sale of their shares.Taking
cognisance of the long history of litigation and the
acrimonoius
relationship between the intervening parties and Mr Senekal, it
is evident that a desperate last minute strategy
was devised to avoid
the sale of their shares per execution. The scheme did not last long
due to the provisions of section 341
of the Companies Act. Therefore
an amended version of their plan was contrived whereby the shares in
the Company were ceded
in securitatem debiti.
An applicant
must raise the issues upon which he/she would seek to rely in the
founding affidavit by defining the relevant issues
and by setting out
the evidence upon which he/she relies to discharge the onus of proof
resting on the applicant in respect thereof.
[28]
In considering whether the contention regarding the cession of their
shares is reliable, the quality of the evidence must of
necessity be
evaluated. A conspectus of all the facts and evidence presented in
respect of the application in its entirety is required.
Evidence that
is false, on the intervening parties’ own admission must be
weighed alongside the later version of the purported
true facts
alluded by the intervening parties. The intervening parties failed to
provide such evidence or facts. Surely the intervening
parties would
have been able to provide this court with the cession documents or
confirmatory affidavits from the respective cessionaries.
On this
point it is essential that the balance of probability is put
correctly into the scales in weighing the credibility of the
contention that the shares were in fact not sold, but ceded
in
securitatem debiti
or out and out or at all. In the final
analysis and in assessing the weight of the probative material,
motive is one aspect of
probability. Failure to corroborate the
alleged facts, the reliability of the contentions as well as the
independence of
the intervening parties’ version of the facts
are further aspect to consider. I am not convinced that cession of
the intervening
parties’ shares took place.
[29]
Neither Mr Leathern’s argument, that the cession must have been
an out and out cession, which leaves the intervening
parties without
locus standi
nor the bald statement by the intervening parties
that a cession of their shares
in securitatem debiti
occurred
at some or other stage can be accepted. In fact due to the paucity of
facts and evidence it cannot be found that a cession
of shares by any
of the intervening parties occurred. I find it unnecessary to
decide this debate one way or the other. Suffice
it to say, in my
view, this settles the point
in limine
regarding the locus
standi of the first three intervening parties.
THE
APPLICABLE LEGAL PRINCIPLES REGARDING INTERVENTION.
[30]
It was held in terms of the common law that a party applying for
leave to intervene had to establish: (a) special concern in
the
issue; (b) that the matter is of common interest to himself/herself
and the party he/she desires to join; and (c) that the
issues are the
same.
[8]
The procedure to follow in this regard is set out in Rule 12 of the
Uniform Rules of the High Court (the Rules), which provides
as
follows: “
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at
any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make
such order,
including any order as to costs, and give such directions as to the
further procedure in the action as to it
may
seem meet.”
[31]
Rule 12 provides the court with a wide discretion to grant leave to
intervene.
[9]
An applicant for
leave to intervene must be a person ‘entitled to join as a
plaintiff or liable to be joined as a defendant’.
The question
remains whether the relief claimed by the applicants is dependent
upon the determination of substantially the same
question of law or
fact as the right to relief claimed by the proposed intervening
party.
[10]
A direct and
substantial interest in the proceedings is a ground for
intervention.
[11]
It is often
regarded as decisive. In
Amalgamated
Engineering Union v Minister of Labour
[12]
Fagan JA, held that
the court would not determine issues in which a third party may have
a direct and substantial interest
without being satisfied that the
rights of such third party would not be prejudicially affected by its
judgment.
[13]
[32]
In
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
[14]
Horwitz AJP interpreted “the direct interest” referred to
as: “.
..an
interest in the right which is the subject matter of the litigation
and is not merely a financial interest which is only an
indirect
interest in such litigation”.
A
party seeking to intervene in proceedings can either do so in terms
of Rule 12 of the Uniform Rules of Court, or in terms of the
common
law. A party is entitled to intervene in the following three
sets of circumstances:
(a) Where the requirement
of Uniform Rules 10(1) and 10 (3) are satisfied, in that the
determination of the intervening party’s
matter or dispute
depends upon substantially the same question of law or fact as arises
in the proceedings in which leave is sought
to intervene.
[15]
(b) Where wider
considerations of convenience favour intervention.
[16]
(c) Where the intervening
party has a direct and substantial interest (legal interest)
[17]
in the proceedings.
[33]
The applicants opposes the application for intervention and contends
that the intervening parties barely have a financial interest
in the
matter as they themselves are the cause of so much financial
deterioration in the estates. If they do have a financial interest
in
the Companies, it is still not a direct and substantial interest in
the subject matter of the main application for review of
the Master’s
decision to remove the applicants as liquidators from the estates of
the Companies in liquidation. The further
argument by the applicants
is that the subject matter of the application is a decision by the
Assistant Master affecting the rights
of the applicants and being an
issue between the Master and the liquidators only, no rights of the
intervening parties are affected.
The intervening parties thus have
no legal interest in that decision.
[34]
Mr Van Rensburg argued that the intervening parties have a material
and substantial interest in the matter insofar as they
collectively
hold 80% shares in the Companies in liquidation. It therefore follows
that the intervening parties should have been
joined and the
applicants’ failure to join them in the urgent application and
the review constitutes a material non-joinder.
