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2012
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[2012] ZANCHC 27
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Anasafon (Pty) Ltd and Another v Master of the Northern Cape Division of the High Court and Others (631/2011) [2012] ZANCHC 27 (8 June 2012)
Verslagwaardig:
Sirkuleer
Aan Regters:
Sirkuleer
aan Streeklandroste
Sirkuleer
Aan Landdroste:
JA
/ NEE
JA
/ NEE
JA
/ NEE
JA
/ NEE
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
631 / 2011
Datum
verhoor: / Date heard:
30 / 04 / 2012
Datum
gelewer: / Date delivered:
08 / 06 / 2012
In the matter between:
ANASAFON (PTY) LTD
…........................................................
1
st
Applicant
DIAMOND CORE
RESOURCES (PTY) LTD
…...........................
2
nd
Applicant
and
THE MASTER OF THE
NORTHERN CAPE DIVISION
…..........
1
st
Respondent
OF THE HIGH COURT
BRIAN ST CLAIR
COOPER
…..............................................
2
nd
Respondent
JOHAN ENGELBRECHT
….....................................................
3
rd
Respondent
VINCENT MATSEPE
…........................................................
4
th
Respondent
GARY BOTHA
…..................................................................
5
th
Respondent
CHRIS EDLING
…...............................................................
6
th
Respondent
JOHN WALKER
…...............................................................
7
th
Respondent
Coram:
Hughes-Madondo
AJ
JUDGMENT
HUGHES-MADONDO AJ
The applicants seeks
the following order:
Interdicting the first
respondent from:-
Confirming the
accounts of the second to seventh respondents, and/or any other
person asserting a right or entitlement to recover
fees arising out
of the administration and/or liquidation of the second applicant
while in liquidation;
alternatively
Determining the
administration fees and expenses of the second to seventh
respondents, and any other person asserting a right
or entitlement
to recover fees arising out of the administration and/or
liquidation of the second applicant while in liquidation.
Declaring that:-
After 27 September
2010, being the date on which the winding up of the second
applicant was set aside, the Master has no power
or authority to
confirm any accounts submitted in the estate of the second
applicant; and, the Master has no power or authority
to determine
the fair and reasonable administrative fees and expenses of the
joint liquidators, or any other person asserting
a right or
entitlement to recover fees arising out of the administration of
the second applicant while in liquidation.
The Master’s
determination of the fair and reasonable administrative fees and
expenses dated 1 September 2010 constitutes
the determination
contemplated in paragraph 5 of the Court Order dated 27 September
2010, a copy of which is annexed to the
founding affidavit as
annexure ST1 “the Court Order”;
The second to seventh
respondents and any person asserting a right and entitlement to
recover fees or expenses arising out of
the administration of the
second applicant while in liquidation, entitled to the fair and
reasonable fees, jointly and severally,
as a
negotiorumgestor
for the second applicant while in liquidation.
In the absence of
agreement between the parties, the recovery of such fees is to
proceed by way of action against the second
applicant.
Ordering the second to
seventh respondents to provide an accounting, including a detailed
report of all activities undertaken
as agents for the company in
liquidation, within 3 months of the date of this order, to the
second applicant of their administration
of the company while in
liquidation; and/or their conduct in relation to the second
applicant while in liquidation.
Directing that the
funds standing to the credit of the account of Savage Jooste &
Adams, and contemplated in paragraph 7 and
8 of the Court Order,
remain in trust pending the outcome of the proceedings foreshadowed
in paragraph 2.4 above: provided that
the proceedings foreshadowed
in paragraph 2.4 are instituted within 30 days of the date of this
Order, failing which the fees
are to be paid to the second to the
seventh, jointly and severally.
Ordering such
respondents who oppose this application to pay the costs thereof.
At the commencement of
these proceedings the 2
nd
and3
rd
Respondents
sought that the matter be postponed
sine die
withcosts
reserved. One of the argumentstendered for seeking the postponement
is that, on the advice of senior counsel the respondentsappreciate
that they now need to file an answering affidavit to the main
application, as they had failed to do so following the advice of
their attorney. A further issuewas that of insufficient security
paid in by the applicants, this aspect needs to be canvassed
in
their answering affidavit of the main application. There is also the
aspect of the respondents advising the applicants on
20 April 2012
that they would be seeking an adjournment.On 23 April 2012 the
applicants responded by“
demanding a formal application for
the postponement of the matter be launched”
[see
paragraph 18 of respondents affidavit dated 26 April 2012 in support
of the postponement of this application]
.
