Mafate Business Entreprise v Malepe and Others
| Jurisdiction | South Africa |
| Judge | GC Muller J |
| Judgment Date | 08 April 2022 |
| Citation | 2022 JDR 1094 (LP) |
| Court | Limpopo Division, Polokwane |
| Hearing Date | 05 April 2022 |
| Docket Number | 1990/2022 |
Muller J:
The applicant applied in the urgent court for two orders. The first is that the third respondent (Standard Bank) [1] reinstate an overdraft facility that the applicant
2022 JDR 1094 p2
Muller J
has with the said bank and, secondly, that the operation and/or execution of an court order issued by Makoti AJ on 17 March 2022 not be suspended pending the finalization of an application for leave to appeal launched by the first and second respondent.
To understand the context of the relief claimed it is necessary to explain the background facts leading up to the order of 17 March 2022.
The first and second respondent applied ex parte for the liquidation of the applicant. Makoti AJ granted an order on 8 March 2022 in terms whereof the applicant was provisionally liquidated.
The applicant anticipated the return date and on 17 March 2022 the same Judge discharged the said provisional order and ordered the first and second respondent pay the costs of the application, on the scale as between attorney and client.
The next day the first and second respondent served and filed a notice of application for leave to appeal against the order dated 17 March 2022. In addition, reasons for the orders were requested from the learned acting Judge in terms of a notice. However, on 17 March 2022 the attorney acting on behalf of the first and second respondent forwarded a letter to attorney of the applicant and included the notice of application for leave to appeal, as well as a power of attorney, and the notice for a request for reasons. The attorney also reminded the attorney for the applicant that the orders granted on 17 March 2022 were automatically suspended.
2022 JDR 1094 p3
Muller J
The applicant launched an urgent application for an order that the operation and/or execution of the order of Makoti AJ dated 8 March 2022 be suspended pending the finalization of the appeal against his order of 17 March 2022.
The application was duly dismissed on 25 March 2022 with costs. I understood from counsel that no reasons were furnished by the learned Judge when the order was granted.
The applicant then changed tack. The present application followed a week later. On this occasion the court is requested to order that the order of 17 March 2022 is not suspended by the notice of application for leave to appeal. The bank is joined to the proceedings and an order that an overdraft facility be restored is claimed against the bank. The application is opposed by the first and second respondent. The bank did not oppose the application but was represented at court by Mr Moolman, an attorney, on a watching brief. Mr Moolman informed the court when questioned that the bank will abide by any order that court might make. The court requested him to indicate specifically whether the bank has withdrawn the overdraft facility for any reason other than the provisional liquidation order having being granted. He assured the court that the overdraft was withdrawn for that reason only and again reiterated that the bank will abide any decision the court might make. (I will in due course explain why the court abudanti cautela adopted this course).
The applicant in the founding affidavit stated that the applicant is a client of the bank which has afforded the applicant an overdraft facility in a substantial amount of R6 million. Subsequent to the provisional order having been granted, the banker in charge of the account of the applicant contacted the deponent
2022 JDR 1094 p4
Muller J
and sole member of the applicant. He was informed that the bank was placed in possession of the provisional order.
He stated further that at about 14-15 March 2022 it came to his attention that the bank account was placed on hold and that it was impossible to transact on the account. The day after the provisional order was discharged, he again attempted to transact on the account, without successes. He contacted his personal banker who confirmed that the overdraft facility has been withdrawn. He was informed that the withdrawal of the facility was due to the provisional order having been granted against the applicant. On 22 March 2022 the bank, in an email to the applicant, confirmed that a notice of appeal has been served on the attorneys of the applicant and continued to state:
"We...
To continue reading
Request your trial
-
Mafate Business Entreprise v Malepe and Others
...court for two orders. The first is that the third respondent (Standard Bank) [1] reinstate an overdraft facility that the applicant 2022 JDR 1094 Muller J has with the said bank and, secondly, that the operation and/or execution of an court order issued by Makoti AJ on 17 March 2022 not be ......
-
Mafate Business Entreprise v Malepe and Others
...court for two orders. The first is that the third respondent (Standard Bank) [1] reinstate an overdraft facility that the applicant 2022 JDR 1094 Muller J has with the said bank and, secondly, that the operation and/or execution of an court order issued by Makoti AJ on 17 March 2022 not be ......