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[2019] ZAFSHC 182
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Urquhart and Others v Master of the High Court and Others (5733/2018) [2019] ZAFSHC 182 (30 September 2019)
IN THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case no: 5733/2018
In the
matter between:
DEREK
MACDONALD URQUHART
First Applicant
PHILIP
KOTZE
Second Applicant
BRIAN
JOHN
DOWDEN
Third Applicant
WONDERHOEK
FARMS (Pty) Ltd
Fourth Applicant
and
THE
MASTER OF THE HIGH COURT
First Respondent
DONOVAN
MAJIEDT
[1]
Second Respondent
KAREN
FONTEIN
[2]
Third Respondent
FIRST
RAND BANK
LIMITED
[3]
Fourth Respondent
Coram:
OPPERMAN, J
et
MOENG,
AJ
Heard
:
5 August 2019
Delivered
:
30 September 2019
Judgment:
OPPERMAN, J
ORDER
1.
The
decision of the first respondent to issue summonses in terms of
section 152(2)
of the
Insolvency Act 24
of 1936
in respect of the first, second
and third applicants is set aside.
2.
The
fourth respondent is ordered to pay the costs of this application and
the application dated 4 December 2018. Costs to include
costs
occasioned by the employment of two counsel.
JUDGMENT
I
Introduction
[1]
On
4 December 2018 an order on urgent application was granted by this
court that pending the finalisation of a review in terms of
Rule
53
[4]
of the Uniform Rules read with section 151
[5]
of the
Insolvency Act 24 of 1936
(the
Insolvency Act) the
first respondent is interdicted from
continuing with the interrogation of the first, second and third
applicants scheduled for
6 and 7 December 2018 and from issuing any
further summonses in respect of the first, second and third
respondents. Costs were
reserved for later adjudication and after the
hearing of the review.
[2]
The
primary grounds for the review that now lies before the court are
that the Master failed to properly apply his mind to
the relevant
facts and circumstances when making his decision, the issuing of
summonses against the first, second and third applicants
is aimed
solely at obtaining a forensic advantage for the fourth respondent
(FirstRand) in a pending trial between, among others,
the fourth
applicant (Wonderhoek) and Vaughn Victor Ontwikkelings Trust 1
(VVOT1) and Vaughn Victor Ontwikkelings Trust 2 (VVOT2).
The intended
interrogation by FirstRand of the first to third applicants
constitutes abuse.
[3]
The
matter stands unopposed by the Master, Majiedt and Fortein.
[4]
Firstrand
contends that no case has been made out to review the decision of the
Master.
[5]
Two
issues stand to be adjudicated namely; did the Master, as is required
in law, apply his mind to the issuing of the summonses
and is there
abuse of the
section 152
-process by the fourth respondent?
II The
Law
[6]
Section 152(2)
of the
Insolvency Act
decrees
that:
If at any time after the
sequestration of the estate of a debtor and before his
rehabilitation,
the
Master is of the opinion
that the insolvent or the trustee of that estate or any other
person
is able to give any information which the Master considers desirable
to obtain, concerning the insolvent, or concerning his
estate or the
administration of the estate or concerning any claim or demand made
against the estate,
he may by notice in writing delivered to the insolvent or the trustee
or such other person summon him to appear before the Master
or before
a magistrate or an officer in the public service mentioned in such
notice, at the place and on the date and hour stated
in such notice,
and to furnish the Master or other officer before whom he is summoned
to appear with all the information within
his knowledge concerning
the insolvent or concerning the insolvent’s estate or the
administration of the estate. (Accentuation
added)
[7]
Bertelsman
et al
[6]
defended the object of interrogations in terms of the
Insolvency Act
in
that it
provides
essential mechanisms for the investigation of the affairs of the
insolvent estate
.
