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[2016] ZAGPPHC 912
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Dalhousie Land Corporation (Pty) Ltd and Others v Absa Bank Ltd and five other cases (49241/12; 43239/12; 49240/12; 49241/12; 29884/12; 64888/12) [2016] ZAGPPHC 912 (20 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
49241/12
CASE
NO:
49239/12
CASE
NO:
49240/12
CASE
NO:
49241/12
CASE
NO:
29884/12
CASE
NO:
64888/12
Reportable:
No
Of
interest to other judges: No
Revised.
20/10/2016
CASE
NO:
49241/12
In
the matter between:
DALHOUSIE
LAND CORPORATION (PTY)
LTD
1
st
APPLICANT
DALHOUSIE
FORESTS
CC
2
ND
APPLICANT
MOGWELE
TRADING 154 (PTY)
LTD
3
RD
APPLICANT
and
ABSA
BANK
LTD
1
st
RESPONDENT
ETIENNE
NAUDE
N.O.
2
nd
RESPONDENT
CASE
NO:
49239/12
In
the matter between:
ABSA
BANK
LTD
APPLICANT
and
DALHOUSIE
LAND CORPORATION (PTY)
LTD
RESPONDENT
CASE
NO:
49240/12
In
the matter between:
ABSA
BANK
LTD
APPLICANT
and
DALHOUSIE
FORESTS
CC
RESPONDENT
CASE
NO:
49241/12
In
the matter between:
ABSA
BANK
LTD
APPLICANT
and
DALHOUSIE
MOGWELE TRADING 154 (PTY)
LTD
RESPONDENT
CASE
NO:
29884/12
In
the matter between:
GLYNIS
MERELE
RAMSAY
1
ST
APPLICANT
GEOFFREY
GRANT
RAMSAY
2
ND
APPLICANT
GRANT
HUGH
RAMSAY
3
RD
APPLICANT
GLYNIS
MERLE RAMSAY
N.O.
4
TH
APPLICANT
GEOFFREY
GRANT RAMSAY
N.O.
5
TH
APPLICANT
IVAN
JAMES EMMETT
N.O.
6
TH
APPLICANT
GRANADA
BUSINESS SOLUTIONS (PTY)
LTD
7
TH
APPLICANT
and
ETIENNE
NAUDE
N.O.
1
ST
RESPONDENT
ETIENNE
NAUDE
2
ND
RESPONDENT
CASE
NO:
64888/12
In
the matter between:
GLYNIS
MERELE
RAMSAY
1
ST
APPLICANT
GEOFFREY
GRANT
RAMSAY
2
ND
APPLICANT
GRANT
HUGH
RAMSAY
3
RD
APPLICANT
GLYNIS
MERLE RAMSAY
N.O.
4
TH
APPLICANT
GEOFFREY
GRANT RAMSAY
N.O.
5
TH
APPLICANT
IVAN
JAMES EMMETT
N.O.
6
TH
APPLICANT
GRANADA
BUSINESS SOLUTIONS (PTY)
LTD
7
TH
APPLICANT
and
ETIENNE
NAUDE N.
O.
1
ST
RESPONDENT
ETIENNE
NAUDE
2
ND
RESPONDENT
RAMDALE
STUD (PTY)
LTD
3
RD
RESPONDENT
DALHOUSIE
LAND CORPORATION (PTY) LTD
4
TH
RESPONDENT
MOGWELE
TRADING 154 (PTY)
LTD
5
TH
RESPONDENT
DALHOUSIE
FORESTS
CC
6
TH
RESPONDENT
JUDGMENT
SWARTZ
AJ
[1]
This is an application for the variation of an interlocutory order
handed down by Hughes J in this court on 28 November 2013.
The issue
for determination is whether this court has the authority to vary the
order of 28 November 2013. Counsel for the applicant
argued that this
can be done under the common law. Counsel for the respondent
disagreed and argued that also the provisions of
rule 42 (1)(a)(b) or
(c) do not find application. It was argued that this was a veiled
attempt to appeal the decision of Hughes
J.
