TODAY'S ALERTS

Facts and issue: This is an application brought for the review of a decision by the Gauteng Provincial Liquor Board in which an application for the grant of a grocers' wine license the applicant, was refused. The applicant has set out a number of grounds on which the review is sought, primarily relying on the grounds in section 6(2) of PAJA 3 of 2000. The applicants are the owners of and operate an Okay Bazaar’s Mini Market that are located on the premises of a petroleum filling station. Despite what the respondents say about the location, from the papers filed, the Mini Market is located in a separate building, but on the same premises.

Discussion: Apart from the objections submitted by the respondents, the applicant’ members and the premise’s statutory compliance, qualified the applicant to be granted a Grocers’ Wine License. The area where the applicant’s OK Mini Market is located already has a business character. The OK Mini Market is located next to a service station and this service station services the various residential developments in the area. Directly behind the filling station, these residential developments are located. The residential areas include a church and a school still to be registered. The applicant submits that the proximity of the objector’s liquor store is irrelevant, as it is not a similar business and the applicant’s supermarket is much more convenient for clients to buy their groceries and wine at one location, that to visit two separate shops. The Board was persuaded that the grant of a Grocers’ Wine License would not be in the public interest, because the approving of the Liquor License will create opportunities for motorists or road users to buy liquor at a filling station, which will have adverse consequences. It would therefore appear that the interests of motorists in general, as well as those persons living in close proximity to the filling station, was in effect elevated to the public interest.

Findings: While motorists in general, as well as the public living near to the filling station, are part of those whose interest can be said to make up the public interest, the Board erred in basing its decision in effect on only their interests. Although the objectors refer to the close proximity of similar liquor outlets, they are not in fact similar. On the contrary, the liquor outlets differ in nature from that of the applicant. The locality of the church in relation to the applicant’s suggested outlet, will not cause prejudice to the church or the residents of the residential area. The objector owner of this liquor store himself does not view this as a negative influence. The Board had access to factors which have been dealt with satisfactorily by the applicant in his response to the objections. It however was not indicated in the ruling of the Board that those factors were indeed considered.

Order: The decision of the first respondent to refuse the application of the applicant for a Grocers’ Wine License is reviewed and set aside. The first respondent is directed to grant the application of the applicant for a Grocers’ Wine License and to issue a Certificate subject to the general conditions normally granted and imposed by the first respondent and in particular to apply the relevant conditions.

Facts and issue: The applicant is a creditor of Bermine, a company presently in business rescue. The first respondent Barry Urban is its business rescue practitioner (BRP). The applicant states that Urban has taken two years to implement the current business plan which has proved a failure. It is clear from this announcement that the company is no longer trading, has moved from its premises and that Urban is now in a process of winding down the company. Urban apart from defending his actions on the merits also raises several in limine points. The two most pressed in argument were that the application was not urgent and the second that the applicant had failed to get leave of the court in terms of section 133(1) of the Companies Act 71 of 2008, the latter being the section that deals with a moratorium on claims against the company.

Discussion: It is common cause that the applicant has not got the permission of Urban to bring this action nor has it sought the leave of the court. The issue is whether such permission was needed. The applicant argues that it is not enforcing an action against the company nor seeking relief against any property belonging to the company; its relief is against Urban as the BRP. What is common cause is that the company is no longer trading and that in Urban’s own words in the October announcement, is in the process of being wound down. For this reason, the court assumes in the applicant’s favour that the relief it seeks does not implicate the moratorium. If that is so, then prior consent in terms of section 133(1) from either the BRP or the court was not required. Hence the point in limine must fail.

Findings: The BRP states that the immediate liquidation of the company would result in creditors receiving a zero dividend. If the business rescue process continues creditors will stand to get 15 cents in the rand. The BRP makes no claim to be nursing the company back to health. Rather he makes it clear that he relies on the alternative rationale for business rescue provided for in section 128(1)(b)(iii) of the Act, that if it is not possible for the company to continue in existence on a solvent basis, the business rescue nevertheless results in a better return for creditors or shareholders than would result from the immediate liquidation of the company. Nor is there sufficient evidence to suggest that he is selling assets at below market values. Clearly winding down suggests expedition is required and hence the sales are not being concluded under normal market circumstances. The applicant has not established that Urban as the BRP is acting unlawfully. Accordingly, the applicant has not been able to make out a prima facie right for its relief.