In
Podlas v
Cohen and Bryden NNO and others
1994
(4) SA 662
(T)
the court held
that an insolvent or other witness who is subpoenaed to attend an
enquiry is not entitled to be heard on the question
whether or not
the subpoena should have been issued as this limited restriction of
personal liberty is justifiable and proportional
if weighed up
against the public interest and the creditor’s rights to
establish the whereabouts of any assets and to investigate
the
insolvent’s transactions. The insolvent and other witnesses are
not entitled to access the information upon which the
Master decided
to hold an enquiry in terms of
section 152
provided
that the Master duly and properly considers any motivation for the
issuing of any subpoena placed before him by the trustee
or other
interested party before invading the witnesses’ privacy by
summonsing him or her
.
[8]
The
Supreme Court of Appeals ruled in
Mantis Investment
Holdings (Pty) Ltd v Eastern Cape Development Corporation and others
2018 (4) SA 439
(SCA) that:
[6] The very
essence of our Bill of Rights is that an individual should not be
subjected to unreasonable intrusions
on their liberty or the privacy
of their person, property or effects. The Master has no reservoir of
power outside the statutory
instruments that authorise an intrusion
upon those rights, and thus no general authority to make an order
that impinges on those
rights. A subpoena, even one at the hands of
the Master, is a significant invasion of the rights of an individual
and must therefore
be exercised within certain clearly defined
limits.
[7] The request
from the appellant's attorney to the co-liquidator for the employees
of the first respondent
and for all documents relating to the grant
of the loan facility to be subpoenaed was forwarded by the latter to
the Master. The
request itself was unmotivated. Although no statutory
provision was alluded to in support of the request, one would have
been forgiven
for thinking that it is to the provisions of the
Insolvency Act that
one had to look. Nor was there any articulation
in the request as to the source of the envisaged power to be
exercised by the co-liquidator
or the Master.
In simply forwarding
the request to the Master, the co-liquidator did not bring an
independent mind to bear on the application.
Rather, he appears to
have contented himself in acting as no more than a mere conduit.
(Accentuation added)
[8] ‘… as Berman J
pointed out in
Foot v The Master
:
'…
It is an obligation, the performance of which is demanded under
threat of imprisonment if not carried out, it is an invasion
of an
individual's privacy which is countenanced only under specific
conditions and specific circumstances.
…
the purposes of interrogation must of necessity
invoke this authority and exercise this power circumspectly, after
due and proper
consideration as to the need for such interrogation,
the aim, ambit and purpose thereof and to ensure that the
person concerned
is not called for the examination on matters
extraneous to the enquiry.
That person, in this case the Master, in considering
whether to require the attendance of a particular person at an
enquiry in terms
of s 415 of the Act, must apply his mind to what may
lawfully and relevantly be required of a proposed ''interrogee'' by
way of
oral evidence and delivery of books and records and other
documentation.
He (the Master) is not the tool or agent of the
liquidator, obliged to carry out the latter's instructions; the
Master may take
advice and may consult the liquidator, but calling
for the attendance of a person at an enquiry under s 415 of the Act,
he is his
own man, performing a duty and exercising a right imposed
and granted him by statute and he is required to bring an independent
mind on the need for an enquiry and for an interrogation to be
conducted thereat and as to the manner in which this is to
be carried
out.
’
(Accentuation added)
[9]
Roering
NO and another v Mahlangu and others
2016
(5) SA 455
(SCA) at [34], [36], [37] to [40] dictates the law on the
abuse of interrogations in terms of the Law of Insolvency. The
purpose
of inquiries and summonsing of witnesses is: “…
to enable the liquidator to reconstitute the state of knowledge of
the company in order to make informed decisions. The purpose is not
to place the company in a stronger position in civil litigation
than
it would have enjoyed in the absence of liquidation.”
[10]
There
is no doubt that courts have the power, and indeed the obligation, to
restrain the use of the power of enquiry where it would
constitute an
abuse. The more difficult issue lies in determining what constitutes
an abuse.
