Consolidated Aone Trade and Invest 6 (Pty) Ltd v Gearwise Properties CC

• Jurisdiction: South Africa
• Judge: Lopes J
• Judgment Date: 30 July 2021
• Docket Number: D3200/2020
• Hearing Date: 23 July 2021
• Court: KwaZulu-Natal Division, Durban
• Citation: 2021 JDR 2453 (KZD)

Lopes J:

[1]

This is an application by Consolidated Aone Trade & Investment (Pty) Ltd (in liquidation) ('Aone') for leave to intervene in what I shall refer to as 'the main application'. The application is opposed by Gearwise Properties CC ('Gearwise'). This is the latest skirmish in the protracted litigation between the various parties.

[2]

The history of the litigation may be summarised as follows:

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(a)

Aone was the registered owner of certain immovable property ('the property') at one Link Road, Ballito, KwaZulu-Natal.

(b)

The property was sold by Aone to Imperial Crown Trading 176 (Pty) Ltd (in liquidation), the third respondent in the main application ('ICT').

(c)

ICT employed Gearwise to construct the Ballito Bay Shopping Mall ('the Mall') on the property. Gearwise subcontracted TBP Buildings ('TBP') to carry out the construction.

(d)

Gearwise and TBP parted ways, and Gearwise completed the construction of the Mall.

(e)

ICT failed to pay Gearwise, and was liquidated on the 17th January 2014. The sale of the property by Aone to ICT collapsed, and Aone was liquidated on the 20th March 2014.

(f)

At the first meeting of creditors in the liquidated estate of ICT on the 9th April 2014 (the meeting having been adjourned from the 2nd April 2014), seven creditors proved claims. Guardrisk Insurance ('Guardrisk') sought to prove a claim based upon a cession by Gearwise of its claims against ICT. The claim was accepted, but later expunged by the Master on the 29th October 2015 in terms of s 45(3) of the Insolvency Act, 1936 ('the Act'). Aone proved two claims, which were similarly expunged by the Master on the 12th May 2016.

(h)

At the second meeting of creditors on the 14th June 2017, Gearwise applied in its name to prove the claim which had previously been submitted by Guardrisk. The claim was rejected.

(i)

Gearwise then sought to review the decision to reject its claim. This court (per Kruger J) directed the Master to hold a further special meeting of creditors, solely to consider the claim of Gearwise. That meeting was held on the 17th October 2019, and ended in some confusion. Gearwise alleged that the Master (who presided at the

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special meeting) had accepted its claim, but Aone alleged that she had not done so. The point of issue was that it was alleged at the meeting that the liquidators had compromised the claim of Gearwise. The Master was clearly unhappy at making a decision when the liquidators had purported to have done so. However, one of the liquidators, Mr Button (the sixth respondent), protested at the meeting that the claim had not been compromised by them.

(j)

On the 29th May 2020, Gearwise brought the main application to review the decision of the Master, and to vary her decision to read that she had accepted the claim of Gearwise in the sum of R213 120 795.10, and that she accepted that the claim had been compromised by the liquidators.

(k)

Aone now seeks leave to intervene in the review application, on the basis that it is a creditor of ICT, and has a direct and substantial interest in the outcome of the main application.

[3]

The problem which faced Mr Lotz SC, who appeared for Aone, was that both the claims of Aone, which had initially been accepted, had subsequently been expunged by the Master. Aone then brought an application on the 23rd November 2016 to review the Master's decision to expunge its claims. That review has not yet been heard.

[4]

Mr Manikum, who appeared for Gearwise, submitted that;

(a)

Because the claims of Aone were expunged, Aone was no longer a creditor of ICT, and accordingly, had no 'real and substantial' interest in the main application.

(b)

The review application brought by Aone could not assist it because it was brought two days after the 180-day period referred to in s 7(1)

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of the Promotion of Administrative Justice Act, 2000 ('PAJA') had expired.

(c)

Aone had not, as yet, brought an application to condone the late filing of its review application, and it was too late to do so now. In the event of the review failing, which is inevitable because it was out of time, Aone had no basis for seeking leave to intervene.

(d)

Even if Aone was granted condonation, its claims would have expired by the effluxion of time. Prescription is not halted by the review application.

(e)

Notwithstanding that the condonation may be granted, I must decide the application on the basis that, as Aone has not yet applied for condonation, it cannot succeed in the review.

[5]

The procedure for judicial review is set out in s 7 of PAJA, and provides, inter alia:

'(1) Any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date -

(a)

subject to subsection 2(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection 2(a) have been concluded; or

(b)

where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.'

[6]

In Aone's founding affidavit in this application, the deponent states that Aone received notification of the expungement on the 25th May 2016. The notification (annexure 'ENI' to the affidavit) gives no reasons for the expungement, save to refer to s 45(3) of the Act and regulation 18 of the Companies Act, 1973. The deponent to the answering affidavit of Gearwise

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