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[2018] ZAGPPHC 701
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Nedbank Limited v Luvhomba Communications & Information Technology CC and Others; Nedbank Limited v Mzantsi Restaurants CC and Others; Nedbank Limited v Luvhomba Legal Edge CC and Others (48411/2013, 48412/2013, 48413/2013) [2018] ZAGPPHC 701 (5 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
Case No. 48411/2013
5/3/2018
In
the matter between:
NEDBANK
LIMITED
PLAINTIFF
And
LUVHOMBA COMMUNICATIONS &
INFORMATION
FIRST DEFENDANT
TECHNOLOGY
CC
LUVHOMBA LEGAL EDGE
CC
SECOND DEFENDANT
MULAUDZI & ASSOCIATES
CC
THIRD DEFENDANT
GERENDRACC
FOURTH DEFENDANT
LUVHOMBA
LEGAL CARE CC
FIFTH DEFENDANT
MZANTSI
RESTAURANTS
CC
SIXTH DEFENDANT
LEGAE
LE MONATE RESTAURANT CC
SEVENTH DEFENDANT
LUVHOMBA
PROJECTS & CONSTRUCTION CC
EIGHTH DEFENDANT
LUVHOMBA
SECURITY SERVICES & PATROL CC
NINETH DEFENDANT
LUVHOMBA
LEGAL AXE
CC
TENTH DEFENDANT
LUVHOMBA
FINANCIAL SERVICES CC
ELEVENTH DEFENDANT
MATTHEWS
TUWANI MULAUDZI
TWELTH DEFENDANT
Case No. 48412/2013
In
the matter between:
NEDBANK
LIMITED
PLAINTIFF
And
MZANTSI
RESTAURANTS CC
FIRST DEFENDANT
MATTHEWS
TUWANI MULAUDZI
SECOND DEFENDANT
LUVHOMBA
LEGAL EDGE CC
THIRD DEFENDANT
MULAUDZI
& ASSOCIATES
CC
FOURTH DEFENDANT
GERENDRA
CC
FIFTH DEFENDANT
LUVHOMBA
LEGAL CARE CC
SIXTH DEFENDANT
LUVHOMBA
COMMUNICATIONS & INFORMATION
TECHNOLOGY
CC
SEVENTH DEFENDANT
LEGAE
LE MONATE RESTAURANT CC
EIGHTH DEFENDANT
LUVHOMBA
PROJECTS & CONSTRUCTION CC
NINETH DEFENDANT
LUVHOMBA
SECURITY SERVICES & PATROL CC
TENTH DEFENDANT
LUVHOMBA
LEGAL AXE CC
ELEVENTH DEFENDANT
LUVHOMBA
FINANCIAL SERVICES CC
TWELTH DEFENDANT
Case No. 48413/2013
In
the matter between:
NEDBANK LIMITED PLAINTIFF
And
LUVHOMBA
LEGAL EDGE CC
FIRST DEFENDANT
MATTHEWS
TUWANI MULAUDZI
SECOND DEFENDANT
MULAUDZI
& ASSOCIATES
CC
THIRD DEFENDANT
GERENDRA
CC
FOURTH DEFENDANT
LUVHOMBA LEGAL CARE
CC
FIFTH DEFENDANT
LUVHOMBA COMMUNICATIONS &
INFORMATION
SIXTH
DEFENDANT
TECHNOLOGY CC
MZANTSI RESTAURANTS
CC
SEVENTH DEFENDANT
LEGAE
LE MONATE RESTAURANT CC
EIGHTH DEFENDANT
LUVHOMBA
PROJECTS & CONSTRUCTION CC
NINETH DEFENDANT
LUVHOMBA
SECURITY SERVICES & PATROL CC
TENTH DEFENDANT
LUVHOMBA
LEGAL AXE CC
ELEVENTH DEFENDANT
LUVHOMBA
FINANCIAL SERVICES CC
TWELTH DEFENDANT
JUDGMENT
MILLAR,
AJ
1.
