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[2014] ZAGPPHC 30
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Lyons v Sheriff of the High Court for the District of Tzaneen and Others (8095/2014) [2014] ZAGPPHC 30 (20 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 8095/2014
DATE:
20 FEBRUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the matter
between:
THOMAS WILLIAM
LYONS
………………………………………………
APPLICANT
And
THE SHERIFF OF
THE HIGH COURT
FOR THE DISTRICT
OF TZANEEN
………………………………
....
1
st
RESPONDENT
CONRAD ALEXANDER
STARBUCK
………………………………
2
nd
RESPONDENT
MOHERANE WILLIAMS
MATHIBEDI
……………………………
.
3
rd
RESPONDENT
NEDBANK
LIMITED
…………………………………………………
4
th
RESPONDENT
JUDGMENT
WEBSTER J
1.
The
applicant seeks an order:
(i)
For
the stay for the execution of the sequestration order granted on 24
May, 2013 and another order made on 30 September, 2013 in
case no.
22848/2013 “...pending the final outcome and determination of
the rescission application in case number 22848/2013”;
(ii)
That the
Respondents be interdicted and restrained from taking any further
steps in execution of the abovementioned liquidation
orders pending
the final outcome and determination of the rescission application
filed by the applicant under case number 22848/2013;
(iii)
That the
liquidation orders issued by the Registrar of this Court on 24 May,
2013 and 30 September, 2013 be set aside; and
(iv)
A costs order
against the Respondents jointly and severally, the one paying the
others to be absolved.
2.
At the
commencement argument counsel for the applicant indicated that he was
persisting only with an order in terms of prayers (ii)
and (iii) and
(iv).
3.
The
case for the Applicant (Thomas William Lyons) is that:
(i) “
...the
Second Respondent sought and obtained liquidation orders against the
applicant surreptitiously and opportunistically...”
(ii)
The
correspondent attorneys under the impression that it was one matter
then forwarded only one application to the attorneys of
record, case
number 22848/2013 “...and his attorney entered a notice of
opposition only in case number 22848/2013”,
(iii)
That he has
“...excellent prospects of success with the rescission
application...”
(iv)
The applicant
has strong prospects of success and that the balance of convenience
favours the applicant.
4.
The
application against the applicant in case number 22847/2013 was
brought against him in his personal capacity and not in a
representative
capacity.
5.
In
answer to the founding affidavit the respondent avers that:
(i)
A provisional
sequestration order was granted on 24 May, 2013: it was served on the
Lyons and advertised in case number 22847/2013
(ii)
On the return
day, the 9
th
July, 2013 counsel appeared on behalf of Lyons and the rule nisi
was extended to 28
August, 2013 and the applicant(Lyons) was ordered to file his
opposing affidavit by no later than 26 July, 2013;
(iii)
On 28 August,
2013 the rule nisi
was
extended to 28 October, 2013 and the applicant ordered to file his
answering affidavit by no later than 28 October, 2013. He
failed to
do so.
6.
With
regard to case number 22848/2012 the respondent avers that the
applicant herein was sued in his capacity as a co-trustee. Both
trustees filed a notice of intention to oppose: they failed to file
opposing affidavits, however.
7.
The
matter was placed on the unopposed roll and a provisional
sequestration order was granted on 17 July, 2013.
8.
The
said order was served and advertised: there was no response from the
respondents and a final sequestration order was duly granted.
9.
From
the above facts it is impossible that the applicant could have been
unaware that final orders had been granted in each of the
case
numbers on the return dates.
(i)
Against
the background sketched above it is clear that the applicant was
aware of the following, viz.
that
he had to file an affidavit in each matter in order to avert a final
sequestration order being made in each of the two matter
10.
The
applicant, well-aware of this, failed to do so.
11.
The
respondents have resisted the application primarily on the facts set
out above.
12.
In
addition the following issues were raised namely:
(i)
That upon the
granting of the provisional sequestration order the applicant herein
was divested of his estate;
(ii)
The applicant
had waited several months before bringing this action;
(iii)
Lyons
attempted to rely on the provisions of the National Credit Act were
to no avail;
(iv)
Neither
the Master nor the liquidators have been cited;
(v)
The
application for rescission had been brought well out of time and no
effort had been made to explain the delay.
13.
Having
considered the facts and the submissions herein it is clear that the
applicant has failed to
(i)
satisfy
the court that this matter is urgent;
(ii)
satisfy
the Court that he has the necessary locus standi to bring this
application without citing the Master, the liquidators or
the trust
as interested parties.
14.
Upon
a conspectus of the issues this Court is satisfied that any urgency,
if any, was caused by the applicant himself. In addition,
he delayed
between August, 2013 and January, 2014 before launching the
proceedings in this matter. The so-called urgency was clearly
of his
own making.
15.
The
application is accordingly dismissed with costs
.
G. WEBSTER
JUDGE IN THE HIGH
COURT