IN THE HIGH COURT OF SOUTH AFRICA
(FREE STATE DIVISION, BLOEMFONTEIN)
In the matter between:
LOUIS JONKER
JOHANNA JACOBA JONKER N.O.
and
MAGISTRATE BOTHAVILLE N.O.
[In his capacity as presiding officer]
DEON MARIUS BOTHA N.O.
JOHANNES ZACHARIAS HUMAN MULLER N.O.
LOUISA SIBIYA N.O.
THE LAND AND AGRICULTURAL DEVELOPMENT
BANK OF SOUTH AFRICA Reportable / Not Reportable
Case Number: 901/2025
First Applicant
Second Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
THE MASTER OF THE HIGH COURT, BLOEMFONTEIN Sixth Respondent
Neutral citation: Jonl<er and Another v Magistrate, Bothavil/e and Others, Case
No. 901/2025
Coram: 5. Grobler, AJ
Heard on:
Order:
Reasons:
Summary: 27 February 2025.
27 February 2025. 2
This judgment was handed down electronically by circulation to the
parties' representatives by email and released to SAFLII. The date and
time for hand-down is deemed to be at 10:45 on 11 March 2025.
Reasons for an order granted in urgent court. No right and
no harm shown. Application dismissed
ORDER
1. The normal rules pertaining to notice and service is dispensed with and the
application is heard as one of urgency in terms of r6(12) of the uniform rules of
court.
2. The application is dismissed with costs, in the case of the First-to Fourth
Respondents including the costs of two counsel, in all instances on scale C.
JUDGMENT
INTRODUCTION:
[1] On 27 February 2025 I considered this matter urgent and ordered thus. I
however dismissed the application immediately, and indicated that I would
provide reasons for the order at a later date.
[2] On 19 February 2025, the Applicants ('the Jonkers') issued this application
seeking relief [apart from the urgency prayer] that the Second- to Fourth
Respondents ('the Liquidators') be interdicted from continuing with the
liquidation process of Jonker Produkte CC (in liquidation) , pending the
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finalisation of the review application brought under case number 480/2025.
[3] Further and to my mind of no little significance, they also sought an order
setting aside subpoenas issued by the First Respondent ('the Magistrate')
issued pursuant to the first and second meetings of creditors for October
2024, annexed as 'LJ1 O' to the Founding Affidavit. Those subpoenas sought
to secure the presence of the Jonkers at an insolvency enquiry that was
scheduled to take place on 28 February 2025. Hence the urgent application
[4] Punitive costs were also sought.
[5] The Liquidators and the Fifth Respondent ('the Bank) opposed the
application.
THE FACTS:
[6] The Founding Affidavit reveals that the present application is one of a series
of litigation between the Jonkers, the Bank and the Liquidators dating back to
2020.
[7] Jonker Produkte CC was provisionally liquidated on 11 September 2020.
The provisional order was confirmed on 29 October 2020.
[8] I do not deal with the litigious history as I do not deem it relevant. What is
relevant however is that on 15 January 2025, the Sixth Respondent ('the
Master) notified the Liquidators that he has decided that they are no longer
fit to continue with the liquidation of Jonker Produkte and he will remove
them, absent a court order dictating the contrary, with effect from 17
February 2025. Once again, I do not traverse all the reasons for this
apparent decision because of what I state below.
[9] Shortly thereafter and on 31 January 2025, the Liquidators approached the
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court with an urgent application . It has two parts. The first seeks to
temporarily suspend 'the decision' of the Master pending the finalisation of
part B. Part B of course then is a review. En passant I do mention that I had
some difficulty with the wording of the Master's notification of the decision
apparently taken. Mr Janse van Rensburg for the Jonkers, Mr Maritz (with
Mr Griese!) for the Liquidators and Mr Tsangarakis for the Bank, all assured
me that a final decision had been taken by 15 January 2025. For this
reason, I do not venture beyond accepting that such a decision was made,
and that it would stand and bind unless reviewed.
[1 O] The Jonkers opposed part A of the application and the matter initially served
before Van Rhyn J on 13 February 2025. It is common cause that the matter
was postponed to 6 March 2025 at the behest of the Master, who indicated
that he did not receive timeous notification of the application and wanted to
file an opposing affidavit. As an aside here as well, Mr Maritz argued that the
Master doing thus was in execution of a contrived plan to seek the delay of
that proceeding. There is merit in this argument, but I do not believe that the
outcome of the application did of should centre upon any finding on this.