Order: The application is dismissed with costs.

Facts and issue: This is an application for summary judgment, which has its genesis in the liquidation of two companies, Octox and Imagina, in the Western Cape High Court. The applicants are the liquidators of Octox and Imagina. Alleging that the defendant was the recipient of monies from a “ponzi-type investment scheme”, more commonly known as a pyramid scheme, the liquidators of the companies issued summons against the defendant claiming an order setting aside the dispositions in terms of section 26 read with section 32 of the Insolvency Act 24 of 1936 and payment of the amount of R398,146.20.

Discussion: The fact that the last payment to the defendant occurred during 2019 is irrelevant. The cause of action which the plaintiffs rely on is based on section 26, read with section 32, of the Insolvency Act, which cause of action only arose on liquidation and, prescription does not commence running until the liquidators’ appointment was made final. The liquidators of Octox received their final appointment on 3 June 2021. Summons was served on 26 April 2024, which is within the three-year period provided for in section 11(f) of the Prescription Act. Accordingly, the claim against the defendant had not prescribed on the date upon which summons was served. In order to succeed with a claim in accordance with section 26 of the Insolvency Act the plaintiffs must prove on a balance of probabilities that the disposition was made not for value, and if made more than two years prior to the liquidation it is proved that immediately thereafter the liabilities exceeded the assets; or if within two years of the liquidation the beneficiary of the disposition is unable to prove that, immediately after the disposition, the assets exceeded the liabilities.

Findings: The particulars of claim states that of the R636,146.20 paid to the defendant, R466,633.40 was received more than two years prior to the liquidation; and R171,482.80 was received within two years of the liquidation. The amount claimed, namely R397,146.20, is arrived at by subtracting the payments to the defendant from his original “investment” of R240,000. On a careful analysis of the defendant’s case, he does not place anything in dispute or, at least, not seriously so. His defences are either technical or bad in law. The common cause facts are that the defendant received the sum of R398,146.20 in excess of the amount he invested in the illegal pyramid scheme. The defendant does not have a bona fide defence to the plaintiff’s claim.

Order: The dispositions to the defendant are set aside. The defendant is ordered to pay the first and second plaintiffs the amount of R398,146.20.

Facts and issue: The applicant seeks an order interdicting the respondent from proceeding with an application for its liquidation in terms of section 345 of the Companies Act 71 of 2008, pending the final determination of an action which the applicant has instituted against the respondent for damages. The respondent has opposed the application both on the grounds of urgency and the merits. The respondent was in possession of 3714 batteries at a warehouse. These were goods that the applicant had imported on behalf of a third party and which it had contracted the respondent to clear. 792 of the batteries were stolen from the respondent’s warehouse. Each battery it alleges cost $1000 to replace. Its total loss was R15,170,606.

Discussion: The applicant holds the respondent liable for the above amount both in contract and in delict. The respondent is claiming an amount of R13,503,916 from the applicant for its freight forwarding services which remains unpaid. The applicant does not dispute this claim. Rather it claims that its damages claim, which exceeds this amount, means that it does not owe the respondent but instead is owed by it the difference between the two amounts. Given the negotiations it would have been premature for the applicant to have come to court earlier. Nor did anything immediate happen after the July 2024 letter. The respondent has not acted with alacrity and the applicant could reasonably have considered it was not planning to go ahead yet with a winding up application. There is no suggestion that the respondent has been prejudiced by the time periods. The matter is urgent. If the applicant is correct its claim for damages exceeds the amount the respondent is claiming from it. If that is the case, there are two implications. First that the applicant has at least a bona fide defence to the claim. Second and the more signification implication is that the respondent has no basis to rely on section 345 given that it would not have a claim in excess of R100, a jurisdictional fact for the reliance on that section.

Findings: The applicant was not dilatory in asserting its claim, it started negotiations as soon as theft was known, it has attached its particulars of claim for the damages claim and it is trading and has demonstrated future prospects which are significant. Nor is the claim a classically illiquid claim. At worst applying these factors to the applicant it may be criticised for not establishing that it is solvent. But it has put up evidence, at worst for it, it is just not verifiable, but this must be balanced against its future prospects in the market which are strong. Moreover, there is another factor to take into account, its counter claim if established would exceed the respondent’s claim and hence result in a net credit to the applicant. On this basis the applicant has established a genuine or bona fide claim. The question of the irreparable damage to the applicant because of the way an application under section 345 can be interpreted in practice by the banking sector, satisfies the requirement of irreparable harm. The applicant has no other remedy.