The starting point in
dealing with an application for a postponement is what was said in
National Police Service Union v Minister of Safety and Security
2000 (4) SA 1110
(CC) at 1112-1113
, that a postponement is not
claimed as a right since the applicant requesting the postponement
seeks an indulgence from the court,
the court must be satisfied that
it would be in the interest of justice to do so. Also see
Persadh
v General Motors South Africa (Pty) Ltd
2006 (1) SA 455
(SE) at 459
where
Plasket J
articulated the principles applicable when
dealing with an application for a postponement:
“
First,
as that party seeks an indulgence he or she must show good cause for
the interference with his or her opponent’s procedural
right to
proceed and with the general interest of justice in having the matter
finalised; secondly, the court is entrusted with
a discretion as to
whether to grant or refuse the indulgence; thirdly, a court should be
slow to refuse a postponement where the
reasons for the applicant’s
inability to proceed has been fully explained; where it is not a
delaying tactic and where justice
demands that a party should have
further time for presenting his or her case; fourthly, the prejudice
that the parties may or may
not suffer must be considered; and
fifthly, the usual rule is that the party who is responsible for the
postponement must pay the
wasted costs.”
From the outset when
the respondents indicated that they would be applying for a
postponement they were informed that they should
proceed with a
formal application.The affidavit in support of the
respondent’sapplication for a postponement is scanty
to say
the least. Armed with the knowledge that there would be opposition
from the applicants as they persisted that a formal
application be
brought, the respondent’s should have taken the time and
efforttoensure that their affidavit had sufficient
facts and
particularity in order for thiscourt to consider. These facts and
particularityare necessary to inform and prepare
the applicant for
the case that they have to meet.
To my mind the reason
set out in the respondents affidavit is lacking and week, to
illustrate but a few examples: no date is supplied
to indicate when
exactly theadvice from senior counsel was received; what steps did
they take to alert the applicants of their
intentionto file an
answering affidavit which would have been out of time; as answering
affidavit would have beenout of time,
no mentioned is made of the
steps taken to launch the application for condonation; the
respondents became aware of the fact that
the security filed by the
applicants might be insufficient as far back as “
early part
of
2012”
,
nothing is advanced by the respondents as
to why they stalledin setting out the security issue in
supplementary papers in the
main application; although the
respondentsstate that they will be prejudiced nothing is set outin
their papers for this court
to consider; and lastly, they seek the
postponement to an indefinite period without even tendering the
wasted cost occasioned
by the postponement sought.
In light of the above
and the law applicable,
the application for a postponement is
refused
.
I now turn to deal
with the application for an interdict and declaration sought by the
applicants.
The subject matter of
the order sought by the applicant’s, centres around the order
made on 27 September 2010 (“the
Order”). I set out the
pertinent paragraphs of this order below:
THAT the rule nisi set
out in paragraph 1.1 of the order dated 18 June 2010 under case
number 318/10 granted by His Lordship Mr
Justice Majiedt [the
“section 354 order”] is confirmed;
THAT the remaining
orders granted in terms of the section 354 order are discharged.
THAT second Respondent
hereby withdraw their opposition to the section 354 application [the
“application”];
THAT the Applicant
[“Ansafon”] pays the Second Respondents taxed or agreed
costs on a party and party scale, including
the costs of two
counsels in respect of this application.
THAT Ansafon pay the
fair and reasonable administration fees and expenses of the second
Respondent as determined by the Master
of this court, but subject to
review and subsequent appeal, if any;
THAT as security for
the costs and expenses set out in paragraph 4 and 5 above, it is
recorded that Ansafon has paid an amount
into the trust account of
its attorney of record, Klagsbrun& de Vries Inc. [“Klagsbruns”],
of
R6 309 750.00 R2 000 000.00
of this
amount shall be paid into the first Respondent’s bank account
to liquidate or partially liquidate the overdraft
in the name of the
first Respondent at ABSA Bank in Pretoria within two days of the
second Respondent providing Klagsbruns with
the relevant banking
details. This payment shall be made without any admission of
liability but will be subject to the taxation
referred to in
paragraph 5 hereof;
THAT the remainder of
the aforesaid amount, namely R4 309 750.00 shall be
transferred into the trust account of the
firm Savage Jooste &
Adams within 2 days of date of this order, which amount is to be
invested in the name and for the benefit
of the second Respondent in
terms of section 78 (2) (A) of the Attorneys Act;
THAT Savage Jooste is
instructed to disburse the funds so held by them upon agreement
between the parties, alternatively upon
determination by the Master,
or the court as the case may be, of the amount due to the second
Respondent immediately;
THAT should the
aforesaid amount of R6 309 750.00 referred to above is
insufficient to meet Ansafon’s obligations
in terms of
paragraphs 4 and 5 above, then the first Respondent make good any
shortfall in this regard.
After the order was
granted the respondent’s submitted their liquidation account
in terms of this order on or about the
31 March 2011. These accounts
total an amountof R32 587 125.35.
In the order
Ansafonhad to pay the fair and reasonable administration fees and
expenses of Diamond Core Resources (Pty) Ltd as
determined by the
Master, but subject to review and appeal, if any. At this juncture I
would like to mention that paragraph 2.2of
the order seeks the
Masters determination of 1 September 2010 to constitute the
determination contemplated in paragraph 5 of
the order.
