About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2006
>>
[2006] ZALCJHB 1
|
|
Jet Master (Pty) Ltd v Centre for Dispute Resolution Metal and Engineering Industry Bargaining Council and Others (JR1530/04) [2006] ZALCJHB 1 (16 May 2006)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
CASE NO: 1970/2014
In
the matter
between:
JAMES SHOLTO DOUGLAS
N.O.
in his capacity as
trustee for the time being of the
PENNYPINCHERS PORT
ALFRED BUILDING MATERIALS
TRUST
(IT
584/2007)
First
Applicant
WAYNE DEON OPPERMAN
N.O.
in his capacity as
trustee for the time being of the
PENNYPINCHERS PORT
ALFRED BUILDING MATERIALS
TRUST
(IT 584/2007)
Second
Applicant
THEODORE LE ROUX DE
KLERK N.O.
in his capacity as
trustee for the time being of the
PENNYPINCHERS PORT
ALFRED BUILDING MATERIALS
TRUST
(IT
584/2007)
Third
Applicant
WK
CONSTRUCTION (PTY) LTD
Fourth
Applicant
And
GOBO GCORA
CONSTRUCTION AND
PROJECT
MANAGEMENT CC
First
Respondent
SIPHO
GCORA
Second
Respondent
KHUSELWA
BEAUTY GCORA
Third
Respondent
WERNER DE JAGER N.O.
in his capacity as
co-trustee of the Second and Third
Respondents acting
under and by virtue of a Certificate of
Appointment of
Trustees issued by the Master of the High
Court
dated 28 March
2014
Fourth
Respondent
LAYLA LIMBADA N.O.
in her capacity as
co-trustee of the Second and Third
Respondents acting
under and by virtue of a Certificate of
Appointment of
Trustees issued by the Master of the High
Court
dated 28 March 2014
Fifth
Respondent
KOUKAMMA
MUNICPALITY
Sixth
Respondent
NATIONAL URBAN
RECONSTRUCTION AND
HOUSING
AGENCY (PTY) LIMITED
Seventh
Respondent
TUSK CONSTRUCTION
SUPPORT SERVICES
(PTY)
LTD
Eighth
Respondent
JOINT
EQUITY INVESTMENTS IN HOUSING (PTY) LTD
Ninth
Respondent
JUDGMENT
CHETTY J: -
On
3 December 2013, the estates of the second and third respondents were
finally sequestrated by order of this court. The effect
of the order
was, pursuant to the provisions of s 20 (1) (a) of the
Insolvency
Act
(the Act)
[1]
,
“
(
a)
to divest the insolvent of his estate and to vest it in the Master
until a trustee has been appointed, and, upon
the appointment of a
trustee, to vest the estate in him;
(b)
. . .”
[2]
[2]
On 11 December 2013, the second and third respondents filed a
document styled,
“
Rescission
Application”
in which they sought
relief formulated as: -
“
1.
Condoning the Respondent’s possible non-compliance to any Rules
of the above Honourable Court as the papers have been prepared by lay
persons.
2.
An order rescinding the confirmation of rule nisi on 03 December 2013
a day during which the Respondents expected a date for the hearing of
their rescission application which was filed on 19 December
2013 to
be agreed upon as rule nisi could not be confirmed on 26 December
2013 due to the said rescission application.
3.
Rescinding the Order permitting the Intervening Creditors under case
number 2919/13
4.
An order compelling Concrete 4 U to honour an undertaking it gave
to
the Applicants under case number 1089/13 to await the conclusion of
the claims of the Respondents against NMBM and WK Construction
5.
. . .”
[3]
Consequent upon their final sequestration, the second and third
respondents, both in their personal capacities and purportedly
on
behalf of the first respondent not only continued their embroilment
in the litigation with the fourth applicant (as appears
from the
aforegoing notice of motion) and sixth respondent, but instituted a
plethora of litigation against Penny Pinchers and
the seventh to
ninth respondents in which they sought disparate relief.
[4]
The institution of proceedings against Penny Pinchers elicited a
swift riposte By letter, dated 17 June 2014, the second and
third
respondents, as erstwhile members of the first respondent, were
appraised that apropos the application launched by it, that:
-
“
3.1
The Members Interest in GCC was, prior to your final sequestration,
held by yourselves;
3.2
On 3 December 2013, the Port Elizabeth High Court issued a Final
Sequestration
Order in respect of yourselves, a copy of which is
attached marked “A”;
3.3
Whilst you have initiated an Application for the rescission of the
Final Sequestration
Order in terms of Section 149 of the Insolvency
Act No. 24 of 1936 (the “Act”), such Application does not
suspend the
Final Sequestration Order;
3.4
In terms of Section 20 (1) (a) of the Act, the effect of the
sequestration of
the estate of an insolvent shall be “
to
divest the insolvent of his estate and to vest it in the master until
a trustee has been appointed, and upon the appointment
of trustee to
vest the estate in him”
;
3.5
A trustee has indeed been appointed to your insolvent estate, in
confirmation
of which I attach a copy of the Certificate of
Appointment of Trustees issued by the Master of the High Court,
marked “B”;
3.6
By virtue of the aforegoing, your Members Interest in GCC vests in
your appointed
trustees, and you have no authority to deal with the
affairs of GCC whilst such state of affairs exists;”
[5]
The anticipated cooperation was however, not forthcoming,
necessitating the launching of this application, in which the
applicants
sought a temporary interdict, as one of urgency, against
the respondents in the terms foreshadowed in the letter referred to
hereinbefore.
