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[2019] ZAFSHC 135
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Lotz v Knipe and Others (3864/2018) [2019] ZAFSHC 135 (1 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.:3864/2018
In the application of:
CAROLL
JESSIE KATHLEEN
LOTZ APPLICANT
and
JOHN
DOUGLAS JANSEN
KNIPE 1
ST
RESPONDENT
ANDRE
BAZZETT JANSEN
KNIPE 2
ND
RESPONDENT
THE
SHERIFF BLOEMFONTEIN
WEST 3
RD
RESPONDENT
BONGANI
TRADING
CC 4
TH
RESPONDENT
ROBITYPE
CC 5
TH
RESPONDENT
CORAM:
I VAN RHYN, AJ
JUDGMENT
BY:
I VAN RHYN,
AJ
HEARD
ON:
3 MAY 2019
DELIVERED
ON:
1 AUGUST
2019
INTRODUCTION.
[
1]
This is an application for declaratory and
interdictory relief relating to the sale of the first and second
respondents’
shares in two companies known as Kameelhoek and
Schaapplaats (both in liquidation) (“two companies in
liquidation”).
Subsequent to the delivery of the first and
second respondents’ opposing affidavit an amendment was sought
of the notice
of motion. The application was not opposed.
[2]
The application is opposed by the first and second respondents who
also launched a counter application for stay of execution
steps by
the applicant, in terms of the provisions of Rule 45A of the Rules of
Court.
[3]
On the date of hearing, the court firstly disposed of three
condonation applications. These applications were all condoned in
the
following way: the late filing of the applicants replying affidavit
and her opposing affidavit to the counter application was
condoned.
The late filing of the first and second respondents’ replying
affidavit was condoned and lastly the late filing
of the Heads of
Argument filed on behalf of the applicant was condoned.
[4]
The amended Notice of Motion reads as follows:
1. “Declaring any
sales transaction or cession of the First and Second Respondents’
shares in the companies Kameelhoek
(Pty) Ltd and Schaapplaats 978
(Pty) Ltd to be void in terms of Section 341 of the Companies Act, 61
of 1973.
2. Prohibiting and
restraining the First and Second Respondents from selling or ceding
their shares in the two companies Kameelhoek
registration number
19879/000200/07 and Schaapplaats, registration number 1979/004048/07.
3. Prohibiting and
restraining the First and Second Respondents from unlawfully
interfering with the execution measures to sell
or cede their shares
of the companies in liquidation of the respondents.
4. Authorising and
instructing the Sheriff to proceed with the sale in execution of the
First and Second Respondents shares in the
companies known as
Kameelhoek registration number 1979/000200/07 and Schaapplaats,
registration number 1979/004048/07.
5. The First, Second,
Fourth and Fifth respondents and their attorney and counsel
de
bonis propriis,
be ordered to pay cost of the application on the
scale as between attorney and client, jointly and severally, the one
paying the
other to be absolved.”
[5]
The first and second respondents requested the following orders in
terms of their counter application:
“
1. The execution
of cost orders issued against the First and Second Respondents by
this court under case numbers 481/2014 and 5081/2014
is suspended in
terms of Rule 45A of the Uniform Rules of Court.
2. The suspension of the
execution ordered in prayer 1 is to operate on the following terms:
2.1 It is to
operate until such time as the liquidation process is finally
concluded for the companies known as Kameelhoek
(Pty) Ltd (in
liquidation) and Schaapplaats 978 (Pty) Ltd (in liquidation), and the
First and Second Respondents are entitled to
be paid the amounts from
the process due to them;
2.2 The first and
Second Respondents are ordered to instruct the final Liquidators of
the companies mentioned above, to effect
payment of the cost orders
in favour of the applicant in full from the proceeds due to the First
and Second Respondents from the
final liquidation of the companies
mentioned above;
2.3 The First and
Second Respondents are ordered to provide a copy of this instruction
to the applicant’s attorney,
within 7 days after the granting
of this order;
2.4 Leave is given
to all parties to approach the court on the same papers, duly
amplified, for an order uplifting the suspension
of execution order
or its amendment.
