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[2019] ZAFSHC 137
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Knipe and Others v Stewart and Others (5889/2017) [2019] ZAFSHC 137 (1 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.
5889/2017
In
the matter between:
JOHN DOUGLAS JANSEN
KNIPE
ANDRé
BAZZET JANSEN KNIPE
JACKIE
VIGNE
MELANY
SIMONE KNIPE
MICHAEL
JOHN KNIPE
WILLEM
LODEWYK PRETORIUS
and
CHARLES STEWART
S.M.
RAMPOPORO N.O.
CHAVONNE
B ST CLAIR COOPER N.O.
FREDERICK
JACOBUS SENEKAL
THE
MASTER OF THE HIGH COURT,
BLOEMFONTEIN
CAROL
JESSIE KATHLEEN LOTZ
First
Applicant
Second
Applicant
Third
Applicant
Fourth
Applicant
Fifth
Applicant
Sixth
Applicant
First
Respondent
Second
Respondent
Third
Respondent
Fourth
Respondent
Fifth
Respondent
Sixth
Respondent
CORAM
:
I VAN RHYN, AJ
HEARD
ON
: 2 MAY 2019
JUDGMENT
BY
:
I VAN RHYN, AJ
DELIVERED:
1 AUGUST 2019
INTRODUCTION:
[1]
This is an interlocutory application for an order whereby the First,
Second and Third Applicants in the main application are
declared
vexatious litigants and ordered to furnish security in the main
application for the Sixth Respondent’s costs in
the amount of
R1.5 million within ten (10) days of date of such an order.
[2]
The Applicant, Carol Lotz in this interlocutory application is the
Sixth Respondent in the main application. For convenience
sake
in this judgment it is appropriate to refer to the parties as cited
in the interlocutory application. The First Respondent
is John Knipe,
the Second Respondent is André Knipe and the Third Respondent
is Jackie Vigne. The First, Second and Third
Respondents are referred
to separately as the Respondents. The Fourth to the Sixth
Applicants in the main application does
not feature in this
interlocutory application and furthermore the Second, Third as well
as the Fifth Respondents in the main application
are also not
concerned with the interlocutory application.
BACKGROUND
:
[3]
The Applicant and the First, Second and Third Respondents are
siblings, born of the marriage between the late Mr H B J L Knipe
and
their late mother, Mrs M E Knipe. The Applicant was appointed
as the Executrix in the estate of the late H B J L Knipe
and also in
her late mother’s estate. Subsequent to the death of
their father in 2007 the Respondents’ disputes
with their late
mother and the Applicant ensued involving litigation which commenced
almost eleven (11) years ago. Initially
the family was split
into three camps consisting of their mother and the Applicant in the
first camp, the First, Second and Third
Respondents in a second camp
and their brother Peter Knipe forming a third camp. Peter Knipe
is not a party in the present
application. In order to adjudicate
upon the facts of this matter it is not necessary to make any
credibility findings in regard
to the allegations made towards any of
the parties or other persons referred to in this application and I
refrained from doing
so.
[4]
The Applicant contends that the rivalry between the siblings started
shortly after their father died in 2007 whereafter the
Respondents
laid claim to the whole estate of their late father and assets held
in trust which was not part of their late father’s
estate.
Not only legal action against their late mother and the Applicant had
to be fended off, but due to numerous actions
by the Respondents
their late mother and the Applicant were also forced to take legal
action against the Respondents to protect
their own interests, the
interests of the deceased estate of their late father, the companies
(in liquidation) and the heirs of
their late father’s estate.
Criminal charges were laid against their late mother and the
Applicant, all criminal charges
later to be withdrawn and family
violence applications were also launched against the Applicant, all
to be dismissed.
[5]
During the past eleven (11) years, twenty seven (27) matters served
before the Courts and it is contended by the Applicant that
she (and
her late mother) were successful in twenty six (26) of these matters
which excludes the criminal matters and family violence
matters. The
Applicant argues that between her late mother and herself they spent
approximately R14 231 088.85
on litigation but
notwithstanding their substantial success in the litigation they were
only able to recover less than R250 000.00
in costs from the
Respondents.
