An urgent court application by President Jacob Zuma’s nephew Khulubuse Zuma that may derail efforts to hold the directors of Aurora Empowerment Systems personally liable for stripping the Pamodzi mine, was postponed on Thursday because his lawyer left a file in Durban.
Moneyweb earlier reported on the application that was heard on Thursday in the North Gauteng High Court in Pretoria. You can read it here.
At the hearing advocate John Suttner SC, representing the Master of the High Court who is cited as the first respondent, argued that Zuma has no legal standing to bring the urgent application, because he is not an aggrieved party with regard to the Pamodzi’s R1.5 billion claim against Aurora. He is asking the court to review and set aside the decision to approve Pamodzi’s claim.
The Pamodzi claim constitutes the biggest portion of the claims of more than R1.7 billion that the Aurora directors may be held liable for in an application (the main application) that is set down to be heard by the North Gauteng High Court from March 23.
Suttner said if Zuma proved his own claim and had an expectation of some distribution in the winding up of Aurora he would have been an aggrieved party with regard to the approval of Pamodzi’s claim. He does however not have a proven claim and therefore has no right to ask the court to review and set aside the approval.
Suttner further argued that the approval of the Pamodzi claim is irrelevant for the main hearing. He said liquidation is not a requirement for the main application that is done in terms of S424 of the 1973 Companies Act and any defect in the liquidation procedure, like the possible unlawful approval of a specific claim, is therefore irrelevant.
Attorney John Walker, acting for the liquidators of Pamodzi and Aurora, supported these arguments and added that Zuma cannot succeed in the urgent application unless he first used the mechanism in S45 of the Insolvency Act to challenge the approval of Pamodzi’s claim.
Advocate Griffiths Madonsela, representing Zuma, said that he could not respond to the arguments, because the file containing information about the legal authority he would like to cite in his response was in Durban. Legal authority refers to earlier court rulings that have set precedents for subsequent cases.
Judge Eberhard Bertelsmann was very reluctant to postpone the hearing. He said a postponement would lead to increased cost. He said Madonsela was the one who approached the court on an urgent basis and asked why Madonsela’s secretary couldn’t send him the information.
Walker objected against the postponement, saying he is being paid with money from the Aurora workers. He suggested that a postponement until Monday would be acceptable only if Madonsela was prepared to pay his additional costs. Madonsela was not.
Bertelsmann said Zuma’s application was brought shortly before the main application was to be heard and if granted, could have a major impact on the main application. He therefore wanted to dispose of Zuma’s application as fast as possible. “You can get the authority (from the secretary), go to our library, collect your thoughts and come back at 14:00 (on the same day),” Bertelsmann said.
Suttner also offered to make facilities available to Madonsela.
Bertelsmann was even prepared to resume the hearing at 18:00 on the same day.
Eventually Bertelsmann allowed the legal teams to agree on a proposal to be made to him in chambers about when the hearing would be resumed.
Moneyweb has since learnt that it will resume at 12:00 on Monday.
- Gideon du Plessis, general secretary of trade union Solidarity, one of Aurora’s creditors, earlier said Zuma’s application is just a tactic to delay the main claim in March.
- Solidarity has registered a claim of R5.3 million on behalf of its members who worked at the Pamodzi mines.
- The other directors who are also respondents in the main application, and may therefore also be held personally liable should that application succeed, are former President Nelson Mandela’s grandson Zondwa Mandela and Sheshile Thulani Ngubane. Their business partners, father and son Sulliman and Fazel Bhana are also respondents in the main application.