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[2019] ZASCA 87
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Moto Health Care Medical Scheme v HMI Healthcare Corporation (Pty) Ltd and Others (341/18) [2019] ZASCA 87 (31 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 341/18
In
the matter between:
MOTO
HEALTH CARE MEDICAL
SCHEME
Appellant
and
HMI
HEALTHCARE CORPORATION (PTY) LTD First
Respondent
AGILITY
GLOBAL HEALTH SOLUTIONS
AFRICA
(PTY)
LTD Second
Respondent
JOHANNES
ZACHARIAS HUMAN
MULLER
NO Third
Respondent
MICHAEL
MMATHOMO MASILO NO Fourth
Respondent
MEDSHIELD
MEDICAL SCHEME Fifth
Respondent
MASTER
OF THE HIGH COURT Sixth
Respondent
Neutral
citation:
Moto
Health Care Medical Scheme v HMI Healthcare Corporation (Pty) Ltd &
others
(341/2018)
[2019] ZASCA 87
(31 May 2019)
Coram:
Ponnan
and Schippers JJA and Davis, Eksteen and Rogers AJJA
Heard:
6
March 2019
Delivered:
31
May 2019
Summary:
Declaratory
relief – whether condonation by liquidators of company of
non-compliance with written notice of civil action under
s
359(2)
(a)
of
the Companies Act 61 of 1973 and prescription properly the subject of
a declaratory order – party not entitled to claim
declaration
of rights merely because rights disputed – case not
a
proper one for the exercise of discretion to grant declaratory relief
–
delivery
of heads of argument after hearing of appeal – abuse of court
process.
ORDER
On appeal from:
Gauteng Division of
the High Court, Pretoria (Collis AJ, Mavundla and Basson JJ
concurring, sitting as a court of appeal):
1 The application
for leave to file the appellant’s supplementary heads of
argument is dismissed with costs on the scale as
between attorney and
client.
2 The appeal is
dismissed with costs, including the costs of two counsel.
JUDGMENT
Schippers
JA (Ponnan JA, and Davis, Eksteen and Rogers AJJA concurring):
[1]
In
March 2013 the appellant launched an application in the Gauteng
Division of the High Court, Pretoria (the high court) for a
declaratory order, inter alia, that its claim against Calabash Health
Solutions (Pty) Ltd (Calabash) for payment of the sum of R30 776
615 had not prescribed. The application was launched before the
Superior Courts Act 10 of 2013
came into force in August 2013. It was
therefore governed by s 19(1)
(a)
(iii)
of the Supreme Court Act 59 of 1959, which provided that a provincial
or local division of the former Supreme Court had the
power:
‘
[I]n its
discretion, and at the instance of any interested person, to enquire
into and determine any existing, future or contingent
right or
obligation, notwithstanding that such person cannot claim any relief
consequential upon the determination.’
[1]
[2]
More
than 70 years ago in
Durban
City Council
,
[2]
Watermeyer JA, with reference to a similarly worded provision, said:
‘
The question
whether or not an order should be made under this section has to be
examined in two stages. First the Court must be
satisfied that the
applicant is a person interested in an “existing, future or
contingent right or obligation” and
then if satisfied on that
point, the Court must decide whether the case is a proper one for the
exercise of the discretion conferred
on it.’
[3]
The
central issue in this appeal, with the special leave of this court,
is whether the appellant had made out a proper case for
the exercise
of the high court’s discretion to grant the declaratory relief
sought.
The
facts and proceedings below
[4]
The
appellant, Moto Healthcare Medical Scheme (Moto Health), established
under the
Medical Schemes Act 131 of 1998
, is the medical fund of the
Motor Industry Bargaining Council (MIBCO). In March 2007 MIBCO,
acting on behalf of Moto Health, entered
into a capitation agreement
with Calabash, a company that specialised in rendering managed
healthcare services for medical schemes
(the capitation agreement).
In terms of that agreement Moto Health agreed to pay monthly
capitation fees to Calabash and in return,
Calabash discharged all
claims made by service providers in respect of services rendered to
the beneficiaries of Moto Health.
