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[2009] ZAGPPHC 180
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Dadabhay and Others v Dadabhay and Others (56836/2007) [2009] ZAGPPHC 180 (26 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG, PRETORIA
Date
heard: 23 March 2009
Case
Number: 56836/2007
In
the matter between:
ISMAIL
SULIMAN DADABHAY
................................................
First
Applicant
FAZILA
DADABHAY PARUK
.............................................
Second
Applicant
SAYDA
(AKA SAIDA BANOO)
DADABHAY
.........................
Third
Applicant
NAFISAH
DADABHAY OMARJEE
…................................
Fourth
Applicant
and
AHWIED
SULIIVIAN DADABHAY
.........................................
First
Respondent
ROCKEYA
SULIMAN DADABHAY
…............................
Second
Respondent
RASHID
SULIMAN DADABHAY
…....................................
Third
Respondent
AKHTER
MOOSA
................................................................
Fourth
Respondent
THE
MASTER OF THE HIGH COURT
.................................
Fifth
Respondent
JUDGMENT
LOUW
J
Introduction
1.
The applicants seek various forms of relief in their main
application, which, according to the notice of motion in the main
application, are to be granted in a staggered fashion:
1.1.
The first and introductory part of the relief is for the substitution
of Mr Berrange for the current fourth respondent as the
trustee of
the Suliman Dadabhay Will Trust (“the Trust”) which
became terminated on 28 February 2007 (notice of motion
in main
application, p3).
1.2.
That, once Mr Berrange has substituted the fourth respondent as
trustee of the Trust, his powers (to be derived from the order
of
Court of 8 November 2006 - pp14 and further) be
“stayed
pending final determination of the action to be instituted"
by the applicants, forming the subject matter of prayer 4 (prayer 3
in main notice of motion, p4).
1.3.
The applicants then seek interim preservation and management relief
in relation to a list of assets, alleged to be assets of
the Trust,
pending the determination of the said action to be instituted by
them. This interim relief relates to preservation and
management
steps that are to be taken by Mr Berrange, once he has been appointed
pursuant to a determination of the relief sought
in prayer 1 (notice
of motion in main application, pp5-12, paras 5-10).
1.4.
The interim preservation and management relief is then to endure
pending the determination of the action which the applicants
propose
instituting for declaratory relief as to the ownership of the long
list of assets set out on annexure “B” to
the notice of
motion (notice of motion in main application, para 4; annexure “B”
- p18).
2.
The first three respondents, on the one hand, and the fourth
respondent, on the other, delivered separate answering affidavits
to
the applicants’ notice of motion in the main application. The
four respondents have identified substantial and far-reaching
disputes of fact relating to a whole array of complicated issues
arising from these affidavits. The four respondents are therefore
of
the view that the application should be referred to trial in terms of
the provisions of rule 6(5)(g) and that a referral to
oral evidence
is totally inappropriate.
3.
Notwithstanding this view of the four respondents which has over a
period of time consistently been conveyed to the applicants’
attorneys, the applicants proceeded with the current interlocutory
application namely an application for referral to oral evidence.
4.
Before we get to the referral application it is necessary to
emphasise the following:
There
are six private companies which are closely related to the Dadabhay
family, the trust and investments but so far these companies
have not
been joined in the application. Realising this difficulty the first
four applicants on 28 January 2009 delivered an application
for the
joinder of these companies. In that application, which was not
opposed I granted the following order:
1.
IE Dadabhay and Company (Pty) Ltd, Littonia investments (Pty) Ltd,
Sedson industries (Pty) Ltd, Dadaville Estate (Pty) Ltd, S
E Dadabhay
Family Investment Company (Pty) Ltd and 139 Dadaville (Pty) Ltd are
joined respectively as the sixth to the eleven respondents
in this
matter.
2.
The applicants are directed jointly and severally to pay the costs of
the first to the fourth respondents caused by the joinder.
5.
There was a further application by the applicants before we could
deal with the main issue of referral to trial or to evidence.
