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[2016] ZAFSHC 112
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Industrial Development Corporation v Bell and Others (971/2016) [2016] ZAFSHC 112 (12 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA.
FREE
STATE DIVISION. BLOEMFONTEIN
Case
no 97112016
In
the matter between:
INDUSTRIAL
DEVELOPMENT
CORPORATION
and
IZAK
DIDERICK JOHANNES BELL AND 7 OTHERS
Heard:
21 April 2016
Delivered:
12 May 2016
MOCUMIE,
J
[1]
On 21 April 2016 I reserved judgment but due to the urgency of the
matter, I granted the following order:
'1.
The provisional sequestration order granted on 14 April 2016 is
extended to
12
May
2016.
2.
Costs to be costs in the cause.'
[2]
This an urgent application for leave by the applicant/ intervening
party, the Industrial Development Corporation, (IDC), to
(a)
intervene as the fourth respondent in the main application, the
sequestration, of Bethlehem Framers Trust
(BFT) launched by the first
respondent Mr I D J Bell (the first respondent) and applicant in the
main application and in order
to oppose the first respondent's
application for the sequestration of BFT.
(b)
Leave
to
file supplementary affidavit as answering
affidavit in the main application within fifteen days from the date
of this order;
(c)
An order that the provisional sequestration order granted on 3 March
2016 and further extended on 31 March
2016 be further extended to 9
June 2016;
(c)
Costs of the application.
[3]
No relief is sought in this application against any of the
respondents other than leave to intervene in the main application
as
a respondent in order to oppose same, save in the event of opposition
to the intervention application, in which event costs
will be sought
against any party which opposes the relief sought. This application
is nonetheless opposed by the first respondent
and eight respondents,
Afgri Operations (Ltd) (Afgri). I will refer to both respondents as
such whenever necessary.
[4]
The IDC is a corporation established in terms of s2 of the Industrial
Development Corporation Act, 22, 1940, with its principal
place of
business in Sandown, Sandton, Gauteng. The first respondent is an
adult male residing in Bethlehem and the applicant in
the
sequestration application pending in this court under case no
971/2016 (the main application).The Afgri Operations (Ltd) (Afgri)
is
a public company duly registered and incorporated in accordance with
the company laws of the Republic South Africa, with its
registered
address alternatively its principal place of business in Centurion,
Gauteng.
[5]
On 3 March 2016 this court granted a provisional sequestration order.
On 31 March, the return date was extended by agreement
between the
parties to 14 April 2016. On 14 April it was further extended to 21
April.
[6]
Ms Dippenaar appeared on behalf of the IDC, Mr Tsangirakis on behalf
of the first respondent and Mr Grobler on behalf of Afgri.
The
parties agreed that the issue of urgency be addressed first followed
by the rest of the grounds relied upon by the IDC as set
out in the
Notice of Intervention. Although we dealt with the issues as
indicated, however for purposes of this judgment I will
start with
the issue of
locus
standi,
as it was,
correctly so, abandoned by both respondents. Followed by the
application to strike out the replying affidavit filed by
Afgri. The
rest will flow from there.
Locus
Standi of IDC
[7]
Initially and in the heads of argument the first respondent
strenuously argued that the IDC had no
locus
standi
in the sequestration proceedings and thus these proceedings.
Although this issue was addressed much later during the
deliberations,
I deem it appropriate to dispose of it at this stage.
Both Messers Tsangirakis for the first respondent and Grobler for the
eight
respondent abandoned this ground of opposition on the basis of
the Jong standing legal principles in this regard as well as the
provisions of Rule 12; which is in line with what the IDC set out
extensively in its application which need no repeat for the sake
of
brevity of this judgment. Suffice to state that the IDC indeed has
locus
standi
in these proceedings; in particular
the IDC has shown unequivocally that it has direct and substantial
interest in the subject matter;
as correctly conceded by the
respondents on the basis of well-established legal principles
governing proceedings of this nature.
