IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
25 June 2025
DATE
Date: 25 June 2025
Case number: 056154/2024
In the matter between:
K2015353134 (SOUTH AFRICA) (PTY) LIMITED
and
LOUSIA SIBIYA N.O.
ELIZABETH MARGARA TE EDWARDS N.O.
MPONYANA LAZARUS LEDWABA N.O.
[In their capacities as the duly appointed joint liquidators
of Artio Investments (Pty) Ltd (in liquidation)] Applicant
First Respondent
Second Respondent
Third Respondent
ARTIO INVESTMENTS (PTY) LTD (IN LIQUIDATION) Fourth Respondent
THE MASTER OF THE HIGH COURT, PRETORIA Fifth Respondent
JUDGMENT
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MINNAARAJ:
INTRODUCTION:
(1] In this application, the applicant is seeking the following urgent relief:
a. Interdicting and restraining the first to the third respondents ('the
liquidators') from finalising the fourth respondent's liquidation and
distribution account ('L&D') and submitting the same to the fifth
respondent for approval.
b. In the alternative to the above, and to the extent that the
liquidators have finalised the fourth respondent's L&D and
submitted the same to the fifth respondent for approval, then and
in that event, the fifth respondent is interdicted from approving the
fourth respondent's L&D.
c. The liquidators to be interdicted and restrained from taxing the bill
of costs and executing upon the cost order that the Arbitrator
granted in the arbitration as between the applicant and the
liquidators and the fourth respondent.
d. That paragraphs 1 and 2 of the order granted by Motha J on 28
March 2025 be varied, amplified and supplemented.
e. The orders contained in paragraphs 2 to 4 of the notice of motion
(paragraphs a to c herein above) shall operate as interim orders
with immediate effect, pending the final determination and
hearing of the applicant's appeal in the pending arbitration appeal
pursuant to the applicant's notice of appeal dated 27 August
2023, as between the applicant and the liquidators.
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f. The liquidators to pay the costs of the application on the scale as
between attorney and client, such costs to include the costs
consequent upon the employment of two counsel.
[2] The liquidators delivered a conditional counterclaim. The counterclaim is
to be adjudicated upon should it be found that the applicant's application
is urgent.
[3] The dispute between the applicant and the liquidators dates back to
February 2017, when a written agreement was concluded, under which
the applicant offered to purchase the business of the fourth respondent
(in liquidation). This transaction culminated in an arbitration that the
applicant instituted in September 2022. An arbitration award was handed
down on 19 August 2023, wherein the applicant's claim was dismissed.
The applicant then delivered a notice of appeal against the arbitration
award. In March 2024, a dispute arose over whether or not the appeal
had lapsed. This dispute came before Matha J, who granted an order on
28 March 2025. Motha J ordered that the applicant's appeal had not
lapsed and directed the applicant and the liquidators to convene and
attend a pre-appeal arbitration meeting to be held within 15 days from
the date of the order, to reach an agreement on the number of arbitrators
to hear the appeal. A further dispute arose regarding compliance with
the order by Matha J, as no agreement could be reached on the number
of arbitrators to hear the appeal.
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[4] According to the liquidators, the L&D has not yet been submitted.
URGENCY:
[5] Rule 6(12) provides, inter alia, that the Court may dispose of urgent
applications at such time and place and in such manner and in
accordance with such procedure as to it seems meet. The circumstances
that an applicant avers render a matter urgent, and the reasons why he
claims that he could not be afforded substantial redress at a hearing in
due course must, in terms of Rule 6(12) (b), be set forth explicitly in the
supporting affidavit.1
[6] The requirements under Rule 6(12)(b) are peremptory, and mere lip
service will not suffice.2 A proper explanation must be provided as to why
an applicant should be granted preferential treatment to be heard in the
urgent court as opposed to having to join the queue in the normal course
of the motion court.