The Masters
determination of 1 September 2010 reads as follows:
“
Masters
Determination Of Amount Of
Security
Required For The Fair And Reasonable Administration Fees And Expenses
(Heading)
In terms of paragraph
2.2 of the Order of Court dated 18 June 2010, and after considering
various representations from the liquidators
and the applicant, I
hereby determine the amount of
security
to be provided by the
applicant in respect of the fair and reasonable administration fees
and expenses of the joint liquidators
relating to the administration
of the estate of Diamond Core Resources (Pty) Ltd (in liquidation)
to be the sum of R11 309 750.00(seeannexure).
[My
Emphasis in Bold]
This is not a usual
taxation by the Master of the liquidation fees nor is it alitigation
taxation with formal bills of cost usually
drawn by cost
consultants.”
The Master’s
determination of security was issued in terms of an order dated 18
June 2010. Paragraph 2.2 deals with providing
“security...in
respect of: the fair and reasonable administration fees and expenses
of the joint liquidators relating to
the administration of the first
respondent (being Diamond Core Resources (Pty) Ltd, in that case)as
determined by the Master”
before the return date
.[ Para 2
2.2 of the order dated 18 June 2010]
The Master considered
various representations and the request made of the joint
liquidators dated 4 August 2010
[see Annexure FA4page 31to the
applicant founding affidavit]
. The Master in his report states
categorically that the determination of security that he made does
not involve the usual taxation
of the liquidation fees and neither
litigation taxation.
At this point I
propose to refer to the Concise Oxford English dictionary to
ascertain the meaning of
security
, one of the meanings
pertinent to this case scenario is that it is“
a thing
deposited or pledged as a guarantee of the fulfilment of an
undertaking or the payment of a loan, to be forfeited in case
of
default.”
As the Master’s
determination was for the provision of security, this security was a
deposit or pledged as a guarantee,
which was requiredto be made
before the return date. This was clearly not the 27 September 2010
whenthe order was issued. I do
not agree that the determination of
the 1 September 2010 may be ascribedto the determination required in
terms of the order.
In the Master’s
report dated 15 April 2011, in respect of this application, he
clearly states that he was complying with
his duties in terms of the
court order when he accepted the joint liquidator’s accounts
to determine the fair and reasonable
administration fees and
expenses. I agree with the Master.
The liquidation as it
was set aside allows for an accounting and payment of the work done
during the liquidation period. The joint
liquidators are thus
entitled to be paid in terms of Section 384 of the Companies Act no
61 of 1973. More so in this instance
as it was ordered on 27
September 2010.
See Henochsberg on Companies Act Vol. 1 at page
812
, “
Where a provisional winding-up order is
discharged a provisional liquidator is entitled to payment bythe
company of his remuneration
as such
(cf Van Eck v Meyer
1964 (4) SA 609
(GW)
”
.
As alluded to above, I
agree with the Master, that he wouldbe performing his duties in
terms of a court order.This is how the
Master and the respondent’s
interpret the order, whilst on the other hand the applicants contend
that the taxation of the
joint liquidators accounts were not suppose
to be submitted or taxed in terms of the order. There clearly exists
an issue in
respect of the interpretation of paragraph 5 of the
order.
In terms of Section
19(1)(a)(iii) of the Supreme Court Act 59 of 1959, this court “
in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing, future or contingent
right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.”
To my mind
there exists a real dispute between the parties in respect of
interpretation of the paragraph 5 of the order. The applicant
seeking to impress upon this court to do all that is necessary to
rubber stamp its interpretation of the paragraph.
I am of the view that
what the applicant seeks of this court is to wrestle with an
abstract and academic issue of interpreting
paragraph 5 of the order
of 27 September 2010. In so doing I reiterate the principle set out
in the quoted case below, that it
is not the function of the court
to act as an adviser to the litigants.
See Shoba v Officer
Commanding, Temporary Police Camp, Wagendrift Dam; Maphanga v
Officer Commanding, SAP Murder & Robbery,
Pietermaritzburg
1995
(4) SA 1
(AD) at 14A-H.
In conclusion I do not
consider that this case is one that falls to be considered under
section 19(1) (a) (iii).
Turning to the issue
of costs. A settlement agreement was concluded and made an order of
court on 18 April 2011. According to
this agreement the costs of the
urgent interlocutory application and the wasted costs of the
postponement of the taxation were
to stand over and be determined by
the court that considered the application for the declarator.
In this application
the costs will follow the successful party. Likewise the costs of
the urgent interlocutory application and
the wasted costs for the
postponement will follow the successful party.Therefore costs are
awarded to the respondent’s.
[24] I therefore make
the following order:
The application for
a postponement is refused.
The application for
a declaration is dismissed with costs inclusive of the costs of the
urgent interlocutory application and the
wasted costs of the
postponement of the taxation.
_____________________________
W HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
costs of such proce
Obo
Applicant:
ADV
K W LϋDERITZ SC obo De Jager Atoorneys
Obo
2
nd
and
3
rd
Respondents:
ADV
VAN TONDER obo John Walker Attorneys