The
replying affidavit filed by Afgri on 14 April
[8]
In any application any party is entitled to request the court to
strike certain portions of an affidavit or as in this instance
the
whole replying affidavit filed by another. Rule 6(15) governs such an
application. The Rule provides that a court may on application
order
to be struck out from any affidavit any matter which is scandalous,
vexatious or irrelevant, with an appropriate order as
to costs
including costs as between attorney and client. The court shall not
grant the application unless it is satisfied that
the applicant will
be prejudiced in his case if it be not granted.
[9]
Ms Dippenaar submitted that on 14
April Afgri
cited in the intervention application
as an
interested
party
and
creditor
of
BFT, filed
a
replying
affidavit,
Apart
from
explaining that Afgri was formerly known as SOC
[1]
,
which the
IDC accepted may be correct,
and
other
allegations
in respect
of the two
companies,
no
relevance
of
such
information
is
set
out
in
the
replying
affidavit.
Moreover,
there
are
no
allegations
set out
that
Afgri
is indeed
the
correct
party
before this
court
or that
Afgri
has the
necessary
locus
standi
for
purposes
of this
application
to
express any
views
on
the
matter.
Afgri
is
not
even
a
party
to
the
main
sequestration
proceedings and
has
elected
also
elected not
to
formally
oppose
the
IDC's intervention
application.
[10]
Ms
Dippenaar
contended
that
the
first
respondent
could
hardly
rely
on what
is
contained
in Afgri's
replying
affidavit when
the
deponent
had
no
personal
knowledge
of the correctness
of the
content of such affidavit. To that extent, the first respondent's
evidence amounted to hearsay evidence which, in terms of
the Civil
Proceedings Evidence Act
[2]
,
is not
relevant or permissible to be admitted at
this stage
and in this manner. She contended further that
in the same
vein,
UFS
which
now
contended that it is a major creditor of BFT is not a party either in
the present
intervention
application
or the
main
sequestration
application.
UFS can
only form
part of the
main
sequestration
application
by formally
joining
in those
proceedings.
Likewise, it
must
do
the
same if
it
wants
to oppose
the IDC's intervention application.
[11]
Mr Grabler, in reply, submitted that the IDC cited Afgri as an
interested party in the sequestration and even in the intervention
application. The postponement on 30 March was granted to afford the
IDC time to settle outstanding creditors of BTF including Afgri.
He
argued that the IDC itself referred to and cited Afgri as an
interested party. It can therefore not be allowed to blow hot and
cold when the circumstances permitted. Afgri was entitled to respond
as a creditor of BFT and as admitted by the IDC, an interested
party
in the subject matter. Mr Tsangirakis supported Mr Grobler's
contention that on that basis the first respondent was justified
to
rely on Afgri's replying affidavit and its content, when it confirms
that BFT owes it a substantial amount of money and was
insolvent no
matter how much the IDC was prepared to pay off BFT's creditors. Once
the creditors have been paid off, other debts
would continue to build
up. Such debts included salaries of BFT's employees. He submitted
that, once the court accepted that Afgri
was a creditor and an
interested party, there was no reason why the affidavit should not be
allowed. The application not to admit
the replying affidavit was the
IDC's attempt to conceal information contained in the replying
affidavit from the court, including
the resolution to approach the
court on an urgent for a sequestration of BFT.
[12]
In essence, both counsel for the respondents, particularly Mr Grabler
for Afgri, maintained that the IDC dragged Afgri into
this
application by citing it and even referring to it as a major creditor
of BFT. Thus Afgri was entitled to reply as it did in
the replying
affidavit.
[13]
I deem it expedient to dispose of this issue as well before I go into
the merits of the application for intervention. Joining
in any
proceedings is provided for by Rule 12 of the Uniform Rules of Court
as follows:
'Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at
any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make
such order,
including any order as to costs, and give such directions as to the
further procedure in the action as it may seem
meet.'
