About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 159
|
|
Kruger Investments Group Limited and Another v Nuberry Holdings Limited and Others (14184/15) [2015] ZAWCHC 159 (30 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: 14184/15
DATE:
30 OCTOBER 2015
In
the matter between:
KRUGER
INVESTMENTS GROUP
LIMITED
..........................................................
First
Applicant
KANDVEST
PARTNERS
LIMITED
.........................................................................
Second
Applicant
And
NUBERRY
HOLDINGS
LIMITED
...........................................................................
First
Respondent
TYRECOR
(PROPRIETARY)
LIMITED
.............................................................
Second
Respondent
FALCK
TRADING (PROPRIETARY)
LIMITED
..................................................
Third
Respondent
HARJEEV
SINGH
KANDHARI
............................................................................
Fourth
Respondent
NYNA
LIMITED
..........................................................................................................
Fifth
Respondent
EDONAI
SECRETARIAL COMPLIANCE
SERVICES
.........................................
Sixth
Respondent
JUDGMENT
DELIVERED
ON THIS 30
th
DAY OF OCTOBER 2015
VAN
ROOYEN,
AJ
[1]
The applicants, the first respondent
(“Nuberry”), the fourth respondent and the fifth
respondent (“Nyna”)
are
peregrini
in South Africa. The second respondent (“Tyrecor”) and
the third respondent (“Falck”) are companies registered
in South Africa.
[2]
On 31 July 2015 the applicants, on an
ex
parte
basis, obtained a rule
nisi
calling on the respondents and any interested party to show cause, if
any, why an order should not be made in
inter
alia
the following terms:
[2.1]
Authorising and permitting the first applicant (“Kruger
Investments”) and the Sheriff,
Cape Town, to attach Nuberry’s
securities and loan claims in Tyrecor and Falck
ad
fundandam vel confirmandam jurisdictionem
the relief against Nuberry, referred to in paragraph 5 of the notice
of motion (the applicants
inter alia
seek an order declaring that Nuberry holds the said shares and claims
in Tyrecor and Falck on constructive trust for the applicants).
[2.2]
Authorising and permitting Kruger Investments and the Sheriff, Cape
Town, to attach the fourth respondent’s
beneficial interest in
Tyrecor and Falck, held through Nuberry,
ad fundandam vel
confirmandam jurisdictionem
the relief against the fourth
respondent, referred to in paragraph 5 of the notice of motion (the
applicants
inter alia
seek an order declaring that, by causing
Nuberry to acquire 50% of the shares and claims in Tyrecor, and to
acquire the shares
and claims of the second applicant (“Kandvest”)
in Falck, the fourth respondent breached his fiduciary duties as a
director of the applicants).
[2.3]
interdicting and restraining Nuberry, the fourth respondent and the
sixth respondent (the company secretary of Tyrecor and
Falck) from
alienating, disposing of, encumbering or in any way dealing with
Nuberry’s securities and the loan claims in
Tyrecor and Falck,
pending the final determination of the contemplated action referred
to in paragraph 5 of the notice of motion.
[3]
In essence, if successful in the
contemplated action, the applicants will be declared to be owners of
the shares and claims in question.
FACTUAL
BACKGROUND
[4]
The facts are common cause.
[5]
The Al Dobowi Group of companies (“the
Al Dobowi Group”) houses a variety of the commercial interests
of the Kandhari
family, consisting of the fourth respondent, his
brother and their parents.
[6]
Kruger Investments (a company incorporated
in the Cayman Islands)
and Kandvest (a
company incorporated in the British Virgin Islands)
are
part of the Al Dobowi Group. The Al Dobowi Group, through Kruger
Investments and Kandvest respectively, holds an equity interest
in
Tyrecor and had an interest in Falck.
[7]
All of the shares in Kruger Investments and
Kandvest are held by Al Dobowi Investments Ltd, one of the companies
in the Al Dobowi
Group. The four members of the Kandhari family each
holds 25% of the shares in Al Dobowi Investments Ltd as well as Kays
Group
Ltd, another company within the Al Dobowi Group.
[8]
For some years certain companies within the
Al Dobowi Group, including Kays Group, had a business relationship
with Tyrecore and
associated companies, in terms of which Tyrecor was
appointed as a buyer for the resale of certain tyre products within
South and
Southern Africa.
[9]
During 2005/2006, Kays Group acquired 50%
of the issued and authorised shares and certain of the loan claims in
Tyrecor from the
De Villiers brothers. In terms of a shareholders’
agreement concluded between the shareholders of Tyrecor at the time,
the
initial directors of Tyrecor were agreed to be the De Villiers
brothers and the two Kandhari brothers. The fourth respondent’s
brother subsequently resigned, leaving the fourth respondent as the
sole Kandhari representative on the board of Tyrecor.
