Benjamin and Another v Govender and Others (2021/22981) [2021] ZAGPJHC 170 (17 May 2021)

Benjamin and Another v Govender and Others (2021/22981) [2021] ZAGPJHC 170 (17 May 2021)

The court found that the applicants failed to establish a proper basis for the variation or amplification of the Victor J order, either under rule 42 or the common law. The application was brought with undue haste and lacked the requisite urgency, resulting in procedural irregularities. The applicants did not make out a case for contempt, as the respondents acted on legal advice and the interpretation of the order was disputed. The relief sought was vague and amounted to an impermissible expansion of the original order. The application was further undermined by the pending application for leave to appeal, which suspended the operation of the Victor J order. The court concluded that the...

Citation
[2021] ZAGPJHC 170
Parties
Applicant: Cheryl Ann Benjamin (nee Govender); Applicant: Ryan Mark Rabey; Respondent: Colin Premlan Govender; Respondent: Colin Premlan Govender NO (in his capacity as Trustee of the Abishai Trust, No 4270/2012); Respondent: Nicole Odell Balkaran NO (in her capacity as Trustee); Respondent: Spiderwebb Altitude Systems (Pty) Ltd; Respondent: Master of the High Court; Respondent: Companies and Intellectual Property Commission; Respondent: The Standard Bank of South Africa Limited; Respondent: Abishai Capital (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 May 2021
Case Number
2021/22981
Procedural Posture
Urgent Application / Application for Variation and Enforcement of Previous Urgent Order; Counter Application for Conditional Variation
Outcome
Application dismissed with costs on an attorney and client scale; condonation granted for late delivery of respondents' affidavits.
Judges
E F Dippenaar
Legal Topics
Variation of Court Order, Contempt of Court, Fiduciary Duties, Urgent Interdict, Abuse of Process
Civil Procedure Commercial and Corporate Variation of Court Order Contempt of Court Fiduciary Duties Urgent Interdict Abuse of Process

Case Brief

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Parties

Cheryl Ann Benjamin (nee Govender)

Applicant

Ryan Mark Rabey

Applicant

Colin Premlan Govender

Respondent

Colin Premlan Govender NO (in his capacity as Trustee of the Abishai Trust, No 4270/2012)

Respondent

Nicole Odell Balkaran NO (in her capacity as Trustee)

Respondent

Spiderwebb Altitude Systems (Pty) Ltd

Respondent

Master of the High Court

Respondent

Companies and Intellectual Property Commission

Respondent

The Standard Bank of South Africa Limited

Respondent

Abishai Capital (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Variation and Enforcement of Previous Urgent Order; Counter Application for Conditional Variation

Legal Issues

  1. 1 Whether the applicants are entitled to a variation or amplification of the Victor J order under rule 42 or the common law.
  2. 2 Whether the respondents are in contempt of the Victor J order.
  3. 3 Whether the application is urgent and constitutes an abuse of process.

Ratio Decidendi

The court found that the applicants failed to establish a proper basis for the variation or amplification of the Victor J order, either under rule 42 or the common law. The application was brought with undue haste and lacked the requisite urgency, resulting in procedural irregularities. The applicants did not make out a case for contempt, as the respondents acted on legal advice and the interpretation of the order was disputed. The relief sought was vague and amounted to an impermissible expansion of the original order. The application was further undermined by the pending application for leave to appeal, which suspended the operation of the Victor J order. The court concluded that the...

Court Disposition

Application dismissed with costs on an attorney and client scale; condonation granted for late delivery of respondents' affidavits.

Orders

  • Condonation is granted to the respondents for the late delivery of their answering and supplementary answering affidavits.
  • The application is dismissed with costs on the scale as between attorney and client.