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[2013] ZAGPPHC 169
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Bakkes v Strydom NO and Others (42570/2012) [2013] ZAGPPHC 169 (14 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
CASE
NUMBER: 42570/2012
DATE:14/06/2013
In
the matter between:
JOHAN HENDRIK BAKKES
…..................................................................................
APPLICANT
and
PIETER
HENDRIK STRYDOM
N.O.
...........................................................................
FIRST
RESPONDENT
JOHN
RODERICK GREAME POLSON
N.O.
...........................................................
SECOND RESPONDENT
LOUIS
STRYDOM
N.O.
................................................................................................
THIRD
RESPONDENT
STRIJDOM
AJ
DATE
OF JUDGMENT: 14 JUNE 2013
JUDGMENT
NATURE
OF APPLICATION:
1.
The Applicant applies for leave to be granted to him to initiate and
proceed with arbitration proceedings against Corporate Money
Managers
(Pty) Ltd (under curatorship) for payment of the Applicant’s
salary/bonuses/retrenchment package and for a costs
order against the
Respondents.
2.
Applicant also applies to the above Honourable Court to strike out
certain allegations of the Respondents in terms of the provisions
of
Rule 6 (15).
COMMON CAUSE FACTS:
3.
It is common cause:
3.1.
That in terms of the provisions of
Section 5
of the
Financial
Institutions (Protection of Funds) Act, No 28 of 2001
the company
Corporate Money Managers (Pty) Ltd (hereinafter referred to as “CMM”)
was placed under provisional curatorship
on 28 April 2009 and finally
on 18 June 2009.
3.2.
That the Respondents were appointed as curators and the curatorship
still exists.
3.3.
That in terms of the Court Order, all claims, actions, proceedings,
the execution of all writs, summonses and other process
against CMM
are, whilst the curatorship exists, stayed and may not be instituted
or proceeded with, without the leave of the Court.
3.4.
That on 25 June 2005 the Applicant and CMM concluded a written
contract of employment in terms whereof the Applicant was appointed
as chief executive officer and that he has been in the employment of
CMM since the acceptance of a written offer.
THE FACTUAL DISPUTES BETWEEN THE
APPLICANT AND RESPONDENTS:
4.
The factual disputes between the Applicant and Respondents are:
4.1.
Whether or not the Applicant’s employment has been terminated
and/or whether or not the said contract of employment
was cancelled.
The Applicant states that his employment has never been terminated
and/or the said contract of employment has never
been cancelled. The
Respondents states that the Applicant was dismissed at the end of
April 2009 and even if he was not dismissed,
they terminated his
employment on 13 July 2009. The amount payable to the Applicant as
salary, bonuses and the retrenchment package
are also in dispute.
4.2.
Whether there was an agreement between the Applicant and the
Respondents insofar as a retrenchment package is concerned.
5.
In terms of the provisions of clause 14 of the Applicant’s
contract of employment a dispute of any nature whatsoever will
be
dealt with in accordance with a private dispute resolution procedure
as envisaged in
Section 158
(3) (d) of the
Labour Relations Act, 66
of 1995
, and will be resolved in accordance with the rules of the
Arbitration Foundation of South Africa.
6.
It was submitted by Counsel for the Applicant that this Court is not
requested to make any decision on the merits of the factual
disputes
as it is the duty of the arbiter to make such a decision. It was
further submitted that the allegations by the Respondents
on the
answering affidavits regarding the fraudulent and/or reckless and/or
negligent conduct of the Applicant are totally irrelevant
for the
purpose of this Application.
7.
Counsel for the Respondents submitted that before exercising its
discretion, the Court must consider the merits and circumstances
of
each case.
8.
Counsel for Respondents further submitted that there is no real
dispute of fact where the Applicant, in his replying affidavit,
merely denies the allegations made by the Respondents in their
answering affidavit.
9.
A bare denial of the Respondents’ allegations in their
affidavits will not in general be sufficient to generate a genuine
or
real dispute of fact. It has been said that the Court must take ‘a
robust, common-sense approach’ to a dispute on
motion and not
hesitate to decide an issue on affidavit merely because it may be
difficult to do so.
See:
Gemeenskapsontwikkelingsraad v Williams (2)
1977 (3) SA 955
(W)
Soffiantini
v Mould
1956 (4) SA 150
(E)
10.
