Kruger v Ithala Soc Ltd (19051/2023) [2024] ZAKZPHC 17 (14 March 2024)

Kruger v Ithala Soc Ltd (19051/2023) [2024] ZAKZPHC 17 (14 March 2024)

The court found that the applicant failed to establish a factual basis for proceeding ex parte and urgently, as the founding affidavit did not set out specific facts justifying the absence of notice to the respondent. The applicant did not disclose material facts regarding the Pretoria order and the settlement discussions with the Prudential Authority, which were relevant to the scope of his powers and the relief sought. The absence of an in camera certificate was a fatal procedural defect, as required by the rules and confirmed in Three Cities Investments. The applicant did not make reasonable enquiries or investigations to ascertain facts that the respondent would have wanted to place...

Citation
[2024] ZAKZPHC 17
Parties
Applicant: Johannes George Kruger N.O.; Respondent: Ithala Soc Ltd
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
14 March 2024
Case Number
19051/2023
Procedural Posture
Urgent Application / Application for Reconsideration of Urgent Ex Parte Order
Outcome
The reconsideration application is granted. The PMB order is discharged and replaced with an order striking the application from the roll. The applicant is ordered to pay the respondent's costs, including the costs of two counsel where employed.
Judges
Veerasamy AJ
Legal Topics
Ex Parte Orders, Urgent Applications, Banks Act Proceedings, Material Nondisclosure, In Camera Hearings
Civil Procedure Banking and Finance Ex Parte Orders Urgent Applications Banks Act Proceedings Material Nondisclosure In Camera Hearings

Case Brief

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Parties

Johannes George Kruger N.O.

Applicant

Ithala Soc Ltd

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration of Urgent Ex Parte Order

Legal Issues

  1. 1 Whether the applicant was entitled to obtain the PMB order on an urgent ex parte basis without notice to the respondent.
  2. 2 Whether the applicant failed to disclose material facts to the court when seeking the PMB order.
  3. 3 Whether the absence of an in camera certificate rendered the original order procedurally defective.

Ratio Decidendi

The court found that the applicant failed to establish a factual basis for proceeding ex parte and urgently, as the founding affidavit did not set out specific facts justifying the absence of notice to the respondent. The applicant did not disclose material facts regarding the Pretoria order and the settlement discussions with the Prudential Authority, which were relevant to the scope of his powers and the relief sought. The absence of an in camera certificate was a fatal procedural defect, as required by the rules and confirmed in Three Cities Investments. The applicant did not make reasonable enquiries or investigations to ascertain facts that the respondent would have wanted to place...

Court Disposition

The reconsideration application is granted. The PMB order is discharged and replaced with an order striking the application from the roll. The applicant is ordered to pay the respondent's costs, including the costs of two counsel where employed.

Orders

  • The respondent is given leave to deliver its supplementary affidavit.
  • The order of Mossop J dated 22 December 2023 is reconsidered and discharged under Uniform Rule 6(12)(c).