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[2015] ZAGPPHC 257
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Kevin Richardson Wildlife Sanctuary (Pty) Limited v Kaplan N.O. and Others (75679/2014) [2015] ZAGPPHC 257 (21 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
75679/2014
DATE: 21 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
KEVIN
RICHARDSON WILDLIFE SANCTUARY (PTY)
LIMITED
........................................
Applicant
and
HARRY
KAPLAN
NO
............................................................................................................
First
Respondent
MMATLOU
HELLEN PHALENG
NO
............................................................................
Second
Respondent
ALLAN
DESMOND
FRIEDLAND
......................................................................................
Third
Respondent
SHERIFF
FOR THE DISTRICT OF
WONDERBOOM
.................................................
Fourth
Respondent
JUDGMENT
Tuchten
J
:
1 The first and
second respondents (the liquidators) are the liquidators of The
Kingdom Wildlife Sanctuary (Pty) Limited (KWS),
which was placed
under final winding-up order by this court on 30 May 2013 under case
no. 23536/2013. The liquidators received
their appointments on 30
January 2014.
2 KWS was the
vehicle for a venture between the third respondent (Mr Friedland) and
a Mr Richardson, both of whom held 50% of the
issued shares in KWS.
Messrs Friedland and Richardson were not on good terms by the time of
the liquidation. Mr Friedland asserts
that Mr Richardson and his
wife, Mrs Richardson, committed numerous acts of fraud against KWS
and Friedland and, indeed, hijacked
the business of KWS both
personally and through one or more corporate vehicles, including the
applicant, controlled by the Richardsons.
3 The business of
KWS, before it was wound up, was to operate a tourism venture which
derived income from donations, demonstrations
with animals, lectures,
the creation of documentary films, movies, talk shows and the like.
It was also intended that KWS would
derive income from a lodge built
on a neighbouring farm.
4 Mr Richardson is
apparently something of a celebrity. He has a relationship with a
pride of lions, with which, so it is said,
he interacts physically.
This interaction, it is claimed by Mr Friedland, was a brand of KWS.
But the applicant operates a similar
business although it does not
have a lodge.
5 The lodge in
question was erected, as I have said, on a neighbouring farm
belonging to Sid Howell Investments (Pty) Ltd (SHI).
Mr Sid Howell,
who controls SHI, has allegedly sided with the Richardsons.
6 The business
venture conducted through KWS, however, came to an end when Mr
Friedland allegedly discovered the misfeasances of
the Richardsons.
SHI cancelled the agreement under which KWS operated the lodge.
7 The applicant was
incorporated on 17 May 2013. Its sole director is Mrs Richardson. The
shares in the applicant are held by a
trust controlled by the
Richardsons. Mr Friedland claims that the applicant was used by the
Richardsons to receive business diverted
from KWS.
8 The liquidators
have brought an action against the Richardsons and others alleged to
be Richardson vehicles or accomplices claiming,
on the strength of
several different, in some cases alternative, causes of action, wide
ranging relief including damages and accountings.
On 19 November
2013, Mr Friedland obtained an order for an enquiry into the affairs
of KWS under s 417 of the Companies Act, 61
of 1973. Evidence was
taken at the enquiry from 25 to 28 February, 12 May and 16 July 2014.
9 As a result of
evidence so obtained and other information, the liquidators formed
the view that certain property, books and documents
were being
concealed by, amongst others, Mr Richardson and the applicant. The
liquidators approached the Pretoria North magistrate’s
court,
held at Wonderboom, under
s 69(3)
of the
Insolvency Act, 24 of 1936
.
Section 69(3)
provides:
If it appears to a
magistrate to whom such application is made, from a statement made
upon oath, that there are reasonable grounds
for suspecting that any
property, book or document belonging to an insolvent estate is
concealed upon any person, or at any place
or upon or in any vehicle
or vessel or receptacle of whatever nature, or is otherwise
unlawfully withheld from the trustee concerned,
within the area of
the magistrate's jurisdiction, he may issue a warrant to search for
and take possession of that property, book
or document.
