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[2016] ZAGPPHC 656
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Anglo American Platinum Ltd and Others v Pienaar and Others (89567/2014) [2016] ZAGPPHC 656 (29 July 2016)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
29/7/16
Case
Number:
89567/2014
In
the matter between:
ANGLO
AMERICAN PLATINUM
LTD
First Applicant
RUSTENBURG
PLATINUM MINES
LTD
Second Applicant
NKANGETSANG
GILBERT
MATLHAKO
Third Applicant
MTATENI
ZINGQUBE
Fourth Applicant
PETRUS
MALEFETSA
MMETI
Fifth Applicant
MZONKE
DYAKOPU
Sixth Applicant
DAVID
THABO
KHUNOU
Seventh Applicant
HLOMANI
DONALD
MAKHUBELA
Eight Applicant
BONAKELE
NTABANKULU
MTIMBA
Ninth Applicant
and
RUDOLPH
JOHANNES
PIENAAR First
Respondent
FGL
ASSOCIATES Second
Respondent
WALTER
VERMAAK
ATTORNEYS
Third Respondent
BRIGDE
DEBT (PTY)
LTD Fourth
Respondent
E4
COLLECTIONS (PTY)
LTD
Fifth Respondent
J
U D G M E N T
MALI
J:
[1]
This is an interlocutory application to join the first to fifth
respondents, as the fifth to ninth respondents in
the main
application. In the main application which was brought to this
honourable court on 22 December 2014 the applicants seek
various
declaratory reliefs relating to the proper interpretation and
application of the administration regime created by sections
74 to 7W
of the Magistrate Courts Act 32 of 1944 ("MCA"). The second
to fifth respondents are not opposing the application.
PARTIES
[2]
The first and second applicants in this application, are
respectively, Anglo American Platinum Ltd ("AAP") and
Rustenburg
Platinum Mines Ltd ("RPM'"), both public
companies, duly registered and incorporated in accordance with the
Laws of the
Republic of South Africa they both share their
registered addresses at 13th
Floor, [.... M. S.],
Johannesburg.
[3]
The third to ninth applicants are all adult male employees currently
employed by the second applicant/ RPM. The fourth and fifth
applicants are under administration by the first respondent. The
fourth and fifth applicants are employed by the second applicant
as
Pump Team Supervisor and Cleaner respectively.
[4]
The first respondent is Rudolph Johannes Pienaar, an adult male
administrator employed by the second respondent.
[5]
I first had to deal with the issue of affidavits. The first
respondent's complaint is that the applicants filed affidavits
without the leave of the court, and without condonation, therefore
they should be disregarded as
non
pro scripto.
The said affidavits are confirmatory affidavits of the fourth and
the fifth applicants. The first respondent did not make submission
as
to prejudice attendant upon the filing of the said affidavits. I
ruled that it is in the interests of administration of justice
to
have the affidavits admitted.
[6]
The first to ninth applicants in the main application brought an
application against the first to fourth respondents. The first
respondent in the main application is an adult female practising
attorney who is also the director of the both the second and third
respondents.
[7]
The second respondent in the main application is a law firm, trading
as H VAN DER MERWE INC or HVDM Attorneys and/or Hannatjie
van der
Merwe Attorneys. The third respondent in the main application is a
company with its registered name as HVDM adminstrators
(PTY) LTD. It
is not in dispute that the company of the second respondent
specialises in debt review remedies and administration
applications.
The second respondent has been appointed as administrators to the
third to ninth applicants in the present application.
The fourth
respondent, in the main application, at the time was known as the
Minister of Justice and Constitutional Development,
the executive
authority responsible for the administration for the MCA
and the National Credit
Act 34 of 2005
("NCA").
[8]
The first and second applicants on their standing as employers of
third to ninth applicants ("miners") brought the
main
application on behalf of their employees who are mine workers and in
the interest of their employees as well. According the
first and
second applicant the report of the research carried out by the
University of Pretoria Law Clinic in 2013 miners have
been found to
agree to emoluments attachment orders , due to financially
illiteracy, as they did not understand the full financial
risks,
costs and obligations of the agreements they entered into.
[9]
It is apposite to refer to the context within which the main
application is brought according to Mr Christopher Ivan Griffith
("Griffith"), the deponent to the founding Affidavit.
Griffith states that he is the Chief Executive Officer of the first
applicant as well as an Executive Director of the second applicant.
[10]
The
first
applicant
submits
that
the
respondents
are
collecting
fees
in
excess
of
the
amount
allowed
to
them
under
the
MCA
regime.