[14]
The legal principles applicable in this regard were not in contention
at all. To that extent, I accepted that both counsel
were
ad idem,
albeit
in not so many words, with the exposition of
the law presented by Ms Dippenaar on behalf of the IDC, in this
regard. The mere fact
that the IDC cited Afgri as an interested part
and a major creditor can under no circumstances, without further ado,
entitle Afgri
to jump in and file a replying affidavit at this stage.
This is contrary to practice and in conflict with Rule 12. This was
done
clearly to avoid being mulcted with costs as the IDC had
declared that in the event of any opposition, it will ask for costs
against
such party. On this legal basis alone, i.e. apart from the
issues of relevance and vexatiousness, the replying affidavit filed
by Afgri ought not to be heard at this stage and outside the proper
processes set out in the Rules of the Courts.
Urgency
[15]
Mr
Tsangirakis
submitted
in court
and
in
his heads of argument that the
application
of
the
IDC
on
an
urgent
basis
did
not
satisfy
the
requirements
of R6(12)
(a)
and
(b)
[3]
on
the
following
bases:
(i)
it
failed
to
disclose
when
the
applicant
first
received
the
sequestration
application;(ii)
it
failed
to give an
explanation
for
the
entire
period
that
l
apsed
since
the
applicant
received
the
sequestration
application;
(ii
i
)
it failed
to
seriously
grapple
with
the
reasons
for urgency
in such manner as envisaged
by Rule
6(12) (a) and (b);and (iv)
[4]
it failed
to deal or
disclose the resolution by BFT to apply for the urgent sequestration
of
BFT.
[16]
Both Messers Tsangirakis and Grabler contended that the IDC's
application was also not
bona
fide
because
in its own words the sole reason for its intervention was for
altruistic reasons i.e. to save BFT from insolvency. That,
they
argued, is not a
bona
fide
defence in our Jaw.
More particularly because the IDC has not denied the first
respondent's claim which is what triggered the main
application for
sequestration in the first place and even undertook to pay such
claim. The application for sequestration was also
supported by the
most substantial creditor Unigro as indicated in the replying
affidavit filed on 14 April by Afgri.
[17]
The respondents made the point that the application
is not
urgent, if anything the urgency was self-created.
[5]
In
her founding affidavit, Ms N Mthembu, representing the JDC, stated
that the IDC became aware of the provisional sequestration
order
against BFT on 3 March. From that moment, considering the interests
at stake, it set
the
wheels
in
motion
to
resolve
the
matter
with
all
relevant
stakeholders.
Discussions
and
negotiations
between
the
parties
included
payment
of
all
the
debts of
BFT, restructuring it and putting relevant measurements in place to
save BFT
from
insolvency
were
put
on
the table.
There were
volumes of receipts/invoices
that the
IDC had to
go through
to
establish
the
correctness
of BFT's
debts. The veracity
of some of
the invoices
is
questionable
and
need to
be
investigated.
Those
negotiations
failed.
And
by that
time,
13 April,
the
IDC had to
approach
this
court to
seek
an
intervention.
There was
strenuous
opposition to such application. But once the postponement was granted
the IDC
was
then in a position to instruct its attorneys
of record
to formally
intervene
and
oppose
the
main
sequestration
application.
Further
legal
advice
was
sought
on the
matter. Counsel was briefed and thus this application.
[18]
Ms
Dippenaar, for the applicant submitted that
by
i
ts
very
nature
and the prevailing
circumstances
set
out
by
Ms
Mthembu
in the
founding
affidavit,
the
application was
urgent. She
submitted further that these
protracted
negotiations between the
parties in
an attempt to settle the matter between
BFT and the
first
respondent
and other creditors, failed a few days before the return day, 14
March 2016 as Ms Mthembu stated.
She
argued that the
respondents
were
not
prejudiced
in
any
manner
by
this
application
to
intervene
nor
could
they
show
any
likelihood of prejudice. To the contrary, she argued, BFT is largely
funded by the
IDC
in
line with
its
mandate
in terms
of
the
Industrial
Development
Corporation Act, 22 of 1940 as amended.