[5]
In
September 2007 Moto Health cancelled the capitation agreement.
Subsequently the parties entered into negotiations which culminated
in a written settlement agreement on 1 April 2008 between MIBCO, Moto
Health and Calabash. Pursuant to the settlement agreement,
in August
2008 Moto Health and Calabash accepted an audit report by Calabash’s
auditors that Calabash was indebted to Moto
Health in the sum of
R30 776 615.
[6]
By
registered letter dated 8 July 2009, Moto Health demanded payment of
R30 776 615 from Calabash in terms of s 345 of
the
Companies Act 61 of 1973 (the 1973 Companies Act). The same day, ie 8
July 2009, Calabash was liquidated pursuant to a special
resolution
of its sole shareholder, the first respondent, HMI Healthcare
Corporation (Pty) Ltd (HMI). On 28 July 2009 Calabash’s
attorneys replied to the s 345 letter and said that their client
disputed liability for the debt of R30 776 615.
Subsequently,
Mr Johannes Muller (Muller) and Mr Michael Masilo of
Tshwane Trust, the third and fourth respondents respectively, were
appointed
as the joint liquidators of Calabash.
[7]
On 2
November 2009 Moto Health instituted an action in the high court
against Calabash for payment of R30 776 615, together
with
interest and costs (the action). The summons was served on 6 November
2009 at the
domicilium
citandi et executandi
expressly chosen by Calabash in terms of the settlement agreement. It
is common ground that Moto Health did not give the liquidators
written notice of its intention to institute the action, as required
by s 359(2)
(a)
of the 1973 Companies Act (the requisite notice).
[3]
This was due to the fact that Moto Health was unaware that Calabash
had been placed in liquidation when the action was instituted.
[8]
On 6
November 2009 Moto Health’s former attorneys, Werksmans Inc
(Werksmans), discovered that Calabash had been placed in
voluntary
liquidation. They enquired of Calabash’s attorneys whether (a)
they were still acting for Calabash; (b) the date
of Calabash’s
voluntary liquidation; and (c) whether the first and second meeting
of creditors had been convened. On 17 November
2009 Calabash’s
attorneys confirmed that it was in voluntary liquidation and advised
Werksmans to communicate with Muller.
[9]
On 19
November 2009 Werksmans wrote to Tshwane Trust, advising it that Moto
Health had issued summons against Calabash and asked
whether Muller
had been appointed as the liquidator and whether the first and second
meeting of creditors had been convened. Muller
replied on 23 November
2009. He asked for a copy of the summons and suggested that a meeting
be convened with Werksmans and its
client so that he could take
advice as to whether the action should be opposed. Subsequently,
Werksmans provided Muller with a
copy of the summons and its
annexures. Later their mandate was terminated by Moto Health.
[10]
On 1
December 2009 Mr Werner Barnard (Barnard) and Mr Johan Crouse
(Crouse) of Barnard Inc, the new attorneys acting for Moto Health,
met with Muller. Barnard advised Muller that Moto Health intended to
take default judgment against Calabash. Muller responded that
the
liquidators did not intend to oppose the action unless they received
instructions to the contrary from the general body of
creditors. The
liquidators apparently were of the view that Calabash possibly had a
counterclaim, but they did not intend to pursue
it. Muller confirmed
that the first and second meeting of creditors had already been
convened and that HMI and the second respondent,
Agility Global
Health Solutions Africa (Pty) Ltd (Agility), a wholly-owned
subsidiary of HMI, had proved claims in the amounts
of approximately
R3.5 million and R9 million respectively.
[11]
On the
same day Barnard wrote to Muller and requested, inter alia, the
minutes of the first and second meetings of creditors, financial
statements of Calabash for 2007, 2008 and 2009 and copies of
Calabash’s bank statements for the 12 months preceding its
liquidation. On 15 January 2010 Muller advised Barnard that he was
gathering the documentation and suggested that a special meeting
be
convened for Moto Health to prove a claim. Subsequently Muller
advised Barnard that Calabash refused to grant Moto Health access
to
its books and records until Moto Health proved a claim. However, Moto
Health did not prove a claim in the insolvent estate.