Order: The respondent is interdicted and restrained from instituting proceedings for the winding up of the applicant pending the final determination of the dispute or disputes between the parties.

Facts and issue: Ms D was convicted of murdering her twenty-eight-month-old son. The prescribed minimum sentence is life imprisonment. The court is called to determine an appropriate sentence. Ms D was extremely upset after a family argument which traumatised her. She was sitting in the driver’s seat of her car in the yard of the family home crying. The child entered the car on the passenger side and started playing with the radio and dancing. She put her hands around his neck and squeezed. She did not stop even though she felt him struggle. Then she realised he was not moving. She tried to wake him up and he would not wake. She tried unsuccessfully to call emergency services. She put him in the driver’s seat, left the property, got to the police station and confessed that she had killed her child.

Discussion: The state proved no previous convictions and indicated that it was seeking the prescribed minimum sentence. Mr N (radiation therapist), the father of the child, says he and his family have been living in a nightmare since his son’s death. He feels tremendous heartbreak and an unfillable void. His mental health has been badly affected. His brain is numb, he has insomnia, is angry, has symptoms of depression and has decreased self-esteem. He has been undergoing therapy to try and deal with the trauma and the huge effect it has had on his life. The trauma has also affected his ability to do his work, especially when there are paediatric patients. There has been a great financial impact on the family too. Ms D is intelligent, educated and articulate. She has had various jobs and had enrolled for a B.Com Law degree at Boston City Campus, just before she killed her child.

Findings: Ms Hearne concluded that Ms D has symptoms of schizoaffective disorder, as well as Generalised Anxiety Disorder and Post Traumatic Stress Disorder. She identified profound insecurity and mistrust. She presents in a manner consistent with narcissistic personality disorder. Ms Hearne suggested that the murder of the child was probably an impulsive act in highly charged emotional circumstances, and that Ms D needs psychotherapy and psychiatric help. However, she knew what she was doing and at the time she did it, in that moment, intended to do it. She may have been detached from her knowledge of the consequences. There are in fact substantial and compelling circumstances to deviate from the prescribed minimum sentence. However, this is not a case in which Ms D is going to get away with it. The interests of society and the nature of the offence both militate towards a substantial sentence for Ms D.

Order: Ms D is sentenced to 12 years direct imprisonment.

Facts and issue: The applicants approached the court on an urgent basis seeking an order interdicting and restraining the respondents from evicting persons from and demolishing any informal structure on the land in question. The urgent application, opposed by the second and third respondents, was removed from the roll by agreement with the costs reserved. The present matter concerns the enrolment of the application in the normal course, save that the respondents (Ekurhuleni) persist with the objection that the matter was not urgent. And in respect of the present application, contend that, the relief sought by the applicants is confusing.

Discussion: The applicants contend that Ekurhuleni demolished their structures, seized or confiscated their materials, and effected their eviction from Putfontein, without a court order. Ekurhuleni contends on the other hand that it prevented unlawful land invasion, which didn’t require them to obtain a court order, to effect such preventative measures. Ekurhuleni does not state what measures it took, or what constitutes land invasions, as opposed to unlawful eviction, nor does it expressly deny that it effected the demolitions as claimed by the applicants. The court accepts the applicants’ version, that Ekurhuleni demolished their structures, seized or confiscated their materials, and effected their eviction from Putfontein, without a court order. This much is conceded by Ekurhuleni, except that it contends that it did so in order to prevent unlawful land invasion, which (according to it) didn’t require them to obtain a court order, to effect such preventative measures. One would have expected Ekurhuleni to chronicle what the preventative measures it undertook, to thwart (what it refers to as) unlawful land invasions.

