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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 CASE NO.: 144936/2024

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED: NO

Date:      31 JANUARY 2025

 

In the matter between:

SHELDRAKE GAME RANCH CC                                                                     Applicant

 

and

 

CJ MINNAAR BEHEREND (PTY) LTD                                                  First Respondent

 

CORNELIUS JACOBUS MINNAAR N.O.                                         Second Respondent

 

JACOBUS PETRUS MINNAAR N.O.                                                   Third Respondent

 

ESMELAU EIENDOMME (PTY) LTD                                                 Fourth Respondent

 

FONTAINE BLEAU LANDGOED (PTY) LTD                                         Fifth Respondent

 

 

JUDGMENT

 

DE VOS AJ

[1]         On 17 January 2025 this Court granted an order in the following terms:

1.     The first, second, third, fourth and fifth respondents are granted leave to intervene as respondents in the ex parte application.

 

2.     The order granted on 10 December 2024, under case number 144936/2024 is reconsidered and set aside.

 

3.     The applicant (Sheldrake Game Ranch CC) is ordered to pay the costs of the application as on the scale between Attorney and Client, including the costs of two counsel.

 

[2]         These are the reasons for the order. 

 

CONTEXT

[3]         Sheldrake has, since 1985, conducted hunting and safari operations on six farms, totalling almost 12 000 ha. On these farms live a buffalo herd of 220 worth R 15 million, as well as exotic game such as the Livingstone Eland and Zimbabwean Blue Ostrich. Sheldrake’s day-to-day was managed by Mr Gerhard Cornelius Minnaar. In October 2024 Mr Gerhard Minnaar passed away unexpectedly in a gyrocopter accident. Mr Minnaar was the sole occupant of the gyrocopter when it collided with the Soutpansberg, about 3 km from Louis Trichard in inclement weather. Mr Minnaar’s unexpected death left his wife, Ms. Eileen Minnaar, in charge of Sheldrake.

 

[4]         Lost in the accident was Mr Minnaar’s computers and cellphones, leaving Ms. Minnaar unable access any of the information on these machines. Ms. Minnaar also did not have the necessary passwords or information concerning Sheldrake’s bank accounts. Her immediate concern was the buffalo herd. Due to a devastating drought in the Vhembe District, north of the Soutpansberg, the farms received no substantial rain since October 2023. As there was no natural grazing grass, the herd therefore had to be fed grass, costing R 75 000 per month. Ms. Minnaar could not ensure that the herd survives, she explained, as she had no access to any bank accounts. She faced the immediate obligation to step into Mr Minnaar’s shoes, without any information necessary to do so. She was advised that an elegant solution would be to put Sheldrake into business rescue. 

 

[5]         Giving effect to this advice, a resolution was passed on 28 October 2024 to place Sheldrake in business rescue. The basis of the business rescue, advises Sheldrake, is that it was handsomely solvent, but immediately, in financial distress. Over time it would be able to meet its expenses and had reasonable prospects of recovery but required immediate intervention in terms of business rescue. 

 

[6]         Section129(3) of the Companies Act requires publication of the resolution within five days of the resolution. Publication did not take place in time. The fire that followed Mr Minnaar’s accident was fueled by lithium batteries. Notwithstanding that a helicopter dropped approximately 28 1000 litre buckets of water on the wreckage, the fire raged fully for five days. Mr Minnaar could only be identified after the fire had been extinguished through dental records. As a result, Mr Minnaar’s death certificate was only obtained three weeks after his death. In addition, there were delays within the CIPC.  The outcome is that publication in terms of section 129(3) did not take place within five days of the resolution.  It is this delay in publishing the section 129(3) notice which led Ms. Minnaar to pass a second resolution and to approach this Court for authorisation to file the second business rescue resolution in terms of section 129(5)(b) of the Companies Act.  Mis Minnaar was successful as this Court granted an ex parte order on 10 December 20204 authorising Sheldrake to file the second resolution.

 

[7]         The ex parte order was presented as a cure for a technical problem with timeous publication, caused by events outside of Ms Minnaar’s control and which the Court is statutorily empowered to provide a solution.  It was presented to the Court, sitting in urgent court hearing an ex parte matter, as a neat solution with no complications. From what will become clear below, not much more was presented to the Court dealing with the ex parte application.