The
plaintiff instituted actions against Mr. Mathews Tuwani Mulaudzi
("Mulaudzj») and various close corporations of which
he
was the sole member. There are over the three separate cases which
were allocated for hearing before me, eleven different entities
excluding Mulaudzi in his personal capacity.
2.
The
first case with case number 48411/2013 was for monies owed to the
plaintiff in respect of overdraft facilities that had been
granted to
it. All the other defendants in that case had executed deeds of
suretyship in favour of the plaintiff for the debts
of the first
defendant and were sued in that capacity. The cause of action in the
action with case number 484212/2013 was similarly
for monies owed in
respect overdraft facilities granted to the first defendant in that
action and the remaining defendants were
also sued as sureties. In
the third case under case number 484213/2013, the plaintiffs cause of
action was in respect of installment
sales agreements relating to the
purchase of 4 motor vehicles entered into between the plaintiff and
the first defendant in that
action and there too all the other
defendants were sued in their capacity as sureties. The claims are
all based on written agreements
which were attached to the pleadings.
In addition, various of the defendants, all close corporations, had
passed mortgage bonds
over immovable property registered in the name
of that defendant as security for the obligations of the particular
defendant. The
plaintiff is the mortgagee in each instance.
3.
All
three actions were defended on behalf of all the defendants and pleas
filed. The pleadings closed in all three matters and pretrial
conferences were held on 17 June 2015. There is a notice of
withdrawal as attorneys of record in the court file for case number
48413/2013 but no such notices in the court files for cases
484211/2013 and 484212/2013 respectively.
4.
When
the matters were called, Adv. Kilian for the plaintiff informed me
that pursuant to an agreement with the trustee of Mulaudzi
whose
estate has been finally sequestrated, no order would be sought
against him or his estate. Mulaudzi appeared personally and
confirmed
that he had indeed been finally sequestrated but that he had various
disputes with his trustee. He also indicated that
he wished, in his
personal capacity to represent the eleven entities, of which he had
been the sole member, in the present litigation.
There was no
explanation as to why neither counsel nor an attorney appeared in
cases 484211/2013 or case 484212/2013.
5.
Counsel
for the plaintiff raised an objection to the appearance of Mulaudzi
in this capacity and referred me to the judgment of
the Supreme Court
of Appeal in
Manong & Associates
(Pty) Ltd v Minister of Public Works and Another
[1]
in which it was held that in regard to an appearance by a private
person:
"in each instance leave
had to be sought by way of
a
properly
motivated, timeously lodged formal application showing good cause
why, in the particular case, the rule prohibiting non-professional
representation should be relaxed. Individual cases could thus be met
by the exercise of the discretion in the circumstances in
that case.
It would thus be impermissible for
a
non-professional
to take any step in the proceedings, including the signing of
pleadings, notices or heads of argument, without
the requisite leave
of the court concerned first having been sought and obtained."
6.
No
such application was brought beforehand with Mulaudzi simply
appearing on the day in person and asserting his right to appear
for
the various entities. I was nevertheless prepared to hear Mulaudzi
and invited him to lay a basis for his right to appear.
Aside the
dispute with his trustee, I was informed by Mulaudzi that the Supreme
Court of Appeal had previously granted him the
right to appear on
behalf of the various entities, notwithstanding that his estate had
been finally sequestrated.
7.
He
referred me to the judgment of that court in
Mulaudzi
v Old Mutual Life Insurance Company (South Africa) Limited and
Others, National Director of Public Prosecutions and Another
v
Mulaudzi
[2]
and assured me that this had
established his right. I adjourned the court to afford me an
opportunity to consider the particular
judgment. Mulaudzi had
appeared in court without any documentation and had simply made
submissions from the bar. The passage in
the judgement upon which it
seems to me that he sought to rely was the following:
"[20] Save for
a
narrow point (to
which I shall latterly tum) sought to be advanced in the second
appeal, the trustees formally stated that they
would abide the
decision of this court in both matters. In the result, the Mulaudzis
were entitled to take steps which, if successful,
would enhance the
value of the estate, whether by increasing the assets in the estate
in the second appeal or reducing the liabilities
in the estate in the
first appeal. The Mulaudzis were thus entitled to intervene in both
matters"
8.
