African Oxygen Ltd v M & H Cohen CC and Others, In Re; M & H Cohen CC v African Oxygen Ltd (42659/2012, 54541/2012) [2014] ZAGPPHC 413 (28 May 2014)

African Oxygen Ltd v M & H Cohen CC and Others, In Re; M & H Cohen CC v African Oxygen Ltd (42659/2012, 54541/2012) [2014] ZAGPPHC 413 (28 May 2014)

The court found that although the main application and the 2009 application involved the same parties, subject matter, and relief, the defence of lis alibi pendens is discretionary. Given the new facts and the impracticality of reviving the 2009 application, the court exercised its discretion to allow the current application to proceed. Cohen was held personally liable as a joint wrongdoer with M & H Cohen CC due to his direct involvement in the unlawful activities, constituting a gross abuse of the corporate form. The technical defect in Afrox's supplementary affidavit was found to be non-fatal, as substantial compliance with regulation 3.1 was established. Bell Crescent was not found to...

Citation
[2014] ZAGPPHC 413
Parties
Applicant: African Oxygen Ltd; Respondent: M & H Cohen CC; Respondent: Maxine Gerhard Cohen; Respondent: Bell Crescent Properties CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 May 2014
Case Number
42659/2012, 54541/2012
Procedural Posture
Civil Application / Final Judgment After Opposed Ex Parte Applications
Outcome
Both the main and counter applications succeed in part; operative orders granted for the return of cylinders under the cylinder exchange practice. Each party to pay its own costs.
Judges
Kubushi
Legal Topics
Cylinder Exchange Practice, Interdict, Joinder of Parties, Lis Alibi Pendens, Piercing Corporate Veil
Commercial and Corporate Civil Procedure Cylinder Exchange Practice Interdict Joinder of Parties Lis Alibi Pendens Piercing Corporate Veil

Case Brief

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Parties

African Oxygen Ltd

Applicant

M & H Cohen CC

Respondent

Maxine Gerhard Cohen

Respondent

Bell Crescent Properties CC

Respondent

Procedural Posture

Civil Application / Final Judgment After Opposed Ex Parte Applications

Legal Issues

  1. 1 Whether the defence of lis alibi pendens precludes Afrox from obtaining relief against the respondents.
  2. 2 Whether Cohen should be held personally liable as a joint wrongdoer with M & H Cohen CC.
  3. 3 Whether the supplementary founding affidavit complies with regulation 3.1 and is admissible.

Ratio Decidendi

The court found that although the main application and the 2009 application involved the same parties, subject matter, and relief, the defence of lis alibi pendens is discretionary. Given the new facts and the impracticality of reviving the 2009 application, the court exercised its discretion to allow the current application to proceed. Cohen was held personally liable as a joint wrongdoer with M & H Cohen CC due to his direct involvement in the unlawful activities, constituting a gross abuse of the corporate form. The technical defect in Afrox's supplementary affidavit was found to be non-fatal, as substantial compliance with regulation 3.1 was established. Bell Crescent was not found to...

Court Disposition

Both the main and counter applications succeed in part; operative orders granted for the return of cylinders under the cylinder exchange practice. Each party to pay its own costs.

Orders

  • The cylinders inventoried and attached at the Bell Crescent property as belonging to African Oxygen Limited must be returned to it in terms of the cylinder exchange practice and/or against payment of a deposit or the value of LPG in each cylinder.
  • M & H Cohen CC and its representatives are interdicted and restrained from receiving, possessing, filling, or distributing any cylinders belonging to African Oxygen Limited bearing its brand names.