They
allegedly deduct more than 12.5%
allowed
to them, in
terms
of section 74 L
[1]
; They
further
circumvented
the
12.5%
cap
by
outsourcing
some
of
their
duties
to
administration
companies
and
they
treat
the
said
administration
companies
as
creditors.
The
respondents
should
recover
those fees as part of their administration fees.
[11]
In the main application it is submitted that a company called Summit
contracted by the first and second applicants has analysed
the
distribution accounts statements filed by the respondents in respect
of the third to ninth applicant's estates. Summit's finding
are that
the respondents are deducting between 23% and 96% of the payments
that they receive from the debtor as their costs and
remuneration
under section 74L.
[12]
The main application was brought on 22 December 2014 against the
abovementioned respondents. On or about 23 March 2015, the
first and
second respondents filed answering affidavits, and the third
respondent filed separate answering affidavits. In the first
and
second respondent's papers they submitted that they are not the
administrators of the fourth and fifth respondents. They stated
that
Mr Rudolph Johannes Pienaar ("the first respondent") is the
administrator of the fourth and fifth applicants; hence
this
application.
ISSUE
[13]
The issue to be determined is whether the first respondent has a
direct and substantial interest in the main application,
alternatively a sufficient interest that the joinder will be
convenient, both to the first respondent and the court.
LAW
[14]
Joinder of parties is governed by Rule 10 of the Uniform Rules of
Court. Rule 10(3) provides;
"Several
defendants may be sued in one action either jointly, jointly and
severally, separately or in the alternative, whenever
the question
arising between them or any of them and the plaintiff or any of the
plaintiffs depends upon the determination of substantially
the same
question of law or fact which, if such defendants were sued
separately, would arise in each separate action".
[15]
Granting of administration orders is governed by section 74 and
particularly section 74E regulates the appointment of the
administrator. Section 74J (1) and (5) of the MCA lists the duties of
the administrator as follows:
(1)
An administrator shall collect the payments to be made in terms of
the administration order concerned and shall keep up to date
a list
(which shall be available for inspection, free of charge, by the
debtor and creditors or their attorneys during office hours)
of all
payments and other funds received by him from or on behalf of the
debtor, indicating the amount and date of each payment,
and shall,
subject to section 74L, distribute such payments
pro rata
among
the creditors at least once every three months, unless all the
creditors otherwise agree or the court otherwise orders in
any
particular case.
(5)
Every distribution account in respect of the periodical payments and
other funds received by an administrator
shall be numbered
consecutively, shall bear the case number under which the
administration order has been filed, shall be in the
form prescribed
in the rules, shall be signed by the administrator and shall be
lodged at the office of the clerk of the court
where it may be
inspected free of charge by the debtor and the creditors or their
attorneys during office hours.
[16]
In
MAKHANYA
v
UNIVERSITY
OF
ZULULAND
[2]
(at page 25 paragraph 61 it
was
held;
"As
I pointed out earlier, it is true that a litigant who has a single
claim that is enforceable in two courts that have concurrent
jurisdiction must necessarily make an election as to which court to
use. In that respect the law specifically allows for 'forum
shopping'
by allowing the litigant that
choice...
.
"
At paragraph 65 it is stated
"Clearly a court may not
thwart the
assertion
of
a
right
by
denying
access
to
a
court
in
which
to
do
so.
It would
be
no
answer
to
say
that
it
really
will
not
matter
because
the claimant has another right that is
just
as good. If the claimant asserts two right
-...........
then both must have
a
forum in which to be asserted.
That
is what
the
Constitution
guarantees.
"
[17]
Section 74 of the MCA provides:
"74
Granting of administration orders
(1)
Where a debtor-
(a)
is unable forthwith to pay the amount of any judgment obtained
against him in court, or to meet his financial obligations, and has
not sufficient assets capable of attachment to satisfy such judgment
or obligations; ..."
[18]
The first respondent opposes the application on various grounds.
Although I will deal with some of the grounds raised by the
respondent, I will not deal with them in the sequence submitted by
the first respondent.
LACK
OF JURISDICTION BY THE HIGH COURT
[19]
It
was
submitted on behalf of the Counsel of the first
respondent
that the
prayers
relating to the first respondent in respect of the fourth to the
ninth applicants are not
declaratory
orders and can be
dealt
with
by
the
Magistrate
Court. Counsel referred to numerous case law in this regard, the most
notably
being
the case of
AFRICAN
BANK
v VAN
DER
MERWE BOOYSENS
[3]
where
it was
held:
"...the
High
Court does
not have
jurisdiction to adjudicate
on
the
complaints of
a
creditor relating to the administration
of
a
debtor's estate, at least until such time
as
the
creditor has exhausted his remedies before the Magistrate who is
after all, the supervisor of the administration. In my view
the
fact
that
a
creditor
such
as
the
Applicant who
has
a
large number
of
debtors whose
estates
are
under
administration may
compliant of
a
particular
course of conduct by
the administrator does not entitle
that
creditor
to
short
circuit,
or
by-pass, the
provisions of
the
Magistrate's Court Act."
