Pohlmann and Another v Pohlmann N.O and Others (873/2020) [2020] ZAECGHC 53 (2 May 2020)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO. 873/2020

Date heard: 28 May 2020

Date delivered: 02 June 2020

In the matter between:

STANLEY

WILHELM POHLMANN First Applicant

LOUISA

MAY POHLMANN

Second Applicant

and

GRAHAM POHLMANN N.O. First Respondent

MELANY JANE POHLMANN N.O.

Second Respondent

MATTHEW BRENT POHLMANN N.O.

Third Respondent

MAZARS TRUSTEES (PTY) LTD

Fourth Respondent

Represented by ADELLE DRISCOLL N.O.

STANLEY WILHELM POHLMANN N.O. Fifth Respondent

(The first to fifth respondents are cited in their

respective capacities as trustees for the

time being of the CRANKSHAW BROTHERS TRUST,

IT 1273/2005)

CRANKSHAW MARBLE AND GRANITE WORKS CC Sixth Respondent

THE MASTER OF THE HIGH COURT,

GRAHAMSTOWN

Seventh Respondent

JUDGMENT

RUGUNANAN, J

[1] This application was heard on 28 May 2020 as one of urgency in which the first and second applicants, in terms of Part A of their notice of motion, seek interim relief against the 6th respondent, Crankshaw Marble and Granite Works CC.

[2] In Part A of the notice of motion the applicants essentially seek, inter alia, an interdict directing the sixth respondent to immediately restore their access to funds (limited to a combined annual amount of R1 500 000.00) held in its banking account, and that for the purpose of facilitating such access the sixth respondent be directed to provide credit cards to replace those in respect of which the sixth respondent previously terminated the applicants’ access.

[3] The notice of motion prays that such relief shall operate as interim

interdicts pending finalisation of an action to be instituted by the applicants to enforce the terms of an agreement (referred to as “the Agreement” in the founding papers) entered into between the first applicant and the sixth respondent, alternatively for the cancellation of the Agreement, including such further or alternative relief as may be necessary in the circumstances.

[4] Barring the sixth respondent no relief is, at this stage claimed against the remaining respondents. Their involvement, especially the first to the fourth respondents, is implicated by Part B of the notice of motion. The deponent to the sixth respondent’s opposing papers is the first respondent. The first and second applicants, both of whom are elderly, are his parents. For convenience the sixth respondent will hereinafter be referred to as “the respondent”.

[5] Being located in two different provinces the parties’ counsel made oral submissions via an online videoconferencing platform. Written heads of argument (as directed) were also prepared which facilitated writing this judgment. The application is resisted by the respondent, both on its merits and on the ground that it has been improperly brought on the basis of urgency. In the latter respect the respondent contends that the modification of the rules by the applicants to suit their alleged grounds of urgency was unacceptable; and regarding the merits, the applicants have not demonstrated sufficient real loss or damage were they compelled to rely solely or substantially on the normal procedure. In either instance, urgency is squarely in issue. For reasons to follow, I consider it appropriate to dispose of the matter solely on the urgency issue without expressing any views on the broader merits. The very limited extent to which these are mentioned in this judgment pertains only to the alleged prima facie right which the applicants seek to extrapolate from the alleged agreement.

[6] In application procedure the starting point is that the provisions of rule 6(5) of the Uniform Rules of Court are peremptory. Rule 6(5) stipulates, inter alia, the form of the notice of motion (rule 6(5)(a)), the time frame within which a respondent must notify the applicant of intended opposition (rule 6(5)(b)), the time frames for delivery of the answering affidavit (rule 6(5)(d)(ii)) and for subsequent delivery of a replying affidavit (rule 6(5)(e)). Where no answering or replying affidavit is delivered, rule 6(5)(f) makes provision for applying to the registrar for a date for the hearing of the matter which must be done within a stipulated time frame.

