Meintjes and Meintjes Rekenmeesters CC v Annandale and Another (A177/2020) [2024] ZAGPPHC 1342 (6 December 2024)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case No: A177/2020

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

DATE 6 December 2024

SIGNATURE

In the application between:

MEINTJES AND MEINTJES

REKENMEESTERS CC.

Applicant

and

ENGELA DOROTHEA MARIA ANNANDALE

First Respondent

OLD MUTUAL TRUST (PTY) LTD T/A. Second Respondent

JUDGEMENT

NHARMURAVATE AJ

Introduction

[1] This is an opposed application brought on behalf of the Applicant by the deponent namely Heila Antoinette Meintjes in her capacity as the appointed representative of the Second Respondent and as the person in charge of managing the affairs of the Applicant after the passing of Mr Johannes Hendrik Meintjes (the marital spouse), making her the sole member of the Applicant.

[2] At the outset Mr Snyman for the Applicant clarified that they were not seeking the entire orders as per the notice of motion, but they were only persisting with prayer number (1) and (2) of the notice of motion more specifically prayer number (2). Prayer number (1) is sought in terms of section 18(1) read with section 18(3) of the Superior Courts Act 10 of 2013 for the order of the full court dated the 2nd of February 2023 not to be suspended pending the First Respondents application for

reconsideration by the President of the Supreme Court of appeal or any other subsequential appeal. Secondly, order number (1) of the Honourable Judge Collis (Collis J order) order which forms prayer number (2) of the Applicants notice of motion.

[3] The First Respondent is opposed to the application sought. Whereas the Second Respondent is only cited as party with interest in the matter. The First Respondent argued that they were not aware that only prayer number 2 was sought by the Applicant as this was never brought to their attention. The application was opposed in its entirety. Ms Lebona for the First Respondent added that had they been aware of the order/s sought they would have not opposed the matter as they had nothing to hide. There was a confusion as to the position of the First Respondent in this regard. The parties were offered an opportunity to find each other

which did not prove successful.

[4] The First Respondent persisted on opposing the application as served on the basis that there were no exceptional circumstances which were raised by the Applicant to warrant the order/s sought.

Background Facts

[5] Briefly, the dispute surrounds the allegation that the First Respondent worked as a sub-contractor from the 1st of June 2015 until the 14th of July 2017. The Applicant through the deponent then discovered that the First Respondent had taken over the business of the (Applicant)

and had transferred the trust account into her own name without any consent to do so. This is disputed by the First Respondent as she alleges that there was an oral agreement with the deceased regard this transfer alternatively taking over the business.

[6] The First Respondent allegedly accepted payments into the trust account with the net profit estimated at to R 3 166 158(three million one hundred and sixty-six thousand and one hundred and fifty-eight rands) Thereafter a dispute arose over the accurate calculation of the profit paid into the trust account for that period. The Applicant suggested an independent audit to determine the amount due. Whereas the First Respondent insisted that each party should appoint its own audit. A dispute thereafter arose which led to the litigation of this matter

[7] The Applicant was successful on the 20th of November 2018 hearing which subsequently resulted in the Collis J order dated 19 December 2019. There after leave to appeal was sought which was denied then the First Respondent sought special leave through the Supreme Court of Appeal (SCA). This subsequently led to the matter being set down for an appeal before the full court which resulted in a dismissal of same with costs on the 23h of February 2023 in terms of the judgement. The First Respondent has since filed a reconsideration application before the President of the Supreme Court of Appeal (SCA) which was granted on the 27th of February 2024 but is yet to be heard.

[8] The Applicant seeks to execute order number (1) of the Honourable Judge Collis order delivered on the 10th of December 2019 as there are exceptional circumstances which warrant such an execution.