[11]
What
constitutes an improper forensic advantage will depend upon the
circumstances of each case. Summoning a witness in order to
benefit a
third party, such as a creditor, in pursuing proceedings against that
witness or an entity that they represent, would
be such a case. An
example is an attempt to summon a witness with a view to destroying
their credibility as a witness or to 'enable
a dress rehearsal of the
cross-examination'. Another example is of a summons directed at
obtaining pre-trial discovery when a discovery
order had been refused
in proceedings already afoot. The court has also refused to consent
to an enquiry where its sole purpose
was to extract 'damaging
admissions and unconvincing justifications' for the purpose of a
possible negligence claim against auditors.
Engineering an enquiry
shortly before a trial in which the liquidator is the plaintiff in
order to obtain ammunition to attack
the defendant in the trial has
been described as 'a classic example of harassment'.
[12]
Where
the evidential material is available to the liquidators from an
alternative source, or it can be obtained simply and expeditiously
without resort to the process of an enquiry, that will show that the
liquidators have an ulterior motive in seeking to examine
the witness
and that the commissioner should not have acceded to the request to
summon that witness.
[13]
The
fundamental issue in determining whether there is abuse is whether
the enquiry is being used for a purpose not contemplated
by the Act.
Whether there will be, in a particular case, a use
of the process or an abuse of it will depend upon purpose rather than
result.
The consequence of an examination may well be that the
examiner has conducted a "dress rehearsal" of
cross-examination
which may take place at a subsequent trial.
The fact that the trial has commenced, or is
contemplated, may throw light upon the purpose.
[14]
Judicial
review
[7]
(a) Endicott Administrative Law paragraph 9.1.6
All public authorities ought to make the best possible
decisions (and Parliament can be presumed to intend that they should
do so).
But that does not mean that the judges have jurisdiction to
hold that a decision was
ultra vires
on the ground that it was
not the best decision that could have been made.
(b) Wade and Forsyth Administrative Law (10 ed) at 28-29
The system of judicial review is radically different
from the system of appeals. When hearing an appeal, the court is
concerned
with the merits of a decision: is it correct? When
subjecting some administrative act or order to judicial review, the
court is
concerned with its legality: is it within the limits of the
powers granted? On an appeal the question is “right or wrong”?
On review, the question is “lawful or unlawful”? Judicial
review is thus a fundamental mechanism for keeping public
authorities
within due bounds and for upholding the rule of law. Instead of
substituting its own decision for that of some other
body, as happens
when on appeal, the court on review is concerned only with the
question whether the act or order under attack
should be allowed to
stand or not.
(c) Laws J in R v Somerset County Council, ex parte
Fewings & others
[1995] 1 All ER 513
(QB) at 515d-g
The only question for the judge is whether the decision
taken by the body under review was one which it was legally permitted
to
take in the way that it did.
[15]
Counsel
for the fourth respondent argued that the court’s power to
intervene and set aside a decision by the Master in a review
in terms
of
section 151
of the
Insolvency Act will
only be exercised where the
decision of the Master is “clearly wrong.”
[8]
III The
Master’s decision and the record
[16] The
Constitutional Court i
n
Helen Suzman
Foundation v Judicial Service Commission
[2018] ZACC 8
on 24
April 2018
stated that
: “Undeniably,
a
rule 53
record is an invaluable tool in the review process.”
[17] The record that caused
a decision, such as in the instance, is vital. Without the
record a
court cannot perform its constitutionally entrenched review function,
with the result that a litigant’s right in
terms of section 34
of the Constitution to have a justiciable dispute decided in a fair
public hearing before a court with all
the issues being ventilated,
would be infringed.
[18]
Decision-makers
exercising an executive power and who find their decisions subject to
review are now compelled to produce the records
of their decisions.
It is therefore crucial for public sector entities to ensure that,
even where their decisions do not amount
to administrative action,
they keep a proper record of the decision and their reasons therefor
in order to produce it under Rule
53 should that decision ever be
challenged.
[19]
The
Master did not supply reasons to this court for the decision to
summons the applicants as he was called upon in terms of Rule
53.
[20]
A,
what must be regarded as the complete record of the proceedings on
which the Master based his decision, was supplied by the Master
on 23
January 2019. It is a bunch of letters and emails.