 

[8]         This innocuous technical and procedural step, authorising the second resolution, is defined as an attempt to derail existing proceedings in the Polokwane High Court by four parties: CJ Minnaar, Cornelius Jacobus Minnaar N.O., Jacobus Petrus Minnaar N.O., Esmelau Eiendomme (Pty)Ltd and Fontaine Bleau Langoed (Pty) Ltd. For ease of reference, I will refer to these four parties as “the Minnaar parties”.  In essence they contend that the ex parte application was intended to render a pending application in the Polokwane High Court, moot.  The existing proceedings in the Polokwane High Court is an application brought by some of the Minnaar parties to set aside the business rescue proceedings.

 

[9]         Some context is required. Before Mr Minnaar passed, a family dispute arose within the Minnaar clan. The dispute involves claims for monies and membership in Sheldrake. These disputes have grown to twelve pieces of litigation to be considered by Naude-Odendaal J in Polokwane J during the last week of February 2025. These pieces of litigation will be referred to as the civil claims. 

 

[10]     The Minnaar parties contend that the business rescue proceedings were commenced, not to recover a financially distressed Sheldrake, but rather with the sole aim of obtaining a moratorium. A business in business rescue attracts, statutorily, a moratorium against existing claims. The moratorium halts the civil claims. As Sheldrake is in business rescue – these claims cannot be pursued. This, say the Minaar parties, is the true impetus behind the business rescue.

 

[11]     The Minnaar parties launched proceedings to set aside the business rescue proceedings, and it was to be heard on 9 December 2024. These proceedings will be referred to as the setting aside proceedings. However, due to a conflict in the Court – the matter was stood down to 13 December 2024.  It is in this gap, created by the setting aside proceedings being stood down in Polokwane – that Sheldrake obtained its ex parte order in this Court, in Pretoria.

 

[12]     The Minnaar parties launched urgent proceedings before this Court in terms of Rule 6(12)(c) to reconsider and set aside the ex parte order. The Minnaar parties contend that the ex parte order was granted with no notice to them, without them being heard and was not authorised by the legislation. In addition this Court was not informed that it lacked jurisdiction.  Centrally, the Minnaar parties contend that Sheldrake did not comply with its duties to disclose all relevant facts in the application. Specifically, it did not disclose, fully, the relevance of ongoing litigation in the Polokwane High Court – specifically the impact of these proceedings on the setting aside application. The Minnaar parties also contend that the true reason for launching the ex parte application was not to solve a technical issue of non-compliance, but rather to render the setting aside proceedings – which were being argued in the same week in a different division – moot.

 

RECONSIDERATION

Jurisdiction

[13]     Before this Court, the Minnaar parties request a reconsideration of the ex parte order on the basis that the Court seized with the ex parte application did not have jurisdiction. Sheldrake is a Close Corporation. It is regulated by the Close Corporation Act 69, of 1984 which in section 7 provides that the High Court within whose area of jurisdiction the registered office or main place of business of the close corporation is situated shall have jurisdiction.

 

[14]     The only home which a corporation can be said to have is the place where the operations for which it was called into existence are carried on (TW Beckett & Co Ltd v H Kroomer Ltd 1912 AD 324 at 334). It is common cause that the principal place of business, also, is in Musina.  Concretely, the farms are in Musina and Sheldrake has chosen Musina as its registered address. The Court has the CIPC report indicating that Sheldrake’s registered address is Musina, Limpopo. Sheldrake’s only home is in Musina, Limpopo.  As Musina is in Limpopo, the dispute falls within the jurisdiction of the Polokwane High Court. The court with jurisdiction is the Polokwane High Court.

 

[15]     In addition, our courts have held that as supervision for business rescue purposes is a matter going to the status of the subject business; and that the power to make a determination on a question of status involves a ratio jurisdictionis exercisable only by the court within whose jurisdiction the company 'resides' (Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country and Others 2013 (1) SA 191 (WCC). Business rescue is also a matter which is “interlinked in such a manner by the provisions of the 2008 Act that it is undesirable for reasons of comity between courts of equal status, efficiency, commercial convenience and certainty that they be amenable to proceedings in concurrent jurisdictions”. These are considerations militating in favour of the recognition of a regime that recognises a company only to be resident in one place rather than two thereby assuring that only one court will have jurisdiction.” (Sibakhulu para 23)

 

[16]     The Polokwane High Court is therefore the Court with jurisdiction and the sole court with jurisdiction.  The position under the Companies Act appears to be stricter in that it appears that in respect of every business there will be only a single court in South Africa with jurisdiction in respect of winding-up and business rescue matters. In this case, this dispute need not engage the court, as both the registered and principal place of business, both, are in Musina. 

