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[2016] ZAGPPHC 824
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KPMG Services (Pty)Ltd and Another v Tolken and Others ; In re: Tolken and Others v National Director of Public Prosecutions and Others (38642/2013) [2016] ZAGPPHC 824 (2 September 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
Case
number: 38642/2013
Date:
9 September 2016
In
the matter between:
KPMG
SERVICES (PTY)
LTD
.......
..................................................................
First
Excipient
DEAN
FRIEDMAN
N.O.
….........................................................................
Second
Excipient
and
THOMAS
O'BRIEN
TOLKEN
...
....................................................................
1
st
Respondent
THOMAS
O'BRIEN TOLKEN
N.O.
.....
.........................................................
2
nd
Respondent
MIMMIE
FRANCIS TOLKEN
N.O.
...............................................................
3
rd
Respondent
THOMAS
O'BRIEN TOLKEN SNR
N.O.
....
..................................................
4
th
Respondent
In
re the matter between:
THOMASO'BRIENTOLKEN
..................................................................................
1
st
Plaintiff
THOMAS
O'BRIEN TOLKEN
N.O.
..
...................................................................
2
nd
Plaintiff
MIMMIE
.
FRANCIS
.
TOLKENN.0.
.....
......................................................................
3
rd
Plaintif
THOMAS
O'BRIEN TOLKEN SNR
N.0.
…
..........................................................
4
th
Plaintiff
and
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS
.........
........................
1
st
Defendant
KPMG
SERVICES (PTY)
LTD
.......
.................................................................
2
nd
Defendant
KPMG
ADMINISTRATORS (PTY)
LTD
.........
.................................................
3
rd
Defendant
DEAN
FRIEDMAN N.O.
…..
............................................................................
4
th
Defendant
JUDGEMENT
DU
PLESSIS. AJ
1.
The
Second and Fourth Defendants excepted to the Plaintiffs' amended
particulars of claim dated 20 August 2014 on various grounds,
i.e.
they lack averments that are necessary to sustain a cause of action
on the various grounds as referred to in the exception.
2.
On
30 May 2005, his Lordship Justice van Rooyen AJ, granted a
provisional restraining order in terms of the Prevention of Organised
Crime Act 121 of 1998
("
the
Act').
3.
The
First to Fourth Plaintiffs issued summons against
inter alia
the
Second Defendant KPMG Services (Pty) Ltd and Dean Friedman N.O. as a
Fourth Defendant for an order against the Second to Fourth
Defendants
jointly and severally, to be ordered to account to the Plaintiff's
for all assets taken control of, disposing of such
assets, the
preservation of such assets, the income generated and inventories of
assets and/or items taken control of. In addition
hereto, they
request an order to debate the aforementioned accounts with the
Plaintiffs and that the Second to Fourth Defendants
be ordered to
jointly and severally be ordered to pay damages in the amount of R
20,910,171.97 to the Second and Third Plaintiff
and/or the First
Plaintiff.
4.
A
copy of the order was annexed to the particulars of claim.
5.
The
Fourth Defendant, Dean Friedman N.O., is cited in his capacity as
duly appointed
curator bonis
in terms of a letter or
curators hip issued by the Master of the High Court, Pretoria
("letter of curatorship" )
and a copy of this letter
of curatorship is annexed to the particulars of claim as Annexure
"A". The letter of curatorship
certifies that:
"Mr
Dean Friedman of KPMG, [8..] Empire Road, Parktown has been duly
appointed and is hereby authorised as such to act as the
curator
bonis of the assets of Thomas O' Brien Tolken and Others."
This
letter of curatorship is dated 6/6/2005. The appointment was in terms
of Section 28(1)(a) of the Act.
6.
The
exceptions, all 22 of them, submit that the particulars of claim
fails to disclose a cause of action.
7.
I
shall deal with the exceptions in the manner as they are grouped
together by the excipient.
8.
The
first to fifth, eight to twelfth and fourteenth to seventeenth
exceptions, all pertained to the fact that the Fourth Defendant
was
appointed as
curator
bonis
and that as a
result, any reference to the Second Defendant and/or Third Defendant
to have acted as
curator bonis,
alternatively rendered
services as a
curator bonis
and/or that the Fourth Defendant
as well as the employees of the Second Defendant and/or Third
Defendant rendered services as
curator
bonis
and/or on behalf of the
curator
bonis
(see paragraph 6.2, 7.1, 9.3 and paragraph 10 of the particulars
of claim).
In
addition hereto, the Excipients complain that the reference in
paragraph 11 of the particulars of claim, that the Fourth Defendant
acted as
curator
in the course and scope of his employment
with the Second Defendant and/or the Third Defendant,
alternatively
in furtherance of the interests of the Second and/or Third
Defendant is incorrect and not supported by the appointment. In
addition
hereto, the Excipients complain that in paragraph 15 of the
particulars of claim, the Second and/or Third and/or Fourth
Defendants
are described as having acted as
curator bonis
and/or
duly appointed agents on behalf of the
curator bonis
and that
this is not supported by the appointment.