[7] One of the key urgency requirements is for an applicant to make out a
case that such an applicant will not obtain substantial redress in due
course. In this regard, it was stated by Tuchten J in Mogalakwena
Municipality v Provincial Executive Council, Limpopo 2016 ( 4) SA 99
(GP) at paragraph 64:
1 /L&B Marcow Caterers v Greatermans SA 1981 (4) SA 108 (C) at 110
2 Luna Meubel Vervaardigers Eiendoms Beperk v Makin & Another (trading as Makin 's Furniture
Manufacturers) 1977 (4) SA 135 (W) at l37F -G
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"It seems to me that when urgency is in issue, the primary investigation
should be to determine whether the applicant will be afforded substantial
redress at a hearing in due course. If the applicant cannot establish
prejudice in this sense, the application cannot be urgent. Once such
prejudice is established, other factors come into consideration. These
factors include (but are not limited to): whether the respondents can
adequately present their cases in the time available between notice of
the application to them and the actual hearing; other prejudice to the
respondents and the administration of justice; the strength of the case
made by the applicant; and any delay by the applicant in asserting its
rights. This last factor is often called, usually by counsel acting for
respondents, self-created urgency. '13
[8] In the founding affidavit, the following is stated by the applicant under
the heading of 'urgency':
"23. The application is brought urgently.
24. The Applicant respectfully submits that the matter is of such a
nature that it cannot be afforded the normal timeframes and
formalities applicable in the ordinary course.
25. The urgency stems from the conduct and stated intentions of the
Respondents, who, despite the existence of a valid and pending
arbitration and a binding Court Order confirming the Applicant's
right to pursue such appeal, have indicated that they will proceed
with:
3 See also: East Rock Trading (Pty) Ltd and Another v Eagle Valley Granite and Others (11/33767)
[20 I I] ZAGP JHC I 96 (23 September 2011)
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25.1 the taxation and execution of the bill of costs, in the cost order
that was granted in the arbitration proceedings as between the
Applicant and the First to Fourth Respondents; and
25. 2 the composition and submission of the liquidation and distribution
account of the Fourth Respondent."
[9] From the above-quoted passage, the applicant's urgency is therefore
premised on:
a. The taxation and execution of the bill of costs, in the cost order
that was granted in the arbitration proceedings; and
b. The composition and submission of L&D.
[1 O] In the concluding paragraphs of the founding affidavit, it is stated
that, based on the extensive submissions contained in the founding
affidavit, the matter is urgent. In a general statement to justify urgency,
reference is also made to promptitude to pursue the application, the
interest of justice, and lack of prejudice to the respondents. Without
providing any specifics, it is also stated that a hearing in due course
would not afford the applicant substantial and meaningful redress. These
general remarks do not assist the applicant in meeting the requirements
of Rule 6(12)(b).
[11] The costs order was already granted on 19 October 2023. At the
commencement of the argument, the applicant's counsel indicated that
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the issue of costs is no longer a ground for urgency. This then leaves the
L&D as the only ground for urgency.
[12] As far back as 10 April 2024 (Annexure OA-3 to the answering
affidavit), the applicant was informed that the liquidators would prepare
an L&D account. It is unclear why the L&D would now, more than a year
later, become an urgent issue.
[13] In terms of section 407 of the Companies Act 61 of 1973 (Old
Act), any person having an interest has the right to object to any L&D
after it has been submitted for approval. It is for the fifth respondent to
consider whether the applicant would have an interest in objecting to the
L&D. For the applicant to seek now an order to interdict the L&D process
would be premature. Such a right in terms of section 407 would also
afford the applicant substantial redress in due course.
[14] The variation of the order granted by Matha J on 28 March 2025
was not included as a specific ground of urgency under the heading of
'urgency' by the applicant. Even if this ground is read as a ground to
justify urgency, then the applicant fails to convince this court that they
cannot obtain substantial redress in due course on this ground.
[15] It follows that the application stands to be struck from the roll due
to a lack of urgency. There is therefore no need to address the
liquidators' counter-application.
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COSTS:
[16] There is no reason why costs should not follow the outcome. Both
sides employed the services of two counsel. Costs are to be taxed on
scale C.
ORDER:
Consequently , I make the following order:
1. The application is struck from the roll due to a lack of urgency.
2. The applicant is to pay the costs of the application on scale C, such costs
to include the costs occasioned by the employment of two counsel.
-Acting Judge of the High Court
Gauteng Division, Pretoria
Heard on
For the Applicant
Instructed by
For the First to Fourth
Respondents:
Instructed by:
Date of Judgment 9
: 17 June 2025
: Adv.NA Cassim SC with Adv A Vorster
: Asif Latib Attorneys Incorporated
: Adv M Louw with Adv W G Tshabalala
: Jaco Roos Attorneys Incorporated
: 25 June 2025