 

[17]     For these reasons, this Court, the North Gauteng Court did not have jurisdiction as neither Sheldrake’s place of business nor registered address are within this Court’s jurisdiction. This is determinative of the reconsideration application. On this basis alone, the ex parte order is to be set aside. 

 

[18]     The facts which give rise to this finding on jurisdiction do not appear in the papers that served before this Court in the ex parte application. Notably absent in the ex parte founding affidavit is an allegation regarding Sheldrake’s registered address or principal place of business. The Court seized with the ex parte application was not informed that Sheldrake’s registered address did not fall in this Court’s jurisdiction.  Rule 6(12)(c) applies in exactly such an instance, where a vital piece of evidence was not presented to the urgent court, that a reconsideration of the order granted – based on incomplete evidence – was based.

 

[19]     Sheldrake’s response is not to dispute that the principal place of business or registered address are within this Court’s jurisdiction.  Rather, they present, for the first time in reply, the argument that the business rescue practitioner’s address gives this Court jurisdiction. 

 

[20]     The parties filed three affidavits in this matter.  The original founding affidavit by Sheldrake in the ex parte application.  The Minnaar parties filed an answering affidavit and Sheldrake then filed a replying affidavit. In the replying affidavit Sheldrake seeks to explain why this Court had jurisdiction. The explanation is that the business rescue practitioner, Mr du Toit’s business premises are in Pretoria. 

 

[21]     Sheldrake’s first problem is that it is inappropriate to make out a case in reply, particularly in the context of reconsideration applications. Reconsideration applications can be set down on the original papers and it is not open to the original applicant to bolster its original application by filing a supplementary founding affidavits (Afgri Grain Marketing (Pty) Ltd v Trustees [2019] ZASCA 67).  Even if an affidavit is filed, it does not preclude the party seeking reconsideration from arguing at the outset, on the basis of the applicant’s papers alone, that the applicant has not made out a case for the relief.  The absence of jurisdiction, is exactly such an argument which a party can make in reconsideration or an order granted. That is a well-established entitlement in application proceedings and there is no reason why it should not be adopted in reconsideration applications (Afgri para 13).  Sheldrake’s attempt to ground this Court’s jurisdiction by providing new allegations in reply is not permitted. This Court’s jurisdiction to determine the ex parte application is to be considered based on the founding affidavit. In the founding affidavit no allegation appears that the Court has jurisdiction on the basis that Mr du Toit resides in Pretoria. 

 

[22]     Even if Sheldrake were permitted to make out this case, it does not alter the outcome, as it is legally unsound. Sheldrake’s response is beset with obstacles.  Centrally, Mr du Toit replaces the Board.  As a business rescue practitioner steps into the shoes of the Board.  The residence of a director does not provide a court with jurisdiction (De Bruyn v Grandselect 101 (Pty) Ltd (1961/2013) [2014] ZANCHC 3). It is the place of business or registered address of the company, not the Director which determines the Court’s jurisdiction. Similarly the place of business of a business rescue practitioner does not ground jurisdiction. 

 

[23]     In addition, the Companies Act contemplates that only one Court would have jurisdiction (Sibakhulu Construction (Pty) Ltd v Wedgewood Village Golf Country 2013 (1) SA 191 (WCC)). Business rescue procedures are regulated in terms of chap 6 of the 2008 Companies Act. Section 131 resorts in chap 6. The word 'court is specially defined for the purposes of chap 6 of the Act. In terms of s 128(1)(e) of the Act, 'court', in this context means the High Court that has jurisdiction over the matter. It is perhaps significant that the court contemplated in the definition is referred to by the definite rather than the indefinite article, which suggests on the face of it that only a single High Court is held in view. It would defeat the various purposes of only one court having jurisdiction, identified in Sibakula and set out above, over business rescue proceedings, if the business rescue practitioner’s address would ground jurisdiction.

 

[24]     In summary, Sheldrake’s attempt to present a factual basis for the business rescue practitioner’s address to ground the Court’s jurisdiction is rejected.  In any event, even if this factual case had been made out, it would not matter as Sheldrake’s business and registered address are in Musina.  