[6]
When the date for the hearing of this matter was arranged, all the
parties concerned, concurred that it was convenient for this
court to
hear argument on the matters under case number 3864/2018, case number
6302/2018 and the main application under case number
5889/2017 (which
was not argued at the time of the hearing on 2 and 3 May 2019) as
well as the vexatious application under case
number 5889/2017. This
judgment should accordingly be read conjunctively with my judgments
in the other inter-related matters.
[7]
Appended to the Applicants’ Practice Note and Heads of Argument
under case number 6302/2018 is a chronology of the events
and history
of litigation, marked annexure “C”. The chronology
of events does not contain a summary of the all
the litigation
between the parties. In their answering affidavit the
Respondents stated that, in respect of the costs of
R14 231 088.85
which the Applicant and their late mother allegedly spent on
litigation, the Applicant is invited to disclose
tax returns to
substantiate the allegation that both the Applicant and their late
mother were in the financial position to pay
these legal costs. The
Respondents contend that funds utilized to pay legal costs were
syphoned from the estates of their late
father and later also their
late mother. The Applicant referred to a reconciliation pertaining to
payments which was appended to
the founding affidavit. It is
assumed that the Applicant referred to annexure “CJK11”
in terms whereof the parties’
late mother paid for the
administration of the estate an amount of R8 898 659.76 and
the Applicant paid an amount of
R5 332 429.09 towards the
administration of the estate.
[8]
On behalf of the Applicant it was argued that the Respondents
litigated at will, but have generally refused to pay any adverse
costs orders and have used every imaginable method to frustrate the
liquidation of Kameelhoek (Pty) Ltd and Schaapplaats (Pty)
Ltd (the
two “Companies” (in liquidation)). The total taxed bills
of costs including interest which resulted from this
litigation and
for which the Respondents are jointly and severally liable, exceeds
R4.6 million together with mora interest of
10.25% per year.
The Applicant argues that cost orders in case number 4817/2014 and
5081/2014 have remained unpaid since
July 2016, despite taxation,
review and unsuccessful applications for leave to appeal.
Despite numerous attempts to recover
these costs from the
Respondents, the Applicant and also the liquidators have been
unsuccessful.
[9]
The liquidators applied for leave to sell the farms belonging to the
two Companies by way of public auction due to the opposition
from the
First and Second Respondents in preventing the process of winding-up
of the Companies. Two (2) business rescue applications
were
brought by the First and Second Respondents and in the second
business rescue application, Hancke J found (under case number
2120/2016) that the application by the Second Respondent and
supported by the First and Third Respondents was an abuse of process
and warranted a special cost order on attorney- and own client
scale. An application for leave to appeal against the judgment
of Hancke J soon followed. Rampai J, in dismissing the
application for leave to appeal, found that enormous administration
costs had been incurred over years as a result of the Respondents
recalcitrant attitude, coupled with their endless litigation
and that
the true purpose of the application was to delay the winding-up, to
frustrate the liquidators and to spite the Applicant.
Rampai J
also held that the winding-up of the companies would have been
uncomplicated, efficient and cost-effective, but for the
endless
litigation.
[10]
On behalf of the Applicant it was argued that the
modus operandi
of the Respondents is to issue an application, obliging
interested parties to oppose the application in order to protect
their interests,
and then once judgment is delivered against the
Respondents, they would seek leave to appeal. If unsuccessful, they
lodge an application
for special leave to appeal to the Supreme Court
of Appeal. It is also argued that once the end of the
litigation process
has been reached and the Bills of Costs have been
taxed, the Respondents would review the Taxing Master’s
decision and followed-up
by an appeal against the review Judge’s
judgment.
[11]
The Respondents contend that the Fourth Respondent, Mr Senekal and
counsel has doubled charged for fees and expenses in case
number
4606/2016 and case number 1660/2017. Charges of fraud have been
laid in this respect. The Respondents allege that
they have always
acted in the best interest of the estates of the two Companies (in
liquidation) by
inter alia
bringing an application to set
aside the proving of the false claim of Mr Loftus Viljoen. I
was referred to the judgment
of Rampai R in case number 956/2014 and
957/2014 in this regard.