3. The applicant is
ordered to pay the cost of this application, only in the event of her
opposing”
[6]
No order as to costs is sought against the third respondent, the
Sheriff and no opposition to the application by the applicant
was
filed by the third, fourth and fifth respondents. Adv. D A Price
appeared on behalf of the applicant and Adv. F Janse van Rensburg
appeared on behalf of the first and second respondents. There was no
appearance on behalf of the other respondents. To avoid confusion
I
shall throughout refer to the parties as cited in the application
filed by the applicant.
BACKGROUND.
[7]
Appended to the papers is a copy of Daffue J’s judgment in
application 4606/2016, “the Triegaardt application”
where
he referred to an observation he made on 23 May 2013 in the matter of
Knipe
and Others v Kameelhoek (Pty) Ltd and Another
[1]
:
“
These
proceedings, formidable as they are, are but a skirmish in a full
blown campaign – a family war- being fought on several
fronts”.
He then
remarks that the family war did not cease after his remark made on 23
May 2013. Now, in July 2019 the battle still
continues.
This
application arises from ongoing litigation between the Knipe
siblings, which is not yet finalised.
[8]
The applicant was granted cost orders against the first and second
respondents and Jackie Vigne, jointly and severally under
case number
5081/2014 and 4817/2014. The bills of costs were taxed. The first and
second respondents’ and their sister, Jackie
Vigne’s
shares in
the two companies in liquidation were
attached during January 2018. A sale in execution was arranged to be
held on 10 April 2018.
On the day prior to the sale of the
attached shares, an agreement was reached pertaining to certain
issues as set out in
a letter from Mr Kobus Senekal, the legal
representative of the applicant and a reply from the first and second
respondent’s
then attorney, Mr Marius van Rensburg. It was
agreed that the auction would be postponed
sine
die
pending an agreement between the parties
regarding all the outstanding issues.
[9]
During May 2018, subsequent to a demand from Mr Senekal for payment
of an amount of R9 million plus VAT for his fees, failing
which he
would proceed with execution steps against the respondents, the
settlement agreement was aborted. A second sale in execution
was
arranged to be held on the 18
th
July 2018.
On
behalf of the applicant it is contended that, in a designed attempt
to frustrate the sale in execution, the first and second
respondents
and Jackie Vigne “
acting in concert, fraudulently colluded
by advising the Sheriff in writing and/or causing the Sheriff to be
advised, on the afternoon
of the 17
th
of
July 2018, that they were no longer the owners of the shares in the
two companies in liquidation and that they have sold the
shares to
‘third parties’.”
[10]
The “third parties” are, in the alleged sale of the first
respondent’s shares, the fourth respondent, i.e.
Bongata
Trading CC and in respect of the second respondent’s shares,
the fifth respondent i.e. Robitype CC. The applicant
argues
that the first respondent was a sole member of the fourth respondent
until as recent as July 2017 while the purchaser of
the second
respondent’s shares is the fifth respondent of which his wife
(his erstwhile girlfriend) is the sole member. No
detail regarding
the date of the sale of these shares or at what value the shares were
allegedly sold were provided.
[11]
The Sheriff did not proceed with the sale in execution,
understandably so. After the sale in execution was cancelled, the
first respondent, on 24 July 2018 and second respondent on 25 July
2018, provided written instructions to the liquidators of the
companies in liquidation for the issue of undertakings that the costs
orders against them may be paid to the applicant from the
netto
dividends of the proceeds of their shares at the conclusion of the
winding up process of the two companies.
[12]
It is argued that the conduct of the first and second respondents was
fraudulent and constituted a criminal offence as contemplated
in
section 46(b) of the Superior Court Act 10 of 2013. Furthermore it is
contended that the respective sales of the shares were
void because
same took place in contravention of the provisions of section 341(1)
of the Companies Act 61 of 1973.
