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[2019] ZAFSHC 127
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Matsepes NO and Another v Master of the High Court, Bloemfontein and Others (A220/2017) [2019] ZAFSHC 127 (29 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
A220/2017
In
the matter between:
TV
MATSEPES
N.O.
1
st
Appellant
OA
NOORDMAN
N.O.
2
nd
Appellant
and
THE MASTER OF THE HIGH
COURT,
BLOEMFONTEIN
1
st
Respondent
P FOURIE
N.O.
2
nd
Respondent
SAREL JOHANNES
WESSELS
3
rd
Respondent
ELIZABETH MARIA
VENTER
4
th
Respondent
CORAM:
DAFFUE, J
et
LOUBSER, J
et
POHL, AJ
HEARD
ON:
29
JULY 2019
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
29
JULY 2019
[1]
On 19 July 2017 appellants filed their notice of appeal against the
judgment and orders of Chesiwe, AJ (as she then was) of
10 February
2017, leave to appeal having been granted.
[2]
Appellants’ appeal has lapsed insofar as they failed to
prosecute the appeal in terms of the rules of court. Having
recognised this, an application for re-instatement of the appeal and
condonation for the late filing of the record of appeal was
eventually filed on 13 November 2018. At that stage Mr FJ
Senekal of Senekal Inc was still acting on behalf of the appellants.
Although it was intended that Mr Noordman would be a co-applicant in
this application, he failed to properly instruct Mr Senekal
as a
result of which the application papers had to be re-drafted, the
effect being that Mr Matsepe became the only applicant for
re-instatement of the appeal. Mr SJ Wessels and Me EM Venter, cited
as the third and fourth respondents respectively, oppose this
application. They filed answering affidavits on 26 November
2018 to which Mr Matsepe did not reply.
[3]
On 28 November 2018 the appellants set down the appeal for hearing by
the full bench. Mr Senekal served and filed the
notice of set
down on behalf of the two appellants, Messrs TV Matsepe and OA
Noordman. Hereafter Mr Senekal withdrew as attorney
for
appellants. He was substituted by MDP attorneys in respect of
Mr Noordman. Mr Matsepe did not appoint another attorney
to act
on his behalf. For all practical purposes Mr Noordman does not
feature in the appeal proceedings notwithstanding the
fact that his
new attorneys came on record as late as 29 March 2019. He has not
applied for re-instatement of the appeal. Mr Matsepe
as the only
appellant failed to file heads of argument which should have been
done by 2 July 2019. Mr Wessels and Me Venter
filed their heads
of argument on 10 July 2019.
[4]
On 12 July 2019 the secretary, Me Ronel Matthysen, addressed an
e-mail on instructions of Van Zyl, J who at that stage would
be the
presiding judge in the appeal. The e-mail was sent to all the
parties and also to Mr Noordman and his new attorney.
The
parties were requested to file heads of argument as to why the appeal
should not be dismissed in terms of s 16(2)(a)(i) of
the Superior
Courts Act on the basis that the decision sought would not have any
practical effect. Neither Mr Noordman, nor
Mr Matsepe filed any
heads of argument to deal with the issue or at all, save insofar as
Mr Matsepe sent an e-mail on 16 July 2019,
stating that his
co-liquidator would respond, but that they agreed there was no point
in proceeding with the appeal.
[5]
Mr Janse van Rensburg submitted in the heads of argument filed on
behalf of Mr Wessels and Me Venter that appellants had been
removed
as liquidators and that they have no
locus
standi
to prosecute the appeal. Furthermore, the court held on 6 June
2019 under case number 4528/2018 that the relevant company,
Sebal
Beleggings (Pty) Ltd, was not in liquidation since 28 April 2016.
Therefore, so he submitted, the appeal had become
academic and it
should be dismissed with costs, such costs to be paid by the
appellants personally on an attorney and client scale.
[6]
The application for re-instatement was enrolled for hearing today,
but it has not been moved for. Mr Matsepe, the applicant,
stated unequivocally in writing as mentioned that he did not want to
proceed therewith. The application shall therefore be
struck
from the roll.
[7]
It is necessary to emphasise that even if a re-instatement of the
appeal was applied for and granted, the appeal was doomed
to fail.