This
flowed from the fact that in the answering affidavits of the
respondents it was pointed out that whilst the original notice
of
motion did not ask for any final relief in respect of assets, the
proposed amended draft order now do so. According to the original
notice of motion the ownership of the assets of the trust would have
been determined in a trial action (see application page 3
prayer 4).
6.
The applicants have now changed their original approach as per the
2007 notice of motion. Instead what I have before me is a
notice of
application delivered on 6 March 2009 in terms of which:
1.
The matter is to be referred for the hearing of oral evidence on a
preferential basis.
2.
The oral evidence will determine what percentage if any of the
shareholding in the six companies that have just been joined,
is
beneficially owned by the SE Dadabhay trust.
3.
Whether the trust is also the owner of three immovable properties
namely portions 45 of the farm Vlakfontein, Erf 205 and 219
Dadaville
estate
4.
The last substantial relief that is requested is an inquiry into the
manner Mr Moosa performed his duties as trustee, obviously
with the
intention of having him removed and a certain Berrange substituted as
trustee for Moosa.
7.
The first to fourth respondents objected to this proposed list of
issues for referral to oral evidence, as that was not contemplated
in
the original notice of motion. According to the original notice of
motion, paragraph 4 thereof, ownership of all the various
assets
listed in annexure B to that affidavit would have been determined by
a trial court. Apart from the fact that the respondents
argue that
that is the only sensible way to do so, having regard to the
multiplicity of issues and massive disputes of fact, it
is further
unfair to now, order the respondents to evidence in circumstances
where they have only so far opposed an interim interdict
with the
assurance that the trial will happen later, during which trial their
full versions could have been stated and ventilated
in a proper way.
8.
A further aspect that militates against a referral to evidence at
this stage is the fact that six new respondents namely respondents
six to eleven have just been joined and their versions are not before
the court.
9.
Faced with these difficulties the applicants at a late stage i.e. 20
March 2009, attached to their written argument, an amended
notice of
motion marked A. At the hearing the applicants asked for the original
notice of motion to be substituted by that amended
notice of motion
marked A. There was no opposition from the other parties and
therefore I granted the following order:
1.
The original notice of motion is amended to read as per annexure A to
the applicants heads of argument dated 20 March 2009.
2.
The first to fourth applicants are ordered jointly and severally to
pay the costs of the first to fourth respondents caused by
the
amendment.
10.
The amended notice of motion now seeks final relieved in regard to
the removal of the fourth respondent as trustee. Secondly
a
determination that the entire shareholding in the six companies,
already listed above, are assets of the trust and thirdly that
three
immovable properties are the properties of the trust.
11.
In spite of the amendment the stance of the first to the third
respondents and the fourth respondent remain the same. This they
argue is not the kind of case that should be referred for the hearing
of oral evidence. In that regard Mr Eloff SC referred to
the well
established principles applicable to the referral of disputed issues
for the hearing of oral evidence.
PRINCIPLES
APPLICABLE TO THE REFERRAL OF DISPUTED ISSUES FOR THE HEARING OF ORAL
EVIDENCE
12.
The procedure provided by Rule 6(5)(g) of the High Court Rules for
the referral of one or more issues for the hearing of oral
evidence
(as opposed to a referral to trial) is only appropriate in cases
where such issue/s can be easily and speedily resolved
by oral
evidence. The criterion is
“maklike
en spoedige beslegting van ‘n feitegeskil'
(Cresto
Machines (Edms) BPK v Die Afdeling Speuroffisier SA Polisie,
Noord-Transvaal,
1970
(4) SA 350
(T) at 365D-E.
13.
In
Atlas
Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd,
1978
(4) SA 696
(T), a proposed referral of disputed issues for the
hearing of oral evidence was refused, because the Court found that:
"
“...
I
cannot do so without finding that there were infringements and the
extent thereof and that I cannot do without hearing viva voce
evidence. Such hearing of evidence will inevitably assume substantial
dimensions, and will necessitate the examining of many witnesses.