[21]
It
is clear that the detail of the evidence of Victor (that will be
explained later) that was adduced at the enquiry and caused
the
subpoenas against the applicants
in
casu,
did not form part of the
information that informed his decision to summons the applicants.
[22]
The
record consists of:
1.
A
letter from the attorneys representing the fourth respondent,
FirstRand, dated 6 April 2018 in which Majiedt and Fortein are
requested to convene an insolvency enquiry into the affairs of VVOT1
and VVOT2. Important from this letter is the reason for the
requested
enquiry:
FirstRand Bank Limited hereby requests the joint
trustees to convene an insolvency enquiry
to investigate all
circumstances resulting in the registration of transfer of the
FirstRand Bank bonded properties in the name of
Vaughn Victor 1
Ontwikkeling Trust and Vaughn Victor 2 Ontwikkeling Trust.
FirstRand Bank Limited will fund the propose enquiry.
We propose that an enquiry be scheduled for two days.
2.
A
letter dated 10 April 2018 addressed to the Master by Majiedt and
Fortein, being the joint trustees, in which they seek permission
to
hold an enquiry in terms of
section 152
of the
Insolvency Act. The
reason for the enquiry is depicted as follows:
“…
we are of the view
that the holding of the enquiry is the only possible way for the
Co-trustees to gain sufficient information in
order to make a
decision as to the ongoing litigation in these two insolvent
estates.”
3.
An
email dated 16 April 2018 addressed to Majiedt and Fortein by the
Master in which the Master grants permission to: “interrogate
Mr Victor at an investigation to be conducted at the magistrate
Wepener to
enable you to make an
informed decision as to the ongoing litigation on the conditions
tendered in your application.
”
4.
The
rest of the “record” consists of a string of e-mails
between Majiedt and the Master concerning the change of venue
for the
enquiry from Wepener to Bloemfontein and that is irrelevant to the
Master’s decision and the review.
IV The
facts
[23]
It
is imperative to pause and emphasize, as part of the facts, the
discrepancy of the justification for the enquiry. FirstRand requested
the enquiry to investigate all circumstances resulting in the
registration of transfer of the FirstRand Bank bonded properties.
Majiedt and Fortein wanted the enquiry to obtain information on the
pending litigation. This poses a real discrepancy and is an
irregularity that caused the whole process to derail into a sloppy
and unconstitutional process.
[24]
The
undisputed facts and process that existed during the period that the
Master exercised his discretion to order the enquiry and
the
subpoenas for the applicants are the following:
1.
Victor
was previously a director of both Wonderhoek and Rohallion and was in
control of its day to day affairs.
2.
During
the tenure of his directorship of Wonderhoek he caused twelve farms
owned by Wonderhoek to be transferred to VVOT1 and VVOT2.
Victor was
a trustee and beneficiary of both.
3.
The
transfer was allegedly done without the knowledge and consent of
co-directors at the time; Hugh Cathcart and the third applicant
Dowden and apparently without any authority. The property was
therefore, allegedly, illegally transferred to the trusts.
4.
After
the first applicant, Urquhart and the second applicant, Kotze were
appointed as directors of Wonderhoek during May 2014, Victor
resigned
on 11 June 2014.
5.
The
epic battle in the court commenced in November 2014 under case number
5049/2014 between Wonderhoek and Victor. Wonderhoek seeks
orders
declaring that it is the owner of the twelve farms, restoring its
title thereto as well as an order declaring Victor to
be a delinquent
director as contemplated in section 167 of the Companies Act.
6.
It
came to light that VVOT2, represented by Victor, has on-sold two of
the farms. The trusts had also mortgaged the farms to FirstRand.
As
result it became necessary to, amongst others, join FirstRand to case
number 5049/2014; the Wonderhoek-case.
7.
VVOT1
is indebted to FirstRand in an amount of more than R8 million.
FirstRand registered a first and a second covering mortgage
bond over
the farms in Molteno on 20 October 2010 as security for this
indebtedness.
8.
