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[2016] ZAGPPHC 517
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Smyth and Others v Investec Bank Ltd and Another; In re: Standard Bank Nominees (TVL) (Pty) Ltd and Others v Bailey and Others (19269/2011, 19269/2011) [2016] ZAGPPHC 517 (23 June 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 19269/2011
DATE:
23 JUNE 2016
In
the matter between:
DJ.
SMYTH
..........................................................................................................................
1st
Applicant
and
...................................................................................................................
6
others2nd-7th Applicant
And
INVESTEC
BANK
LTD
..................................................................................................
1st
Respondent
RANDGOLD
& EXPLORATION CO
LTD
................................................................
2nd
Respondent
CASE
NO: 19269/2011
In
the intervention applications of:
STANDARD
BANK NOMINEES (TVL) PTY LTD
SHAP-ARON
NOMINEES (PTY) LTD
BNS
NOMINEES (PTY)LTD
In
the intervention applications of:
W.J.S.
BAILEY
....................................................................................................................
and
39 others
JUDGMENT
RABIE, J
1.
This is an application for leave to
appeal the order handed down by me on 17 September 2015. Originally,
in what can be referred
to as the main application, seven applicants
approached the court on motion for relief in terms of section 252(1)
of the Companies
Act, Act 61 of 1973. The first and second
respondents objected to the locus standi of the seven applicants on
the basis that they
are not members of the second respondent.
Subsequent thereto three nominee shareholders and forty beneficial
owners of shares in
the second respondent instituted separate
applications to intervene in the main application. The locus standi
of these applicants
was also disputed by the respondents.
2.
In an attempt to create some form of
order in respect of the litigation between the respective parties,
which had increased, the
parties formally agreed as to how the
matters should proceed. Generally the agreement was that the issue of
locus standi of the
applicants and certain ancillary questions should
be separated and adjudicated by me before the main application
would proceed
on the merits thereof. That was done and culminated in
my aforesaid order. The present application is against that order.
3.
The application for leave to appeal was
brought by the seven main applicants as well as what became known
during the hearing as
the "27 intervening applicants" or
the ”27 beneficial owners” and also by what became known
as the "7
own name applicants”.
4.
The specific orders appealed against are
those in paragraphs 1 and 2 of the order (in respect of the 7 main
applicants), paragraphs
3 and 4 of the order (in respect of the 27
intervening applicants) and paragraph 8 of the order (in respect of
the 7 own name applicants).
5.
The applicants based their present
application on a number of grounds set out in a Notice for
Application for Leave to Appeal. The
grounds relate to many of the
findings made by me.
6.
in my view, and mainly as a result of
the decision i have arrived at, it is not necessary or even proper
for me to discuss each
of these grounds and the merits thereof. The
main issues, and grounds relied upon, relate to the interpretation of
South African
legislation as well as those in comparable
jurisdictions as well as the interpretation of certain of the Uniform
Rules of Court,
ail against the backdrop of certain constitutional
provisions. The issues this court had to decide are involved and
intricate issues
of law and it would, in my view, generally be wrong
to suggest that there is no reasonable prospect that another Court
might find
differently, especially since these issues have not
authoritatively been dealt with by our courts - at least not to the
extent
to which they have been argued before me.
7.
I have considered all the submissions
made on behalf of the respective parties and in my view the appeal
would have a reasonable
prospect of success. I am also satisfied that
the issues are such and the circumstances are such that they merit
the attention
of the Supreme Court of Appeal.
8.
Consequently, the following order is
made:
1.
Leave to appeal to the Supreme Court of
Appeal is granted:
1.1
to the seven main applicants in respect
of paragraphs 1 and 2 of the order;
1.2
to the twenty-seven applicants in
respect of paragraphs 3 and 4 of the order:
1.3
to the own name applicants in respect of
paragraph 8 of the order.
2.
The costs of this application for leave
to appeal shall be costs in the appeal.
C.P. RABIE
JUDGE OF THE HIGH COURT