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REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3) REPORTABLE: @NO
OF INTEREST TO THE JUDGES: ~NO
REVISED. '
In the matter between:
TSHIDISO BUSINESS ENTERPRISE CC
And
STANDARD BANK OF SA LTD
POLOKWANE WORKERS FUND
CITY OF POLOKWANE MUNICIPALITY
SA MUNICIPALITY WORKERS UNION
LOCAL BRANCH
JUDGEMENT CASE NO: 8781/2023
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
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KGANYAGO J
[1] On 26th September 2023 the applicant brought an ex-parte application against
the respondents. The applicant obtained the following interim order against the
respondents with a rule nisi been issued:
"1.1 The first respondent , Standard Bank of South Africa Limited is ordered and directed to
pay an amount R1 249 308.07 (one two hundred and forty-nine thousand and three hundred
and seven cents only) plus interest at 11.25% from 30th November 2022, from the second
respondent's account the funds held in account number XXX into the applicant's attorneys trust
bank account for the benefit of the applicant, account holder Botha Massyn & Thobejane &
Associated Attorneys account number BBS Bank name ASSA.
2.2 The first respondent , Polokwane Workers Fund be interdicted from allowing any
withdrawals to be made from account number XXX until payment of an amount of R 1 249
308.07 (one million two hundred and forty-nine thousand and three hundred and seven cents
only) plus interest has been paid in full to the applicant or until the matter is finalised.
2.3 The second and third respondents , Polokwane Workers Fund and City of Polokwane
Municipality is ordered to reinstate the applicant Tshidiso Business Enterprise CC as a service
provider.
2.4 A rule nisi be issued calling upon the respondents to show cause on a date to be allocated
by the registrar as to why this order should not be made final. The return date of the 30th
November 2023.
2.5 An order that the respondents may anticipate the return date by notice to the applicant.
2.6 An order that any of the respondents that oppose this application pay costs on attorney and
own client scale".
[2] The applicant's founding affidavit was deposed Margaret Mankwana Mamogobo
(Margaret) who has stated that she is the sole member of the applicant. The
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applicant in its founding affidavit has stated that it is a registered credit provider.
On 7th March 2016 it has applied to the 4th respondent to be reinstated as a
microlender to the employees of the 3rd respondent. In terms of its application
for reinstatement , the applicant had offered to donate 1 % of its administration
fee to the 4th respondent. In terms of its business the applicant was providing
loans to the 3rd respondent's employees. The 4th respondent supported the
applicant's application, and on 61h June 2016 the 4th respondent notified the 3rd
respondent to recognise the applicant. The applicant was appointed by the 3rd
respondent as the recognised service provider of its employees with effect from
8th June 2016. The repayments of the loans were collected by the 3rd
respondent monthly by debiting or deducting from the employees ' payroll
premiums not exceeding 20% of the debtor employee 's net salary per month.
[3] After deducting the monthly premiums payable by the employees , the 3rd
respondent will pay the whole amount deducted into the bank account held by
the 2nd respondent, from which it will be distributed to various service providers
including the applicant. Margaret as the sole member of the applicant, was also
a signatory to the 2nd respondent's bank account. During November 2022 the
2nd respondent failed to pay the applicant an amount of R571 927.92 which was
due and payable to it as a result of the instruction from the 4th respondent.
Margaret was also removed as a signatory to the 2nd respondent's bank
account.
[4] At the end of November 2022 the applicant received a letter from the 4th
respondent wherein the 4th respondent was making allegations of irregularities
against the applicant. The 4th respondent had also given instructions to the
signatories to the 2nd respondent's bank account not to process payments due
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and payable to the applicant. In that letter the 4th respondent wanted the
applicant to clarify the issue relating to the 3.5% administration fee charged by
the applicant to the 4th respondent in respect of services rendered by the
applicant to the employees of the 3rd respondent.
[5] At the end of December 2022 an amount of R681 838.25 was due and payable
to the applicant, but was not processed by the 2nd respondent as result of the
instruction contained in the letter from the 4th respondent. The total amount due
and payable to the applicant excluding interest was now R1 249 308.07.
According to the applicant the 4th respondent does not dispute that the applicant
is entitled to payment of this money, but refuses payment to be effected to the
applicant merely because it is unhappy that the applicant has not paid 3.5% of
the administration fee.
[6] The applicant avers that its business suffered severe financial distress and could
not sustain itself from December 2022 to date. It was forced to pay rental at its
offices without carrying out its business activities. It is on the verge of liquidation
and blacklisting with the credit bureau as a result of its failure to honour its
financial obligations towards the landlord and other creditors. The applicant has
submitted that it is merely seeking a preservation order by way of interim ex
parte order. The applicant has further submitted that it has made a good case
not only to sustain the granting of the interim order but also to sustain the
granting of the final order against the respondents .