There
is also further litigation which involves Wonderhoek against
Rohallion Farms (Pty) Ltd under case number 5425/2014 in this
court
of amounts totalling in excess of R100 million and also involving
Victor.
9.
After
pleadings closed in the Wonderhoek action the parties made extensive
discovery of all documents relevant to the case. Wonderhoek
made
discovery of many thousands of documents relevant to the
circumstances of the transfer of the twelve farms to Firstrand, VVOT1
and VVOT2.
10.
The
Wonderhoek trial was set for trial and to run for three weeks on 4
September 2017. On 20 August 2017 Victor’s then attorneys
of
record withdrew and on 23 August 2017 new attorneys were appointed.
On 29 August 2017, four days before the trial was due to
start, the
Victor-team delivered an application for postponement.
11.
Wonderhoek
agreed to the postponement because of the prejudice claimed by
FirstRand should the trial continue in Victor’s
absence.
12.
During
January 2018 FirstRand launched an application for the sequestration
of VVOT1. A final sequestration was granted on 8 March
2018.
FirstRand launched a further sequestration application against VVOT2
and the final order for sequestration was granted on
5 April 2018.
13.
The
second respondent, Majiedt and third respondent, Fortein were
appointed as provisional trustees of the insolvent estates. Majiedt’s
appointment was on the nomination of FirstRand. There was much
animosity between Majiedt and Fortein after allegations that Majiedt
acted to the exclusion of Fortein. Wonderhoek noted their concerns to
the Master that Majiedt might not be seen to be objective
in his
dealings. The Master took cognisance of this fact but dismissed it.
14.
On
12 March 2018 Wonderhoek tendered all documents relating to the
Wonderhoek action to the Master. The Master again took cognisance
of
this but did not take the opportunity to familiarise himself with the
evidence. The reason is unknown.
15.
The animosity between Majiedt and Fortein
continued but after a meeting of the creditors on 5 April 2018 they
were appointed as
co-trustees.
16.
On
6 April 2018 Firstrand addressed its request for the enquiry to the
Master
via
Majiedt as set out above. The 152-enquiry commenced in Wepener before
the local magistrate and Victor testified. Counsel that conducted
the
interrogation of Victor also represents FirstRand in the Wonderhoek
action.
17.
Meanwhile,
Wonderhoek and Rohallion launched proceedings to sequestrate Victor
personally based on unpaid costs that they obtained
against him.
Victor opposed those proceedings but ultimately withdrew his
opposition after the application was referred for hearing.
He was
provisionally sequestrated on 18 September 2018 and finally so on 1
November 2018.
18.
On
30 July 2018, after earlier exchange of correspondence between Du
Plessis and the other parties in the Wonderhoek trial, Du Plessis,
attorney for Wonderhoek, addressed a letter to the Judge President of
this Court seeking the allocation of trial dates during the
second
term of 2019.
19.
On
31 July 2018 Majiedt informed Du Plessis
via
e-mail that they have consulted with the advocate about the enquiry
and that they require his assistance to serve subpoenas on
the
applicants: “…to give the appointed Trustees a better
understanding of the current litigation which will assist
in the
finalization thereof.”
20.
I
pause here to point out that it is the case for the fourth respondent
that in the enquiry they do not seek a forensic advantage
but
depending on the evidence given by the applicants the trial may not
be opposed or continue on an opposed motion basis.
21.
Du
Plessis proceeded to submit an extensive expose of the evidence that
the applicant will render in the trial. This forms part
of the
evidence before court
in casu.
It
is indeed comprehensive and supplies a more than clear “understanding
of the current litigation” as requested by
Majiedt and Fortein.
22.
Further,
Du Plessis indicated that they will provide them with all the
information set out above in a
bona fide
attempt to place the trustees in a
position to obtain understanding of all the issues in the litigation.
However, the 152-enquiry
and cross examination may not be abused to
assess FirstRand’s chances of success in the Wonderhoek trial.
23.
Neither
the Master nor Majiedt and Fortein replied to the above. The next
move was from FirstRand in a letter dated 30 July 2018
wherein they
informed du Plessis that:
6. Our client will not be ready for trial until such
time as the insolvency enquiry has been finalised.