[12]
In
November 2011 Moto Health learnt of certain allegations made in an
affidavit by Mr Martin Rimmer, a director of Calabash and
HMI, in an
application in the high court under case number 17480/2011 by HMI and
Agility to stay an insolvency enquiry into the
affairs of Calabash.
These allegations were that Moto Health’s claim against
Calabash had prescribed because Moto Health
had not complied with s
359 of the 1973 Companies Act, the summons had not been served on the
liquidators of Calabash and Moto
Health had elected not to prove a
claim against Calabash.
[13]
By
letter dated 5 April 2012 to Tshwane Liquidators, Barnard informed
them that his firm had been instructed to intervene on behalf
of Moto
Health in the application under case number 17480/2011, but that HMI
and Agility had alleged that his client was not an
interested party
because its claim against Calabash had prescribed. Barnard recorded
the discussion between himself, Crouse and
Muller on 1 December 2009
in which it was said that the liquidators did not intend to oppose
Moto Health’s action against
Calabash. Barnard went on to say
that the liquidators, by their conduct, had waived the right to
receive the requisite notice and
condoned the institution of the
action against Calabash without that notice. The liquidators were
advised that if they disagreed,
Moto Health would apply to court for
a declaratory order to that effect.
[14]
In his
reply dated 16 April 2012, Muller did not dispute Barnard’s
version of events at the meeting of 1 December 2009. He
advised
Barnard that he was willing to convene a special meeting of creditors
so that Moto Health could prove its claim and once
it had done so, it
would have
locus
standi
to intervene in the application of HMI and Agility. Moto Health said
that it was reluctant to prove a claim in Calabash’s
liquidation without evidence of some prospect of recovery. It stated
that in December 2012 it had obtained information concerning
alleged
voidable dispositions by Calabash to HMI and Agility indicating such
a prospect, which caused it to take the further steps
it did in 2013.
[15]
On 22
March 2013 Moto Health applied to the high court for the following
orders against the liquidators (the first and second respondents
in
that application):
‘
1.
Declaring that the first and second respondents waived the
requirement of written notice required in terms of section 359(2)(
a
)
of the Companies Act 61 of 1973 (“the Companies Act”)
before the applicant could institute action against Calabash
Health
Solutions (Pty) Ltd (“Calabash”) in the above honourable
Court under case number 67638/2009.
2.
Alternatively
to prayer 1
,
declaring that the first and second
respondents condoned the applicant’s failure to deliver a
written notice required in
terms of section 359(2)(
a
) of the
Companies Act before the applicant could institute action against
Calabash in the above honourable Court under case number
67638/2009.
3.
Alternatively
to prayers 1 and 2
,
condoning, in terms of section
359(2)(
b
) of the Companies Act, the applicant’s failure
to provide written notice in terms of section 359(2)(
a
) of the
Companies Act before the applicant instituted action against Calabash
in the above honourable Court under case number 67638/2009.
4. Declaring that
the applicant’s claim in the sum of R30,776,615.00 together
with interest
a tempore morae
and legal costs that form the
subject of the action instituted against Calabash in the above
honourable court under case number
67638/2009 has not prescribed.
5.
Granting the applicant leave to pursue the action against Calabash in
the above honourable court under case number 67638/2009
to judgment.’
[16]
The
liquidators delivered a notice of intention to oppose the application
but did not file an answering affidavit. HMI and Agility,
who were
also cited in the application, opposed it. They contended that the
summons was not properly served, that it did not interrupt
the
running of prescription and therefore that Moto Health’s claim
had prescribed. They alleged that there was no basis to
conclude that
the liquidators had waived receipt of the requisite notice or
condoned Moto Health’s failure to deliver it;
and that the
failure to give the requisite notice rendered the action void
ab
initio
.
