Process Design & Automation (Pty) Ltd and Others v Gamede (41905/2020) [2021] ZAGPJHC 157 (24 May 2021)

Process Design & Automation (Pty) Ltd and Others v Gamede (41905/2020) [2021] ZAGPJHC 157 (24 May 2021)

The court found that Mr Gamede's ex parte application was materially deficient due to substantial non-disclosure of relevant facts, including the existence and outcome of the prior Pretoria application and the applicants' defences. The respondent's failure to make proper enquiries and to set out these matters on oath constituted an abuse of process. The court held that the interim interdict prejudiced at least one applicant and that the respondent's conduct in both procuring the ex parte order and opposing the reconsideration application was vexatious. Accordingly, the ex parte order was reconsidered and set aside, and punitive costs were awarded against Mr Gamede.

Citation
[2021] ZAGPJHC 157
Parties
Applicant: Process Design & Automation (Pty) Ltd; Applicant: Besisonke Ndaba; Applicant: Dave Buller; Applicant: Jacobus Sutherland; Applicant: Paul Barnard; Applicant: Francois van Huyssteen; Applicant: Hendrik Venter; Respondent: Bongani Cyprean Gamede
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 May 2021
Case Number
41905/2020
Procedural Posture
Urgent Application / Application for Reconsideration of Ex Parte Order
Outcome
Application for reconsideration granted; ex parte order set aside; costs awarded on attorney and client scale against respondent.
Judges
VM Movshovich
Legal Topics
Ex Parte Interdict, Full and Frank Disclosure, Res Judicata, Shareholder Rights, Punitive Costs
Civil Procedure Commercial and Corporate Ex Parte Interdict Full and Frank Disclosure Res Judicata Shareholder Rights Punitive Costs

Case Brief

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Parties

Process Design & Automation (Pty) Ltd

Applicant

Besisonke Ndaba

Applicant

Dave Buller

Applicant

Jacobus Sutherland

Applicant

Paul Barnard

Applicant

Francois van Huyssteen

Applicant

Hendrik Venter

Applicant

Bongani Cyprean Gamede

Respondent

Procedural Posture

Urgent Application / Application for Reconsideration of Ex Parte Order

Legal Issues

  1. 1 Whether the respondent failed to make full and frank disclosure in the ex parte application.
  2. 2 Whether the prior Pretoria application and its dismissal rendered the issues res judicata.
  3. 3 Whether the ex parte order should be reconsidered and set aside due to material non-disclosure.

Ratio Decidendi

The court found that Mr Gamede's ex parte application was materially deficient due to substantial non-disclosure of relevant facts, including the existence and outcome of the prior Pretoria application and the applicants' defences. The respondent's failure to make proper enquiries and to set out these matters on oath constituted an abuse of process. The court held that the interim interdict prejudiced at least one applicant and that the respondent's conduct in both procuring the ex parte order and opposing the reconsideration application was vexatious. Accordingly, the ex parte order was reconsidered and set aside, and punitive costs were awarded against Mr Gamede.

Court Disposition

Application for reconsideration granted; ex parte order set aside; costs awarded on attorney and client scale against respondent.

Orders

  • The 10 December 2020 order is reconsidered and set aside.
  • The ex parte application is dismissed.