Geldenhuys and Others v Orthotouch Limited and Others (42334/2014) [2017] ZAGPJHC 108 (16 March 2017)

Geldenhuys and Others v Orthotouch Limited and Others (42334/2014) [2017] ZAGPJHC 108 (16 March 2017)

The court found that the withdrawal of the main application and substitution of attorneys by the nominal applicants was irregular and constituted an abuse of process, particularly as they were acting as nominees for a larger group of investors (HSAG) and failed to inform their attorney of record, Mr Theron. The stratagem was designed to deprive other investors of their rights and was orchestrated by the twelfth respondent and attorney Dannenberg. The court held that such conduct could not be countenanced and that the application to set aside the withdrawal and substitution was urgent and justified. The joinder application was granted, recognizing the need to protect the interests of...

Citation
[2017] ZAGPJHC 108
Parties
Applicant: Jurie Johannes Geldenhuys; Applicant: Arthur Brady Cochrane; Applicant: Sharon Ann Vlok; Respondent: Orthotouch Limited; Respondent: Derek Pedoe Cohen N.O.; Respondent: Hans Klopper N.O.; Respondent: Highveld Syndication No 15 Ltd; Respondent: Highveld Syndication No 16 Ltd; Respondent: Highveld Syndication No 17 Ltd; Respondent: Highveld Syndication No 18 Ltd; Respondent: Highveld Syndication No 19 Ltd; Respondent: Highveld Syndication No 20 Ltd; Respondent: Highveld Syndication No 21 Ltd; Respondent: Highveld Syndication No 22 Ltd; Respondent: Nicolas Georgiou; Respondent: Zephan Properties (Pty) Ltd; Respondent: Nicolas Georgiou N.O.; Respondent: Maureen Lynette Georgiou; Respondent: Joseph Chemaly N.O.; Respondent: George Nicolas Georgiou; Respondent: Michael Nicolas Georgiou; Respondent: Hendrik Jacobus Myburgh; Respondent: Bosman & Visser (Pty) Ltd; Respondent: Pickvest (Pty) Ltd; Respondent: Heinrich Pieter Moller; Respondent: Willem Morkel Steyn; Respondent: Barend Stefanus van der Linde; Respondent: Frederick Julius Reichel; Respondent: Eugene Kruger Inc.; Respondent: The Companies and Intellectual Property Commission of South Africa (CIPC)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 March 2017
Case Number
42334/2014
Procedural Posture
Urgent Application / Application for Setting Aside Withdrawal and Joinder
Outcome
Both the application to set aside the withdrawal and substitution and the joinder application succeed. The main application is reinstated. Costs are awarded against the first respondent and twelfth to sixteenth respondents, jointly and severally.
Judges
Ismail
Legal Topics
Scheme of Arrangement, Class Action Certification, Joinder of Parties, Abuse of Process, Urgent Application, Withdrawal of Action
Civil Procedure Commercial and Corporate Scheme of Arrangement Class Action Certification Joinder of Parties Abuse of Process Urgent Application Withdrawal of Action

Case Brief

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Parties

Jurie Johannes Geldenhuys

Applicant

Arthur Brady Cochrane

Applicant

Sharon Ann Vlok

Applicant

Orthotouch Limited

Respondent

Derek Pedoe Cohen N.O.

Respondent

Hans Klopper N.O.

Respondent

Highveld Syndication No 15 Ltd

Respondent

Highveld Syndication No 16 Ltd

Respondent

Highveld Syndication No 17 Ltd

Respondent

Highveld Syndication No 18 Ltd

Respondent

Highveld Syndication No 19 Ltd

Respondent

Highveld Syndication No 20 Ltd

Respondent

Highveld Syndication No 21 Ltd

Respondent

Highveld Syndication No 22 Ltd

Respondent

Nicolas Georgiou

Respondent

Zephan Properties (Pty) Ltd

Respondent

Nicolas Georgiou N.O.

Respondent

Maureen Lynette Georgiou

Respondent

Joseph Chemaly N.O.

Respondent

George Nicolas Georgiou

Respondent

Michael Nicolas Georgiou

Respondent

Hendrik Jacobus Myburgh

Respondent

Bosman & Visser (Pty) Ltd

Respondent

Pickvest (Pty) Ltd

Respondent

Heinrich Pieter Moller

Respondent

Willem Morkel Steyn

Respondent

Barend Stefanus van der Linde

Respondent

Frederick Julius Reichel

Respondent

Eugene Kruger Inc.

Respondent

The Companies and Intellectual Property Commission of South Africa (CIPC)

Respondent

Procedural Posture

Urgent Application / Application for Setting Aside Withdrawal and Joinder

Legal Issues

  1. 1 Whether the withdrawal of the main application by the nominal applicants was irregular and should be set aside.
  2. 2 Whether the substitution of attorneys and withdrawal notices constituted an abuse of process.
  3. 3 Whether the joinder application by additional investors should be granted.

Ratio Decidendi

The court found that the withdrawal of the main application and substitution of attorneys by the nominal applicants was irregular and constituted an abuse of process, particularly as they were acting as nominees for a larger group of investors (HSAG) and failed to inform their attorney of record, Mr Theron. The stratagem was designed to deprive other investors of their rights and was orchestrated by the twelfth respondent and attorney Dannenberg. The court held that such conduct could not be countenanced and that the application to set aside the withdrawal and substitution was urgent and justified. The joinder application was granted, recognizing the need to protect the interests of...

Court Disposition

Both the application to set aside the withdrawal and substitution and the joinder application succeed. The main application is reinstated. Costs are awarded against the first respondent and twelfth to sixteenth respondents, jointly and severally.

Orders

  • Both applications are declared urgent.
  • The notice of substitution of attorneys and notice to withdraw the main application are set aside; the main application is reinstated with costs, including costs of two counsel.