[10]
On 3 April 2012, Kays Group’s shares
and claims in Tyrecor were transferred to its sister-company, Kruger
Investments, which
thereafter held the 50% interest in Tyrecor on
behalf of the Kandhari family.
[11]
Kandvest acquired 50% of the issued and
authorised shares and certain of the loan claims in Falck from the De
Villiers brothers
in 2011. Following the acquisition, 50% of the
shares in Falck were held by Kandvest and the remaining 50% by the De
Villiers brothers.
[12]
At all material times, the boards of Kruger
Investments and Kandvest have comprised the fourth respondent and
other members of the
Kandhari family.
TRANSFER
OF SHARES IN TYRECOR TO NUBERRY
[13]
In May 2014, Kruger Investments’
board resolved to acquire the remaining 50% of the shares and claims
on loan accounts in
Tyrecor and Falck from the De Villiers brothers,
and authorised the fourth respondent to do so on behalf of Kruger
Investments.
[14]
However, on 4 July 2014, the remaining
shares and claims in Tyrecor and Falck were transferred to Nyna and,
immediately on transfer,
by Nyna to Nuberry.
[15]
The fourth respondent is the sole
shareholder and sole director of both Nyna and Nuberry.
Kruger
Investments’ claim
:
[16]
It is contended by Kruger Investments that,
as a director of Kruger Investments, the fourth respondent owed that
company a fiduciary
duty. A component of that duty required of the
fourth respondent to acquire any economic opportunity for Kruger
Investments. If,
in breach of that duty, an opportunity was acquired
not for Kruger Investments but for the fourth respondent, the
acquisition ought
to be treated as having been made for Kruger
Investments.
[17]
The 50% shares and loan claims of the De
Villiers brothers in Tyrecor were an economic opportunity for Kruger
Investments. In addition,
in May 2014 the fourth respondent was privy
to and part of a decision by the board of Kruger Investments to
acquire the De Villiers
brothers’ 50% shares and loan claims in
Tyrecor.
[18]
Instead of acquiring the De Villiers
brothers’ shares and claims in Tyrecor for Kruger Investments,
the fourth respondent
procured the acquisition on behalf of Nyna and,
ultimately, Nuberry.
[19]
The fourth respondent used Nyna and Nuberry
as his alter ego and those companies had knowledge of the fact that
the acquisitions
were in breach of the fourth respondent’s
fiduciary duties as a director of Kruger Investments. Kruger
Investments accordingly
has a claim against Nuberry directing it to
transfer the shares and claims in Tyrecor currently held by it, to
Kruger Investments.
[20]
In addition, Kruger Investments has a
damages claim against the fourth respondent arising from its reduced
equity interest (by way
of dividends and the like) in Tyrecor and for
damages to its business.
TRANSFER
OF SHARES IN FALCK TO NUBERRY
[21]
On 4 July 2014 Nyna procured from the De
Villiers brothers 50 of the 100 issued shares in Falck. The remaining
50% of the shares
were held by Kandvest. On the same day the De
Villiers brothers’ shares were transferred to Nyna and,
immediately on transfer,
to Nuberry. Moreover, on that date
Kandvest’s 50 shares in Falck were transferred directly to
Nuberry.
Kandvest’s
claim
:
[22]
The position in regard to the transfer of
the De Villiers brothers’ shares and claims in Falck to Nyna
and immediately thereafter
Nuberry, is the same as the position
regarding the transfer of the shares and claims in Tyrecor. The only
difference is the absence
of a director’s resolution similar to
that of the May 2014 resolution passed by the board of Kruger
Investments.
[23]
The De Villiers brothers resigned as
directors of Falck, leaving the fourth respondent as the sole
director.
[24]
It is contended by Kandvest that the De
Villiers brothers’ shares and claims in Falck were a corporate
opportunity which should
have been acquired for Kandvest. By
diverting this corporate opportunity to Nuberry via Nyna, the fourth
respondent acted in breach
of his fiduciary obligations as a director
of Kandvest.
[25]
In respect of the shares which Kandvest
itself held in Falck, the fourth respondent not only acted in breach
of his fiduciary obligations
as a director of Kandvest in procuring
the transfer of these shares to Nuberry, but in so doing he disposed
of a valuable asset
which the company held and did so for his
personal benefit.