Findings: If a municipality does not act immediately (instanter) before the stage of control (by the homeless persons) with the required intention is achieved, then it cannot rely on counter-spoliation because it cannot take the law into its own hands. In those circumstances, it has to seek relief from the court. The failure on the part of Ekurhuleni to prove that it acted instanter, leads court to accept the applicants’ version, that their evictions were effected after their structures were demolished. The fact that structures were raised, seems to indicate that the occupiers demonstrated an intention, of taking control of the land, to derive some benefit from the possession, which satisfies the animus requirement. The erection of structures demonstrates, in the clearest terms, an intention to occupy. Where this has been achieved, a municipality cannot act instanter to remedy its rights, it must approach the courts for relief. The applicants proved, that they have been spoliated, which entitles them to restoration. They are entitled to have their structures replaced.

Order: The respondents are interdicted and restrained from evicting the applicants from, and demolishing any informal dwelling, or permanent dwelling or shelter, unless a court order to that effect is obtained. The respondents are ordered within 21 days of the order, jointly and severally, to reconstruct the structures of the applicants which have been demolished and shall replace the materials belonging to the applicants that have been destroyed. The structures to be erected must be capable of being dismantled.

Facts and issue: The applicant, the Minister of Police, brought an urgent application seeking an order staying the enforcement and execution of an arbitration award issued against the SAPS, in favour of Mr Everton, the second respondent. The stay is pending the outcome of a review application that SAPS launched, challenging the award. In terms of the award, the commissioner found that SAPS had committed an unfair labour practice against Everton and ordered that he be compensated.

Discussion: The court is satisfied that the applicant acted with haste after the second attempt by the Sheriff to remove the attached vehicles. Unless the court hears this matter as urgent, the Sheriff may return to Mount Road Police Station and remove the attached goods. The removal of the attached vehicles is imminent, and the applicant does not have to wait until after the removal of the vehicles. The matter is urgent. The applicant contends that it is entitled to the relief it seeks given sections 145(7) and (8) of the Labour Relations Act 66 of 1995, which provide for the automatic stay of an award where a security bond is filed with the court. The applicant’s contention is correct. Once the State Attorney filed a bond of security covering the compensation awarded to Everton, the operation of the award was automatically suspended without having to do anything else. By filing the security bond, SAPS earned the temporary right not to comply with the award and not face the consequences until the review application is determined.

Findings: The finding that the security bond filed complies with the provisions of section 145(7) and (8) of the LRA would have been dispositive of the matter but Solidarity has raised issues with the status of the review application. Solidarity’s case was that there is no pending review application before the court, and therefore, the urgent application to stay can be disposed of on that basis alone. The review application was indeed filed later, but there is a pending condonation application for the late filing, which will be determined when the review application is heard. Things would have been different if the review application had been filed late and no condonation application had been filed.  The review application is the underlying causa, which is sufficient to grant the stay. The applicant did not have to address its prospects of success in the review. The applicant was forced to approach the court to vindicate its rights, which have already been vindicated by the LRA and at significant cost to the taxpayer. It was left with no choice.

Order: The enforcement and execution of the arbitration award are stayed pending the finalisation of the review application.

Facts and issue: To get to the applicant’s premises, it is necessary to drive through a property known as Mayfield Farm, which property is either owned by the respondent or, at the very least, over which it has jurisdiction and in respect of which it exercises direct control. On a certain section of Mayfield Farm an informal settlement sprung up, through which informal settlement the applicant’s trucks, not to mention its employees, must travel daily. This informal settlement amounted to the unlawful occupation of the land in question. The applicant seeks an order directing the respondents to remove any persons to be found on the demarcated area.

Discussion: When the matter was called the court was advised by counsel for the respondents that they (respondents) intend to bring an application for a postponement and time was required in which to file the necessary application. It was submitted that the application had been necessitated by the applicant’s unreasonable refusal to agree to a postponement of the matter, which request was accompanied by a tender of the wasted costs. The postponement was necessitated by the respondents’ own dilatoriness. They have had a year in which to deal with the matter properly, but its officials appear to have sat on their hands and done nothing other than hold meeting after meeting. The applicant submitted that the application for a postponement was dishonourable and mala fide and was launched solely for the purposes of delay. Quite apart from the extreme lateness of the application, the grounds upon which the postponement is based are paper thin and contrived. The application for a postponement is an abuse of the process of court and is without merit.

