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[2016] ZAGPPHC 245
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Oelofsen NO and Another; In re: Oelofsen NO and Another v Bamboo Rock 1215 CC and Others (8949/16) [2016] ZAGPPHC 245 (21 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
21/04/2016
Case Number: 8949/16
Not reportable
Not of interest to other
judges
Revised
In the matter between:
JACOBSON MARTHINUS
OELOFSEN N.O FIRST
APPLICANT
LEBOGANG MICHAEL
MOLOTO SECOND
APPLICANT
In re: In the matter
between:
JACOBSON MARTHINUS
OELOFSEN N.O FIRST
APPLICANT
LEBOGANG MICHAEL
MOLOTO SECOND
APPLICANT
and
BAMBOO ROCK 1215
CC FIRST
RESPONDENT
REGISTRAR OF DEEDS,
PRETORIA SECOND
RESPONDENT
MASTER OF THE HIGH COURT,
JOHANNESBURG THIRD
RESPONDENT
Coram:
HUGHES J
JUDGMENT
HUGHES J
[1] This is an opposed
urgent application brought by the first respondent, being the
applicant in this application, to rescind and
set aside an ex parte
order granted by Louw J on 9 February 2016 in terms of Rule 6(12)(c)
of the Uniform Rules of Court. The first
respondent further seeks a
cost order on an attorney and client scale
de bonis propriis
such
costs to include the employment of two counsel one of which being
senior counsel.
[2] For easy reference
the parties will be referred as cited in this application as appears
above. Consequently, the first respondent,
Bamboo Rock 1215 CC
(Bamboo Rock), is the applicant, though cited as the first respondent
and the applicants are the respondent's
in the application.
[3] The applicants are
joint provisional liquidators of the insolvent estate, Tradewell
Investments (Pty) Ltd (Tradewell). About
26 days before the
liquidation of Tradewell four immovable properties were transferred
from Tradewell estate to Bamboo Rock. This
was the catalyst of the
liquidator's
ex parte
application who sought a
caveat
be
registered over all four properties and instituted an action to set
aside the said dispositions.
[4] It is contended by
the liquidators that no exchange of funds took place for the
disposition of the properties. However, the
first respondent states
that the disposition was conducted in terms of a contract that was
concluded between it and Tradewell even
though no bonds were
registered over the properties.
[5] The first respondent
submits that on 28 October 2013 it sold two properties to Tradewell
for R7000 000.00 (seven million) excluding
vat. Tradewell developed a
Sectional Title Complex known as River View on these properties
purchased. According to the sale agreement,
between the first
respondent and Tradewell, provision was made for the purchase price
to be paid by means of the transfer of selected
units, in River View,
to the seller, the first respondent.
[6] The first respondent
submits that to the best of its knowledge this sale agreement
was transmitted to the first applicant
on 27 January 2016 by the
attorneys responsible for the transfer of the properties, Van Den
Berg Attorneys. That being the case
the first respondent contends
that the sale agreement was in the hands of the applicant's when the
ex parte order was sought. It
is further contended, that the transfer
of the units, in terms of the sale agreement, took place on 6
November 2015.
[7] It is common cause
that at the time that the applicant's launched their ex parte
application they were well aware of the sale
agreement and its
contents.
[8] The first respondent
argues that when the ex parte application was heard, the applicant's
failed to disclose the contents of
the sale agreement to the
presiding officer. On the other hand the applicant's argue that they
did not attach the sale agreement
to their ex parte application
papers as the contents thereof were to be disputed in an action they
intended to launch. In their
defence they submitted that they did in
fact make mention of the
'claim'
by one of the directors of
Tradewell, Paul Moolman, that there had been a purchase of the
immovable properties concerned.
[9] The first respondent
argued that the sale of the immovable property was fashioned in the
form of an instalment payment or a
delayed payment. It also had to be
dealt with in terms of the
Alienation of Land Act 68 of 1981
and was
to be adjudicated in line with the liquidator's right of election in
relation to the sale agreement under the
Alienation of Land Act where
the company in liquidation was the seller.
[10] Another argument
advanced by the first respondent is that the sectional title register
was only opened on 6 November 2015.
Consequently, the units concerned
could only be transferred on 6 November 2015.
