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and
NEDBANK LIMITED 1st Respondent
KURT ROBERT KNOOP 2nd Respondent
DALLIE VAN DER MERWE 3rd Respondent
ABSA BANK LIMITED 4th Respondent
ANDREW JOHNSTON 5th Respondent
MIKE VAN DER VEEN 6th Respondent
MASTER OF THE MAKHANDA HIGH COURT 7th Respondent
CIPC SOUTH AFRICA 8th Respondent
CHARALAMBOS CHRISTODOULOU 9th Respondent
SHOPRITE HOLDINGS LIMITED 10th Respondent
Order:
1. The application is struck from the role due to lack of urgency.
2. The applicant s are ordered to pay, jointly and severally the one paying the
other to be absolved, the costs of the respondents on an attorney and
client scale. JUDGME NT
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TOLMAY J
1. The applicant s brought this application on an urgent basis. The application was
so called ex parte , but no less than ten respondents were cited. There was no
service on any of the responde nts, according to the heads of argument filed by
the second to fifth respondents they became aware of the application when the
attorneys got sight of the urgent court roll for the week of 6 January 2025. They
apparently informed the ninth respondent, who was also represented at the
hearing . The founding affidavit did not explain why the application was not
served on the respondents .The applicants seem to be under the mistaken belief
that service on the respondents w as not required .
2. The applicants seek in Part A , an order that the settle ment that was made an
order of court in the matter of Lot 38 Bizana Properties cc v Tiador 119 CC (IN
LIQUIDATION) & Others under case number 2278/2022 in the Eastern Cape
Division (Makhanda ) pertaining to the lease held by the first applicant ( Tiador )
be suspended pending the determination of the validity of the liquidation orders .
At this point the applicant s also require certain documents to be provided to
them by the respondent s. In Part B the applicant s seek an order declaring the
liquidation orders, previously referred to, to be declared invalid, or alternatively
that no liquidation order was granted. They also ask that the status quo ante of
Tiador and Silver Falls Trading 178 CC be restored.
3. At this point I will only determine the question of urgency, but it must be noted
that it is, to put it lightly, doubtful that this Court has jurisdictio n to entertain the
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matter. The order that the applicant s are seeking to suspend is an order of
another division of the High Court , and the documents the applicants seek to
obtain relate to that order. Part B of the application requires of this Court to
declare the order of a nother Division to be a nullity. On what legal basis this
Court can do it is still a mystery to me. Then there is the question of locus standi,
considering the liquidation of Tiador. This fact raises the question whether the
applicants have locus standi to bring this application. The matter stood down
for me to deliver a ruling on urgency, withou t obtaining permission of the Court,
or informing their opponents an affidavit by the deponent Mr Roodt, a letter by
an auditor and the CIPC (Companies a nd Intellectual Property Commission )
document was uploaded. This document indicated that Tiador is in liquidation.
The affidavit and letter questioned the authenticity and correctness of the CIPC
document. If the applicants seek to persist with this application the court hearing
the matter will have to determine these questions. It must also be noted that Lot
38 Bizana Properties Ltd, the applicant in the liquidat ion proceedings and a
party to the settlement was not joined in the proceedings before me.
4. As far as urgency is concerned the following is relevant. The applicant s say the
matter is urgent, becaus e the applicants only became aware of the contents of
the agreement between the liquidators and Lot 38 Bizana on 14 November
2024 , in which it was agreed that Tiador will continue collecting rent from
Checkers Holdings based on the lease Tiador has with t he previous owner of
the property, until 28 February 2025 . After this date Tiador ’ s rights to any rental
in respect of the property shall be permanently terminated. The alleged nullity
of the liquidation order, which was used to put Tiador in liquidation was only
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confirmed to the applicants, on their version, from a reputable source, on 21
November 2024. If the matter was to be heard in the normal course a date
would only be obtained after the settlement agreement stripping Tiador of its
last income generating assets , comes into operation. This, the applicant s say,
will lead to irreparable harm, considering that the alleged forged/fraudulent
nature of the Court order allow s the liquidators to exercise powers they do not
have. There is clear prejudice, the applican ts say, which is serious of nature,
which prejudice cannot be cured by some other remedy. The interim order will
not affect the respondents save for those who now benefit from the asset(s)
and income of Tiador.
5. The respondents say t he matter is not urgent inter alia as the resolution to bring
the urgent application was signed and dated 12 and 13 August 2024 . The
applicants on their own version became aware of the settlement on 14
November 2024, the founding affidavit was signed and commissioned on 6
December 2024 . Despite all the above the application was only issued on 2
January 2025 on an extremely urgent basis to be heard on 7 January 2025 . No
explanation was provided for the way the application was brought. The
respondents say this is clearly an abuse of process that justifies not only a
striking from the roll due to lack of urgency, but also justifies a punitive costs
order .
6. The law regarding urgent applications is trite. One should only deviate from the
rules and procedures as far as is strictly necessary. In this instance the
applicants were aware of the settlement and its consequences at the very latest
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Appearances:
For Applicant: Adv H P Van Staden instructed by Riekie Erasmus Attorneys .
For 2nd – 5th Respondent: Adv J Eastes instructed by Schoerie & Sewgoolam Inc (2nd
& 3rd Respondents) and Cassim Inc Attorneys (4th & 5th Respondents)
For 9th Respondent: Adv A R Whitaker instructed by Mason Incorporated.
Date of Hearing: 7 January 2025
Date of Judgment in Open Court: 10 January 2025
Date of Written Judgment : 13 January 2025