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[2015] ZAKZPHC 36
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Akal N.O and Others v Queensbridge Estate (Pty) Limited and Others (5834/12, 9638/13) [2015] ZAKZPHC 36 (19 June 2015)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, PIETERMARITZBURG
CASE
NO: 5834/12 & 9638/13
DATE:
19 JUNE 2015
TERENCE
GERARD JOSEPH AKAL
N.O
........................................................
FIRST
APPLICANT
JOLEEN
AKAL
N.O
.........................................................................................
SECOND
APPLICANT
ANTONY
VINCENT GEORGE AKAL
N.O
.....................................................
THIRD
APPLICANT
ANTONE
PHILIPPE SYDNEY FREDERIC
N.O
.........................................
FOURTH
APPLICANT
STEVEN
ANTONY FREDRIC
N.O
....................................................................
FIFTH
APPLICANT
And
QUEENSBRIDGE
ESTATE) PTY)
LIMITED
...............................................
FIRST
RESPONDENT
(IN
BUSINESS RESCURE)
JD
MICHAU
N.O
..........................................................................................
SECOND
RESPONDENT
NEDBANK
LIMITED
.....................................................................................
THIRD
RESPONDENT
WILDNER
&
COMPANY
...........................................................................
FOURTH
RESPONDENT
GARLICKE
& BOUSEFIELD
INC
................................................................
FIFTH
RESPONDENT
SOUTH
AFRICAN REVENUE
SERVICES
..................................................
SIXTH
RESPONDENT
ETHEKWINI
MUNICIPALITY RATES DEPARTMENT
....................
SEVENTH
RESPONDENT
QUEENSBRIDGE
ESTATE BODY CORPORA
.....................................
TEEIGHT
RESPONDENT
STILUS
UNDERWRITING
MANAGERS
....................................................
NINTH
RESPONDENT
JUDGEMENT
Delivered:
19 June 2015
MBATHA
J
[1]
This is an application for leave to appeal against the order of this
Court refusing to grant the Applicants a postponement and
placing the
First Respondent in final liquidation.
[2]
It has been advanced on behalf of the Applicants that the refusal to
grant a postponement is final therefore appealable.
I was
referred to
Zweni
v Minister of Law and Order
[1]
and
Heymans
v Yorkshire Insurance
Company
Limited
[2]
and others on this aspect.
[3]
Rightfully so, as advanced by the Applicants, it is acceptable that
the test is whether or not there is a reasonable prospect
of the
appeal succeeding.
[4]
It is submitted that the Applicants were not a party to the
arrangement of the date for hearing of the leave to appeal against
the judgment of this Court granted on the 22
nd
of August 2014. That the basic right to legal representation of
the Applicant was refused, that their lack of legal representation
prejudiced the Applicants in their application for leave to appeal,
and lastly that the representative of the Applicants, Mr Akal,
was
not heard prior to the granting of the final order of liquidation.
The Respondents submit that the date was agreed upon
by all the
parties.
[5]
I have considered whether the application for leave to appeal against
the refusal of a postponement is appealable. I find
that on its
own, as it is a ruling cannot confer applealability. The
refusal of a postponement did not have the final effect
on the rights
of the parties. The Applicants were given an opportunity to
argue the application for leave to appeal which
was before the
Court. This Court is also
functus
officio
in
respect of its order dismissing the application for leave to appeal.
[6]
It is my view that the appeal against the refusal for the
postponement is interlinked to the application for leave to appeal
and cannot be considered in isolation to that application. The
ruling that I made with regard to the postponement is no longer
relevant in the light of my final ruling regarding the application
for leave to appeal.
[7]
The ruling I made on the postponement was not a finding on legal
issues. In
Priday
t/a Pride Paving v Rubin
[3]
at pages 547 to 549, the Court fully dealt with the impact of the
provisions of Section 20 of the Supreme Court Act, being that
it
discouraged piecemeal appeals. It also set the record straight
what decisions need to be taken on appeal. It categorically
states that decisions which are interlocutory, even if altered or
reversed on appeal will remain purely interlocutory in their
effect.
Therefore,
one has to enquire if the decision of the Court decisively
contributed to the final solution of the main issue between
the
parties. I align myself with the views of Conradie J in finding that
litigants should not be encouraged to apply for leave
to appeal in
such cases and that it is better to regard the decisions as rulings
which are not appealable.
In
Absa
Bank Limited v Mkhize and Two Similar Cases
[4]
,
the Supreme Court of Appeal expressed the same sentiment, that if an
order does not have the effect of the final judgment, the
Court
lacked jurisdiction to entertain the appeal.
[8]
I therefore find that I am
functus
officio
not only in respect of the
application for leave to appeal but also in respect of the
application for refusal of a postponement.
The interests of all
the parties were taken into account when considering both
applications.
[9]
With regard to the submission that Mr Akal was not given an
opportunity to argue whether the application for final order for
liquidation should be made final or not. I accept the submissions
made by Advocate Broster SC that there is nothing to suggest
that
there was anything that has transpired to suggest that the company
has been taken out of its insolvent state, for instance,
the sale of
any real rights. The writing was on the wall as soon as the Business
Rescuer Practitioner filed his affidavit regarding
the hopeless state
of affairs in the First Respondent. No sale of any unit has
materialised since 2008, which is a clear
indication that the status
of the company remained as it was at provisional liquidation.
[10]
Having found that the company was factually and commercially
insolvent, the status
quo
was still the same in January 2015 as Advocate Lotz SC submitted, no
sales have materialised, the business rescue practitioner
has never
been paid and the indebtedness to the major creditors is increasing
on a month to month basis.
[11]
The argument which has been raised is not
bona
fide
, as the Applicants were fully
aware of the status of the company. Asking Mr Akal, yes or no, would
not have taken this matter any
further. It is therefore my view
that there was no violation of the Applicants rights in granting the
final order of liquidation.
[12]
In the light thereof, I make the following order:
(a)
The Application is dismissed with costs, including costs of senior
counsel, where applicable.
MBATHA
J
Date
of hearing: 11 June 2015
Date
delivered: 19 June 2015
Appearances
:
For
the Applicants : Adv. Potgieter SC
Instructed
by: Azgar Ally Khan & Associates
Durban
For
the Second Respondents : Adv. Lotz SC
Instructed
by : Stowel & Co.
Pietermaritzburg
For
the Third Respondents : Adv. Broster SC
Instructed
by : Venns Nemeth & Hart Attorneys
Pietermaritzburg
[1]
1993
(1) SA 523
(A) at 531H – 533E.
[2]
1964
(1) SA 487
AD at 490D.
[3]
1992
(3) SA 542
(C) page 547 and 549.
[4]
2014
(5) SA 16
(SCA).