Motala v Master of the North Gauteng High Court, Pretoria (92/2018) [2019] ZASCA 60; [2019] 3 All SA 17 (SCA) ; 2019 (6) SA 68 (SCA) (17 May 2019)

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[2019] ZASCA 60
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Motala v Master of the North Gauteng High Court, Pretoria (92/2018) [2019] ZASCA 60; [2019] 3 All SA 17 (SCA) ; 2019 (6) SA 68 (SCA) (17 May 2019)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 92/2018
In
the matter between:
ENVER
MOHAMED
MOTALA                                                         APPELLANT
and
THE
MASTER OF THE NORTH GAUTENG
HIGH
COURT,
PRETORIA                                                             RESPONDENT
Neutral
citation:
Motala
v The Master of the North Gauteng High Court, Pretoria
(92/2018)
[2019] ZASCA 60
(17 May 2019)
Coram:
Leach,
Wallis, Mathopo and Van der Merwe JJA and Dlodlo AJA
Heard:
18
February 2019
Delivered:
17
May 2019
Summary:
Administration
of insolvent estates – Master’s panel of persons suitable
for appointment as liquidator or trustee –
compilation of panel
constitutes administrative action as envisaged by the Promotion of
Administrative Justice Act 3 of 2000 (PAJA)
– appellant removed
from the panel – factors relevant to such removal including
appellant’s dishonesty and his
disqualification as a liquidator
or trustee – appellant’s challenge to his removal from
the panel dismissed.
Appellant
also having applied to the Master to be reinstated to the panel –
Master refusing to do so – this decision
not challenged by the
appellant under PAJA – Master’s decision not to reinstate
renders nugatory the appellant’s
claim based on earlier
removal.
Costs
– appellant contending he ought not to pay costs if
unsuccessful as he sought to enforce a constitutional right –

factors relevant to discretion in such cases – appellant
ordered to pay the costs.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Fourie J sitting as court of
first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Leach
JA (Wallis, Mathopo and Van der Merwe JJA and Dlodlo AJA
concurring)
Introduction
[1]
The respondent in this appeal is the Master appointed under
s
2(1)
(a)
(ii)
of the
Administration of Estates Act 66 of 1965
in respect of the
Gauteng Division of the High Court, Pretoria (known at the time these
proceedings were commenced
a
quo
as the North Gauteng High Court). In
s 1
of that Act the term
‘Master’ is defined in relation to any matter, property
or estate as meaning a Deputy Master or
Assistant Master appointed
under s 2 and is subject to the control, direction and supervision of
the Chief Master. The present
proceedings relate in the main to
actions taken by a Deputy Master, Ms C Rossouw, which the appellant
sought unsuccessfully to
challenge by way of review under the
provisions of the Promotion of Administrative Justice Act 3 of 2000
(PAJA).
[2]
The Master’s office in Pretoria is burdened with onerous
responsibilities. Every year it is placed in control of some
750
company liquidations and since 2009 has dealt with an annual average
of about 7 000 sequestrated estates. The funds involved
in these
administrations total thousands of millions of rand. It is
self-evident from this that in order to protect these funds
and the
interest of creditors and other interested parties, only persons
suitable for the purpose should be appointed as the liquidators
of
companies or the administrators of estates. To facilitate this, the
long-standing practice has been for Masters to maintain
a list or
panel of persons that have been found to be suitable for appointment:
see the
SARIPA
case
.
[1]
Whilst not statutorily recognised, it is a practice which holds
obvious practical advantages. For convenience, I intend to refer
to
the list simply as the Master’s panel.
[3]
The appellant, Mr Enver Motala, describes himself as being a
‘liquidator and administrator of estates’. He commenced

working in that field in 1999 and built up a successful practice. He
is a director of a trust company, referred to in the papers
as ‘SBT
Trust’, which has its principal place of business in
Johannesburg.  The appellant was previously on the
Master’s
panel.
[4]
In April 2009, the appellant was appointed as a joint liquidator of
the seventh respondent (Pamodzi Gold Free State (Pty) Ltd)
as well as
a joint provisional liquidator of the eighth to thirteenth
respondents (respectively Pamodzi Gold East Rand (Pty) Ltd,
Nigel
Gold Mining (Pty) Ltd, the Grootvlei Mines (Pty) Ltd, Consolidated
Modderfontein Mines Ltd, Consolidated Modderfontein Mines
1979 (Pty)
Ltd, and Pamodzi Gold Orkney (Pty) Ltd). In October 2009, the
appellant was further appointed as a joint final liquidator
of the
sixth respondent, Pamodzi Gold Limited. For convenience I intend to
refer to these companies collectively as ‘the
Pamodzi Group’.
They are all companies which owned and operated mines, the sixth
respondent having been the holding company
of the group. They had all
been placed into liquidation under the jurisdiction of the
respondent. Ms Rossouw was the official in
the Master’s office
responsible for the liquidations of the companies in the Pamodzi
Group.
[5]
In the circumstances more fully set out below, Ms Rossouw terminated
the appellant’s aforementioned appointments. Aggrieved
by this,
the appellant instituted review proceedings in the North Gauteng High
Court. By way of a notice of motion issued on 22
August 2011 and
served on 9 September 2011, he sought an order both setting aside the
decision to remove him as liquidator of the
Pamodzi Group and
reinstating him to that position. On 5 September 2011, a few days
before the notice of motion was served, Ms
Rossouw had issued a
further directive that the appellant’s name be removed from the
Master’s panel. Despite the fact
that on 25 August 2011 the
appellant had been informed that the Master was considering taking
this step (as I shall set out below),
no challenge to this decision
was immediately forthcoming and the appellant only sought to do so
some three and a half years later.
[2]
[6]
The appellant’s application for reinstatement as a Pamodzi
Group liquidator was opposed, and time dragged on without it
being
resolved. It was only in January 2015 that the appellant sought to
introduce an amended notice of motion containing additional
prayers,
including an order setting aside the decision of 5 September 2011 to
remove him from the panel. The matter eventually
came before D S
Fourie J in the Gauteng Division, Pretoria who, on 9 October 2017,
refused to condone the appellant’s late
introduction of the
review proceedings relating to his removal from the panel. As the
latter decision was thus undisturbed, the
relief sought at the outset
became inconsequential and the application was dismissed. The appeal
to this court against that order
is with the leave of the court
a
quo
.
The
Facts
The
liquidation of the Pamodzi Group
[7]
It is necessary to place the dispute in its factual context and to
detail the history of this litigation. The operating companies
in the
Pamodzi Group were all gold mining companies that, having a
collective debt of more than R1 billion, were described
by the
appellant himself as being ‘hopelessly insolvent’. This
had led to them being placed into liquidation in the
hands of the
Master. However, despite their insolvency, they each had intrinsic
value not only in their tangible assets but, importantly,
in the
mining rights they held which would have been lost had they gone into
final liquidation. For this reason it was to the advantage
of
creditors for the companies to be kept in provisional liquidation
while attempts were made to sell them. Consequently, the return
dates
of their provisional liquidation orders were extended from time to
time as the liquidators attempted to find suitable purchasers.
[8]
It was at this stage that Aurora Empowerment Systems (Pty) Ltd
(Aurora) came onto the scene, describing itself as ‘a
specialised investment vehicle established to make strategic
investments in a diversity of categories in the sub-Sahara African

region’. Aurora’s directors appear to have been
politically well connected. They included a grandson of President
Nelson Mandela, a nephew of President Zuma and Mr Michael Hulley, an
attorney often employed by President Zuma for his personal
matters.
[9]
For reasons not relevant to this dispute, Aurora was the liquidators’
preferred bidder for certain of the mines. On 27
July 2009, it
offered R215 million to purchase the assets of the thirteenth
respondent and, subsequently, on 1 October
2009, R379 million
for the assets of the ninth to twelfth respondents. Although Aurora
lacked the necessary funds to pay these
vast sums and needed to raise
finance from a strong and reliable financier, the liquidators
accepted its bids as they were supposedly
supported by a commitment
from a Malaysian consortium which provided two letters of
undertaking. In the first, an undertaking was
given to pay R200
million for the acquisition of the thirteenth respondent upon
confirmation that Aurora had been selected as preferred
bidder. In
the second, there was an undertaking to pay R350 million for the
acquisition of the eighth to thirteenth respondents.
It was on the
strength of these undertakings that the liquidators accepted Aurora’s
bids.
[10]
The Pamodzi Group employed more than 10 000 people and it was
vital, not only for the retention of their mining rights,
but for
social and economic purposes, for the mines to continue operating.
Accordingly, pursuant to Aurora having been selected
as the preferred
bidder and its bids accepted, the liquidators concluded interim
agreements (referred to in evidence as the ICTMA’s)
with Aurora
relating to the mines it wished to buy. These were designed to enable
it to carry on mining activities while it secured
payment and
completed the process of purchasing the mines.
[11]
Under these agreements, Aurora was given the right to mine at its
expense ‘under the overall control and supervision
of the Joint
Provisional Liquidators’. It also assumed the contractual
obligations to maintain the mines for the liquidators
and bound
itself, inter alia, to maintain and keep safe the mines’ assets
‘in accordance with good and sound mining
practices and
procedures’, to manage and control the security of the mines,
to be responsible for ‘all hostel arrangements
in respect of
the employees, including but not limited to feeding, accommodation
and water and electricity supply at the hostels’
and to ensure
that all expenses be ‘discharged timeously’. Pertinently
it warranted that it would:
‘
8.3 not at
any time during the currency of this Agreement make any alterations,
additions, modifications or adjustments to the Mines
or any equipment
or assets of the Mines, unless it has first obtained the prior
written consent of the Joint Provisional Liquidators
. . . ;
8.4 not remove any
items, equipment or assets from the Mines without the prior written
consent of the Joint Provisional Liquidators.’
[12]
Unfortunately, Aurora’s governance and conduct of the mines and
their operations went anything but swimmingly. Ms Rossouw
stated that
she read numerous articles in the press and other journals commenting
adversely on events taking place on the mines.
She also received
calls from journalists as well as from trade unions whose members
were employed on the mines. On 26 October
2010, a journalist
asked her to comment on the statement in which the National Union of
Mine Workers had appealed to the Master’s
office to ‘nullify
the obviously failed liquidation process’.
[13]
The complaints levied against Aurora were many and serious. They
included that the mines’ employees were not receiving
their
food or wages and were being retrenched or dismissed from their
employment; that various deductions from wages – eg
those in
respect of unemployment insurance and PAYE tax – were being
retained by Aurora and not being paid over to the authorities
in
question; that assets of the mines were being stolen or otherwise
removed and not accounted for; that the mines were being stripped
of
their assets to the extent that on the Grootvlei Mine, the entire
headgear and machinery of number six mineshaft had been removed,

rendering the shaft inoperable; that electricity had been
disconnected as electrical charges had not been paid, which in turn
had not only left employees in the dark and without power, but had
resulted in the mines being unable  to conduct mining operations

