Nortiger Logistics SA (Pty) Ltd v Marais NO and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Dunn AJ
• Judgment Date: 14 September 2023
• Citation: 2023 JDR 3448 (GJ)
• Hearing Date: 04 September 2023
• Docket Number: 14866/2022
• Court: Gauteng Local Division, Johannesburg

Dunn AJ:

Introduction and background

1.

The present application is for the joinder of Mrs Adriana Maria van Wyk (Mrs AM van Wyk) as a respondent in the main application brought under the same case number (the joinder application). [1]

2.

In the main application, [2] the joint provisional liquidators of Marboe en Seuns (Pty) Ltd (in liquidation) (Marboe), [3] viz., Mr Hendrie Andries Marais N.O. and Ms Christina Maureen Penderis N.O. (the provisional liquidators), seek, among others, the following relief (the main application): [4]

2.1.

That they (i.e., the provisional liquidators) be granted leave to bring the main application in terms of section 387 (3) of the Companies Act 61 of 1973 (the previous Act);

2.2.

that the sale to the respondent, Nortiger Logistics SA (Pty) Ltd (Nortiger), of a certain crane, namely a Tadano TR-250 EX with registration number RYC 735 GP (the mobile crane), be set aside; and

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Dunn AJ

2.3.

that the Sheriff further be authorised to attach and remove the mobile crane from Nortiger, or wherever else it might be found, and to hand same to the provisional liquidators, and – should that be necessary - to also make use of the South African Police Service to assist him in doing so.

3.

The main application is not presently before me for adjudication. It is only the joinder application that I am currently seized with.

4.

The joinder application was instituted by Nortiger against the provisional liquidators for the joinder of Mrs AM van Wyk – who is the same person, and who is also known, as ‘Ms Adriana Maria Honiball’ [5] - because she sold the mobile crane to it (i.e., Nortiger) for the sum of R650 000.00 on 6 November 2020 in terms of a written sale agreement (the agreement). [6]

5.

In Nortiger’s founding affidavit, its deponent, Mr Frank Peter Nortier (Mr Nortier), states, among others, the following:

5.1.

First, under the caption ‘Purpose of Application’, that it is an application’ . . . for reasons relating to convenience and to avoid multiplicity of actions and costs’; [7]

5.2.

second, that Mrs AM van Wyk is also an interested party to the main application as she is liable to Marboe; [8] and

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Dunn AJ

5.3.

third, that the principal relief essentially sought by the provisional liquidators in the main application is the setting aside of the agreement Nortiger concluded with Mrs AM van Wyk and for which Nortiger paid her the sum of R650 000.00; [9]

5.4.

fourth, what the provisions of Rule 10 (3) of the Uniform Rules of Court (the Rules) provide for, which he then – assumedly on the advice of Nortiger’s legal representatives – proceeds to quote in its entirety; [10]

5.5.

fifth, refers to the provisions of section 82 (8) of the Insolvency Act 24 of 1936 (the Insolvency Act) of which he quotes the portion considered germane to Nortiger’s case; [11] and

5.6.

lastly, contended that (i) Nortiger had acted in ‘good faith in purchasing the mobile crane from Mrs AM van Wyk and that it should enjoy the protection afforded under section 82 (8) of the Insolvency Act; [12] (ii) the question of law van Wyk in the main application is substantially the same because it has always been Nortiger’s case that it had acted bona fide and that the provisional liquidators’ claim for relief actually lies against Mrs AM van Wyk; [13] (iv) Nortiger, as an innocent party, will stand to lose a substantial amount if the provisional liquidators were to be successful with the principal relief sought

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Dunn AJ

in the main application; [14] and (v) that Mrs AM van Wyk should therefore be joined as a party in the main application so that her version would also be before the court. [15]

The provisional liquidators’ opposition to the joinder application

6.

The provisional liquidators oppose the joinder of Mrs AM van Wyk as a respondent in the main claim on the grounds that she neither has a direct and substantial interest in it [16] nor that the question of law and fact (i.e., as to whether Nortiger or Mrs AM van Wyk is, or ultimately would be, liable to Marboe) is substantially the same. [17]

7.

The provisional liquidators further contend that Nortiger’s reliance on Rule 10 (3) of the Rules is misplaced and that, having confined itself to the provisions of this Rule, the joinder application is bound to fail. [18]

8.

The provisional liquidators, moreover, submit that Nortiger’s reliance on section 83 (3) of the Insolvency Act is equally misplaced and also bound to fail, because this section only affords protection to a third-party acquirer of property after the second meeting of creditors was held by a liquidator authorised to sell same. [19]

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Dunn AJ

Has Nortiger made out a case for the joinder of Mrs AM van Wyk?

Rule 10 (3) of the Rules:

9.

It is convenient first to deal with the provisional liquidators’ submission that Nortiger’s application for Mrs AM van Wyk’s joinder as a respondent in the main application, is confined solely to the provisions of Rule 10 (3) of the Rules.

10.

If that were to have been the case, the joinder application was bound to fail because Rule 10 (3) cannot be used at the instance of a respondent (i.e., such as Nortiger) to join another respondent (i.e., Mr AM van Wyk in this instance). [20]

11.

However, I am not convinced - although Rule 10 (3) is prominently quoted in joinder application – that Nortiger’s case is necessarily confined to it. Admittedly the joinder application is neither a model of elegance nor clarity, but does it contain sufficient rudimentary averments that might otherwise rescue it from failure? On a benevolent reading of the joinder application, as a whole, I think it does, but, perhaps, then also only just.

12.

Elsewhere I pointed out that Mr Nortier states that the purpose of the joinder application is for reasons relating to convenience and to avoid multiplicity of actions and costs [21] and that Mrs AM van Wyk is also an interested party to the main application. [22] In this respect it is certainly distinguishable from Notshe’s case [23] where the header to the joinder application unambiguously referred to it having been

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brought in terms of Rule 10(3) and the founding affidavit itself specifically relying on it.

Reasons relating to convenience and to avoid multiplicity of actions and costs:

13.

Leaving aside for the moment the obligatory joinder of a...