Naidoo v Naidoo

• Jurisdiction: South Africa
• Judge: Chili AJ
• Judgment Date: 03 March 2014
• Docket Number: 1722/2013
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 03 February 2014
• Citation: 2014 JDR 0392 (KZD)

Chili, AJ

[1]

The relief sought by the applicant is divided into two parts. In the first part of the relief the applicant seeks confirmation of the rule nisi granted by the court ex parte on 21 February 2013 in the following terms:

'(1) (b) That pending the final outcome of the action referred to in this Order, that the Respondent be and is hereby interdicted and restrained from:

(i)

disposing of any of the members' interests and loan accounts in and to the Close Corporations, Odora Trading CC, Multibrand Logistics CC, and Acrita CC ("the corporations"):

(ii)

disposing of any of the shares and loan accounts RGN Farms (Pty) Ltd and Rockhill Investments (Pty) Ltd ("the companies")

(iii)

Disposing of the following immovable properties:

1.

situated at 53/54 Wick Street, Verulam;

2.

Redcliffe Lot 12, Redcliffe;

3.

Redcliffe Lot 13, Redcliffe; ("the immovable properties")

(iv)

disposing of any of the underlying assets, whether immovable or movable (including incorporeal assets) and/ or monies and/ or rights in and to property of whatever description of the corporations and companies, other than in the normal course of business;

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Chili AJ

(v)

hypothecating any of the immovable properties or any of the underlying assets and/ or properties of the corporations and companies;

(vi)

drawing from one or more of the corporations and companies in aggregate am amount in excess of R 50 000 in respect of his personal living expenses;'

2.

In the second part of the relief, the applicant seeks an order in the following terms:

'(c)

that pending the final outcome of the said action the Respondent is directed to do everything necessary to cause one or more of the corporations and companies to pay to the Applicant, as his drawings for personal living expenses:

(i)

the sum of R 50 000 per month, commencing immediately;

(ii)

an immediate contribution to the Applicant's legal expenses in the amount of R1 million in the present proceedings and the said action alternatively in such amount for legal expenses as may be determined by the Registrar of this Court, on the basis that the Respondent shall be entitled to drawings in an equivalent amount in respect of his own legal expenses therein:

(d)

pending the final outcome of the said action the Respondent is further directed to:

(i)

do everything necessary to cause the companies and corporations to:

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Chili AJ

1.

comply with their statuary obligations to maintain proper books of account and produce financial statements and monthly management accounts and to furnish a copy of same to the Applicant;

2.

pay all rates and municipal charges for utility services in respect of the immovable properties and any immovable properties owned by the companies or corporations;

(ii)

account to the Applicant on a monthly basis in respect of all drawings in respect of the companies and close corporations and all income received and expenses paid in respect of immovable properties;

(iii)

deliver to the Applicant the current license discs in respect of the following vehicles:

1.

Toyota hi-lux light delivery registration number NJ60;

2.

Toyota hi-lux light delivery vehicle registration number NJ507;

3.

Mercedes Benz Truck registration number NJ24095;

4.

Mercedes Benz motor car registration number RGN1ZN;

5.

VW Microbus Caravelle registration number NUR175;

(iv)

deliver to the Applicant the Applicant's MTN sim card for cell phone number 083 7999 112;

(e)

that the Applicant is directed to institute an action for final relief within a period of 30 days of the confirmation of the rule nisi.

(f)

that the costs of this application shall be reserved for decision in the said action;

(g)

Further and/or alternative relief.

2.

That the Orders set out in paragraphs (1) (a) and (b) hereof shall operate as interim relief pending the return day of the rule nisi.'

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Chili AJ

The applicant's version of events leading to the present application

[2]

The applicant is the respondent's elder brother. He alleges very briefly in his founding affidavit that during November 2000, he was sequestrated on the basis of a 'friendly request' for sequestration. He arranged with his brother that all his assets were to be transferred into the respondent's name on the understanding that once he is rehabilitated, the respondent would return the assets back to him. He was eventually rehabilitated on 1 November 2011.

[3]

Following on his automatic rehabilitation, he then set up to reclaim his assets from the respondent as arranged. He had meetings with the respondent and eventually they agreed verbally on how the assets were to be divided. They engaged services of an attorney Rivandra Maniklall who subsequently reduced the verbal agreement into writing. The document purporting to be the said agreement is attached to the applicant's founding affidavit (division of assets agreement). All that was left therefore, according to the applicant, was for the parties to append their signatures to the 'division of assets agreement'.

The Respondent's Version:

[4]

The respondent denies having acted as the applicant's nominee in respect of the assets mentioned in the relief sought. He alleges that he is the lawful owner of these assets and that the applicant has no claim whatsoever over them. In his answering affidavit he gave an account of how he obtained the assets and, where necessary, filed documents in support of his claim. He further denies having made an undertaking to sign a division of assets agreement. It was submitted on behalf of the applicant that there exists a clear dispute with regards to the ownership of assets, which can only be decided by the trial court, Following on that submission, it was argued that unless the relief sought by the applicant were granted, the applicant, who is already suffering financial prejudice at the hands of the respondent, would suffer irreparable harm.

Analysis

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Chili AJ

[5]

In light of the view I take of this matter I propose dealing firstly with the criticism leveled against the applicant relating to either omitting or...