SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 056043/2023
In the matter between
DEON MARIUS BOTHA N.O. FIRST APPLICANT
JOCHEN ECKHOFF N.O. SECOND APPLICANT
VIMBIAI ANGELA TSOPOTSA N.O. THIRD APPLICANT
and
MARIANNE VAN DER MERWE N.O. FIRST RESPONDENT
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
…………..…………............. ……………………
SIGNATURE DATE
…………..…………............. ……………………
SIGNATURE DATE
CAREL ARON VAN DER MERWE N.O. (JNR) SECOND RESPONDENT
This Judgment was handed down electronically and by circulation to the parties’
legal representatives by way of email and shall be uploaded on caselines. The date
for hand down is deemed to be on 17 April 2025 .
______________________________________________________________ __
JUDGMENT
______________________________________________________________ __
MALI J
[1] The applicants seek an interim interdict against further alienation of an
aeroplane pending the institution of an action to set aside the sale of an
aircraft known as Beech craft A 36 with registration mark ZS-NFC with serial
number E[...] (Beechcraft). The application is brought by the applicants in
their official capacity as Insolvency practitioners and co-liquidators of the
Project Multiply (PM) . Beechcraft was registered in the name of PM. The
respondents are cited in their capacity as trustees of Ronnie van Der Merwe
Trust (the Trust).
Background
[2] It is not in dispute that PM together with Velvetcream 15 (Pty) Ltd (in
liquidation) (Velve t), the Merwede Trust (“Merwede Trust”), and its sole
director at the time, being Mr. Carel Aron Van Der Merwe (“Van Der
Merwe”), operated on the same properties, shared employees and movable
assets. Its activities are interrelated and were further managed as one
organizat ion. PM with Velvet conjointly operated as a group under the
umbrella name of “Merwede Farming”, as a large -scale sheep farming
enterprise and related industries covering approximately 75 000 hecta res of
land. This group will be referred to as Merwede group.
[3] Towards the end of 2020, the Landbank instituted actions against, Van Der
Merwe personally, the Merwede Trust, Velvetcream and PM. In terms of
latter two entities, formal statutory letters of demand in terms of section 345
of Companies Act, 61 of 1973 were later disseminated to them by
Landbank’s attorneys. On 12 October 2022 a final winding -up order against
the respondents in favour of Landbank was granted. Application for leave to
appeal same was refused.
[4] On 20 January 2021, both Project Multipy and Velvetcream were voluntarily
placed under business rescue at the hands of Van Der Merwe. Van der
Merwe was the sole director of PM at that time. Subsequently, a business
rescue plan was prepared, and the second meeting of creditors was
convened on 8 March 2021. Landbank voted against the business rescue
plan, therefore same was rejected.
[5] The Beechcraft, being the property of PM was transferred by PM to the Trust
during May 2021. PM was finally liquidated by the order of Kimberley High
Court on 11 October 2022. On 12 October 2022, the respondents launched
an appeal to the Supreme Court of Appeals (SCA ) against the order for final
liquidation and extension of powers.
[6] The applicants also brought an application for a declaratory that the
application for leave to appeal does not suspend the extension of powers.
On 13 December 2022 my sister Judge Mamosebo of the Kimberley High
Court granted the order declaring that the extended powers are not
suspended. On 19 December 2022 the respondents filed Notice in terms of
Section 18 (4) of the Superior Courts Act (s 18 (4) automatic appeal.
Points in Limine
[7] The respondents raised two points in limine ; Lack of authority to institute
legal proceedings and lack of Jurisdiction.
Lack of authority to institute legal proceedings.
[8] The respondent’s case is that the confirmatory affidavits filed by the second
and third respondents are not signed. This defect challenge s the deponent’s
statement that he is authorized by the two to institute legal proceedings.
[9] The applicant ’s case to the above is that lack of authority can only be
challenged in terms of Rule 7 of the Uniform Rules of Court. The
respondents have failed to avail themselves Rule 7, therefore cannot
challenge the unsigned confirmatory affidavits.
[10] Rule 7 of the Uniform Rules provides : “Power of Attorney (1) 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 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 ”.
[11] It is trite law that the respondents are compelled to utilize Rule 7(1) as above
to challenge the lack of authority. This point in limine must fail.
Irregular Notice of Motion
[12] The respondents’ complaint in this regard is that in the heading of the
application in the Kimberely High Court is written “In the matter between…”
instead of “ In the Ex Parte application ...”
[13] Rule 30 of the Uniform Rules of Court provides that “(1) A party to a cause in
which an irregular step has been taken by any other party may apply to court
to set it aside. ”
[14] It is trite law that Rule 30 applies only to irregularities of form and not to
matters of substance. In the present case the respondents decry the form
followed by the applicants. This is not the place, the respondents failed to
raise the irregularity in the proper manner. In the result, the point in limine
must fail.
Issue
[15] Issue s for determination are whether the applicants are entitled to the interim
interdict.
Requirements for interim interdict
[16] It is trite that the applicant seeking the order for interim interdict must
establish :
(a) that the right which is the subject -matter of the main application(s) and
which it seeks to protect by means of interim relief is clear or, if not
clear, is prima facie established, though open to some doubt;
(b) that, if the right is only prima facie established, there is a well-grounded
apprehension of irreparable harm if the interim relief is not granted, and
it ultimately succeeds in establishing its right;
(c) that the balance of convenience favours the granting of interim relief;
and
(d) that the applicant has no other satisfactory remedy.