 

[25]     The Court has a wide discretion under the rule.  Once these jurisdictional facts of rule 6(12)(c)have been established, the Curt is free to consider in the widest sense of the word – thus it can most certainly issue an order of rescission by way of final judgment (Oosthuizen v Mijs 2009 (6) SA 266 (W) p 267 E to 269D).  Several factors may be taken into account in order to reconsider an order obtained ex parte(Erasmus, Superior Court Practice vol 2 at D1-89).  These include whether an imbalance, oppression or injustice has resulted, and if so, the nature and extent thereof and whether alternative remedies are available. There is a clear imbalance and injustice where a party obtains an order on an ex parte basis in circumstances where the Court lacked jurisdiction.

 

[26]     The Court finds that the ex parte application was launched in the wrong Court.  As such, that is the end of the matter.  As the Court granting the ex parte order did not have jurisdiction, the order is to be set aside. 

 

[27]     In order to follow a belt and braces approach, in the event of an appeal, the Court also considers whether Sheldrake complied with its duty of utmost good faith.

 

Duty of utmost good faith

[28]     Section 129 permits a party to launch an ex parte application.  It is not clear whether the section intended that a party could, in circumstances where there is an existing challenge to the validity of the business rescue proceedings, use section 129 on an ex parte basis. Assuming section 129 permits an ex parte approach in the circumstances of this case, without deciding the issue, Sheldrake attracted a duty to act in utmost good faith.

 

[29]     Ex parte applications deviate from the fundamental principle that a Court must listen to all parties affected by an order before reaching a conclusion. An ex parte application, by its nature, places only one side before the court (Pretoria Portland Cement Co Ltd v Competition Commission  2003 (2) SA 385 (SCA)). An ex parte application is one in which relief is being obtained behind an opponent’s back (South African Airways SOC v BDFM Publishers 2016 (2) SA 561 (GJ) at para 22). Ex parte applications, as an exception to this rule, requires the applicant who comes to court to provide the court with all relevant information. It is therefore vital that such a party is not permitted to be selective in what facts it presents to the Court. Therefore, an applicant in an ex parte application bears the duty of utmost good faith in placing before the court all the relevant material facts that might influence a court in coming to a decision.  Facts that are material and which are within the applicant’s knowledge should be disclosed.  (Powell and Others v Van der Merwe and Others  2005 (5) SA 62 (SCA) para 42).

 

[30]     An ex parte application must be tested against these propositions:

1.     in ex parte applications all material facts must be disclosed which might influence a court in coming to a decision;

2.     the non-disclosure or suppression of facts need not be wilful or mala fide to incur the penalty of rescission;

3.      the Court, apprised of the true facts, has a discretion to set aside the former order or to preserve it.’ (Powell NO and Others v Van der Merwe and 2005 (5) SA 62 (SCA) para 73).

 

[31]     Unless there are very cogent practical reasons why an order should not be rescinded, the Court will always frown on an order obtained ex parte on incomplete information and will set it aside even if relief could be obtained in a subsequent application by the same applicant.’ (Schlesinger at 350B-C)

 

[32]     The central position is this: good faith is sine qua non in ex parte applications.  Material facts that might weigh with a court must be disclosed.  Whether they were omitted, inadvertently or deliberately matters not.  Whether a court will upon disclosure of all relevant facts grant the relief in any event, is not determinative.

 

[33]     Even in cases where the statute permits ex parte applications – the duty remains. This is clear from the host of cases dealing with search and seizure operations. (NDPP v Braun and another  2007 (1) SACR 326 (C) para 20).  The statutory permission to approach the Court ex parte does not relieve the applicant from “the normal burden imposed on every applicant who approaches the court for an ex parte order”. (NDPP v Braun para 21).  Sheldrake’s reliance on section 129(5) permitting an ex parte approach does not assist them. The duty remains, even if statute permits an ex parte application.

 

[34]     Sheldrake attracted this duty. Its disclosure in the founding affidavit in the ex parte application must be considered.  The Court considers what was disclosed to the Court hearing the ex parte application. It appears that a sole paragraph is dedicated to this where Ms Minnaar then tells the Court that –

 

“Kobus has launched proceedings in the Limpopo Division in which he seeks to have the resolution of 28 October 2024 set aside. I attach a copy of the Notice of Motion which is to be heard urgently on 10 December 2024.”

 

[35]     That is the sole reference to the setting aside application in the Polokwane High Court.  Single and sole reference. This disclosure must be tested against Sheldrake’s duty of utmost good faith to disclose material facts.

 

[36]     Three categories of facts were not disclosed to the Court dealing with the ex parte application. 