RESPONDENTS’
CASE
[26]
In
order to found or confirm jurisdiction against a
peregrinus
,
a plaintiff must attach property belonging to the
peregrinus
within the jurisdiction of a Court in order to make the judgment
against the
peregrinus
effective.
[1]
[27]
It
must be established on a balance of probabilities that the property
so sought to be attached, belongs to the debtor.
[2]
[28]
The respondents submit that
the
applicants, and not Nuberry (the debtor), are the owners of the
shares and loan accounts which the applicants seek to attach.
That is
so, according to the respondents, because, fundamental
to
the contention of the applicants, is that the transfer of the De
Villiers brothers’ shares in Tyrecor to Nuberry via Nyna,
as
well as the transfer of the Kandvest shares and claims in Falck to
Nuberry,
were unlawful. According to the
respondents, it follows that the property sought to be attached to
found or confirm the jurisdiction
of this Court is owned not by
Nuberry but by the applicants.
[29]
The respondents, relying on
Thermo
Radiant,
further contend that, in any event, the requirement of
effectiveness has not been met.
[30]
In
Thermo
Radiant
the plaintiff, a South African
company, purchased a bakery oven from the defendant, an Australian
company, for the sum of R16,180.
The oven was installed in the
plaintiff’s bakery and in terms of the agreement between the
parties, the sum of R12,944 was
paid on delivery. It was agreed that
the balance of R3,236 would become payable after the oven had been
tested and found satisfactory.
The plaintiff averred that the oven
was not in accordance with specifications, that neither the quality,
nor the quantity of the
bread which the said oven was capable of
baking was in accordance with the warranties given, and that, despite
the repeated requests
by the plaintiff, the defendant had failed to
remedy the alleged defects. As a result, the plaintiff claimed
payment from the defendant
of the amount of R22,000 being damages
which it had allegedly suffered by reason of the defendant’s
breach of warranty. The
defendant denied liability and, in turn,
claimed payment of the sum of R3,236 being the balance of the
purchase price. In order
to found jurisdiction the plaintiff applied,
successfully, to the Court
a quo
to attach, as the only alleged asset within South Africa of the
defendant, its claim against the plaintiff for R3,236.
[31]
On appeal the attachment was set aside. The
majority judgment did so on the basis that it was implicit in the
plaintiff’s
action that the purported claim for payment of the
amount of R3,236 did not exist. It was held that, to attach such a
claim, would
be to allow the applicants in the Court a quo to
approbate and reprobate.
[32]
In
a separate minority judgment it was held that the purpose of an
attachment was to enable the Court to pronounce a judgment which
will
not be void of result. It was held that
[3]
:
“
In
the instant case, if judgment is given in favour of plaintiff it will
be implicit in that judgment that the latter is not liable
to
defendant for the balance of the purchase price. The result of such a
judgment will also be that plaintiff was, since repudiation
of the
agreement, not liable for the purchase price. It is only when
judgment is given in favour of plaintiff that the question
arises
whether the Court can give an effective judgment against the
peregrine defendant. It follows, therefore, that at the time
application was made for the setting aside of the attachment, the
only relevant consideration was what the position would be if
judgment is given against the peregrine defendant. At that time
plaintiff had already repudiated the agreement and it follows,
therefore, that when the application was made, it was clear that if
judgment is given in favour of plaintiff the effect thereof
would be
that no debt would be in existence at that time and it follows that
no debt was in existence when the edictal citation
was served on
defendant. The result is that there was no debt in existence when the
action was instituted nor will there be when
judgment is given in
favour of plaintiff. The court would accordingly not be in a position
to give an effective judgment in the
sense indicated above and the
attachment should therefore be set aside.
”
[33]
The respondents submit that the above
principles apply to the facts of this matter because, if judgment is
ultimately given in favour
of the applicants, it will be on the basis
that the latter are indeed the owners of the property sought to be
attached and not
the relevant respondents. Consequently, this Court
will then not be in a position to give an effective judgment.
[34]
The respondents contend that it follows
that the interim interdict should be set aside as it is inextricably
linked to the contemplated
action and if this Court does not have
jurisdiction in respect of such action, any interdict pending the
determination of the action
cannot survive.
ANALYSIS
Ownership
[35]
The
crucial moment for requiring proof of the ownership in the goods at
which attachment is aimed, is the moment when the Judge,
hearing an
application for attachment
ad
fundandam vel confirmandam jurisdictionem,
is
requested to issue such an order.
