Meso Group Proprietary Limited v Avanthi Hylas 2 Cyprus Limited (59900/2016) [2017] ZAGPJHC 265 (18 September 2017)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 59900/2016

Not reportable

Not of interest to other judges

Revised.

18 September 2017

In the matter between:

MESO

GROUP PROPRIETARY LIMITED Applicant

And

AVANTI HYLAS 2 CYPRUS LIMITED Respondent

JUDGMENT

NKOSI

AJ

INTRODUCTION

1. This is an interlocutory application in terms of which leave of court is sought to file a fourth affidavit.

ISSUE

2. The applicant (Meso Group Limited) in this application is the Respondent in the main application. The Respondent in this application (Avanti Hylas 2 Cyprus Limited) is the Applicant in the main application. For the sake of maintaining consistency I shall refer to the parties as they are referred to in the main application. In other words, Meso Group Pty LTD shall be referred to as the Respondent and Avanti Hylas 2 Cyprus Limited as the Applicant henceforth.

3. In the main application, the applicant has applied for the winding up of the Respondent on the ground of inability to pay its debts within the meaning of section 344 (f) read with section 345(1)(a) alternatively section 345(c) of the companies Act 61 of 1973. The application is opposed.

4. The parties have already delivered the normal three sets of affidavits namely, the founding, answering and replying affidavits. However, the Respondent now seeks leave of the court to file a fourth affidavit. The Respondent alleges that the applicant has raised new allegations and evidence in the replying affidavit which were not raised in the founding affidavit or raised fleetingly

in the reply yet they are relied upon as the basis for the main application. The respondent further alleges that there were meetings

between the parties to deal with issues of service or the lack thereof as well as the payment issues. The respondent believed that

the meetings and the issues dealt with at such meetings were common cause .It did not deem it necessary to deal with these aspects in its answering affidavit. It now seeks to introduce these issues into the record, by way of a fourth affidavit. The fourth affidavit shall contain Email communication between the parties as well as confirmatory affidavits of the participants in some of the meetings.

FOURTH

AFFIDAVIT

5. It is in the interest of the administration of justice that the well-known and well established general rules regarding the number of sets and proper sequence of affidavits in motion proceedings should ordinarily be observed[1].In order to respect and adhere to this rule, it is required of a party to clearly and concisely state in its founding or answering affidavit as the case may be, all the facts upon which its case or defence is based. Important and relevant facts should not be assumed to be common cause especially where it is not clear from the opponent’s affidavit that such alleged facts are indeed common cause. It is therefore not only prudent but also safe to state in the affidavit all the facts relied upon.

6. As a general rule, a fourth set of affidavits will not be allowed unless there are “essential” or “special”

circumstances which will justify a further set[2]. The court may in its discretion permit filing of further affidavits[3]. As to what the discretion entail, and what considerations should be factored in when such discretion is exercised, “it is neither necessary nor desirable to say more than , the Court has a discretion which needs to be exercised judicially upon a consideration of the facts of each case, and essentially it is a question of fairness to both parties”[4]. In order for the court to exercise its discretion in favour of the Respondent, the Respondent has to demonstrate that there are essential and special circumstances justifying the submission of a further affidavit. The court should be able to identify with ease, the reasons relied upon by the Respondent for his request. The content of such must be such that the court is persuaded to accept that there are circumstances either special or essential justifying the introduction of a fourth affidavit.

7. The applicant’s replying affidavit contains annexures namely, the acknowledgment of debt alleged to have been entered into between the parties; an Email communication between Lesego Rammala on behalf of the respondent and Douna Mitchell on behalf of the applicant and a further report of a company search conducted on the Respondent’s company .This report contains the details of the Respondent Company’s directors. These are the documents which the Respondent feels aggrieved. The Respondent submits that these documents constitute new evidence. I do not agree with the Respondent’s submission. The three documents mentioned

do not introduce anything new which is either mentioned in the founding affidavit or within the knowledge of both parties when the main application was issued against the Respondent. The Respondent was therefore in a position, to deal effectively with the allegations of its indebtedness to the Applicant on its answering affidavit.

8. It is common cause that there were meetings that took place between the parties and the details of the meetings remain in dispute. The Applicant specifically denies that the meetings dealt with the issues of service or the lack thereof. The Respondent’s

argument would have gained valuable support had the Respondent in its answering affidavit produced invoices which it claims were incorrect. If indeed there were such invoices, I would have expected the Respondent to have queried them long before this court application. Under those circumstances, I would have considered the Respondent’s request in a more favourable manner. However, the Respondent has not placed these invoices before Court.

“Rule 6(5)(e) establishes clearly that the filing of further affidavits is only permitted with the indulgence of the court . A court, as arbiter, has the sole discretion whether to allow the affidavits or not. A court will only exercise its discretion in this regard where there is a good reason for doing so”[5].

I have found no good reason to compel me to accede to Respondent’s request. I further find that there are no essential or special circumstances justifying a submission of a further affidavit.

THE

ORDER

9. The following order is made.

1. The application is dismissed.

2. The Respondent is to pay the costs.

______

NKOSI, AJ

For Applicant

: T Maseko

Instructed by

: T Maseko Attorneys

For Respondent

: Advocate Daniels

Instructed by

: Bowman Gilfillan Inc

Date of Hearing

:16 September 2016

Date of Judgment

:18 September 2017

[1] James Brown & Hamer (Pty) Ltd v Simmons NO 1963 (4) SA 656 (A) at 660 D-H. See also Hano Trading CC v JR 209 Investments (Pty) Ltd (650/11) [2012] ZASCA 127.

[2] Wingaardt v Globber 2010 (6) SA 148 ECG at para 16 and other authorities referred therein, namely: Herbstein & Van Winsen: The Civil Practice of the High Courts of South Africa (5th ed.) Vol.1 p439; South Peninsula Municipality v Evans 2001(1) SA 271 (c ) at 283; Afric Oil (pty) Ltd v Ramdaan Investments CC 2004 (1) SA 35 (N) at 38I-J.

[3] Rule6(5)(e) also see James Brown & Harmer Pty Ltd Supra at para 11.

[4] Holmes J Milne NO v Fabrick House (pty) Ltd 1957 (3) SA 63 (N) at 65A also James Brown & Hamer (Pty) Ltd v Simmons NO 1964(4) SA 656(A) at 660 D-G.

[5] Hano Trading CC v JR 209 Investment (Pty) Ltd (650/11) [2012] ZASCA 127. Para 11.