[7] Rule 6(12) distinctively deals with urgent applications. Such applications, it may be mentioned, involve not only the abridgement of the time frames stipulated by rule 6(5), but also a departure from the conventional sitting times of the court and of the prescribed forms and manner of service fixed by the rules. In an urgent application an applicant is permitted to proceed on notice of motion without full regard to the rules applicable in the ordinary course. Depending on the circumstances, an applicant is allowed to make its own rules, but “as far as practicable” in accordance with the existing rules. A respondent confronted by an application brought on an alleged urgent basis must provisionally accept the time frames set by the applicant, and may only raise its objection when the matter comes before a judge (Caledon Street Restaurants CC v D’Aviera[1]).

[8] Although most of the divisions of the High Court have their own local rules of practice relating to urgent applications, the conventional procedure which enjoins a court to dispose of an urgent matter is pertinently laid down by rule 6(12) itself and is that “which shall as far as practicable be in terms of these rules.” Relevant to this wording, and in the context of declaring that the rule provides for an “extraordinary adjudication” procedure,[2] Kroon J in Caledon Street Restaurants[3] appositely stated that practitioners must be reminded that the rule “must not be treated as pro non scripto.”

[9] In amplification, the judgment states:

“The applicant, or more accurately, his legal advisors, must carefully analyse the facts of each case to determine whether a greater or lesser degree of relaxation of the rules and the ordinary practice of the court is merited and must in all respects responsibly strike a balance between the duty to obey rule 6(5)(a) and the entitlement to deviate therefrom, bearing in mind that [such] entitlement and the extent thereof, are dependent upon, and are thus limited by, the urgency which prevails. The degree of relaxation of the rules should not be greater than the exigencies of the case demand (and it need hardly be added these exigencies must appear from the papers).”

(my own emphasis)

[10] Elsewhere in the judgment and with regard to the periods that permit notification of intention to oppose and for delivery of answering

affidavits, it is stated that, “the interests of the other party and his lawyers should be accorded proper respect”,[4] since “inadequate periods may have the inevitable result of a successful request for more time to oppose with concomitant wasted costs.” [5] I would factor a further consideration that an applicant (such as in casu), whose notice of motion indicates beforehand that the application if unopposed would be moved on a stated date and time must (to avoid wasted costs), consider whether he will have sufficient time to deliver replying papers once notice to oppose and answering

affidavits have been delivered.

[11] I turn to consider the extent to which the applicants sought a modification of the ordinary rules and the averments relied on in support of urgency.

[12] The applicants’ unissued application was forwarded to the respondent by email after business on Wednesday 13 May 2020. The issued application was served on the respondent on Thursday 14 May 2020, and in terms of the notice of motion the respondent was required to give notice of intention to oppose before 12h00 on Friday 15 May 2020 and to file an answering affidavit by 12h00 on Monday 18 May 2020. In the respondent’s opposing affidavit, as also in its heads of argument, the point is made that no date or time for the intended hearing was stipulated in the notice of motion in the event

that the matter became opposed. On Friday 15 May 2020, the respondent received the applicants’ supplementary founding affidavit by email under cover of a filing notice which indicated that “the date of this hearing is 19 May 2020” without specifying the time.

[13] On the supposition that this was indicative of the matter proceeding on an opposed basis on that day, and against a truncated time frame, the respondent delivered its answering affidavit by the time stipulated in the notice of motion. On 18 May 2020 and following the parties’ counsel engaging each other (and thereafter applicant’s counsel having telephonically engaged me) a written directive issued stipulating delivery of a replying affidavit by 12h30 on Friday 22 May 2020 and directing that the matter shall be heard on Thursday 28 May 2020 at 09h30 with heads of argument being filed. These directives accord with the practice directions (“the Joint Rules”[6]) in this division that permit a judge to determine the date, time and place of the hearing of an urgent application which is sought to be heard at any time outside the normal motion court hours.[7] I add that the practice directions relating to urgent applications have not been superseded by the “Lockdown Directions”.[8]

