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[2008] ZAWCHC 310
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Hendricks v Cape Kingdom (Pty) Ltd (14432/2008) [2008] ZAWCHC 310 (3 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NUMBER
:
14432/2008
DATE
:
3
DECEMBER 2008
In
the matter between:
FADL
HENDRICKS
APPLICANT
And
CAPE
KINGDOM (PTY) LTD
RESPONDENT
JUDGMENT
ALLIE,
J
:
In
relation to the postponement application, I have read the papers,
both of the postponement application as well as of the main
application. I have heard extensive submissions made by counsel in
this matter. I have looked at the authorities, some of which
are
familiar to me and it can certainly be regarded as trite,
particularly in relation to a postponement application of this nature
and f have to have regard primarily to the authority of Myburgh
Transport v Botha, t/a SA Truck Bodies, 1991(3) SA 310 (NMS) which
in
my view establishes the principles applicable to a Court dealing with
an application for postponement of a hearing and to quote
they are as
follows,
"1.
The trial Court has a discretion as to whether an application for
a postponement should be granted or refused."
It
clearly - so it really applies to a Court dealing with an application
as well.
"2.
That discretion must be exercised judicially. It should not be
exercised capriciously or upon any wrong principle,
but for
substantial reasons."
And
then the Court goes on to describe a whole host of other criteria and
then finally deaEs with the following propositions, namely;
"5.
A Court should be slow to refuse a postponement where the true
reasons for a parties non preparedness has been fully explained
where
his unreadiness to proceed is not due to delaying tactics and where
justice demands that he should have further time for
the purpose of
presenting his case."
The
Court in that matter goes on to say the following;
"6.
An application for a postponement must be made timeously or as soon
as his circumstances which might justify, such an application
become
known to the Applicant. Where however fundamental fairness and
justice justifies a postponement, the Court may in an appropriate
case allow such an application for postponement, even if the
application was not timeously made."
The
Court then goes on to say the following,
"7.
An application for postponement must always be
bona
fide
and
not used simply as a tactical manoeuvre for the purposes of obtaining
an advantage to which the Applicant is not legitimately
entitled.
Considerations
of prejudice will ordinarily constitute the dominant component of
the total structure in terms of which the discretion
of a Court will
be exercised. What the Court has primarily to consider is whether
any prejudice caused by a postponement to the
adversary of the
Applicant for postponement can fairly be compensated by an
appropriate order for costs or any other ancillary
mechanisms.
The
Court should weigh the prejudice which will be caused to the
Respondent in such an application if the postponement is g ranted
against the prejudice which will be caused to the Applicant if it is
not.
10.Where
the Applicant for a postponement has not made his application
timeously or is otherwise to blame with respect to the procedure
which he has followed, but justice nevertheless justifies a
postponement in the particular circumstances of a case, the Court in
its discretion might allow the postponement, but direct the Applicant
in the suitable case to pay the wasted costs of the postponement
occasion to such a Respondent on the scale of an attorney and client.
Such an Applicant might even be directed to pay the costs
of his
adversary before he's allowed to proceed with his action or defence
in the action as the case may be."
I
went through ail of these criteria primarily to say that yes indeed
it is clear that where it is in the interests of justice and
fairness
and where the inconvenience caused by a postponement can be cured by
a mere costs order or such other direction, a Court
would be slow to
refuse a postponement. However the criterion that concerns me or the
applicability of the criterion that concerns
me in the quoted passage
primarily is the one of
bona
fides
and
for this I do not refer at all to the replying papers in the main
application I do believe it would have been the correct procedure
for
a
bona
fide
Respondent
such as the Respondent contends he is, to have brought an application
to strike out new matter in the replying affidavit
to which
he would not have had an opportunity to respond or which
may be the vexatious or irrelevant. For a whole
host of other
reasons, this Respondent has chosen not to do so. This Respondent has
clearly chosen to seize the opportunity that
there may well be new
matter in the replying affidavits, to seize that opportunity to seek
a postponement The Respondent in this
matter had an opportunity to
deal with all the allegations contained in the founding papers in
great depth; both in his answering
papers in the main application and
substantially again in his application for the postponement, both in
his founding papers and
in his replying papers in the application for
the postponement. He certainly had the opportunity to deal with
issues which he claims
he needs more opportunity to deal with in a
further affidavit- He was quite capable of dealing with some of these
issues in his
application for a postponement and so the conduct of
this Respondent in this particular matter begs the question of its
bona
fides.
The
course of action he chose to take in dealing with the alleged new
matter is curious. In as much as, there was old matter which
was
supplemented, without dealing with the supplementation thereof, the
Respondent chose not to use the opportunity to deal with
the old
matter once again in his answering papers.
I
am of course concerned that on the Respondent's own version there
appears to be allegations of the improper use of company funds
and
whether this is directly prejudicial to the
Applicant
or not is not necessarily a factor. It is whether in fact it is
prejudicial to the body of creditors as a whole which
is
disconcerting and whether of course it is prejudicial to other
shareholders. So it is a concern that the Applicant on his own
version admits at least some conduct of an improper nature. Although
he in fact offers to make good on some payments, that does
not in
effect deal with the fact that there is improper conduct which he
concedes. I would say that in circumstances such as this,
the matter
is of a relatively urgent nature and certainly by no means something
that ought to have been set down on the urgent
roll, but we do have
degrees of urgency. I would say that it is of a sufficiently urgent
nature to protect the interests of shareholders
and to protect the
interests of creditors that in fact the application that is the main
application be proceeded with. In the circumstances
1 am
REFUSING
THE POSTPONEMENT
and I am ordering that the
RESPONDENT
PAYS THE COSTS OCCASSIONED BY THE APPLICATION FOR POSTPONEMENT.
INCLUDING THE COSTS OF TWO COUNSEL
.
I would now like to hear the Applicant commence argument in relation
to any other issues on the main application that he would
like to
deal with.
ALLIE, J
ORDER
IN
THE HIGH COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISION
)
CASE
NUMBER:
14432/2008
DATE:
4
DECEMBER 2008
In
the matter between:
FADL
HENDRICKS APPLICANT
And
CAPE
KINGDOM (PTY) LTD RESPONDENT
ORDER
ALLIE.
J
:
Having
heard counsel in this matter and having obviously perused the papers
and having looked at the authorities, I am in fact
persuaded that
the Applicant has made out a case on the basis of having shown that
due to the conduct of Mr Stander in utilising
company funds for
personal use without authorisation, in fact, in promising to repay
funds, which he then subsequently failed
to do and in facilitating
the removal or the voluntary resignation of both directors and
staff, Mr Stander has in fact created
a
de
facto
situation
where he is in sole control of a company which by the account of its
own auditors has not followed proper procedures
in terms of the
Companies Act in regard to accounting With regard to the
accounting specifically, more so in relation to the
movement of
monies. In the circumstances, I am convinced in fact that the
Applicant has made out a case for a provisional winding
up order on
the basis that it is just and equitable for a company that is being
mismanaged. Purely on the founding papers of
the Applicant read
together with the answering papers of the Respondent, one can
certainly conclude that in fact the company
has been mismanaged,
inasmuch as, both the provisions of the Companies Act and the
provisions of the shareholders agreement have
not been abided by and
that in fact it is a situation where trustees or liquidators, in
fact, need to step in to protect the
interests not only of
shareholders but aiso of creditors. In the circumstances, I am
persuaded that a provisional winding up
order should be
GRANTED
.
An
order is made in terms of the Draft as varied.
ALLIE, J