[13]
In their opposing affidavit the first and second respondents state
that they both ceded, as security, their shares in the companies
to
the entities which caused the cancellation of the sale in execution
scheduled to take place on 17 July 2018. The fourth and
fifth
respondents stood in for the legal costs of the first and second
respondents in the ceaseless litigation between them, the
applicant,
her attorney and the provisional liquidators of the companies. It is
contended that the cession of their shares took
place in 2017 and the
fourth and fifth respondents were incorrect in their assertion to the
Sheriff that they are the owners of
the shares. The first and second
respondents therefore argue that there is no need or any reason for
the orders applied for by
the applicant. They furthermore argued that
the involvement of Mr Senekal is central to the long history of
litigation between
the parties. It is alleged that Mr Senekal, at
certain periods of time during the past 11 years, acted on behalf of
the second
respondent and his brother, Peter Knipe (also a party to
the saga of litigation, though not a party in the present
application)
against his current client, the applicant, and presently
against the second respondent. During the same time Mr Senekal
“factually”
acted on behalf of the provisional
liquidators of the two companies and therefore his involvement is
under severe objection from
the first and second respondents as well
as Jackie Vigne. In the judgment by Daffue J, “the Triegaardt
application”,
certain remarks were made pertaining to the
involvement of Mr Senekal. I find it highly questionable that
Mr Senekal continue
to act as the legal representative of the
applicant under circumstances where he previously acted as the legal
representative of
some of the opposing parties.
[14]
The first and second respondents as well as Jackie Vigne, on several
occasions questioned Mr Senekal’s mandate to act
on behalf of
the provisional liquidators and during 2015, when Mr Senekal
submitted his attorney and client bill of costs to the
liquidators,
the Taxing Master required proof of the attorney and client fees
agreement the liquidators relied upon. In opposing
the application
and in support of their counter application the hostile relationship
between the Knipe siblings and Mr Senekal
were elaborated upon. With
reference to the “Trichardt Family Trust application”,
the claim against the estates of
the two companies in liquidation by
Mr Loftus Viljoen, the provisional sequestration application of the
second respondent’s
estate and the relationship between the
liquidators and Mr Senekal, the first and second respondents contend
that Mr Senekal’s
continued involvement and his claim of
between R21 million and R9 million for his costs against the estates
of the two companies
in liquidation, serves as the main reason for
the delay in the finalization of the liquidation process.
[15]
In opposition to the applicant’s application it is contended by
the first and second respondents (as well as Jackie Vigne)
that the
settlement proposals by Mr Senekal were accepted on 10 April 2018 to
prevent their shares being auctioned off the following
day. However,
long before the deadline for the submission of the final liquidation
and distribution account on 29 June 2018, Mr
Senekal in a letter
dated 15 May 2018, the “repudiation letter,” demanded
payment of his costs in contravention of
the settlement agreement
which included the provision that no further execution steps will be
taken against the first and second
respondents and Jackie Vigne. It
is argued by the first and second respondents that the applicant does
not have any risk that her
costs orders will not be paid in full from
the proceeds of the first and second respondents’ shares in the
two companies.
They contend that Mr Senekal was the author of the
proposal that no further execution steps or litigation will be
embarked upon
by the applicant on the condition that “the whole
matter” is resolved, the final liquidation and distribution
account
is confirmed by 29 June 2018 and on condition that any costs
orders which have been obtained until then, would be paid out of the
dividends of the shareholders.
[16]
The applicant argues that the first and second respondents have
misled the court regarding the estimated surplus in the estates
of
the two companies which, in their assessment, ought to be
approximately R25 million, leaving each shareholder with
approximately
R5 million. On 7 September 2018 the final liquidators
sent a report/update with an updated liquidation and distribution
account
drafted on the basis that an all-in settlement was reached.