[11] On this day the parties agreed to an interim order, which Van Rhyn J
granted. It is an example of a rare species of order; -an interim order
regulating what happens in the interim, pending finalisation of the application
seeking interim relief. Its wording is important:
'The decision by the Master of the High Court, Bloemfontein (First Respondent) dated
15 January 2025 is suspended pending final adjudication of part A of the Notice of
Motion. (ad finem).'
[12] On 28 February 2025, the Liquidators caused to be issued subpoenas for
the postponed second meeting of creditors which was set down for 28
February 2025. It was so set down -as the Bank revealed in its affidavit -
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approximately five months prior to February 2025. The Liquidators indicated
that the issuing of the subpoenas was somewhat overboard, because at
least Mr Jonker had been warned at the first meeting to attend the second
and at the date set.
[13] The issuing of the subpoenas is what prompted the present application. Both
the Liquidators and the Bank complained that the application is not urgent. I
decided that -although there is merit in their complaint -to hear the matter
on the merits nonetheless. That was primarily because striking the matter off
the roll because of self-created urgency would effectively in the present case
have meant the dismissal of the application. The harm complained of; -good
or bad on the substance of the case -would have materialized had I not
heard the matter. That is because the Jonkers stated two things:
13.1 firstly and under these stated circumstances , the Liquidators cannot
continue with the administration of the insolvent estate and conduct the
enquiry . .. ' .... by dissipating the funds (sic) to fuel their agenda to intimidate,
victimise and harass us with yet another interrogation.';
and
13.2 'We will suffer irreparable harm if we are subjective to an unwarranted and vexatious
interrogation under circumstances where the Master has already found that the
Liquidators are not fit and proper to administer the insolvent estate of Jonker
Produkte.'
THE ADVANCED RIGHT:
[14] Mr Janse van Rensburg argued that the interdict application that is to serve
before the court on 6 March 2025 (the part A) only sought to impugna part of
the Master's decision(s). He submitted that the Master's notification of said
decision evinces that the Liquidators were to be removed in terms of
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s379(1)(b) of the Companies Act.1 This was one part of the order according
to him.
[15] He argued that Master had further [or also] decided the Liquidators are not fit
and proper to attend to the affairs of the liquidated estate, on the back of a
separate finding made to that extent and a further finding that the Liquidators
should not be allowed to continue with the winding-up of Jonker Produkte
CC.
[16] Mr Janse van Rensburg submitted that part A and part B of that application
does not seek to impugn anything beyond the finding made in s379(1 )(b) of
the old Companies Act. And significantly, that van Rhyn J's order does not
suspend the operation of the entire Master's decision.
[17] This section states that the Master may remove a liquidator from her office
on the ground that she has failed to perform satisfactorily any duty imposed
upon her by this Act, or to comply with a lawful demand of the Master. It is
noteworthy to mention as well that s379(1)(e) states that the Master may
occasion the same removal with the same effect if he is of the opinion that
the liquidator is no longer suitable to be the liquidator of a company
concerned.
[18] Mr Maritz answered this to state that at worst for the Liquidators, the Master
had taken three decisions. The first is the removal action in terms of
s379(1 )(b), the second is that the Master had decided that the certificate of
appointment of the Liquidators should be sent back to the Master's office,
and thirdly, that the Liquidators would forfeit any fees due to them for their
favour to perform their duties in a satisfactory manner. This interpretation is
1 67 of 1973, read with Item 9 of Schedule S of Act 71 of 2008 (read together with s66(1) of the Close
Corporations Act, 69 of 1984.
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borne out by the notification of the decision itself. Mr Maritz submitted that
part B (i.e., the review) will seek to impugn ex abundanti cautela all three
these decisions, but because the s379(1)(b) decision is impacted upon by
the order Van Rhyn J gave on 13 February 2025, the Jonkers are nonsuited.
[19] To my mind the Master had truly taken only one decision, and that is the
removal decision in terms of s379(1 )(b). It seems to me that the second-and
third contended decisions are sequalae flowing from the first primary
decision. But I need not find as much, nor will I bind the review court in any
way with this judgment through a final finding of fact on this. I make these
remarks obiter.