[11] On the other hand
the applicants make out a case that there was a 'claim' of a purchase
by Paul Moolman, which resulted in
the transfer alluded to. The
applicant's contend that the transaction would be voidable as this
transaction goes contrary to
sections 29
,
30
and
31
of the
Insolvency
Act 24 of 1936
. In addition the applicant's set out that they were
investigating a possible case of collusion which would have resulted
in the
disposition of the properties concerned and the fact that no
money changed hands in respect of this property transaction.
[12] In addition, the
case of applicants is that the applications needed the application to
be ex parte as there was a likelihood
that the respondent's would
either sell the property or register a bond over the property.
[13] The first respondent
has persisted with the submission that the sale and transfer was in
the ordinary course of business. Further,
when the applicant's
brought their ex parte application they had the duty of
uberrimae
tides
in presenting all the material facts, the terms of the sale
agreement and together with a copy thereof before the court, as these
were essential to consider for the decision to grant or not to grant
the order sought.
[14] There is one crisp
issue before me and I am guided by the dictum in
National Director
of Public Prosecutions v Basson
(2002) 2 All SA 255
at para [21]:
"[21] Where an order
is sought
ex parte
it is well established that the utmost good
faith must be observed. All material facts must be disclosed which
might influence a
court in coming to its decision, and the
withholding or suppression of material facts, by itself, entitles a
court to set aside
an order, even if the non-disclosure or
suppression was not wilful or
ma/a fide (Schlesinger v Schlesinger
1979 (4) SA 342
(W) at 348E - 349B)."
[15] I take cognisance of
the fact that the sale agreement was concluded as far back as 28
October 2013 and I especially take into
account the terms of the
agreement with regards to Price and Payment in paragraph 1 of the
sale agreement.
[16] The aforesaid
paragraph makes provision for either a cash payment on registration
of transfer (para 1.1), or the seller (first
respondent) shall have a
choice of units from the sectional title development River View to
the value of the purchase price (para
1.2) and the Seller (first
respondent) shall take transfer of the units on registration and
simultaneous transfer of the units
(para 1.3).
[17] I also take into
account the submissions as at paragraphs 13, 14, 15 and 16 of the
applicant's founding affidavit which make
mention of the factors
supra. I do not intend to repeat them.
[18] In addition to these
paragraphs is the applicant's reply to the first respondent's
contention that material facts were not
placed before the presiding
officer who heard the
ex parte
application, this the sale
agreement was received by the applicants, that it was
'evident'
that more than the purchase price was paid for sale, in that over
and above the transfer of the units, an amount of R2 703 000.00
was
'allegedly'
paid as 'a
partial payment'.
[19] I am mindful of the
applicant's averments that they do not have uberrimae tides to this
court and that they did not mislead
the presiding officer when they
failed to attach the sale agreement and that they advised the court
of the
'claim'
made by Paul Moolman, a director of Tradewell.
[20] Further, that in
their replying affidavit they allege that the contents of the
agreement were brought to the attention of the
presiding officer and
' disclose (d) the contents thereof to the above Honourable Court,
in my founding affidavit'.
That the contents of the sale
agreement will be in dispute and this was the reason why a copy was
not attached for the ex parte
application.
[21] In dealing with this
matter, I am of the view that the applicants have conceded that they
did not attach the sale agreement
in the ex parte application as the
contents thereof were going to be in dispute in an action to be
instituted and as such was not
provided to the presiding officer at
the ex parte application.
[22] Was it a material
document that the presiding officer required to make an informed
decision in granting of the order that was
made? From the first
applicant's own averments the contract was alluded to in the form of
what Paul Moolman claimed and it was
also stated that the contents of
the agreement were brought to the attention of the presiding officer
at the hearing. What I am
not able to discern from the papers, is the
applicant's disclosure on the papers of the contents of the agreement
in the founding
affidavit as submitted by the applicants in their
replying affidavit, especially so in respect of the manner of the
payment of
the purchase price.
[23] On an examination of
the facts, the date of sale, the terms of the sale agreement,
especially as regards the manner of
the payment of the purchase
price, the date of the opening of the sectional title and the date of
transfer of the units, all these
point towards, to my view, an
ordinary sale agreement in the course of the business of the first
respondent.
[24] The applicants
themselves found it relevant to make a cursory mention of the 'claim'
of the sale agreement and when called
out on the said sale agreement,
in this current application, they saw it fit to put up the sale
agreement which was in their possession
and they saw it fit to advise
the court of its contents.