as water could not be pumped from the shafts; that the failure to
pump water had also resulted in ecological problems impacting

seriously upon the environment; that mine security had been breached
and was at times almost non-existent; that illegal underground
mining
was taking place; and that gold had been stolen and not adequately
accounted for.
[14]
These reports were self-evidently of serious concern to the Master.
The assets of the mines were both valuable and crucial
to their
operation (the headgear that had been removed was alone worth tens of
millions of rand.) Moreover, the livelihood of many
thousands of
employees was under threat and an environmental calamity caused by
non-pumping of water and acid mine seepage had
become a very real
prospect. All these complaints related to duties that Aurora had
undertaken in terms of its interim agreements
with the liquidators.
It is not without significance that in
Engelbrecht
,
[3]
in relation to substantially the same facts, albeit at a later time
and in a claim brought under s 424 of the Companies Act,

instituted after the appellant had been removed as a joint
liquidator, Bertelsmann J stated:
‘
[41] Had the
(Aurora’s directors) approach to concluding the original
transaction been reckless – if not fraudulent
- their
management of the mines and their inaction after March 2010 to attend
to the ever-worsening situation of the mines was
no better. Their
complete disregard for the consequences of their failure to implement
the original transaction is inexplicable
other than that they could
not care at all about the damage they had caused. They should have –
as should the liquidators
– acted to limit further losses at
the latest by terminating the agreements for the acquisition of the
mines no later than
March 2010 at the very outside and placing the
mines on auction, if no other purchaser could be found.
[42] To the above
failures must be added the fact that (Aurora’s directors) did
not honour the ITCMA agreements at all. They
failed to manage the
mines properly, they failed to account to the liquidators, they
failed to maintain the workforce, they failed
to ensure the mines
safety – in short, they are guilty of numerous breaches of the
agreements.
’
[15]
In an affidavit deposed to on 5 December 2011, Ms Rossouw, stated
that although the liquidators had sent various reports to
the Master
concerning these issues, they were unhelpful as,
inter alia
,
the question of asset stripping was not properly addressed. There was
also no indication that the liquidators had themselves visited
the
mines to ascertain what had been happening on the ground. As she
pertinently recorded, it would have been a simple matter to
ascertain
whether the entire headgear of the number six shaft at Grootvlei Mine
had been removed as had been contended. Ms Rossouw
stated further:
‘
The reports
did not address the other issues that concerned me . . . There was no
indication of proper attention being directed,
for instance, to the
ecological damage occasioned by Aurora or to the devastation that was
being suffered by the miners and their
families. Indeed, the problems
that were identified by the joint liquidators were problems
identified as non-compliance by Aurora.
There was no indication on
the part of the joint liquidators of steps taken by them to control
Aurora or to compel Aurora to comply
with their responsibilities. The
Master never received a single report (if there was one) made by
Aurora to the liquidators as
contemplated in the ICTMA’s.
The Master’s
office had no idea of the veracity of the stories and rumours and
articles that were coming to its attention.
The stories were,
however, appalling and, if true, warranted action. It was clear,
however, that, in the interests of the companies,
their creditors and
their employees, the Master was obliged to investigate whether what
the office was hearing was true. Moreover,
the reports by the
liquidators did not address two problems concerning Aurora. The first
was the repeated extension of provisional
orders to enable Aurora to
produce funding which it appeared unable to do. It was not clear to
the Master why, at the apparent
expense of creditors, employees and
the environment, such latitude was being extended to Aurora. Second,
there was no indication
from the reports of the joint liquidators
that they were taking steps to terminate the ITCMA’s either on
the ground of Aurora
not coming up with the funds or on the basis of
what appeared to be numerous material and extensive breaches
thereof.’
[16]
The tipping point appears to have been the attitude adopted by
another of the joint liquidators, Mr J Engelbrecht, who on 8
April
2011 wrote to his co-liquidators and various others, expressing the
need to formally record his views on issues relating
to the
administration of the eighth respondent. These included the breaches
of the interim agreements already mentioned, as well
as the
withdrawal of services by the security company employed to protect
the mine due to non-payment of their charges, and the
content of
media releases made by the trade union Solidarity. In the light of
all of this, Mr Engelbrecht demanded that the joint
provisional
liquidators should urgently resolve to anticipate the return day of
the final order of liquidation relating to the
eighth respondent, and
stated that should they refuse to consent to his suggestions, he
intended to call upon the Master to authorise
and direct the
liquidators to anticipate the return day. He concluded by
disassociating himself from any further negotiations with
Aurora.
This letter was in due course made available to the Master.
The
enquiry on 16 May 2011 and the appellant’s removal as a Pamodzi
liquidator
[17]
The situation
had
clearly become intolerable and it would have been grossly remiss for
the Master not to have taken urgent remedial action. Ms Rossouw

decided at the outset to invoke s 417(1) of the Companies Act 61 of
1973 (the Companies Act).
[4]
This section provided that in a winding-up of a company unable to pay
its debts, the Master may at any time after a winding-up
order has
been made, summon, inter alia, any director or officer of the company
or any person whom the Master deems capable of
giving information
concerning the trade, dealings, affairs or property of the company.
Subsection 417(2) went on to provide that
the Master could examine
any person so summoned on oath or affirmation concerning any such
matter either orally or by way of interrogatories.
[18]
Pursuant to this, an enquiry under s 417 was initially held on 10, 17
and 21 May 2011 when several witnesses, including the
deputy general
secretary of the trade union, Solidarity, gave evidence. With the
assistance of a series of slides he demonstrated
how assets at the
Grootvlei mine had been stripped, the entire mining headgear removed
and a shaft of the mine exposed. He also
gave evidence as to the
devastation suffered by the former employees of the mines and
Aurora’s various breaches of the interim
agreement, including
the failure to make payment to the appropriate authorities of the
deductions made from wages and salaries.
Various other witnesses also
testified, painting a bleak picture of Aurora’s mining
activities and the administration of
the mines under their control.
Disturbingly, a witness from Standard Bank gave evidence that
Aurora’s supposed Malaysian
backers may have been no more than
a paper company using a name similar to a well-known Malaysian
banking group.
[19]
The liquidators were not persons referred to in s 417, so its
provisions could not be relied upon by the Master to obtain
information from them. Ms Rossouw therefore decided to invoke
the provisions of s 381 of the Companies Act which,
inter alia
,
provided:
‘
(1) The
Master shall take cognizance of the conduct of liquidators and shall,
if he has reason to believe that a liquidator is not
faithfully
performing his duties and duly observing all the requirements imposed
on him by any law or otherwise with respect to
the performance of his
duties, or if any complaint is made to him by any creditor, member or
contributory in regard thereto, enquire
into the matter and take such
action thereanent as he may think expedient.
(2) The Master may
at any time require any liquidator to answer any enquiry in relation
to any winding-up in which such liquidator
is engaged, and may, if he
thinks fit, examine such liquidator or any other person on oath
concerning the winding-up.’
[20]
Ms Rossouw describes this section as being ‘an essential tool’
for her to maintain control of liquidations, acquire
information from
liquidators and satisfy queries she might have. She states that in
practice the section is invoked daily, both
informally and formally,
and explains:
‘
For instance,
whenever a Master has a query about a company in liquidation, it is
not uncommon for the Master to telephone the liquidator
in question
and elicit an immediate answer which may satisfy the query. Likewise,
if the liquidator happens to visit the Master’s
office in
respect of liquidation X the Master may informally ask that
liquidator a question about liquidation Y. Sometimes the
Master will
write to a liquidator to elicit information . . . In some instances
the Master may decide to request a liquidator’s
attendance and,
in some instances, the Master may elect to question the particular
liquidator under oath and have the proceedings
recorded.’
[21]
In the present instance, the Master decided upon a formal enquiry
with the liquidator testifying under oath and the proceedings
being
recorded. Accordingly, on 3 May 2011 an Assistant Master, Mr
Cilliers, telefaxed a communication to the appellant and his

co-liquidators relating to the sixth, eighth and thirteenth
respondents, summoning them to an enquiry under s 381(2) on 16

and 17 May 2011, and to bring all documents and papers in their
possession relating to their administration . Further to this,
on 11
May 2011 the Master sent an email to the liquidators stating:
‘
With
reference to the section 381 subpoenas issued by this office in the
above matters and with specific reference to the documentation
to be
presented to the Master at the enquiry, you are hereby requested to
bring the following documents:
1. All documents
regarding the extension of the JPL’s (joint provisional
liquidators) powers and the source of the powers;
2. All
correspondence between JPL’s regarding the above matter;
3. All
correspondence between JPL’s and (Aurora) including all
contracts between JPL’s and (Aurora);
4. All accounts
maintained by the JPL’s in the course of liquidation (cash
book) and all bank statements;
5. All reports from
(Aurora) to the JPL’s;
6. Asset register in
respect of each of the entities as at date of provisional
liquidation;
7. (Interim
agreement) between (Aurora) and JPL’s.’
[22]
An attorney acting on behalf of both the appellant and a
co-liquidator of the sixth and eighth respondents, Mr Gainsford,
responded in writing to the Master the same day. After having
expressed his concern about the contents of the telefax and the
paucity
of information contained therein, the attorney went on to
say:
‘
3.2 It
appears that you have made the decision to summon our clients to an
enquiry. Our clients do not dispute your right to receive
information
from them regarding the continued course of the winding-up of the
companies providing such information sought is done
properly, fairly
and in a correct and appropriate manner. Accordingly, our clients
require to know the following:
3.2.1 Pursuant to
section 381 of the Companies Act an enquiry is envisaged if you have
received a complaint by any creditor, member
or contributory
alternatively if you have reason to believe that our clients do not
faithfully perform their duties as liquidators.
If a complaint was
made, a copy of such complaint is required to be made available to
enable our clients to deal with the allegations
made in the
complaint. If you have relied on the alternative our clients require
to be informed of the basis thereof.
3.2.2 Our clients
are also entitled in terms of legislation, including without
limitation, the provisions of the
Promotion of Administrative Justice
Act to
be provided with reasons for the decision and accordingly our
clients require the reasons to be furnished as provided in
legislation.
4. You will
appreciate that whilst our clients are of course more than happy to
appear before you in the spirit of their continued
co-operation with
your offices, the complexity of the matters, the necessity to obtain
and to brief counsel and to properly prepare,
clearly indicate that
the notice given is wholly inadequate. Further, the requirement to
bring “all documents” as required
by you is simply
untenable, in light of the vast volume thereof, and our clients
require you to provide a proper list of specific
documents, or
details as to the specific aspects in respect of which they will be
required to comment.
. . .
6. The joint
provisional liquidators have been required by the Parliamentary
Portfolio Committee on Mineral Resources to appear
and report to them
on the 25
th
of May 2011. This of necessity requires full preparation by our
clients and in light of that, and the complexity of the matters
and
the vast volume of documentation relating thereto, and the importance
thereof, our clients will simply be not in a position
to prepare and
appear before the enquiry on the 16
th
and 17
th
of May 2011.’
[23]
The Master responded with alacrity. The following day, 12 May 2011,
Ms Rossouw wrote to the appellant’s attorney,
stating that
the enquiry was in terms of that section ‘as a whole’.
She further stated that the documentation she required
was ‘the
sort of documentation (one) would expect a provisional liquidator to
have at hand’, and that each liquidator
should therefore ‘bring
as much documentation as he is able to put together in time for the
enquiry’. She also went
on to record that she reserved her
right to engage legal assistance ‘in the running of enquiry’
and that she would
not object if any of the joint provisional
liquidators required legal representation at the enquiry. Seemingly
in anticipation
of the future litigation which indeed followed, she
opined that the decision to hold the enquiry did not constitute
administrative
action as envisaged by PAJA.
[24]
The enquiry that was held on 16 May 2011 appears from its record to
have been a tense and combative affair. The appellant and
Mr
Gainsford, were represented by senior counsel
[5]
and attorney whilst the Master, too, was assisted by senior counsel.
The two sides immediately crossed swords. Counsel for the
appellant,
while recording the willingness of his clients to co-operate and
provide information, stated for the record that the
liquidators
should be informed about any complaint against them or why the Master
had decided to hold the enquiry in the first
place. As against that,
counsel assisting the Master stated that the Master sought the
liquidators’ co-operation in handing
over whatever documents
they had been able to put together relevant to the administration of
the mines and wanted to ask questions
about the running of the
insolvent mining companies. Counsel for the appellant insisted on the
Ms Rossouw providing details of
the issues she wished to raise so
that the liquidators could properly prepare in respect of the subject
matters to be dealt with,
which he said they had been unable to do in
the limited time that had been available. While recognising the short
time the liquidators
had to prepare and conceding that if there were
any questions they could not answer, those issues could be postponed,
the Master
however contended that the liquidators should be able to
deal with at least some issues.
[25]
Eventually a point of deadlock was reached when the appellant’s
counsel made it clear that the appellant was not prepared
to answer
any questions in regard to the administration of the Pamodzi Group’s
winding-up. This led to an incongruous situation
where the appellant
(and his co-liquidator Mr Gainsford) refused to answer any
question put by the Master concerning the administration
of the mines
whilst the other Pamodzi liquidators were prepared to testify or make
themselves available to do so.
[26]
Ms Rossouw found herself in what she felt was an intolerable
situation. The appellant was a co-liquidator of companies having