[7] The 2nd to 4th respondents (respondents) are opposing the applicant's application.
Fortune Mashabathaga the chairperson of the 4th respondent has deposed the
answering affidavit on behalf of all the respondents . The respondents have
raised two points in limine, the 1 st being that of no locus standi and the 2nd being
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that of non-disclosure. With regard to the first point in timine, the respondents
have submitted that Margaret has no locus standi to launch the application as
she had failed to attach a resolution authorizing her to act on behalf of the
applicant. Further that no CIPC certificate or document to verify that the
applicant is indeed registered in terms of the close corporation laws of SA
confirming that Margaret is the sole active member of the close corporation has
been attached.
[8] With regard to the point in limine of non-disclosu re, the respondents have
submitted that Margaret has failed to make a full and frank disclosure that she
had failed in her two urgent applications in this Court under case numbers
12952/2022 and 3900/2023 wherein substantially the same relief was sought
stemming from the same set of facts against the 1st, 2nd and 41h respondents.
Under case number 12952/2022 the prayers which she was seeking were (i)
that the 6th respondent's (signatory members of the Polokwane Workers Fund)
powers to deal with the Polokwane Workers Fund be declared null and void; (ii)
the 6th respondent be prohibited from withdrawing any monies from the
Polokwane Workers Fund; and (iii) the 6th respondent not to organise year end
party with the proceeds of the Polokwane Workers Fund.
[9] The prayers which she was seeking under case number 3900/2023 were (i) that
SAMWU's decision of the 251h October 2021 to replace the signatories of the
Polokwane Workers Fund be declared unlawful and set aside; (ii) Margaret and
Godfrey Khumalo be declared the lawful signatories to the Polokwane Workers
Fund; (iii) SAMWU and the 6 members of the Polokwane Workers Fund be
interdicted and restrained from operating the Funds account at Standard Bank;
and (iv) SAMWU and the 6 members of the Polokwane Workers Fund be
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interdicted and restrained from making any unlawful payments from the Fund's
account at Standard Bank.
[1 OJ The respondents have submitted that if the applicant had disclosed the failed
two applications in its founding affidavit, that might have influenced this court to
refuse to grant the applicant's ex-parte application. That the non-disclosure of
such material facts negates the audi alteram partem principle, one of the most
important principles underlying the rules of civil procedure .
[11] When this matter was argued before me, the parties have agreed to argue the
points in limine first, and at this stage it is not necessary for me to summarize
the respondents' answering affidavit on merits. In reply to the respondents '
points in limine, regarding the 1 st point in limine, applicant has stated that
Margaret did not need any resolution to act on behalf of it. With regard to the
2nd point in limine, the applicant has stated the two cases referred by the
respondents did not involve the applicant as a cited party to the proceedings ,
and that the remedy sought is completely different from the remedy which the
applicant is seeking in this application.
[12) The respondents ' 1st point in /imine challenges the authority of Margaret to
depose the founding affidavit on behalf of the applicant. Rule 7(1) of the Uniform
Rules of Court (the Rules) provides as follows:
"Subject to the provisions of subrules (2) and (3) a power of attorney to act need not be filed,
but the authority of anyone acting on behalf of a party may, within 10 days after it has come to
the notice of a party that such a person is so acting, or with the leave of the court on good cause
shown at any time before judgment, be disputed, whereafter such person may no longer act
unless he satisfied the court that he is authorised so to act, and to enable him to do so the court
may postpone the hearing of the action or application ".
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[13] In Unlawful Occupiers , School Site v City of Johannesburg 1 Brand JA said:
"The issue raised had been decided conclusively in the judgment of Flemming OJP in Eskom
v Soweto City Council 1992 (2) SA 703 (W), which was referred with approval by this court in
Ganes and Another v Telkom Namibia Ltd 2004 (3) SA 615 (SCA) at 624I-625A. The import of
the judgment in Eskom is that the remedy of a respondent who wishes to challenge the authority
of a person allegedly acting on behalf of the purported applicant is provided for in Rule 7(1) of
the Uniform Rules of Court".
[14] It is trite that a deponent to an affidavit in motion proceedings need not be
authorised by the party concerned to depose to the affidavit. It is the institution
and prosecution of the proceedings that must be authorised. (See Ganes
Another v Telkom Namibia2). Margaret in the founding affidavit has stated that
she is the sole director of the applicant and the respondents did not dispute
that. If the respondents doubted her authority to depose the affidavit on behalf
of the applicant they should have invoked the remedy provided for in rule 7(1)
of the Rules, but have failed to do so. In my view, there is no merit in the
respondent's first point in limine and it stands to be dismissed.