[17]
The
high court (Pretorius J) found that HMI and Agility did not have
locus
standi
to oppose the application in circumstances where the liquidators, on
behalf of Calabash, had elected not to do so. Pretorius J
concluded
that the summons was properly served at Calabash’s chosen
domicilium
citandi et executandi
;
that the liquidators had ‘waived their right by their conduct’;
and that they ‘had condoned the applicant’s
failure to
inform them in writing in terms of s 359(2)’. Pretorius J made
an order declaring that the liquidators had condoned
Moto Health’s
failure to deliver the requisite notice before it instituted the
action; and that its claim for payment of
R30 776 615,
together with interest and costs, had not prescribed. HMI and Agility
were ordered to pay the costs of the
application. They were however
granted leave to appeal to a full court.
[18]
The
full court (Collis AJ, Mavundla and Basson JJ concurring) upheld the
appeal by HMI and Fidelity, set aside the order of Pretorius
J and
replaced it with an order dismissing Moto Health’s application
with costs. The full court decided the appeal on the
sole basis that
service of the summons in the action was invalid. It concluded that
any relief sought premised on the invalid service
of the summons
could not have been granted by Pretorius J.
No
proper case for declaratory relief
[19]
As
appears from prayers 1, 2 and 3 of the notice of motion quoted above,
Moto Health sought an order declaring that the liquidators
had waived
the right to receive the requisite notice; alternatively, that they
condoned Moto Health’s failure to deliver
it; further
alternatively, that the failure to give the requisite notice be
condoned in terms of s 359(1)
(b)
of the 1973 Companies Act.
[20]
On the
facts of this case, a declaratory order in terms of prayers 1, 2 or 3
was inappropriate. On its own version, as early as
the meeting of 1
December 2009 when Muller told Barnard that Moto Health was going to
take default judgment in the action, Muller
replied that the
liquidators did not intend to defend the action unless the general
body of creditors decided otherwise. By that
time Muller had already
received a copy of the summons. Moreover, it appeared to Barnard that
the liquidators were of the view
that Calabash possibly had a
counterclaim, but that they did not intend to pursue it.
[21]
However,
Moto Health did not apply for default judgment. Its reasons for not
doing so are not apparent from the papers. Had it pursued
the action
in the ordinary course and applied for default judgment, it is
unlikely that the liquidators would have opposed those
proceedings.
This, in the light of Muller’s statement that the liquidators –
the only persons who could have raised
the s 359(2) defence –
would not have defended the action, and the fact that they did not
oppose the declaratory relief sought
by Moto Health.
[22]
Instead,
more than two years later in April 2012, Barnard confirmed what
happened at the meeting of 1 December 2009 and that the
liquidators,
by their conduct, had either waived the right to receive the
requisite notice or condoned Moto Health’s non-compliance
with
s 359(2)
(a)
of the 1973 Companies Act. The liquidators were specifically informed
that if they disputed Barnard’s version of events,
Moto Health
would apply to court for declaratory relief. As it turned out, the
liquidators did not dispute Barnard’s version.
[23]
This,
of course, is not to say that the liquidators waived their right or
condoned non-compliance with s 359(2)
(a)
of the 1973 Companies Act, which, as stated, provides that a person
who intends to institute legal proceedings to enforce any claim
against a company shall within four weeks after the appointment of
the liquidator, give the liquidator not less than three weeks’
written notice before commencing the proceedings. That however is not
an issue which this court need decide. What the facts show
is that
Moto Health’s approach to the high court for the orders in
prayers 1, 2 and 3 of the notice of motion was unnecessary.
Indeed,
counsel for Moto Health had difficulty in explaining why that relief
was sought despite the liquidators’ stance and
their failure to
dispute or contradict the events of 1 December 2009.
[24]
So, on
the s 359(2)
(a)
issue there was no existing or concrete dispute between Moto Health
and the liquidators. Muller, on behalf of the liquidators,
did not at
any stage object to the action, either on the basis that they did not
receive prior notice of it, or that they had to
be given three weeks
to consider the action. Although an existing dispute is not a
prerequisite for the exercise by a court of
its jurisdiction to grant
declaratory relief, the absence of such a dispute may, depending on
the circumstances, cause the court
to refuse to exercise that
jurisdiction.
[4]
[25]
This
is such a case. It concerns only Moto Health and the liquidators, and
does not involve the determination of a legal principle
affecting
third parties.
