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[2016] ZAGPPHC 950
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South African Reserve Bank v Barit and Others (88570/2014) [2016] ZAGPPHC 950 (4 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
4/11/2016
Case
Number: 88570/ 2014
In
the matter between:
SOUTH
AFRICAN RESERVE
BANK
APPLICANT
And
BARIT,
LAWRENCE
1
st
RESPONDENT
BARIT, SHIMON
2
nd
RESPONDENT
DUERR,
MICHAEL
3
rd
RESPONDENT
DUERR,
SOPHIA
MARY
4
th
RESPONDENT
DUERR,
JOSEPHINE
JOHANNA
5
th
RESPONDENT
DORR,
FREDERIC
MICHAEL
6
th
RESPONDENT
DORR,
CAROLIN
CHARLOTTE
7
th
RESPONDENT
DORR,
PETER
8
th
RESPONDENT
DORR,
ERNST
ALBERT
9
th
RESPONDENT
DORR,
ELFRIEDE
LUISE 10
th
RESPONDENT
DORR,
WERNER MARKUS
11
th
RESPONDENT
GUIZZARDI,
GINA
12
th
RESPONDENT
GUIZZARDI,
OSCAR
13
th
RESPONDENT
GUIZZARDI,
MANRICO 14
th
RESPONDENT
HATHORN,
CHRISTOPHER BLAIKIE
15
th
RESPONDENT
HATHORN,
WALTER
PIPER 16
th
RESPONDENT
JOUBERT,
GEORGE
ROLLAND 17
th
RESPONDENT
JOUBERT,
SALLY
HELEN 18
th
RESPONDENT
HANSCOMB
LANG,
MICHAEL 19
th
RESPONDENT
SMUDE-LANG,
SIBYLLA
20
th
RESPONDENT
LANG,
NICHOLAS HENDRIK
21
th
RESPONDENT
LANG,
HERMAN
WERNER 22
th
RESPONDENT
MUNNIK,
ZACHARIA PETRONELLA
23
th
RESPONDENT
MEYER,
HENDRIK 24
th
RESPONDENT
MEYER,
GWENDOLINE
MILDRED 25
th
RESPONDENT
HENDRIK
MEYER N.O. IN HIS CAPACITY AS
TRUSTEE
FOR THE TIME BEING OF
THE 26
th
RESPONDENT
H.
MEYER FAMILY TRUST
GWENDOLINE
MILDRED MEYER N.O. IN HER
CAPACITY
AS TRUSTEE FOR THE TIME BEING OF
THE
H. MEYER FAMILY
TRUST 27
th
RESPONDENT
IVO
MEYER N.O. IN HIS CAPACITY AS TRUSTEE
FOR
THE TIME BEING OF THE
H.
MEYER FAMILY TRUST
28
th
RESPONDENT
PRIEBATSCH,
CHARLES
DAVID 29
th
RESPONDENT
THE
MASTER OF THE HIGH
COURT 30
th
RESPONDENT
JUDGMENT
Fabricius
J,
1.
Applicant
herein is the South African Reserve Bank. It derives its authority
and status from the provisions of
Section
2
2
3
of the Constitution.
It is an organ of State as
defined in Section 23 9 and is imbued with juristic personality
pursuant to
Section
2
of the Sou
t
h
African Reserve Bank
Act
8
9
of
1
9
9
8
("
t
he
Act").
2
.
It
has private shareholders. The number of shares a person may hold is
restricted by the
Act
Sections 22 and 23 provide
for this. In terms of Section 22 (1) (a), no shareholder is
entitled to hold, or hold in aggregate
with his associates more than
10 000 shares. An "associate" is defined, amongst others,
as a close relative of the particular
shareholder.
3,
The
main purpose of the application is to direct the Respondent
shareholders to dispose of those Reserve Bank shares which they
hold
in aggregate with their associates, in excess of 10 000.
4.
The
Respondents and their associates are shareholders. In the Replying
Affidavit, Applicant has limited the actual Respondents to
numbers 1
to 11 and 17 to 28.
5.
The
First and Second Respondents are the only Respondents who have
delivered notices of intention to oppose and have filed an Opposing
Affidavit according to the Rules of this Court. Second Respondent is
the son of the First Respondent in whose name the Opposing
Affidavit
is drafted.
6.
I
am however satisfied that all the other Respondents have properly
been notified of the date of this hearing and that this was
done
timeously. It is not necessary to provide all the detail of such
notifications in this judgment. It appears clearly from the
record
that the relevant Respondents are adults who would know, like
everyone else, that they are also bound by the Rules of Court
and
cannot simply ignore them with impunity. No German Court would
tolerate this either. Many of the initial
Respondents
have in fact regularized their share-holding according to law.
7.
The
Opposing Affidavit of the First and Second Respondents which
comprises some 64 pages is a model of evasiveness, of a delaying
strategy, of argumentative nature and even contains unwarranted
accusations of
ma/a tides.
No substantiated defence to the
claim which is founded in the
Act
appears. The
authority of the deponent to the Founding Affidavit is challenged on
spurious grounds. The deponent, who is a practicing
Advocate, ought
to have appreciated that the Applicant is merely acting according to
the clear, unambiguous provisions of the
Act,
to regularize
the statutory share-holding. Nothing more, nothing less. The
Respondents have no defence to the claim, unless the
Act
is
set aside. The First Respondent also has no right, on the present
facts, to make any submissions on behalf of the other absent
Respondents.
It
is abundantly clear that the Respondents have not complied with
Regu
l
a
t
i
ons 3
of the
Regu
l
at
i
ons to
t
he Act,
which were published on 13 September 2010.
8.
Before
me is also an application by Applicant to strike out certain
allegations in the so-called "Duerr documenf'. It is not
necessary to deal with those aspects. This "document" is
not properly before me and I will simply ignore any irrelevant
or
scandalous allegations contained therein.
9.
The
result is that Applicant's claim is well-founded in law and based on
objective facts.
9.1
Prayers 1, 2 and 3 of the Notice of Motion are granted as against
Respondents 1 to 11 and 17 to 28.
9.2
No order as to costs is made.
____________________________
JUDGE
H.J FABRICIUS
JUDGE
OF THE HIGH COURT GAUTENG DIVISION, PRETORIA
Case
number:
88570/ 2014
Counsel
for the Applicant:
Adv D. Unterhalter SC
Adv K. Hofmeyr
Instructed by: Werksmans
Attorneys
Counsel
for the 1
st
& 2
nd
Respondents:
Adv M. E. Manala
Instructed by: R. S. Tau
Attorneys
Date
of Hearing: 3
November 2016
Date
of Judgment: 4 November 2016 at
10:00