[4]
[36]
It
is common cause that the law of the Cayman Islands (where Kruger
Investments is domiciled) and the law of the British Virgin
Islands
(where Kandvest is domiciled) in relation to the fiduciary
obligations of a director, and a company’s remedies against
its
director on breach of that fiduciary duty, is similar to that of
English law. It is also common cause that the position
in
English law is similar to that in our law. The remedies
available against those who occupy a fiduciary position and act
in
breach of their fiduciary duties – whether it be a company
against its director, an employer against its employee or a
principal
against its agent – are essentially similar
[5]
.
[37]
In
the case of a fiduciary who acquires for himself a corporate
opportunity in breach of the fiduciary obligation he owes to his
“
trust
”,
it is said that the fiduciary is “
deemed
to have acquired
”
for the trust
[6]
.
[38]
In
respect of property acquired in this way, the “
trust
”
has a remedy against the fiduciary, requiring the fiduciary to
account in respect of the property or corporate opportunity
so
acquired
[7]
.
[39]
The
usual meaning of “
deemed
”
is “…
an
admission that
it
is not what it is deemed to be
and that, notwithstanding it is not that particular thing,
nevertheless … it is deemed to be that thing
”
(emphasis supplied)
[8]
. In
the context of a claim against the fiduciary, it is a way of
describing the rationale for the remedy which the trust
has against
the fiduciary.
[40]
As
between
the company and its director, a transaction effected in breach of a
fiduciary duty is not void, but voidable at the instance
of the
company while
restitutio
in integrum
is still possible
[9]
.
Moreover, where the director has already sold the corporate
opportunity to a
bona
fide
third party, the company’s remedy against a director is limited
to a claim to any profits made, or damages suffered in respect
of the
transaction
[10]
. In his
concurring judgment in
Robinson
v Randfontein Estates Goldmining Co Ltd
[11]
,
Solomon JA put the position as follows (emphasis supplied):
“
Assuming
that the defendant was an agent of the plaintiff company at the time
of the purchase, and that it was his duty to have
bought the property
on its behalf, the fact remains that when he bought he was not acting
as its agent but was buying on his own
account.
It
was he, therefore, and not the plaintiff company, who became entitled
to the property, and when he obtained transfer, it vested
in him
.
It follows that when he sold to the Waterval Trust he was selling
not
the property of the plaintiff company, but his own
.
But then the Courts of law step in, when the transaction is
challenged and say to the defendant ‘we will not allow
you to
retain
the benefit of the
property which you acquired by a breach of trust
,
but we will put the plaintiff company in the same position as [it]
would have been in had you discharged your duty; you must therefore
refund to [it] the profit which you made out of the transaction’
… If the defendant, instead of selling the property
[back
to his company]
had retained it for his
own use, a similar
action would
have lain against him to hand over the property to the plaintiff
company
, on payment of the
expense which he had incurred. Or, if he had sold it to someone
else, and had made a profit out of the
transaction, the plaintiff
company would have been entitled to claim from him such profit.”
[41]
If, therefore, the asset in question is no
longer in the possession of the director and has been disposed of to
a
bona fide
third party, the company’s remedy against the director is a
limited one for disgorgement of his profit and/or damages.
The
company cannot simply recover the asset from the third party by way
of a
res vindicatio
,
as would be the case were the company the true owner of the asset
purchased by the director.
[42]
If, as the respondents submit, a corporate
opportunity unlawfully acquired by a director for himself is in fact
and in law the property
of the company – that is, the
opportunity is in law owned by the company, notwithstanding the fact
that the company itself
had not actually acquired it (and may not
even ever have intended acquiring it, and indeed may not even be in a
position to acquire
it on the terms on which it was acquired by the
director) - the company would have the right to recover the asset
from innocent
third parties to whom the director has in the meantime
disposed of the asset. However, that is not our law.
[43]
In
English law
the language employed is somewhat different from our law, but the
concept is similar. A company director who acquires
property in
breach of his fiduciary duties to his company acquires the property
“
on constructive trust
”
for the company. Like a “
deemed
”
acquisition, acquisition of property on “
constructive
trust
” does not connote actual
acquisition of the property by the company. It denotes
something which, for the purposes of
the company’s remedy
against its director, is deemed to be the case.
[44]
It
is for this reason that, if the property concerned has been on-sold
by the director to a third party, “…
the
company can recover the property or its value from any person into
whose hands it comes
if
he knew of the breach of duty, or if he knew of facts which should
have caused him to suspect that a breach had been committed
”.
Only in those circumstances can a company recover the property “…
from
the person in whom the legal title to it is vested
”,
that is, from its “
present
legal owner
”
[12]
.
