that the applicant has explicitly set forth the reasons why it will not obtain substantial redress in due course as required by Rule 73(4)(b). Respondents unable to have a fair hearing in terms of Article 12 of the Constitution: [51] Mr Namandje took issue with the short notice in this matter and bringing the application on urgent basis, in spite of the history in this matter. He further took issue with the fact that the applicant only alluded that an application in terms of section 57 and 58 of the Banking Institutions Act, 1998 might be brought but at no stage did the applicant pertinently made its intentions clear in this regard. He argued further that, within one day after a date on which the shareholders were to recapitalize, (being 03 July 2017 at 12:00), this voluminous application was filed on two days notice, in a possible attempt to gain an advantage over the fourth and fifth respondents. [52] Adv. Corbett argued to the contrary stating that the position of the SME Bank is not static in nature but ever changing and that it is in a downward spiral at this stage. He argued due to the failure of the shareholders to recapitalize, the position of the bank became so dire that the matter had to be attended to as a matter of urgency and that notice was given, albeit short. He further stated that in all the correspondence to the fourth and fifth respondents, they were informed of the possible winding-up of the SME Bank if there is no recapitalization done by the shareholders and they were thus forewarned. [53] In this regard the court take note that it was found in the Petroneft matter that whether or not the applicant has forewarned the decision-maker of a possible application, is according to Radebe’s case, is a factor which weighs in the applicant’s favour. It is clear that the fourth and fifth respondents were indeed put on alert as to the solvency problems of the SME Bank and also what consequence would be that would follow if the position persists. [54] Whilst it is clear in this matter that application was brought on short notice and that the respondents were afforded a short period of time to provide answering papers, they have not sought any postponement and have in fact filed the answering affidavit and supporting documents within a day. This was done in spite of the
that the applicant has explicitly set forth the reasons why it will not obtain substantial redress in due course as required by Rule 73(4)(b). Respondents unable to have a fair hearing in terms of Article 12 of the Constitution: [51] Mr Namandje took issue with the short notice in this matter and bringing the application on urgent basis, in spite of the history in this matter. He further took issue with the fact that the applicant only alluded that an application in terms of section 57 and 58 of the Banking Institutions Act, 1998 might be brought but at no stage did the applicant pertinently made its intentions clear in this regard. He argued further that, within one day after a date on which the shareholders were to recapitalize, (being 03 July 2017 at 12:00), this voluminous application was filed on two days notice, in a possible attempt to gain an advantage over the fourth and fifth respondents. [52] Adv. Corbett argued to the contrary stating that the position of the SME Bank is not static in nature but ever changing and that it is in a downward spiral at this stage. He argued due to the failure of the shareholders to recapitalize, the position of the bank became so dire that the matter had to be attended to as a matter of urgency and that notice was given, albeit short. He further stated that in all the correspondence to the fourth and fifth respondents, they were informed of the possible winding-up of the SME Bank if there is no recapitalization done by the shareholders and they were thus forewarned. [53] In this regard the court take note that it was found in the Petroneft matter that whether or not the applicant has forewarned the decision-maker of a possible application, is according to Radebe’s case, is a factor which weighs in the applicant’s favour. It is clear that the fourth and fifth respondents were indeed put on alert as to the solvency problems of the SME Bank and also what consequence would be that would follow if the position persists. [54] Whilst it is clear in this matter that application was brought on short notice and that the respondents were afforded a short period of time to provide answering papers, they have not sought any postponement and have in fact filed the answering affidavit and supporting documents within a day. This was done in spite of the
BON%20v%20Small%20and%20Medium%20Enterprises%20Bank%20Limited%20(HC-MD-CIV-MOT-GEN-2017-00227)%20[2017]%20NAHCMD%20187%20(10%20July%202017).docx