10
There were in fact two such approaches, both made ex
parte.
The
first related to monies in certain bank accounts, one of which was
operated by the applicant. In accordance with a curious practice
regrettably prevalent in this Division, the liquidators sought and
were granted a warrant contemplated in
s 69(3)
, coupled with a
direction pursuant to which those affected by the warrant were
granted leave to show cause on a return date why
what was quite
erroneously styled an interim order should not be made final. The
present applicant, Mr Richardson and a Richardson
vehicle called
Kingdom Films (Pty) Ltd all appeared on the return date to show such
cause.
11
In a written judgment dated 11 August 2014, the magistrate concluded,
on the facts, that the
ex
parte
procedure
had been justified and in effect upheld the warrant.
12
No doubt fortified by this success, on 17 July 2014 the liquidators
brought a further
ex
parte
proceeding
under
s 69(3)
in the same magistrate’s court, this time asking
for the attachment of certain vehicles, including a Toyota RAV and a
Mahindra
Bolero. A warrant in the terms sought was granted and served
on Mr Richardson. Pursuant to its terms the RAV was attached on 25
September 2014 but, curiously, the Mahindra was not. The Mahindra
remains in the possession of Mr Richardson, who uses it, quite
openly, for the transport of carcases on which the lions feed and for
other agricultural purposes related to the husbandry of the
lions.
13 Aggrieved by the
issue and execution of this latter warrant in relation to the RAV and
the Mahindra, the applicant brought the
present application, claiming
to be the owner of the two vehicles, for orders directed at staying
the warrant in relation to the
RAV and the Mahindra, pending an
action for the enforcement of the applicant’s alleged rights of
ownership. The applicant
came urgently, under a notice of motion
dated 14 October 2014. But the application was held not to be urgent
and was struck from
the roll. The applicant persisted with the
application in the normal course and it is now before me. The fourth
respondent abides
and the first to third respondents are represented
by the same counsel. References in what follows to the respondents
are to the
first to third respondents.
14 The applicant
seeks in the present application that the attachment of the RAV and
the warrant authorising the attachment of the
Mahindra be suspended
pending the adjudication of an action to determine the ownership of
the vehicles. In argument, counsel for
the applicant described the
applicant’s cause of action as the inherent power of the High
Court to supervise proceedings
in a lower court and to suspend the
orders of a lower court to prevent injustice.
15
There can be no doubt that this court does indeed have the power, on
good cause shown, to supervise the proceedings in lower
courts in the
sense described. In my view this is a power that should be exercised
with great caution. The facts of this case demonstrate
why this is
so: the magistrate made an order within the jurisdiction conferred
upon him by statute. It cannot, in my view, be doubted
that there
existed good grounds for the suspicion entertained by the liquidators
that the vehicles belonged to KWS and was unlawfully
being withheld
from the liquidators. The case made by the applicant is not that such
a reasonable suspicion did not exist but that
the applicant was in
fact the owner of the vehicles. The allegations relied upon by the
applicant for this contention demonstrate
financial dealings which
are at least, on the papers, murky. Because these are proceedings for
interim relief, it would not be
appropriate for me to give full
reasons for this conclusion. I shall approach the case on the footing
that the applicant has put
up enough to justify a conclusion,
prima
facie,
that
it might prove ownership in a trial in due course.
16 The case then
turns on what in the context of interim interdicts would be described
as balance of convenience. As to the RAV,
there can in my view be no
doubt that the balance of convenience favours the liquidators. The
applicant’s case, a rather
flimsy one, is that it is bound by
contract to supply Mrs Richardson with a vehicle not for the purposes
of the applicant’s
business but for Mrs Richardson’s
domestic purposes. At present, the RAV, under attachment at the
behest of the liquidators,
is not being used. The applicant wants the
RAV for Mrs Richardson so that she may use it. This will expose the
RAV to the risks
of deterioration and damage. Mrs Richardson has
acknowledged that she is conducting her domestic affairs with another
vehicle.