[2]
The background facts relating to this application are briefly as
follows: The respondents are companies and a close corporation
controlled by the Ramsey family. During August 2011 the companies
resolved to voluntarily begin business rescue proceedings and
one
Naude was appointed as business rescue practitioner for these
entities. The business rescue proceedings did not proceed and
a
falling out between the Ramsey's and Naude gave rise to litigation.
The parties were
ad idem
that the business rescue plan had
become
null and void.
The applicant, ABSA, as a creditor
launched applications, with the consent of Naude, for the winding-up
of the respondents. These
applications were issued in August 2012. In
November 2012 the Ramsey's launched an application to remove Naude as
business rescue
practitioner. The winding-up applications together
with the removal application were set down to be heard in November
2013. Naude,
separately sought an order that the removal application
be stayed for various reasons. This order was granted by Nkosi AJ on
21
November 2013. As a result thereof, an application was launched
before Hughes J to postpone and stay the applications for winding-up
pending an application for leave to appeal against the order of Nkosi
AJ. Hughes J granted the order. To date, the application
for leave to
appeal the decision of Nkosi AJ had not been heard. ABSA was not a
litigant in the proceedings before Nkosi AJ and
has no
locus
standi
to expedite the finalization of the appeal proceedings. It
is now almost three years later and there appears to be no attempt to
prosecute the main relief expeditiously. Having read the papers filed
of record and after hearing submissions by counsel, it is
evident
that there is no serious effort to prosecute the application for
leave to appeal with any haste.
[3]
The complaint by ABSA, the applicant, is that it is now almost four
years after the liquidation applications were launched;
that the
respondents are unable to pay its debts (in fact, Dalsiehouse Land
Corporation (Pty) Ltd has since been wound up in the
Gauteng Local
Division on 20 April 2016); the Ramsey's have been as dilatory as
possible, and ABSA is suffering prejudice. The
Ramsey's continue to
conduct business as if there is no pending liquidation or business
rescue.
[4]
In my view, the order of Hughes J can be amended as it merely dealt
with the postponement of the matter. The order was interlocutory
in
nature. It was never meant to dispose of any issue and having a final
and definitive effect on the main action. In fact, the
order does not
determine any of the issues in the main action. Stated differently,
if the intention was that the order had a final
effect, it means that
the applicant's winding up application would never be finalized
should they be subjected to the tardy attitude
of the Ramsey's and
Naude in the finalization of the appeal process. This is not in the
interests of justice. The applicants are
denied justice. The sole
purpose of the applicant in bringing this application is to have the
issue surrounding the winding-up
application heard and finalized,
irrespective of the outcome of those proceedings. The suggestion
therefore that this is veiled
appeal proceedings is incorrect
See:
Erasmus, rule 42, Commentary on Superior Court Practice at
B1-306 H:
'At common law an interlocutory order
may at any time before final judgment in the suit be varied or set
aside by the judge who
made it or by any other judge sitting in the
same court and exercising the same jurisdiction. While the courts are
generally reluctant
to grant such a variation, they will do so where
the variation sought is purely procedural or incidental, where fresh
facts have
arisen since the granting of the order, where the order
does not reflect the intention of the applicant or serve the object
for
which it was sought, and where variation will not affect the
final judgment' ..
[5]
As stated above, the order of Hughes J was merely incidental to the
main dispute. I am satisfied that the applicant is entitled
to the
relief sought.
[6]
In the result the following order is made;
6.1. Paragraph 2 of the order of 28
November 2013 is set aside.
6.2. The applicant is entitled to set
down the liquidation applications under case numbers; 49239/12;
49240/12 and 49241/12 for
hearing on the opposed roll.
6.3. The respondents is ordered to pay
the costs of the application.
____________________________
E.
SWARTZ
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing: 17 October 2016
Date
of Judgment: 20 October 2016