We urge that the representatives of your client
co-operate and that further dates for the continuation of the
insolvency enquiry
be finalised as soon as possible.
24.
Du
Plessis then warned Majiedt and the fourth respondent on 1 August
2018 that their conduct amounts to abuse of the Insolvency
Law. They
did not reply; neither did the Master and he went forth and issued
the summonses.
25.
Clearly
the Master were not informed of the situation that now developed or
chose to ignore it.
26.
On
5 November 2018 Du Plessis requested the content of the applications
from Majiedt and Fortein that served before the Master and
that
directed his decisions. The Master replied that correspondence
between the Master and practitioners is deemed confidential
in terms
of the Code of Examiners.
27.
The
urgent application on 4 December 2018 followed.
V
Conclusion
[25]
Application
of the law on the facts of the case must cause a finding by this
court to be that the applicants are correct in their
submissions that
the decision of the Master was unlawful and grossly irregular.
[26]
It
is evident from the record that the application made by the second
and third respondents to the Master to convene an enquiry
in terms of
section 152(2)
of the
Insolvency Act was
extremely limited in regard
to the information put by them before the Master which would enabled
the Master to properly apply his
mind to the request.
[27]
The
Master made no enquiries as to the various parties involved in the
litigation or to the nature of any documents discovered in
the course
of the litigation thus far. Nor was any such information volunteered
to the Master by the second and third respondents.
[28]
The
Master was informed that the supposed purpose of the enquiry was to
enable second and third respondent to make a decision on
the fate of
the pending litigation. It appears that the Master made no enquiries
about what documents are already in their possession
and what
existing knowledge they have of the litigation. The Master
accordingly failed to properly apply his mind.
[29]
Glaringly
absent from the record is any subsequent request to the Master to
permit the issue of summonses in respect of Urquhart,
Kotze and
Dowden. Nothing was put before the Master that would justify him
taking a decision to permit the issue of summonses in
respect of
Urquhart, Kotze and Dowden.
[30]
The
decision taken by the Master to produce various documents mostly
already in the possession of VVOT1 and Firstrand, was accordingly
taken without the Master applying his mind at all and thus falls to
be reviewed and set aside.
[31]
The
summonses requiring Urquhart, Kotze and Dowden to appear before the
Master in order to be interrogated about the Wonderhoek
trial
accordingly constitutes an abuse. The purpose for summoning Urquhart,
Kotze and Dowden to be interrogated at the enquiry
is to obtain an
improper forensic advantage for the FirstRand in the pending trial.
[32]
In
its supplementary affidavit Firstrand contends that the Master’s
decision to issue summonses in respect of the first to
third
applicants was based on the evidence given by Victor during his
interrogation. In this regard:
1.
The
Master has delivered a record of the decision that the applicants
seek to be reviewed and set aside. The record that serves
before the
court is the entire record of the decision as provided by the Master
and excludes the evidence of Victor.
2.
Firstrand
seeks to introduce matter that does not emerge from the record. If
FirstRand wished to supplement the record that the
Master has
delivered, then it should have done so properly within the provision
of
Rule 53.
However, it has not done so, and this court must make its
decision on the strength of the record that serves before it.
3.
FirstRand
makes repeated references to the “evidence of Mr Victor’
but does not, at any stage, state what that is.
4.
Tellingly,
FirstRand states that: ‘Suffice to say that the version of Mr
Victor is different to that put forth by the first,
second and third
applicants.” This statement plainly supports the applicants’
contention, made out in the founding
affidavit, that the purpose
behind the summonses is to obtain an improper forensic advantage for
FirstRand in the pending Wonderhoek
trial.
[33]
The
abuse is situated in the following proven facts:
1.
Third
and second respondents are presently in a position to decide whether
or not to persist with the VVOT1 and VVOT2 defence in
the Wonderhoek
action.
2.
This
is particularly so where they have already obtained Victor’s
version under oath in the
section 152
-enquiry.
3.