I
do not agree that the passage I was referred to confers upon Mulaudzi
a right to appear for the eleven entities. The case referred
to
concerned Mulaudzi in his personal capacity and
viz
a
viz
his trustee, a situation entirely
distinguishable from the present.
9.
Although
Mulaudzi was the sole member in control of the entities before the
granting of the sequestration order, it is trite that
the granting of
that order caused the members interest in the various entities to
vest in the trustee. The members interest accordingly
vests in the
trustee and Mulaudzi, personally, has neither a right nor an interest
in the proceedings against the eleven entities.
The present matter is
further distinguishable from those cases where permission was granted
for a non-professional person to appear
on behalf of an entity where
the person and the entity were for all intents and purposes one
[3]
• The number of entities, eleven, militates against a finding in
this regard
[4]
.
10.
Having
heard Mulaudzi and having considered the matter I refused his request
to appear on behalf of the entities. I indicated that
I would proceed
to hear the plaintiff and would give judgment and my reasons for
refusing his request on 5 March 2018. Mulaudzi
excused himself and
left the court.
11.
I
am satisfied, having been addressed by counsel that cases have been
made out for judgment by default in all three matters and
in the
circumstances make the following orders:
12.
AD CASE NUMBER 48411/2013
12.1
The
first to eleventh defendants inclusive are ordered, jointly and
severally, the one paying the others to be absolved, to:
12.1.1
Make
payment to the plaintiff of the sum of R2 940 008.59;
12.1.2
Pay
interest on the aforesaid amount at the plaintiff's prime interest
rate from time to time, plus 11.5% per annum, calculated
daily on the
outstanding balance and compounded monthly from 11 July 2013, to date
of final payment, both days inclusive;
12.1.3
Costs
of suit on the scale as between attorney and client.
12.2
As against the second defendant only:
12.2.1
The
following immovable property is declared to be specially executable:
12.2.1.1.1
Remaining
extent of erf 323 Sunnyside (Pretoria) Township, Registration
Division J.R, the Province of Gauteng, measuring 388 square
metres,
held under deed of Transfer No. T082134/2008.
12.2.1.1.2
Remaining
extent of erf 6 Hatfield Township, Registration Division J.R, the
Province of Gauteng, measuring 1275 square metres, held
under deed of
Transfer No. T006312/2010.
12.3
As against the third defendant only:
12.3.1
The
following immovable property is declared to be specially executable"
12.3.1.1.1
Portion 132 (a portion of
portion 6) of erf 1856 Waterkloof Ridge Township, Registration
Division J.R, the Province of Gauteng,
measuring 1225 square metres,
held under deed of Transfer No. T 084283/2006
13.
AD CASE NUMBER 48412/2013
13.1
The
first and third to twelfth defendants inclusive are ordered, jointly
and severally, the one paying the others to be absolved,
to:
13.1.1
Make payment to the plaintiff of the sum
of RS 632 633.53;
13.1.2
Pay interest on the aforesaid amount at
the plaintiffs prime interest rate from time to time, plus 11.5% per
annum, calculated daily
on the outstanding balance and compounded
monthly from 11 July 2013, to date of final payment, both days
inclusive;
13.1.3
Costs of suit on the scale as between
attorney and client.
13.2
As against the third defendant only:
13.2.1
The
following immovable property is declared to be specially executable:
13.2.1.1.1
Remaining
extent of erf 323 Sunnyside (Pretoria) Township, Registration
Division J.R, the Province of Gauteng, measuring 388 square
metres,
held under deed of Transfer No. T082134/2008.