[12]
Respondents referred to several inconsistencies in the administration
of the estates of the two Companies and the involvement
of Mr
Senekal,
inter alia
to the settlement agreement reached during
April 2018 and contend that Mr Senekal coerced them into agreeing to
a withdrawal of
certain applications and to tender the costs to
enable Mr Senekal to tax these “fraudulent” Bills of
Costs (on behalf
of the Applicant in this matter) and to sell their
shares to settle the Bills of Cost. They contend that his actions is
in direct
contravention of the settlement reached and as contained in
the letter of 10 April 2018. They argue that they would never
have agreed to the terms of the settlement agreement if their shares
were to be sold in execution, approximately two (2) months
later.
[13]
The Respondents furthermore refer to the Master’s questionnaire
regarding the appointment of Mr Senekal to act on behalf
of the
provisional liquidators of the two Companies (in liquidation) as well
as Mr Senekal’s alleged indication to the Commissioner
at the
insolvency inquiry that he indeed had a mandate to act on behalf of
the final liquidators. The Respondents therefore
argue that
without a mandate from the liquidators, Mr Senekal is not entitled to
any fees in respect of the insolvent estates of
the two Companies (in
liquidation).
[14]
The Respondents argued that due to the collusion between the
Applicant and her attorney, Mr Senekal, as well as the liquidators,
the Respondents are prevented from receiving the amounts due and
owing to them and that it is the Applicant and Mr Senekal who
are
preventing the finalization of the liquidation process. The query
sheet issued by the Asisstant Master with regard to the first
liquidation and distribution account, addressed to the liquidators,
is of serious concern to the Respondents. On 11 December
2018
the Master of the High Court notified the liquidators that they are
removed from office with immediate effect due to their
conduct in the
handling of the administration of the estates of the two Companies
(in liquidation). The Respondents therefore argue
that the “true
situation regarding the liquidator’s collusion with Mr Senekal
has now been revealed and will subsequently
come to an end”.
According to the Respondents the liquidators were doing their utmost
to prevent the Respondents from receiving
their dividends from the
estates of the two companies (in liquidation). The Respondents argue
that the Applicant, in collusion
with Mr Senekal, attempted to
litigate the Respondents into insolvency and that the claim for
security for costs is a further attempt
to deprive them from
obtaining justice.
RELEVANT
LEGAL PRINCIPLES
:
[15]
In
Corderoy
v Union Government (Minister of Finance)
[1]
the Appellate Division held that our Courts has inherent power to
regulate its procedures. A litigant is entitled to protection
against “
long-continued
unsuccessful onslaughts in respect of the same dispute
”
[2]
Innes CJ however warned as follows: “
This
is a power which should be very cautiously exercised, because it
affects the elemental right of free access to the Courts,
which we
should be slow to interfere with except in exceptional and necessary
instances.
”
[3]
The test adopted in the
Corderoy
-matter
was that it must be shown that such a person “
habitually
and persistently instituted vexatious legal proceedings without
reasonable grounds
”.
[4]
In
African Farms and Townships Ltd v Cape Town Municipality
[5]
Holmes, JA held that: “
An
action is vexatious and an abuse of the process of Court inter alia
if it is obviously unsustainable. This must appear
as a
certainty, and not merely on a preponderance of probability.
”
[16]
At common law our Courts enjoy an inherent power to strike out claims
that are vexatious, by which is meant “
frivolous,
improper, instituted without sufficient ground, to serve solely as an
annoyance to the defendant
”.
