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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
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(1) REPORTABLE: NO
(2) O it TEREST TO OTHER JUDGES: NO Case Number: 2022/045994
(3) REVISED:
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SIGNATURE DATE
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SIMON MATLESHE SEIMA N.O. First Applicant
TARYN JANE NEIZEL N.O. Second Applicant
NURJEHAN ABDOOL GAFAAR OMAR N.O. Third Applicant
SIBUSISO NDUNA N.O. Fourth Applicant
and
THE MASTER OF THE HIGH COURT, JOHANNESBURG First Respondent
NTUWISENI NETSHITAHAME N.O. Second Respondent
WIAN STANDER Third Respondent
ZARCO FORMWORK AND SCAFFOLDING CC Fourth Respondent
SUNHILL CAR WASH CC Fifth Respondent
SUNHILL LIQUORS CC Sixth Respondent
Coram: Sawma AJ
Heard: 24 April 2025
Delivered: This judgment was handed down electronically by circulation to the parties’ legal
representatives by email. The date and time for hand-down is deemed to be 14h00 on 7 July
2025
JUDGMENT
Introduction
[1] On the 11" of October 2023 Crutchfield J issued a Rule Nisi order calling upon
Samnakay Attorneys Incorporated (“SA Inc”) to advance reasons, if any, on or
before the 7'* of February 2024, why it should not be ordered to pay the costs
of this application jointly and severally with certain of the respondents on a
punitive scale as between attorney and own client, including the cost of two
counsel where so employed (the “Rule Nisi Order’). The same order declared
that the application for removal of the applicants as trustees of the insolvent
estate of Mr Martin Ashley Levick was a nullity and set it aside. It also directed
that the third to sixth respondents (the “Opposing Respondents”) pay the costs
of the application jointly and severally on a punitive scale as between attorney
and own client, including the cost of two counsel where so employed.
[2] What now arises for consideration is whether the Rule Nisi Order should be
confirmed, which in turn requires consideration of, amongst other matters, the
reasons advanced by SA Inc in an affidavit delivered on its behalf (the “SA Inc
Affidavit’) as to why such an order should not be made final.
[3] To understand the context in which the Rule Nisi Order was made and within
which the cost order requires adjudication, it is necessary to briefly sketch the
background to the application.
Background
[4] The first to fourth applicants (the “Trustees”) are the duly appointed trustees to
the insolvent estate of Mr Levick (the “Estate”). The first respondent is the
Master of the High Court of South Africa, Gauteng Division Johannesburg (the :
“Master’). The second respondent was the designated official at the Master’s
office that presided over both the first and second meeting of creditors of the
estate (the “Presiding Officer’).
[5] Mr Levick’s estate was provisionally sequestrated on the 23 of April 2019 and
placed into final sequestration on the 4 June 2019. The provisional
sequestration arose in consequence of an urgent application instituted by a
certain Mr Segal and Segal Supra (Pty) Ltd, who alleged that Levick was
indebted to them collectively in significant amounts and the application was
ultimately supported by two other creditors who intervened and who alleged that
Mr Levick had misappropriated substantial funds from them. After the
sequestration order was granted a number of other creditors came forward
claiming that they too had been the victims of fraud
[6] The first meeting of creditors was held on the 5" of May 2021 and at that time,
of the 54 claims submitted to proof, only those of the Opposing Respondents,
and that of one Xaba (in an amount of R1668.23) were admitted to proof. In total
the claims of the opposing respondents constituted R749 424.40.'The balance
of the 49 claims were rejected.
[7] A number of the rejected claims were re-submitted for proof at the second
meeting of creditors?, but they were all rejected by the Presiding Officer. The
trustees were of the view that the rejected claims (which included a claim by the
South African Revenue Services) ought to have been admitted to proof as they
were prima facie in order and bona fide. The second meeting of creditors,
however, rejected the requisite resolution that would have empowered the
Trustees in their discretion to compromise or admit claims against the estate.
The available minutes of the first meeting of creditors and the available minutes
and transcript of the second meeting reflect that Mr Mohammed Samnakay (Mr
Samnakay) of SA Inc represented creditors at times although it is not clear that
he was present at each of its sittings.
[8] Ultimately a number of these rejected claims were established against the estate
(either by way of litigation or as a result of a special meeting of creditors that
was convened to that end), this in the combined sum of R157 436 092.92 and
this included the claims of Segal Supra (Pty) Ltd in the amount of
US$1 072 780,00 and SARS in the amount of R28 490 710,86, amongst others.
The application papers reveal that action proceedings remain outstanding in
respect of other creditors for an amount in excess of R545 million including the
1 At the time of this application for confirmation of the Rule Nisi Order, the third respondents claim had,
after an interrogation of the third respondent, been disallowed whilst the claims of the fourth and sixth
respondents had become expunged. Although the claim of the fifth respondent remained pending, the
deponent to its claim is still to be interrogated concerning its veracity.
2 Which was convened over a number of days having been adjourned several times.