[20] The point however is that I do not believe Mr Janse van Rensburg's
argument can stand on this. Contextually interpreted, it seems to me that the
Master had not taken separate decisions as he contended, because -as Mr
Maritz and Mr Tsangarakis for the Bank I believe correctly argued -the
apparent finding as to the suitability of the Liquidators and that they should
not be allowed to continue with the winding-up of Jonker Produkte CC, seeks
to serve as reasons for the decision taken. They do not appear to be self
standing decisions.
[21] This is unmistakeably plain from a proper reading of the notification itself.2
2 The interpretation exercise is now a unitary one. It involves as a starting point the words used. Any finder of
fact is required to consider them in light of relevant context, and the former distinction between background
and surrounding circumstances is no longer made.
See: Bothma- Batho Transport (Edms) Beperk v S Bothma en Seun Transport (Edms) Beperk, 2014 (2) SA
429 (SCA).
Importantly, the document interpreted must be considered as a whole.
Every word must be given a meaning, impractical or unbusiness -like and oppressive consequences or
consequences that will stultify the broader operation of the document under consideration is not to be
allowed.
See: Natal Joint Municipal Pension Fund v Endumeni Municipality, 2012 (4) SA 593 (SCA) at para 25 and
26.
8
[22] To my mind this means that Van Rhyn J's order suspended -by agreement
-the operation of the entire Master's decision pending the finalisation of that
review. It follows consequentially that the Jonkers have shown no clear or
even prima facie right, and for that reason alone the application must fail.3
Harm:
[23] I also do not believe that the Jonkers had shown harm would befall them
should the interrogation continue. It is noteworthy to mention here that Mr
Tsangarakis emphasized approximately R17 Million worth of assets had
apparently gone missing either before or even after the provisional liquidation
orders of Jonker Produkte CC. As Mr Tsangarakis (and Mr Maritz) correctly
submitted, the Jonkers do not deal with this in their Replying Affidavit at all.
[24] It appears to me evidently clear that the Jonkers simply do not want to testify
at the interrogation. This entire application was motivated by that lack of a
desire, and one need not be clairvoyant to realise that. Why exactly they do
not wish to testify I am not going to find, but I find no merit in the contention
that -on the facts of the present case as presented before me -they will be
victimised, intimidated and harassed by being subjected to examinations at
the interrogation. No substance, at all, was given to these sweeping
statements
[25] Mr Janse van Rensburg also submitted that the interest of the liquidated
estate would not be served through the conducting of the interrogations
planned. He submitted that these would amount to a waste of money, under
3 In the context of seeking interim relief, it is trite that paramount consideration remains the prima facie right
shown to the eventual relief in the main proceedings. This right may only be open to some doubt, for which
serious doubt is cast upon the rights sought to be established, the interdict cannot be granted no matter how
favourable the other requirements for the Applicants are. A clear right need to be shown in a final interdict
application, before anything else
Spur Steak Ranches Ltd and Others v Saddles Steak Ranch Claremont and Another, 1996 (3) SA 706 (C).
9
circumstances where the Master has already taken a decision to remove the
Liquidators and where there might be a possibility that -through some
undisclosed, unplanned later application or happening -it might ultimately be
found that the only creditor (the Bank) of Jonker Produkte CC had no locus
standi to seek the liquidation of the close corporation five years ago.
[26] There was an attempt to argue the latter case, but on rather trite principles I
am not going to deal with the application on that basis because that is not the
case with the Liquidators and the Bank were called upon to meet. As to the
first of these contentions , I fail to see how the conducting of an interrogation
might lead to the incurring of unnecessary costs. Even if the Liquidators are
ultimately removed (that is to say, if the review application against the
Master's decision is dismissed), valuable information will be obtained as to
what appears to be prima facie missing assets belonging to the estate. The
close corporation will probably remain in liquidation, and in that event the
newly appointed liquidators can simply act further upon information received
through at such interrogations .
[27] Even if -by some good fortune for the Jonkers -the liquidation of Jonker
Produkte CC is uplifted in the distant future because it is ultimately revealed
that the Bank is not a creditor, the disadvantages of the interrogation will
comparatively be miniscule, compared to the advantages to the liquidated
estate should the interrogation proceed. Indeed, there is no comparison to be
made.
[28] These are the reasons why I ordered as I did.
On behalf of the Applicants Adv Fritz Janse van Rensburg
On behalf of the Second-to Fourth Respondents: Adv. Maritz SC
Adv Griesel
On behalf of the Fifth Respondent: Adv. S Tsangarakis 10