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[2018] ZALMPPHC 71
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Maake and Others v Chemfit Finechemical (Proprietary) Limited (5772/2016, HCAA04/2018) [2018] ZALMPPHC 71 (22 November 2018)
REPUBLIC OF SOUTH AFRJCA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
CASE NUMBER: 5772/2016
HCAA04/2018
22/11/2018
In
the matter between:
MOKHUTAMANE
KENNETH MAAKE
1
ST
APPELLANT
RAMAREDI
MARTHA MPHAHLELE
2
ND
APPELLANT
MICHAEL-JONES
NUNES
3
RD
APPELLANT
KLEINBOOI
MUZIWEMPI
4
TH
APPELLANT
CHRISTIAAN
JACOBUS ALBERTUS KIRSTEIN
5
TH
APPELLANT
And
CHEMFIT
FINECHEMICAL (PROPRIETARY) LIMITED
RESPONDENT
JUDGEMENT
THE
COURT
[1]
This
is an appeal against the judgment and order of a single Judge of this
Division (MG Phatudi J). The learned Judge granted judgment
in favour
of the Respondent and refused the Appellants’ application for
leave to appeal. The present appeal before us is
with leave of the
Supreme Court of Appeal.
[2]
The
Appellants, Mokhutamane Kenneth Maake, Ramaredi Martha Mphahlele,
Michael-John Nunes, Kleinbooi Muziwempi Twala and Christiaan
Jacobus
Albertus Kirstein are all directors of Mike's Chicken (Pty) Ltd. The
Respondent Chemfit Fine Chemicals (Pty) Ltd t/a SA
Premix conducts
business in the supply of medicated and nutritional feed additives.
Mike's Chicken is in poultry farming operation.
[3]
The
Respondent had launched an application a
gainst
the Appellants for an order in the following terms:
"1.1 That the
First to the Fifth Respondents be and are hereby declared to be
delinquent directors
pursuant to the provisions of section 162(5) (c)
(iv) (bb) of the Companies Act 71 of 2008
(as
amended).
1.2
That the First to Fifth
Respondents be and are hereby declared to be personally responsible
for the debts owing by Mike's Chicken
(Proprietary) Limited (under
supervision) to the Applicant pursuant to the provisions of section
424(1) of the Companies Act 61
of 1973 (as amended.)
1.3
That in the alternative to 1.
2
above, the First to Fifth
Respondents, jointly and severally, the one paying the others to be
absolved, are ordered to pay the Applicant
damages pursuant to the
provisions of section 218(2) of the Companies Act 71 of 2008 (as
amended) in an amount of R3 126 334.41.
1.4
That the First to Fifth
Respondents, jointly and severally, the one paying the others to be
absolved, are ordered to make payment
of,"
1 .4.1 Interest on
any amount awarded by the honourable court in terms of prayer 1.2
alternatively 1.3 above
at the rate of 10.25% per annum a tempore
morae to date of final payment.
1.4.
2
The costs of the suit on the scale as
between attorney and client."
[4]
The Respondent has abandoned prayer 1.1
and 1.2 of its notice of motion and persisted in proceeding with
prayer 1.3 to 1.4. The
court
a quo
granted judgment in favour of the
Respondent ordering the Appellants to pay the Respondent the sum of
R3 126 334-41
as
damages pursuant to the provisions of
section
218 (2) of Act 71 of 2008.
The court
a quo
further
ordered the Appellants to pay the Respondent's costs.
[5]
The appeal is directed against the whole
judgment of the court
a quo.
The
central questions in the appeal are whether the respondent's
application for damages could have been brought by way of notice
of
motion or action, there should have been a joinder of Mike’s
Chicken (Pty) Ltd and the Business Rescue Practitioner and
whether
the Respondent's founding affidavit has disclosed a cause of action.
[6]
The Respondent was providing chicken
feed to Mike's Chicken on credit from 9th May 2014. Mike's Chicken
credit limit was R1.5 million
and the product ordered was payable
within 30 days after date of statement. On the 12th November 2014
Mike's Chicken credit facility
was increased to R4 million with
products ordered payable within 30 days of issuing of the statement.
