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[2015] ZANCHC 10
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Garcao v Master of the Northern Cape High Court, Kimberley and Others (185/13) [2015] ZANCHC 10 (8 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case No: 185/13
DATE: 08 MAY 2015
In the matter between
FERNANDO M F GAPUO
GARCAO
....................................................................................
Applicant
And
THE MASTER OF THE NORTHERN
CAPE
.............................................................
1st
Respondent
HIGH COURT, KIMBERLEY
DONOVAN THEODORE MAJIEDT
N.O
..................................................................
2nd
Respondent
EUGENE FREDERICK SAFFY
N.O
...........................................................................
3rd
Respondent
CHAVONNES BADENHORST ST CLAIR COOPER
N.O
.......................................
4th
Respondent
MOLELEKWA ASHWORTH TAU
N.O
......................................................................
5th
Respondent
Coram: BM Pakati J et L Lever AJ
Heard On: 27 March 2015
Delivered on: 08/05/2015
APPLICATION FOR LEAVE
TO APPEAL
PAKATI J
[1] Mr Fernando Garcao, the applicant,
applies for leave to appeal the order granted by Kgomo JP and myself
on 08 August 2014. The
second to fifth respondents, Donovan Majiedt,
Eugene Saffy, Chavonnes Cooper and Molelekwa Tau NNO, respectively,
in their capacity
as the liquidators of Meepo Investments Consortium
(Pty) Ltd (in liquidation), oppose the application. For convenience I
will refer
to them as Liquidators. The first respondent is the Master
of the High Court, Kimberley.
[2] In his application for leave to
appeal filed on 29 August 2014 the applicant listed the following
grounds:
“1. Reasonable prospects exist
that a court of appeal may disagree from the findings of fact and law
and can reasonably arrive
at a conclusion different to that of the
court a quo;
2. The Court a quo, with respect, erred
in finding that by extending the liquidators’ powers to convene
an enquiry, should
they so decide, in terms of s 417 and/or 418 [the
Companies Act, 61 of 1973] means that the enquiry was not convened by
the Master
and was a section 417 and 418 enquiry. The liquidators
decided to apply to the Master to convene an enquiry in terms of s
417 as
is evident from the body of the subpoena;
3. The Court a quo erred in not finding
that the Master convened the enquiry, as is evident from the heading
of the subpoenas, “Master’s
Enquiry”..;
4. The Court a quo erred in finding
that the enquiry was an enquiry in terms of section 417 and 418 of
the Companies Act, 1973.
The summons called the applicant up in terms
of section 417 of the Companies Act;
5. Once a Master convenes an enquiry
the provisions of section 417 is peremptory, he must hold the
enquiry;
6. The Court a quo erred by not holding
that the dictum in Swart and Others v Master of the High Court
Pretoria and Others
2012 (4) SA 219
(GNP) was distinguishable from
the facts in this matter;
7. The Court a quo erred in finding
that R v Herholdt and Others
1957 (3) SA 236
(A) at 252G-253A was not
distinguishable on the facts from the facts in this matter;
8. In that the Court a quo erred in
finding that the applicant did not prove that the fact that he was
never advised of his right
to re-examination was not prejudicial to
him;
9. In that the Court a quo found that
the applicant was the recipient of unlawful dispositions because he
did not address the issue
in these proceedings. The main application
was postponed sine die;
10. The finding, with respect,
prejudges the main application; and
11. In that the Court a quo erred by
not granting condonation and granting the order for the review and
setting aside of the proceedings
of 15 to 18 August 2011 or beyond.”
[3] The order granted by Olivier J on
10 June 2011 was by agreement between the parties. Para 2.1.2 of the
said order reads thus:
“The applicants’ powers as
Provincial Liquidators are extended to empower them to convene an
investigation in terms
of Section 417 and/or Section 418 of the
Companies Act 61 of 1973 (read with Section 9 of Schedule 5 of the
Companies Act, 71 of 2008
) [“the Act”] pertaining to the
transactions recorded in the said Annexures “B1” and
“B2””
(My emphasis).
The heading in the subpoena addressed
to the applicant clearly describes the type of enquiry that was to be
held. It reads as follows:
“THE ENQUIRY IN TERMS OF SECTION
417 read with SECTION 418 OF THE COMPANIES ACT, NO 29 of 1985, AS
AMENDED (the Act).
[4] The argument that the content of
the subpoena refers to the enquiry in terms of s 417 cannot be
sustained. The heading of the
subpoena and the order by Olivier J are
express and clear and need no further clarification. The assistant
Master, Mr WK Van Rensberg,
presided as the Commissioner in terms of
s 418 (1) (a) of the Act and filed a Report dated 07 September 2012.
It stated in no uncertain
terms that the enquiry was convened in
terms of s 417 and 418 of the Companies Act. S 418 (1) (a), (b) and
(c) of the Act sets
out the powers of the Master and the prescribed
procedure as follows:
“418
(1)
(a)Every magistrate and every other
person appointed for the purposes by the Master or the Court shall
be a commissioner for the
purpose of taking evidence or holding any
enquiry under this Act in connection with the winding-up of any
company.