assets worth millions of rand, the administration of which was firmly
in the public eye; but she could not communicate with him,
save
through his legal representatives; and he refused to discuss the
administration of those companies. Ms Rossouw understandably
felt
that this undermined her ability to carry out her duties under s 381
of the Companies Act. One of the major statutory duties
of a
liquidator is ‘to give the Master such information and
generally such aid as may be requisite for enabling that officer
to
perform his or her duties’
[6]
and she regarded the appellant’s refusal to answer her queries
both as a failure to perform his duties satisfactorily and
to comply
with a lawful demand from her. This she felt constituted grounds
envisaged by s 379(1)
(b)
of
the Companies Act justifying his removal as liquidator. She says she
also formed the opinion that the appellant was no longer
suitable to
be the liquidator of the companies concerned, and this too justified
his removal under s 371(1)
(e)
of the Companies Act.
[7]
[27]
But before Ms Rossouw finally decided to remove the appellant as
liquidator of the Pamodzi Group, further relevant information
came to
her attention. First, for purposes of the s 417 enquiry, she had
required Standard Bank to produce Aurora’s bank
statements.
Studying them on the evening of 20 May 2011, she came across a
reference to a loan of R3 million Aurora had received
from the
appellant’s company, SBT Trust, on 10 February 2010, at a time
when the provisional liquidation orders were being
repeatedly
extended to enable Aurora to try and raise the finance necessary to
purchase the mines. She subsequently ascertained
from the various
other joint liquidators that none of them had known of this loan.
Importantly, the loan had also never been drawn
to the attention of
the Master. Aurora had also made repayments in respect of this loan
without the knowledge of the Pamodzi Group’s
creditors or the
other joint liquidators. This, in the Master’s view, led to a
conflict of interest between the appellant
and Aurora on the one hand
and the creditors and other liquidators on the other. Ms Rossouw
viewed this in a very serious light.
The appellant had helped Aurora
to limp along at a time when the Pamodzi Group’s assets were
disappearing, and when he ought
rather to have considered terminating
Aurora’s stewardship in the interest of creditors. Moreover he
had secretly been receiving
substantial repayments of his loan which
were also adverse to the interest of creditors.
[28]
Second, Mr Callie Smit, an attorney employed by Aurora as an
in-house legal representative, gave evidence when the s 381
enquiry
continued on 21 May 2011. He testified how on 5 February 2010 he
had written the following letter to the joint provisional
liquidator,
SBT Trust (ie the appellant):
‘
Dear Sir
Re: Aurora Empowerment Systems
(Pty) Ltd
We act on behalf of our client
Am-Equity Limited.
[8]
We refer to the Binding Offer
entered into between Aurora Empowerment Systems (Pty) Ltd and The
Joint Provisional Liquidators of
Pamodzi Gold East Rand (Pty) Ltd –
in Provisional Liquidation dated 1
st
October 2009.
We hereby confirm that we hold an
amount of R20 000 000 (TWENTY MILLION RAND), which amount
is available for payment on
behalf of Aurora Empowerment Systems
(Pty) Ltd as required in terms of the Binding Offer.
The amount is made up of
R20 000 000 (TWENTY MILLION RAND) for payment of the
purchase price as defined in the amended
Binding Offer for payment to
offer of compromise or the alternative court sanctioning of the
Section 311 offer of compromise or
the alternative court sanctioning
of the sale of assets of Pamodzi Gold East Rand – in
Provisional Liquidation including
government sanction and transfer of
all necessary licences so to continue conducting the business
previously known as Pamodzi Gold
East Rand
.’
[29]
It is not disputed that Mr Smit wrote this letter on his laptop
computer at the appellant’s office after having been
called
there. When Mr Smit testified on 21 May 2011, he confessed that the
entire letter was false and that he had not held any
money, let alone
R20 million, on behalf of Aurora at the time. The Master understood
his evidence to be that he had prepared this
fraudulent letter in the
presence of the appellant who was aware that the contents were not
true. Although the appellant denies
this to have been the case, Mr
Smit testified that the appellant had been present when a certain Mr
Bhana, who worked for Aurora,
had instructed him to write the letter,
and that he knew what the content of the letter was to be. (Possibly
due to Smit’s
vagueness, the Master did not rely on the
appellant’s knowledge of the falsity of this letter when later
removing the appellant
from the panel of liquidators, as set out more
fully in due course.)
[30]
In these circumstances, not only had the appellant refused point
blank to answer any questions relating to the administration
of the
Pamodzi Group’s mines, but it appeared to the Master that he
had acted improperly by advancing a substantial loan
to Aurora
without the knowledge of his co-liquidators or the Master, and that
he may have been party to the preparation of a letter
indicating that
Aurora’s attorney was in possession of substantial funding for
the mines which he knew was false. On 23 May
2011, the Master
therefore wrote to the appellant and informed him that she had
removed him as one of the joint provisional liquidators
of the
Pamodzi Group and told him that she had done so as, in her opinion,
‘you are no longer suitable to be a joint provisional

liquidator of each of the said companies’.
[31]
The appellant was not prepared to take his removal lying down. As set
out above,
[9]
he launched an
application in the court
a
quo
served
on 9 September 2011 seeking the review and setting aside of his
removal as joint liquidator and joint provisional liquidator
of the
various companies, and having himself restored to those positions. In
support of this relief he claimed that there had been
no sound
reasons for his removal as he had performed the work involved
diligently and faithfully. Accordingly, so he said, the
decision to
remove him had been arbitrary, irrational and unreasonable and thus
unlawful. He also complained that the procedure
of holding an enquiry
under s 381 had been unfair and that his removal had been unfair on
various grounds.
[32]
The appellant’s application was not only duly opposed but, by
way of a counter-application dated 5 December 2011, the
Master sought
further relief in the light of yet further information in regard to
the appellant which had come to her attention.
This is dealt with
below.
The
enquiry of 17 August 2011 and the appellant’s removal from the
panel
[33]
An article had appeared in The Citizen newspaper on 3 June 2011
in which it was alleged that the appellant had been ‘mistakenly’

issued with an identity document bearing ‘an ID number of
someone who had previous fraud and theft convictions’. The

