IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN Case Nr: 9675 /2017 In the matter between: THE MINISTER OF ENVIRONMENTAL AFFAIRS Applicant and RECYCLING AND ECONOMIC DEVELOPMENT Respondent INITIATIVE OF SOUTH AFRICA NPC (Registration number 2010/022733/08) APPLICANT’S HEADS OF ARGUMENT INTRODUCTION ........................................................................................................................................ 2 PROCEDURAL BACKGROUND ............................................................................................................. 2 THE APPLICABLE LAW ........................................................................................................................... 3 Application for condonation ..................................................................................................................... 4 Disclosure in ex parte applications ........................................................................................................... 7 Principles relating to application for the final winding-up of a company ................................................ 8 BACKGROUND .......................................................................................................................................... 9 FINAL LIQUIDATION............................................................................................................................... 16 The unlawful contravention of the Respondent’s objects...................................................................... 16 The loss of the Respondent’s substratum .............................................................................................. 19 Misconduct in the management of the Respondent’s affairs ................................................................ 21 POINTS IN LIMINE .................................................................................................................................. 29 Urgency ................................................................................................................................................... 29 The locus standi issue ............................................................................................................................. 34 Non-disclosure ........................................................................................................................................ 39 Inadmissible evidence ............................................................................................................................. 40 Scope of the order .................................................................................................................................. 40 RELIEF CLAIMED.................................................................................................................................... 40
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IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN
Case Nr: 9675 /2017 In the matter between: THE MINISTER OF ENVIRONMENTAL AFFAIRS Applicant and RECYCLING AND ECONOMIC DEVELOPMENT Respondent INITIATIVE OF SOUTH AFRICA NPC (Registration number 2010/022733/08)
The locus standi issue ............................................................................................................................. 34
Scope of the order .................................................................................................................................. 40
1. The Honourable Court is charged with two applications to be decided on 5 July
2017 namely –
1.1 an application for condonation for the late filing by a mere few hours of the
Applicants Replying Affidavit, and
1.2 the Honourable Court has to decide whether it would be just and equitable
and in the public interest to finally liquidate the Respondent.
PROCEDURAL BACKGROUND
2. The Applicant successfully sought and was granted an order1 for the provisional
liquidation of the Respondent in terms of section 81(1)(c)(ii) and/or section
81(1)(d)(iii) read with section 157(1)(d) of the Companies Act 71 of 2008 (“the
Companies Act”), on the basis that it is just and equitable and in the public interest
to do so, in terms of which order a rule nisi was issued that required the
Respondent, and any other party with a legitimate interest, to show cause, if any,
on Tuesday, 25 July 2017:
2.1 Why the Respondent should not be placed under a final winding-up order;
2.2 Why the liquidator of the Respondent should not be directed to distribute the
entire net value of the Respondent to the Waste Management Bureau; and
2.3 Why the costs of this application should not be cost in the winding-up of the
Respondent.
1 Order granted on 1 June 2017 by Ms Justice Cloete
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3. On Tuesday 20 June 2017 at 11:45 am, the Respondent filed a notice in terms of
Rule 6(8) of its intention to anticipate the return date of the provisional liquidation
order on Thursday, 22 June 2017. Together with this notice in terms of Rule 6(8),
the Respondent filed an answering affidavit comprising of some 179 pages
together with some 529 pages of annexures attached thereto.
4. The Respondent does not seek a reconsideration2 of the urgent, ex parte order of
1 June 2017. Instead the Respondent anticipated the return date of the rule nisi3
and seeks the dismissal of the application.4 The procedure that was adopted by
the Respondent has important ramifications for the attack that the Respondent
now launches against the Applicant’s locus standi. This issue is pertinently
addressed herein below.
5. On Thursday, 22 June 2017 Mr Acting Justice Sher postponed the anticipated
return date of the provisional liquidation order to 5 July 2017 and directed the
Applicant to file her Replying Affidavit on or before 28 June 2017, and both the
Applicant and the Respondent to file their respective Heads of Argument on or
before Monday, 3 July 2017.