[20]
My view is that the judgment in AFRICAN BANK
supra
is
superseded by the judgment of MAKHANYA
supra.
[21]
It was further submitted that the concerned applicants were not
entitled to litigate at all as section 74 provides them with
administrative remedies, including taxation of bills of costs. It is
not disputed by the first respondent that taxation of bill
costs
precedes the payment of monies. In
casu
the case is
about the monies which have already been expended and allegedly
expended inappropriately through the ambiguous mechanisms.
[22]
It was contended on behalf of the applicants that section 74 does not
provide adequate relief. It was further stated that other
prayers
sought in the main application have the effect of questioning the
implementation and running of the administration orders.
One of the
examples is that there is no provision under the MCA that taxation of
costs is free in the event that the applicants
were obligated to
follow it. The only remedy which is unambiguously free is a judicial
review.
[23]
Furthermore the provisions are not clear as to who has the right to
institute the taxation of bills, whether it is the debtor
under
administration and his/ her administrator. The applicants sought
itemised bill from the administrators. Albeit this request
is in
reference to other administrators with the exception of the first
respondent the applicants were told there the itemised
bills did not
exist and even if they did they were not entitled to them. Section 74
does not make provisions in respect of the
producing of the itemised
bills to the debtors. The applicants hold the view that their
administrators owe them a duty of care.
I fully agree with this
contention.
[24]
The first respondent's submissions are that in the event that the the
debtors have problems with how their estates are run
they should
approach the Magistrate to tax the bills of costs. It seems as if
this argument disregards the whole purpose
of introducing the
MCA and NCA. One of the reasons the Administration orders were put
into place was to assist debtors who are
financially stressed. It is
highly likely that any form of litigation and or enquiry involves
spending money whether in the form
of transport costs and or other
manner. Furthermore, it is likely possible that in the event a
dispute occurs between the representative
and its client relations
might be strained. The strained relations may result to the
compromise of the good intended to be achieved.
[25]
Another issue raised by the applicants is the disjuncture between MCA
and NCA. It is not clear to what extent the administrators
are
required to comply with the NCA. This is a question that cannot be
entertained by the Magistrate's Court. It was argued on
behalf of the
applicants that while the debt counsellors under the NCA operate in a
heavily regulated sphere, administrators, by
and large, do not.
[26]
The first respondent limits the issue to the dispute in respect what
it calls 'small' change claimed by the fourth and fifth
applicants.
The amounts referred to as small change are R3 423.09 and R1 688.51.
Taking into account that these are the amounts
allegedly overcharged
to the mine workers, they are by no means trivial whether this is
raised in the context of the relevant jurisdiction.
I cannot agree
more that one of the major issues pertain to the interpretation of
law and the existence or lack of mechanisms.
[27]
The Supreme Court of Appeal in Makhanya has clearly decided the issue
of the High Court jurisdiction. It has been established
that the High
Court has no discretion to dismiss the matter before it whether it is
wrongly brought. It is trite law that bringing
a matter in a wrong
forum can be visited through a proper costs order.
[28]
Having regard to the above the first respondent's point
in limine
must fail.
MISJOINDER
OF
CAUSES
[29]
It was submitted on behalf of the first respondent that the prayers
sought by the fourth and fifth applicants had no bearing
on him and
or that he is not part of some of the causes. Counsel for the
applicants submitted that all prayers but for prayer four
are
applicable to the first respondent. I now turn to deal with some of
the prayers sought. It is noted that there is an overlap
of facts
pertaining to the prayers sought.
[30]
In respect of the first declaratory that the first respondent be
obligated to furnish on request and free of charge, full and
itemised
accounts of all expenses and costs that they have incurred in the
administration of the third to ninth applicant' estates
under their
administration the first respondent's response is that the section 74
J (5) and (6) provide the remedies. Section 74J(5)
and (6) provides
as follows:
"5.
every distribution account in respect of the periodical payments
and
other
funds
received
by
an
administrator
shall
be
numbered consecutively, shall bear the
case number under which the
administration order
has been filed, shall be in the form prescribed
in the
rules, shall be signed by the administrator
and shall
be lodged at the office of the clerk of the court where it may be
inspected
free of charge by the debtor and the
creditors
or
their
attorneys during office hours".
