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[2013] ZAGPPHC 540
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Holdsworth and Others v Reunert Limited (16558/13) [2013] ZAGPPHC 540 (21 May 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
In the matter
between:
HOLDSWORTH,
JOHN CHARLES
…...................................................................................
First
Applicant
ACTIVEX
295 (PTY) Ltd
….................................................................................................
Second
Applicant
CLINE,
RAEL IAN
…..............................................................................................................
Third
Applicant
RANGILA,
MOHAMMED
…................................................................................................
Fourth
Applicant
ONI,
OPEYEMI OLUWASEUN
…..........................................................................................
Fifth
Applicant
JOHNSON,
BRIAN RICHARD
…...........................................................................................
Sixth
Applicant
FRANCESCO,
DARRYN
…................................................................................................
Seventh
Applicant
CHENGALROYEN,
JARRYD JERMAINE
…...................................................................
Eighth
Applicant
MOODLEY,
THIRESH
….......................................................................................................
Ninth
Applicant
FRANCESCO,
DONAVAN GILYAN
…................................................................................
Tenth
Applicant
NEIMAN,
VICTOR
…........................................................................................................
Eleventh
Applicant
JOVANOVIC,
DAMJAN
….................................................................................................
Twelfth
Applicant
GROBLER,
LOUIS
…......................................................................................................
Thirteenth
Applicant
OPEN
NETWORK SOLUTIONS (PTY) LIMITED
…................................................
Fourteenth
Applicant
and
REUNERT
LIMITED
….................................................................................................................
Respondent
JUDGMENT
MOTHLE J
Introduction
1.
This application raises the question whether a proved claim as
referred to in
Section 44
of the
Insolvency Act, 24 of 1936
(“the
Insolvency Act&rdquo
;)
constitutes
“a document” as stated in Rule 35(12) of the Uniform
Rules of Court and is therefore subject to disclosure.
A request for
disclosure made in terms of Rule 35(12) must be for a document (or
tape recording) which is referred to in a pleading
or affidavit.
Background
2.
The Applicants, as Respondents in an application pending in this
Court
(“the
pending application”)
lodged
this interlocutory application in terms of Rule 6(12) of the Uniform
Rules of Court in the Motion Court for urgent applications.
The
relief sought in this urgent application is for the Court to order
the Respondent to produce certain documents, in terms of
Rule 35(12).
This application was brought on urgency as the pending application
was due to be heard.
3.
The pending application has since been postponed
sine
die
to
make way for this application. However the Applicants still have to
file their answering affidavits. They contend that in order
to do so,
they require the following documents, which the Respondent has
referred to in its founding affidavit in the pending application
namely;
3.1 The Respondent’s
proved claim in the winding-up proceedings of Black Sheep Development
(Pty) Ltd, held in terms of
section 44
of the
Insolvency Act;
3.2 The subpoenas
issued to various banks at the behest of the Respondent.
4.
Rule 35(12)
provides:
“
(12)
Any party to any proceeding may at any time before the hearing
thereof deliver a notice as near as may be in accordance with
Form 14
in the first schedule to any other party in whose pleadings or
affidavits reference is made to any document or tape recording
to
produce such document or tape recording for his inspection and to
permit him to make a copy or transcription thereof Any party
failing
to comply with such notice shall not, save with the leave of the
Court
,
use such document
or tape recording in such proceeding provided that any other party
may use such document or tape recording
5. The Applicants
allege that they caused a notice in terms of
Rule 35(12)
to be
delivered wherein they sought production of three documents including
the two referred to above. The Respondent has produced
the third
document but refuses to produce the other two documents mentioned
above.
6. In its defence,
the Respondent contends that;
6.1 The founding
affidavit in the pending application does not make reference to a
document but to a claim;
6.2 That such claim
is not a document within the meaning of
Rule 35(12).
7. During argument,
the Respondent could not elaborate as to why it refuses to make
available the subpoenas requested. Counsel for
the Respondent
conceded that indeed subpoenas are documents. It is also not disputed
that the founding affidavit in the pending
application does make
reference to subpoenas.
8. The Applicants
contend that the Respondent in the founding affidavit of the pending
application, make reference to a proved claim
in the following terms:
“
Reunert
proved a claim on the following terms
.....”
“
Reunert
proved a claim against the estate of Black Sheep in relation to some
of the costs it
was
required to incur
to replace the 10 critical technical employees”
and
"...
as a result of the
claim proved by Reunert against the estate of Black Sheep”...
9. The background to
this allegation is that at a meeting of creditors concerning the
insolvent estate of the company known as Black
Sheep Development
(Pty) Limited, and in the absence of the Applicants, a representative
of Respondent proved a claim against the
estate of the said company.
It is further recorded in a copy of the minutes of that meeting that
the said representative uplifted
the proved claim after the
proceedings.
10.
Section 44(1)
of
the
Insolvency Act provides
that a creditor may prove its claim at a
meeting of creditors against an insolvent estate. Subsection 4 of the
same
Section 44
provides that such claim must be in the form of an
affidavit.
11. The Applicants
therefore contend that reference to claim in this context refers to
an affidavit that was used to present and
prove a claim, which
affidavit was uplifted by the representative of Respondent at the end
of the meeting.
Evaluation of
evidence
12.
The Court in
Penta
Communication Services (Pty) Ltd v King
2007 (3) SA 471
(C)
has
cautioned against attaching a wider meaning to the word
“
document’
in
Rule 35(12).