[15] Regarding the 2nd point in /imine, it is trite that in ex parte applications the
applicant had a duty to the court to make a full and frank disclosure of all known
facts that might influence the court in reaching a just decision. In Phillips v
Director of Public Prosecutions3 Howie P said:
"It is trite that an ex parte applicant must disclose all material facts that might influence the
Court in deciding an application . If the applicant fails in this regard and the application is
nevertheless granted in provisional form, the Court hearing the matter on the return day has a
discretion , when given full facts, to set aside the provisional order or confirm it. In exercising
1 2005 (4) SA 199 (SCA) at 206G-H
2 2004 (3) SA 615 (SCA) at para 19
3 2003 (6) SA 447 (SCA) at para 29
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that discretion the later court will have regard to the extent of the non-closure ; the question
whether the first Court might have been influenced by the proper disclosure ; the reasons for
non-disclosure and the consequences of setting the provisional order aside".
[16] Margaret who is the sole director of the applicant was party to two matters that
were both struck off the roll due to lack of urgency. Under case number
12952/2022 Margaret was the 2nd applicant, and under case number 3900/2023
Margaret was the 1 st applicant. Both matters were launched as a result of non
payment of the applicant by the 2nd respondent on the instruction from the 4th
respondent , and also the removal of Margaret as a signatory to the bank
account of the 2nd respondent. The current application is based on the same
facts that triggered the two applications that were struck off the roll due to lack
of urgency. The relief which the applicants were seeking in the two applications
that were struck off the roll due to lack of urgency are similar to the ones in the
current application even though they have not been crafted in the exact similar
words.
[17] The applicant's explanation for its failure to disclose the two matters that were
struck off the roll due to lack of urgency are that these two cases did not involve
the applicant as a cited party and the remedies that were sought in the previous
applications are completely different from the remedy that the applicant is
seeking in the current application . It is true that the applicant was not cited as
a party to the proceedings . However, Margaret the deponent of the founding
affidavit is the sole member of the applicant, and was an active participant in
the two failed applications . This is her third attempt now having changed colours
by introducing the applicant as a party to the proceedings . However, that did
not change the substance of the matter. All these applications were triggered
by the same facts and seeking the same relief, though now in a different format.
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[18] Margaret was running her loan business through the applicant to the employees
of the 3rd respondent , who are union members of the 4th respondent , and also
members of the 2nd respondent. As a sole member of the applicant, Margaret
was using the applicant as an instrument which she conducted her business.
Even though the applicant is a juristic person which is capable to sue and be
sued on its own, it cannot be separated from its sole member. Margaret had
represented the applicant by deposing its founding affidavit. When the applicant
launched the current application, its sole member knew that it had twice failed
in its attempt to get the relief it was seeking based on the same facts which led
it to launch the current application . The duty which is upon the applicant is to
disclose all material facts that might influence the court in deciding the matter
in a just manner. It is not upon the applicant to be selective as which facts might
influence the court. Its duty is to disclose all, and the court will decide which are
the relevant ones.
[19] The two cases which the applicant had failed to disclose had a direct bearing
on the current application. There is no evidence that the two applications have
been withdrawn , and are therefore still pending. The applicant wants to
circumvent proceeding with two applications in the normal roll by bringing the
new application under a new entity and new case number with the hope that it
will not be traced. Even two applications which were struck off the roll, Margaret
was involved with other different applicants under different case numbers to
make it look as if it was not the same parties, whilst the relief she was seeking
was the same and based on the same facts. In my view, with the history of how
Margaret had been litigating with regard to the two failed urgent applications ,
the applicant had deliberately failed to make a full and frank disclosure of all
known facts that might have influenced the court in reaching a just conclusion.
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With that point alone, the rule nisi that was issued on 26th September 2023
stands to be discharged , and the application be dismissed.
[20] With regard to costs, even though the applicant was successful with the 1 st
point in /imine, its conduct amounted to abuse of court processes , and this third
application should not have been launched as there were already two pending
applications seeking the same relief. This is one of the exceptional matters
wherein punitive costs order should awarded.
[21] In the result the following order is made:
21.1 The respondents ' 1 st point in limine is dismissed.
21.2 The respondents ' 2nd point in limine is upheld and the interim order granted
on 26th September 2023 is hereby discharged .
21.3 The applicant's application is dismissed with costs on attorney and client
scale B.
APPEARANCES:
Counsel for the applicant
Instructed by JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
: LE Thobe,jane
Counsel for 2nd and 4th respondents : Botha Massyn & Thobejane
: Adv MR Maphutha
Instructed by
Counsel for 3rd respondent
Instructed by
Date heard
Electronically circulated on : GM Tjiane attorneys
: MS Shaik
: AM Carrim Attorneys Inc
: 20th January 2025
: 5th February 2025 11