[6]
It serves as a vehicle for employment
and
economic
development and benefit
to many
families in
the area of
its
location.
Those families would benefit more from
its
continued
existence
than its
shutting
down. She maintained that the application was
launched
under
R
6(14)
of
the uniform
rules
court.
Not
Rule 6(12)
(a) and (b)
under which there must be
strict
compliance with the requirements of the rule.
[19]
From
the
background
set
out
in
paragraphs
[17]
and
[18] of
this judgment,
it
is evident
that
the
IDC did
not drag
its feet
before
it
approached
this
Court
on
an urgent
basis. In my view, it approached
its
statutory duty to safe guard the rights and
interests
of the
beneficiaries
of BFT
in'
a
responsible
manner
by seeking
to
resolve
the
problem
through
negotiations
in order
to
settle
the
dispute
with
the
first
respondent
and
major
creditors
including
Afgri.
When such
negotiations
collapsed
and failed, it approached this Court for relief in
terms of
Rule 12,
on
the return
day
(14
March)
on which
the
provisional
sequestration
order would
have been
confirmed.
Had it not
approached this Court on that day, its efforts 'after the horse had
already bolted' would
have been
worthless.
It is trite
that, the fact that, a
judgment
or
final order
has
already
been issued
is
not
a
bar
to
l
eave
to
intervene.
[7]
What is
however
practically
more
arduous and
expensive
for
any
party,
particularly
,an
entity such
as
the
IDC,
which
operates on a budget
dependent
on tax payers' contributions
in the
fiscals' of this country; the process to reverse what the
Court has
already
made a
final
order
would
have
disastrous financial
consequences.
[20]
The
attitude
of
the
respondents
that
the
application
for
intervention
should
be
dismissed
on the
basis that,
apart from
that
it
was
not
urgent but self-created,
it
did not
disclose a
bona
fide
defence
is not
justified.
In
Nelson
Mandela
Metropolitan
Municipality
[8]
the
court stated the law
with regard
to urgent
applications succinctly as
follows:
'It
is trite that applicants
in urgent
applications
must give
proper consideration to the
degree of
urgency and tailor the notice of motion to that degree of urgency.
[9]
It is also
true that when courts
are
enjoined
by
Rule (6) 12 to deal with
urgent
applications
in
accordance
with procedures that follow the Rules as far as possible, this
involves the exercise a
judicial
discretion by a Court
'concerning
which deviations it
will
tolerate in
a
specific
case''
[10]
[21]
The court continued at para [38]
[11]
:
'...It
is not in every case in which the applicant may have departed from
the Rules to an unwarranted extent that the appropriate
remedy is the
dismissal of the application. Each case depends on its special facts
and circumstances. This is explicitly recognised
by
Kroon J
in
the
Ca/edon Street Restaurants
CC case where he
held-looking at the issue from another perspective, as it were -that
the approach should rather be that there are
times where, by way of
non-suiting an applicant, the point must clearly be made that the
Rules should be obeyed and that the interest
of the other party and
his lawyers should be accorded proper respect, and the matter must be
looked at to consider whether the
case is such a time or not.'
[22]
I am in agreement with the
dicta
above and am on that
basis of the view that the
argument
of
the
respondents on
the point
of urgency
is
based
on
a
degree
of
inflexible
formalism
that,
Kroon
J
[12]
,did
not
intend
to
suggest
should
be
the
norm
in all
cases
irrespective
of the
circumstances.
Rules
are,
in any
event,
not an end
to
in themselves to be observed for their own sake. They are provided to
ensure the inexpensive and expeditious completion of litigation
before the courts. Naturally it is for the Court to decide whether
the matter is really one of urgency and whether the circumstances
warrant a departure from the normal procedures. To hold otherwise
would, make the Court captive of the Rules. Whereas the Rules
should
exist for the Court, not the Court for the Rules. Rules are designed
to ensure fair hearing and should be interpreted to
in such a way as
to advance
and
not reduce the scope of the entrenched 'fair trial right' contained
in s34 of the Constitution
.
