Nedbank Limited v Luvhomba Communications and Information Technology CC and Others; Nedbank Limited v Mzantsi Restaurants Cc and Others; Nedbank Limited v Luvhomba Legal Edge CC and Others (48411/2013; 48412/2013; 48413/2013) [2020] ZAGPPHC 336 (16 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED NO

Case No. 48411/2013

In the matter between: NEDBANK LIMITED PLAINTIFF And LUVHOMBA COMMUNICATIONS & INFORMATION TECHNOLOGY CC FIRST DEFENDANT LUVHOMBA LEGAL EDGE CC SECOND DEFENDANT MULAUDZI & ASSOCIATES CC THIRD DEFENDANT GERENDRA CC FOURTH DEFENDANT LUVHOMBA LEGAL CARE CC FIFTH DEFENDANT MZANTSI RESTAURANTS CC SIXTH DEFENDANT LEGAE LE MONATE RESTAURANT CC SEVENTH DEFENDANT LUVHOMBA PROJECTS & CONSTRUCTION CC EIGHTH DEFENDANT LUVHOMBA SECURITY SERVICES & PATROL CC NINETH DEFENDANT LUVHOMBA LEGAL AXE CC TENTH DEFENDANT LUVHOMBA FINANCIAL SERVICES CC ELEVENTH DEFENDANT MATTHEWS TUWANI MULAUDZI TWELTH DEFENDANT

Case No. 48412/2013

In the matter between: NEDBANK LIMITED PLAINTIFF And MZANTSI RESTAURANTS CC FIRST DEFENDANT MATTHEWS TUWANI MULAUDZI SECOND DEFENDANT LUVHOMBA LEGAL EDGE CC THIRD DEFENDANT MULAUDZI & ASSOCIATES CC FOURTH DEFENDANT GERENDRA CC FIFTH DEFENDANT LUVHOMBA LEGAL CARE CC SIXTH DEFENDANT LUVHOMBA COMMUNICATIONS & INFORMATION TECHNOLOGY CC SEVENTH DEFENDANT LEGAE LE MONATE RESTAURANT CC EIGHTH DEFENDANT LUVHOMBA PROJECTS & CONSTRUCTION CC NINETH DEFENDANT LUVHOMBA SECURITY SERVICES & PATROL CC TENTH DEFENDANT LUVHOMBA LEGAL AXE CC ELEVENTH DEFENDANT LUVHOMBA FINANCIAL SERVICES CC TWELTH DEFENDANT

Case No. 48413/2013

In the matter between: NEDBANK LIMITED PLAINTIFF And LUVHOMBA LEGAL EDGE CC FIRST DEFENDANT MATTHEWS TUWANI MULAUDZI SECOND DEFENDANT MULAUDZI & ASSOCIATES CC THIRD DEFENDANT GERENDRA CC FOURTH DEFENDANT LUVHOMBA LEGAL CARE CC FIFTH DEFENDANT LUVHOMBA COMMUNICATIONS & INFORMATION TECHNOLOGY CC SIXTH DEFENDANT MZANTSI RESTAURANTS CC SEVENTH DEFENDANT LEGAE LE MONATE RESTAURANT CC EIGHTH DEFENDANT LUVHOMBA PROJECTS & CONSTRUCTION CC NINETH DEFENDANT LUVHOMBA SECURITY SERVICES & PATROL CC TENTH DEFENDANT LUVHOMBA LEGAL AXE CC ELEVENTH DEFENDANT LUVHOMBA FINANCIAL SERVICES CC TWELTH DEFENDANT

JUDGMENT

MILLAR, A J

1. The applicant Mr. Mathews Tuwani Mulaudzi (“Mulaudzi”) has applied for leave to appeal against an order refusing him the right to appear on behalf of various entities of which he was the sole member.

2. After granting the order default judgment was then granted as sought. The circumstances relating to the main case are set out in the judgement. The Notice of Application for Leave to Appeal that was served by the Applicant set out numerous grounds.

3. At the commencement of the hearing of the Application, the Applicant confirmed that his estate was still under sequestration, although he had disputes with his Trustees in respect of which Judgements had been granted in his favour. He also confirmed that he brought the present Application without the consent of his Trustees.

4. The Applicant also placed on record that after the filing of the Application for Leave to Appeal in this matter, and having regard to developments in other litigation in which he was involved, he had proceeded with an Application for Recission of the Default Judgments that had been granted by this Court and those Applications were still extant.

5. Accordingly, most of the grounds of Appeal set out in the Notice of Application for Leave to Appeal were not pursued. The crux of the Application and the relief sought by the Applicant is that Leave to Appeal should be granted to the Supreme Court of Appeal in respect of this Court’s refusal to allow him to appear on behalf of the entities of which he was a member.

6. The essence of the Applicant’s case as expressed by him, is that “Mulaudzi is the Close Corporations and the Close Corporations are Mulaudzi”. The Applicant does not concede that the close corporations are separate legal persona and that even though his personal interests may coincide with the interests of those corporations, they are not, as a matter of law, one and the same. This issue was dealt with in the main judgement.

7. In setting this Application down, the parties uploaded documents onto caselines and these included various judgements and orders granted under case number 28220/2015 and 28221/2015 – both of which were decided by Basson J. I have had the benefit of considering both the main judgement as well as the judgement on the Application for Leave to Appeal under those case numbers and am respectfully in agreement with the conclusions and orders which deal specifically with the point that is before me.

8. The test for the granting of leave to appeal is whether another Court would[1] come to a different conclusion. After the Judge Basson granted Judgment and refused the Applicant leave to appear on behalf of the legal entities, he applied for Leave to Appeal and this was similarly refused. The Applicant then applied to the Supreme Court of Appeal, who declined to hear his Appeal and he then applied to the Constitutional Court who also declined to hear his Appeal.

9. Having regard to the fact that the identical issue involving the same parties has been decided by another Court, which refused Leave to Appeal, and that both the Supreme Court of Appeal and Constitutional Court have also both refused Leave to Appeal, I am of the view that no other Court would come to a different conclusion.

10. Mr. Kilian, for the Respondent, argued that the Applicant should pay the costs if the Application were to be dismissed. Since the Applicant is an unrehabilitated insolvent, who is before the Court without the consent of his Trustees, any Order for Costs which is to be made, would mulct his estate and it would not be proper to make such an Order in the absence of his Trustees before the Court. It is for this reason that I do not intend to make any Order for costs in respect of this Application.

11. In the circumstances, I make the following Order:

11.1 the Application for Leave to Appeal is dismissed.

A MILLAR

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

HEARD ON:

15 JULY 2020 – VIA ZOOM

JUDGMENT DELIVERED ON:

16 JULY 2020

HANDED DOWN ELECTRONICALLY BY EMAIL TO THE PARTIES

FOR THE APPLICANT:

MR. MT MULAUDZI – IN PERSON

COUNSEL FOR THE RESPONDENT: ADV J KILIAN

INSTRUCTED BY:

BALOYI SWART & ASSOCIATES INC

REFERENCE:

MR SWART

[1] Section 17(1)(a)(i) of the Superior Courts Act 10 of 2013