[14] In accordance with the directive, the court papers were indexed and paginated. The notice of motion issued on 14 May 2020 is included in the court file and it specifies that the hearing of the matter in terms of Part A would be Tuesday 19 May 2020 at 09h30 in the event that no notice to oppose is given. Also included among the court papers is the filing notice to the applicants’ supplementary founding affidavit, such notice indicating the hearing date to be 19 May 2020. Although this might initially have caused the respondent some anxiety at the time of service of the notice of motion, the fact of the matter is that the directives issued on 18 May 2020 were consensual with neither party requesting a reservation of right, or that any issue arising from the matter not proceeding on 19 May 2020 be noted. For this reason I make no particular finding regarding the complaint about the applicants’ notice of motion.

[15] The background to the matter is encapsulated in the following summary, save that in recapitulating this information (with the brevity dictated by the circumstances under which I write), I do so only to give context to the dispute between the parties without, of course, making factual findings in relation to the agreement alleged by the first applicant.

[16] The first applicant initially acquired a monumental masonary business in 1983. Although the business had undergone several changes in its juristic personality and composition, it presently trades as a close corporation and has several branches in the Eastern Cape. In 2005 the first applicant established the Crankshaw Brothers Trust, subsequent to which he sold his shareholding in the respondent (then a private company) to the Trust. The first applicant does not explicitly state that the respondent was at the time a private company.[9] This emerges in the answering affidavit wherein reference is made to the “board of directors” of the respondent.[10] In 2007 the respondent underwent a conversion to a close corporation, of which the Trust is presently its sole member. The applicants are employees of the respondent. The first applicant is actively involved as a manager in the business of the respondent and receives a salary. The second applicant, although retained on the respondent’s books as a salaried employee, has no involvement in its business.

[17] Although both applicants were paid a salary, the exact amounts of their salaries were not agreed upon and for this reason the applicants were registered as provisional taxpayers. From time to time in the passage of years, it became the practise of the first applicant to direct respondent’s accountants to pay him certain amounts of money as and when required. The amounts so paid were debited during the course of each financial year to a loan account in the name of the first applicant and at the end of each financial year the amounts were brought into account as salaries paid to the first and second applicants. In addition, both applicants are covered by medical aid in terms of the respondent’s employee scheme and for which the respondent pays their monthly premiums.

[18] The applicants’ claim for interim relief is premised on a contention that in 2005 the first applicant and the respondent concluded an oral agreement. In the words of the first applicant the agreement is that the respondent,

“CMGW would provide for me and Louisa until our respective deaths to the extent it is reasonably able to.” [11]

[19] In the execution of this agreement the applicants contend that the respondent paid their salaries and linked its bank account to two credit cards (held in the name of the first applicant and not in the name of the respondent as he initially stated in the founding affidavit) to enable him to access his and the second applicant’s income to provide for their needs.

[20] In the founding and supplementary affidavits the applicants’ case for urgency is detailed by the following assertions:

(i) That on 12 May 2020 the first applicant discovered that his access to the abovementioned income (through use of the credit cards) had been removed;

(ii) That this removal of access occurred during the lockdown period leaving him and his wife in a “financially precarious”[12] state;

(iii) That his wife was ill and in need of medical treatment;

(iv) That their “need for access to the funds held by [the respondent] is immediate”; [13]

(v) That by the time the main action is heard the “financial damage” the applicants will have suffered will be irreversible;[14]

[21] The aforegoing material offers no indication that the applicants have shown that they did and will suffer sufficient real loss or

damage[15] nor does it, in substance, justify a case made out on grounds of urgency. In the replying affidavit, an attempt is made (by the introduction of new matter) to supplement the deficiencies in the founding affidavit. [16] Acknowledging that there are instances when courts may have regard to new matter in replying papers for the sake of facilitating litigation, I do not on a total conspectus of the matter believe that the present matter is deserving of judicial indulgence. My reasons follow.