"6.
a
distribution account referred to in subsection (5) shall at
the request of any interested party be subject to review free of
charge
by any
judicial officer".
[31]
It is apparent from the above that subsection 5 or 6 deal with the
distribution account and not the itemised accounts of all
expenses
and costs that are incurred in the administration of the debtor's
estate is provided. It has been submitted on behalf
of the fourth and
fifth applicants that because of the alleged overcharging by the
first respondent it is necessary to have full
and itemised account.
[32]
Furthermore subsection 6 provides for review to be instituted by any
interested party. The first respondent's contention that
this remedy
is available to the fourth and fifth applicants is at odds with the
intention of the legislature, in that the debtors
need to be assisted
by the administrators. I understand that the fourth and fifth
applicants are the interested parties meant in
section 6 above.
Having regard the position the fourth and the fifth applicant hold at
their workplace, I can safely conclude that
they are not
sophisticated and that their literacy levels are below standard.
[33]
The above is supported by their Counsel's submission that they could
not attest to the confirmatory affidavits in English.
As gleaned from
the papers their affidavits are in ISIXHOSA and SETSWANA
respectively. From the above it becomes apparent that
they might not
have the capacity to pursue any legal processes, let alone a review
procedure despite being free of charge. My view
is that some of the
applicants need the assistance of representative despite the adequacy
of the legal provisions.
[34]
In prayer two, of the main application, a declaratory is sought that
the first, second and third respondents have unlawfully
deducted fees
and remuneration in excess of the 12.5% cap imposed by section 74L(2)
of the MCA read with Part II of Table B of
Annexure 2 to the
Magistrate's Court Rules.
[35]
To the above it was submitted on behalf of the first respondent that
the applicants could have referred the matter for review
to the
Magistrate's Court. As stated earlier it is not reasonable to expect
the concerned applicants to prosecute the review proceedings
without
assistance. In the circumstances it appears that it is impractical
for their administrator to assist them because the complaint
is
against the administrator. It seems as if they would be obliged to
seek the services of a legal representative or some
form
of professional help. I reiterate that the route which
appears to be suggested by the first respondent defies
the spirit of
the intention of the legislation.
[36]
In the third prayer it is sought that the first, second and
I
or third respondents pay into the third to ninth applicants'
estates the amounts identified in the schedule attached hereto as
"A",
being the amount of fees and remuneration deducted in
excess of the statutory cap. The amounts claimed in respect of the
fourth
and fifth applicants are R3 423.09 and R1688.51 respectively.
The first respondent's argument is that the amounts in question fall
within the Magistrate Court jurisdiction. The jurisdiction of the
amounts is not disputed. It has to be borne in mind that this
prayer
is not sought in isolation. It is sought with other prayers wherein
the Magistrate Court does not provide remedy and is
sought within the
context of the interpretation of legislation. It is therefore
convenient to join this prayer with other reliefs
sought.
[37]
Having regard to the above I am satisfied that the first respondent
should be sued jointly with other respondents to the causes
of action
complained about by the fourth and fifth applicants because the
issues raised pertain to the same questions of law and
facts.
[38]
I therefore find that the applicants have successfully made a case
for the joinder of the first respondent to the main application.
COSTS
[39]
The first and second applicants seek punitive costs at High Court
scale. The applicants submitted that when they launched this
application they advised the respondents that if the application for
joinder is not opposed they would not seek costs. They further
advised that if the application is opposed they would seek costs. I
am inclined to grant the applicants costs as sought.
ORDER
[40]
As a result the following order is made:
40.1
It is ordered that the first to fifth respondents in the
interlocutory application is joined as the fifth to ninth respondents
in the main application them being:
33.1.1
Rudolph Johannes Pienaar,
33.1.2
FGL Associates,
33.1.3
Walter Vermaak Attorneys,
33.1.4
Bridge Debt (PTY) LTD,
33.1.5
E4 Collection (PTY) LTD
40.2
The first respondent is ordered to pay costs of this application on
attorney and client scale including costs of counsel.
__________________________
NP
MALI
JUDGE
OF THE
HIGH COURT
APPEARANCES
Counsel
for the Applicants:
Adv. I Goodman
Instructed
by:
BAKER & McKENZIE
Counsel
for the 151 Respondent: Adv. C. J. Mouton
Instructed
by:
BOSHOFF INC
Date
of Hearing: 18
April 2016
Date
reserved: 18
April 2016
Date
of Judgment:
29 July 2016
[1]
Section 74 L (2) of the Magistrates Court Act 32 of 1944 provides
that:
The
expenses and ----
[2]
218/08)
[2009]
ZASCA 69
(29 May 2009)
[3]
2003(4)
ALL
SA
247 (D)