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[2024] ZAFSHC 318
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Dibe and Another v Standard Bank of South Africa Ltd and Another (147/2024) [2024] ZAFSHC 318 (17 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
147/2024
In
the matter between:
SECHOGO
MOSES DIBE
1
st
Applicant
(Identity
Number: 82[…]
Born
on 2[…] N[…] 1982
Married
in community of property to Dieketseng Nathalie
Dibe,
with identity number 85[…])
DIEKETSENG
NATHALIE DIBE
2
nd
Applicant
(Identity
Number: 85[…]
Born
on […] J[…] 1985
Married
in community of property to Sechogo Moses
Dibe,
with identity number 82[…])
And
THE
STANDARD BANK OF SOUTH AFRICA LTD
1
st
Respondent
(Registration
Number: 1962/000738/06)
SB
GUARANTEE COMPANY (RF) (PTY) LTD
2
nd
Respondent
(Registration
Number: 2006/021576/07)
In
re
:
Case
no:
147/2024
THE
STANDARD BANK OF SOUTH AFRICA LTD
1
st
Applicant
(Registration
Number: 1962/000738/06)
SB
GUARANTEE COMPANY (RF) (PTY) LTD
2
nd
Applicant
(Registration
Number: 2006/021576/07)
and
SECHOGO
MOSES DIBE
1
st
Respondent
(Identity
Number: 82[…]
Born
on 2[…] N[…] 1982
Married
in community of property to Dieketseng Nathalie
Dibe,
with identity number 85[…])
DIEKETSENG
NATHALIE DIBE
2
nd
Respondent
(Identity
Number: 85[…]
Born
on […] J[…] 1985
Married
in community of property to Sechogo Moses
Dibe,
with identity number 82[…])
Coram:
DAFFUE J
Heard
:
17 OCTOBER 2024
Delivered
:
17 OCTOBER 2024
REASONS
Daffue
J
Introduction
[1]
On 18 April 2024 the joint estate of a husband and wife
married in
community of property was provisionally sequestrated with return date
23 May 2024. On the return date the rule
nisi
was again
extended and the matter finally postponed to 13 June 2024, the
respondents in the sequestration proceedings to pay the
costs
occasioned by the postponement. On 13 June 2024 a final sequestration
order was issued.
[2]
On 2 July 2024 the sequestrated married couple, Mr and
Mrs Dibe,
filed an application to rescind the order of 13 June 2024. Answering
and replying affidavits were filed. They did nothing
to set the
matter down for hearing. On 11 September 2024 the Standard Bank of
South Africa Ltd and SB Guarantee Company (RF) (Pty)
Ltd, the
applicants in the sequestration application and the respondents in
this application, enrolled the matter for hearing on
17 October 2024.
Two days later the applicants’ new attorney, who came on board
after the final sequestration order, Mr Bertus
Maritz of
Maritz-Willemse, withdrew as attorney of record. I shall forthwith
refer to Mr and Mrs Dibe as the applicants and to
Standard Bank of
South Africa Ltd and SB Guarantee Company (RF) (Pty) Ltd as the
respondents.
[3]
On 17 October 2024 the applicants appeared in person
seeking a
postponement of two weeks. Adv JH Els, counsel for the respondents,
who earlier filed heads of argument in the rescission
application,
vehemently opposed the application for postponement and submitted
that the rescission application should be dismissed
with costs. After
allowing oral submissions I granted the following order:
‘
1.
The application for postponement is dismissed.
2.
The application for rescission of the final sequestration order is
dismissed with costs.
3.
Reasons shall be circulated to the parties electronically this
afternoon, confirming that
Mr Dibe presented his email address as
mos[...]@gmail.com
.’
These are my reasons.
The
application for postponement
[4]
No formal application for postponement was prepared.
Mr Dibe
addressed me from the floor. These were his reasons for postponement:
a.
as their lawyer, Mr Bertus Maritz of Maritz-Willemse,
Welkom, failed
to honour his obligations towards them, they were now cancelling his
mandate;
b.