In Wightman t/a JW Construction v Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) at 375F-376B the following is stated:
“
A
real, genuine and bone fide dispute of fact can exist only where the
Court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguousiy addressed the fact
said to be disputed.......... When the facts averred
are such that
the disputing party must necessarily possess knowledge of them and be
able to provide an answer (or countervailing)
evidence if they be not
true or accurate but, instead of doing so, rest his case on a bare or
ambiguous denial the Court will generally
have difficulty in finding
that the test is satisfied. ”
11.
In the Answering Affidavit of the First Respondent he, inter alia,
alleged that there were numerous examples of reckless and
grossly
negligent management on the part of the Applicant and it was
submitted that the Applicant, being in charge of CMM and the
fund, is
a major cause for the investors losses of approximately R1,2 billion.
12.
Serious allegations of fraud against the Applicant is made in the
Answering Affidavit and it is alleged that the fraud continued
even
after CMM was placed under curatorship.
13.
The Applicant in his Replying Affidavit did not provide an answer to
the allegations made in the Answering Affidavit of the
Respondents.
Instead of doing so he rest his case on a bare denial.
14.
In my view the bare denial of facts stated in the Respondents’
Answering Affidavit is not sufficient to generate a genuine
or real
dispute of fact.
THE DISCRETION OF THE HIGH COURT:
15.
The discretion of this Court is a judicial discretion. Before this
Court exercise its discretion, it will consider the merits
and
circumstances of the case.
16.
I am of the view that the Court has to consider the following
criteria in this matter:
16.1.
The Applicant’s prospects of success in respect of the intended
arbitration proceedings;
16.2.
Remuneration and the question whether the Appiicant has been
dismissed;
16.3.
The Applicant’s alleged entitlement to a retrenchment package;
16.4.
The Applicant’s alleged entitlement to bonuses;
16.5.
The Applicant’s alleged entitlement to benefits;
16.6.
The consequences of the Order that the persons who had managerial
powers in respect of the management of business of the CMM
had been
divested thereof;
16.7.
The prejudice of the investors.
17.
There is no merit in the submission made by Counsel for the Applicant
that the Court must not consider the facts stated by the
Respondents
in their Answering Affidavit for purposes of this Application.
18.
An analysis of the Founding Affidavit shows that the Applicant has
not addressed the issue of the prospect of success. I agree
with the
submission made by Counsel for the Respondents that one would have
expected that the Applicant would show that there is
a strong
prospect of success in respect of his intended claim against the CMM
for remuneration, bonuses, benefits and a retrenchment
package
allegedly owed to him.
THE
APPLICANT'S APPLICATION TO STRUCK OUT CERTAIN PORTIONS
OF
THE ANSWERING AFFFIDAVIT:
19.
It was submitted by the Counsel for the Applicant that certain
allegations in the Respondents’ Affidavit are “scandalous,
vexatious and irrelevant”.
20.
In my view the Applicant’s conduct as alleged by the
Respondents in their answering affidavit is relevant and must be
considered by this Court to exercise my discretion in deciding
whether the Applicant has any prospect of being successful with
his
intended arbitration proceedings against the CMM.
21.
Having perused and considered the facts stated in the papers before
me I am of the view that the Applicant has no prospect
of success to
succeed with a claim of remuneration, bonuses, benefits and a
retrenchment package against the CMM in the intended
arbitration.
22.
It follows that the Application is dismissed and the following Order
is made:
22.1.
Condonation is granted for the late delivery and filing of the
Respondents’ Answering Affidavit.
22.2.
The Application to strike out the paragraphs in the Answering
Affidavit and the annexures identified in the Applicant’s
Heads
of Argument is dismissed.
22.3.
The Applicant’s Application for leave to be granted to him to
initiate and proceed with arbitration proceedings is dismissed.
22.4.
Applicant must pay the costs of this Application.
SIGNED
AT PRETORIA ON THIS THE 14
th
DAY OF JUNE 2013
JJ
STRIJDOM
ACTING
JUDGE: NORTH GAUTENG HIGH COURT
COUNSEL
FOR APPLICANT: ADV MM SNYMAN
ATTORNEYS
FOR APPLICANT: EY STUART
COUNSEL
FOR RESPONDENTS: ADV W LUDERITZ
ATTORNEYS
FOR RESPONDENTS: ROESTOFF & KRUSE