Arendse and Others v Van der Merwe NO and Another (2015/40324) [2016] ZAGPJHC 292; 2016 (6) SA 490 (GJ); [2016] 4 All SA 48 (GJ) (8 July 2016)

Arendse and Others v Van der Merwe NO and Another (2015/40324) [2016] ZAGPJHC 292; 2016 (6) SA 490 (GJ); [2016] 4 All SA 48 (GJ) (8 July 2016)

The court held that the applicants had established a prima facie case against one or more of EF, EHL, or ABIL for payment under the PARIS scheme. Although the PARIS did not expressly identify the liable entity, the contextual evidence and approval by ABIL's remuneration committee created a triable issue. The applicants were justified in seeking leave to institute proceedings against ABIL, as only a court could grant executable relief and the business rescue practitioners of EF and EHL had consented to litigation, subject to ABIL's joinder. The court rejected the argument that a higher standard of proof or 'exceptional circumstances' was required for leave under s 133(1)(b), finding that...

Citation
[2016] ZAGPJHC 292
Parties
Applicant: Sedick Arendse; Applicant: Geoffrey Obed Mabote; Applicant: Zafar Ahmed Mahomed; Applicant: Charles Hubert Mylburgh; Applicant: Robert Alexander Dodds; Applicant: Ian Child; Applicant: Linda Sithole; Applicant: Susan Mawer; Applicant: Johan Liebenberg; Applicant: Andreas Avrabos; Applicant: Robert Bruce Griffith Sinclair; Applicant: Armando Flores Fernandes Moca; Applicant: Maureen Isobel Beeby Hughes; Applicant: Marc De Villiers; Applicant: Shaun Prithivirajh; Respondent: Liebenberg Dawid Ryk Van der Merwe NO; Respondent: John Francis Evans NO
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 July 2016
Case Number
2015/40324
Procedural Posture
Urgent Application / Application for Leave to Commence Legal Proceedings Against a Company Formerly Under Business Rescue; Costs Determination
Outcome
Application for leave to institute proceedings against ABIL is moot; costs awarded against applicants.
Judges
Boruchowitz
Legal Topics
Business Rescue, Leave to Sue, Joinder of Defendants, Prima Facie Case, Contractual Interpretation
Commercial and Corporate Civil Procedure Business Rescue Leave to Sue Joinder of Defendants Prima Facie Case Contractual Interpretation

Case Brief

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Parties

Sedick Arendse

Applicant

Geoffrey Obed Mabote

Applicant

Zafar Ahmed Mahomed

Applicant

Charles Hubert Mylburgh

Applicant

Robert Alexander Dodds

Applicant

Ian Child

Applicant

Linda Sithole

Applicant

Susan Mawer

Applicant

Johan Liebenberg

Applicant

Andreas Avrabos

Applicant

Robert Bruce Griffith Sinclair

Applicant

Armando Flores Fernandes Moca

Applicant

Maureen Isobel Beeby Hughes

Applicant

Marc De Villiers

Applicant

Shaun Prithivirajh

Applicant

Liebenberg Dawid Ryk Van der Merwe NO

Respondent

John Francis Evans NO

Respondent

Procedural Posture

Urgent Application / Application for Leave to Commence Legal Proceedings Against a Company Formerly Under Business Rescue; Costs Determination

Legal Issues

  1. 1 Whether the applicants have established a prima facie case for leave to institute legal proceedings against African Bank Investments Limited (ABIL) under section 133(1)(b) of the Companies Act.
  2. 2 Whether the applicants are entitled to join ABIL as a co-defendant given uncertainty as to which entity is liable under the PARIS scheme.
  3. 3 What is the appropriate costs order in light of the mootness of the relief sought.

Ratio Decidendi

The court held that the applicants had established a prima facie case against one or more of EF, EHL, or ABIL for payment under the PARIS scheme. Although the PARIS did not expressly identify the liable entity, the contextual evidence and approval by ABIL's remuneration committee created a triable issue. The applicants were justified in seeking leave to institute proceedings against ABIL, as only a court could grant executable relief and the business rescue practitioners of EF and EHL had consented to litigation, subject to ABIL's joinder. The court rejected the argument that a higher standard of proof or 'exceptional circumstances' was required for leave under s 133(1)(b), finding that...

Court Disposition

Application for leave to institute proceedings against ABIL is moot; costs awarded against applicants.

Orders

  • The costs of the application are to be paid by the applicants jointly and severally, the one paying, the others to be absolved.
  • Such costs are to include the costs incurred by the respondents in opposing the application.