[5]
Moto Health
did not meet the requirements at the first stage of the enquiry as to
whether declaratory relief should be granted
and on this basis alone,
the order that the liquidators had condoned non-compliance with the
requisite notice should not have been
made.
[26]
Apart
from this, Moto Health was not entitled to a declaratory order merely
because HMI and Agility had disputed its right to pursue
the action
without the requisite notice. This principle was stated a century ago
by Innes CJ in
Geldenhuys
[6]
(affirmed by the Constitutional Court in
Mukhamadiva
[7]
in 2014) as follows:
‘
It
was laid down by DE VILLIERS CJ in
Colonial
Government v Stephan
(17 SC 39)
that a plaintiff is not entitled to claim a declaration of
rights merely because their rights have been disputed by the
defendant;
he must prove some infringement of them. . . . No doubt
there is something to be said in favour of sanctioning the issue of
declaratory
orders even where there has been no infringement of
rights. But on the other hand it would be very difficult to define
the limits
within which that jurisdiction should be confined. And its
unregulated exercise would lead to great uncertainty of practice.
After
all, Courts of Law exist for the settlement of concrete
controversies and actual infringements of rights, not to pronounce
upon
abstract questions, or to advise upon differing contentions,
however important. And I think we shall do well to adhere to the
principle
laid down by a long line of South African decisions, namely
that a declaratory order cannot be claimed merely because the rights
of the claimant have been disputed, but that such a claim must be
founded upon an actual infringement.’
[27]
In
Barlows
Tractor
,
[8]
Harms JA stated that s 359(2) provided a defence in the hands of the
liquidator who was not obliged to raise it. It is not
a matter
which can be raised by outsiders (such as, here, HMI and Agility) for
whose benefit and protection s 359(2) was not enacted.
Pretorius J
having found, correctly, in my view, that this provision applies to a
liquidator who is the party affected by non-compliance,
it was not
appropriate to issue a declaratory order that the liquidators had
condoned Moto Health’s failure to deliver the
requisite notice:
there was no dispute in that regard between Moto Health and the only
other parties who mattered (the liquidators),
nor was there an
infringement of Moto Health’s rights by HMI or Agility. Given
that there was no dispute between the liquidators
and Moto Health
concerning non-compliance with s 359(2), the high court
pronounced upon an abstract question and furnished
advice on
differing contentions.
[28]
Likewise,
the high court decided an abstract question when it issued a
declaratory order that Moto Health’s claim had not
prescribed.
Prescription, as a defence, is underpinned by the
Prescription Act 68
of 1969
. That Act requires prescription to be invoked by a party to
litigation. Thus,
s 17
of the
Prescription Act provides
:
‘
(1)
A court shall not of its own motion take notice of prescription.
(2) A party to
litigation who invokes prescription, shall do so in the relevant
document filed
of
record in the proceedings: provided that a court may allow
prescription to be raised at any
stage
of the proceedings.’
[29]
But
prescription was not raised as a defence in the action. Moto Health
sought the relief in paragraph 4 of the notice of motion
on the basis
of an assertion that its claim had prescribed, by a director of
Calabash in completely different proceedings to which
Moto Health was
not a party. We were referred to no authority that would entitle a
litigant, as a pre-emptive strike to a plea
of prescription, to
approach a court for a declaratory order that a claim has not
prescribed. This is hardly surprising given the
provisions of
s 17(2)
of the
Prescription Act. Further
, this case illustrates the very
uncertainty of practice that would result if the issuance of
declaratory orders were unregulated,
which Innes CJ cautioned against
in
Geldenhuys
.
[9]
[30]
It
must however be emphasised that whilst it is not necessary for this
court to decide whether service of the summons in the action
was
valid, the decision of Pretorius J or the full court must not be
regarded as dispositive of that issue. The import of this
judgment is
that neither of those courts should have pronounced on the issue.
The
application to file further submissions
[31]
After
the hearing of the appeal, and without the leave of this court, Moto
Health delivered supplementary heads of argument on 15
March 2019
(the supplementary heads) dealing with certain issues raised by the
court, namely whether there were any special circumstances
why the
appeal should be heard; whether there were any triable issues; and
whether Pretorius J ought to have granted the declaratory
relief
sought in paragraphs 2 and 4 of the notice of motion.
