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[2009] ZAGPJHC 32
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Bernert v Swanepoel and Others (28623/09) [2009] ZAGPJHC 32; [2009] 4 All SA 440 (GSJ) (21 July 2009)
IN GAUTENG SOUTH
HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: 28623/09
21/07/2009
In the matter between
RICO BERNERT Applicant
and
K W J SWANEPOEL 1
st
Respondent
JACO ROOS ATTORNEYS 2
ND
Respondent
TUTOR TRUST (PTY) LTD 3
RD
Respondent
VENDITOR AUCTIONEERS 4
TH
Respondent
VAN HEERDEN VAN STADEN ATTORNEYS 5
TH
Respondent
DR FRANS GERBER 6
TH
Respondent
THE REGISTRAR OF DEEDS 7
TH
Respondent
THE BODY CORPORATE RIVER GLADES ESTATE 8
th
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
VAN OOSTEN J
: This is an application which comes
before me by way of urgency. The applicant appears in person. The
application is opposed by
the first and second respondents only. The
relief sought by the applicant in essence is aimed at preventing the
sale and transfer
of an immovable property known as Unit 98,
Riverglades (the property). A number of issues, including the
urgency of this matter
and the
locus standi
of the applicant
to bring this application, were dealt with in argument before me. In
view of the long and chequered history of
the litigation between the
parties all essentially in one way or another concerning the
ownership of the property, I have decided
in the interests of justice
to confine this judgment to the issue which in my view is decisive of
the application.
The applicant and his former wife were the only members of a close
corporation known as Unit 98 Riverglades CC (the CC). The CC
is the
registered owner of the property. The saga of litigation I have
referred to, has its genesis in the voluntarily liquidation
of the CC
obtained by the applicant some seven years ago. Thereafter litigation
ensued in a number of applications both in this
court, as well as in
the North Gauteng Division of this court. In the view I take of this
matter it is not necessary to fully
deal with all these applications.
Time constraints further do not allow me to venture beyond the issue
which I propose to determine.
The relief sought by the applicant is predicated upon an order
granted in this court by Mathopo J, on 11 March 2009. The order
was
sought in an application brought by the applicant against the present
first respondent (as second respondent), and the Master
of the High
Court (as first respondent). Regrettably for the reasons that I will
presently deal with, the terms of the order have
become shrouded in
uncertainty and controversy.
I shall begin with the proceedings before Mathopo J, when the order
was sought by the applicant. A transcript of those proceedings
is
before me. According to the transcript Mathopo J granted the
following order:
In this matter I give the following order. The second respondent
(ie KWJ Swanepoel NO) is removed as a provisional liquidator with
retrospective effect to 26 March 2002.
Swanepoel, I interpose to mention, was the duly appointed liquidator
of the CC in liquidation. The date of his appointment is 26
March
2002. Although the order refers to a provisional liquidator I should
point out that no provisional liquidator was appointed
at any stage.
Be that as it may, two official court orders duly signed and stamped
by the Registrar of this Court, were subsequently
issued containing
orders quite different from that ordered by Mathopo J. The first
order (with date stamp 19/03/2009) reads as
follows:-
The Close Corporation, Unit 98 Riverglades CC, Registration
Number CK1996/044294/23 is in business and out of liquidation.
Subsequently (on 31/03/2009 so it appears from an indistinct date
stamp) the following order was issued:-
1. The Close Corporation, Unit 98 Riverglades CC, Registration
Number CK1996/044294/23 is in business and out of liquidation.
2. That Kareel (sic) JW Swanepoel NO (liquidator) be and hereby
removed as “liquidator” of the Close Corporation, Unit
98
Riverglades CC, under voluntary liquidation Master’s Reference
Number T1039/2002 with effect 26
th
March
2002.
It now appears that the applicant after the order was made on 11
March 2009, approached Mathopo J, probably with the view of
clarifying
the terms of the order. In response thereto a letter by
the “Clerk to Mathopo J” dated 26 March 2009 and
unsigned,
was addressed to the applicant, which reads as follows:-
1. Kindly be advised that your court order has been rectified.
You can lift up the correct court order with prayers 1 and 2.
The “rectification” of the court order, accepting that it
was affected, was done without notice to the respondents.