A notice of opposition, ostensibly from the first to
third respondents ensued, followed by a
“
filing
notice”
incorporating the second
respondent’s answering affidavit. Shorn of its vitriol,
irrelevant and argumentative content, the
opposition to the relief
sought is confined to the contention that the filing of the
rescission application suspended the operation
of the final order of
sequestration by virtue of the provisions of Rule 49 (11) of the
Uniform Rules of Court
.
On the morning of the hearing, i.e. 26 June 2014, a further document,
styled
“
Notice of Motion –
Counter Claim”
, bearing the same
citation of the parties but with additional respondents was filed in
which the second and third respondents sought
a plethora of
frivolous, vexatious and largely unintelligible orders. The
accompanying affidavit by the second respondent is,
qua
the notice of motion, replete with similarly argumentative and
irrelevant matter.
[6]
At the inception of the hearing, I was informed by Mr
Gajjar
,
who appeared on behalf of the seventh, eighth and ninth respondents,
that they abide the decision of the court. I interpolate
to say that
the fourth, fifth and sixth respondents adopt a similar stance.
[7]
The second respondent’s contention that the filing of the
rescission application suspended the operation of the final
sequestration order is entirely misplaced. Section 150 of the Act
provides as follows: -
“
(1)
(1) Any person aggrieved by a final order of sequestration or by an
order setting aside an order of provisional sequestration
may,
subject to the provisions of section 20 (4) and (5) of the Supreme
Court Act, 1959 (Act 59 of 1959), appeal against such order.
(2) Such appeal shall be
noted and prosecuted as if it were an appeal from a judgment or order
in a civil suit given by the court
which made such final order or set
aside such provisional order, and all rules applicable to such
last-mentioned appeal shall mutatis
mutandis but subject to the
provisions of subsection (3), apply to an appeal under this section.
(3) When an appeal has
been noted (whether under this section or under any other law),
against a final order of sequestration, the
provisions of this Act
shall nevertheless apply as if no appeal had been noted: Provided
that no property belonging to the sequestrated
estate shall be
realized without the written consent of the insolvent concerned.
(4) If an appeal against
a final order of sequestration is allowed, the court allowing such
appeal may order the respondent to pay
the costs of sequestrating and
administering the estate.
(5)
There shall be no appeal against any Order made by the court in terms
of this Act, except as provided in this section.”
The
proviso to ss1 (1) and reference to s 20 (4) and (5) of the
Supreme
Court Act
[3]
moreover enjoins an aggrieved debtor to seek leave to appeal. Even
when an appeal is noted against a final sequestration order,
the
sequestration follows its normal course and the provisions of the Act
apply as if no appeal has been noted. The Act specifically
excludes
the common law rule that the execution of a judgment is automatically
suspended upon the noting of an appeal.
[8]
Although s 149 empowers a court to rescind any order made by it under
the provisions of the Act, the section cannot be invoked
as authority
for the proposition that the mere filing of a notice of rescission
suspends the operation of a final sequestration
order. Nor does Rule
49 (11) assist the second and third respondents. Its reach is of
limited application and confined to matters
where an appeal has been
noted or leave to appeal has been sought or granted. The opposition
to the relief sought is entirely misplaced.
The Counterclaim
[9]
The content of both the
“
notice of
motion-counterclaim
”
and the
accompanying affidavit deposed to by the second respondent may
properly be categorised as drivel. The relief sought is vexatious
and
constitutes an abuse of the process of this court and falls to be
dismissed.
[10]
In the result, the following orders will issue: -
1.
The second and third respondents are hereby
interdicted and restrained from:
1.1
authorizing the initiation, pursuit or
defence of any legal proceedings of any nature by the first
respondent;
1.2
directly and/or indirectly participating in
the management of the business of the first respondent in
contravention of
section 47
(1) (b) (i) of the
Close
Corporations Act
69 of 1984
;
2.
All legal proceedings in which the first,
second and third respondents are involved, including but not limited
to those against
the applicants, excluding legal proceedings the
second and third respondents are permitted to embark upon in terms of
section 23
of the
Insolvency Act
No. 24 of 1936
,
are hereby suspended pending the determination by the fourth and
fifth respondents that any one or more of such legal proceedings
should be persisted with, which determination the fourth and fifth
respondents are directed to make on or before 30 October 2014.
3.
The costs of this application are to be
regarded as an administration expense in the insolvent estate of the
second and third respondents.
4.
The counterclaim is dismissed.
_________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Delivered:
27 June 2014
Obo
the Applicants:
Adv J.D. Huisamen SC
Instructed
by
Joubert Galpin & Searle
173
Cape Road, Mill Park, Port Elizabeth
Ref: W
Parker
Tel:
(041) 396 9234
2
nd
Respondent:
In Person
15
Wattlewoods, Macon Road, Lorraine,
Port
Elizabeth
Obo
the 7
th
, 8
th
and 9
th
Respondent: Adv G. Gajjar
Instructed
by:
Rushmere Noach Inc
5
Ascot Office Park, Conyngham Road,
Greenacres,
Port Elizabeth
Ref: J
Theron
Tel:
(041) 399 6700
[1]
Act
No, 24 of 1936
[2]
The
fourth and fifth respondents were appointed as joint trustees in the
insolvent estate on 28 March 2014.
[3]
Act
No, 59 of 1959