[7]
From October 2015 Mike's Chicken was no
longer paying its account on time and it fell into arrears. The
Respondent continued to
supply Mike's Chicken based on the promises
that it will update its account. During March 2016 Mikes Chicken
undertook to settle
the respondent's arrear account in full by the
end of May 2016. In the meantime it offered to pay the Respondent
weekly payments
of
R50 000-00
commencing on the 4th April 2016.
Mike's Chicken did not settle the full outstanding amount at the end
of May 2016 as promised.
On the 1st July 2016 Mike's Chicken was
placed under business rescue in terms of
Section
129
of the
Companies
Act 71 of 2008
.
At the time it was
placed under supervision it was owing the Respondent the sum of
R3126
334-41.
[8]
On the 4th July 2016 the Third Appellant
in his capacity as the director of Mike's Chicken wrote a letter to
the Business Rescue
Practitioner explaining the circumstances that
led to Mike's Chicken being placed under supervision. In that letter
he disclosed
that Mike's Chicken has been financially distressed by
high costs of poultry feed and low selling price of chicken products
since
2014.
[9]
The Respondent as the basis for holding
the Appellants personally liable for damages it allegedly suffered,
alleges that Mike's
Chicken when it was placed under supervision it
never advised them that it was financially distressed. It contends
that had it
known about Mike's Chicken's distress, it would not have
granted them credit facilities or extended its credit. The Respondent
further alleges that Mike's Chicken did not disclose to it that it
has sold its poultry feed mill which they acquired during 2014
to
Nutri Feeds (Pty) Ltd in order to maintain a feed supply for its
broilers. The Respondent submits that it has suffered damages
in the
sum of R3 126 334-41 being the unpaid amount owed by Mike's Chicken
to it.
[10] The
Appellants in their answering affidavit admit that Mike's Chicken was
placed under supervision.
According to the Appellants the Respondent
understood that the cash flow of Mike's Chicken was under pressure as
that was discussed
when they negotiated the increase of their credit
facility. The Appellants further state that the Respondent was kept
abreast of
the difficulties it was experiencing, hence the Respondent
continued to deliver orders to it up to the 14
th
April
2016. The Appellants contend that even under those difficult
conditions Mike's Chicken was at all stages able to meet its
commitments under normal operating conditions. The Appellants deny
that Mike's Chicken has wilfully and intentionally caused its
operations to become commercially insolvent and thereafter wilfully
and /or negligently continued to do business under insolvent
circumstances.
[11] The
Appellants deny that the amount which the Respondent is claiming
represents damages it has
suffered as the proposed Business Rescue
Plan of Mike's Chicken was accepted on the 2nd December 2016. As per
Business Rescue Plan,
the Respondent will receive 65 cents in the
rand pertaining to its claim, or even receive its full claim. The
Appellants further
state that the Business Rescue Plan was approved
by all creditors, except the Respondent who voted against it. The
Appellants further
state that all creditors are satisfied with the
reasons that led Mike's Chicken to be financially distressed and that
the Business
Rescue Plan has a reasonable prospect of success. The
Appellants are of the view that the Respondent had jumped the gun by
declaring
that it has suffered a loss of
R3 126 334-41
whilst
that is not the case.
[12]
The Respondent filed its replying
affidavit to the Appellants' answering affidavit. In its replying
affidavit it has attached Mike's
Chicken audited financial statements
for the period ending 2015 which emanates from the founding affidavit
in a separate case in
which Mike's Chicken had launched an urgent
application against the Government. The Respondent is building its
case against the
Appellants based on the financial statements
contained in its replying affidavit.
[13]
The Appellants' appeal was prosecuted
out of time and they have applied for the re-instatement of the
appeal consequent upon the
appeal having lapsed as a result of the
Appellants' failure to apply for a date for the hearing of the appeal
within the prescribed
period. The Respondent did not oppose this
application and left the matter in the hands of the Court. We are
satisfied that the
appellants have shown good cause for their failure
to apply for a date of hearing of the appeal. Consequently this
appeal is reinstated
in terms of Rule 49(6) (b) of the Uniform Rules
of Court.
[14]
The Respondent raised a point
in
limine
and argued that the appeal be
struck off the roll on the ground that the appellants refused to put
up security for the Respondent's
costs of this appeal. The
Respondent's request for security for costs is based on Rule 49(13)
(a) of the Uniform Rules of Court.