9.
The
complaints of the Excipient regarding the above references to the
Second, Third and Fourth Defendants as
curator
bonis,
representative of the Second Defendant or that the Fourth
Defendant acted as
curator
in the course and scope of
his employment with the Second Defendant and/or the Third Defendant,
alternatively
in furtherance of their interests, cannot
co-exist as they are different concepts of agency and employment,
each of which has separate
sets of law applicable to them.
10.
No
person in law other than the Court appointed
curator bonis,
could
act or render services in that capacity. It is only the person who is
appointed as
curator bonis
by order of Court, that can act and
render services as
curator bonis,
and then only
strictly within the confines of the powers that are conferred upon
him. I am referred in this regard by the Excipients
to
Konyn v
Viedge
Brothers (Pty) Ltd
1961
(2) SA 816
E
.
11.
On
a proper construction of the letter of tutorship or curatorship, with
number MC [2…], Mr Dean Friedman (the Fourth Defendant),
"of
KPMG[8..]
Empire Road Parktown"
is appointed
as
curator bonis.
The allegations by the Plaintiff in
paragraph 5, 6 and 9 of the particulars of claim, refers to the
Fourth Respondent as appointed
curator bonis,
but who acted in
such a capacity, but also as employee of the Firm of Auditors (the
Second Defendant) and the Third Respondent,
KPMG Administrators (Pty)
Ltd.
12.
I
am satisfied that on a proper construction of the pleadings and the
Annexures thereto and the letter of appointment of the Fourth
Defendant, that the Fourth Respondent was appointed in his capacity
as an employee of the Second Defendant and the Third Defendant.
It is
clear that the particulars of claim alleges that the Second and Third
Defendants rendered services through the Fourth Defendant
and that
the Fourth Defendant utilised the letterhead of both the Second and
Third Defendants, in rendering his services as
curator bonis.
13.
Although
every fact which it would be necessary for the Plaintiff to prove, if
traversed, in order to support his right to judgement
of the Court,
needs to be pleaded to support the cause of action, this does not
comprise every piece of evidence which is necessary
to prove each
fact, but every fact which is necessary to be proved. See in this
regard
McKenzie v
Farmers' Co-Operative
Meat
Industries Limited 1922 (AD) 16 at
2
3.
14.
The
Plaintiffs will need to prove the allegations in the First to Fifth
exceptions and the Excipient may plead thereto and deny
the liability
of especially the Second and Third Defendants in their representative
capacity. Should the Second Defendant deny
that they were the Firm of
Auditors on behalf of whom the Fourth Defendant acted, they may
submit such a plea. The first to fifth
exceptions and the reasons
therefore cannot be upheld.
15.
The
eight to twelfth grounds of complaint all deal with the duty of the
Second and/or Third and/or Fourth Defendants to account
to the
Plaintiffs for their actions pertaining to all assets seized in terms
of the restraining order and to return all assets
seized or taken
from the control of the Plaintiffs. The Excipient complains that it
is not apparent from paragraph 15 of the particulars
of claim, on
what legal grounds or on what basis the Second Defendant was
allegedly duty bound to undertake or perform the obligations
of the
Fourth Defendant. The same complaint applies to the Third Defendant
that was allegedly duty bound to undertake or perform
the obligations
of the Fourth Defendant. In paragraph 16 of the particulars of claim,
the Plaintiffs allege that the Second, Third
and/or Fourth Defendants
had a duty to account to the First Plaintiff and this duty of care is
alleged in paragraph 17 of the particulars
of claim. The complaint of
the Excipients are, that paragraph 17 of the particulars of claim
does not disclose the nature, extent,
import and description of the
alleged duty of care, nor what the source or basis of the alleged
duty of care could be.
16.
Although
the particulars of claim in the mentioned paragraphs only refers to
the fact that the Fourth Defendant was appointed as
curator bonis
and that he acted in his capacity as an employee of the Second
and Third Defendants and as such all three owed the Plaintiff a duty
of care, I am satisfied that these paragraphs of the particulars of
claim contain a clear and concise statement of the material
facts
upon which the Plaintiff relies for his claim. The Excipients need to
plea hereto and if the duty of care is denied, it should
so be
pleaded. The eight to twelfth exceptions cannot be upheld.
17.
In
the sixth and seventh exception, the Excipients complain that
paragraph 15 of the particulars of claim pleads a conclusion of
law
i.e. the
curator bonis
had a duty to account to the
Plaintiffs. As such, the duty to account, so the Excipient argues,
rely on either a fiduciary relationship,
a contract or a statutory
duty and that this must be pleaded. In the absence of such pleadings
- so the Excipient submits - the
particulars of claim does not
disclose a cause of action. The Plaintiff alleges that this
obligation arises
ex iure,
but then, the Excipient submits it
must be pleaded in the particulars of claim.
18.