article continued that the spokesman of the appellant had said that
lawyers had been appointed to probe how the appellant’s
name
and identity number showed convictions dating back to 1978. This
raised concerns on the part of the Master who, as a matter
of
principle, would not appoint persons as liquidators should they be
suspected of having been involved in criminal activities.
On 13 July
2011, Ms Rossouw therefore wrote to the appellant and inquired about
the matter.
[34]
The appellant’s response was immediate. He stated that the
newspaper had incorrectly recorded his comments. He placed
on record
that he had ‘no previous convictions that disqualified me from
acting as a Trustee or a liquidator’. The
qualification was
important because, in terms of s 372
(f)
of the Companies Act, a person who had at any time been convicted,
whether in South Africa or elsewhere, of theft, fraud, forgery
or
uttering a forged document, or perjury, and had been sentenced as a
result to imprisonment without the option of a fine or to
a fine
exceeding R20, was disqualified for nomination or appointment as the
liquidator of a company. Thus the effect of what the
appellant said
in response to the Master’s enquiry was that he had not been
convicted of any such offence and sentenced to
imprisonment without
the option of a fine. He went on to state that his legal team had
investigated the matter with the South African
Police Services Crime
Administration System and ascertained that ‘there are no
convictions recorded against my name’.
[35]
As is apparent from this, the appellant did not specifically dispute
that he had previous convictions. As the appellant would
have known
if he had previously been convicted, Ms Rossouw could not understand
why it had been necessary for him to investigate
whether he had
convictions recorded against his name. She therefore wrote again to
the appellant on 14 July 2011. This time she
specifically asked
whether he had any previous convictions for dishonesty. In the
correspondence which followed, unnecessary to
detail for present
purposes, the appellant proceeded to tap-dance around the issue.
Despite it being pertinently asked whether
he had previous
convictions for theft or fraud, the appellant fell back on what he
had said at the outset, namely that he had no
previous convictions
which disqualified him from acting as a trustee or liquidator.
[36]
Tired of playing ducks and drakes, the Master then called for a
further enquiry under s 381 of the Companies Act.
[10]
She wrote to the appellant on 20 July 2011, requesting him to
attend such an enquiry on 25 July 2011, and informing him that
she
had no objection to him having legal representation should he feel
that he required such assistance.
[37]
In response to this, the appellant’s attorney wrote to the
Master on 22 July 2011. On this occasion he specifically stated
that
the appellant did not have any previous convictions for fraud or
theft and that a prominent criminal attorney had been appointed
to
investigate with the police ‘that there is no fraud or theft
conviction’. Not surprisingly, Ms Rossouw again found
it
somewhat strange that an attorney would be employed to investigate
whether the appellant had been convicted of fraud or theft
when the
appellant himself said he had no such convictions.
[38]
Be that as it may, by agreement the enquiry was postponed, first to
15 August 2011 and then to 17 August 2011. It was
held at the
Master’s offices in Pretoria. On the latter date the appellant
arrived, represented both by attorney and senior
counsel. The enquiry
that followed was recorded and the appellant testified under oath.
During the course of the proceedings he
stated that if he had any
previous convictions he would have disclosed them but that he had no
such convictions.
[39]
The appellant also denied ever having encountered a person by the
name of Enver Mohamed Dawood. When the Master raised the
issue of the
conviction of Mr Dawood on 92 counts of fraud in 1978, and stated
that this person had the same identity number as
the appellant, the
appellant’s legal team objected, wanting to know what
information was available to the Master in that
regard. They then
ended the enquiry. Later that day, the Master wrote to the
appellant’s attorney enclosing documentation
which illustrated
that the appellant was formerly known as Enver Mohamed Dawood and had
changed his name to his current name on
22 June 1981. That is
now common cause, as is the fact that the appellant was indeed the
person who was convicted on 92 counts
of fraud as had been reported
in The Citizen newspaper, that the evidence he gave in that respect
was false, and that he had lied
to the Master under oath.
[40]
Despite having been found out, the appellant did not readily concede
that to be the case. Although ill-tempered correspondence
passed
between his attorney and Ms Rossouw in which the latter was accused
of various abuses, the appellant was not prepared to
admit that he
was indeed the same Mr Dawood who had previously been convicted of 92
counts of fraud. In the absence of a reply
to that inquiry, Ms
Rossouw informed the appellant on 25 August 2011 that he should
advance reasons by Monday 29 August 2011
why he should not be
removed from the Master’s panel of liquidators and trustees.
This was ignored.
[41]
The appellant’s previous convictions were not the only subject
of correspondence between the Master and the appellant.
On 25 August
2011, Ms Rossouw wrote to him, raising the issue of the payment
of R3 million already mentioned, made to Aurora
on 2 February 2010,
and that the bank statements of Aurora reflected various substantial
payments made either to SBT Trust or himself
between 2 February
and 3 May 2010. Ms Rossouw went on to say that ‘given the
status of Aurora as the preferred bidder
at the time’, she
would appreciate an explanation for these payments.
[42]
In reply, the appellant stated that he had no record of a payment of
R200 000 made by Aurora to SPT Trust on the 2 February
2010, and
asked for proof. He also stated that a payment of R6 886 made by
Aurora on the 17 February 2010 was the reimbursement
of a return
airline ticket to Cape Town relating to a meeting scheduled between
Mr Hulley, a director of Aurora, and himself representing
the joint
provisional liquidators. Insofar as the other payments were
concerned, the appellant explained that in January 2010 the
joint
liquidators had been approached by Aurora for financial assistance as
it had cash flow constraints and needed assistance
to pay some wages
and salaries for employees on one of the mines (the eighth
respondent’s East Rand mine) so as to preserve
its on-going
operations in the hope that Aurora could secure funding to conclude
the mine’s purchase. This had led to the
loan of R3 million.
[43]
The Master states that she was astonished by this as the lack of cash
flow would have been a good reason for the joint provisional

liquidators to have cancelled their contract with Aurora, which would
have been preferable to helping Aurora financially. As she
was also
concerned about financial assistance having been rendered to Aurora,
she investigated the issue and ascertained that all
the other joint
liquidators either denied knowledge of the loan and Aurora’s
request for assistance, or said they could not
recall the incident.
[44]
This seems to have been, so to speak, the straw that broke the
camel’s back. In the light of all this information, Ms
Rossouw
wrote to the appellant on 5 September 2011 to inform him that
she had decided to remove him from the panel. In doing
so she, inter
alia, stressed the necessity for the persons appointed as liquidators
or trustees to be honest and accountable to
the Master and for them
to respond to reasonable queries from the Master both promptly and
fully. She then chronicled her complaints
against the appellant to
which I have already referred, arising both before and after his
removal as joint liquidator of the Pamodzi
Group (she did not rely on
the false letter prepared by Smit), and concluded ‘the Master
can have no confidence in your candour,
integrity or transparency
(and) cannot entrust the administration of companies in liquidation
and sequestrations to you’.
The
appellant’s response to his removal from the panel
[45]
The appellant neither responded to this letter nor sought to
contradict its terms. He also did not take any steps to set aside
the
decision to remove him from the panel. Instead, in an interview
published in the press, he once more denied being a convicted

fraudster, stated that he should be awarded a medal for infusing R3
million into Aurora, asserted that the counts of fraud and
theft had
been ‘made up’ and called his fellow liquidators ‘liars’.
No doubt it was in the light of this
that, when the Master delivered
an answering affidavit in the review proceedings, it was accompanied
by a counter application,
part of which was conditional on the
appellant being granted any relief in his application and part of
which was for a declaratory
order confirming the appellant’s
removal from the panel and declaring him to be disqualified from
appointment as a liquidator
or trustee in terms of certain provisions
of the Companies Act and the Insolvency Act.
[46]
Be that as it may, the appellant was of the view that the main reason
for the Master’s decision to remove him from the
panel had been
his previous convictions for theft and fraud. Instead of seeking to
have his removal from the panel set aside, as
he had done when
removed as a Pamodzi liquidator, he decided on an alternative course.
He applied to the Department of Justice
for a Presidential pardon
under s 84(2)
(j)
of the Constitution which, if granted, he felt would overcome the
obstacle he faced. It seems that in this application he claimed
for
the first time that it was not he, but his uncle, who had committed
the offences of fraud and theft in respect of which he
had been
convicted in 1978.
[47]
In a lengthy response to the pardon application, Ms Rossouw, on
behalf of the Master, expressed the view that a pardon would

discredit and make a mockery of the pardon process. In justifying her
stance, she detailed the appellant’s actions which
she had
found made him unsuitable to act as a liquidator, summarising her
complaints as follows:
‘
87. In the
circumstances, I confirm that I removed Mr Motala from the Master’s
panel of approved liquidators and trustees
as
87.1 he has
substantial previous convictions;
87.2 he did not
disclose those convictions to the Master when he was placed on the
panel of approved liquidators;
87.3 he evaded the
Master’s questions concerning those convictions and then lied
to the Master both in correspondence and
under oath concerning those
convictions. If he is to be believed that the crimes were in fact
committed by his uncle then he failed
to disclose this fact to me
despite being given ample opportunity to do so;
87.4 he refused to
assist the Master in the investigation in respect of the Companies;
87.5 he exposed
himself to a conflict of interest by lending money to a company that
was attempting to purchase assets that he,
as liquidator, was
selling; and
87.6 he participated
in the preparation and dissemination of a fraudulent letter sent by
an attorney to him and communicated by
him to his joint liquidators
indicating that the attorney was holding money on behalf of the
financier to the purchaser of the
assets in question when, in truth
and in fact, the attorney was not holding any such funds.’
Ms
Rossouw went on to explain:
‘
I reiterate
that Mr Motala’s previous conviction is only one of the reasons
why he was removed from the panel. He was well
aware of all the other
reasons that I have set out . . . Despite this he has created the
impression that it is because of this
previous conviction that he
cannot take appointments as a liquidator or trustee. This is simply
not correct.’
[48]
On 27 March 2012, the appellant was advised by the Department of
Justice that rather than seeking a pardon, it would be more

appropriate for him to apply for an expungement of his convictions
under
s 271B
of the
Criminal Procedure Act 51 of 1977
. On 12 July
2012, the appellant therefore withdrew his pardon application and
applied instead for such an expungement. For some
reason it took some
20 months until 28 November 2013 before the State President granted
him the expungement he sought.  Not
only did the certificate of
expungement relate to his conviction of theft and 92 counts of fraud
on 5 December 1978, but for good
measure and for some inexplicable
reason the appellant’s conviction of driving at an excessive
speed for which he had been
convicted in December 1997 and sentenced
to a fine of R800 or 80 days’ imprisonment, was also cleared
from his name!
[49]
Armed at last with a certificate of expungement, the appellant’s
attorney wrote to the Master on 11 December 2013 stating
that the
appellant’s previous convictions had now been expunged and
requesting his reinstatement to the panel. In doing so,
the attorney
stated:
‘
2.1 Our
client wishes to mention that the circumstances of his conviction
some 35 years ago has been fully explained to the authorities.
The
conviction had a political background, and arose in the time when he,
as a person of colour, suffered discrimination and persecution,

together with all others like himself.
2.2 If necessary,
our client can provide you with the full details of those distant
events.’
[50]
On 20 January 2014, the Master refused to accede to the request to
reinstate the appellant to the panel. Referring to her letter
of 5
September 2011 which set out her various reasons for removing the
appellant from the panel in the first place, Ms Rossouw
stated that
irrespective of the expungement of his convictions, the remaining
reasons still stood. This was in accordance with
the view she had
expressed in regard to the appellant’s pardon application
quoted above.
[11]
Disappointed, the appellant then requested the Minister of Justice to
instruct the Chief Master to reinstate him on the panel.
This, the
Minister declined to do. On 3 March 2014, he responded by telling the
appellant that the pending litigation should take
its normal course
and it could be improper for him to assume the powers of review
vested in courts.
[51]
One would have thought that, logically, once he believed that the
obstacle of his previous convictions had been removed, the

appellant’s obvious course would have been to challenge the
January 2014 decision not to reinstate him to the panel. However
he
did not do so (indeed, to this day he has not done so). Despite both
the Master’s refusal to reinstate him to the panel
and the
Minister’s refusal to become involved in the dispute, a further
year passed without the appellant taking any steps
either to
challenge the Master’s latest decision or to further the
litigation that had been left hanging in the air since
December 2011.
The
amended relief
[52]
In February 2015, more than three years after the counter-application
had been lodged, and three and a half years after he
had been removed
from the panel, the appellant filed a supplementary founding
affidavit. The purpose of this affidavit was threefold;
first, to
supplement the appellant’s original founding affidavit; second
to act as an answering affidavit to the Master’s

counter-application; third, to support an amended notice of motion
which introduced, in the alternative to the relief originally
sought
(that the appellant’s removal as a liquidator in the Pamodzi
Group be set aside and that he be reinstated) the following,