There
is no need whatsoever for summonses to obtain documents that are
freely available to them.
4.
Wonderhoek
has already provided second and third respondents with the detail of
what its witnesses will testify to at the trial
and has also tendered
to provide, within the bounds of reasonableness, any further
assistance that they may require.
5.
The
summonses have been obtained to obtain improper forensic advantage,
primarily for FirstRand.
6.
FirstRand
has confirmed that it is financing the conduct of the enquiry and its
counsel is conducting the interrogation. There can
be no doubt the
summoning of Urquhart, Kotze and Dowden in particular has been done
in order to obtain a benefit for Firstrand,
a third party.
7.
There
can also be no doubt that the purpose behind the summoning of Dowden
is to conduct a dress rehearsal of the cross examination
of him by
Firstrand that will take place at the Wonderhoek trial. That
manifestly amounts to an abuse of the enquiry process to
obtain an
improper advantage.
8.
It
can be reasonably inferred that the purpose of summoning Urquhart and
Kotze is simply harassment as neither of them played any
role
whatsoever in the transfer to the VVOT1 and VVOT2, which occurred
more than four years before they became involved in the
Wonderhoek’s
affairs.
[32]
The Master performed a mere rubber-stamping function in this case
with severe prejudice to the administration of justice.
It follows
that the subpoenas cannot stand and must be set aside.
[34]
The
decree in section 34 of the Constitution, 1996
[9]
does not propose for the justice system to become a playground for
strategic litigatory moves that bends the law like clay into
distortions of fairness and truth. Access to justice is to be revered
and not battered for strategic litigatory moves. Selby
[10]
is correct when he stated that: “I decry such an approach when
it replaces ‘the interests of justice’ with ‘I
must
win’.”
VI
Order
1.
The
decision of the first respondent to issue summonses in terms of
section 152(2)
of the
Insolvency Act 24
of 1936
in respect of the first, second
and third applicants is set aside.
2.
The
fourth respondent is ordered to pay the costs of this application and
the application dated 4 December 2018. Costs to include
costs
occasioned by the employment of two counsel.
M. OPPERMAN, J
I
concur
L.B.J MOENG, AJ
Appearances
For
applicants:
Adv. Ross Hutton SC
Adv. C van Castricum
Sandton
Instructed
by:
MDP Attorneys
Bloemfontein
Ref: MCM DU PLESSIS/WON1/0001
For fourth
respondent: Adv. DM Leathern SC
Pretoria
Instructed
by:
Rorich Wolmerans Luderitz Inc.
C/O Peyper Attorneys
Bloemfontein
Ref: G STEENKAMP
[1]
Majiedt,
co-trustee of the insolvent estates.
[2]
Fortein,
co-trustee of the insolvent estates.
[3]
FirstRand.
[4]
Rule
53
Reviews
(1) Save
where any law otherwise provides, all proceedings to bring
under
review the decision or proceedings of any inferior court and of any
tribunal, board or officer performing judicial, quasi-judicial
or
administrative functions shall be by way of notice of motion
directed and delivered by the party seeking to review such decision
or proceedings to the magistrate, presiding officer or chairperson
of the court, tribunal or board or to the officer, as the
case may
be, and to all other parties affected —
(a)
calling upon such
persons to show cause why such decision or proceedings should not be
reviewed
and corrected or set aside, and
(b)
calling upon the
magistrate, presiding officer, chairperson or officer, as the case
may be,
to despatch, within fifteen days after receipt of the notice
of motion, to the registrar the record of such proceedings sought
to
be corrected or set aside, together with such reasons as he or she
is by law required or desires to give or make, and to notify
the
applicant that he or she has done so.
(2) The notice of motion shall set
out the decision or proceedings sought to be reviewed and shall
be
supported by affidavit setting out the grounds and the facts and
circumstances upon which applicant relies to have the decision
or
proceedings set aside or corrected.