THE APPLICABLE LAW 6. The legal principles that finds application in this application will for ease of
reference be dealt with under the following four headings:
6.1 Condonation;
6.2 Disclosure in ex parte applications; and
6.3 Principles relating to application for the final winding-up of a company.
2 As envisaged by Uniform Rule (“Rule”) 6(12). 3 In the manner provided for in Rule 6(8). 4 Respondent’s Notice of Opposition and Anticipation of Return Date (p. 963 - 965).
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Application for condonation
7. The Applicant offered her Replying Affidavit for electronic service thereof on the
attorney of record of the Respondent at 01:44 pm on 29 June 2017, which
electronic and/or other service thereof the Respondent unreasonably refused at its
own peril.5
8. A substantive application for condonation for the late filing (by a mere few hours)
of the Applicant’s Replying Affidavit shall be served and filed on the Court file.
9. The circumstances that contributed to the late filing of the Applicants Replying
Affidavit are set out fully in the supporting affidavit to the application for
condonation.6 The supporting affidavit also sets out the fact that the Respondent
itself filed parts of its answering affidavit at first electronically while the complete
answering affidavit was served on the Applicant only one day before the
anticipated return date of the provisional liquidation7, and the supporting affidavit
also deals with the unreasonable refusal of the Respondent to accept delivery of
the Applicant’s Replying Affidavit.8
10. The Respondent suffers no prejudice whatsoever by virtue of the late filing of the
Applicant’s Replying affidavit by a mere five hours and 46 minutes after the time
directed by the Honourable Court for such filing.9
11. The condonation application also deals with the Applicant’s prospects of success
in the main application to seek a final liquidation of the Respondent in terms of
section 81(1)(c)(ii) and/or section 81(1)(d)(iii) of the Companies Act 71 of 2008
(“the Companies Act”) on the basis that it is just and equitable to do so. The
5 Harms JA in Thompson v South African Broadcasting Corporation 2001 (3) SA 746 (SCA)
([2001] 1 All SA 329) para 7 E - ‘If a party chooses not to raise an obvious issue in his heads, he does so
at his peril. The Court is entitled to base its judgment and to make findings in relation to any matter flowing fairly from the record, the judgment, the heads of argument or the oral argument itself.' 6 Paragraph 5 to 5.15 on page 2 – 7 of the Supporting Affidavit 7 Paragraph 5 to 10 on page 8 of the Supporting Affidavit 8 Paragraph 11 to 14 on page 9 – 10 of the Supporting Affidavit 9 Paragraph 15 to 18 on page 11 of the Supporting Affidavit
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Applicant has also dealt with the reasons why it would be just and equitable to
wind-up urgently the Respondent.10
12. Condonation is a discretionary matter, which discretion is to be exercised by a
Court judicially upon a consideration of all the facts, and is in essence a question
of fairness to both sides.11
13. In Darries v Sheriff, Magistrate’s Court, Wynberg & Another12 Plewman JA distilled
from the case law the guiding principles in the exercise of this discretion. He
stated:
‘I will content myself with referring, for present purposes, only to factors which the circumstances of this case suggest should be repeated. Condonation of the non-observance of the Rules of this Court is not a mere formality. In all cases some acceptable explanation, not only of, for example, the delay in noting an appeal, but also, where this is the case, any delay in seeking condonation, must be given. An appellant should whenever he realises that he has not complied with a Rule of Court apply for condonation as soon as possible. Nor should it simply be assumed that, where non-compliance was due entirely to the neglect of the appellant's attorney, condonation will be granted. In applications of this sort the appellant's prospects of success are in general an important though not decisive consideration. When application is made for condonation it is advisable that the petition should set forth briefly and succinctly such essential information as may enable the Court to assess the appellant's prospects of success. But appellant's prospect of success is but one of the factors relevant to the exercise of the Court's discretion, unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration. Where non-observance of the Rules has been flagrant and gross an application for condonation should not be granted, whatever the prospects of success might be.’
10 Paragraph 19 to 26 on page 12 – 14 of the Supporting Affidavit 11 United Plant Hire (Pty) Ltd v Hills & Others 1976 (1) SA 717 (A) at 720E – F. 12 1998 (3) SA 34 (SCA) at 40H – 41E.