[13]
[23]
Having said that, I am satisfied that the application of the JDC to
intervene is urgent.
Application
for Intervention.
[24]
Coming to the
application
before me,
it is trite that
in an
application
to
intervene
the
question
is
whether,
on
the
applicant's
version,
it
is
entitled
to
join
in
the
proceedings as intended
in Rule 12
of the Uniform Rules of Court. To satisfy this
requirement,
an
applicant
must
furnish
prima
facie
proof
of
his
or
her
interest
(and
hence
his
or
her
right
to
intervene)
but
he
or
she
need
not
go
further
to satisfy
the
Court
that he
or
she
will
succeed at
the
end
of
the
day.
Stated
differently,
it
is
sufficient
for the
party
seeking
intervention
to
rely on
allegations
which, if
they
can
be
proved
in
the
main
action,
would
entitle him
or
her
to
succeed.
This
is the
criterion
which
constitutes
a
bona
fide
defence
as
required by
a defendant who wishes
to stave
off an
application
for summary
judgment
in
terms
of
Rule
32
of
the
Supreme
Court
Rules.
[14]
An
applicant
must
satisfy
the
Court
too
that
his
or
her
application
is
made seriously
and
is
not
frivolous.
[15]
Furthermore
'When,
as in this matter, the applicant bases
i
ts
claim to intervene on a direct and substantial interest
in
the
subject
matter
of
the
dispute,
the
Court
has
no
discretion:
it
must
allow it to intervene because it
should not
proceed in
the absence
of parties having
such
legally
recognised
interests.'
[16]
[25]
Both counsel for the respondents submitted that the extension of the
return date in order to intervene in the proceedings;
and even the
setting aside of the provisional sequestration order, which the IDC
is seeking through this urgent application will
not be to the benefit
of all the creditors. They submitted further, that the IDC has
understated the trade creditors and thus not
taken the court into its
confidence regarding the actual debts of BFT.
[26]
They
argued
that
BFT
has in any event
committed
an act of
insolvency
in terms of
s8 (g)
of
the
Insolvency
Act
[17]
Fourie, one of
the
trustees of BFT,
and
authorised
to
act
on
behalf
of
BFT,
sent
a
letter
to
all
creditors
including
the
respondents
and
Unigro
in
which he
gave
notice
of
BFT's
inability
to
pay
its
debts.
Nothing could change such state of affairs.
[27]
Ms Dippenaar, for the IDC, submitted that BFT has not committed an
act of insolvency in terms of s8 (g) as the respondents
argued
because at the time that the urgent application for sequestration was
brought before the court there was no 'debt owed and
due.' This, she
based on what the IDC believes were inaccuracies in the invoices
which the first respondent submitted to BFT to
trigger off the
alleged act of insolvency. The JDC could only prove such inaccuracies
and that there was no debt owing to the first
respondent during the
main sequestration application where all issues will be ventilated.
Not at this stage and during this application
for intervention as the
respondents were doing.
[28]
She submitted from the onset and throughout these proceedings with
reliance on precedent setting cases (which contention I
agree with},
that it was contrary to the nature of these proceedings and
even irregular for the respondents to refer
ad
nauseam
or even to the slightest extent to the merits of the main
sequestration application. She submitted that (a) the application
for intervention was urgent and that (b) the IDC was entitled
to intervene in the main application for sequestration because
(i) it
was a substantial creditor and had direct interests in the matter
(ii) if the final sequestration order was granted, the
interests of
the creditors including itself would be adversely affected. Whereas
if BFT was refinanced and restructured the interest
of the body of
creditors of BFT will be best served. There would be no undue
preference which comes into play as a result of the
main application
and the provisional sequestration order.
The
Law
.
[29]
Rule 12 provides:
'12
Intervention of Persons as Plaintiffs or Defendants
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at
any stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make
such order,
including any order as to costs, and give such directions as to
further procedure in the action as to it may seem meet.'