[6]
As a complement to the common law, the Vexatious Proceedings Act 3 of
1956 (“the Act”) provides the Court with
a mechanism for
preventing the institution of vexatious legal proceedings. The
present application has been brought in terms
of Section 2 of the Act
which provides as follows:
“
If, on an
application made by any person against whom legal proceedings have
been instituted by any other person, or who has reason
to believe
that the institution of legal proceedings against him is contemplated
by any other person, the Court is satisfied that
the said person has
persistently and without any reasonable ground instituted legal
proceedings in any Court or in any inferior
Court, whether against
the same person or against different persons, the Court may, after
hearing that other person or giving him
an opportunity of being
heard, order that no legal proceedings shall be instituted by him
against any person in any Court or any
inferior Court without the
leave of that Court, or any Judge thereof, or that inferior Court, as
the case may be, and such leave
shall not be granted unless the Court
or judge or the inferior Court, as the case may be, is satisfied that
the proceedings are
not an abuse of process of the Court and that
there is prima facie ground for the proceedings.
”
[17]
The purpose of the Act, as well as its constitutionality, were
discussed by the Constitutional Court in
Beinash
and Another v Ernest & Young and Others
[7]
.
With regard to the purpose of the Act, the Court held as follows:
(This purpose) “…
is
to put a stop to persistent and ungrounded institution of legal
proceedings. The Act does so by allowing a court to screen
(as
opposed to absolutely bar) a person (who) has persistently and
without any reasonable ground instituted legal proceedings in
any
court or inferior court. This screening mechanism is necessary
to protect at least two important interests. These
are the
interests of the victims of the vexatious litigant who have
repeatedly been subjected to the costs, harassment and embarrassment
of unmeritorious litigation; and the public interest that the
functioning of the courts and the administration of justice proceed
unimpeded by the clog of groundless proceedings.
”
[18]
The Constitutional Court in
Beinash
found
Section 2(1)(b) of the Act to pass constitutional muster.
The only manner by which the institution of future vexatious
proceedings can be prevented, is to rely on the provisions of the
Act, while the only manner to stay, strike out or otherwise deal
with
vexatious proceedings which have already been instituted and which
constitute an abuse of process, or generally bring the
administration
of justice into disrepute, is to seek relief under the applicable
common law principles. Thus, when the court
finds that there is
an attempt to use machinery devised for the better administration of
justice for ulterior purposes, it is the
duty of the court to prevent
such abuse.
[8]
[19]
Griesel J, with reference to the
Beinash
-matter
held that at common law the courts enjoyed an inherent power to
strike out claims that were vexatious, holding that it meant
claims
that were “
frivolous,
improper, instituted without sufficient ground, to serve solely, as
an annoyance to the defendant
.”
[9]
The Applicant referred to the case of
Christensen
and Keiter N.O. v Richter and Naidoo
[10]
where the First Respondent was impecunious and despite multiple cost
orders granted against him, continued to litigate against
the
Applicants, accusing the Applicants and their attorneys of
negligence, fraud, maladministration and misleading the Court.
The Court held that many applications launched by the First
Respondent constituted an abuse of the Court process and that he was
a vexatious litigant, meriting the grant of a final interdict against
him.
[20]
Section 2(1)(b) of the Act only provides for an order that no legal
proceedings
shall
be instituted by a person, therefore the finding by Rabie J in
Absa
Bank v Dlamini
[11]
that the Act only deals with prospective litigation and not existing
litigation, was correct. This clearly deals only with
an
interdict against instituting litigation, not one against continuing
it. For existing litigation, a party must make out
a case under
the common law. Section 2(1)(b) has two requirements before an
order may be granted. The first requirement
is that legal
proceedings have in the past been, or there is reason to believe will
in the future be, instituted against the Applicant.
The second
requirement is that the Court must be satisfied on two counts.
First, that the person in question has persistently
instituted legal
proceedings in a Court. Secondly, that he/she has done so
without any reasonable ground.
THE
PARTIES’ CONTENTIONS
:
[21]
The Applicant contends that over a period of approximately eleven
(11) years the Respondents have instituted and prosecuted
a torrent
of litigation against her of which twenty seven (27) matters served
before the Courts and the Applicant and her late
mother was
successful in twenty six (26) of these matters. Not
surprisingly, it was contended on her behalf that she has
suffered
significant financial losses as a result of the Respondents past
conduct. The Applicant contends that the Respondents
had failed
to achieve any significant successes whatsoever. On behalf of the
Applicant it was argued that the Respondents are oblivious
to
punitive cost orders and have so little regard for the findings of
any Court and such cost orders, that fresh litigation is
almost
immediately instituted once the litigation option in a particular
matter has been exhausted, with the utmost disregard for
existing
cost orders. Furthermore, the three Respondents have no assets
to pay for the enormous debts created by existing
cost orders and the
Sheriff has issued
nulla bona
returns in respect of all three
of them.