additional prayers:
‘
5. Reviewing
and setting aside the decision of (the Master) of 20 July 2011 to
conduct an enquiry in terms of s 381 of the Companies
Act and the
entire proceedings conducted in terms of that section.
6. Declaring that
the (appellant) is qualified to be nominated or appointed as a
liquidator or trustee in terms of the Companies
Act 61 of 1973 and
the
Insolvency Act 24 of 1936
.
7. Reviewing and
setting aside the decision of (the Master) of 5 September 2011 to
remove the (appellant) from the (the Master’s)
panel of
approved liquidators and trustees.
8. Ordering (the
Master) to reinstate the (appellant) to the (the Master’s)
approved panel of liquidators and trustees.’
[53]
It was in this supplementary affidavit of 23 January 2015 that the
appellant first disclosed to the Master his version as to
how it had
come about that he had been convicted in the first place. The
culmination of a long and involved story set out in the
affidavit was
that in order to protect his uncle, an anti-apartheid activist, from
being arrested and imprisoned, and to facilitate
his uncle’s
flight to Swaziland, the appellant ‘took the rap’ (to use
a colloquial expression) for his uncle
and pleaded guilty to the
various counts of theft and fraud his uncle had committed with a
credit card. He alleged that his uncle,
a practising lawyer, had told
him both that due to his youth he would probably receive a suspended
sentence and that the record
of the conviction and sentence could not
be raised against him after a period of ten years, provided he was
not convicted on any
further criminal offences during that time. In
these circumstances, so the appellant averred, he was convicted and
sentenced to
18 months’ imprisonment wholly suspended for
five years on various conditions. He was tried, convicted and
sentenced
under the surname of Dawood as that was the name reflected
in his identity book at the time. His actions taken on behalf of his

uncle had allowed the latter to safely flee the country. He denied
that he had subsequently changed his name to Motala as a ruse
to
disguise his criminal past.
[54]
For present purposes, the truthfulness of this version is neither
here nor there. For the reasons set out in due course, of
greater
relevance is (a) the fact that the appellant had repeatedly lied to
the Master, at times under oath, both that he had not
been convicted
of those charges and he did not know of the Mr Dawood who had;
and (b) the delay that occurred before this
version was offered.
[55]
It took some eight months before Ms Rossouw, on behalf of the Master,
filed an affidavit dated 9 October 2015. Its purpose,
too, was
expressed to be three-fold: first, to show that that the appellant
did not have a case on the merits in regard to the
additional relief
sought in the amended notice of motion; second, to be construed as an
answering affidavit to the appellant’s
supplementary founding
affidavit; and third, to be construed as a replying affidavit to the
appellant’s answering affidavit.
After the lapse of almost a
further eight months, the appellant responded to this by way of an
affidavit entitled ‘replying
affidavit’ deposed to by him
on 25 May 2016. In this way the appellant’s application, which
had commenced in 2011,
proceeded at the pace of a snail to come
before the court
a
quo
,
whose judgment was ultimately delivered on 9 October 2017.
[56]
In dismissing the appellant’s application, the learned judge
reasoned, inter alia, that the relief sought for the first
time in
the amended notice of motion in regard to the decisions of 20 July
2011 (to conduct an enquiry under s 381 of the
Companies Act)
and 5 September 2011 (to remove the applicant from the panel) was
first introduced on 5 February 2015 when the supplementary
founding
affidavit was filed. This was more than three years after such
decisions were taken, and there was no adequate explanation
for such
delay. There was also no reasonable prospect of success in regard to
reviewing those decisions, and the delay could in
all the
circumstances not be condoned.  The decisions therefore stood
and as a result the appellant was not entitled to the
relief claimed.
Discussion
[57]
With due respect, I find certain of the reasoning of the court
a
quo
to be somewhat confusing. For example, it was held that the Master’s
counter-application was conditional upon the appellant
achieving a
degree of success in his application. Although certain of the relief
the Master sought was subject to that condition,
the prayer for
confirmation of the decision to remove the appellant was specifically
sought unconditionally.
[58]
Importantly, the court
a
quo
also
held the Master’s action in removing a person from the panel
(as was done in respect of the appellant) not to be administrative

action, but went on to find it was necessary for the appellant to
obtain an extension of time under s 9 of PAJA
[12]
in order to review the Master’s decision to remove him from the
panel. This was incorrect if the decision did not constitute

administrative action. In review proceedings falling outside the
ambit of PAJA the common law undue delay rule applies and the
delay
must be explained with reasons provided why the court should overlook
it. It does not require a formal application for condonation,
unlike
the position under s 9 of PAJA, although any facts relied upon to
justify the delay must appear from the affidavits.
[13]
[59]
The judgement also failed to deal with the fundamental issue of
whether the appellant was disqualified from appointment as
a
liquidator, whether provisional or final, and as such was at the time
of his removal from those positions in the Pamodzi Group,

disqualified from filling them and from being reappointed to them in
accordance with the relief he initially sought in his review.
It also
disregarded the fact that if the appellant was disqualified, then his
removal from the panel was justified on that ground
alone. The effect
would be that both decisions by the Master were unimpeachable and the
appellant was not entitled to the relief
he was seeking in regard to
either of them.
[60]
In my view, then, the issues in this case were therefore:
(a) Whether in 2011
the appellant was disqualified from holding an appointment as a
provisional or final liquidator under s 372
(f)
of the
Companies Act?
(b) If so, whether
any of the relief he was seeking could be granted?
(c) Whether the
decisions in question constituted administrative action envisaged by
PAJA?
(d) Whether the
delay in seeking to review the decision to remove him from the panel
should have been condoned in terms of s 9 of
PAJA or overlooked if
the decision did not constitute administrative action?
(e) Whether his
removal from the panel, if not set aside, rendered moot the review of
the decision to remove him as liquidator,
with a final or
provisional, for the Pamodzi Group of companies?
(f) Whether in any
event either decision to remove was reviewable on the grounds of
unreasonableness, irrationality or an incorrect
appreciation of the
relevant facts or for procedural unfairness?
(g) Whether the
Master’s decision of 20 January 2014 refusing to reinstate the
appellant to the panel rendered nugatory the
relief sought by the
appellant either at the outset or by way of the proposed amendment to
his notice of motion?
(h) Costs.
Disqualification
[61]
First, one knows as a matter of fact that in 1978 the appellant was
convicted on one count of theft of a credit card and 93
counts of
credit card fraud. Those counts were taken together for the purposes
of sentence, he was sentenced to 18 months’
imprisonment
suspended for five years on various conditions, including that he
repay an amount to a bank. As already mentioned,
s 372
(f)
of
the Companies Act prescribes that ‘any person who has at any
time been convicted . . . of theft (or) fraud, . . . and
has been
sentenced therefor to imprisonment without the option of a fine or to
a fine exceeding R20’ may not be appointed
as a liquidator of a
company. In
Bhana v Dönges NO & another
1950 (4) SA
653
(A) at 657H-658A this Court held that:
‘
. . . a
sentence of imprisonment, the whole of which is suspended on a
specified condition, is as much a sentence of imprisonment
as a
sentence of imprisonment none of which is suspended. It is true that
the sentence cannot be enforced unless the condition
is breached but
it remains in force and can be carried into execution if during the
period of its suspension the accused breaches
the condition. The test
imposed by the Legislature is not whether an accused has served a
term of imprisonment . . . but whether
he has been sentenced to
imprisonment.’
[62]
It is apparent from this that a person who has committed an offence
envisaged by s 372
(f)
of the Companies Act and sentenced to either a period of
imprisonment, either suspended or unsuspended, or to a fine exceeding

the trivial sum of R20, is disqualified from being appointed a
liquidator. The appellant was convicted of 94 such offences and
was
sentenced to a fairly lengthy period imprisonment, albeit suspended.
The fact that, according to him, it was not he but his
uncle who had
committed the offences, is irrelevant. The disqualification is
founded on a conviction. It would be of no help to
candidates seeking
appointment to allege that they had been wrongly convicted. The
conviction in itself operates as a bar to appointment.
Thus even if
it was the appellant’s uncle who had committed the offences, it
was the appellant who had been convicted and
sentenced, and who
therefore faced the disqualification.
[63]
Consequently, when the decision was taken in September 2011 to remove
him from the panel, the appellant was a person who was
at the time
disqualified from being a liquidator. In fact, he had been so
disqualified throughout his career in the insolvency
industry. This
constituted an obvious answer to his opposition to the application he
had brought to have his removal as a liquidator
of the Pamodzi Group
set aside. Presumably he realised this, and for that reason set about
applying to have his convictions expunged.
[64]
The fact that the appellant’s convictions and sentence were in
fact subsequently expunged, although potentially relevant
in the
event of him thereafter applying to be restored to the panel, is
irrelevant in the consideration of the lawfulness of the
decision of
September 2011 when they still operated to disqualify him. Section
379(1)
(a)
of
the Companies Act provided that the Master may remove a liquidator on
the ground ‘that he was not qualified for . . . appointment
. .
.’. Although that section conferred a discretion upon the
Master, it confers a power with a duty to exercise it in all

appropriate cases.
[14]
I would
venture to suggest that it would only rarely be exercised in favour
of not removing a person disqualified from holding
an appointment eg
where it is at a late stage of the winding-up, where additional
expenses would be incurred, or where to do so
would for some reason
be to the clear disadvantage of creditors.
[15]
No such circumstances readily present themselves in this case,
particularly as the appellant was but one of a number of
co-liquidators
who would presumably be able to continue with the
winding-up process to the advantage of creditors.
[65]
Whether the expungement of the appellant’s convictions would
result in him no longer being disqualified is a question
that does
not arise in this case. It clearly does not provide a basis for
questioning the decision to remove him from the panel
in September
2011, when he was disqualified. It would have been relevant to a
review of the decision not to reinstate him to the
panel, but as
already noted, he chose not to pursue that route. There is nothing in
s 271B
of the
Criminal Procedure Act 51 0f
1977 dealing with the
consequences of expungement. The disqualification provision speaks
only of the fact of conviction, which
may have occurred in another
country, and like those in
ss 372
(d)
and
(g)
it is not time-bound, unlike the disqualifying provision in
s 372
(c).
In
dealing with the question of amnesty, the Constitutional Court held
in
McBride
[16]
that it did not preclude an assertion of historical fact (in that
case that McBride had committed murder), and expungement may
fall
into the same category. As the issue may arise in the future, it is
best not to express any view on it. For the present, the
first two
issues must be determined against the appellant. It is, however,
desirable to deal with the other issues to show that,
in any event,
the appellant was not entitled to succeed.
[17]
Administrative
action
[66]
So was the court
a
quo
correct in its expressed view that Master’s removal of the
appellant from the panel was not administrative action as envisaged