From this liquidation and distribution account the best possible
scenario
for the 5 shareholders is that they will each receive
approximately R 2, 2 million. On behalf of the applicant it is
therefore
argued that the final amount will in all likelihood be less
than this estimation. Even on the basis that first and second
respondent
as well as Jackie Vigne receive R2, 2 million each, their
dividends will be insufficient to satisfy all the costs orders in her
favour and those of the liquidators. The applicant provides a
calculated estimation of her taxed and soon to be taxed costs as
well
as further cost orders obtained in the Northern Cape High Court, some
in favour of the liquidators and others only pertaining
to some
of the respondents, but in total amounted to R 9 325 810.65.
Therefore, with the finalization of
the estates of the two
companies in liquidation still ongoing and several aspects pending
she, as a judgment creditor should not
have to wait indefinitely with
no guarantee of receiving payment of her taxed costs.
THE
LEGAL PRINCIPLES: APPLICABLE TO THE APPLICANT’S
APPLICATION.
[17]
The nature of the
remedy is that of a final and permanent interdict. In prayer 1
of the notice of motion applicant seeks declaratory
relief and in
terms of prayers 2 and 3, a prohibitory interdict is sought. In
prayer 4 performance of certain orders by the
Sheriff, sanctioned by
the court, is required. Interdict procedure is a remedy of a
summary and extra-ordinary nature, allowed
in cases where a person
requires protection against an unlawful interference or threatened
interference with his or her rights.
It is not a remedy for
past invasion of rights, but is concerned with the present or the
future.
[2]
[18]
The requisites for the grant of a final interdict have been
authoritatively decided in
Setlogelo
v Setlogelo
[3]
.
The three requisites for a final interdict, all of which must
be alleged and proved, are:
i. a clear right on the
part of the applicant;
ii. an injury actually
committed or reasonably apprehended;
iii. the absence of any
other satisfactory remedy available to the applicant.
[19]
The applicant contends that the disposition of the first and second
respondents’ shares, if any, took place is in contravention
of
the provisions of
Section 341
(1) of the Companies Act 61 of 1973 which provides as follows:
"341 Dispositions 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.”
[20]
A disposition after the commencement of winding-up proceedings, is
void and not merely voidable. Although section 341 does
not make
provision for the setting aside of or for the declaring void of the
disposition, it would follow as a necessary consequence
that in the
absence of an order validating the disposition, the disposition would
be void. The applicant was awarded costs in two
applications (case
number 5081/2014 and case number 481/2014) which form the subject of
this application. The applicant intends
to execute for payment of the
taxed costs, hence the application.
[21]
In opposition, the second respondent, apart from blaming Mr Senekal
for orchestrating a provisional sequestration application,
did not
provide information pertaining to his financial position and his
ability to meet the costs orders made in favour of the
applicant.
Neither the second respondent nor the first respondent presented this
court with any financial statements or information
regarding
immovable property or the value of movable assets. The
applicant appended copies of returns of warrant of execution
served
upon the first and second respondents in March 2016. In these returns
from the Sheriff it were stated that both respondents
indicated that
it was impossible for them to pay the amount due, or any amount, and
that both first and second respondents indicated
that they own no
property or assets for attachment in the jurisdiction of the
Sheriff of Bloemfontein West. Both the first
and second respondents
indicated to the Sheriff that they do own substantial assets in the
Kimberley district. The Sheriff
issued
nulla bona
returns regarding assets in the district of Bloemfontein. During June
2017 the Sheriff followed the same procedure and again issued
nulla
bona
returns regarding assets in the Bloemfontein area.
Strangely, in respect of the first respondent’s return, dated
14 June
2017, the following is recorded by the Sherif: “
Applicant
(Mr JDJ Knipe) informed me that he is believably not in possession of
any assets in Bloemfontein. The applicant informed
me that possible
assets could believably be found at the farm Kameelhoek in Kimberley”
[22]
A court should adjudicate factual disputes in application procedure
having regard to the well-known
Plascon-Evans
Paints
dicta,
approved
and considered in depth in
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[4]
as follows:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion must in the event of conflict, accept the version
set up by his opponent unless the latter’s
allegations are, in
the opinion of the court, not such as to raise a real, genuine or
bona fide dispute of fact or are so far-fetched
or clearly untenable
that the court is justified in rejecting them merely on the papers:
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A) at 634E-635C. See also the analysis by Davis J in
Ripoll-Dausa v Middleton NO
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C) at 151A-153C with
which I respectfully agree.”