In particular, even though it need not be described in
detail, a document need not be inferred but rather be directly
referred
to in the pleading or affidavit.
13.
It is correct that reference to the words
“
proved
a claim
”
and
*
claim proved
3
’
is
made in the founding affidavit of the pending application. The words
as quoted above appear in paragraph 136 of the affidavit
on page 98
of the documents filed.
14.
According to
Concise
Oxford Dictionary
,
Eleventh Edition,
Oxford Press 2006,
a
claim is an object or something that is being asserted, demanded or
considered to be one’s due. This is a meaning of
“
claim"
as
a noun and it can also be expressed as a verb, meaning to acquire
something. This process of acquiring may either be oral, written
or
even by conduct.
15.
Section 44
of
the
Insolvency Act provides
for the prove of claims against an
insolvent estate. In particular, subsection (4) thereof provides:
“
Every
such claim shall be proved by affidavit in a form corresponding
substantially with Form C or D in the first schedule to this
Act"
16.
There can be no argument that the affidavit
“
in
a form corresponding substantially with Form C or D in the first
schedule to this Act”
refers
to a document. See
ABSA
Bank Limited v The Master and Others NNO
1998 (4) SA 15
(NPD) and
Eastern Free State Cape Cooperative Ltd v The Master and Others
1997
(3) SA 899
(ECD).
17.
I am of the view that the Applicants are correct in their submission
that
“
proved
a claim”
within
the context of insolvency proceedings can only mean presentation of
an affidavit in the form prescribed by
Section 44(4)
of the
Insolvency Act. Further
, a copy of the minutes of the meeting in
which the claim was proved indicates that one Chris Edeling attended
on behalf of Respondent
with his signature appearing at the bottom of
the first page of the minutes of proceedings. Below his signature
stand the words
“
claim
uplifted Chris Edeling”.
This
is a clear indication that the claim was in the form of a document
which was uplifted.
18.
In my opinion, the phrase
“
proved
a claim
”
as
used within the context of
Section 44
of the
Insolvency Act refers
to
submission of an affidavit, which is a document within the meaning of
Rule 35(12).
As I have already stated, the Respondent did not present
any argument or cogent reasons why it refuses to make available to
the
Applicants, copies of the subpoenas that were issued against the
banks.
Conclusion
19. Considering the
conspectus of the evidence before me as traversed in the papers, I am
of the view that the application should
succeed and the Respondent
should be ordered to produce the proved claim in the form of an
affidavit as well as subpoena issued
to the banks.
20.
It is further common cause that this matter first appeared before Mr
Justice Prinsloo on the 17
th
April 2013. Mr Justice Prinsloo was sitting in the urgent Court and
could not adjudicate on the matter as it was not ripe for hearing.
He
accordingly gave directives in regard to the filing of further
affidavits and directed that the matter be set down in the next
urgent Court roll. The Respondent argues that it is entitled to the
costs of the appearance before Mr Justice Prinsloo in that
the
Applicants placed the matter prematurely before Court. In response
thereto, the Applicants argue that the reason this matter
was placed
before Mr Justice Prinsloo before the parties concluded the exchange
of papers, was that the pending application was
also set down on the
same day and was due to be heard. The pending application had to be
postponed
sine die
to
make way for the hearing of this application.
21.It seems to me
that the Applicants delayed in bringing this application to Court,
given the history of the previous unsuccessful
attempts to lodge a
similar application in the South Gauteng High Court. The fact that
this application had to coincide with the
hearing of the pending
application is of the Applicants’ doing and cannot thus be held
against the Respondent. I am therefore
of the view that the
Applicants have to pay the wasted costs of the appearance on 17 April
2013 before Prinsloo J.
22. In regard to the
costs of this application, such costs should follow the result.
23. In the premises
I make the following order:
1. The application
succeeds and the Respondent is ordered to produce for inspection and
allow Applicants to make copies of the documents
requested by the
Applicants in terms of
Rule 35(12)
notice, which includes the
affidavit of the proved claim against the estate of Black Sheep
Development (Pty) Ltd and the witness
summonses and/or subpoenas
issued by the Master to various banks;
2. That the
documents referred to in above must be produced and made available to
the Applicants within seven days from the date
of this order;
3. The Applicants
are ordered to pay the wasted costs of the 17
th
April
2013; and
4. The Respondent is
ordered to pay the costs of this application excluding the wasted
costs of the 17
th
April 2013.
MOTHLE J
Judge of the High
Court
For the Applicants:
Adv : S.C. Vivian
Instructed by:
HORAK
INCORPORATED ATTORNEYS
Tel: (011)469 5581
Fax: (011)469 5582
E-MAIL
:
marina@horakinc.co.za
c/o
GEYZERVAN ROOYEN ATTORNEYS
383 Farenden street
Arcadia
Pretoria
Tel: (012) 344 1445
Fax: (012) 344 3346 Ref: Mr C Geyzer/Farina
For the Respondent:
Adv : D.M. Leathern
SC Adv. P Bosman
Instructed by:
NORTON ROSE SOUTH
AFRICA
Ref: G Stein/reu41
Tel: (011) 685 8500
Fax: (011)301 3515
Co/VAN DER MERWE
DU TOIT INCORPORATED
CNR BRONKHORST & DEY
STREET
BROOKLYN, PRETORIA
REF : MR C VAN
EETVELD