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[2016] ZAGPPHC 684
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Richard v Solly and Others (75966/2015) [2016] ZAGPPHC 684 (5 August 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
5/8/16
CASE
NO:
75966/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MALULEKA
RICHARD
APPLICANT
and
MASHABA
SOLLY
1
st
RESPONDENT
ABSA
BANK
2
nd
RESPONDENT
VULOMBE
TRADING AND PROJECTS (PTY) LTD
3
rd
RESPONDENT
JUDGMENT
MALI
J
[1]
On 17 September 2015 the applicant herein sought an order against the
respondents consisting of Parts A and B as follows:
"PART A
1.
Interdicting the
first respondent from withdrawing money from
ABSA Bank
Account Number […], Branch
Code […],
Savings
Account.
2.
That the memorandum
between the Applicant and Respondent be tenninated forthwith.
3.
That the Respondent
be restricted or interdicted from using the catering equipments,
pending the finalisation of this matter.
PART B
1. That the Respondent
be called upon to answer the Applicant's Application by the (08th day
of October 2015) failing which the
Honourable Court will be
approached on the same paper or duly supplemented for
a
Final
Order. The return date being the 30 th
October 2015.
4. Payment of
50%
profit made out of the R989 364-00
5.
The catering
equipment of the Vulombe Trading and Proects (sic) CC under
registration number 20121107838107 be shared equally between
the
Applicant and the 1st Respondent.
6.
Costs
of
this application.
8. Further and/ or
alternative relief'.
[2]
The above order was granted on 17 September 2015, however on 18
December 2015 the order was set aside subsequent to its
reconsideration.
It was found that the application of 17 September
was never served upon the respondents.
[3]
The applicant is before this court based on the same notice of motion
as above. The first respondent who is a director of Vulombe
Trading
(PTY) LTD, the third respondent submits that the third respondent was
never served with the application to join the third
respondent,
although the order was granted on 16 November 2015.
LAW
[4]
Rule 6 (2) of the Uniform Rules of the Superior Court provides as
follows:
"When relief is
claimed against any person, or where it is necessary or proper to
give any person notice of such application,
the notice of motion
shall be addressed to both the registrar and such person, otherwise
it shall be addressed to the registrar
only”
[5]
The relief is also sought
against the third respondent because the monies which are the subject
of dispute are held in the third
respondent's bank account. The said
bank account is held with the second respondent, Absa bank. The first
respondent is the signatory
thereto.
[6]
It is common cause that the third respondent is a juristic person
with capacity to be sued and sue on its own. It has not been
given
opportunity to answer the case alleged by the applicant. The
applicant submits that the third respondent was served with
the
application, however produces no proof to that effect. From the
papers before court there is no proof that the third respondent
was
served with the application to join it to the proceedings. What
appears on the papers is the notice of set down of the application
for hearing on 25 January 2016. The said application is served to
Molefe Attorneys as the first and third respondents attorneys.
[7]
The first respondent submits that Molefe Attorneys represents the
first applicant only. Be that as it may the service is not
related to
the joinder of the third respondents even though cited in the papers
on 25 January 2016. There is no notice or nomination
of Molefe
Attorneys as the third respondent's attorney. The applicant downplays
the requirement of service to the third respondents.
In this regard
the applicant states that the first respondent is the sole director
of the third respondent therefore the service
to the first respondent
should suffice and be regarded as the service to the third
respondent.
[8]
As indicated above the rules are clear that application must be
served to the interested parties. The mere existence of the
application does not accomplish any purpose if it is not served.
Furthermore it appears that the applicant's manner of litigation
disregards the requirement of service as seen from the initial
application of 17 September 2015.
[9]
Having regard to the above the
point in limine
must succeed.
[10]
In the result the
point in limine
is upheld.
[11]
I therefore make the following order;
11.1. The application is
dismissed with costs.
_________________________
N.P. MALI
JUDGE OF THE HIGH COURT
Counsel
for the Applicant:
Mr NDUNA (ATTORNEY)
Counsel
for the 1
st
Respondent:
Mr MOLEFE (ATTORNEY)
Date
of hearing:
18 April 2016
Date
of Judgment:
5 August 2016