I
am satisfied that it is alleged by the Plaintiff that this duty
arises from the appointment and the acceptance of the appointment
as
curator bonis
by the Fourth Defendant and that it is not
necessary for the Plaintiff to allege that the duty arises from the
Act. The sixth and
seventh ground of complain can, as a consequence,
not be upheld.
19.
In
the thirteenth and fourteenth exceptions, the complaint is that the
Plaintiff pleads certain that duties, obligations, responsibilities,
functions and powers in paragraph 15, 17, 18, 19 and 21 of the
particulars of claim rests on the Fourth Defendant but also the
Second and Third Defendants.
In
paragraph 19 and 21, the Defendants complain that the basis of the
liability of the Second and Third Defendants to undertake
and perform
the duties and obligations of the
curator bonis,
are not
disclosed. As such, so the Defendants complain, it does not disclose
a cause of action. The pleadings should be read in
its totality and I
am satisfied that the Plaintiffs plead in sufficient particularity,
the liability of the Second and Third Defendants
in their capacity as
employer of the Fourth Defendant and also that the Fourth Defendant
acted as
curator
bonis
and was appointed as
curator
bonis
in his capacity as employee of the Second and Third
Defendants and as such, attaches a liability to the Second and Third
Defendants.
These grounds of exception fail.
20.
The
eighteenth exception alleges that paragraph 22 of the particulars of
claim fail to allege any causal connection between any
of the alleged
losses pleaded therein and the negligent failures pleaded in
paragraph 21 of the particulars of claim. This exception
must fail as
paragraph 22 of the particulars of claim submits that:
"As
a result of the neglect and/or failure by the Second to Fourth
Defendants to comply with their aforementioned duties of
care, the
Plaintiffs have suffered damages as a result of the loss of
shares...."
21.
In
the nineteenth exception, the Defendants complain that the losses
described in paragraph 22 of the particulars of claim and with
particular reference to the loss of gym equipment as described in
paragraph 22.1 and the DNA Products described in paragraph 22.2,
bears no connection to any of the entities mentioned in paragraph 8
of the particulars of claim. I agree with the Plaintiffs' submission
i.e. there is at least
prima facie
indication of loss of
damages suffered as a result of the loss of the assets and the
allegation is made that those assets belong
to the Plaintiff. It
refers to gym equipment and DNA Products, whilst in paragraph 8,
there is reference to, for instance, the
DNA Gymnasium equipment in
paragraph 8.9 of the particulars of claim and DNA Supplements (Pty)
Ltd in paragraph 8.12 of the particulars
of claim. It remains for the
Plaintiff to prove the connection, but I am satisfied that there is
at least a
prima facie
allegation.
22.
In
the twentieth exception, the Defendants complain that the legal duty
described in paragraph 19 of the particulars of claim for
purposes of
claim 2, is not properly particularised, i.e. the statutory provision
as part of a cause of action or defense, must
be pleaded and
according to the Defendants, are not properly pleaded by the
Plaintiff. This is a reference to paragraph 19, where
the Plaintiff
alleges that the Second, Third and Fourth Defendants owed a duty of
care and that this is due to the application
launched, the
appointments made by the Court in terms of the court order and the
letter of curatorship. The particulars of claim
in paragraph 9
thereof, refers to the application of the Defendants for a
provisional restraining order in terms of The
Prevention of Organised
Crime Act, Act
12 of 1998, it refers to a copy of the order granted
by his Lordship Mr Justice van Rooyen AJ and the appointment of the
Fourth
Defendant as
curator bonis
in terms of the
letter of curatorship attached to the particulars of claim as
Annexure "A" and wherein the reference is
made to his
appointment subject to the applicable provisions of The
Administrations of Estates' Act 66 of 1965. This complaint
should
consequently fail.
23.
In
the twenty-first exception, the Defendants suggest that the Plaintiff
fails to allege that the Second and/or Third and/or Fourth
Defendants
failed to act in good faith. This is with reference to Section 78 of
the Act that provides that
"Any person generally or
specifically authorised to perform any functions in terms of this
Act, shall not, in his/her personal
capacity, be held liable for
anything done in good faith under this Act."
The Plaintiffs
submit that this is a defense that should be pleaded by the
Defendants and not a necessity to be alleged in the particulars
of
claim. If the allegations in paragraph 21.1 to and including
paragraph 21.13 of the particulars of claim are read together,
it
cannot be said that those purported negligent acts have been done in
good faith. This complaint similarly fails.
24.
For
the reasons above, I make the following order:
Exception
1 to and including exception 21, on all grounds submitted, are
dismissed with costs.
____________________
DU
PLESSIS AJ
Case
number
....................................
:
38642/2013
Matter
heard on
................................
:
9 May 2016
For
the 2nd and 4th Defendants/
1st
and 2nd Excipient
.........................
:
Adv Y Alli
Instructed
by
.....................................
:
Norton Rose Fulbright Inc
…
........................................................
c/o
VDT Incorporated
For
the Plaintiffs
...............................
.
: Adv G Scheepers
Instructed
by
....................................
:
Barnard Patel Inc
Date
of Judgment
.......................... ...
:
9 September 2016