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[2016] ZAGPPHC 591
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Maduna and Another v Maduna and Others (54312/16) [2016] ZAGPPHC 591 (13 July 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO: 54312/16
DATE:
13 JULY 2016
DR
PENUELL MPAPA MADUNA &
ANOTHER
..........................................................
APPLICANT
And
NOMPUMELELO
MADUNA &
OTHERS
.................................................................
RESPONDENT
JUDGEMENT
This was an urgent application
heard by me on 12 July 2016. The first and second applicants sought
an urgent interim interdict against
the first, fifth and seventh
respondents. The applicants sought an order restraining the adoption
of a resolution by the majority
directors of the fifth respondent and
the declaration and distribution of a dividend in regard to
shareholding of the fifth respondent
to which the applicants are
rightful/beneficial owners. The matter was brought as one of urgency
as it was submitted on behalf
of the applicants that the first and
seventh respondents threatened adoption of the Resolution on 14 July
2016. This will result
in the declaration and distribution of a
dividend to the Nompumelelo Maduna Family Trust in an amount of R10
837 500.00 and to
the eighth respondent in an amount of R7 000 000.00
on 14 July 2016, unless an interim interdict is granted. No relief is
sought
against the fourth, sixth and ninth to eleventh respondents as
they had been cited purely as interested parties. The interim
interdict
being sought would have the effect that the first and
seventh respondents would be interdicted from withdrawing money from
the
fifth respondents bank account held with the twelfth respondent.
The application is opposed.
Urgent applications must be
brought in accordance with Rule 6 and the guidelines in cases such as
Republikeinse Publikasies v Afrikaanse
Pers Publikasies.1972 (1) SA
773 (A) at 782 A-G, Luna Meubel Vervaardigers v Makin & another
1977 (4) SA 135
(W) and Sikwe v SA Mutual Fire & General
Insurance
1977 (3) SA 438
(W) at 440 G- 441 A. The requirements for
urgent applications are dealt with in Chapter 13.24 of this court’s
Practice Manual.
Section 3.4 require the applicant to set out
explicitly the circumstances which render the matter urgent. Section
5.2 require that
deviation from the time period prescribed by the
Rules of Court must be strictly commensurate with the urgency of the
matter as
set out in the founding papers. Section 6 provide as
follows:
6.1
If the facts and circumstances set out
in the Applicant’s affidavits do not:
6.1.1
constitute sufficient urgency for the
application to be brought as an urgent application; and/or
6.1.2
justify the abrogation or curtailment of
the time periods referred to in Rule 6(5); and/or
6.1.3
justify the failure to serve the
application as required in Rule 4, the Court will decline to grant an
order for the enrollment
of the application as an urgent application
and/or for the dispensing of the forms and services provided for in
the Rules. Save
for a possible adverse costs order against the
Applicant, the Court will make no order on the application.
6.2
The aforesaid requirements will be
strictly enforced by the presiding Judge.
Annexure
“A” to Chapter 13.24, being the “Memorandum to
Practitioners Re: Procedure in the Pretoria Urgent Motion
Court”
clearly stipulate the practice directive in the Court, governing
urgent court matters. The specific purpose of the
Memorandum was to
inform practitioners how Rule 6 (12) must be applied and the manner
in which the urgent court was managed to
ensure an orderly and
dignified adjudication of applications in this court. Papers must be
filed by 12:00 the previous Thursday,
ready for roll call at 10:00
the following Tuesday, unless the matter is so urgent that relief
must be granted sooner. Paragraph
[4] (8) of the Memorandum
specifically directs that:
If
an applicant anticipates that the application will be opposed it is
essential that the respondent and the applicant be allowed
reasonable
times for the filing of answering and replying affidavits before the
roll call closes at 12:00 on Thursday. If these
affidavits are not
able to be filed in time and the matter cannot be heard at the time
indicated in the notice of motion the procedure
is abused
Paragraph [4](10) of the Memorandum
stipulates as follows:
No
matter involving more than 500 pages will be considered by the judge
in the urgent court (subject to the remaining three degrees
of
ascending urgency) unless the papers are delivered to the judge who
will hear the matter at least 48 hours before the time of
the hearing
in the notice of motion.
Papers in this matter were filed
with the Registrar on Friday, 8 July 2016, not before 12:00 on
Thursday, 7 July 2016. Over-and-above
this, the papers filed consist
of 533 pages, apart from an additional bundle of documents consisting
of a further 157 pages. This
voluminous bundle of documents were
brought to my attention on Monday, 11 July 2016. Counsel for the
applicants in addition thereto,
at approximately 16:00 on Monday, 11
July 2016, forwarded to my Registrar, via email, written heads of
argument consisting of 84
pages.
At the hearing of the
application, Mr Nigrini who appeared for the applicants handed up an
affidavit deposed to by the applicant’s
attorney, one Mr.