Findings: The applicant does not seek to evict the unlawful occupiers. It seeks to compel the respondents to do so. If the applicant should have joined the National Government as a party to the proceedings, it was incumbent on the respondents to make out a case on affidavit. In terms of the challenge that no case has been made out against the respondents and citing them amounts to misjoinder, in the application for postponement the respondents sought time for its council to pass resolutions to oppose the application and bring a self-review to set aside its previous actions.  The logic of this “legal” challenge is therefore not understood. Regarding the point that the application does not meet the requirements of a mandamus, the applicant is armed with a court order. It seeks to enforce it. There is no merit in this point. The applicant’s case is, essentially, to compel the respondents to comply with their legal obligations, as reinforced by the MOA, which was made an order of court. There is no opposition to the application. The applicant has made out a case for the relief claimed.

Order: The respondents are directed to remove any persons to be found on the demarcated area in terms of all applicable legislation within 90 days of the granting of the order.

Facts and issue: This is an application for reconsideration in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013. The central issue for determination is whether damages in the amount of R30,000 awarded to Mr Masiteng, the applicant, arising from his unlawful arrest and detention, are fair and reasonable having regard to the circumstances of the case. The applicant launched an appeal in the High Court on the basis that the amount awarded was shockingly inappropriate for an unlawful detention of a period of 42 hours. The High Court found no evidence to suggest that the Regional Court failed to exercise its discretion judicially and dismissed the appeal with costs.

Discussion: The assessment of the amount of damages to award to a plaintiff who was unlawfully arrested and detained, is not a mechanical exercise that has regard only to the number of days that a plaintiff spent in detention. The duration of the detention is not the only factor that a court must consider in determining what would be a fair and reasonable compensation to award. The applicant’s leave to appeal in this court is largely predicated on the same grounds as those in the High Court, that the court erred in the assessment and evaluation of the quantum in respect of the unlawful arrest and detention. The High Court correctly reiterated that there was no evidence to suggest that in awarding the damages to the applicant, the regional court failed to exercise its discretion judicially. The criticism that the High Court misdirected itself in finding that the award was appropriate based on the applicant’s status and social standing cannot be sustained. The question now is, are there any exceptional circumstances in this case that would justify leave to appeal being granted.

Findings: The applicant has to satisfy the court that the circumstances are truly exceptional to hear this matter again after the application for leave to appeal was dismissed and the petition to this court was unsuccessful. The applicant failed to demonstrate that exceptional circumstances exist for leave to appeal to be granted. The applicant therefore did not meet the stringent test required. An application that merely rehearses the arguments that have already been made, considered and rejected will not succeed, unless it is strongly arguable that justice will be denied unless the possibility of an appeal can be pursued. Refusing leave to appeal will not result in a denial of justice.

Order: The application for leave to appeal is dismissed with costs.

Facts and issue: This is the extended return day of a provisional restraint order and associated rule nisi made in terms of s 26(3)(a) of the Prevention of Organised Crime Act 121 of 1998. The defendants are the accused persons in a prosecution which has been instituted by the State. The trial has not yet commenced. It is the applicant’s case that a successful prosecution will result in a confiscation order or orders. The defendants launched an application to vary the provisions of the provisional order.

Discussion: In their applications the principal relief sought is the amendment of the provisional order so that it limits the amount or value to be restrained to R47 million. In both applications relief is also sought releasing certain respondents from the operation of the provisional order altogether. Certain of the Madhoe parties launched similar variation applications directed also at the provisional order. They sought the discharge in its entirety of the provisional order insofar as it relates to the first and third defendants and the first and third respondents.  The applicant has objected to these variation applications upon the basis that there is no provision in the Act for the amendment of a provisional order. The objection was well taken. In terms of s 26(10)(a) of the Act, the court which has made a “restraint order” may on application by a person affected by the order vary it or rescind it if it is satisfied on both of two requirements. The scope for variation of a restraint order under s 26(10)(a) is therefore restricted.

Findings: None of the defendants has achieved any success in opposing the confirmation of the provisional restraint order in its original form. The applicant complains that the allegations made in the founding affidavits in the variation applications do not speak directly to any of the allegations made in the founding papers which generated the provisional restraint order. There is no reference to any of the paragraphs in the founding papers. It was not therefore possible for the applicant to discern the precise scope of the challenge to the allegations made in the original founding papers. The product of the approach followed by the various applicants for variation orders is properly described as a mess. The variation applications were not competent and must be dismissed.

Order: The applications to vary the provisional restraint order are dismissed with costs.