[22]
The Applicant contends that the allegations underpinning vexatious
litigation by the Respondents are common cause in that many
of the
most pertinent allegations are not disputed by the Respondents.
These are
inter alia
the following allegations:
22.1 The Respondents
threatened and boasted that they would litigate the Applicant and
their late mother into submission and would
then take all that their
late father and mother had built up over the years whenever they were
opposed and did not get their way.
In reply to these
allegations the Respondents stated that they do not intend to answer
all the allegations made by the Applicant
since it is irrelevant,
vexatious, argumentative and without any factual basis. They
furthermore contend that the application
is a further attempt to
prevent them from protecting their rights to share in the proceeds of
the estates of the Companies (in
liquidation).
22.2 According to the
Applicant the Respondents argue that they are the only ones entitled
to any benefit from the proceeds of the
Companies (in liquidation)
and that the Applicant and the rest of the family were at their
mercy. In their answering affidavit
the Respondents stated that
they are protecting their rights to share in the proceeds of the
estates and I could not find any allegation
made by the Respondents
that, apart from the three Respondents, no one else is to benefit
from the Companies (in liquidation).
22.3 According to the
Applicant there is a history of frivolous and vexatious litigation
instituted by the Respondents. The
Respondents, however
referred to the settlement reached between the parties in an attempt
to settle the whole dispute and agreed
to withdraw their application
and to tender the costs thereof, in an attempt to reach a
settlement. According to the Respondents,
Mr Senekal caused the
settlement agreement’s failure. On behalf of the
Respondents it is contended that the application
for security for
costs is vexatious and a clear attempt to prevent the Respondents
from enforcing their rights as shareholders.
22.4 The Applicant states
that she and her late mother were forced to take legal action in
order to protect their own interests
and also the interests of the
deceased estate and the companies (in liquidation). The
Respondents alleged that the Applicant
and their late mother utilised
funds from the estates of their late father and later on their late
mother to fund the legal costs
of the Applicant.
22.5 On behalf of the
Applicant it was argued that the relentless litigation which
commenced eleven (11) years ago will never come
to an end unless the
Court intervenes. Due to the Respondents’ disregard for
anything except their own entitlement,
to which they have no right,
the Applicant is obliged to litigate without end. The
Respondents on the other hand alleged
that they have no intention to
frustrate the liquidation process. They deny that they are the
sole reason why the liquidation
and distribution account has not been
finalized. The Respondents argue that a myriad of serious issues were
eventually picked-up
by the Master, as is evident from the Master’s
query sheet.
22.6 The Applicant refers
to the judgment of Hancke J as well as the judgment in dismissing the
application for leave to appeal
by Rampai J who found that enormous
administration costs had been incurred over the years as a result of
the Respondents’
attitude coupled with their endless
litigation. It was stated that the winding-up of the companies
would have been uncomplicated,
efficient and cost-effective but for
the endless litigation. Subsequent to the judgment of Rampai J
and on 11 December 2018
the Master of the High Court notified the
liquidators that they are removed from office with immediate effect
due to their conduct
in the handling of the administration of the
estate of the Companies (in liquidation). The Respondents
therefore argue that
the “true situation has now come to light
and the liquidators’ collusion with Mr Senekal will come to an
end”.
[23]
The Respondents’ contentions are that, due to the continuous
involvement of Mr Senekal and his influence on the liquidators,
the
finalization of the estates of Companies9in liquidation) is delayed.