ANALYSIS OF THE MATTER

Condonation

[9] Both parties were late in filling their respective affidavits that is the answering affidavit and the replying affidavit. It is my view that it is in the interest of justice that both parties be heard and treated fairly. There was no prejudice which was suffered by both parties in this regard. It was enunciated by Holmes JA in Melane v Santam Insurance Co. Ltd[1]:

[10] “In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts and, in essence, is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion ...”

[11] Therefore, condonation is granted for the late filing of the answering and replying affidavit respectively as it is imperative that both parties be heard.

Has The Applicant Made Out A Case For The Order/S Sought

[12] This application is it terms of section 18 of the Superior Courts Act[2] (the Act) which directs as follows:

“(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.

(2) … … …

(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.

(4) If a court orders otherwise, as contemplated in subsection (1)—

(i) the court must immediately record its reasons for doing so;

(ii) the aggrieved party has an automatic right of appeal to the next highest court;

(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and

(iv) such order will be automatically suspended, pending the outcome of such appeal.’

[13] A party that brings about such an application needs to show exceptional circumstances, and these must exist as a fact. Exceptional circumstances must appear on the face of the application that is before the court. These cannot exist elsewhere. Both parties have addressed several issues in their heads of argument some of which do not form part of the averments made in their respective affidavits which I am not inclined to consider in terms of the rules of court as it amounts to prejudice on both sides.

[14] The Applicant seeks to execute order number 1 (one) of the Collis J order which reads as follows that: “the income and necessary expenses of the business of the applicant from 1 July 2015 until 14 July 2017 are to be investigated, calculated and reported owned by an auditor independent of the parties herein, to be appointed by the Chairperson of the Institute of Chartered

Accountants at the request of the applicant such requests to be made within 10 days of the date of this order.

[15] In support of the non-suspension the Applicant argued that the granting of the order will expedite the matter, and it will resolve the dispute as the outcome of the matter will be self-evident. The execution thereof will assist with the appeal as it would be found from the investigation and the report from the independent auditor, what the exact position regarding the business and the trust account, as far as it relates to the Applicant and First Respondent.

[16] In rebuttal, the First Respondent denied that there were any legitimate exceptional circumstances raised by the Applicant. Enormous amounts of legal costs and the delay in the matter does not constitute exceptional circumstances as it is to be expected in any litigation especially when a matter is undergoing a process of an appeal through the Supreme Court of appeal or otherwise .In addition, the execution of the order will not assist in resolving the matter on appeal or otherwise save for causing irreparable harm to the First Respondent.

[17] The First Respondents further added that the execution of the order would not assist the President of the SCA simply because the Applicants did not oppose the reconsideration application, therefore the investigative report would not be considered by the SCA. The Applicant in reply argued that the First Respondent was misguided as to the nature of the reconsideration application before the SCA as this was not to afford the First Respondents another bite of the cherry but only in exceptional circumstances to enable the President of the SCA to deal with a situation where injustice might otherwise result.

[18] What would constitute exceptional circumstances, the court in MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, & another[3] recognised that it would not be possible to lay down precise rules as to what circumstances are to be regarded as exceptional and that each case has to be decided on its own facts. However, at 156H-157C, the court said the following:

[19] ‘What does emerge from an examination of the authorities, however, seems to me to be the following:

1. What is ordinarily contemplated by the words “exceptional circumstances” is something out of the ordinary and of an unusual nature; something which is xcepted in the sense that the general rule does not apply to it; something uncommon, rare or different; “besonder”, “seldsaam”, “uitsonderlik”, or “in hoë mate ongewoon”.

2. To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case.

3. Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a judicial discretion: their existence or otherwise is a matter of fact which the Court must decide accordingly.

4. Depending on the context in which it is used, the word “exceptional” has two shades of meaning: the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.

5. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will, generally speaking, best be given to the intention of the Legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional.’

