Waxham and Others v Saffy N.O and Others (9272/2020) [2023] ZAGPPHC 1196 (19 September 2023)

Waxham and Others v Saffy N.O and Others (9272/2020) [2023] ZAGPPHC 1196 (19 September 2023)

The court found that the applicants' delivery of the notice of motion dated 15 December 2020 and the supplementary affidavit constituted an irregular step under Rule 30, as it sought to broaden both the causes of action and the class of claimants beyond what had been certified. The certification order granted in December 2019 only authorized litigation on behalf of shareholders in HS21 and HS22 for specific performance of buy-back agreements. The applicants failed to lay a proper foundation for expanding the class or causes of action and did not address the requirements for certification as set out in Children’s Resources Centre and Mukkaddam. Allowing the impugned application would...

Citation
[2023] ZAGPPHC 1196
Parties
Applicant: Brian John Waxham; Applicant: Chris Nel; Applicant: Hymie Pinshaw; Applicant: Francois Strauss; Applicant: Lea Magdalena Meyer; Respondent: Luke Bernard Saffy N.O.; Respondent: Zephan Properties (Pty) Ltd; Respondent: Nicolas Georgiou N.O.; Respondent: Maureen Lynette Georgiou N.O.; Respondent: Joseph Chemaly N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 September 2023
Case Number
9272/2020
Procedural Posture
Interlocutory Application / Application to Set Aside Irregular Step and Conditional Counter Application
Outcome
The respondents' Rule 30 application is granted; the applicants' impugned application is set aside as an irregular step. The conditional counter application is dismissed. Costs will be costs in the main application.
Judges
R G Tolmay
Legal Topics
Class Action Certification, Irregular Step, Specific Performance, Buy Back Agreements
Civil Procedure Commercial and Corporate Class Action Certification Irregular Step Specific Performance Buy Back Agreements

Case Brief

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Parties

Brian John Waxham

Applicant

Chris Nel

Applicant

Hymie Pinshaw

Applicant

Francois Strauss

Applicant

Lea Magdalena Meyer

Applicant

Luke Bernard Saffy N.O.

Respondent

Zephan Properties (Pty) Ltd

Respondent

Nicolas Georgiou N.O.

Respondent

Maureen Lynette Georgiou N.O.

Respondent

Joseph Chemaly N.O.

Respondent

Procedural Posture

Interlocutory Application / Application to Set Aside Irregular Step and Conditional Counter Application

Legal Issues

  1. 1 Whether the applicants' delivery of the notice of motion and supplementary affidavit constitutes an irregular step under Rule 30.
  2. 2 Whether the applicants may broaden the certified class and causes of action at this stage of litigation.
  3. 3 Whether the 27 May 2015 suspension order precludes the filing of opposing papers in the current application.

Ratio Decidendi

The court found that the applicants' delivery of the notice of motion dated 15 December 2020 and the supplementary affidavit constituted an irregular step under Rule 30, as it sought to broaden both the causes of action and the class of claimants beyond what had been certified. The certification order granted in December 2019 only authorized litigation on behalf of shareholders in HS21 and HS22 for specific performance of buy-back agreements. The applicants failed to lay a proper foundation for expanding the class or causes of action and did not address the requirements for certification as set out in Children’s Resources Centre and Mukkaddam. Allowing the impugned application would...

Court Disposition

The respondents' Rule 30 application is granted; the applicants' impugned application is set aside as an irregular step. The conditional counter application is dismissed. Costs will be costs in the main application.

Orders

  • It is declared that the applicants’ delivery of the notice of motion dated 15 December 2020 and the affidavit dated 27 November 2020 constitutes an irregular step and is set aside.
  • The conditional counter application is dismissed.