They argue that the appointment of new liquidators will
eventually
lead to the speedy finalization of the estates of Companies (in
liquidation). The Respondents alleged the fraudulent
conduct by
Mr Senekal in double charging for work done in both cases with
numbers 4606/2016 and 1660/2017 and furthermore refer
to Mr Senekal’s
claim for payment of an amount of R21 million and the specific
provision made by the liquidators for Mr Senekal’s
fees in the
amount of R9 million. The Respondents further argue that the
Master, Mr Jannie du Plessis confirmed in a directive
dated 20 April
2017 that the legal fees of Mr Senekal cannot be recovered from the
estates of the Companies (in liquidation) due
to the prohibition in
Section 384(3) of the Companies Act 61 of 1973.
[24]
The Respondents furthermore referred to the judgment by Daffue J
delivered on 22 June 2017 in the
Trichardt-
application under
case number 4606/2016 where he held that the hatred and lack of
respect between Mr Senekal and the Second Respondent
is obvious from
the contents of the papers. The toxic relationship between the
Respondents and Mr Senekal continues to fester and
the continued
involvement of Mr Senekal has been questioned by the court on
previous occasions. Furthermore, Daffue J held that
Mr Senekal
orchestrated the application for a sequestration of Second
Respondent.
[25]
The Respondents, more particularly the First and Second Respondent
have not only pursued a legal battle against the Applicant,
but
certainly also against the liquidators regarding the administration
of the estates of the two Companies (in liquidation).
The
involvement of Mr Noordman (a provisional liquidator) coupled with
the involvement of Mr Senekal (both originally from Matsepes
Attorneys) has been the basis of several accusations regarding the
administration of the estates. The Applicant contends that the
issues
contained in the query sheet prepared by the Assistant Master was
placed in perspective by the contents of her replying
affidavit.
It was argued that due to the numerous complaints lodged against Mr
Strauss, he was removed from handling the
file of the two companies
(in liquidation). However, due to my involvement in the other
applications, all argued on the 2
nd
and 3
rd
May
2019, this Court is aware of the contents of Mr Strauss’ letter
regarding his complaints of the problems experienced
at the Master’s
Office. Mr Strauss also complained that he was harassed by Mr
Senekal and that complaints were lodged
against him due to certain
comments made about Mr S M Rampoporo (the Second Respondent in the
main application). Mr Strauss
in fact volunteered his removal
from the “files” pertaining to the Companies (in
liquidation) in an attempt to avoid
constant pressure and
harassment. I am therefore not convinced by the insinuation
presented by the Applicant that the file
was removed from Mr Strauss
due to his alleged incompetence or the allegation that he has been
influenced by the Respondents.
[26]
The Applicant argues that proof of Mr Loftus Viljoen’s claim,
which allegedly caused a delay, was found to have been
a nullity
which could have been ignored. The Applicant however fails to
refer to the finding by Rampai J in case number 956/2014
and 957/2014
that “
a few unsavoury things emerged from the conduct of
those involved (provisional liquidators & Master’s
office). Evidence
of objectionable and disturbing irregular
conduct in which the liquidators gave unfair preference to a creditor
of questionable
character and integrity
” was unveiled.
It therefore appears as if the Respondents have merit in their
allegations regarding the administration
of the estate by the
provisional liquidators and the conduct of the Master concerning the
meeting of 16 April 2013. I refer
in this respect to the
judgment under A230/2014 by Van der Merwe J, Mocumie J and Lekale J
(presiding) that the purpose of the
first meeting of creditors did
not include proof of claims by creditors and therefore Mr Viljoen had
no right to prove his claim.
The Master had no power or
jurisdiction to admit proof of such a claim. Rampai J held that
the Master and liquidators had
administered the estate in a
disturbingly irregular fashion or at least made incompetent
decisions.
[27]
It is clear the Respondents had been lodging complaints and
instituted numerous applications since the death of their father
regarding the administration of their late father’s estate and
later regarding the administration of the estates of the two
Companies (in liquidation). Therefore the first requirement
that legal proceedings in the past have been instituted, or that
there is reason to believe that future proceedings regarding the
administration of the estates of the two companies will be instituted
in future, has been met. The second requirement that legal
proceedings had been instituted on a persistent basis without
any
reasonable ground is the issue that this Court has to decide upon.
If it is found that the Respondents instituted legal
proceedings
without any reasonable grounds, then the Applicant should succeed
with the application.