[20] The Applicant therefore as the alleging party must prove that there are exceptional circumstances in this matter. In my view, the reasons put forward as exceptional circumstances do not raise exceptional circumstances to warrant the execution of order number (1) of the Collis J order. Gleaning from the application filed before the SCA by the First Respondent for reconsideration there are various issues raised some are concerning witness evidence and documentary evidence. It was not explained how the execution of order number (1) will expediate these issues regard being had to the reconsideration sought. The leave to appeal and the appeal are confined to the record of the proceedings, and it is only under exceptional circumstances new evidence is allowed. The SCA has

a wide discretion to make its own factual findings and bring matters to finality.

[21] Therefore, I am not convinced that the circumstances raised by the Applicant amount to exceptional circumstances to warrant the execution of order number (1) of the Collis J order.

The Irreparable harm

[22] The Applicant argued that it will and has already suffered irreparable harm and continues to do so simply because the First Respondent continues to delay finalisation of the matter while it accumulates legal costs. In rebuttal, the First Respondent argued that delay and hefty legal costs are part of litigation they do not amount to exceptional circumstances, nor can they be reason enough to grant the order/s sought.

[23] Tritely the Applicant needs to show that there is presence of irreparable harm if the order is not executed. It does not need to show that there is certainty that it would suffer irreparable harm but the probabilities thereof. This is not addressed by the Applicant. It is not clear what harm will ensue if order number (1) is not executed. The Applicant argues that she has already suffered and continues to suffer due to the acrimonious delays. In addition to that the Applicant alleges that there is continuous deterioration due to the conduct of the First Respondent. These points are not appropriately addressed on the papers filed. It is not clear in what manner is the company deteriorating. Is this due to the delay or the alleged hefty legal costs.

[24] The age factor of the deponent is mentioned in passing on the heads of argument, but it is not dealt with in depth on the Applicants founding papers. Therefore, the same is not for consideration by this court and it is not disputed that the Applicant is a company which enjoys separate legal entity status which has its own identity distinct from its members.

[25] The Applicant has not explained how the delay presents harm should the order/s sought not be granted. Additionally, the Applicant argued that there is absence of irreparable harm being caused on the First Respondent if the execution order is granted as sought simply because executing order number (1) will take a considerable amount of time inclusive of the process of investigation. The Applicant seems to be willing to accept this delay (appointing an auditor to investigate and the investigation itself) which is evidence that delay is not exceptional and will cause no harm to it.

[26] In rebuttal, The First Respondents argued that her business will be affected as she will lose customers and she will not be able to afford even her employees if such an order/s was made which will result in a shutdown of the business. The First Respondent further took issue with the fact that the reconsideration application was served upon the Applicant’s two months prior this application was lodged wherein she outlined irreparable harm which she stands to suffer as a result of the existence of the Collis J order should the reconsideration not be granted. The First Respondent argues that these are not dealt with in the Applicants application which is fatal for the Applicant’s application.

[27] The test for irreparable harm is in two folds wherein the Applicant firstly has to show that there is presence of irreparable harm if the order is not executed imminently. Secondly, it also must demonstrate the absence of irreparable harm if the same is ordered on the part of the First Respondent. The Applicant must demonstrate the presence of harm on a balance of probabilities which it has not been done. In my view this court cannot even move any further than that.

[28] The Applicant highlights delay and enormous litigation costs as being the reasons it will suffer irreparable harm without explaining how and why these will cause irreparable harm if the order/s sought is not granted. Even if there was no harm which will ensue if the execution is granted against the First Respondent, the Applicant still must prove on a balance of probabilities that it will suffer harm if execution is not granted. Alternatively, that it has suffered harm and continues to do so.

[29] This statutory requirement is a twofold test, and it creates an obligation on the part of the applicant to satisfy both provisions of the Act, and both have to be proven on a balance of probabilities which the Applicant has not satisfied.