[13] A real, genuine
and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise
the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be
disputed. There will of course be instances
where a bare denial meets
the requirement because there is no other way open to the disputing
party and nothing more can therefore
be expected of him. But even
that may not be sufficient if the fact averred lies purely within the
knowledge of the averring party
and no basis is laid for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing
party must necessarily possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true
or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in
finding that the test is satisfied. I say ‘generally’
because factual averments seldom stand apart from a broader matrix
of
circumstances all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or
understand
the nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made
by the other
party. But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and
will only in
exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser
who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully
and accurately in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust
view of the matter.”
[23]
The first and second respondents do not dispute their liability to
pay the taxed costs of the applicant. They contend that
the applicant
is guaranteed the satisfaction of payment once they receive the value
of their shares in the two companies in liquidation.
As confirmation
of their intention to fulfil their obligation, they instructed the
liquidators to make direct payment to the applicant
of the amounts
owing on these costs orders as soon as the liquidation process is
finalized. Their objection to the execution process
is that the
execution and sale of their shares will be for an ulterior motive
based on the averment that Mr Senekal, on more than
one occasion,
threatened to purchase their shares for an amount next to nothing
where after he will pursue the sequestration of
their estates. The
first and second respondents rely on an e-mail from Mr Senekal, a
copy of which is appended to the papers as
well as a verbal threat in
this regard, made during a telephonic conversation with their former
attorney, Mr Marius Van Rensburg.
THE
LEGAL PRINCIPLES: THE RESPONDENTS COUNTER APPLICATION.
[24]
The first and second respondents contend that it will be just and
equitable to grant an order in terms of the respondents’
counter application to prevent the applicant from enforcing the costs
orders pending the conclusion of the liquidation process
of the
estates of Kameelhoek and Schaapplaats and that an injustice will be
done in the event of the shares being sold for an amount
far less
than what they are worth. The first and second respondents therefore
request a stay of the execution of the costs orders
in terms of the
provisions of Rule 45A of the Rules of Court.
[25]
Rule 45A provides as follows:
“
The court may
suspend the execution of any order for such period as it may deem
fit.”
In
Dumah v
Klerksdorp Town Council
[5]
it was held that
good cause to stay an execution would be any fact or circumstance
that would make it just or equitable as between
the parties that
execution should be stayed. Price J furthermore held that it might be
equitable if it were uncertain in whose
favour there might be an
ultimate balance owing. The court must consider what would be just
and equitable as between the parties.
[26]
In
Erasmus
Superior Court
Practice
[6]
,
with reference to a number of decided cases, the following is stated
with regard to the application of the provisions of Rule
45 A:
“
As a general
rule the court will grant a stay of execution where real and
substantial injustice requires such a stay or, put otherwise,
where
injustice will otherwise be done. Thus the court will grant a
stay of execution where the underlying causa of the judgment
debt is
being disputed or no longer exists, or when an attempt is made to use
for ulterior purposes the machinery relating to the
levying of
execution. It has been held that, in particular circumstances,
the court could, in the determination of the factors
to be taken into
account in the exercise of its discretion under this rule, borrow
from the requirements for the granting of an
interim interdict,
namely that the applicant must show (a) that the right which is the
subject of the main action and which he
or she seeks to protect by
reason of the interim relief is only prima facie established though
open to some doubt; (b) that
if the right is only prima facie
established, there is a well-grounded apprehension of irreparable
harm to the applicant if the
interim relief is not granted and he or
she ultimately succeeds in the establishing of his or her right; (c)
that the balance of
convenience favours the granting of interim
relief; (d) that the applicant has no other satisfactory remedy.