by PAJA? The definition of ‘administrative action’ as set
out in PAJA, has been criticised in certain quarters for
being
convoluted, cumbersome and failing to provide certainty.
[18]
However, in
Grey’s
Marine
,
[19]
in an exposition and analysis repeatedly approved by the
Constitutional Court,
[20]
Nugent JA explained:
‘
What
constitutes administrative action - the exercise of the
administrative powers of the State - has always eluded complete
definition.
The cumbersome definition of that term in PAJA serves not
so much to attribute meaning to the term as to limit its meaning by
surrounding
it within a palisade of qualifications. It is not
necessary for present purposes to set out the terms of the definition
in full:
the following consolidated and abbreviated form of the
definition will suffice to convey its principal elements:
“
Administrative
action means any decision of an administrative nature made . . .
under an empowering provision [and] taken . . .
by an organ of State,
when exercising a power in terms of the Constitution or a provincial
constitution, or exercising a public
power or performing a public
function in terms of any legislation, or [taken by] a natural or
juristic person, other than an organ
of State, when exercising a
public power or performing a public function in terms of an
empowering provision, which adversely affects
the rights of any
person and which has a direct, external legal effect.”’
[67]
There is no simple litmus test to determine when an action or
decision is of an ‘administrative nature’. It is

therefore necessary, in the light of the facts of each particular
case, to embark on ‘a close analysis of the nature of the
power
or function and its source or purpose’ – per Wallis J in
Sokhela
,
[21]
cited with approval by this court in
Scalabrini.
[22]
In doing so, it should be remembered as was stressed by the
Constitutional Court in
SARFU
[23]
that the source of the power, albeit not necessarily decisive, is an
important factor in this regard. Also important are the nature
of the
power, its subject matter, whether it involves the exercise of a
public duty and how closely it is related on the one hand
to policy
matters which are not administrative and, on the other, to the
implementation of legislation, which is. Also of crucial
importance
is the requirement in the definition that the action or decision must
be one ‘. . . which adversely affects the
rights of any person
and which has a direct, external legal effect’.
[68]
In arguing that the compilation of the panel by the Master was not
administrative action, the appellant relied upon the decision
of
Tuchten J in
Musenwa
.
[24]
In that matter the applicant’s name had been on a list kept by
the Master of previously disadvantaged persons who were suitable
for
appointment as joint liquidators or trustees. This list had been
compiled pursuant to a policy determination made by the Minister

under s 15(1A)
(a)
of
the Companies Act and
s 158(2)
of the
Insolvency Act, 1936
.
Being of the view that he had misappropriated funds from a company of
which he was co-liquidator, the Master removed the applicant
from the
list and from any cases in which he had been appointed. Proclaiming
his innocence, the applicant applied to be restored
to the list,
contending that in removing his name the Master had performed an
administrative action as envisaged by PAJA without
affording him a
proper hearing. He conceded that a full enquiry by the Master had
been held into the circumstances in which the
money had been
misappropriated and that he had given evidence at the enquiry, but
argued that he was entitled to more; that he
ought to have been given
a charge sheet; and that procedures similar to those in a
disciplinary enquiry should have been followed.
[69]
In reaching his decision, Tuchten J expressed the view the Master’s
list (or panel) was not compiled in the process of
implementing
legislation but in the process of implementing the socio-political
policy of the Minister and, as such, did not constitute

administrative action.
[25]
In
dismissing the application he went on, however, to hold that even if
he was incorrect on that issue, the appellant had enjoyed
a fair
hearing and the Master had reasonable grounds for believing the
applicant not to be suitable person for appointment to the
office of
liquidator.
[70]
The ‘list’ discussed by Tuchten J in
Musenwa’s
case was compiled in accordance with a policy directive issued by the
Minister of Justice under his power under
s 158(2)
of the Insolvency
Act 24 of 1936 and s 15(1A)
(a)
of the Companies Act which essentially provided for the appointment
of previously disadvantages persons as liquidators in rotation,
in
order to correct past injustices. It was not the panel of competent
persons kept by the Minister as a matter of long-standing
practice.
In
The
South African Restructuring and Insolvency Practitioners
Association
,
[26]
the compilation of a list compiled under a subsequent policy
directive of the Minister, but which also prescribed a formula to
be
used in the appointment of liquidators compiled under the Minister’s
formula, was challenged on review in the Western
Cape Division of the
High Court. It held that the policy directive had been issued in the
exercise of the Minister’s power
to develop and implement
national policy in terms of s 85(2)
(b)
of
the Constitution and, as such, did not constitute administrative
action.
[27]
However, it went
on to hold that the policy directive did not pass constitutional
muster and had to be set aside.
[71]
That order was confirmed on appeal both by this Court
[28]
and, subsequently, the Constitutional Court.
[29]
But in doing so, the question whether the compilation of the panel
pursuant to the Minister’s policy directive constituted

administrative action was not addressed. The decisions were based on
a conclusion that the policy, which required the application
of an
inflexible roster, was arbitrary, capricious, irrational and the
product of a power used for a purpose other than that for
which it
had been bestowed. These judgments are therefore no authority for the
proposition that the Master’s compilation
of a panel of the
nature of the one here in issue, which was not compiled pursuant to
the Minister’s policy directive, is
an administrative action.
[72]
Establishing a panel of approved liquidators and trustees facilitates
the exercise of the Master’s discretion in making
appointments
from people in whom the Master has faith. Ms Rossouw explained, that
the panel provides a list of persons who have,
so to speak, ‘passed
the test’ and shown themselves to have the necessary skills,
qualifications, experience and expertise
to be appointed as
liquidators and trustees. The panel thus constitutes a pool of
persons whom the Master is satisfied to appoint,
so that whoever is
ultimately appointed will be drawn from it. Although the keeping of
this panel has no statutory base, it is
a tool used for the
implementation of a power bestowed by legislation upon the Master; a
factor which weighs heavily in favour
of the compilation of the panel
being of an administrative nature.
[73]
Indeed, in
Lipschitz
,
[30]
albeit well before the days of PAJA, it was held that the discretion
vested in the Master to appoint a liquidator or trustee was

exclusively an administrative one. In more recent times, in
Ex
Parte the Master of the High Court South Africa (North Gauteng)
[31]
it was held that the Master is the only official authorised to
appoint liquidators and provisional liquidators and that, in doing

so, the Master performs an administrative function.
[32]
That was also held to be so by this Court, albeit without detailed
scrutiny, in
City
Capital.
[33]
[74]
As the compilation of the panel involves, in essence, the drawing up
of a roll of persons whom the Master is be prepared to
appoint, those
whose names are not on the panel, will not be appointed. Appointment
to the panel is thus akin to the issue of a
licence to work as a
liquidator or trustee and, as this Court remarked in
Scalabrini
,
[34]
‘such decisions are quintessentially administrative decisions
that have always been subject to judicial review’. By
the same
token, a removal from the panel is essentially akin to the withdrawal
of a licence as it will result in the person concerned
no longer
being considered by the Master for appointment. Appointment to the
panel and removal therefrom are really flip sides
of the same coin.
The cardinal decision in each is whether the person concerned is a
suitable person to be appointed.
[75]
An appointment to the Master’s panel or a removal therefrom (or
indeed a refusal to appoint a person to such panel) certainly

adversely affects the rights of persons, including not only the
individuals concerned but the creditors as well.
[35]
These decisions therefore have ‘a direct, external legal
effect’ as required by PAJA’s definition of
administrative
action. Without being on that panel, a person will not
be appointed a liquidator or trustee. In the light of these
considerations,
I am of the view that the formulation of that list –
a decision as to who is suitable to hold an appointment – is
clearly
administrative action. To the extent that the judgments in
Musenwa
,
as well as in the court of first instance in
The
South African Restructuring and Insolvency Practitioners Association
case
and in the court
a
quo
in
the present matter, may be construed to the contrary (albeit dealing
with a ministerial policy directive which is not here the
case) they
must be regarded as having been wrongly decided.
Delay
[76]
The immediate problem that this conclusion holds for the appellant
lies in s 7(1)
(b)
of PAJA which provides that any proceedings for judicial review must
be instituted without unreasonable delay ‘and not later
than
180 days after the date . . . on which the person concerned was
informed of the administrative action, became aware of the
action and
the reasons for it . . . .’ Section 9(1)
(b)
of
PAJA, as read with s 9(2) goes on to provide that this 180 day period
may be extended by a court for a fixed period where the
interest of
justice so require.
[77]
In the present case, no such extension was ever sought, and as at
first blush the appellant was obliged to review the decision
to
remove him from the panel within 180 days of receiving Ms Rossouw’s
letter of 5 September 2011, the appellant appears
not to have
complied with this requirement. The Master contends that the first
indication that the appellant sought to review his
removal was when
the amended notice of motion was filed in February 2015, some three
and a half years later. The court
a
quo
accepted this to have been the case and that despite its view that
such a removal was not administrative action, an application
for
condonation under s 9 of PAJA was therefore required. Although there
was no application for an extension under s 9, it went
on to accept
that the appellant’s request for condonation for the late
filing of the supplementary affidavit embraced an
application to
condone the failure to timeously lodge the additional grounds of
review – but ultimately decided not to condone
such delay ie
not to grant an extension under s 9.
[78]
Although at the end of the day it does not affect the outcome, in my
view the court
a
quo
erred
in its approach. An application either for the delay to be overlooked
or for condonation under s 9 of PAJA, was never mentioned
in the
appellant’s papers. An applicant seeking such relief must do so
expressly and fully motivate why it should be granted.
This the
applicant just did not do. On the contrary, his attitude, both
a
quo
and in this court, was that such an application was not required.
[79]
In this regard the appellant relied upon the Master’s
counter-application having been filed on 5 December 2011, some
90
days after the appellant had been removed from the panel. The Master
alleged therein that the appellant was justifiably disqualified
from
being a liquidator and there was sufficient basis for the court to
confirm his removal. In the light of this, so it was argued,
the
introduction of the counter-application and the amended notice of
motion rendered it unnecessary for the applicant to seek
to review
the decision to remove him by way of a separate application as the
appellant was ‘entitled to defend himself against
the attempt
by the Master to enforce that decision by contending that the
decision is invalid and . . . should be set aside’.