17 The Mahindra is
on a different footing. It has been used, regularly and without any
attempt by the liquidators to take the Mahindra
into attachment. The
invoice of Atlantis Motors dated 28 May 2013 shows that the Mahindra,
a 2013 model, was invoiced and delivered
to “Kevin Richardson
Wildlife” for a total purchase price, inclusive of VAT, of R133
561,71. The use to which the Mahindra
is being put must have
subjected it to considerable wear and tear. Its correct value was
said in argument to be some R60 000.
18
The present relief is directed at restraining the liquidators,
temporarily, from exercising their statutory powers to take control
of things reasonably believed to be the property of the company which
they are winding up. This relief can only be granted where
the
applicant puts up a strong case.
National
Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012
6 SA 223
CC para 44. In assessing the strength of cases for the
purposes of interim interdicts, the prospects of ultimate success
together
with the balance of convenience must be evaluated. Strong
prospects with a weak case on the balance of convenience might in a
proper
case carry the day; similarly, weak prospects together with a
strong balance of convenience might do so.
19
I think that this case, in relation to the Mahindra, falls into the
latter category. I have referred to the relatively low value
that
must probably attach to the Mahindra today. The costs of storing the
vehicle will probably not be much lower than the anticipated
depreciation while it continues to be used as before. Decisively, in
my view, the liquidators have not considered the Mahindra
to be worth
the trouble and expense of pursuing with any diligence. They were
content to leave it not only with Mr Richardson but
to allow him
without even so much as a warning letter to continue to use it for
the robust purposes Mrs Richardson described in
the founding
affidavit. I think therefore that a strong balance of convenience in
favour of the applicant has been established.
Although the lions are
said to belong to Mr Richardson, they are used, according to what is
presently before me, for the business
of the applicant. The cost to
the applicant of procuring a replacement vehicle will far outweigh
the prejudice to the liquidators
pendente
lite.
20 Counsel for the
applicant asked that if I came to this conclusion I should direct not
as foreshadowed in the notice of motion
that the applicant be
directed to institute proceedings but that the applicant be allowed
to raise the issue in a counterclaim
to the action already instituted
by the liquidators, which I mentioned above. I do not think that
would be convenient. The value
of the Mahindra puts this dispute well
within the jurisdiction of the magistrate’s court. Although
there might be some overlapping
of issues, I see no good reason
further to complicate at this stage what looks like being a complex
commercial case by adding the
dispute about the Mahindra to the mix.
Although it seems that the liquidators instituted their action in
2014, no pleas have yet
been delivered. There is no reason to delay
the progress of the present dispute. If convenience is shown, the
present dispute could
in due course be consolidated with the
liquidators’ action.
21 Counsel for the
applicant asked for costs but I do not think that a costs order would
at this stage be appropriate. I intend
to reserve the costs for
determination after the merits of the dispute regarding ownership of
the Mahindra have been resolved.
22 I make the
following order:
1
The warrant obtained in the magistrate’s court for the district
of Pretoria North held at Wonderboom under case no. 4268/14
by the
first and second respondents in their capacities as liquidators of
The Kingdom Wildlife Sanctuary (Pty) Limited (the liquidators),
insofar as such warrant pertains to a Mahindra Bolero bakkie with
engine number BKD4B91263, is hereby suspended pending the final
determination of an action to be instituted by the applicant for
inter alia
a
declaration that the applicant is the owner of the Mahindra.
2 The applicant must
issue summons in such action out of a competent court within two
weeks of the date upon which this order is
handed down and thereafter
promptly serve its summons upon the liquidators and any other
defendants cited in such summons.
3 If summons is not
so issued as prescribed in 2 above, this order will lapse.
4 The costs of this
application are reserved for consideration after judgment is given in
the proposed action.
NB Tuchten
Judge of the High
Court
17 April 2015