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14. Two principal requirements for the favourable exercise of the Court’s discretion
have crystallised out,13 namely:
14.1 Firstly, an application must be filed in which:
14.1.1 the applicant must give a full explanation for the delay;
14.1.2 the explanation must cover the entire period of the delay; and
14.1.3 the explanation given must be reasonable.14
14.2 Secondly, the party requesting condonation should satisfy the Court under
oath that his application / opposition is not patently unfounded and that it is
based upon facts which, if proved, would constitute a valid action /
defence.15
15. An application for condonation should be filed as soon as a party realises that it
had not complied with a specific rule and/or court order and/or time period.16
16. In the circumstances the Applicant moves for an order in terms of which the late
filing by a few hours of the Applicant’s Replying Affidavit is condoned and the
Replying Affidavit is accepted.
17. On the premise that condonation for the late filing of the Applicants Replying
Affidavit may be granted and the Replying Affidavit is accepted, we now turn to set
13 In Smith NO v Brummer NO 1954 (3) SA 352 (O) at 358A it was stated that the tendency of the court is to
grant a removal of bar where: (a) the applicant has given a reasonable explanation for his delay; (b) the application is bona fide and not made with the object of delaying the opposite party's claim; (c) there has not been a reckless or intentional disregard of the rules of court; (d) the applicant's action is clearly not ill-founded, and (e) any prejudice caused to the opposite party could be compensated for by an appropriate order as to
costs. 14 Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd 2012 (2) SA 637 (CC) at
paragraph 15 and Van Wyk v Unitas Hospital and Another 2008 (2) SA 472 (CC). 15 Ford v Groenewald 1977 (4) SA 224 (T) at 226A–C; Oostelike Transvaalse Koöperasie Bpk v Aurora
Boerdery 1979 (1) SA 521 (T) at 523D–H 16 De Beer en ‘n Ander v Western Bank Ltd 1981 (4) SA 255 (A) at 257 A – B.
out our legal submissions in respect of the merits of the application for the final
liquidation of the Respondent.
18. For the purpose of these Heads of Argument, we will confine ourselves herein to
the legal submissions only. Due to the magnitude of facts of this matter, we do not
include herein a full discussion of all the facts of the application, to which relevant
facts the Honourable Court will be referred, if necessary, during argument.
However, our legal submissions that it would be just and equitable and in the
public interest to finally liquidate the Respondent, cannot be made without a short
background of the matter, merely to assist the Honourable Court in deciding the
merits of the application for the final liquidation of the Respondent.
Disclosure in ex parte applications
19. From the case law the following five main principles relating to the duty to disclose
in ex parte applications have been recognised and accepted:
19.1 Firstly, the duty pertains to facts and not to law or argument.17
19.2 Secondly, the duty relates to material facts, i.e. those facts that may
influence a Court in coming to a decision.18
19.3 Thirdly, the duty relates to known facts.19
19.4 Fourthly, although non-disclosure of facts need not be wilful or mala fide to
render the court’s discretion applicable, it does require fault, at least in the
form of negligence on the part of the applicant.20
19.5 Lastly, even if the applicant has failed in her duty in the above respects,
the court hearing the matter on the return day has a discretion, when given
17 Phillips v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) at par 33. 18 Cometal-Mometal v Corlana Enterprises 1981 (2) SA 412 (W) at 414C-E. 19 Trakman NO v Livshitz and Others 1995 (1) SA 282 (A) at 288E. 20 Hassan v Berrange 2012 (6) SA 329 (SCA) at par 18.
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the full facts, to set aside the provisional order or to confirm it. In
exercising that discretion the Court will have regard to:21
19.5.1 the extent of the non-disclosure;
19.5.2 the extent to which the Court might have been influenced by
proper disclosure in the ex parte application;
19.5.3 the reason for the non-disclosure;
19.5.4 the consequences, from the point of doing justice between the
parties, of denying relief to the applicant by setting the provisional
order aside.
Principles relating to application for the final winding-up of a company
20. The following principles relating to applications for final winding-up has crystallised
over the years:
20.1 The utilisation of motion proceedings is peremptory when the winding-up
of a company is sought.22
20.2 When seeking a final winding-up order, the applicant must prove all
allegations necessary for such an order on a balance of probabilities.23
20.3 Winding-up applications must, accordingly, and subject to viva voce
evidence in appropriate circumstances, be decided on the papers and in
21 Cometal (supra) at 414H and Phillips v National Director (supra) at par 29. 22 Section 346(1) of the Companies Act, 61 of 1973 (“the 1973 Act”). 23 Wackrill v Sandton International Removals (Pty) Ltd 1984 (1) SA 282 (W) at 285H-286B confirmed by the Appellate Division (as it was then) in Kalil v Decotex (Pty) Ltd 1988 (1) SA 943 (A) at 954D-F.