The first to third
intervening parties argues that the thrust of the applicants’
application for the interim interdict as
well as the review
application is based on the allegation that the first to third
intervening parties colluded with the Assistant
Master, alternatively
coerced him and/or intimidated him into making the decision to remove
the applicants as liquidators. They
seek the decision to be reviewed
and set aside. Furthermore the applicants went to great length to set
the stage why the intervening
parties’ alleged conduct and
influence resulted in the Assistant Master’s decision to
ultimately remove them as liquidators
of the Companies. In the light
of these allegations and due to the interest and concern of the
intervening parties in the outcome
of the proceedings, they apply for
intervention.
PURPOSE
AND SCOPE OF INTERVENTION.
[35]
I
t
is trite that
in
an application
to
intervene
the
question
is
whether,
on
the
applicant's
version,
he or she
is
entitled
to
join
in
the
proceedings as intended
in
Rule 12 of the Uniform Rules of Court. To satisfy this
requirement,
the
applicant
must
furnish
prima
facie
proof
of
his
or
her
interest
(and
hence
his
or
her
right
to
intervene)
but
he
or
she
need
not
go
further
to
satisfy the
Court
that
he
or
she
will
succeed
at
the
end
of
the
day.
It
is
sufficient
for
the
party
seeking
intervention
to
rely
on allegations
which,
if
proved
in
the
main
action,
would
entitle
him
or
her
to
succeed.
An
applicant
must
satisfy
the
court
that his
or her application is made seriously and
is
not frivolous.
[18]
[36]
The intervening parties contend that they have a real direct and
substantial interest in the removal of the applicants as liquidators
and in fact requested the Master to remove the liquidators. They
argue that the amount of approximately R40 million in the estates’
bank accounts has diminished substantially due to the administration
of the estates and they fear for further losses apparently
due to the
worsening relationship with Mr Senekal. Due to their disputed
financial interest in the liquidation process, they seem
to be banned
from putting their objections and evidence relating to the
relationship between themselves, the applicants and Mr
Senekal before
the court. Surely they do have a financial interest in the outcome of
the legal battle as they are the shareholders
in the (solvent)
Companies currently in liquidation.
[37]
At the hearing of this application to intervene Mr Van Rensburg, with
reference to the Companies’ estates bank statements
and with
serious opposition and objection by the applicants, endeavoured to
indicate that further payments were in fact made to
Mr Senekal since
the previous court appearance on 14 March 2019. The question arises
whether shareholders, collectively holding
80% of the shares in the
solvent Companies has
locus standi
to intervene in the
application to review the Master’s decision, when in fact the
majority shareholders requested such decision
to be made by the
Assistant Master.
[38]
Can it be said that the intervening parties are not “directly
and substantially” interested in the removal of the
appointed
liquidators in the estates of the Companies? If the intervening
parties consider that their interests in the Companies
will be
affected by litigation, which is pending between the Master and the
liquidators appointed in the estates of the Companies,
they cannot be
criticized for not leaving the care of their interests to either the
Master or the applicants, but has the right
to intervene and to be
made parties to the review application. At the stage of an
application for leave to intervene the
court need not be over
concerned with the intrinsic merits of the dispute which can be fully
canvassed in the main proceedings.
[19]
It is therefore not necessary to satisfy the court of success in the
review application in which leave is sought to intervene.
The
allegations by the intervening parties regarding the unauthorised
payments made by the applicants to Mr Senekal and the Assistant
Master’s instructions that such payments must be repaid by the
applicants, in my judgment clearly establishes a legal interest
in
the subject matter of the review which could be prejudicially
affected by the judgment of the court.
[39]
Prior to the Assistant Master’s decision to remove the
applicants as liquidators and in all the disputes preceding the
Assistant Master’s decision to remove the applicants from
office, the intervening parties had a direct, principal and legal
interest and were parties to the numerous disputes. Mr Leathern,
during argument and in contesting the intervening parties’
reference to the bank statements and the payment of approximately R4
million out of the estates account since March 2019, stated
that the
arguments raised by the intervening parties in this regard is a clear
example of their “obstructiveness and
nit-picking”. The
evidence or input by the intervening parties may in my view affect
the outcome of the review proceedings
and therefore the impact that
the intervening parties may have on the crucial decision to remove
the liquidators or not, will constitute
a legal interest. It was held
in the
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
[20]
case with reference to the following dictum in the
Amalgamated
Engineering Union v Minister of Labour
[21]
matter that: “…
cannot
relieve the Court from inquiring into the question whether the order
it is asked to make may affect a third party not before
the Court,
and, if so, whether the Court should make the order without having
that third party before it”,
the
question is wide enough to embrace both non-joinder and intervention.
