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[2015] ZAGPPHC 600
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Tourvest Holdings (Pty) Ltd v Nonkam (14371/2011) [2015] ZAGPPHC 600 (21 August 2015)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
21/8/2015
Case No.: 14371/2011
In the matter between:
TOURVEST HOLDINGS (Pty)
LTD
Plaintiff
and
PASCAL
NONKAM
Defendant
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
1. The unsuccessful defendant applies for leave to appeal.
2. The Notice of Application for Leave to Appeal raised a number of
grounds upon which the defendant asserted another court would
reasonably come to a different conclusion than the trial court. In
argument only some of these were pursued with any measure of
conviction; the principal submission being that the Court's reference
to the provisions of section 423 of the Companies Act 61
of the
Companies Act was misguided and justified re-examination on appeal.
3. It was further argued that the Court's criticism of Mr Henning's
failure to testify in his capacity as the defendant's attorney
at all
relevant times was unjustified.
4. It was also argued that defendant's attachment of the amounts
still standing to the credit of the company Tulah Trading (Pty)
Ltd
in its bank account was not executed in his capacity as a director,
but in his capacity as a creditor, rendering the action
unassailable
in terms of section 424 of the old Companies Act. This should all the
more be the case, so the argument ran, as the
said company was at
that stage dormant and defendant had been prevented from exercising
his functions as director during the battles
with members of his
family.
5. In the alternative it was submitted that the amount in which the
defendant was held liable should be reduced to the sum of the
funds
still in the Bank account of the company whose affairs were dealt
with recklessly; and which sum was attached on the defendant's
behest.
6. The Court was also criticised for granting attorney and client
costs when these had not been sought by the successful plaintiff.
7. None of these arguments justify the granting of leave to appeal.
The principal factual findings made in the judgment have not
been
challenged. It is indisputable that defendant defrauded Tulah Trading
(Pty) Ltd while he was still a director, whether active
or not. He
surreptitiously arranged for the attachment of the funds paid to the
company as a result of a
bona fide
error and to which the
company was not entitled, a fact of which both he and his attorney
were fully aware. He surreptitiously and
fraudulently appropriated
the funds for himself while he was embroiled in a family battle about
worldly goods. Any claim to any
funds arising from any business
relating to the family affairs was hotly contested and a similar raid
on another company executed
by the defendant was overturned when the
family became aware thereof.
8. The defendant's actions are therefore fully covered by the
provisions of section 424 of the old Companies Act. His attachment
of
the funds amounted to a dealing with assets that did not belong to
the company even though the funds were paid into the company's
band
account. The unlawful attachment thereof rendered the company
insolvent to the prejudice of all its creditors, including the
plaintiff. The court was therefore called upon to hold the defendant
liable for the full measure of the company's debts owing to
the
plaintiff.
9. In addition, the defendant was an untruthful witness whose
evidence did not stand up to scrutiny. His entire defence was
dishonest.
This finding is strongly supported by the failure of his
attorney, who admittedly was fully conversant with the true facts, to
support his client's case by giving evidence himself.
10. Because the defendant's defence amounted to an abuse of the
process the Court was justified in the exercise of its discretion
to
award costs on a punitive scale to mark its displeasure with the
defendant.
11. There is no reasonable prospect of another court coming to a
different conclusion. Leave to appeal must therefore be refused.
The following order is therefore made:
The application for leave to appeal is dismissed with costs.
Signed at Pretoria on this 21
st
day of August 2015.
_______________
E BERTELSMANN
Judge of the High Court