Mobile Radio Communications (Pty) Ltd v Micromatica 327 (Pty) Ltd (3548/2004) [2015] ZAGPPHC 630 (19 August 2015)

Mobile Radio Communications (Pty) Ltd v Micromatica 327 (Pty) Ltd (3548/2004) [2015] ZAGPPHC 630 (19 August 2015)

The court held that the 'Classen J' order, being a consent order embodying an agreement between the parties, cannot be amended unilaterally by the applicant or by the court without the respondents' consent. The impossibility of performance, due to the accountant's failure to produce a final report and the subsequent liquidation of the first respondent, rendered the agreement and the order lapsed. The court found no grounds under Rule 42 or Rule 31(2)(b) or common law to grant the amendment sought. The only remedy available to the applicant is to obtain the respondents' consent to any amendment. The counter-application by the liquidators was granted, as the agreement embodied in the...

Citation
[2015] ZAGPPHC 630
Parties
Applicant: Mobile Radio Communications (Pty) Ltd; Respondent: Micromatica 327 (Pty) Ltd (formerly Vertel Networks (Pty) Ltd, now in liquidation); Respondent: Securicor Grey Security Services (Central) (Pty) Ltd; Respondent: Heneways Freight Services (Pty) Ltd; Respondent: S and N Autotrim and Panel Shop CC t/a Western Crown; Respondent: Mike van Heese t/a DRG Services; Respondent: Middleforce Security Services CC; Respondent: Kagiso Security Services CC; Respondent: Manetrade 168 (Pty) Ltd t/a Siyathuthuka Security; Respondent: Lauro Teresio Cordero N.O; Respondent: Zaheer Cassim N.O; Respondent: Brian Ceylon N.O; Respondent: Vertel Investments (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 August 2015
Case Number
3548/2004
Procedural Posture
Civil Application / Application to Amend a Prior Consent Order; Opposed Motion and Counter Application
Outcome
The application to amend the consent order is dismissed with costs. The counter-application is granted with costs.
Judges
Khami Makhafola
Legal Topics
Variation of Court Orders, Consent Orders, Impossibility of Performance, Arbitration Referral, Liquidation Effects
Civil Procedure Commercial and Corporate Variation of Court Orders Consent Orders Impossibility of Performance Arbitration Referral Liquidation Effects

Case Brief

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Parties

Mobile Radio Communications (Pty) Ltd

Applicant

Micromatica 327 (Pty) Ltd (formerly Vertel Networks (Pty) Ltd, now in liquidation)

Respondent

Securicor Grey Security Services (Central) (Pty) Ltd

Respondent

Heneways Freight Services (Pty) Ltd

Respondent

S and N Autotrim and Panel Shop CC t/a Western Crown

Respondent

Mike van Heese t/a DRG Services

Respondent

Middleforce Security Services CC

Respondent

Kagiso Security Services CC

Respondent

Manetrade 168 (Pty) Ltd t/a Siyathuthuka Security

Respondent

Lauro Teresio Cordero N.O

Respondent

Zaheer Cassim N.O

Respondent

Brian Ceylon N.O

Respondent

Vertel Investments (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application to Amend a Prior Consent Order; Opposed Motion and Counter Application

Legal Issues

  1. 1 Whether the court is competent to amend a consent order where its terms have become impossible to perform.
  2. 2 Whether the applicant may unilaterally amend the 'Classen J' order without the respondents' consent.
  3. 3 Whether the agreement embodied in the consent order has lapsed due to impossibility of performance.

Ratio Decidendi

The court held that the 'Classen J' order, being a consent order embodying an agreement between the parties, cannot be amended unilaterally by the applicant or by the court without the respondents' consent. The impossibility of performance, due to the accountant's failure to produce a final report and the subsequent liquidation of the first respondent, rendered the agreement and the order lapsed. The court found no grounds under Rule 42 or Rule 31(2)(b) or common law to grant the amendment sought. The only remedy available to the applicant is to obtain the respondents' consent to any amendment. The counter-application by the liquidators was granted, as the agreement embodied in the...

Court Disposition

The application to amend the consent order is dismissed with costs. The counter-application is granted with costs.

Orders

  • The application to amend is dismissed with costs.
  • The counter-application is granted with costs.