Mr Dibe has spoken to Mrs Bomela of Bomela
Attorneys, Bloemfontein on
Monday, 14 October 2024 who indicated that she would represent them
in future on condition that Mr Maritz’
mandate was terminated;
c.
they had a financial arrangement with Mr Maritz
in terms whereof they
would receive money on 15 October 2024 to enable them to settle his
account by the next day, to wit 16 October
2024;
d.
they needed a postponement to get their invoices
issued to clients in
order to enable them to sit down with the respondents and to settle
the claims against them;
e.
he conceded that respondents’ claims
for which judgment had
been granted on 11 May 2023 were not in dispute and that they wanted
to pay what was due to the respondents;
f.
monies due to them will be paid
by the end of October 2024,
inter
alia
from clients such as the Department of Education, Matjhabeng
Municipality and PRASA;
g.
he accepted that Maritz-Willemse Attorneys
withdrew as attorneys of
record, but on his version, he had discussions thereafter with Mr
Maritz for him to continue assisting
them;
h.
save for the two respondents, they did not
have any other creditors,
although he later conceded that they did employ several
subcontractors pertaining to the projects completed
by them who were
still owed money;
i.
on questions by the court as to
why the final sequestration order
should be rescinded, he merely confirmed that Mr Kruger, an attorney
of Kruger Venter, Welkom
‘did not represent them well’,
as he kept saying that the sequestrating creditors were prepared to
wait for payment;
j.
according to his
viva voce
version, they have six immovable
properties and 30 vehicles on their books and are indeed solvent,
although not a word was said
in this regard in either the answering
affidavit in the sequestration proceedings, or the two affidavits in
the rescission application.
The
opposition
[5]
Mr Els emphasised that the applicants were kicking for
touch all the
time. They requested an extension of the rule
nisi
in order to
settle their debt which did not eventuate. On 13 June 2024, the date
to which the sequestration application was finally
postponed, neither
they, nor their attorney at that stage, Mr Kruger, attended court to
either argue the matter, or request a further
postponement. The
purpose of seeking postponement was merely to obtain an opportunity
to pay the outstanding debt, but in the meantime
five months have
lapsed and no payment had been forthcoming. Consequently, a
postponement would serve no purpose.
[6]
Mr Els informed the court that Mrs Deborah Joubert of
De Jager Lorden
Attorneys had been appointed as provisional trustee (he could not say
whether she received a final appointment).
As a result, the parties
hereto cannot enter into any settlement negotiations in these
circumstances without the intervention of
the trustee, representing
the body of creditors. It is also the trustee’s prerogative to
claim whatever is due to the applicants.
[7]
Mr Els submitted that the applicants merely seek a rehearing
of the
sequestration application and failed to comply with the requirements
for rescission.
Evaluation
of the submissions and the evidence presented
[8]
According to the applicants, Mr Kruger, their former
attorney, did
not properly deal with their matter insofar as the sequestration
application was concerned. Their second attorney,
Mr Maritz, failed
to comply with his obligations towards them and did not answer Mr
Dibe’s phone calls during the last few
days. Finally, Mrs
Bomela who was allegedly prepared to accept instructions, did not
contact Mr Maritz to ascertain the true position
and also did not
officially come on record as attorney for the applicants. If Mr Dibe
is to be believed, Mrs Bomela advised them
to come to court on their
own to seek a postponement. I find it extremely difficult to accept
that an attorney would act accordingly.