[27]
The first and second respondent did not proffer that the application
to suspend payment of the taxed costs to the applicant
is based on a
pending review of the applicant’s costs orders or pending any
appeal of any of a vast number of applications
and interlocutory
applications already heard in the ongoing litigation between the
Knipe siblings, the liquidators or the Master.
In
Cooper
v Feinstein
[7]
Ndita AJ (as she
then was) stated as follows:
"It
appears from what the learned authors discuss that the circumstances
in which the courts will grant or refuse the application
for
suspension of writ of execution vary from case to case depending on
the circumstances of each case. There is therefore no hard
and fast
rule."
In
Gois t/a
Shakespear’s Pub v Van Zyl and Others
[8]
the court
held that the stay of execution will be granted where the underlying
causa is the subject matter of an ongoing dispute
between the
parties. It was further held that an application for review qualifies
as an attack on the underlying causa.
[28]
I was also referred to the judgment in
Bestbier
v Jackson and another
[9]
.
In that case the
applicant (plaintiff) was ordered to pay the costs of a postponement
of the trial. The respondents (defendants)
taxed their bill of
costs and their attorney instructed the Sheriff to attach the
applicant’s interest in his cause of action
against the
respondents. The applicant obtained an order condoning his
failure timeously to note a review of taxation.
The applicant
applied to stay the sale in execution pending the review of
taxation. In his judgment Coetzee DJP said
[10]
:
“
The
suspicion which one has, and which is a very strong one, is that this
is simply a further attempt to harass the applicant to
the point of
making it impossible for him to proceed with his cause of action.
One gathers sufficient material for this inference
from the mere fact
that no other property of the applicant became the subject of the
attachment, at a time when he was financially
apparently illiquid,
and that this particular cause of action, by special instructions,
was then so attached.”
The learned F Coetzee DJP furthermore held
[11]
:
“
It
is perfectly obvious that justice requires that this review of
taxation be proceeded with, or at least that the applicant be
given
an opportunity to proceed with it, and that, pending that, this
rather harassing sale in execution of his very cause of action
in
that action, be stayed.
EVALUATION
OF APPLICATION FOR AN INTERDICT AND THE COUNTER APPLICATION.
[29]
Insofar as the applicant seeks a final interdict she has
to prove an unlawful state of affairs and the right to secure a
permanent
cessation thereof. The first and second respondents deny
any sale of their shares in the companies in liquidation, but they
now,
since they received the application for a permanent interdict to
restrain them from selling or ceding their shares, state that they
have ceded their shares
in securitatem debiti.
The first and second respondents
however failed to provide such evidence or facts. They advanced no
reason why they are not able
to provide this court with the cession
documents or confirmatory affidavits from the respective
cessionaries, the fourth and fifth
respondents.
[30]
It is the applicant’s case that she is entitled to payment of
her taxed costs and that the first and second respondents
are not
entitled to postponement of their obligation to comply with the
warrants of execution already issued. Whether the applicant
has a
clear right is a matter of substantive law. Whether that right is
clear is a matter of evidence. In order therefore
to establish
a clear right the applicant has to prove on a balance of
probabilities facts which in terms of substantive law establish
the
right relied upon.
[12]
I am convinced
that the applicant has a clear right to obtain due payment of her
costs orders. Furthermore the first and second
respondents do not
deny their responsibilities pertaining to the costs orders against
them.
The
applicant has demonstrated an actual invasion of her right to proceed
with execution steps and the first and second respondents
have
unlawfully interfered with her right as such.
[31]
In terms of the provisions of Section 341 of the Companies Act, 61 of
1973 any disposition of their shares was void since it
must have
occurred, if at all, subsequent to the commencement of the winding up
of the two companies in liquidation. The first
and second respondents
did not provide this court with any information pertaining to their
allegations that they ceded their shares.