[15]
The reliance of Rule 49(13) (a) by the
Respondent to demand security for costs of this appeal is misplaced.
As a general rule an
Appellant in the High Court, unlike in the
magistrate Court, is not required to furnish security for costs of an
appeal. The furnishing
of security for costs of an appeal is provided
for as an exceptional requirement provided for in Rules 49(12),
49(13) and 49(14).
The latter Rules are a sequel to the repealed Rule
49(11) which dealt with the suspension of the operation and execution
of an
order pending the decision of an application for leave to
appeal or appeal. The operation and execution of a decision which is
the subject of an application for leave to appeal or of an appeal,
and the suspension of such a decision are now provided for in
section
18
of the
Superior Courts Act 10 of 2013
. Upon the repeal of
Rule
49(11)
sub rules (12), (13) and (14) were left extant.
[16]
The subrules left extant when subrule
(11) was repealed provide as follows:
"49(12) If the order referred to
subrule (11)
is
carried
into execution by order of the court the party requesting such
execution shall, unless the court otherwise orders, before
such
execution enter into such security
as
the parties may agree or the
registrar may decide for the restitution of any sum obtained upon
such execution. The registrar's decision
shall be final.
(13)
(a) Unless the respondent waives
his or her right to security or the court in granting leave to appeal
or subsequently on application
to it,
has
released the appellant wholly or
partially from that obligation, the appellant shall, before lodging
copies of the record on appeal
with the registrar, enter into good
and sufficient security for the respondent's costs of appeal.
(b) In the event of failure by the parties
to agree on the amount of security, the registrar shall fix the
amount and the appellant
shall enter into security in the amount so
fixed or such percentage thereof as the court
has
determined,
as
the case may be.
(14)
The provisions of subrules (12)
and (13) shall not be applicable to the Government of the Republic of
South Africa or any provincial
administration."
[17]
It
is clear from the reading of
Rules 49(12)
,
49
(13) and
49
(14) that all
these Rules are subject to the repealed
Rule 49(11)
which is now
replaced by
section 18
of the
Superior Courts Act 10 of 2013
.
This
simply means that an Appellant is required to furnish security for an
appeal only when there is an execution of a Court judgment
or order
pending an appeal. The circumstances in the present appeal do not
require the Appellants to furnish security for costs
of the appeal.
[18]
Even
if there was an obligation on the Appellants to furnish security for
costs of appeal (we still maintain that there is no such
obligation)
this Court cannot uphold the Respondent's point
in
limine
at this stage. If security
for costs is not lodged, the lodging of the copies of the record on
appeal with the Registrar constitutes
an irregular step within the
meaning of
Rule 30.
In the appeal before us the Respondent has failed
to make or lodge an application in terms of
Rule 30
calling upon the
Appellants to remove the cause of complaint. The application to
struck the appeal from the roll is accordingly
refused. (See
Jyoti
Structures Africa (Pty) Ltd v KRB Electrical Engineers; Masana
Mavhuthami Electrical and Plumbing Services (Pty) Ltd t/a KRB
Masana
2011 (3) SA 231
(GSJ).
[19] Turning to the
merits of the appeal, the first issue to be determined is whether the
Business Rescue
Practitioner and Mikes Chicken (Pty) Ltd should have
been joined to these proceedings. The court a
quo
held that
the Business Rescue Practitioner does not acquire corresponding legal
interest in the outcome of a
/is
between the directors and the
company's creditors and therefore did not have direct and substantial
interest in the pending litigation.
With regard to joining of Mike's
Chicken to the pending litigation the court a
quo
held that
there was no
/is
between the Respondent and Mike's Chicken and
therefore the issue of non-joinder falls away.
[20] The test for
joinder requires that a litigant must have a direct and substantial
interest in the subject
matter of the litigation, that is, a legal
interest in the subject matter of the litigation which may be
affected by the decision
of the Court.
(See Pheko and others v
Ekhurhuleni Metropolitan Municipality (N02) [2015] ZACC at para 56)
[21]
In determining what constitute direct
and substantial interest
Mlambo JA
in
Gordon v Department of Health,
KwaZulu-Natal
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA) at 529 C-F
said:
". .