[40]
Horwitz AJP in the
Henri
Viljoen (Pty) Ltd v Awerbuch Brothers
case, with reference to and in a searching inquiry into the practice
in the English Courts and the Roman – Dutch Law, pertaining
to
“
voegen
”
and “
interventie
”
found that: “…
the
fact, however, that, when there are two parties before the Court,
both of them desire it to deal with an application asking
it to make
a certain order, cannot relieve the court from inquiring into the
question whether the order it is asked to make may
affect a third
party not before the Court, and, if so, whether the court should make
the order without having that third party
before it… The third
party’s position cannot be prejudiced by the consensus of the
two litigants that they do not
wish that party to be joined.”
[22]
[41]
The intervening parties may therefore be able to show in the main
application that the removal of the liquidators was founded
on
bona
fide
and reasonable grounds placed before the Assistant Master and that
their allegations regarding the conduct of the liquidators,
if
they
can be proved in the main application, would entitle the intervening
parties to succeed.
[23]
The
question of law and fact in the main or principal application are
essentially the same
[24]
and
in my view the intervening parties should have been cited as parties
by the applicants. The intervening parties’ application
for
condonation is saved by the merits of their application to intervene.
[42]
During arguments an agreement was reached between the applicants and
the respondents regarding the
rule nisi
and a draft order, save for a few paragraphs were made an order of
court. By agreement between the parties the review application
were postponed to be heard on 19 August 2019 and
20 August 2019.
COSTS.
[43]
The intervening parties have succeeded to prove
that they are entitled to intervene in the main application. Their
application to
intervene was opposed by the applicants. In the
Notice of Motion no specific costs orders against the Applicants were
prayed
for pertaining to the application to intervene. The costs
orders in prayer 3 refer to the relief claimed under Part A of the
main
application. During argument and in the Respondents heads of
Argument, Mr Van Rensburg did not address the aspect of costs with
regard to the application to intervene.
[44]
The intervening parties failed to file their replying affidavit in
accordance with the court order and applied for condonation.
Their
application for condonation was wholly inadequate and the applicants
were entitled to oppose the application for condonation.
The
intervening parties should therefore pay the costs of the application
for condonation.
[45]
I accordingly make the following order
:
1.
The first, second, third and fourth
intervening parties are granted leave to intervene as respondents in
the main application.
2.
The
intervening parties’ application for condonation of their
failure to file the replying affidavit in the application to
intervene is granted.
3. The
costs of the application for condonation are to be paid by the
intervening parties,
jointly and severally, payment by the
one, the others to be absolved.
Such costs to
include costs for the employment of two counsel where one is a senior
counsel.
____________________
I
VAN RHYN AJ
On
behalf of the Intervening parties: ADV. F. J. VAN RENSBURG
Instructed
by:
WILLERS ATTORNEYS
On
behalf of the First and Second Applicants: ADV. M LEATHERN SC
and
ADV. K VAN ZYL
Instructed
by: HONEY ATTORNEYS
On
behalf of the First Respondent: ADV. B S MENE
Instructed
by: THE STATE ATTORNEY BLOEMFONTEIN
On
behalf of the Second Respondent:
ADV. D GREWAR
Instructed
by: ADRIE HECHTER ATTORNEYS
[1]
Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at 353 A
[2]
Rule 27(1), Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O).
[3]
[2003] 4 ALL SA 37 (SCA).
[4]
[2003] 4 ALL SA 37
at [6].
[5]
Erasmus superior Court Practice, Volume 2, page D1-324.
[6]
Minister of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D.
[7]
Director of Hospital Services v Mistry
1979 (1) SA 626
(AD) at 635H
– 636D.
[8]
Bitcon v City Council of Johannesburg and Arenow Berhman & Co.
1931 WLD 273
at 293 -294.
[9]
See
Hertz v Empire Auctioneers & Estate Agents
1962 (1) SA 558
(T)
at 559 C-D.
[10]
Vitorakis v Wolf
1973 (3) SA 928
(WLD) at 930 C – 931 E.
[11]
Vawda v Vawda
1980 (2) SA 341
(T) at 348 B.
[12]
1949 (3) SA 637 (AD).
[13]
1949 (3) SA 637
(AD) at 659.
[14]
1953 (2) SA 151
(O).
[15]
Ex parte Sudurhavid (Pty) Ltd: In re Namibia Marine Resources (Pty)
Ltd v Ferina (Pty) Ltd
1993 (2) SA 737
(Nm) at 741 A-F.
[16]
Rabinowitz NNO v Ned-Equity Insurance Co Ltd and Another 1980 (3) SA
415 (W).
[17]
Bowring NO v Vrededorp Properties CC
2007 (5) SA 391
(SCA) para 21.
[18]
Minister of Local Government and Land Tenure and Another v Sizwe
Development and Others: in re Sizwe Development v Flagstaff
Municipality
1991 (1) SA 677
(Tk) at 678 I-679 B.
[19]
Sizwe
at 678
J-679 A.
[20]
1953 (2) SA 151
(OPD) at 166 B – G.
[21]
1949 (3) SA 637
(AD) at 649.
[22]
1953 (2) SA 151 (OPD).
[23]
Ex
Parte Moosa: In re Hassim v Harrop-Allin
1974 (4) SA 412
(T) at
416F-G.
[24]
Dreyer
and Others v Tuckers Land and Development Corporation (Pty) Ltd
1981
(1) SA 1219
(T) at page
1224F-1225B.