Accordingly, so the argument went, ‘the question of the 180-day
limit simply does not arise’ and the amendment to the
notice of
motion to include prayers that the Master’s decision to remove
him from the panel was ‘strictly unnecessary’.
[80]
This cannot be accepted. The underlying purpose of the Master’s
request for a declaration confirming the appellant’s
removal
from the panel, whether rightly or wrongly, was to strengthen her
hand by having the court recognise his removal and then
to use that
as a ground for his disqualification. This relief was sought on the
same basis that litigants sometimes ask for an
order for the
cancellation of a contract that they have already cancelled. The
refusal of that relief would not have resulted in
the appellant being
reinstated to the panel, nor would it have implied that his removal
had been unlawful. In order to secure his
reinstatement to the panel,
he was obliged to review the decision to remove him. What made it
even more important was that, unless
he was reinstated, he would not
have been entitled to be reinstated as a liquidator, final or
provisional, to the Pamodzi Group
of companies. The end result is
that it was essential for him to challenge his removal by judicial
review which he had to do so
within 180 days or seek condonation of
his failure to do so. He did neither. For those reasons the court
a
quo
was correct to hold that he was out of time when he first
sought to challenge his removal in 2015.
Were
the removals unlawful?
[81]
As already detailed, the appellant was removed from the panel and as
a joint liquidator of the Pamodzi Group at a time he was
disqualified
from holding those positions due to his previous convictions. For
that reason alone, his removal was not only not
unlawful but
obligatory and the Master would have failed to properly discharge her
duty and obligations had the appellant not been
removed. Apart from
that, there is the fact that the appellant had deliberately and
persistently lied to Ms Rossouw about his convictions.
Alerted by the
article in The Citizen newspaper, she was obviously concerned about
whether the appellant was the person who had
been convicted in 1978.
The cause of such concern was obvious; if he was indeed the person
who had been convicted, he was potentially
disqualified to be a
liquidator. However, as I have already detailed, instead of coming
clean and telling the truth, the appellant
was initially evasive and,
subsequently, absolutely dishonest in regard to the issue. This farce
culminated in him falsely denying
under oath that he knew a person by
the name of Dawood or that he had been convicted of the offences in
question under that name.
The appellant’s later explanation
that he had lied in the situation he found himself in when ‘ambushed’
by the
Master at the enquiry on 17 August 2011, is untenable. It
is quite clear from the correspondence which had preceded his giving

evidence under oath at the enquiry that the possibility of him being
the person who had been convicted as alleged in the newspaper

article, was of paramount concern to the Master and, indeed, the
reason behind the enquiry being held. It would have been a simple

matter for the appellant to have then explained that it was he who
had been convicted and the circumstances under which that conviction

had taken place. All he had to do was explain that he had assumed
guilt to protect his uncle from being arrested. Instead he lied
under
oath, stating that he would have disclosed any previous convictions,
and denying both that he had any such convictions and
that he had any
knowledge of a person known as Enver Mohamed Dawood.
[82]
As I have mentioned, the appellant contended that he had been unable
to tell the whole story as the manner his uncle had escaped
into
exile was not a matter of public knowledge and that, in accordance
with the practices of the ANC, he was not permitted simply
to reveal
the events that took place without first consulting the organisation.
This is somewhat dubious to say the least, particularly
taking into
account the years that have elapsed since the event and the
restoration of democracy in this country. But even accepting
that
part of his story to be true, he could easily have explained why he
had pleaded guilty in respect of offences committed by
his uncle
without disclosing how his uncle came to escape into exile. After
all, the escape into exile had little to do with why
he pleaded
guilty, which he now says was in order to protect his uncle from
being arrested by the police. Even if for some reason
permission was
required to disclose how his uncle had escaped, there seems to have
been no reason why he could not have asked for
it as soon as he
became aware that the Master was concerned about whether he had been
convicted of theft and fraud. Indeed that
is what he ought to have
done before he was ever appointed a liquidator.
[83]
In her letter to the appellant on 5 September 2011, Ms Rossouw drew
attention, to the responsibility the Master owes to the
public, and
members of companies and their creditors, to ensure that the
winding-up of companies and the administration of sequestrations
are
conducted in their best interests ‘in a context of absolute
honesty and transparency’. She stated that it was essential
for
the proper carrying out of the Master’s responsibilities for
the persons appointed as liquidators and trustees not only
to be
scrupulously honest and transparent, but also to be seen to be so. In
all of this, she was indisputably correct.
[84]
Ms Rossouw went on to state that due to the appellant’s
convictions and his lying under oath, she felt that he could
not be
entrusted with the administration of companies in liquidation as well
as sequestrations involving, as they do, substantial
funds in the
insolvent estates. It seems to me to go without saying that
scrupulous honesty is required from persons holding the
position of
liquidator or trustee of an insolvent estate. That indeed is
reflected in the provisions of s 372
(f)
of the Companies Act which provides for the disqualification of
persons convicted of certain criminal offences.
[36]
The appellant’s previous convictions and his evasiveness and
untruths relating thereto which I have chronicled above, show
without
doubt that the Master was correct in reaching the conclusion that she
did. Her decision was based upon a proper and correct
appreciation of
the facts, and was neither irrational nor unreasonable.
[85]
On this basis alone, the appellant’s challenge to his September
2011 removal from the panel must fail. But the appellant’s
lies
and criminal convictions were not the only relevant considerations
which were taken into account. As set out in her letter
of 5
September 2011 the Master also had regard to the appellant’s
conduct in the winding-up of the Pamodzi Group of companies,

particularly his refusal to answer any questions at the s 381
enquiry
[37]
and his loan of R3
million to Aurora and receipt of repayments, all without the
knowledge of his joint liquidators or the Master
and which
compromised his integrity.
[86]
These additional considerations were validly taken into account in
considering whether the appellant should remain on the panel.
Under s
379
(b)
of the Companies Act, the Master is empowered to remove a liquidator
if ‘he has failed to perform satisfactorily any duty
imposed
upon him by (the Companies Act) or to comply with the lawful demand
of the Master’. The circumstances which prevailed
at the
Pamodzi Group’s mines – including the stripping of
headgear and other assets, the failure to pay wages and other
dues,
the impoverishment of workers – in themselves spoke of the
liquidators not performing their duties properly. The Master
was
entitled to know exactly why all of this was going on; and it was the
appellant’s duty, as liquidator, not only to know
why but to
explain why to the Master. Instead, the appellant simply refused to
say anything. This made the position of the Master
intolerable, as I
have already dealt with earlier in this judgment,
[38]
and the decision to remove him as liquidator of the Pamodzi Group was
not only understandable but justifiable. It, too, was based
upon a
correct appreciation of the facts and was neither irrational nor
unreasonable.
[87]
The conflict of interest arising from the appellant’s loan of
R3 million to Aurora and its repayment in tranches should
also not be
underestimated. Although it may have helped Aurora’s short term
difficulties, it resulted in the appellant as
the liquidator of an
insolvent company having a direct interest in the running of that
company’s business and becoming a
creditor of the company
entrusted with running the insolvent’s mines.  Moreover,
the appellant received repayments of
funds which Aurora could have
used to comply with its obligations under its agreements to run the
mines. As the Master said, this
was adverse to the interest of
creditors who were entitled to know that Aurora was in the position
in which it found itself and
may well have decided to cancel the sale
had they known that it could not pay what it had agreed.
[88]
In
Standard
Bank of South Africa v The Master of the High Court & others
2010 (4) SA 405
(SCA) this Court, stated that liquidators should be
wholly independent and occupy a position of trust not only towards
creditors
but also the companies in liquidation whose assets vest in
them.
[39]
It went on to say
that liquidators should expected to act impeccably in the liquidation
process,
[40]
and cited with
approval
[41]
the following
passage in
Hudson
& others NNO v Wilkins NO & others
2003 (6) SA 234
(T) para 13:
‘
A liquidator
may be removed from office if there is sufficient suspicion of
partiality or conflict of interest, since a liquidator
must be and
appear to be independent and impartial. He or she must be seen
to be independent . . . A Court will exercise its
discretion
to remove a liquidator if it appears that he or she, through
some relationship, direct or indirect, with the company
or its
management or any particular person concerned in its affairs, is in a
position of actual or apparent conflict of interest.’
[42]
[89]
The appellant, through making this loan and receiving repayment from
the company supposed to be running the Pamodzi Group’s
mines,
all without the knowledge of the Master or his joint liquidators,
clearly lacked impartiality and put himself in a situation
of
conflict of interest. In itself, this may have been sufficient
justification for his removal. As mentioned earlier, Ms Rossouw

certainly regarded it in a very serious light,
[43]
and with ample justification.
[90]
Possibly certain of the factors that I have mentioned above,
individually, might not have required the appellant’s removal

as liquidator. But that is an issue unnecessary to consider.
Cumulatively, there can be no doubt that the Master was perfectly

entitled to remove the appellant from the panel for the reasons given
in her letter of 5 September 2011. Importantly, that
letter had
been preceded by letters of 17 and 25 August 2011 which, read
together, called upon the appellant to show reason why
he should not
be removed from the panel for these reasons. The Master acted fairly
and responsibly in affording him the opportunity
of being heard
before taking the final decision. The appellant declined the
invitation and made no representations relevant thereto.
There is
thus no reason to impugn the decision to remove the appellant from
the panel.
[91]
The decision of 5 September 2011 to remove the appellant from the
Master’s panel must therefore stand. As explained above,
that
renders nugatory any consideration of whether the Master’s
earlier decision to remove him as a liquidator from the Pamodzi
Group
is to be set aside. A resolution of that issue is simply moot as it
will have no practical effect. Simply put, that decision
was
overtaken by the event of his subsequent removal from the panel. For
these reasons the appeal must fail.
The
Masters refusal to restore the appellant to the panel
[92]
There is a further aspect that should be mentioned. In my view, the
question whether the appellant was entitled to any of the
relief he
sought, either at the outset or in the amended notice of motion, was
overtaken by subsequent events. As already mentioned,
[44]
in January 2014 the Master refused to restore the appellant to the
panel. In essence this was the same decision that had been taken
in
September 2011 when his name was removed from the panel, namely that
he was not a suitable person to be appointed as a liquidator
or
trustee. As I have said, a decision to remove from the panel is the
flip side of a decision not to appoint to the panel. Both
involve the
same essential issue.
[93]
For the reasons given, the decision in January 2014 not to restore
the appellant to the panel was an administrative decision
having a
direct, external legal effect in that the Master would not appoint
him as a liquidator or trustee. The appellant indeed
argued that the
appointment or removal of persons from the panel was administrative
action, but contended that not seeking to have
the Master’s
decision of January 2014 set aside did not result in its remaining
extant. Instead he argued that although requested
to reconsider the
matter in the light of the expungement, the Master had ‘made no
new decision based on the expungement and
had relied solely on her
decision and reasons of 5 September 2011’. He therefore argued
that in order to avoid endlessly
being returned to the same place, as
the 2014 decision was premised solely on the existence of the 2011
decision, it would fall
if the latter was set aside. In this regard
he relied on the judgment of this Court in
Seale
in which it was said that ‘if the first act is set aside, the
second act that depends for its validity on the first act must
be
invalid as the legal foundation for its performance was
non-existent’.
[45]
[94]
The argument is groundless. The Master was asked to reinstate the
applicant on the panel due to a change in circumstances,
namely the
expungement of his previous convictions. The applicant, as he himself
argues, was entitled to bring such an application
at any time after
his removal. But when he did, it was refused for the same reasons
that the Master had removed him from the panel,
save of course for
the fact that his previous convictions had been expunged. Those
reasons had been spelt out earlier, including,
in particular, the
fact the appellant was a stranger to the truth who had lied to the
Master and had acted in conflict with the
interest of the creditors
of a company of which he had been appointed liquidator. It is clear
from the Master’s reasons in
dismissing the 2014 application
that the change in the appellant’s circumstances was not
sufficient for her to feel that
he could be reinstated to the panel.
This was not a decision which depended for its validity on the first
act as was the case in
Seale
.
It was a separate and independent decision based on reasons similar,
but not identical, to those which had prevailed when the
appellant’s
name had been removed from the panel. But just as much as it had been
an administrative action to remove the
appellant from the panel, the
Master’s refusal to restore him to the panel constituted an
administrative action.
[95]
The appellant has never sought to review the latter decision and have
it set it aside. That being so, it remains binding. It
therefore
renders nugatory the relief the appellant seeks in these proceedings
as the validity of the earlier decisions of the
Master is now
irrelevant. The subsequent decision that despite the change in his
circumstances (the expungement of his convictions)
he remains a
person whom the Master is not prepared to appoint, has that
effect.
[46]
[96]
The relief which the appellant asks for would, if granted, therefore
have no practical effect. The decision in 2014 that he
is not a
suitable person to be on the Master’s panel, and which he has
not challenged, results in the matters raised in the
amended notice
of motion no longer being live issues. The contrary submission by the
appellant that they remain live and continue
to have practical effect
must be rejected. For this reason as well, the appeal must fail.
Costs
[97]
That brings me to the question of costs. The general rule in civil
litigation is, of course, that cost should follow the result.
Counsel
for the appellant however invoked the so-called principle in
Biowatch
[47]
in arguing that should the appeal be dismissed, the appellant had
been seeking to enforce his constitutional rights and should