Prospects of success

[30] The prospects of success of the appeal are of relevance. In University of Free State v AfriForum and Another[4] , the Court said the following:-

“[14] A question that arises in the context of an application under s 18, is whether the prospects of success in the pending appeal should play a role in this analysis. In Incubeta Holdings Sutherland J was of the view that the prospects of success in the appeal played no role at all. In Liviero Wilge Joint Venture Satchwell J, Moshidi J concurring, was of the same view. However, in Justice Alliance Binns-Ward J (Fortuin and Boqwana JJ concurring), was of a different view, namely that the prospects of success in the appeal remain a relevant factor and therefore ‘. . . the less sanguine a court seized of an application in terms of s 18(3) is about the prospects of the judgment at first instance being upheld on appeal, the less inclined it will be to grant the exceptional remedy of execution of that judgment pending the appeal. The same quite obviously applies in respect of a court dealing with an appeal against an order granted in terms of s 18(3)’.”

[31] The Applicant advanced an argument that since it has been successful in the number of applications before this court that there is a high probability that the SCA or any other subsequent appeal filed by the First Respondent will be in its favor. In my view, there is some merit in this deduction simply because the appeal process is based on the record which would have been used by the parties in the court aquo.

[32] On the other side, the First Respondent argued that since they have been successful in obtaining a reconsideration order for special leave to appeal from the SCA dated the 27th of February 2024 that on its own means that there are good prospect of success on the appeal sought which is a requirement in terms of section 17 of the Superior Courts Act.

[34] However, for a drastic remedy as sought herein, it obliges the Applicant to prove all three statutory requirements. That is to demonstrate on a balance of probabilities exceptional circumstances which warrants the execution of the order, secondly to demonstrate the presence of irreparable harm and absence thereof on the part of the First Respondent if the execution order is not granted inclusive of good prospects of success in the appeal.

[35] Section 18 of the Act as it has been held, has raised the bar high[5] all three requirements must be present in the Applicant’s application one cannot be viewed in the absence of another. The

Applicant as a juristic person has not demonstrated exceptional circumstances which warrant the execution of the order sought and it has not demonstrated the presence of the harm to the company should the execution not be granted. Therefore, prospects of success cannot be viewed in isolation.

[36] Section 18(3) places a heavy onus on an Applicant and if the applicant fails to prove one of the requirements the application must fail.

Conclusion

[37] An order in terms of section 18(1) and (3) is a drastic and extraordinary remedy reserved only for exceptional circumstances. The discretion of a Judge is limited in this regard the Applicant must prove all three statutory requirements. It is important to prove and justify the deviation from the norm which the Applicant has not successfully done.

[38] Exceptional circumstances must exist as a fact. The delay and enormous costs involved in litigation in my opinion do not amount to exceptional circumstances. Exceptional circumstances are something out of the ordinary. Further, the fact the investigation report will assist the SCA in dealing with the matter expeditiously and bringing the it to finality is not an exceptional circumstance. The core function of our courts is to deal with matters expeditiously and bring them to finality. The three requirements could not be established.

[39] Costs are within the courts discretion this application is interlocutory in nature due to the existence of the order from the SCA dated the 27th of February 2024 in my view, it is just that costs hereof be costs in the special leave to appeal.

[40] I therefore make the following order:

1. The applications for condonation are granted respectively for the late filling of the answering affidavit by the First Respondent and the replying affidavit by the Applicant.

2. The application for is dismissed.

3. Costs shall be costs in the special leave to appeal.

NHARMURAVATE, AJ

JUDGE OF THE HIGH COURT

For the Applicant: Adv M Snyman SC Instructed by: ML Schoeman Incorporated For the Respondents: Adv M Lebona Instructed by: Dawes Attorneys Date of Hearing: 11 September 2024 Date of Judgment: 6 December 2024

[1] 1962(4) SA 531 (A) AT 532 C - F

[2] Act 10 of 2013

[3] 2002 (6) SA 150 (C)

[4] 2017] ZACC 48; 2018 (2) SA 185 (CC); 2018 (4) BCLR 387 (CC) (29 December 2017)

[5] Ntlemeza v Helen Suzman Foundation 2021 (3) SA 135 (SCA)