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[2012] ZAKZDHC 62
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Plumb on Plumbers v Lauderdale and Another (8331/12) [2012] ZAKZDHC 62; 2013 (1) SA 60 (KZD) (15 October 2012)
In
the KwaZulu-Natal High Court, Durban
Republic
of South Africa
Case
No : 8331/12
In
the matter between :
Plumb
on Plumbers
...........................................................................................
Applicant
and
Trevor
Lauderdale (identity number )
(date
of birth : )
.....................................................................................
First
Respondent
Natasha
Katherine Lauderdale
(identity
number )
(date
of birth : )
................................................................................
Second
Respondent
Judgment
Lopes J
[1] This is the return day of a
provisional sequestration order granted on the 20
th
August
2012. The matter first came before me on the 20
th
September 2012.
[2] When I was reading the application
papers in preparation, some of the allegations of fact in the
founding affidavit seemed familiar
to me. I investigated the matter
and my registrar located three further sequestration applications
which had been before this court
on the 29
th
August 2012
and the 18
th
September 2012 and which contained certain
identical allegations of fact in the founding affidavits. It seemed
to me too much of
a coincidence that certain of the allegations of
fact in all the applications could be identical.
[3] I accordingly issued an order
extending the rule, and adjourning the matter to the 27
th
September 2012 before me. I made the following additional order :
‘
2.
The applicant’s attorney is directed to deliver an affidavit by
no later than the 25
th
September setting out precisely how the allegations of fact contained
in the founding affidavits in cases number 8331/12, 8440/12,
8439/12
and 6849/12 and which are identical or similar in form and content
came to form part of each of the affidavits in question.
3. In particular the
applicant’s attorney is to identify :
(a) the source of the
instructions which he received in each case;
(b) if the affidavits
were finalised by anyone other than the applicant’s attorney,
he is required to identify
(i) the identity of the
person concerned;
(ii) all instructions
given to the person finalising the affidavits.
4. The applicant’s
attorney is to explain why the requirements in the
Mthimkhulu v
Rampersad and Another (BOE Bank Intervening Creditor)
[2000] 3
All SA 512
, a judgment of Combrinck J, were not followed in all the
cases.
5. The applicant’s
attorney is directed to provide a list of all cases involving
provisional sequestration which have come
out of his office in the
last two years and which contain the same allegations.
6. Costs are reserved.’
[4] Pursuant to my order, the
applicant’s attorney filed two affidavits in which he purported
to set out replies to the queries
I had raised. As part of the reply
to my queries, the attorney for the applicant set out the details of
seventeen sequestration
matters which had been dealt with by his
office in the last 24 months. I have managed to locate a number of
those files and I set
out below matters which are of concern to me,
which are revealed by the applications :
(a) in the applications numbered
10988/2011, 11412/2011, 5610/2011, 6849/2012, 8439/2012, 8440/2012
and this matter, the following
allegations of fact are made in each
affidavit :
‘
Despite
many promises, the First Respondent (or Respondent as the matter
required) has not paid the applicant.
The First Respondent (or
Respondent as the case in each matter required) has been avoiding my
phone calls and has said to me in
many phone conversations that he
(or she as applicable) was “sorting the matter out”.
The First Respondent (or
Respondent) has simply “not sorted the matter out”.’
In each affidavit the following
allegation appears :
‘
The
Applicant did not take security from the First Respondent (or
Respondents as each matter required) as I have known the Respondent/s
for many years and I trusted the First Respondent (or Respondent as
the matter required).’
Not only was the identical nature of
the allegations of fact significant, but in some cases they were
contained in affidavits deposed
in the first person wherein the
applicant refers to himself or herself in the third person as ‘
the
applicant
.’
Further, in each affidavit the
following allegation appears :
‘
I
subsequently telephoned the First Respondent (or Respondent) and I
could gather from his (or her) voice, that he (or she) was
under a
great amount of stress and I have ascertained that the assets and
liabilities of the Respondents (or Respondent) are as
follows ...’
In the affidavit which the applicant’s
then attorney produced in response to my order of the 20
th
August 2012, he attached instructions which he had sent to counsel in
three of the cases referred to above. Those instructions
which were
in almost identical form contained only some of the allegations of
fact referred to in the founding affidavits. Some
of the allegations
of fact in the founding affidavits did not appear anywhere in the
instructions to counsel. The attorney records
that the founding
affidavits were drafted by counsel. In his supplementary affidavit
which he provided in response to a further
query by me, he stated
that he had neither had occasion to arrange a consultation with
counsel, nor had he had occasion where the
counsel involved requested
that he be provided with further information. He recorded that he did
not draft papers in respect of
sequestration applications.
(b) in cases 8439/2012 and 8440/2012
the respondents were husband and wife. The allegations in each of the
founding affidavits were
identical. This may not be a remarkable
circumstance in view of the fact that they are husband and wife, but
what is remarkable
is that the letters which they each allegedly
wrote to the sequestrating creditor and which were relied upon in
each case, were
identical in every way, save that they were signed by
the respective respondents. In the present application, the letter
addressed
by the first respondent was also in identical terms :
‘
I
wish to advise you that I am unable to pay to you the amount of R
(the applicable amount in each case was inserted here), you
may do as
you like. I am unable to pay my current liabilities.’
(c) in the cases numbered 4310/2012
and 3751/2012, the following letter was allegedly addressed to the
applicant’s attorneys
by the respondent in each case :
‘
Dear
Sir,
I am in dire financial
straits at the moment.