therefore not be mulcted in costs. The general rule laid down in
Biowatch
applies in constitutional matters involving organs of state, and
operates to shield unsuccessful litigants from paying costs to
the
state in order ‘to prevent the chilling effect that adverse
costs orders might have on litigants seeking to assert constitutional

rights’.
[48]
[98]
However, although the review of a public officer’s decision is
a constitutional issue, that is not the end of the matter.
The
Biowatch
rule does not constitute a licence to litigate with impunity against
the state. As was stressed in
Biowatch
itself,
[49]
the mere labelling
of litigation as ‘constitutional’ and dragging in
specious references to the Constitution, is insufficient
for the rule
to apply. The issues at hand are to be genuine and substantive, and
raise constitutional considerations relevant to
their adjudication.
As the Constitutional Court commented in
Lawyers
for Human Rights
:
[50]
‘
(The rule)
does not mean risk-free constitutional litigation. The court, in its
discretion, might order costs,
Biowatch
said, if the constitutional grounds of attack are frivolous or
vexatious, or if the litigant has acted from improper motives or

there are other circumstances that make it in the interests of
justice to order costs. The High Court controls its process. It
does
so with a measure of flexibility. So a court must consider the
“character of the litigation and [the litigant's] conduct
in
pursuit of it”, even where the litigant seeks to assert
constitutional rights.’
[99]
In the present case, although the appellant sought a review of the
Master’s decision, this was no more than a civil challenge
to
an adverse administrative action which the appellant sought to
overturn to the benefit of his own private pocket. It neither
has a
‘radiating impact on other private parties’
[51]
nor does it raise constitutional imperatives and considerations such
as the interpretation of legislation
[52]
relevant to its adjudication. And as I have already pointed out,
there is no discrete legal point of public importance which falls
to
be decided; which is also a relevant factor. Furthermore, for the
reasons set out earlier in this judgment, the decisions the
appellant
was challenging arose from his own conduct in discharging his duties
in relation to the Pamodzi Group; in concealing
the grounds of his
disqualification; and in his dishonest responses to the Master’s
legitimate enquiries. All these are relevant
factors to be considered
in regard to an order for costs.
[100]
Furthermore, and importantly, it was only after the appellant had
unsuccessfully sought to be re-admitted to the panel in
2014, an
administrative action that he did not challenge, that he sought to
breathe life into litigation that he had left to lie
idle for years.
Only then did he pertinently attack a previous administrative action
which, in any event, was no longer relevant
in the light of the
Master’s refusal to have him back on the panel. And even then,
it took him a year after that refusal
to act. In these circumstances,
the appellant’s continued attempt to introduce and persist in
litigating issues that had
been overtaken by events, was in my view
frivolous and vexatious in the sense explained in
Lawyers
for Human Rights
[53]
in that it was unlikely to lead to a positive result in his favour.
This is particularly so as he knew that his application to
be
restored to the panel had been refused, and had not sought to
challenge that decision which was an absolute bar to him achieving

success on the amended notice of motion he thereafter sought to
introduce.
[101]
In these circumstances, I see no reason not to award costs against
the appellant. Although, like the court
a
quo
,
the appellant’s disgraceful and dishonest conduct tempted me to
award costs on a punitive scale, at the end of the day,
I feel that a
would not be appropriate despite what, at first blush, also appears
to have been a gratuitous smear attack upon the
Master and others in
the appellant’s papers.
[102]
The appeal is dismissed with costs, including the costs of two
counsel.
______________
L
E Leach
Judge
of Appeal
Appearances
For
the Appellant: A Subel SC (with him I B Currie)
Instructed
by: Knowles Husain Lindsay Inc, Sandton
McIntyre
Van der Post, Bloemfontein
For
the Respondent: J Suttner SC (with him P Cirone)
Instructed
by: The State Attorney, Johannesburg
The
State Attorney, Bloemfontein
[1]
Minister
of Constitutional Development & another v South African
Restructuring and Insolvency Practitioners Association &
others
[2018]
ZACC 20
;
2018 (5) SA 349
(CC). See further
Lipschitz
v Wattrus NO
1980 (1) SA 662
(T) at 668E-669A.
[2]
See para 31
below.
[3]
Engelbrecht
NO & others v Zuma & others
[2015]
3 All SA (GP) para 41-42.
[4]
It was then
in operation prior to its repeal by the
Companies Act 71 of 2008
.
[5]
Not the
senior counsel who represented him in this appeal.
[6]
Bernstein
& others v Bester & others NNO
[1996] ZACC 2
;
1996 (2) SA
751
(CC) para 15.
[7]
Section 379
of the
Companies Act reads
as follows:
Removal
of liquidator by Master and by the Court.– (1) The Master may
remove a liquidator from his office on the ground–
(a)
.
. .
(b)
that
he has failed to perform satisfactorily any duty imposed upon him by
this Act or to comply with a lawful demand of the Master
. . .; or
(c)
.
. .
(d)
.
. .
(e)
that
in his opinion the liquidator is no longer suitable to be the
liquidator of the company concerned.’
[8]
This was the
company that was to provide the finance to Aurora to purchase the
mines.
[9]
Paragraph 5
of this judgment.
[10]
Quoted in
para 19 of this judgment.
[11]
See para 46
above.
[12]
Referred to
below.
[13]
Buffalo
City Metropolitan Municipality v Asla Construction (Pty) Ltd
[2019]
ZACC 15
paras 46-53.
[14]
Schwartz
v Schwartz
[1984] ZASCA 79
;
1984
(4) SA 467
(A) at 473I-474C.
[15]
Cf
Standard
Bank of South Africa Ltd v The Master of the High Court & others
2009
(5) SA 13
(E) paras 7-11 and the authorities there cited.
[16]
The
Citizen 1978 (Pty) Ltd & others v McBride
[2011]
ZACC 11; 2011 (4) SA 191 (CC).
[17]
Spilhaus
Property Holdings (Pty) Ltd & others v MTN & another
[2019]
ZACC paras 44 and 45.
[18]
See eg
Minister
of Education v Beauvallon Secondary School
[2015] 1 All SA 542
(SCA) para 11 and the cases there cited.
[19]
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 21.
[20]
See eg
Minister
of Defence and Military Veterans v Motau & others
[2014]
ZACC 18
;
2014 (5) SA 69
(CC) para 33.
[21]
Sokhela &
others v MEC for Agriculture and Environmental Affairs
(KwaZulu-Natal) & others
2010
(5) SA 574
(KZP) para 61.
[22]
Minister
of Home Affairs v Scalabrini Centre
2013
(6) SA 421
(SCA) para 52.
[23]
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000
(1) SA 1
(CC) paras 142-143.
[24]
Musenwa v
Master of the North Gauteng High Court
2010 JDR 1354 (GNP).
[25]
Paragraph
11.
[26]
The South
African Restructuring and Insolvency Practitioners Association v
Minister of Justice and Constitutional Development
[2015]
1 All SA 589 (WCC).
[27]
Paragraph
106.
[28]
Minister
of Justice and Constitutional Development & another v The South
African Restructuring and Insolvency Practitioners
Association &
others
(693/15)
[2016] ZASCA 196
(2 December 2016); 2017 (3) SA 95 (SCA);
[2017] 1 All SA 331 (SCA).
[29]
The
SARIPA
case fn 1.
[30]
Footnote 1.
[31]
Ex Parte
The Master of the High Court South Africa (North Gauteng)
2011 (5) SA 306 (GNP).
[32]
Paragraph
32.
[33]
City
Capital SA Property Holdings Ltd v Chavonnes Badenhorst St Clair
Cooper & others
2018 (4) SA 71
(SCA) para 43.
[34]
Paragraph
95.
[35]
Ex Parte
The Master of the High Court South Africa (North Gauteng)
para
30.
[36]
See further
s 372
(d)
of the
Companies Act where
the disqualification arises from the
person's removal from an office of trust by the court.
[37]
Paragraphs
24 and 25 above.
[38]
Paragraph 26
above.
[39]
Paragraph 1.
[40]
Paragraph
133.
[41]
Paragraph
125.
[42]
See further
Ma-Afrika
Groepbelange (Pty) Ltd & another v Millman & Powell NNO &
another
1997 (1) SA 547
(C) at 561H-J also cited with approval in
Standard
Bank v The Master of the High Court
para 126.
[43]
Paragraph 27
above.
[44]
Paragraphs
48-49 above.
[45]
Seale v
Van Rooyen NO & others; Provincial Government, North West
Province v Van Rooyen NO & others
2008 (4) SA 43
(SCA) para 13.
[46]
Cf
City
Capital
paras 43-44.
[47]
Biowatch
Trust v Registrar, Genetic Resources, & others
2009 (6) SA 232 (CC); 2009 10 BCLR 1014 (CC).
[48]
Harrielall
v University of KwaZulu-Natal
(CCT100/17)
[2017] ZACC 38
;
2018 (1) BCLR 12
(CC) (31 October 2017) para
11.
[49]
Paragraph
25.
[50]
Lawyers
for Human Rights v Minister in the Presidency
2017 (1) SA
645
(CC) para 18.
[51]
Per Sachs J
in
Biowatch
para 28.
[52]
Compare eg
Kruger
v National Director of Public Prosecutions
[2018]
ZACC 13
para 83.
[53]
Paragraph
19.