That
brings into question the propriety of the “procedure”
that was followed. The uncertainty that has now arisen
concerning
the terms of the order in my view is of such a serious nature that I
would not have been inclined to accept it on face
value for purposes
of this application. But, I do not consider it necessary to deal any
further with this aspect as the matter
can and in my view should be
decided on a different basis, which brings me to the relief sought by
the first and second respondents
in a counter application.
In the counter application the respondents seek a rescission of
Mathopo J’s order. The contents of the court file in that
matter has, as I was informed and as it moreover appears from the
papers before me, gone missing. When the matter was argued before
me
the applicant, somewhat surprisingly, informed me that he was in
possession of copies of the file contents. I ordered the applicant
to
hand his file containing those copies to respondent’s counsel
for his perusal. Having done so counsel informed me that
a great
number of original court documents that should have been in the court
file, formed part of the applicant’s file.
In order to prevent
further confusion I ordered that the file be admitted as Exhibit “A”
in these proceedings.
A negative inference concerning the applicant’s conduct
immediately comes to mind, but in the absence of the applicant having
been afforded the opportunity to deal with it, I refrain from
commenting any further. Suffice to say that for the reason to follow
Mathopo J’s order cannot be allowed to stand. On 1 September
2008 an order concerning the liquidation of the CC and the power
of
Swanepoel to continue with the liquidation was made by Nthai AJ in
the Transvaal Provisional Division of this court. The order
reads as
follows:-
1
. Dat
verklaar word dat die applikant (ie
the CC in
liquidation)
in likwidasie is.
2. Dat verklaar word dat geen beletsel bestaan
wat die likwidateur (ie Swanepoel NO) verbied om die proses van
likwidasie van die
applikant in die normale loop van sake voort te
sit nie.
3. Die tweede respondent (ie the Registrar of
Deeds) verbied word om die eiendom oor te dra, te beswaar daarmee of
in verband daarmee
te handel sonder skriftelike toestemming van die
likwidateur.
4. ‘n Bevel tot terug transportering van
die deeltitel eenheid, bekend as Eenheid 98 in die deeltitelskema
Riverglades Estate,
Gauteng, tesame met die onverdeelde aandeel in
die gemeenskaplike eiendom soos in die tersaaklike deelplan
aangetoon, vanaf die
vierde respondent (ie Marcell Matthysen) na die
applikant.
5. ‘n Bevel tot rojering van enige
verband oor bovermelde eiendom geregistreer ten gunste van die vyfde
respondent (
Standard Bank of South African Limited).
6.
Dat koste van die aansoek in die
administrasie van die applikant (sic) sal wees.
7.
That the counter application
(“
interlokutoriese aansoek”)
is
dismissed.
Mathopo J’s order is in direct conflict with and in fact
squarely the opposite of Nthai AJ’s order. That being the
situation the applicant (who was the third respondent in the
application before Nthai AJ) in the face of Nthai AJ’s order
was obviously not entitled to seek a contrary order in another
Division of this Court before another Judge without mentioning in
the
last mentioned application the existence of Nthai AJ’s order.
That however is exactly what the applicant has done.
It is common cause that no mention at all was made in the application
before Mathopo J of Nthai AJ’s order. More than sufficient
grounds, including possible fraud and the erroneous granting of the
order by Mathopo J, accordingly exist warranting the rescission
of
Mathopo J’s order. Upon rescission of the order the basis upon
which the relief is sought in the present application ceases
to exist
and the application for this reason alone falls to be dismissed.
Counsel for the respondents urged me to grant costs against the
applicant on a punitive scale. In my view the request is well
founded. The applicant’s conduct in these proceedings has been
anything but courteous and civilised. He has availed himself
of
dubious tactics, unfounded, scurrilous allegations and derogative
language all deserving as a mark of this Court’s disapproval
thereof, a punitive costs order. He has moreover withheld material
information concerning the order of Nthai AJ from Mathopo J
which,
had it been disclosed, would most certainly have resulted in a
different order. Mathopo J was undoubtedly misled by the
applicant’s
conduct. In these circumstances it is just and fair that the
respondents should not be out of pocket concerning
the costs of this
application, which clearly was misconceived right from the outset.
In the result I make the following order.
1. The application is dismissed.
2. The order including all subsequent additions and/or amendments
thereto and/or rectification thereof granted by Mathopo J on
11 March
2009 in case number 23127/05 is set aside.
3. The applicant is ordered to pay the first and second respondent’s
costs of this application, including the costs of the
respondents’
counter application on the scale as between attorney and client.
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