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accordance with the test formulated in the seminal case of Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.24
BACKGROUND 21. The Applicant is the Minister of Environmental Affairs, acting in the public interest
as contemplated in section 38 of the Constitution with a view to respect, protect,
promote and fulfil the fundamental right to the environment as provided for in
section 24 of the Constitution.
22. The Respondent is a non-profit company without any members or shareholders25
and all decisions are taken by the Board of Directors of the Respondent and/or by
the Chief Executive Officer who is the deponent to the Respondent’s answering
affidavit, Mr. Erdmann.
23. The Respondent is also an organ of state as defined in section 239 of the
Constitution,26 who is engaged in the administration and implementation of
subordinate legislation (“the Redisa Plan”) and, under the previous legal
dispensation with regard to the funding model thereof, was charged with the
collection of public funds.27
23.1 According to the Respondent, it is, “in performing a constitutional function,
undertaking certain public law functions”.28
23.2 The minutes of a Board meeting held on 15 December 201129 recorded
that Mr Erdmann acknowledged that Redisa is seen as an organ of State.
24 1984 (3) SA 623 (A) at 634E-635C (namely, if the facts as stated by the respondent together with the facts alleged by the applicant that are admitted by he respondent, justify such an order). The applicability of this principle in winding-up proceedings was confirmed in Orestisolve (Pty) Ltd t/a Essa Investments v NDFT Investment Holdings (Pty) Ltd and Another 2015 (4) SA 449 (WCC) at [9]. 25 Page 8 paragraph 3, Founding Affidavit, admitted on page 1050, paragraph 280, Answering Affidavit. 26 “organ of state” means (b) any other functionary or institution (ii) exercising a public power or performing a public function in terms of any legislation. 27 Page 15, paragraph 14 28 Page 1003, paragraph 86, Answering Affidavit 29 Page 2003, Annexure ‘BM 86’ - Forensic Report in paragraph 149 on page 2027, and page 2117, Annexure ‘BM 95’ – confirmatory affidavit by N Tetyana
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It was further recorded therein that there is no confusion as to who is in
charge and the wishes of the Department will at all times be carried out.
23.3 The Respondent’s Memorandum of Incorporation envisaged “that the
Company shall apply to the Commissioner for approval as a public benefit
organisation as contemplated in section 30(3) of the Income Tax Act..” and
for purposes of such qualification shall at all times comply with the
provisions of clauses 8.2 to 8.15 of its Memorandum of Incorporation.30
23.4 A “public benefit organisation” is defined in section 30(1) of the Income Tax
Act 58 of 1962 to mean -
“a non-profit company as defined in section 1 of the Companies Act .. of which the sole or principal object is carrying on one or more public benefit activities, where -
(i) all such activities are carried on in a non-profit manner and with an altruistic or philanthropic intent;
(ii) no such activity is intended to directly or indirectly promote the economic self-interest of any fiduciary or employee of the organisation, otherwise than by way of reasonable remuneration payable to that fiduciary or employee; and
where each such activity carried on by that organisation is for the benefit of, or is widely accessible to, the general public at large, including any sector thereof.”
23.5 The Commissioner shall, for the purposes of this Act, in terms of section
30(3) of the Income Tax Act 58 of 1962, approve a public benefit
organisation which complies with such conditions as the Minister may
prescribe by way of regulation to ensure that the activities and resources of
such organisation are directed in the furtherance of its object; and has
submitted to the Commissioner a copy of its Memorandum of
Incorporation, in which the prerequisites as set out in clauses 8.2 to 8.15 of
the Respondent’s Memorandum of Incorporation is included.
30 Page 258 - 259, Annexure ‘BM 3’
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23.6 There can thus not be any doubt that the Respondent from the outset
considered itself as a public benefit organisation performing a public
function, advancing the Constitutional imperative contained in section 24 of
the Bill of Rights and thus an organ of state as defined in section 239 of the
Constitution.