 

[37]     First, Sheldrake did not disclose to the Court that the registered business address and main place of business was not in the Court’s jurisdiction.  No explanation for this failure has been presented. The ex parte Court was not made aware of this.  Had it been made aware of this, it would not have granted the relief sought.

 

[38]     Second, Sheldrake did not disclose to the ex parte Court that the Minnaar parties dispute that the jurisdictional fact for business rescue – that the business was in distress had been proven – and instead it had been launched to abuse the moratorium which business rescue offers.

 

[39]     Some context is required.  Ms Minnaar sought to place Sheldrake in business rescue as she was having difficulty obtaining access to the bank statements, which rendered the game on the farm at risk of survival.  The Minnaar parties take issue, factually, with Ms Minnaar’s expressed difficulties in accessing the bank statements.  They submitted that it would not be a herculean task for Ms Minnaar, as the sole member of Sheldrake, to go to the local branch of the bank, death certificate in hand, and obtain access to the bank statements. Particularly in the local branch of Musina, this would not be a task of great duration. The Minnaar parties do not believe Ms Minnaar’s reason for seeking business rescue.  

 

[40]     In addition, they submit if it if were factually true, which they dispute, it is not legally competent a basis for business rescue. Business rescue is for businesses in financial distress – who are incapable of paying their debts, not for when there is a problem in accessing a bank account.  Placing Sheldrake in business rescue is therefore not the competent use of business rescue.

 

[41]     In addition, the Minaar parties present evidence that Sheldrake is not, in fact, financially distressed at all.  The only creditor at the moment that the Minnaar parties is aware of is SARS: with Sheldrake owing R 25.00 to SARS. Ms Minaar describes Sheldrake as handsomely solvent.  In short, submits the Minnaar parties, there is no distress, there is no harm of creditors not being paid and to refer to Sheldrake as in financial distress is cynical.  This was a central aspect of the proceedings setting aside the business rescue in the Polokwane High Court.  None of this was disclosed to the ex parte Court.

 

[42]     Third, Sheldrake believed that the ex parte application would render the setting aside proceedings Polokwane High Court moot.  Sheldrake’s attorney received the ex parte order on 11 December 2024, the same day, a letter is penned to the Minnaar parties, that the ex parte application is rendered moot, demanding the setting aside proceedings be withdrawn and demanding punitive costs from the Minaar parties. Sheldrake should have disclosed to the ex parte Court that Sheldrake believed that the ex parte order would bring to an end, litigation to be heard in the same week in the urgent court of another division.  This would have been a material consideration to the ex parte Court.

 

[43]     No doubt, had the ex parte Court been informed that it was not only engaging in the authorisation of a technical problem caused by the difficulty in obtaining Mr Minnaar’s death certificate, but rather that it would be the end of opposed litigation in another division, it would have at a minimum been a relevant consideration for the ex parte Court. 

 

[44]     Among the factors which the court will take into account in the exercise of its discretion to grant or deny relief to a litigant who has been remiss in his duty to disclose, are the extent to which the rule has been breached, the reasons for the non-disclosure, the extent to which the court might have been influenced by proper disclosure, the consequences, from the point of doing justice between the parties, of denying relief to the applicant on the ex parte order, and the interest of innocent third parties such as minor children, for whom protection was sought in the ex parte application (Averda South Africa (Pty) Limited v Unlawful and Unauthorised Individuals and Pickers Traversing Property (19700/18) [2019] ZAGPJHC 221 para 16).

 

[45]     These factors weigh against Sheldrake. There are no reasons provided for the non-disclosure – despite the Minnaar parties raising the failure to act in the utmost good faith in the affidavit before this Court. The extent to which the court would have been influenced is severe. Sheldrake failed to disclose the absence of the Court’s jurisdiction to hear the matter.  Had the Court known this it would have – without considering anything else and regardless of any other issue – denied the relief sought.

 

[46]     Sheldrake dedicates a single paragraph to reference that the Minnaar parties are seeking to set aside the business rescue proceedings.  This single paragraph fails to disclose a host of facts, it is at best for Sheldrake a failure to disclose all relevant facts and at worse, it was acting in bad faith.

 

[47]     Had the material facts been disclosed, the ex parte Court would have been informed that it is seeking to grant an order urgently on an ex parte basis, that would render existing proceedings launched in another Division moot in circumstances where this Division lacked jurisdiction. 