.In the Amalgamated Engineering
Union case (supra) it was found that the question of joinder should
...
not depend on the nature of the subject -matter
..
.but
..
.on the manner in which, and the extent to which, the
court's order may affect the interest of third parties. The court
formulated
the approach as, first, to consider whether the third
party would have locus standi to claim relief concerning the same
subject
matter, and then to examine whether
a
situation could
arise in which, because the third party had not been joined any order
the court might make would not be res judicata
against him, entitling
him to approach the courts again concerning the same subject-matter
and possibly obtain an order irreconcilable
with the order made in
the first instance. This has been found to mean that if the order or
judgment sought cannot be sustained
or carried into effect without
necessary prejudicing the interests' of a party or parties not joined
in the proceedings, then that
party or parties have a legal interest
in the matter and must be joined."
[22]
The Respondent in paragraph 38.10 of its
replying affidavit tenders to refund the Appellants pro rata any
amounts that the Respondent
may receive either under the business
rescue or in consequence of a winding up of Mike's Chicken in the
event of the Respondent
receiving payment of the claimed amount from
the Appellants. From what the Respondent has stated in its replying
affidavit it is
clear that the order or judgment which the court may
make will have an effect on the Business Rescue Practitioner and
Mike's Chicken.
The Business Rescue Practitioner is the one who will
determine whether Mike's Chicken will be liquidated or has been
rescued back
to its solvent status. In that process of trying to
rescue Mikes Chicken, the Business Rescue Practitioner will also be
responsible
to pay the debts of Mike's Chicken. One of the debt is
that of the Respondent. The Respondent will be unduly enriched if it
receives
double payment for the same debt, and therefore, any amount
it receives, the Business Rescue Practitioner should be notified.
That
is an indication that the Business Rescue Practitioner has a
substantial interests in the Respondent's application against the
Appellants.
[23]
If the Respondent is unsuccessful with
its claim to hold the Appellants personally liable, it may still
proceed with its claim against
Mike's Chicken, and Mike's Chicken can
attempt to raise a defence of
res
judicata.
Even if no relief is being
sought against Mike's Chicken and the Business Rescue Practitioner,
it is clear that they are the necessary
parties and have a legal
interest in the subject matter. In our view, the Business Rescue
Practitioner and Mike's Chicken have
direct and substantial interest
in the matter, and the determining factor is not whether there is a
lis
between
the parties.
[24] The Appellants'
point
in limine
on non-joinder of the Business Rescue
Practitioner and Mike's Chicken has merit and the court
a quo
erred in dismissing it. However, even if it was upheld it was not
a ground to dismiss the Respondent's application. The application
could have been stayed pending the joinder of the Business Rescue
Practitioner and Mike's Chicken.
[25]
We turn to the question whether the
Respondent's founding affidavit has disclosed a cause of action. The
Respondent has abandoned
prayer 1.1 and 1.2 of its notice of motion
and it is proceeding with prayers 1.3 to 1.4. Prayer 1.3 is the
alternative to prayer
1.2. As per prayer 1.3 the Respondent is
claiming damages against the Appellants jointly and severally, the
one paying the other
to be absolved in terms of
section
218 (2) of the Companies Act 71 of 2008 ("CA").
[26]
Section 218 (2) of the CA
provides
as follows:
“
Any person who contravenes any
provision of this Act is liable to any other person for any Joss or
damage suffered by that person
as a result of that contravention."
[27]
Section 218 of the CA imposes liability
on any person who contravenes any provision of the Act and who in so
doing caused another
person to suffer a loss or damage.
(See
Rabinowitz v Van Graan
2013 (5) SA 315
(GST)
and
Sanlam Capital Markets v Mettle Manco
[2014] 3 ALL SA 454
(GT).
Any person
who can sue for loss or damage in our view will include a creditor of
the company.
[28]
Section 218 of the CA provides a general
remedy to any person who suffers loss or damages as a result of
contravention of the Act.
However, it does not specify which
contravention the person may sue for. A creditor may sue a director
of a company in his/her
personal capacity for the loss or damage it
has suffered as a result of that director(s) actions. Since the
section does not specify
which actions may be regarded as
contravention of the CA, it follows that the creditor who sues must
specify which contravention
were attributed to the director(s) and
the exact losses or damages with sufficient particulars. Sufficient
facts should be pleaded
to enable the director(s) to know which case
they would meet.