24. The Respondent was in terms of its Memorandum of Incorporation31 established
with the main object to engage in the conservation, rehabilitation and/or protection
of the natural environment, specifically by creating and procuring the
implementation of an approved Waste Tyre Management Plan as contemplated in
and pursuant to the National Environmental Management: Waste Act 59 of 2008
(“the Waste Act”) and the Waste Tyre Regulations, subject to the conditions of the
ministerial approval thereof. The ancillary objects of the Respondent32 are also
fully depended on the provisions of the approved Waste Tyre Management Plan.
25. The Respondent submitted for ministerial approval a proposed Integrated Industry
Waste Tyre Management Plan in terms of the Waste Tyre Regulations, 2009 (“the
Waste Tyre Regulations”), which was approved on 29 November 2012, subject to
the conditions of approval as set out in paragraph 2 on pages 2 and 3 of the letter
of approval33, notice of which approval was published on 30 November 201234
(“the “Redisa Plan”).
26. The Redisa Plan was approved for a period of five years from the date of
publication of the ministerial approval and the Redisa Plan, in its current form, will
expire by operation of law on 30 November 2012.35 In essence the Redisa Plan is
a waste management measure for the purposes of the Waste Act and is currently
57.3 The Applicant was accordingly compelled to seek an order in terms of
section 157(1)(d) of the 2008 Act for leave to bring and prosecute the
winding-up application against the Respondent in terms of the relevant
sections of the 2008 Act.
57.4 After considering the application, the Honourable Ms Justice Cloete
granted the applicant leave to bring an application for the provisional and
final winding-up of the Respondent in terms of 81(1)(c)(ii) and/or
81(1)(d)(iii) of the 2008 Act.131
57.5 The order is final insofar as the application for leave to bring the
application is concerned. It does not form part of the interim order that
was made subject to the rule nisi132 that is now anticipated by the
Respondent.
58. The wording of Rule 6(8), it being the Rule that was invoked by the Respondent,
contemplates the anticipation of an interim order (or a rule nisi) and not a final
order. Thus, and absent a successful application for the rescission of the order,
the order stands and the issue is res iudicata.133
59. However, and even if the final order giving leave to bring the main application
could be reconsidered by the Court (which it cannot), the Applicant would
nevertheless have demonstrated that it acts in the public interest (as contemplated
in section 157(1)(d) of the Act) in seeking the winding-up of the Respondent.
Before demonstrating why this is so, we firstly turn our attention to the proper
interpretation of section 157 of the 2008 Act.
131 Paragraph 1 of the Order of 1 June 2017 by the Honourable Ms Justice Cloete. 132 Paragraph 3 of the Order. 133 Jacobson v Havinga t/a Havingas 2001 (2) SA 177 (T).
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Interpretation of section 157134
60. Traditionally the legal standing for claims based on statute is determined with
reference to the relevant statute and its purpose.
61. It cannot be gainsaid that Parliament was aware of this narrow approach to
standing when it drafted the 2008 Act, and that it enacted section 157 of the Act
with the intention to expand the class of persons who may institute legal
proceedings under the Act.
62. Section 157(1) of the Act135 bears a striking resemblance to section 38 of the
Constitution.136
63. Although decisions on the interpretation and application of section 38 of the
Constitution could be helpful in interpreting section 157, one should not lose sight
of the fact that section 157 is not a provision of the Constitution.
134 The content under this heading have drawn liberally from Justice Chris Jafta’s publication in the Journal of Corporate and Commercial Law and Practice (2015 (1) JCCL&P 35) entitled: Critical Analysis of the Extended Legal Standing Provisions under Section 157(1) of the Companies Act 71 of 2008 to Apply for Legal Remedies. 135 (1) When, in terms of this Act, an application can be made to, or a matter can be brought before, a court, the
Companies Tribunal, the Panel or the Commission, the right to make the application or bring the matter may be exercised by a person- (a) directly contemplated in the particular provision of this Act; (b) acting on behalf of a person contemplated in paragraph (a), who cannot act in their own name; (c) acting as a member of, or in the interest of, a group or class of affected persons, or an association
acting in the interest of its members; or (d) acting in the public interest, with leave of the court.