[30]
Rule
6
(14)
provides
that
inter
alia
Rule
12
shall
mutatis
mutandis
apply
to
all
applications.
[18]
Application
of the law to the facts
[31]
The IDC claims direct and substantial interest in the subject matter;
a direct interest in the matter based on the fact that
it is one of
the major creditors of BFT as already conceded by the respondents
when it accepted unequivocally that the IDC has
locus standi
in these proceedings. The IDC declared unreservedly that apart
from its own interests there was more at stake, i.e. the interests
of
families who depended on BFT for their livelihood. This meant, if BFT
was finally declared insolvent, without allowing the IDC
to intervene
at this stage and place all the relevant information and or evidence
before the court in the main sequestration application
, such order
will be to the detriment of those beneficiaries. It also maintains
that once it has paid off BFT's debts, BFT will
have no debts and
thus not actually insolvent. In addition, the insolvency act relied
upon by the first respondent is not based
on a true reflection of the
Insolvency Act (s8 (g)) in that the amount BFT is alleged to owe to
the first respondent was not due
and payable at the time the
provisional sequestration order was sought and granted as the
Insolvency Act prescribes.
[32]
I am
inclined to
agree
with
Ms
Dippenaar
as
a
matter
of
law
and
on
the
facts
presented
that
the
application
should
be
upheld.
Once
all the
parties
were
ad
idem
that
the
IDC
has
substantial
and
direct
interest
in
the
subject
matter,
the
substratum
of
the
opposition of
the
respondents fell away. Under
the
circumstances
and
in
line
with
authorities
cited
throughout
this
judgment,
and
because
this
Court
should
not
proceed
in
the
absence
of
parties
having
such
legally
recognised
interests,
this Court
has
no
discretion
but to
allow the
IDC to
intervene.
[19]
It
follows
that,
I am
satisfied that the
IDC has
made out a clear case
for its
intervention in
the main
application for sequestration.
Costs.
[33]
The issue of costs. In sequestration proceedings the practice
is to order costs to be costs in the sequestration. Although
the IDC
initially and in the Notice of Motion sought costs against those
respondents who opposed this application, however Ms Dippenaar,
in
court, wisely so, deemed it appropriate to ask that costs be
costs in the sequestration in the event that the application is
granted
in favour of the IDC. Both Mr Grabler and Tsangirakis argued
that the IDC should bear the costs on the basis that this application
is not urgent and should be dismissed followed by the general rule
applicable that costs follow the event.
[34]
Although the general rule is that costs follow the event, equally so,
the decision to grant costs or not fall within the discretion
of the
court. As alluded to earlier on, in proceedings of this nature,
generally, costs are either reserved for later determination
or
are appropriately so ordered to be costs in the sequestration.
I
deem
it
appropriate,
and in
line
with
authoritative decisions
[20]
in
this
regard,
to
make
the latter order.
[35]
In the result, the following order is granted.
ORDER
'1.
The applicant's/intervening party's failure to adhere to the Uniform
Rules of Court relating to time periods and service is
condoned.
2.
The applicant/intervening party is granted leave to intervene in the
main proceedings under Case Number
971/2016 as the fourth respondent.
3.
The applicant/intervening party is granted leave to file a
supplementary affidavit in the main
application within 15 (fifteen)
days from the date of this order.
4.
The provisional sequestration order granted on 3 March 2016 and
extended to 31 March
2016 and 5 May 2016 is further extended to 9
June 2016 in order for the applicant to act in line with paragraphs 2
and 3 above.
5.
The costs of this application to be costs in the main application.'
______________________
B.C.