(3) The registrar shall make
available to the applicant the record despatched to him or her as
aforesaid upon such terms as the registrar thinks appropriate to
ensure its safety, and the applicant shall thereupon cause copies
of
such portions of the record as may be necessary for the purposes of
the review to be made and shall furnish the registrar
with two
copies and each of the other parties with one copy thereof, in each
case certified by the applicant as true copies.
The costs of
transcription, if any, shall be borne by the applicant and shall be
costs in the cause.
(4) The applicant may within ten days
after the registrar has made the record available to him
or her, by
delivery of a notice and accompanying affidavit, amend, add to or
vary the terms of his or her notice of motion and
supplement the
supporting affidavit.
(5) Should the presiding
officer, chairperson or officer, as the case may be, or any
party
affected desire to oppose the granting of the order prayed in the
notice of motion, he or she shall —
(a)
within fifteen days
after receipt by him or her of the notice of motion or any amendment
thereof deliver notice to the applicant that he or she intends so to
oppose and shall in such notice appoint an address within
15
kilometres of the office of the registrar at which he or she will
accept notice and service of all process in such proceedings;
and
(b)
within thirty days
after the expiry of the time referred to in subrule (4) hereof,
deliver
any affidavits he or she may desire in answer to the
allegations made by the applicant.
(6) The applicant shall have the
rights and obligations in regard to replying affidavits set out
in
rule 6.
(7) The provisions of
rule 6
as to
set down of applications shall
mutatis mutandis
apply
to the set down of review proceedings.
Rules 53(1), 53(3) to 53(5) of the Uniform Rules
of Court have been amended (GNR 317 of 17 April 2015).
[5]
Section
151 Review
Subject to the provisions of section
fifty-seven
any
person aggrieved by any decision, ruling, order or taxation of the
Master or by a decision, ruling or order of an officer
presiding at
a meeting of creditors may bring it under review by the court and to
that end may apply to the court by motion,
after notice to the
Master or to the presiding officer, as the case may be, and to any
person whose interests are affected: Provided
that if all or most of
the creditors are affected, notice to the trustee shall be deemed to
be notice to all such creditors;
and provided further that the court
shall not re-open any duly confirmed trustee’s account
otherwise than as is provided
in section
one hundred
and twelve
.
[6]
Mars:
The Law of Insolvency in South Africa
,
10th Edition, 2019, Internet: ISSN 2224-4743, Jutastat
e-publications at page 456. Also see Lee Steyn:
Human
Rights Issues in South African Insolvency Law
,
Int. Insolv. Rev.,Vol. 13: 1-25 (2004), Published on line in Wiley
InterScience
(www.interscience.wiley.com). DOI: 10.1002/iir.115.
[7]
Section
33 of the
Constitution of the Republic
of South Africa, 1996
defines “just
administrative action”:
(1) Everyone has the right to
administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been
adversely affected by administrative action has the right
to be
given written reasons.
(3) National legislation must be
enacted to give effect to these rights, and must—
(a) provide for the review of
administrative action by a court or, where appropriate, an
independent
and impartial tribunal;
(b) impose a duty on the state
to give effect to the rights in subsections (1) and (2); and
(c) promote an efficient
administration.
[8]
Nedbank
Ltd v Master of The High Court, Witwatersrand Local Division and
others
2009 (3) SA 403
(W) at
paragraphs 68 to 73. Also see
Leech and
others v Farber No and others
2000 (2)
SA 444
(W) and
Strauss and others v The
Master and others NNO
2001 (1) SA 649
(T).
[9]
34. Access to courts.
“
Everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing before
a court or, where appropriate, another
independent and impartial tribunal or forum.”
[10]
http://advocacyteaching.blogspot.com/2013/01/trial-advocacy-professors-tell-me-that.html
,
Friday, January 4, 2013
Advocacy, Strategy and Fairness
:
A.S. Dreier Responds to Selby's Review of His Book We received the
following from A.S. Dreier, author of
Strategy,
Planning & Litigating to Win: Orchestrating Trial Outcomes with
Systems Theory, Psychology, Military Science and
Utility Theory
,
in response to Hugh Selby's
review
of his book
published on this blog in
December.