[22] In the replying affidavit the first applicant undertakes a cursory quantification by way of estimations of amounts reflecting expenses

and potential financial losses with reference to an annexure[17] to the founding affidavit. The annexure comprises of what appears to be a calculation on a spreadsheet comprising of 7 pages and some 243 journal entries in the minutest of fine print that is barely legible. The first applicant makes no attempt to refer specifically to those entries that support his quantification (particularly regarding payment of life insurance premiums for which the first applicant avers he has now assumed responsibility), nor was this done on his behalf during argument.

[23] It is not open to a party to merely annex to his affidavit a document and to request the court to have regard thereto. What is incumbent is the identification of portions thereof on which reliance is placed as an indication of the case which is sought to be made out on the strength of the document concerned. It cannot be expected of a court to trawl through a document (such as the present) reduced to a mass of fine print and to speculate on the relevance of its contents.[18] The practice directives in this division[19] require that particular care be taken to ensure that documents in the judges’ papers to which reference will be made during argument must be clearly legible.[20]

[24] The applicants’ case is premised on the enforcement of an agreement which is denied by the respondent.[21] While it is apparent that the explicit terms of the alleged agreement do not feature anywhere in the applicants’ papers, their case is that the practise implemented in favour of the first applicant evidences such agreement. In heads of argument [22] applicants’ counsel referred to several authorities leaning in favour of recognising an agreement in the circumstances contended for by the first applicant. The following dictum in Fluxman v Brittan [23] is quoted directly from counsel’s heads:

“The condition found to be proved is that the plaintiff would be entitled to draw moderate amounts [from a business]. Such a condition is not void for vagueness. Though it might not be easy to determine what is a moderate amount at a particular time, such determination would be possible on evidence of the various relevant facts, such as for example, the financial position and requirements of the business at such time”

[25] The ostensible reliance on this dictum (and the authorities quoted by counsel) was intended to augment the contention that urgency existed on the premise of a prima facie right arising from the alleged agreement. As mentioned, the respondent disputes the alleged agreement and although the deponent

to the answering affidavit concedes that he was aware of the practise in favour of the first applicant he explains that none of it was ever agreed in advance and at the end of each financial year he was confronted by a set of financial statements and resolutions prepared by the accountants effectively providing for the ex post facto regularisation of the first applicant’s drawings for the year in question.[24]

[26] During his argument, applicants’ counsel stressed that the urgency in the matter is occasioned by the need to enforce the agreement and that the applicants’ case had nothing to do with reasonable maintenance requirements. This is a departure from the certificate of urgency which states at paragraph 3 that the applicants “require access to the funds to pay their reasonable living expenses”. The papers before me offer no indication of the applicants’ reasonable living expenses. It is revealing that the first applicant

at the time of delivery of the replying affidavit has access to funds in the amount of R519 834[25] in a Discovery credit card facility. Other than a plea of being left “financially precarious” this amount which respondent’s counsel correctly contended assumes material relevance, was not disclosed in the founding

affidavit nor were any details as to monthly requirements, available assets or other sources of funds provided.

[27] The founding affidavit [26] instead reflects significant amounts of money which the first applicant alleges were “salary payments” to him in the period 2010 to 2019. In substantiation thereof the first applicant attaches financial statements for the whole period to accentuate the financial ability of the respondent along the lines of Fluxman. The series of statements comprise of no fewer than 93 pages and once again attracts censure for not identifying the relevant portions of substance. In any event, the statements do not corroborate the first applicant’s assertion of “salary payments”. Such monies are reflected as ‘managerial fees’ without an explanatory footnote or narrative. Respectfully, the disclaimer to each of the financial statements throws doubt on the credibility of the first applicant’s assertion. In point, the auditor states: “I have not audited or reviewed these financial statements, and accordingly express no assurance thereon.” In this context it is unfortunate that Fluxman does not assist the applicants.