The decision sought on appeal would have no practical effect for
several reasons, to wit:
(1) appellants sought and
obtained an
interim
interdict against the Master of the High
Court cited as first respondent in application 567/2017 as well as in
this appeal in order
to prevent the Master from removing them as
liquidators in the estate of Sebal Beleggings pending an application
to review and
set aside the Master’s decision of 20 January
2017 to remove them as liquidators of Sebal Beleggings, which
application for
an interdict was settled insofar as the Master agreed
not to proceed with their removal pending finalisation of the review
application
– Mr Wessels and Me Venter were not cited as
respondents in application 567/2017, but appellants’
co-liquidator was
cited as second respondent;
(2) the anticipated
review application instituted under case number 5081/2017 was
finalised on 20 May 2019 in terms whereof appellants’
application to set aside the Master’s decision was dismissed
with costs – Mr Wessels and Me Venter intervened in the
review
application contrary to what transpired in application 567/2017;
(3) on 6 June 2019
Mbhele, J granted a declaratory order on application by Me Venter in
terms whereof it was declared that Sebal
Beleggings had not been in
liquidation since 28 April 2016, the effect hereof being that
appellants were not liquidators of Sebal
Beleggings when they applied
for the
interim
interdict against the Master and review of the
Master’s decision;
(4) on 10 February 2017
Chesiwe, AJ granted relief on an urgent basis in application 567/2017
to Mr Wessels and Me Venter who relied
on rule 6(12)(c) and 6(8) for
urgently anticipating the return date on the basis that the
interim
interdict against the Master was granted in their absence – she
ordered appellants to obtain written consent from Sebal Beleggings’
creditors for the appointment of Matsepe Attorneys to act on their
behalf, to supply the liquidators’ written mandate to
Matsepes
to act on their behalf and to obtain the Master’s consent for
Matsepes to act on behalf of the appellants, but as
mentioned
supra
,
this application for an interdict has been settled with the Master;
(5) when Me Venter and Mr
Wessels applied for the order on 10 February 2017 they were not even
parties to the application and although
they intended to obtain
consent to intervene, no order was ever granted to that effect in
application 567/2017 – rule
6(8) is clear: it stipulates
that
any party against whom
an order was granted
ex parte
may anticipate
the return date –
it is common cause that no order was granted against them on 3
February 2017;
(6) even if appellants
would be successful in their appeal, the outcome would have no
practical effect: the interdict has been settled
and the review
application has been finalised.
[8]
The only issue that needs to be considered is the costs of the
appeal. Me Venter and Mr Wessels intended to intervene
as third
and fourth respondents in application 567/2017, but this never
materialised. No order was ever granted in that regard.
They were cited as such by appellants in the notice of appeal, but
notwithstanding that I decided to refer to them by their names
herein. It is debatable whether they have any
locus
standi
to oppose the appeal and entitled to any costs, either as claimed, or
at all.
[9]
In my view Me Venter and Mr Wessels, who were not parties in the
interdict application 567/2017 had no right to apply for the
orders
granted in their favour. Their unprocedural action in flagrant
disregard of the rules of court caused Chesiwe, AJ
to incorrectly
grant orders in their favour. Instead of abandoning the orders,
at least at the time when appellants and the
Master settled the
interdict application, they decided to oppose the appeal and even
asked for a punitive costs order. In
my view it would be just
and equitable to order that each of the parties shall be responsible
for their own costs.
[10]
Adv D Hattingh appeared today for the appellants on the instructions
of Matsepes Inc. She confirmed that the matter became
moot, but
submitted that no costs should be awarded against appellants who
acted in good faith throughout. Adv F Janse van
Rensburg
insisted on a costs order in favour of his clients. He
submitted that the court should not consider the events leading
to
the orders granted by Chesiwe, AJ, but concentrate on what transpired
thereafter. He argued that appellants should at
best for them
not have proceeded with the re-instatement application once the
appeal had lapsed. I do not agree. It was the flagrant
disregard of
the rules of court by Me Venter and Mr Wessels that caused the orders
in their favour and eventually triggered the
appeal. Both
parties are to be blamed for the fact that this matter dragged out
over two and a half years.
Orders
[11]
Consequently the following orders are made:
1. The application for
re-instatement of the appeal is struck from the roll.
2. Each of the parties
shall be liable for the payment of their own costs.
_______________
J
P DAFFUE, J
I
concur
_______________
P
LOUBSER, J
I
concur
_______________
L
POHL, AJ
On
behalf of Appellants: Adv D Hattingh
Instructed
by: Matsepes Attorneys
BLOEMFONTEIN
On
behalf of Respondents: Adv FG Janse van Rensburg
Instructed
by: Willers Attorneys
BLOEMFONTEIN