MOCUMIE, J
Counsel
for the applicant: Adv
E. F. Dippenaar SC
On
instructions of:
Cliff Dekker Hofmeyr INC
C/o
Symington & De Kok
Bloemfontein
Counsel
for the 1st respondent:
Adv T. S. Tsangarakis
On
instructions of:
Honey Attorneys
Northridge Mall
Kenneth Kaunda Road
Bloemfontein
Counsel
for the sth respondent:
Adv S Grobelaar
On
instructions of:
Strydom & Bredenkamp ING
77 Kellner Street
Westdene
Bloemfontein32
[1]
Registration number
1995/009996/08.
[2]
Civil Proceedings Evidence Act 25 of 1965.
[3]
Rule
6(12)(a)
and (b) provides:
'(a)
In urgent
applications
the court
or
a
judge
may
dispense
with
the forms
and
service
provided
for in these
Rules and
may dispose of
such
matter at
such time
and
place and in
such
manner and in accordance
with
such
procedure
(which shall
as
far
as practicable
be
in
terms
of
these
Rules)
as
to
it seems meet.
(b)
In every affidavit or petition
filed in support of any
application
under paragraph
(a) of this
subrule,
the applicant
shall
set
forth
explicitly
the
circumstances which
he
avers
render
the
matter
urgent
and
the reasons why he claims that he could not
be afforded substantial redress
at
a
hearing in
due course.'
[4]
Rule 6(12).
[5]
See
Schweizer
Reneke
V/eis
Mkpy
(Edms) v Die Minister van Landbou en Andere
1971
(1) PH F11 (T).
at F11-12.
[6]
As set out in the IDC's website,http/www.idc.co.za,the
IDC is
mandated to develop domestic industrial capacity, specifically in
manufactured goods to mitigate the disruption of trade
between
Europe and South
Africa
...The
mandate was expanded to include investment in the rest of Africa
...which
includes
mining,
agriculture,
manufacturing, tourism and telecommunication ...The IDC remains
committed to playing a major role in facilitating
job creation
through industrialisation
...'
[7]
United Watch & Diamond Co (Ply) Ltd v Disa Hotels Ltd 1972(4) SA
409 (C) at 416 B-C. See also
Minister
of Local Government and Land Tenure and another v Sizwe Development
and others: In re Sizwe Development v Flagstaff Municipality1
991
(1) SA 677
(Tk) at 678H-679D.
[8]
Nelson
Mandela Metropolitan Municipality and Others v Greyvenouw CC and
Others
2004 (2) SA 81 (SE)
[9]
Ibid at
para [37]
[10]
Ibid.
[11]
Ibid.
[12]
In Caledon Street Restaurants CC v D' Aviera
[1988] JOL 1832
(SE).
[13]
Nelson
Mandela Metropolitan Municipality and Others v Greyvenouw
CC
and
Others above.
[14]
Ex
Parle
Moosa in re Hassim
v
Harrop-Allin
1974
(4) SA 412
(T) at 416G-H.
[15]
Minister of Local Government and Land Tenure and Another v Sizwe
Development and Others: in re Sizwe Development v Flagstaff
Municipality 1991(1) SA 677 (Tk) at 6781-6796. See also
Van Winsen, Cilliers and Loots The Civil Practice of the
Supreme
Court of South Africa (4th ed edited by Dendy, Cape Town, Juta &
Co Ltd: 1997 at 179.)
[16]
Nelson
Mandela
Metropolitan
Municipality
and
Others v Greyvenouw
CC
and
Others
above
at 89A-C and cases cited therein.
[17]
Section
8
(g)
of the
Insolvency
Act
24
of
1936
provides:
'A debtor
commits
an
act of
insolvency
if he
gives
notice in writing to any one of his creditors that he is unable to
pay any of his debts.'
[18]
See
Shapiro
v South Africa Recording Rights Association
(Ga/eta
intervening)
2008
(4) SA 145
(W) at para [10].
[19]
Nelson Mandela Metropolitan Municipality and Others above and cases
cited therein.
[20]
Vitorakis
v
Wolf
1973
(3) SA
928
(W) at
933E.See
also
Ex
Parte
M
oosa
in
re
H
ass
i
m
v
Harrop-Allin
1974
(4) TPD.