[28] Plainly, the whole scenario to the present facet of the relief being claimed turns on a recognition of a prima facie right to enforce an alleged agreement that will permit the applicants (or rather the first applicant) to have access to very substantial amounts of funds. Due to urgency being the sole issue for determination, it is considered unnecessary to elaborate fully on the respondent’s denial of the agreement and its resource ability to continue or permit the past practise in the light of cash flow challenges occasioned by the dormancy of the business during the Covid-19 lockdown period. Nor do I find it necessary to make a determination on the retrenchment being implemented by the respondent of which the applicants have been statutorily notified.

[29] On the applicants’ own showing their concerns regarding their salaries arose in March 2020 (though as a matter of probability this could have been as early as February 2020 if recourse is had to the respondent’s salary projections as per Annexure “FA5”). That concern was sufficient to cause them to turn to funds in the Discovery card facility to sustain

themselves. They have provided no explanation why they did not seek relief at the inception of either of those initial stages.

[30] To conclude, this judgment does not purport to express a view on the existence of an agreement as alleged by the applicants and whether the practise elucidated by them establishes a prima facie right for relief favouring their perceived need for access to funds. The issue affecting urgency has been determined solely on the basis of the shortcomings already dealt with - amounting to a demonstrable failure to properly make out a case therefor. The upshot is that the applicants have not shown sufficient real loss or damage to accord recognition for relief that authorises access to the

respondent’s purse. In my view, the content and presentation of the applicants’ papers do not establish urgency due to financial exigencies and necessitates that the matter be struck off the roll rather than being dismissed (see Vena v Vena and Others 2010 (2) SA 248 (E) at 252E-254B).

[31] In the circumstances the following order issues:

(a) The application is struck off the roll with costs.

________

S. RUGUNANAN

JUDGE

OF THE HIGH COURT

Appearances:

For the Applicants: Adv. H. Loots SC

Instructed by:

WHEELDON RUSHMERE &

COLE

Matthew Fosi Chambers

High Street

Makhanda / Grahamstown

(Ref: Mr. B. Brody)

Email: bbb@wheeldon.co.za

Tel: 046 – 622 7005

For the Sixth Respondent: Adv. G. Richards

Instructed by:

RUSHMERE NOACH INC.

Port Elizabeth

Tel: 041- 399 6700

(Ref: Mr. C.D. Arnold/dr/MAT37842)

Email: christophera@rushmere.co.za

c/o Netteltons Attorneys

Makhanda / Grahamstown

This judgment was handed down electronically by circulation to the abovementioned legal representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 09h00 on 02 June 2020.

[1] [1998] JOL 1832 (SE), pp 6-7

[2] At p 6

[3] [1998] JOL 1832 (SE), p 8

[4] At p 11

[5] At p 9

[6] i.e. “The Joint Rules of Practice for the High Courts of the Eastern Cape Province” (28 January 2020)

[7] See rule 12 of the Joint Rules

[8] Issued on 24 March 2020 (styled as “Court Directives Regarding Management of Cases During the Lockdown Period: Eastern Cape

Courts:) and 11 May 2020 (styled as “Directions issued by the Judge President for the Management of the High Court, Eastern Cape During the National State of Disaster”)

[9] FA, p 20, para 48

[10] AA, p 256, para 56.1

[11] FA, p 20, para 48

[12] FA, p 23, para 56

[13] Supp FA, p234, para 39

[14] Supp FA, p 234, paragraph 40

[15] Caledon Street Restaurants CC v D’Aviera supra at p 7

[16] RA, paras 13-23

[17] “FA7A”

[18] Van Loggerenberg, Erasmus Superior Court Practice, 2nd ed Vol 2 at D1-58D – D1-59 [Service 5, 2027]

[19] styled as “The Joint Rules of Practice for the High Courts of the Eastern Cape Province”

[20] By comparison, see rule 23 (g) of the “Joint Rules”

[21] AA, p 248, para 26

[22] Page 15 and footnotes therein

[23] [1955] 4 All SA 140 (D)

[24] AA p 248, para 26 and p 251 para 36

[25] RA, p 311, para 58.2

[26] P 21, para 51.3