O'Connell Manthe & Partners Inc v Vryheid Minerale (Edms) Bpk

• Jurisdiction: South Africa
• Judge: Van Dijkhorst AJ
• Judgment Date: 23 October 1978
• Court: Transvaal Provincial Division
• Hearing Date: 19 October 1978
• Citation: 1979 (1) SA 553 (T)

Van Dijkhorst AJ:

On 3 October 1978 the following order was granted in this matter:

(1)

that the above-mentioned respondent company be and is hereby placed under provisional winding up order;

(2)

A that a rule nisi be hereby issued calling upon all persons concerned to appear and show cause, if any, to this Court at 10 am on 14 November 1978 why the respondent company should not be placed under final winding up order;

(3)

B that service of this rule nisi be effected upon the respondent company at its registered head office and by publication once in each of the Government Gazette and a daily newspaper circulating in Pretoria;

(4)

that leave be, and is hereby granted to the respondent to anticipate the return date on 24 hours' notice;

(5)

C that the Master of the Supreme Court be requested to appoint a provisional liquidator of Vryheid as a matter of urgency and that the provisional liquidator so appointed be and is hereby authorised specifically to interdict the liquidator of OTS from paying out any of the settlement monies to Anysspruit pending the determination of an action to set aside the disposition by Vryheid to Anysspruit.

D I will throughout refer to O'Connell Manthe & Partners Incorporated as the applicant and Vryheid Minerale (Edms) Bpk as the respondent. This order was obtained without any appearance on behalf of the respondent and on very short notice to the respondent. On behalf of the respondent it is alleged that it was still taking steps to be represented when the order was granted.

E On 9 October 1978 the respondent lodged an application on notice of motion to anticipate the return date to 11 October and have the rule discharged. This was set down for 11 October and postponed until 17 F October. It then awaited its turn on the roll and was only heard on 19 October. This application was brought in the name of the respondent by one G U de Waal acting as managing director authorised by resolution dated 6 October, that is three days after the provisional liquidation order. He deals extensively with the merits of the applicant's claim and alleges G that the applicant has no claim against the respondent but that the applicant's claim is against another company in the same group, Anysspruit Collieries (Pty) Ltd.

At the outset of this application for anticipation of the return date a point in limine was taken by Mr Roux appearing for the applicant. It is that, as the respondent was provisionally liquidated, it could not, acting H through its former directors, pass a resolution authorising De Waal to institute this application for anticipation of the return date on its behalf. Of this point in limine notice was only given on the morning of 19 October orally to Mr Kirk-Cohen appearing for the respondent, the reason being that it only occurred to counsel at this late stage. Nowhere in the voluminous papers before the Court is this point foreshadowed. Mr Kirk-Cohen countered this point by handing in an affidavit by De Waal. In this affidavit De Waal refers to an affidavit already filed in this matter, made by himself. He further states that he is the holder of 75 fully paid-up shares in the respondent out of a total of 300. He is therefore a shareholder

Van Dijkhorst AJ

and member of the respondent. He further states that for the months July, August and September 1978 his salary was not paid by the respondent and A that he is therefore a creditor of the respondent in the amount of R4 500. He states that in his personal capacity as a member and shareholder and also as a creditor of the respondent company he requests that the relief applied for in the notice of application of anticipation of the return date, be also granted to him.

Mr Kirk-Cohen disputed the point in limine and applied for leave to join B De Waal as second applicant in the application to anticipate and for the application to anticipate the return date to proceed. Mr Roux objected to the latter application; firstly, because 24 hours' notice had not been given thereof in terms of Rule 6 (8). This objection is, in my opinion, unsound. Rule 6 (8) deals with ex parte applications granted against a person who then wants to anticipate. No order was granted ex parte against C De Waal. The application by De Waal arises from a point taken by applicant without advance notice and the applicant itself cannot then complain about a lack of notice on the part of De Waal. Short notice by De Waal should therefore be condoned.

The second ground of objection to De Waal's application is based on the D fact that it is not accompanied by a notice of motion. De Waal does...