136 Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. The persons who may approach a court are-
(a) anyone acting in their own interest; (b) anyone acting on behalf of another person who cannot act in their own name; (c) anyone acting as a member of, or in the interest of, a group or class of persons; (d) anyone acting in the public interest; and (e) an association acting in the interest of its members.
64. A useful and necessary starting point in interpreting section 157 is section 39(2) of
the Constitution which obliges a Court ‘to promote the spirit, purport and objects of
the Bill of Rights when they interpret legislation.
65. The purpose of section 157 is, as its heading suggests to extend legal standing in
proceedings brought in terms of the Companies Act. The meaning assigned to it
must achieve its purpose – put differently, the section must be given a purposive
interpretation.
66. The interpretation of section 157 must also advance the objects of the Companies
Act as stated in section 7 of the Act,137 for section 157 does not expand legal
standing simply for the sake of wider standing. It does so to promote goals of the
Act.
67. One of the stated goals of Act138 is “to promote compliance with the Bill of Rights
… in the application of company law”. This does not only accord with section 39(2)
of the Constitution but was seemingly also the purpose which influenced a
formulation of section 157 which resembled section 38 of the Constitution.
68. What is evident from the text of section 157 is that it does not only identify the
persons who ae clothed with legal standing to launch application proceedings, but
also identifies the types of interest an applicant may have.
69. Section 157(1)(d), being the section that is applicable in this application, grants
standing to any person who acts in the general public interest. However, the
exercise of this right to standing is subject to a prior approval by a competent
court. This requirement (of having to obtain leave from court) places the court in
control of applications instituted in the public interest so as to determine in
advance whether an applicant is entitled to institute proceedings. The notion that
the Minister has legal standing is fortified by the fact that extended locus standi
137 Section 5 of the Act. 138 Section 7(1) of the Act.
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was granted to the relevant Minister to bring a winding-up application on a just and
equitable basis under section 262 of the previous Companies Act, 61 of 1973.
The Minister acting in the Public Interest 70. It is one of the stated objectives of the Act to promote compliance with the Bill of
Rights … in the application of company law, and one would be hard-pressed to
imagine a more fitting case to lead the way in the interpretation of section 157 than
this application.
71. The entirety of this application pivots around the application and implementation of
the Approved Integrated Industry Waste Tyre Management Plan (“the Redisa
Plan”),139 which the Supreme Court of Appeal found to constitute subordinate
legislation.140
72. The Minister is the person responsible for the oversight and implementation of
South Africa’s environmental management systems (inclusive of the Redisa Plan),
both in terms of:
72.1 section 7(2) of the Constitution, which obliges her to ‘respect, protect,
promote and fulfil’, amongst others, the fundamental right, enjoyed by
everyone, ‘to an environment that is not harmful to their health or well-
being’ that is entrenched in section 24(a) of the Constitution; and
72.2 the National Environmental Management Waste Act, 59 of 2008.
73. The Minister’s application makes it clear that she has good grounds for believing
that the Respondent is involved in a scheme to divert Public Funds that are
earmarked for the furtherance of specific environmental management objective, to
139 A copy of the approved Redisa Plan is attached as annexure “BM5” to the Founding Affidavit at pages 240 to 293 of the record. 140 Retail Motor Industry Organisation v Minister of Water and Environmental Affairs 2014 (3) SA 251 (SCA) at [30]
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the Respondent’s executive directors who abuse the Respondent’s corporate
identity to achieve their goal.
74. The Respondent’s point in limine in respect of locus standi should with respect be
dismissed with costs.
Non-disclosure
75. The Applicant made a full disclosure of all the facts that may have a bearing on
relief sought in the application at hand.
76. The litigation that the Respondent complains was not disclosed141 is completely
irrelevant to the application at hand.
77. The Respondent confuses the administrative process of giving notice of the
Minister’s intention to consider the withdrawal of her approval of the Redisa Plan,
with this urgent application for the liquidation of the Respondent142 which are two
complete and separate processes to be addressed in two separate forums.
78. The Respondent is equally confused as to the required process to be followed for
the amendment of the Redisa Plan, which amendment should be done in terms of
Regulation 12 of the Waste Tyre Regulations and not in terms of the Waste Act as
alleged.143
79. The Respondent’s point in limine in respect of non-disclosure should with respect