The
applicable Rule of Court, viz Rule 6(5)(g), does not seem to me to
contemplate that a hearing of that sort should be directed
in a case
such as the present."
(P698F-G)
The
Court, in
Atlas
Organic’s
case,
placed reliance on the judgment of this Court in
Combrinck
v Rautenbach & Another,
1951
(4) SA 357
(T), in which the old Rule 9, which was in terms very
similar to Rule 6(5)(g), were discussed, and it was remarked at
359F-H that:
“
Reel
9 was bedoel vir uitsondelike gevaile, waar siegs een of ‘n
paar geskilpunte nie op die beedigde verklarings besleg kan
word nie.
In so 'n geval kan die Regter beveel dat van die deponente, wat die
Regter sal aandui, moet verskyn om getuienes viva
voce te gee."
14.
In
Standard
Bank of SA Ltd v Neugarten & Others,
1987
(3) SA 695
(W), it was pointed out at p699 that:
“
But
the hearing of oral evidence remains generally appropriate only to
cases where it is found 'convenient', where the issues are
'clearly
defined', the dispute is 'comparatively simple' and a 'speedy
determination' of the dispute is 'desirable'."
15.
This is not a case that can be solved easily and speedily as required
by the authorities referred to above. The various disputes
regarding
the ownership of the immovable properties and the shareholding in the
six companies have existed for a long time - it
seems since at least
the early 1990’s. Papers in the main application of
approximately one thousand pages were filed and
I am told that one
can expect to have twelve or more witnesses. This is apart from the
issue of the impeachment of the trustee
who points out that inter
alia he had done what he as trustee could do to liquidate the trust
and to distribute the trust assets
in accordance with his mandate. He
further pointed out the following difficulties he experienced:
The
enormous cost of investigation required and the fact that no evidence
had been provided by the applicants to sustain their claims.
That
no evidence had been produced to demonstrate that properties claimed
as assets of the trust belonged to the trust
That
the trust was not possessed of sufficient funds to conduct further
investigations;
That
there is no basis for his removal as trustee of the trust
16.
Having regard to the extent of the dispute and furthermore the fact
that six new parties have not even put their versions before
court,
there is no doubt that this application should be referred to trial.
Costs
17.
The matter of costs remain. The four respondent consistently opposed
applicant’s application for referral of this application
to
evidence. The application was unsuccessful and costs should follow
the event. I intend to order the applicants to pay the respondents’
costs thereof.
18.
Counsel for the fourth respondent, the trustee, also asks for costs
of the fourth respondent in respect of the application to
date, on
the attorney and client scale, on the basis that there was a
foreseeable dispute of fact when the applicants launched
the
application. As long ago as 10 July 2008 the fourth respondent in his
additional affidavit made the point that the appropriate
course to be
adopted both in regard to coming to a decision whether he should be
removed as trustee and also determining what the
assets of the trust
are, is to refer the matter to trial (see papers page 613 to 615) The
applicants, at their peril, decided not
to follow this course. I
therefore intend to grant the fourth applicant his costs incurred in
the application as from 10 July 2008
to the date of hearing i.e. 23
March 2009.
19.
All other costs in the main application are reserved including that
part of the costs I have not already awarded to the fourth
respondent.
I
therefore make the following order:
1.
The application is referred to trial
2.
The notice of motion shall stand as a simple summons
3.
The notices of intention to oppose shall stand as notices of
intention to defend.
4.
The sixth to the eleven respondents are to file their notices of
intention to oppose within 5 days of date of this order, should
they
so wish.
5.
The applicants shall deliver a declaration within 20 days of this
order.
6.
Thereafter the rules relating to actions shall apply.
7.
The applicants are ordered to pay the costs of the application for
the hearing of oral evidence dated 6 March 2009
8.
The
applicants are ordered to pay the fourth
respondent’s
costs of the main application as from 10 July 2008 to the date of the
hearing on 23 March 2009.
9.
All other costs to date are reserved for determination by the trial
court.
A.A
LOUW
JUDGE
OF THE HIGH COURT