I have no monies to pay
to your client.
I am at a complete loss.
...
I am in the process of
selling my furniture just to make ends meet.
Your client is at liberty
to do whatever your client feels necessary.’
(d) In cases 11412/2011, 8439/2012,
8440/12 and 3455/2011 acknowledgements of debt allegedly made by the
debtor in each case are
remarkably similar. In three of those cases
the language is identical, save for the names of the parties and the
amounts owed.
Similarities in those documents makes it almost certain
that they were prepared from a precedent under the authority of the
same
person
.
They are rendered all the more suspicious by the
fact that the parties are (except the respondents in 8439/2012 and
8440/2012) apparently
unrelated.
[5] In almost all the applications
there are numerous other expressions used which are identical. It is
understandable that where
a particular deponent deposes to a number
of affidavits in separate applications (for example; a member of a
litigious company
or organisation) that that deponent may use similar
or identical phrases in describing events. For example, in
sequestration applications
many affidavits may contain similar
allegations regarding the advantage to creditors. Some of those
allegations may however, be
particular to the matter concerned, and
require allegations of fact regarding the debtor in question. Other
allegations may be
more general conclusions of law or fact (for
example that the sequestration would be to the advantage of creditors
because a liquidator
would be appointed who would investigate the
affairs of the debtor, and that such an investigation may reveal the
existence of
further assets, etc). That explanation, however, cannot
justify what has taken place here!
[6] However much the practice of
swearing an oath may have become diluted in modern society by the
inexperience or lack of training
of commissioners of oaths, or a lack
of appreciation of their functions, the swearing of an oath by a
deponent is a serious and
important function. The oath underlines the
seriousness of making the allegations of fact contained therein, and
entitles a court
to rely on these facts as evidence where they are
not challenged or disputed. The repercussions for an untruthful
deponent can
be very serious indeed, and practitioners are cautioned
against the dangers inherent in using precedents to prepare
affidavits,
without ensuring that all allegations of fact are
believed by the deponent to be true.
[7] Bearing in mind that the founding
affidavits in all the above cases came from the same firm of
attorneys, it is clear that :
the affidavits referred to above
cannot have correctly represented, in each case, facts which the
deponent believed to be true;
all of the applications were moved by
the same counsel who, according to the affidavit of the applicant’s
then attorney,
drafted at least some of the affidavits referred to
in paragraph 4(a) above;
the preparation and finalisation of
the affidavits was performed by the same person or persons who
should have, or must have had,
knowledge of the falsity of the
allegations contained in at least some, if not all, of the
affidavits.
[8] A further disturbing factor in
almost all the applications is that they fall into the category of
‘friendly’ sequestrations.
This suspicion is highlighted
by the fact that in many of the applications, proof of the service of
the provisional order was by
way of an affidavit from the debtor who
had been provisionally sequestrated. This occurs in no less than nine
of the above applications.
As stated by PC Combrinck in
Mthimkhulu
v Rampersad and Another (BOE Bank Ltd, Intervening Creditor)
[2000]
3 All SA 512
(N) at 514 h
:
‘
The
facts of the present case illustrate the manner in which the process
of friendly sequestration has been abused and is continuing
to be
abused.’
See also the remarks of Gorven J in
Ex
Parte Arntzen
(2333/2012) [2012] ZAKZPHC 66 (28 September 2012).
[9] After my order of the 20
th
September 2012, the attorneys for the applicant withdrew and the
present firm of attorneys placed themselves on record. Mr
Collingwood
who appeared for the applicant, submitted that I should consider this
application without reference to the others, in order to
determine
whether a final order should be granted. (I emphasize that neither
the present attorneys of record, nor Mr
Collingwood
, had
anything to do with the preparation of any of the applications).
In this regard, and in a not
dissimilar context, Wallis J said in
Sibiya v Director-General :
Home Affairs and Others
,
and 55 related cases
2009 (5) SA
145
(KZP) at page 170 G – I :
“
I
am well aware the a court does not lightly disbelieve what is said on
oath in an affidavit, especially in circumstances where
no opposing
affidavits have been filed and the allegations made by the applicants
have not been directly challenged. However, the
deficiencies in these
standard affidavits are so extensive and demonstrate such a disregard
for accuracy and completeness that
I am compelled to say that I
regard any such affidavit in standard form as being thoroughly
untrustworthy. That is a misfortune
for those applicants who have
genuinely been the victims of bureaucratic incompetence, and I lay
the blame squarely on the shoulders
of the legal practitioners
responsible for the preparation of the applications.’
[10] Having considered the above
applications, and given the similarities between some of them and
this application, I have no confidence
whatsoever that the affidavit
deposed to by the applicant in this application contains allegations
which are entirely accurate.
In those circumstances I do not propose
to confirm the rule nisi.
[11] I make the following order :
1. The rule nisi issued on the 20
th
August 2012 is discharged;
2. This judgment, the affidavits
furnished by the applicant’s erstwhile attorney, and the
matters referred to above are referred
to the Law Society and the
Society of Advocates for further investigation and for the taking of
whatever steps those organisations
may deem appropriate;
3. The applicant in this application
is not to bear any costs whatsoever in relation to the bringing of
the application prior to
the withdrawal of its erstwhile attorneys.
Date of hearing :27
th
September 2012
Date of judgment :15
th
October 2012
Counsel for the Applicant : A
Collingwood (instructed by Naidoo Maharaj)