[32]
Pursuant
to receipt of the supplementary heads on 18 March 2019, the attorneys
acting for HMI and Agility addressed a letter to
the registrar of
this court in which they raised the following complaints. The court
did not request the parties to submit further
heads of argument,
neither did Moto Health apply for leave to do so. During argument
Moto Health’s counsel was specifically
given an opportunity to
consider the points raised by the court and take instructions in
relation thereto. The supplementary heads
sought to introduce
argument on matters not raised by the court. HMI and Agility would be
prejudiced in that Moto Health was seeking
‘a second
opportunity to argue the appeal’.
[33]
Consequently,
on 20 March 2019 Moto Health applied to this court for leave to file
the supplementary heads and a directive that
HMI and Agility be
granted leave to file additional heads of argument in reply to the
supplementary heads. HMI and Agility opposed
the application. The
grounds for the application in the founding affidavit were
essentially that the issues raised with counsel
‘did not arise
on the papers’ and ‘had not been anticipated by counsel’.
[34]
These
grounds however have no merit. The high court had issued two
declaratory orders and whether that was appropriate in the
circumstances,
were plainly matters for debate and decision by this
court on appeal. So too, the question whether Moto Health had made
out a case
for the grant of special leave to appeal. Once again it is
necessary to say that an order granting special leave to appeal on
application
is not decisive of that question, which ultimately must
be decided by the court itself when hearing the appeal.
[10]
[35]
At the
hearing of the appeal, Moto Health’s counsel was informed on
two occasions that the matter could stand down to give
them an
opportunity to consider the issues raised by the court and take
instructions in regard thereto. On the first occasion Moto
Health’s
senior counsel indicated that he would proceed with argument and then
presented comprehensive argument in relation
to the points raised by
the court. Thereafter counsel for HMI and Agility presented argument
on those points. Moto Health was given
a second opportunity to
consider its position when its senior counsel presented argument in
reply. That opportunity was declined
and no request to file further
submissions was made. So the statement in the founding affidavit that
‘[i]t was only after
the appeal hearing that appellant’s
counsel had a proper opportunity to reflect on the issues’, is
untenable. Judgment
was reserved and the court adjourned. Nine days
later Moto Health delivered the supplementary heads.
[36]
The
contention that the issues raised by the court were not anticipated
by counsel is surprising. The debate in the court of first
instance
centred on the appellant’s entitlement to the declaratory
relief granted by Pretorius J. Nothing in that debate
ought to have
taken counsel by surprise. What is impermissible is delivery of heads
of argument after the hearing when counsel
has ‘reflected on
the issues’, as happened in this case. One shudders to think of
the consequences if this were permitted.
Courts would be flooded with
applications to receive additional heads of argument, filed ‘upon
reflection’ after a
hearing.
[37]
It was
contended that the parties had not been notified beforehand of the
issues raised by the court at the hearing of the appeal.
In this
regard the dictum of Harms JA in
Thompson
,
[11]
in my view, provides a complete answer:
‘
The Court is
entitled to base its judgment and to make findings in relation to any
matter flowing fairly from the record, the judgment,
the heads of
argument or the oral argument itself. If the parties have to be
forewarned of each and every finding, the Court will
not be able to
function.’
[38]
It was
also contended on behalf of Moto Health – unsurprisingly
without reference to any authority – that it was ‘in
the
interests of justice’ that the supplementary heads be received.
This contention likewise has no merit. The supplementary
heads were
filed without more. An application for leave to file the heads was
made only after the registrar had informed Moto Health’s
attorneys that such an application was necessary, and HMI and
Fidelity had objected to delivery of the heads. Save for brief
submissions
dealing with the power of an appellate court to raise a
new point of law on appeal, the supplementary heads contain an
extensive
analysis of precisely the same authorities referred to in
Moto Health’s original heads of argument. All of this was an
abuse
of the process of this court. In the result, the judgment in
this case – which had been prepared by the time that the
application
to file the supplementary heads was made on 20 March 2019
– could not be handed down at the end of the first term on 29
March
2019.