13.2.1.1.2
Remaining
extent of erf 6 Hatfield Township, Registration Division J.R, the
Province of Gauteng, measuring 1275 square metres, held
under deed of
Transfer No. T006312/2010.
13.3
As
against the fourth defendant only:
13.3.1
The following immovable property is
declared to be specially executable"
13.3.1.1.1
Portion 132 (a portion of portion 6) of erf 1856 Waterkloof Ridge
Township, Registration Division J.R,
the Province of Gauteng,
measuring 1225 square metres, held under deed of Transfer No. T
084283/2006
14.
AD CASE NUMBER 48413/2013
14.1
The
first and the third to twelfth defendants inclusive are ordered,
jointly and severally, the one paying the others to be absolved,
to
pay the costs of this action on the scale as between attorney and
client.
14.1.1
The plaintiff is entitled to take
repossession from the first defendant or any other person who may be
in possession thereof through
the first defendant, of the following
motor vehicles:
14.1.1.1
a
Fiat Strada 1.4 with Eng/Semo 178F50388981080 and Vin No:
9BD27835K07179056.
14.1.1.2
a
Fiat Strada 1.4 with Eng/Semo 178F50389150943 and Vin No:
9BD27835K07201758
14.1.1.3
a
Fiat Palio Active with Eng/Semo.: 178870453844968 and Vin No:
MCA17852808073100
14.1.1.4
a
Land Rover Range Rover 5.0 V8 S/C with Eng/Semo: 10051705130508PS and
Vin No: SALLMANE3AA327808
14.1.2
the relief sought in prayers 1 and 2 in
respect of claims A, B, C and D are postponed sine die pending the
determination of the
market value of the motor vehicles referred to
in paragraphs 14.1.1 to 14.1.1.4 of this Order.
14.1.3
The plaintiff is granted leave to
approach this Court on the same papers (duly supplemented) and
subject to paragraph 14.1.2 of
this Order for the relief sought in
prayers 1 and 2 of claims A, B, C and D.
14.1.4
The
relief claimed as against the first defendant to declare the
immoveable property, the Remaining extent of erf 323 Sunnyside
(Pretoria) Township, Registration Division J.R, the Province of
Gauteng, measuring 388 square metres, held under deed of Transfer
No.
T082134/2008 and Remaining extent of erf 6 Hatfield Township,
Registration Division J.R, the Province of Gauteng, measuring
1275
square metres, held under deed of Transfer No. T006312/2010,
specially executable, is postponed sine die.
14.1.5
The
relief claimed as against the third defendant to declare the
immoveable property, the Portion 132 (a portion of portion 6) of
erf
1856 Waterkloof Ridge Township, Registration Division J.R. the
Province of Gauteng, measuring 1225 square metres, held under
deed of
Transfer No. T 084283/2006, specially executable, is postponed sine
die.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
16 FEBRUARY 2018
JUDGMENT
DELIVERED ON:
5 MARCH 2018
COUNSEL
FOR THE PLAINTIFF:
ADV J KILIAN
INSTRUCTED
BY:
BALOYI SWART & ASSOCIATES
INC
REFERENCE:
MR SWART
APPEARANCE
FOR THE DEFENDANTS: NONE
[1]
2010 (2) SA 167
(SCA) at 174 C-E-in
[2]
2017 (6) SA 90 (SCA)
[3]
See in this regard Manong supra at page 172 paragraph 9
[4]
The Supreme Court of Appeal stated in Manong supra at paragraph 5 on
page 171 that "There is nothing to suggest that Mr.
Manong's
decision to secure the benefits of incorporation was not a genuine
one. He did after all have the option of establishing
and conducting
business as an unincorporated sole proprietorship . There is thus a
persuasive argument that having chosen the
benefits of
incorporation, he must bear the corresponding burdens and not be
allowed to escape them lightly." This seems
to me to be
particularly apposite in the present case.