[17] The oft -quoted passage from Webster v Mitchell1 explains the enquiry as
follows:
1 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 -1190
“In the grant of a temporary interdict, apart from prejudice involved, the first
question for the Court…is whether, if interim protection is given, the
applicant could ever obtain the rights he seeks to protect. Prima facie that
has to be shown. The use of the phrase “prima facie established though
open to some doubt” indicates…that more is required than merely to look at
the allegations of the applicant, but something short of a weighing up of the
probabilities of conflicting versions is required. ”
[18] The applicants ’ argument is that as liquidators they are not only vested with
a clear right in terms of the 1973 Companies Act, consequent to their
appointment, to take into their possession and under and their control all
assets of the insolvent estate and to preserve same but are furthermore
obliged to do so in the discharge of their statutory duties for the benefit of the
concursus . [ own emphasis]
[19] The argument proffered on behalf of the respondents is that the applicant s
do not have any right to bring this application whatsoever. This is due to the
application in terms of s 18(4) , the extension of powers of the liquidators are
suspended. According to the applicants the respondent s only filed notice in
terms of s 18(4), not the application. Even if it is so the provisions of Section
150 (3) of the Insolvency Act of 1936 provide as follows:
“When an appeal has been noted (whether under this section or under any
other law), against a final order of seque stration, 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. ”
[20] From the above, the respondents’ counter argument is that applicants have
no clear right and cannot succeed. The applicants have established a prima
facie right.
[21] It was submitted on behalf of the applicants that there is the real
apprehension that the respondents and conceivably Van Der Merwe, may
well dispose of the Beechcraft to the irreparable prejudice of the insolvent
estate and its creditor s based on the following:
21.1 During the period of 8 January 2021 to 10 May 2022 (therefore during
the business rescue proceedings ), subsequent to the commencement date
of PM’s winding -up and in the midst of ongoing litigation caused to be
slaughtered more than R6.4 million worth of sheep, the proceeds of which
was spirited away . An additional 7037 head of sheep, over and above the
aforesaid, have been dissipated and/or spirited away.
21.2 Van Der Merwe has also alienated a Toyota Landcruiser VX Luxury
4x4 motor vehicle from his personal estate to another related Merwede
entity, of which he was similarly the only director of at the time.
21.3 Furthermore , Van Der Merwe purportedly intimated to the Landbank’s
attorney, a certain Mr De Jager and the Sheriff of the Court:
“…Van Der Merwe could similarly not provide explanation as to this
transfer of ownership other than that the aeroplane was exchanged for
a farm. This he told the sheriff and Mr de Jager during the attachment
of his assets after the provisional orders were granted…”
21.4 In converse, Ms Taljaard (purportedly in the context of being a director
of Project Multiply) contended in her replying affidavit at paragraphs 35 to 38
(an extract of which is annexed hereto as annexure “FA20”) that the
Beechcraft was ostensibly sold and delivered to the Trust in 2018.
[22] The respondents’ case is that Beechcraft was sold legitimately. In this regard
the respondents attached a handwritten document with one of the names
depicted as van der Merwe on it. This is done without taking the court into
confidence as to who are the parties to the transact ion. In fact, the
respondents contradict themselves. The version pertaining to the sale of
the Beechcraft contradicts their own version that the transfer was as result of
set-off relating to the moneys owed by the farm to the Trust.
[23] Secondly , subsequent to the disposition of the Beechcraft the liabilities of
PM exceeded its assets and fell to be set aside in terms of Section 26 of the
Insolvency Act, which provides that:
“26. (1) Every disposition of property not made for value out value. may be
set aside by the Court if such disposition was made by an insolvent - (a)
·more than· two years before the sequestration of his estate, and it is proved
that, immediately after the disposition was made, the liabilities of the
insolvent exceeded his assets; ”
[24] From the above I find that there is a well-grounded apprehension of
irreparable harm if the interim relief is not granted, and the applicants have
ultimately succeed ed in establishing their right.
[25] Regarding the balance of convenience based on the undisputed facts above,
it favours the applicants. Furthermore, this is the liquidation matter, the
liquidators are acting in their official capacity, and they are supposed to
exercise their fiduciary duties for the benefit of all the creditors. The
applicants have satisf ied the third requirement.
[26] Pertaining to the absence of another adequate remedy should the
Beechcraft be further alienated; it would have the effect that same may well
be beyond the liquidators reach and impossible to recover at a later stage.
There are no alternative avenues available to the liquidators. It is concluded
that the applicant s have no alternative remedy.
[27] I reiterate that the order sought herein is sought pending the institution of an
action to set aside the sale of the Beechcraft. Therefore, I have not dealt with
whether the Beechcraft was fraudulently transferred or alienated as one of
the relief’s sought by the applicants.
[28] For the foregoing the applicants have established the case for interim
interdict. The application must succeed.
ORDER
1. The application is granted with costs at Scale C.
__________________________
N P MALI
JUDGE OF THE HIGH COURT
Appearances :
For the Applicants: Adv. A A Basson
abasson@group33advocates.com
Instructed by: J I Van Niekerk Inc.
kaitlin@vninc.co.za
For the Respondents: Adv. G G Janse van Rensburg
fritzvr11@gmail.com
Instructed by: Schutte Attorneys
sarina@vnattorneys.net