[28]
The question however remains whether the proceedings instituted by
the Respondents in the past were without any reasonable
ground.
As already indicated the allegations by the Respondents regarding the
irregularities that occurred during the creditors’
meeting held
on 16 April 2013 prove to have merit. Several of the
Respondents’ complaints regarding the relationship
between Mr
Senekal and Mr Viljoen, the accounts submitted by Mr Senekal and
payment already received from the liquidators as well
as payments
made to counsel are not yet decided. The appointment of Mr
Senekal who acted on behalf of the liquidators for
a considerable
period of time as well as the relationship between Mr Senekal and the
final liquidators are aspects not yet pronounced
upon. These
aspects were raised in the query sheet issued by the Assistant
Master, who has in the meantime been relieved
of the files of these
estates. Therefore several aspects of concern to the Respondents, has
not been adjudicated upon and therefore
it cannot be argued that
their complaints can, without exception, be regarded as frivolous,
improper and without sufficient ground.
The Applicant’s
application for an order to provide security for costs is
unreasonable under the prevailing circumstances.
[29]
Many of the applications launched by the Respondents in the past,
were found to be an abuse of the court process and furthermore
several cost orders have been made against the Respondents which
remain unpaid. However, the Respondents, with continued
persistence was able to convince the court on previous occasions that
certain irregularities in the administration of the estates
of the
two Companies (in liquidation) did occur. I am therefore not
persuaded that all the claims and/or allegations made
by the
Respondents pertaining to the maladministration of the estates of the
Companies (in liquidation) are frivolous or improper.
I am
furthermore not persuaded that all the legal applications are
instituted without sufficient ground and merely to serve as
an
annoyance to the Applicant. It is obvious that the relationship
festering between the Respondents and Mr Senekal remains
a serious
bone of contention and causes friction which obviously contributes to
delaying the finalization of the administration
of the estates.
Having regard to the history of the litigation between all parties
concerned, it is evident that the liquidation
ensued with the
prospect of receiving dividends in the two companies (in liquidation)
and will hopefully end as soon as the process
of liquidation is
finalized.
[30]
Clearly not all the applications instituted by the Respondents have
been doomed to failure and certain issues still has to
be adjudicated
upon in future and therefore all the avenues to resolve pending
matters have not been exhausted as yet.
Whilst an action or application which is obviously unsustainable is
vexatious, this must appear as a certainty and not merely on
a
preponderance of probability.
[12]
[31]
In the result I make the following order:
1. The application is
dismissed with costs.
_______________________
I
VAN RHYN, AJ
On
behalf of the Applicant: ADV. D A PREIS SC
Instructed
by: F J SENEKAL INC
On
behalf of the Respondents: ADV. F. J. VAN RENSBURG
Instructed
by:
WILLERS ATTORNEYS
[1]
1918 AD 518.
[2]
At 518.
[3]
At 519.
[4]
At 519.
[5]
1963 (2) SA 555
(A) at 565 D – E.
Fisheries Development
Corporation of SA Ltd v Jorgensen & Another; Fisheries
Development Corporation of SA Ltd v A W J Investments
(Pty) Ltd &
Others
1979 (3) SA 1331
(W) at 1339 E – F; Bisset and Others v
Boland Bank Ltd and Others
1991 (4) SA 603
(D) 608 B - E
[7]
1999
(2) SA 116
at paras [15] – [21]
[8]
Hudson
v Hudson
1927 AD 259
at 268.
[9]
Cohen v Cohen and Another
2003 (1) SA 103
(C) ([2002]
4 All SA 21)
;
Western Assurance Co v Caldwell’s Trustees
1918 AD 262
at 271;
African Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA
555
(A) at 5650.
[10]
Unreported
Judgment by Teffo J – case number 73868/2016, Gauteng
Division, Pretoria High Court of South Africa, dated 6
October 2017.
[11]
2008 (2) SA 262 (T).
[12]
Ravden v Beeten
1935 CPD 269
at 276; Burnham v Fakheer
1938 NPD 63
;
African Farms case supra at 565D E.