[25] The aforesaid, to
me, is an indication that the sale agreement and the contents
thereof were recognised by the applicants
as being material. The
applicant's saw it fit to suppress and not disclose this material
information when they moved the ex parte
application. This amounts to
the violation warned of in
Schlesinger
supra when moving an ex
parte application.
[26] The reason advanced
for the suppression of the material fact of the sale agreement, that
is, the contents were to be contested
in an action to be instituted,
is evident that the applicant acted in a mala fide manner in the
non-disclosure. The presiding officer
should have been apprised of
all the facts in order to make an informed decision. As the matter
stands before me the likelihood
is that a different result would have
emerged and the order sought by the applicants might not have been
granted.
[27] In the circumstances
I conclude that in this instance an order setting aside the order
granted by Lauw J on 9 February 2016
is warranted.
[28] The fact that the
applicants are liquidators, owing a duty to the estate that is being
liquidated (Tradewell), does not give
them carte blanch to flaunt the
law and act in a mala fide fashion, all in the name of protecting the
estate. All litigants have
a duty to ensure they litigate in good
faith,
uberrimae tides.
If the applicant's suspected that this
amounted to a dispossession and they had the necessary factors to
back this up and refute
the first respondent case, then what was
wrong with being honest and upfront with the court?
[29] The case raised by
the applicants that this sale transaction did not occur in the normal
course of business and was specifically
engineered with the intention
of preferring one creditor over another does not hold credence. As I
stated above the sale agreement
was concluded in 2013 and para1 of
the sale agreement makes provision for a situation of part payment
and transfer of units
in lieu of payment, this together with the fact
that the transfer took place on the opening of the sectional title
register and
the sale being subject to the
Alienation of Land Act
collectively
, in my view, is an indication that there would have had
to be compliance by the trustee with the insolvents obligations to
the
first respondent.
[30] In the circumstances
set out in the preceding paragraph it cannot be said that a right
even at the least a prime facie right
existed for the grant of the
interim order duly granted by Lauw J.
[31]
Rule 6
(12)(a),(b)
and (c) states:
"(12)
(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.
(c)
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order."
[32] The first respondent
brought this application in terms of 6(12) (c). The applicants take
issue with the fact that the first
respondent had used the wrong rule
to launch this application as the urgency had dissipated once the ex
parte order was granted.
It is to me clear that the reconsideration
alluded to in 6(12)(c) is of that order granted on an urgent basis
and as such there
is nothing in this rule that precluded a party from
having the said order reconsidered in terms of 6(12) which
incidentally deals
with urgent applications. I find no merit in this
argument of the applicants.
[33] Turning to the issue
of costs, the first respondent seeks costs on an attorney and client
scale and de bonis propriis, including
the costs of two counsels, one
being senior counsel. The first respondent seeks the said costs
order, arguing that the applicants
could have obtained an undertaking
from them prior to proceeding to court on an ex parte basis. It
further argues, that the situation
that prevailed at the time that
the order was sought, was not such, that there was an apprehension of
harm which warranted an ex
parte application and the interim
interdict sought.
[34] The general rule is
that the costs are paid by the unsuccessful party. In this instance I
do not see the need to deviate from
the general rule. The
circumstances are such that the estate does not have sufficient funds
to pay for the expense incurred by
opposing this reconsideration. In
addition the conduct of the trustee and liquidators in not disclosing
material facts in the ex
parte application is a course of concern as
it is clear that the applicants were mala fide in their actions. In
the circumstances
it is only appropriate for the applicant's to pay
the costs in their personal capacity.
[35] I am of the view
that the scale of such costs should be the party and party.
[36] Consequently I make
the following order :
[a] The order of Lauw J
of 9 February 2016 is reconsidered and set aside.
[b] The applicant's,
Jacobson Marthinus Oelofsen N.O and Lebogang Michael Moloto N.O, are
ordered to pay the costs de bonis propriis
on a party a party scale
the one paying the other to be absolved.
[c] Such costs are to
include the employment of two counsels, one being senior counsel.
__________________________________
W. Hughes
Judge of the High Court
Gauteng, Pretoria
Delivered : 20 April 2016
For the Applicants: STEYN
ATTORNEYS
Telephone: 012-654 7306
Counsel for applicants:
Adv. Botha SC
For the First Respondent:
CROUSE INC.
Telephone: 012-346 5942
Counsel for the First
Respondent: Adv. Leathern SC