[29]
The Respondent's founding affidavit does
not state with sufficient particularity the exact contravention of
the Appellants for them
to be personally held liable for damages it
allegedly suffered. The founding affidavit has concentrated on Mike's
Chicken and that
whilst trading under insolvent circumstances it
continued to incur further debts vis -a- vis its creditors. However,
it does not
specify which acts have the Appellants allegedly
committed which can be viewed as having caused the Respondent's
alleged loss.
[30]
In
Ex
Parte De Villiers & another NNO: In Re Carbon Developments
1993(1) SA 493(A) at 504 A-C Goldstone JA said:
"That the statement of our law with
regard to the fraudulent incurring of credit is consistent with the
following statement
by Buckley J in an unreported judgment quoted in
Palmer's Company Law 24th ed at 1463: In my judgment, there is
nothing wrong in
the fact that directors incur credit at a time when,
to their knowledge, the company is not able to meet all its
liabilities as
they fall due. What is manifestly wrong is if
directors allow
a
company
to incur credit at a time when the business is being carried on in
such circumstances that it is clear that the company
will never be
able to satisfy its creditors. However, there is nothing to say that
directors who genuinely believe that the clouds
will roll away and
the sunshine of prosperity will shine upon them again and disperse
the fog of their depression are not entitled
to incur credit to help
them to get over the bad time."
[31] Even though
Mike's Chicken was trading under insolvent circumstances it was
hopeful that it will
be back on its feet again. Mike's Chicken has
also notified the Respondent that it was expecting a bail out from
Government. The
payment of their debt was restructured with the
consent of the Respondent. In our view, the Appellants genuinely
believed that
the clouds will roll away and the sunshine of
prosperity will shine upon them again.
[32] The
Respondent has failed in its founding affidavit to show that when the
Appellants incurred
further credits for Mike's Chicken it was clear
that it will never be able to satisfy its creditors. It was only in
its replying
affidavit that the Respondent tried to build a case
against the Appellants. It is trite that in motion proceedings a
party seeking
relief ought in his /her founding affidavit to disclose
such facts as would, if true, justify the relief sought and which
would
at the same time, sufficiently inform the other party of the
case he was required to meet. Simply put, the Applicant ought to make
out a proper case in the founding affidavit and not replying
affidavit (See
National Council of SPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 349 A-B).
[33]
The court
a
quo
in its judgment has relied more
on the Respondent's replying affidavit. In our view, the court
a
quo
has overlooked the fact that the
Respondent ought to have made out a proper case in its founding
affidavit and not its replying
affidavit and on this point alone the
appeal stand to succeed.
[34]
Furthermore in an effort to make out a
case against the Appellants, the respondent relied on contravention
of section 22(1) of the
CA. Counsel for the Respondent argued that
Mike's Chicken contravened the provisions of section 22(1) of the Act
in as much as
it carried on its business recklessly and that Mike's
Chicken did so at the hands of its board of directors, the
Appellants.
[35]
Section 22(1) of the CA provides that:
"A company must not carry on its
business recklessly, with gross negligence, with intent to defraud
any person or for any fraudulent
purpose."
The question is whether, on the facts of the
present case the Respondent has made out any case of recklessness or
gross negligence
against the Appellants. Can it be said that the
Appellants in carrying on the business of the company did so with
intent to defraud
the Respondent or for any fraudulent purpose for
that matter?
[36]
The standard of conduct of a director
was scrutinized by the Supreme Court of Appeal in
Philotex
(Pty) Ltd and Others v Snyman and Others; Braitex (Pty) Ltd and
Others vs Snyman and Others
[1997] ZASCA 92
;
1998 (2) SA 138
(SCA) at page 146G-147C.