Andries Johannes Hansen, dated 11 July 2016, which purports to
explain the exceptional circumstances for the
non-compliance with the
Rules, Practice Directives and Memorandum of this court, saying
amongst others, as follows:
Thousands of documents had to be
trawled through in preparation of the founding papers which were
limited to the bare minimum considering
the ambit and documentation
involved in the entire Sasol BEE transaction.
I confirm that we worked in
excess of 18 hours a day since Monday 4 July 2016 to finalize the
founding papers.
I confirm that we were only able
to consult with the Second Applicant on Thursday evening, the 5
th
of July 2016.
I confirm that the Founding
Affidavit and the Annexures thereto were served as soon as
practically possible after finalization thereof.
All available time was used in an
attempt to file the founding papers by Thursday at 12:00 in
accordance with the practice directives
but the task was so huge that
it proved impossible to achieve with our best endeavors. Therefore
exceptional circumstances exist
as the divided
(sic)
will be declared before the applicant
could comply with the practice directive.
There was a delay in obtaining
documents, some of which are outstanding to date hereof and the
papers had to be finalized without
reference thereto, among others
the documents relating to the DBJ Trust.
The route cause of the urgency in
this matter is caused by the first and seventh respondents instance
(sic)
to
declare and distribute a dividend this week which allowed
insufficient time from the date on which the Notice
was
filed to comply fully with the practice
directives and therefore exceptional circumstances excist
fsicj.
It appears to me that this
further affidavit was filed because the paragraphs dealing with
urgency in the Founding Affidavit of
the first applicant explains
very little. In the Founding Affidavit of Dr Penuell Mpapa Maduna,
paragraphs 80 to 149 deal with
the issue of urgency.
These
paragraphs fail to disclose why the matter has now become so urgent;
that the matter is so urgent that it could be served
on Friday, 8
July 2016, for hearing on 12 July, especially having regard to the
sheer volume of papers. At paragraph 93 of his
affidavit, he says
that on 30 June 2016 he received Notice by directors to consider and
pass a resolution, to approve payment of
a dividend to shareholders.
According to him the urgency was created by the sending of the
Notice. At paragraph 94 he says, Further,
by refusing to agree to
time limits for the filing of affidavits so that the application
could be brought within a reasonable period
of time and that the
normal time limits for the filing of affidavits be applied the First
and Seventh Respondents acted unreasonable,
created urgency by
leaving the Applicants with no alternative but to approach the Above
Honourable Court on an urgent basis. He
then explains in great detail
that the Share Register is wrong and stands to be rectified. Further
detail is set out about the
second applicant having been deceived
into the business relationship and her having been involved in an
abusive marriage relationship.
Reference is also made to WhattsApp
messages exchanged between the first applicant and one Mr. Peter
Wingrove as from 24 March
2016, onwards. All these paragraphs
relating to urgency fails to explain sufficiently why the matter is
so urgent and in particular,
why the papers had not been served in
time. In my view, the further affidavit by Hansen, discussed above,
is an attempt to explain
the required exceptional circumstances. It
is evident that the urgency, if any, was self-created. There is no
explanation why the
application was not brought at an earlier stage.
The first respondent was aware of the fact that the fifth respondent
would receive
funds for distribution to its shareholders at least by
24 March 2016, when regard is had to the WhattsApp exchanges; his
contention
to being the owner of 51% shares in the fifth respondent
as early as October 2015 and his threat to launch an urgent
application
by 13 June 2016.
Having regard to all of the
above, I am in agreement with the submissions of counsel who appeared
for the respondents, Mr. Basslian
SC, that the applicants had more
than sufficient time to bring the application in the normal course,
alternatively, within a time
period allowing the respondents’
legal representatives sufficient time to digest the 690 pages and
file answering affidavits.
The applicants simply disregard Rule 6(12)
and the Court’s requirements in relation to urgent
applications. This is an abuse
of the Court process. Also the second
applicant simply has not shown any urgency at all.
I am not persuaded by the
argument that exceptional circumstances exist which allows the
applicants to abuse the processes of this
Court. The applicants knew
or ought to have known that the application would be opposed. The
respondents have not been afforded
an opportunity to file answering
affidavits. The Memorandum to Practitioners in no uncertain terms
spells out that if an application
is not filed by 12:00 on the
previous Thursday (subject to the remaining degree of ascending
urgency in Luna Meubels Vervaardigers)
the application will not be
heard and will be struck off the roll. The object of timeous filing
of the papers is to enable the
Court to prepare and adjudicate upon
the matter expeditiously. It cannot
be
said that the papers had been filed timeously “to enable the
court to prepare and adjudicate upon the matter timeously”.
The
matter is accordingly struck off the roll.
The respondents’ counsel
argued for costs on the attorney and client scale including the costs
of Senior Counsel. I expressed
my displeasure at the manner in which
this matter was being dealt with by the applicants and the punitive
costs order is justified.
ORDER:
1.
The matter is struck off the roll;
2.
The first and second applicants are ordered to pay the respondents’
costs on the attorney and client scale, including the
costs of Senior
Counsel.
HONOURABLE
JUSTICE SWARTZ (AJ)