[39]
As
stated in
Standard
Credit Corporation
,
[12]
approved by this court in
Beinash
,
[13]
an abuse of the process of court takes place where a litigant uses
court procedures for a purpose for which it was not intended
or
designed, to the prejudice or potential prejudice of the other party
to the proceedings. The fact that the judgment could not
be delivered
and the case brought to finality at the end of March 2019 was
prejudicial to this court, the administration of justice,
HMI and
Agility. In
Hudson
,
[14]
De Villiers JA said that courts are duty bound to put a stop to an
abuse of process:
‘
When …
the Court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice,
it is the
duty of the Court to prevent such abuse.’
[40]
It
follows that the application for leave to file the supplementary
heads must be dismissed and that the punitive costs order sought
by
HMI and Agility is justified in the circumstances.
[41]
For
all of these reasons the appeal must fail. There is no reason why
costs should not follow the result. The following order is
issued:
1 The application
for leave to file the appellant’s supplementary heads of
argument is dismissed with costs on the scale as
between attorney and
client.
2
The appeal is dismissed with costs, including the costs of two
counsel.
______________
A
Schippers
Judge
of Appeal
APPEARANCES
For
Appellant: K W Lüderitz SC with TD Prinsloo
Instructed
by:
Barnard
Incorporated, Pretoria
McIntyre
Van Der Post Attorneys, Bloemfontein
For
Respondent: M C Maritz SC with E Kromhout
Instructed
by:
Gildenhuys
Malatji Incorporated, Johannesburg
Honey
Attorneys, Bloemfontein
[1]
The position
is now regulated by
s 21(1)
(c)
of the
Superior Courts Act 10 of 2013
which provides, inter
alia, that a high court has jurisdiction in relation to all causes
arising within its area of jurisdiction
and has the power, ‘in
its discretion, and at the instance of any interested person, to
enquire into and determine any existing,
future or contingent right
or obligation, notwithstanding that such person cannot claim any
relief consequential upon the determination.’
[2]
Durban City Council v
Association of Building Societies
1942
AD 27
at 32;
Ex Parte
Nell
1963 (1) SA 754
(A) at 759A-B;
Shoba v
Officer Commanding, Temporary Police Camp, Wagendrift Dam
& another
,
Maphanga v Officer
Commanding, South African Police Murder and Robbery Unit,
Pietermaritzburg & others
1995 (4) SA 1
(A) at 14F-I.
[3]
Section
359(2)(
a
)
provides:
‘
Every
person who, having instituted legal proceedings against a company
which were suspended by a winding-up, intends to continue
the same,
and every person who intends to institute legal proceedings for the
purpose of enforcing any claim against the company
which arose
before the commencement of the winding-up, shall within four weeks
after the appointment of the liquidator give the
liquidator not less
than three weeks’ notice in writing before continuing or
commencing the proceedings.’
[4]
Ex Parte Nell
fn
2 at 759H-760 B;
Shoba
fn 2 at 14F-G.
[5]
Compare
Ex
Parte Nell
fn 2 at
759H-760A.
[6]
Geldenhuys
and Neethling v Beuthin
1918 AD 426
at 440-441.
[7]
Director-General
Department of Home Affairs & another v Mukhamadiva
[2013] ZACC 47
;
2014 (3) BCLR 306
(CC) para 33.
[8]
Barlows
Tractor Co (Pty) Ltd v Townsend
[1996] ZASCA 3
;
1996 (2) SA 869
(A) at 884F-G.
[9]
Geldenhuys
fn
12 at 441.
[10]
National Union of Mineworkers
& another v Samancor Ltd (Tubatse Ferrochrome) & others
[2011] ZASCA 74
;
[2011] 11 BLLR
1041
(SCA) para 15.
[11]
Thompson v South African
Broadcasting Corporation
[2000] ZASCA 76
;
2001
(3) SA 746
(SCA) para 7. vc
[12]
Standard Credit Corporation
Ltd v Bester & others
1987
(1) SA 812
(W) at 820A-B.
[13]
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) at 734.
[14]
Hudson v Hudson & another
1927 AD 259
at 268.