[9]
Postponements are not
there for the taking. Applications in this regard shall be made
timeously and it is expected of the applicant
for postponement to
explain their predicament fully and satisfactorily. The
Constitutional Court held as follows in
Lekolwane
and Another v Minister of Justice (Lekolwane):
[1]
‘
The
postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement
seeks
an indulgence from the court. A postponement will not be granted,
unless this Court is satisfied that it is in the interests
of justice
to do so. In this respect the applicant must ordinarily show that
there is good cause for the postponement. Whether
a postponement will
be granted is therefore in the discretion of the court. In exercising
that discretion, this Court takes into
account a number of factors,
including (but not limited to) whether the application has been
timeously made, whether the explanation
given by the applicant for
postponement is full and satisfactory, whether there is prejudice to
any of the parties, whether the
application is opposed and the
broader public interest. All these factors, to the extent
appropriate, together with the prospects
of success on the merits of
the matter, will be weighed by the court to determine whether it is
in the interests of justice to
grant the application.’
[10]
In
Shilubana
and Others v Nwamitwa (National Movement of Rural Women and
Commission for Gender Equality as amici curiae)
[2]
the Constitutional Court
referred to
Lekolwane
with approval in the
following words:
‘
In
Lekolwane
and Another v Minister of Justice and Constitutional Development
this Court added the following factors to be considered in granting a
postponement: (1) the broader public interest; and (2) the
prospects
of success on the merits. The following factors
could non-exhaustively be added to the above: the reason for the
lateness of the application if not timeously made; the conduct of
counsel; the costs involved in the postponement; the potential
prejudice to other interested parties; the consequences of not
granting a postponement; and the scope of the issues that ultimately
must be decided. In balancing these factors it is of vital importance
to keep in mind that –
'(w)hat is in the
interests of justice will . . . be determined not only by what is in
the interests of the parties themselves,
but also by what, in the
opinion of the Court, is in the public interest. The interests of
justice may require that a litigant
be granted more time, but account
will also be taken of the need to have matters before this Court
finalised without undue
delay.' (footnotes omitted)
[11]
This is a typical case
that all too often surfaces in our courts. I do not have to say more,
than to refer with respect to the observations
of the Supreme Court
of Appeal in
Magistrate
Pangarker v Botha and Another.
[3]
[12]
In
National
Police Service Union and Others v Minister of Safety and Security and
Others
[4]
the Constitutional Court stated:
‘
Ordinarily
… if an application for a postponement is to be made on the
day of the hearing of a case, the legal representatives
…
must
appear
and be ready to assist the Court both in regard to the application
for the postponement itself and, if the application is
refused,
the consequences that would follow.’
Clearly, if Mr Dibe is to
be believed, Mrs Bomela did not act as could have been expected of
her, bearing in mind the view point
of the Constitutional Court.
[13]
Insofar as it is necessary to consider the facts presented by Mr Dibe
from
the floor, obviously not under oath, and bearing in mind the
principles applicable to applications for postponement, I refer to
some aspects that played a role in the exercise of my discretion.
[14]
No reason has been advanced why the application for postponement was
not timeously
made. Mr Maritz withdrew on 13 September 2024, but
according to Mr Dibe there were further negotiations between them
thereafter,
wherein Mr Dibe undertook that payment would be
forthcoming by 16 October 2024. Surely, if these facts were provided
to Mr Maritz
and he was still prepared to act as attorney, he would
have filed the necessary application to seek a postponement at an
early
stage. The facts are clear: he never came on record again after
withdrawing as attorney of record on 13 September 2024.
[15]
If Mrs Bomela was informed about the facts provided by Mr Dibe this
morning,
she, as could have been expected of any reasonable attorney,
would surely immediately prepare an application for postponement to
be served and filed. Obviously, nothing was forthcoming from her
office. An attorney must either accept instructions from a client
and
thereafter act in the best interest of the client, or refuse the
instructions.
[16]
It is difficult to blame any of the three legal representatives at
this stage
of the proceedings without having heard their versions.
However, on condition that either Mr Maritz, or Mrs Bomela was placed
in
sufficient funds to appear on behalf of the applicants, and had
received proper instructions, they failed their duties towards their
clients. Again, it is emphasised that the court cannot make such a
finding, especially insofar as Mr Dibe did not testify under
oath and
allowed the legal representatives to respond thereto.
