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[2016] ZAGPPHC 590
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Gatama v Chrgodi (42929/16) [2016] ZAGPPHC 590 (15 July 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO: 42929/16
DATE:
15 JULY 2016
DAVID
G
GATAMA
...........................................................................................................
APPLICANT
And
HUDDLESTONE
T
CHRGODI
....................................................................................
RESPONDENT
JUDGEMENT
1.
This matter was brought to court as one
of urgency. This is a spoliation application in which the applicants
seek an order to restore
the applicants’ access to business
premises of the second and third respondents situated at Menlyn
Square Office Park, Menlyn,
Pretoria, as well as the restoration of
facilities to the premises. The relief is sought together with
interim relief, prohibiting
the first respondent from interfering
with the duties of the applicants in relation to the second and third
respondents, pending
appeal of an order dated 27 June 2016. The
applicants are denied access to the premises as a direct result of a
previous court
order handed down by Kollapen J. on 27 June 2016. In
the application before the court on 27 June 2016, fraudulent activity
was
alleged and amongst the orders of that Court, is that the CIPC
reverse all amendments in the companies register; reinstate the first
respondent as a director of the third respondent and remove the
second applicant as a director of the third respondent. On the
strength of the court order of 27 June 2016, the applicants were
denied access to the premises and facilities which form the subject
matter of this application. The applicants have since delivered an
application for leave to appeal the previous court order and
written
reasons for judgment were requested on 7 July 2016.
2. It was argued on behalf of the
applicants that the application for leave to appeal suspends the
operation of the order pending
the appeal. Should the applicants be
denied access to the premises and facilities, they are effectively
denied participation in
the second and third respondents to their own
detriment and to the detriment of the second and third respondents.
The applicants’
concern relates to the contractual obligations
of the second respondent towards the Municipality and the risk of
losing its contract
should it be found in breach thereof. The
argument is that the applicants are now, in effect, as a result of
the court order, disturbed
in there peaceful possession and
unfettered access to the premises and office equipment. The order
they seek from this court is
to restore the status quo ante and not
to allow the first respondent “to take the law into his own
hands”.
The
application is opposed. Counsel for the respondent raised the issue
of jurisdiction and urgency. I find it necessary to deal
only with
the issue of urgency.
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
requires the applicant to set out explicitly the circumstances which
render the matter urgent. Section 5.2 requires
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
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.
4.
The issue for determination is whether
the matter is urgent; whether the spoliation application should
succeed and whether the interim
interdict should be granted pending
the appeal. The crux of this matter is that issues related to
fraudulent activity have been
raised. In the order of 27 June 2016,
CIPC is to furnish the first respondent with a report on the outcome
of its internal inquiry
as soon as possible after conclusion of such
enquiry.
5.
The filing of a notice of appeal
suspends the operation of a court order. The main concern of the
applicants is the continued functioning
of the second respondent and
the rendering of its services to its clients and contractual
obligations. In paragraph 11.9 of his
founding affidavit the first
applicant states that:
...in
the event that the second applicant and I do not oversee and
supervise this process it could lead to the second respondent
being
in breach of contract and lead to cancellation of the contract.
This
concern is the main reason for the applicants approaching this court
on an urgent basis.
The
first respondent denies that the operations of the second respondent
will be in jeopardy if the applicants are denied access
to the second
respondent. In his answering affidavit the first respondent states at
paragraph 47 thereof that:
The
applicants are not needed in the least to meet the entities legal
obligations. To the contrary, their presence will further
jeopardize
the wellbeing of the entities.
He
states further that the entities are back in order and that all
employees are back at work.
The
appeal process will probably run its course. There are allegations of
fraud and in terms of the court order of 27 June 2016,
“The
First Respondent is ordered to furnish the applicant with a report of
the outcome of its internal inquiry as soon as
is reasonably possible
after the conclusion of such an inquiry”. On the issue of
urgency in the bringing of this application,
it appears to me that
the concerns of the applicants regarding the smooth running and
continued functioning of the second respondent
is misplaced and
unjustified. I am of the view that the facts and circumstances set
out in the Applicant’s affidavit do not
constitute sufficient
urgency for the application to be brought as an urgent application.
There is no urgency whatsoever.
Order:
1.
The matter is struck from the roll.
2.
The applicants shall pay the
respondents’ party and party costs in the application.
HONOURABLE
JUSTICE SWARTZ (AJ)