I agree with the submission
by Mr Price that; the timing of the new version that the shares were
ceded and not sold; the relationship
between the first and second
respondents and the members of the fourth and fifth respondents; as
well as the failure to provide
convincing, or for that matter any
confirmatory evidential material causes the version that the shares
were ceded to the fourth
and fifth respondents to be so far-fetched
that it can safely be rejected.
[32]
The applicant has thus succeeded in convincing this court that an
order prohibiting and restraining the first and second respondents
from unlawfully interfering with the execution measures or to sell or
cede their shares in the companies in liquidation, should
be awarded.
I was also informed that the Sheriff, since receiving the letters
from the fourth and fifth respondents pertaining
to their alleged
ownership of the shares to be sold in execution, refrains from
proceeding with a sale in execution without an
order to this effect.
Therefore I have been persuaded
that an order in
terms of prayer 4 of the Notice of Motion, authorising and
instructing the Sheriff to proceed with the sale in
execution of the
first and second respondents’ shares in the companies in
liquidation, should be granted.
[33]
The first and second respondents did not elaborate upon their
declarations made to the Sheriff that neither of them have any
assets, movable or immovable apart from assets held in the
Kameelhoek. Therefore the only information at hand regarding the
financial
position of the first and second respondents remains the
information pertaining to the assets and liabilities of the two
companies
in liquidation
[13]
.
From the affidavit filed by the liquidators, it is evident that
further assets and liabilities, further interests, recovery of
further possible debtors, outstanding legal costs, capital gains tax,
income tax and the costs of the enquiry will be dealt with
in a
further liquidation and distribution account. The applicant is
concerned that the amount available for distribution between
the
siblings is dwindling. The first and second respondent have expressed
the same concern.
[34]
The first and second respondents’ application to stay execution
steps pending the finalization of the liquidation process
does not
concern the
causa
of the applicant’s costs orders. The court in
Firm
Mortgage solutions (Pty) Ltd v Absa Bank Ltd
[14]
had the
opportunity to consider the ambit, if any, of the discretion the
court has to order the stay or suspension of the execution
in
circumstances where there was no application for the rescission of
judgment or review of taxation. With reference to Rule 45A
the court
held as follows in answering the question whether it is possible that
Rule 45A envisages the exercise of an equitable
jurisdiction unhinged
by any legal causa but simply predicated on the equities of a case:
“
The
answer is to be found in Rule 45A of the Uniform Rules of Court and.
In turn this necessitates an answer to a further question
as to
whether the particular Rule is applicable in a case such as the
present. In Gois v Van Zyl
and
Others
2011(1)
SA 148 (LC) Waglay, J (as he then was) set out the basic principles
for a grant of a stay in execution which, as Erasmus
in Superior
Court Practice
writes,
is applicable to Rule 45A. These principles were summarised by the
learned Judge, at para 37 as follows:
“
(a)
A court will grant a stay of execution where real and substantial
justice requires it or where injustice would otherwise result.
(b)
The court
will be guided by considering the factors usually applicable to
interim interdicts except where the applicant is not asserting
a
right but attempting to avert injustice.
(c)
The court
must be satisfied that:
(i)
The applicant has a well-grounded apprehension that the
execution is taking place at the instance of
the respondent(s);
(ii)
irreparable harm will result if execution is not stayed and the
applicant
ultimately succeeds
in
establishing a clear right.
(d)
Irreparable harm will invariably result if there is a possibility
that the underlying
causa
may ultimately be
removed i.e. where the underlying
causa
is the subject
matter of an on-going dispute between the parties.
(e)
The court
is not concerned with the merits of the underlying dispute - the sole
enquiry is simply whether the causa is in dispute.”
To
the extent that there is any uncertainty as to the meaning of these
dicta, further clarity is to be found in the judgment where,
the
learned Judge examines the facts of the case and, in particular,
whether a stay of execution should be granted, pending the
outcome of
a rescission application. Waglay J then said: ‘The applicant
will furthermore suffer irreparable harm if the execution
is not
stayed and the rescission application is successful.’ It is
clear that what was intended in this case was that, where
the
causa
for the execution
is a judgment and the judgment is placed in dispute because an
application for rescission has been brought, grounds
may well exist
for the exercise of a favourable discretion by a court.”