[17]
In my view there is a cost factor that cannot be disregarded if a
postponement
is granted. This matter had been delayed over the course
of several months. There is clearly a potential prejudice, not only
to
the respondents, but also to other creditors and/or interested
parties. The broader public interest also comes into play. Mr Els
submitted that a two-week postponement would probably be in vain,
bearing in mind the promises to pay over a period of more than
a
year. I agree.
[18]
The prospect of success was a factor to be considered as well. The
applicants
filed a detailed answering affidavit during the
sequestration proceedings and presented proper argument by their
counsel at the
time. I considered the application for sequestration
as well as the parties’ heads of argument. Adv I Sander’s
heads
of argument on behalf of the present applicants were thoroughly
prepared and she considered all aspects that could be submitted
on
behalf of her clients. Notwithstanding all efforts, a provisional
sequestration order was granted and in the absence of any
further
affidavits by the applicants, a final sequestration order was
eventually granted. The promise of payment of R100 million
allegedly
due by the Matjhabeng Municipality has not been forthcoming,
notwithstanding the expiry of several months. This appears
to be a
pie in the sky.
[19]
The application for
rescission is stillborn. It has not been served on any of the other
creditors, or the trustee, or the Master.
Such service is a trite
requirement. The applicants also dismally failed to present any
reasons for the court to exercise its discretion
in terms of
s 149(2)
of the
Insolvency Act 24 of 1936
. In terms of this section ‘the
Court may rescind or vary any order made by it under the provisions
of this Act’. No
grounds are set out in this section and
therefore the court must exercise its discretion in the light of the
circumstances disclosed
to it.
[5]
[20]
Clearly,
s 149(2)
cannot be utilised in order to have a rehearing of
the merits of the sequestration proceedings. Also, unusual, special,
or exceptional
circumstances must exist to justify the relief.
Although the order may be set aside based on common law requirements,
the following
essential elements need to be proven:
a.
a reasonable and acceptable explanation must
be given for the
default;
b.
that the application is
bona fide
; and
c.
that the party has a
bona
fide
defence
which
prima
facie
carries
some prospect of success.
[6]
[21]
Insofar as the applicants tried to rely on rule 42(1) of the Uniform
Rules
of Court, there is absolutely no justification in this regard.
Clearly, the previous attorney was informed in no uncertain terms
that the rule
nisi
was extended finally to 13 June 2024 and
that no further postponement would be provided.
Conclusion
[22]
In conclusion, the applicants dismally failed to comply with the
requirements
to successfully apply for postponement. Secondly, their
application for rescission of the final sequestration order is
stillborn
for failing to comply with the trite formalities. Also, it
should be dismissed on the merits insofar as no exception
circumstances
have been proven in order for the court to exercise its
discretion in their favour.
DAFFUE
J
Appearances
For
Applicants:
Mr &
Mrs Dibe
Instructed
by:
In
Person
For
Respondents:
Adv
JH Els
Instructed
by:
Phatshoane
Henney Inc
Bloemfontein.
[1]
[2006] ZACC 19
;
2007 (3) BCLR 280
(CC) para 17.
[2]
[2007] ZACC 14
;
2007 (5) SA 620
para 11.
[3]
2015 (1) SA 503
(SCA) paras 22 to 38.
[4]
2000 (4) SA 1110
(CC) at 111D; dictum referred to with approval in
Shilubana
and Others v Nwamitwa loc cit
para
15.
[5]
Naidoo
and Another v Matlala NO and Others
2012
(1) SA 143
(GNP) para 4; see also
Ex
parte
Van
der Merwe
1962
(4) SA 71
(O) at p 72; and
Storti
v Nugent and Others
2001
(3) SA 783
(W)
at pp 806 & 807.
[6]
Naidoo
loc
cit
para
5 and authorities quoted.