(b) The Master or the Court may refer
the whole or any part of the examination of any witness or of any
enquiry under this Act to
any such commissioner, whether or not he is
within the jurisdiction of the Court which issued the winding-up
order.
(c) The Master, if he has not himself
been appointed under paragraph (a), the liquidator or any creditor,
member or contributory
of the company may be represented at such an
examination or enquiry by an attorney, with or without counsel, who
shall be entitled
to interrogate any witness: Provided that a
commissioner shall disallow any question which is irrelevant or would
in his opinion
prolong the interrogation unnecessarily.”
[5] Adv PJJ Zietsman, on behalf of the
applicant, argued that the enquiry could only be held by the Master
in terms of peremptory
provisions of s 417 of the Act or in terms of
s 417 read with s 418 held by the Master or a Court or a
Commissioner. In support
of this proposition he relied on the case of
SWART AND OTHERS v MASTER OF THE HIGH COURT PRETORIA AND OTHERS
2012
(4) SA 219
(GNP). In terms of s 417 only the Master is authorised to
conduct the enquiry, his argument goes. He argued further, for the
first
time, that the summons issued was irregular. He stated that the
liquidators’ powers were extended only to the Liquidators
and
could not be delegated to the Master or his assistant. This is
contrary to the initial argument by the applicant that the enquiry
and the examination of persons had to be conducted by the Master in
terms of the peremptory provisions of s 417 of the Act. The
applicant’s case is difficult to comprehend.
[6] In response Adv P Zietsman SC, on
behalf of the respondents, submitted that the contention that the
enquiry was conducted in
accordance with s 417 is not substantiated
by the evidence even after the review application was dealt with. He
submitted further
that there were no prospects of success on appeal.
[7] The argument that s 417 only
empowers the court or the Master to examine persons summoned before
it and that only the court
can allow any person to examine and not
the Master cannot be sustained. This aspect is fully covered in our
judgment delivered
on 08 August 2014 with regards to the case of
Swart supra and R v HERHOLDT AND OTHERS
1957 (3) SA 236
(A). I do not
intend to repeat same here. S 417 (2) (a) of the Companies Act
provides as follows:
“The Master or the Court may
examine any person summoned under subsection (1) on oath or
affirmation concerning any matter
referred to in that subsection,
either orally or on written interrogatories, and may reduce his
answers to writing and require
him to sign them.” (My
underlining).
The use of the word ‘may’
above is obviously directory and not peremptory. The enquiry was
convened by the Liquidators
in terms of the order granted by Olivier
J on 10 June 2011. The Assistant Master therefore conducted the
proceedings as a Commissioner
appointed by the Master in compliance
with s 418 (a) of the Act and the powers stipulated in s 418 (c).
[8] The applicant argued that the
presiding officer did not advise him of his rights to re-examination
and that omission rendered
the proceedings irregular, unfair and
unjust. He did not allege that this failure prejudiced his case. This
was never an issue
initially. In BENSON, IN RE: TAIT NO AND OTHERS v
JASON AND OTHERS
[2012] ZAWCHC 377
Binns-Ward J held:
“The examinee at an Enquiry in
terms of Section 417 and 418 of the Companies Act, 61 of
1973,complains of an omission by the
presiding officer to advise him
of a right affecting the fairness or constitutionality of the
proceedings, it is necessary that
the examinee provide some
particularity in support of his complaints of unfairness or
infringement of his constitutional rights
before the complaint
becomes justiciable and since applicant provided no particularity,
the Court’s findings in this regard
cannot be faulted.”
No particularity was provided by the
applicant in this regard.
[9] The applicant failed to address the
Liquidators’ allegations in his Answering Affidavit in Case No
1559/2012 (the Main
case). He had a number of chances at his disposal
to respond to the allegations that he was the recipient of an
unlawful disposition
not made for value from Meepo Investments. He
failed to do so in his Founding and Replying Affidavits and in his
application for
review. The evidence led during the enquiry also
served before the Court in the review application still this was not
disclosed.
The only conclusion that one can reach is that he has
something to hide.
[11] The applicant failed to make a
case for condonation of his late filing of the review application. No
reason was advanced why
the Court erred in this regard. There were
also no justifiable reasons advanced for the Court to set aside the
proceedings that
took place from 15 to 18 October 2011 or beyond.
[12] In my view, there are no prospects
of success. No other court may arrive at a different decision.
ORDER
The application for leave to appeal
is dismissed.
PAKATI J
I concur
LEVER AJ
On Behalf of the Applicant: ADV PJJ
ZIETSMAN
Instructed by: DE JAGER ATTORNEYS
On Behalf of the Respondent: ADV P
ZIETSMAN (SC)
Instructed by: ADRIAN HORWITZ &
ASS.