[35]
In the present case, there is no such application. What the first and
second respondents offer as justification for an exercise
of a
court’s discretion in their favour is merely to afford them
more time.
The respondents have not
shown that they will suffer irreparable harm if their shares are sold
per execution and payment is afforded
to the applicant of her costs
orders. They contend that they will suffer irreparable harm if Mr.
Senekal purchases the shares at
an amount far less than what the
shares are worth. The applicant has judgments in her favour and is
entitled to execute. There
is no indication that the liquidation
process of the two companies will be finalized soon. It may take a
few more years. The process
has been dragging on for 7 years. The
applicant would suffer very substantial prejudice if execution was
stayed.
[36]
While I have a discretion to suspend execution, in the totality of
the circumstances, I am not of the view that execution would
result
in an injustice. In determination of what is just and equitable
between the parties, the court is obliged to have regard
to the
rights of all the parties concerned. In all the circumstances, the
counter-application falls to be dismissed with costs.
On behalf of
the applicant it was argued that the first and second respondent’s
attorney and counsel acted unprofessionally
and improperly and that a
special cost order is sought in expressing the court’s
disapproval of the conduct of the legal
representatives. The grounds
for the special costs order is the extremely insulting answering
affidavit in which fraudulent and
improper conduct was imputed to Mr
Senekal.
[37]
In light of the numerous applications and counter applications in the
“Knipe saga”, containing several accusations
from
both sides of fraud, dishonest conduct and other defamatory
allegations, this court is not prepared to adjudicate upon the
truthfulness, or not, of these accusations at this stage.
[38]
For the above reasons, I make the following order:
1.
Any sales transaction or cession of the first and
second respondents’ shares in the companies Kameelhoek (Pty)
Ltd and Schaapplaats
978 (Pty) Ltd (in liquidation) are declared
void in terms of Section 341 of the Companies Act, 61 of 1973.
2. The first and second
respondents are prohibited and restrained from selling or ceding
their shares in the companies Kameelhoek
registration number
19879/000200/07 and Schaapplaats, registration number 1979/004048/07
(in liquidation).
3. The first and second
respondents are prohibited and restrained from unlawfully interfering
with the execution measures to sell
or cede their shares in the
companies Kameelhoek registration number 19879/000200/07 and
Schaapplaats, registration number 1979/004048/07
(in liquidation).
4. The Sheriff is
authorised and instructed to proceed with the sale in execution of
the first and second respondents’ shares
in the companies known
as Kameelhoek registration number 1979/000200/07 and Schaapplaats,
registration number 1979/004048/07 (in
liquidation).
5. The first and second
respondents are ordered to pay cost of the application on the scale
as between attorney and client, jointly
and severally, the one paying
the other to be absolved.
6. The counter
application is dismissed with costs.
____________________
I
VAN RHYN AJ
On
behalf of the Applicant: ADV. D A PRICE SC
Instructed
by: F J SENEKAL INC.
On
behalf of the First & Second Respondents:
ADV. F. J. VAN RENSBURG
Instructed
by:
WILLERS ATTORNEYS
On
behalf of the Third, fourth and fifth respondents: No appearance
[1]
2014 (1) SA 52
(FB) at para [7].
[2]
LAWSA, VOL 11 [390].
[3]
1914 AD 221
, at 227.
[4]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at
[12]
–[13].
[5]
1951(4) SA 519 (T) at 522.
[6]
Vol II at B1-330 – B1-330A.
[7]
(112 9/02)
[2005] ZAWCHC 28
(20 April 2005).
[8]
2011 (1) SA 148 (LC).
[9]
1986 (3) SA 482
WLD.
[10]
At 484G-H.
[11]
At 485F.
[12]
LAWSA para [397]
[13]
Road Accident Fund v Strydom
2001 (1) SA 292
CPD,
[14]
2014 (1) SA 168
(WCC).