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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 000011/2025

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED: NO

DATE 13 JANUARY 2025

SIGNATURE

 

In the matter between:

 

TIADOR 119 CC                                                                                         1^st Applicant

 

HERMANUS JOHANNES ROODT N.O.

(In his capacity as trustee of THE RED HOT TRUST)                               2^nd Applicant

 

LYNNETTE ROODT N.O.

(In her capacity as trustee of THE RED HOT TRUST)                               3^rd Applicant

 

DAVID NEWMAN N.O.

(In his capacity as trustee of THE RED HOT TRUST)                                4^th Applicant

 

and

NEDBANK LIMITED                                                                            1st Respondent

 

KURT ROBERT KNOOP                                                                     2^nd Respondent

 

DALLIE VAN DER MERWE                                                                  3^rd Respondent

 

ABSA BANK LIMITED                                                                          4^th Respondent

 

ANDREW JOHNSTON                                                                         5^th Respondent

 

MIKE VAN DER VEEN                                                                          6^th Respondent

 

MASTER OF THE MAKHANDA HIGH COURT                                   7^th Respondent

 

CIPC SOUTH AFRICA                                                                          8^th Respondent

 

CHARALAMBOS CHRISTODOULOU                                                 9^th Respondent

 

SHOPRITE HOLDINGS LIMITED                                                      10^th Respondent

 

JUDGMENT

Order:

1.     The application is struck from the role due to lack of urgency.

2.     The applicant is ordered to pay the costs of the respondents on an attorney and client scale.

 

TOLMAY J

 

Introduction

1.               The applicant brought this application on an urgent basis. The application was so called ex parte, but no less than ten respondents were cited. There was no service on any of the respondents, according to the heads of argument filed by the second to fifth respondents they became aware of the application when the attorneys got sight of the urgent court roll for the week of 6 January. They apparently informed the ninth respondent, who was also represented at the hearing. The founding affidavit did not explain why the application was not served on the respondents, the applicants seem to be under the mistaken belief that service on the respondents was not required.

 

2.               The applicants seek in Part A for an order that the settlement that was made an order of court in the matter of Lot 38 Bizana Properties cc v Tiador 119 CC (IN LIQUIDATION) & Others under case number 2278/2022 in the Eastern Cape Division Makhanda, pertaining to the lease held by Tiador be suspended pending the determination of the validity of the liquidation orders. At this point the applicant also requires certain documents to be provided to it by the respondents. In Part B the applicant seeks an order declaring the liquidation orders, previously referred to, to be declared invalid, or alternatively that no liquidation order was granted. It also asks that that the status quo ante of the first applicant and Silver Falls Trading 178 CC be restored.

 

3.               At this point I will only determine the question of urgency, but it must be noted that it is, to put it lightly, doubtful that this court has jurisdiction to entertain the matter. The order that the applicants are seeking to suspend is an order of another division of the High Court, and the documents the applicants seek to obtain relate to that order. Part B of the application requires of this Court to declare the order of another Division to be a nullity. On what legal basis this Court can do it is still a mystery to me. Then there is the question of locus standi, in light of the liquidation of the first applicant, this fact raises the question if the applicants have locus standi to bring this application. The matter stood down for me to deliver a ruling on urgency, without obtaining permission of the Court or informing their opponents an affidavit by the deponent Mr Roodt, a letter by an auditor and the CIPC (Companies and Intellectual Property Commission) document was uploaded. The affidavit and letter questioned the authenticity and correctness of the CIPC document. If the applicants seek to persist with this application the court hearing the matter will have to determine these questions. It must also be noted that Lot 38 Bizana Properties Ltd, the applicant in the liquidation proceedings and a party to the settlement was not joined in the proceedings before me.

 

4.               As far as urgency is concerned the following is relevant. The applicant says the matter is urgent, because the Applicants only became aware of the contents of the agreement between the liquidators and Lot 38 Bizana on 14 November 2024  in which it was agreed that Tiador 119 CC will continue collecting rent from Checkers Holdings based on the lease the first applicant has with the previous owner of the property, until 28 February 2025, after which date the first applicant’s rights to any rental in respect of the property shall be permanently terminated. The alleged nullity of the liquidation order, which was used to put the First Applicant in liquidation was only confirmed to the Applicants,  on their version, from a reputable source, at the latest 21 November 2024. If the matter was to be heard in the normal scope a date would only be obtained after the settlement agreement stripping the First Applicant of its last income generating assets. This, the applicant says will amount to irreparable harm, considering that the alleged forged/fraudulent nature of the Court order allow the liquidators to exercise powers they do not have. There is clear prejudice, the applicant says, which is serious of nature, which prejudice cannot be cured by some other remedy. The interim order the applicants say will not affect the respondents save for those who now benefit from the asset(s) and income of the First Applicant.

 

5.               The respondents say the matter is not urgent inter alia as the resolution to bring the urgent application was signed and dated 12 and 13 August.  The applicants on their own version became aware of the settlement on 14 November 2024, the founding affidavit was signed and commissioned on 6 December 2024. Despite all of the above the application was only issued on 2 January 2025 on an extremely urgent basis to be heard on 7 January 2025. No explanation was provided the way the application was brought. The respondents say this is clearly an abuse of process that justifies not only a striking from the roll due to lack of urgency, but also justifies a punitive costs order.

 

6.               The law regarding urgent applications is trite. One should only deviate from the procedures as far as is strictly necessary. In this instance the applicants were aware of the settlement and its consequences at the very latest on 24 November 2024, despite that the application was only launched on 2 January 2025. During argument, the court inquired why this time lapsed. The extraordinary response was that the court was “in deep recess”. This astonishing claim is mind baffling as the urgent court in this division sits every single day of every single week of every year around the clock. The applicants took a leisurely approach and enrolled the matter at their convenience with an absolute disregard for the time honoured principles in relation to urgent applications. No proper case was made out for urgency. The way this application was brought is a clear abuse of the court and its processes If any urgency exists it was self-created.

 

The following order is made:

3.     The application is struck from the role due to lack of urgency.

4.     The applicant is ordered to pay the costs of the respondents on an attorney and client scale.

 

 

R TOLMAY

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

Appearances:

For Applicant:	Adv H P Van Staden instructed by Riekie Erasmus Attorneys.
For 2nd – 5th Respondent:	Adv J Eastes instructed by Schoerie & Sewgoolam Inc (2nd & 3rd Respondents) and Cassim Inc Attorneys (4th & 5th Respondents)
For 9th Respondent:	Adv A R Whitaker instructed by Mason Incorporated.
Date of Hearing:	7 January 2025
Date of Judgment:	10 January 2025

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