 

[48]     It matters not whether Sheldrake is entitled to the relief sought or not – that is an issue which does not detract from this Court’s discretion to set aside an order on the basis that the applicant in ex parte proceedings failed to adhere to its duty of utmost good faith.

 

Intervention

[49]     Sheldrake submitted that the Minnaar parties could not rely on Rule 6(12)(c) as the rule permits a party “against who” an order was granted to apply for a reconsideration. The argument is that the ex parte order was not granted against the Minnaar parties and was merely an order authorising Sheldrake to file a further resolution pertaining to business rescue in terms of section 129(5)(b) of the Companies Act 2008.

 

[50]     The rule was clearly intended to apply in contexts where relief was granted ex parte.  It is not only a party who was a respondent who can rely on Rule 6(12)(c) but any party against who an order was granted.  Rule 6(12)(c) is a safeguard against relief obtained in urgent court behind an opponent’s back. It would defeat the purpose of Rule 6(12)(c) if it did not find application in ex parte proceedings – which are by nature proceedings behind an opponent’s back. 

 

[51]     In any event, Sheldrake’s express position is that the ex parte order renders the Minnaar parties’ existing litigation in the Polokwane High Court moot. It is unclear how Sheldrake can in the same breath then contend that the ex parte order does not operate against the Minnaar parties.  Sheldrake’s argument in this regard is rejected.

 

[52]     In any event, the Minnaar parties presented a solution to the argument, by filing a notice of intervention on behalf of the Minnaar parties in the reconsideration application.  It might be overly cautious as Rule 6(12)(c) does not require such an order for intervention, but it has been brought out of an abundance of caution.  Sheldrake demurred regarding the timing, but did not formally oppose the leave to intervene. 

 

[53]     The Minnaar parties were affected by the ex parte order. As the authorisation in s 129 has the impact of ending existing litigation launched by the Minnaar parties, they clearly had a direct and substantial interest. 

 

[54]     In these circumstances, the Minnaar parties have a direct interest in the proceedings and the court granted the leave to intervene. 

 

URGENCY

[55]     There are several aspects of law that renders the reconsideration urgent. 

 

[56]     The first is that business rescue, to be effective, has to be speedy.  It was especially so enacted by Parliament and has been recognised as such by our courts.

 

[57]     At an additional level, the Minnaar parties contend that a court without jurisdiction has granted an order. This must be corrected immediately, particularly as it affects existing litigation in another division. On this score, also, the matter is urgent.

 

[58]     Lastly, Sheldrake has obtained an unfair advantage as a result of several material non-dislsosure. In such a case, the Court must be astute and ensure that Sheldrake be deprived, immediately, of any advantage resulting from such a breach of duty.  This requires the Court to consider the matter urgently.

 

COSTS

[59]     The Minnaar parties sought and were granted costs on a punitive scale.  The Minnaar parties are successful and are therefore entitled to their costs.  The punitive costs are granted to show the Court’s displeasure with Sheldrake’s conduct during these proceedings. 

 

[60]     The Minnaar parties accused Sheldrake of launching the ex parte application in the wrong court with the intention of avoiding the scrutiny of the urgent Court judge in Polokwane who would be dealing with the setting aside proceedings. The Minnaar parties require Sheldrake to explain why it sought an order behind their back, in the same week but, in a different jurisdiction, to where an ongoing dispute regarding the business rescue was being heard. The accusation was made squarely in the papers, it called on Sheldrake to provide an answer.  It cries out for a response.  Sheldrake provided no answer on the papers.  Sheldrake’s silence means that the Minnaar parties’ accusation that the North Gauteng High Court was chosen to avoid the scrutiny of the Court in ongoing litigation remains unanswered.  This should attract a punitive costs order.

 

[61]     It also weighs with the Court that there has been material non-disclosures in an ex parte application.  The Court frowns on this and shows its disapproval in the form of a punitive costs order.

 

[62]     The matter is complex and involves a long history. It is appropriate to grants costs of two counsel. Scale C for the senior counsel and Scale B for junior counsel. 

      I de Vos

Acting Judge of the High Court

 

Delivered:  This judgment is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be e-mailed to the parties/their legal representatives.

 

For the applicant:	W Roos
Instructed by:	Christo Reeders Attorneys
Counsel for respondents:	APJ Els SC
	AA Basson
Instructed by:	Krone & Associates Inc.
Date of hearing:	17 January 2025
Date of order:	17 January 2025
Date of request for reasons:	21 January 2025
Date of reasons:	31 January 2025

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