Howie JA said the following:
"
The above -quoted approach suggested
in Ozinsky is, of course, an evidential test, not
a
statement
of substantive Jaw , however, it appears to me to accord recognition
to the difference between negligence, on the one
hand, and
recklessness, at least in the form of
gross
negligence, on the
other. Participation in the business necessarily involves taking
entrepreneurial risk but
s
424 only penalizes the subjection of
the third parties to risk where (apart from the
case
of
fraudulent trading) it
is
grossly unreasonable. If, therefore,
in
a
given
case
there
is
some ground for
thinking that creditors will be paid but reasonable businessman would
nonetheless, because of circumstances creating
a
material but
not high risk of non-payment, refrain from running that risk, the
director who does run that risk by incurring credit,
and thus falls
short of the standard of conduct of the reasonable businessman,
trades unreasonably and therefore negligently vis-a-vis
creditors.
That departure from the reasonable standard could not fairly be
described
as gross,
however, and the director concerned would
not be hit by the section. By contrast, an instance that manifestly
would fall foul of
the section
is
where the reasonable
businessman would realise that in all the circumstances payment would
not be made when due. To incur credit
in that situation would, as a
matter of degree, be so plainly more serious
a
departure from
the required standard than the conduct in the first example that one
has no difficulty categorising it
as
grossly unreasonable and
therefore grossly negligent. This second example, one must emphasise,
is an extreme one and it would, in
my view, impose an unduly heavy
burden on
a
plaintiff in s 424 proceedings to require proof of
circumstances in which
a
reasonable businessman would
assess
non-payment as
a
virtual certainty.
So,
if
a
plaintiff were to present evidence warranting the conclusion that
when credit was incurred there was, objectively regarded, a very
strong chance, falling short of virtual certainty, that creditors
would not be paid, that case would, I think, also involve the
mischief which the section was intended to combat. It is not possible
to attempt to draw the line between negligence and recklessness
more
exactly. Each case must turn on its own facts and involve
a
value
judgment on those facts."
[37]
On the facts of this case we make a
finding that the directors of Mike's Chicken did not carry on the
business of the company recklessly
or with gross negligence. In any
event, it is an undisputed fact that the Appellants as directors of
Mike's Chicken did everything
within their powers including injecting
their own cash, in an attempt to rescue the company. Such in our view
cannot be attributed
to persons who were acting recklessly in
carrying the operation of the company. The allegation that Mike's
Chicken traded under
insolvent circumstances is not substantiated
anywhere in the Respondent's papers. We are accordingly at large to
reverse the judgment
of the Court
a
quo
in this regard.
[38]
The third issue is whether the
respondent should have launched its claim by way of action or
application. Most of the new issues
raised by the Respondent in its
replying affidavit raise a serious dispute of fact. Even if they were
contained in its founding
affidavit they were not capable of being
resolved on papers. Claims of this nature should be instituted by way
of action. A claimant
is not barred from instituting a claim by way
of motion. However, the claimant pursues that claim in his/her own
peril in that
should a factual dispute arise which turns out to be
incapable of being resolved on papers, it risks the application being
dismissed
should the court exercise its discretion not to refer the
matter for trial or direct that oral evidence be placed before it.
(See Gounder v Top Spec Investment
(Pty) Ltd
[2008] ZASCA 52
;
2008 (5) SA 151
SCA).
In
our view on this point also the appeal stand to succeed.
ORDER
[39]
In the result the following order is
made:
39.1
The appeal is upheld with costs.
39.2
The order of the court a
quo
is set aside and substituted with
the following:
"The
Application is dismissed with costs."
EM MAKGOBA JP
JUDGE PRESIDENT OF THE HIGH COURT,
LIMPOPO, DIVISION POLOKWANE
I
AGREE
MF KGANYANGO J
JUDGE OF THE IDGH COURT,
LIMPOPO
DIVSION, POLOKWANE
I
AGREE
MV
SEMENYA J
JUDGE
OF THE IDGH COURT, LIMPOPO
DIVSION,
POLOKWANE
APPEARANCE:
COUNSEL
FOR THE APPELLANTS
: Adv. G.J
DIAMOND
INSTRUCTED
BY
: KIRK TWINE
ATTORNEYS
COUNSEL
FOR RESPONDENT
:
Adv. J VAN ROOYEN
INSTRUCTED
BY
: DONNE E BRUWER ATT
DATE
OF HEARING
: 26 OCTOBER
2018
DATE
OF JUDGEMENT
: 22
nd
NOVEMBER 2018