If a corporate opportunity acquired by a company director “
on
constructive trust”
vested the company with ownership
ipso
jure
under English law, the company would be entitled to recover the
property from third parties whether or not they had knowledge of
the
director’s breach of duty, or should reasonably have had such
knowledge.
[45]
The doctrine of “
constructive
trust”
is an equitable remedy
which arose in the English Courts of equity. It has been
described as follows:
“
Equity
is concerned to give effect to equitable interests,
bereft
of legal ownership
.
Thus it will place trust property into the hands of a volunteer,
where it is not inequitable to do so, and will hold a purchaser
for
value liable as constructive trustee if he had actual or constructive
notice that the transfer to him was of trust property
in breach of
trust.
”
[13]
(emphasis supplied)
[46]
In
Paragon
Finance plc v D B Thakerar & Co
[1998] EWCA Civ 1249
;
[1999]
1 All ER 400
CA, at 409a-b, the rationale for the doctrine was
described as follows:
“
A
constructive trust arises by operation of law whenever the
circumstances are such that it would be unconscionable for the owner
of property (usually but
not
necessarily the legal estate
)
to assert his own beneficial interest in the property and deny the
beneficial interest of another.
”
[14]
(emphasis supplied)
[47]
Where, therefore, a director has diverted a
corporate opportunity, the company may sue the director for its
delivery, but is not
obliged to do so. Were it the position
that the law views the company as the
de
jure
owner of the property acquired by
its director in breach of his fiduciary obligations, the company
would not have an election whether
or not to sue the director for
delivery.
[48]
Counsel
for the respondents argued that the case made out by the applicants
in their affidavits is that the shares and claims belong
to them (not
to Nuberry) and that they have therefore failed to meet the
requirement that the property which they seek to attach,
belongs to
the debtor. He pointed out that: (a) the applicants’ expert on
the laws of the British Virgin Islands and the
Cayman Islands refers
to the restoration of “
a
company’s property
”
where a director has breached his fiduciary duties; and (b) the rule
nisi
granted on 31 July 2015 contemplates that proceedings be instituted
by the applicants for relief which includes an order declaring
that
the first respondent holds the shares and claims “
on
constructive trust for”
the applicants. Counsel further argued that the applicants’
assertion in their affidavits that the shares and claims belong
to
them, accords with the
de
jure
position in the British Virgin Islands, the Cayman Islands and South
Africa when a director breaches his fiduciary duties. He relied
inter
alia
on the following passage from
Gower
and Davies’ Principles of Modern Company Law
[15]
and particularly
emphasised the underlined part:
“
Although
the directors are not trustees of the company’s property (which
is held by the company itself as a separate legal
person), we have
noted at a number of points in this chapter that the courts sometimes
treat directors as if they were such trustees.
In particular, where a
director disposes of the company’s property in unauthorised
ways, and in consequence the company’s
property comes into his
or her own hands, the director will be treated as a constructive
trustee of the property for the company.
This means that it can be
recovered in rem from the director, so far as traceable; and that the
company’s claim will have
priority over those of the director’s
creditors (since
the property is
the company’s property, not the director’s
).
”
(underlining supplied)
[49]
This argument ignores the fact that, in the
applicants’ notice of motion, the rule
nisi
granted on 31 July 2015 and the affidavit of the applicants’
expert, the references to “
constructive
trust for
” the applicants and
“
the company’s property
”
presuppose a declaratory order that the property is considered to
belong to the applicants. By implication, Gower too contemplates
the
intervention of a court to establish “
constructive
trust
” before it can be said that
the property belongs to the company. That is evident from the
observation that “
(a)lthough the
directors are not trustees of the company’s property (which is
held by the company itself as a separate legal
person), we have noted
at a number of points in this chapter that
the
courts sometimes treat directors as if they were such trustees
”
(underlining supplied).
[50]
Similarly, in our law the intervention of a
court is required to establish that a fiduciary who in breach of his
duty acquired property,
is deemed to have acquired it for his “
trust
”
before it can be said that the property belongs to the “
trust”.
See for example
Robinson v Randfontein,
supra,
where it was stated that “…
the
Courts of law step in, when the transaction is challenged
and
say to the defendant ‘we will not allow you to retain the
benefit of the property which you acquired by a breach of trust…’
…”.
(underlining supplied)
[51]
The principle merely provides a cause of
action, not automatic ownership.
[52]
The applicants therefore require the
intervention of a court before they can exercise the rights of an
owner in relation to the
shares and the claims. They need to
institute court proceedings in which they must prove that the first
respondent owed them a
fiduciary duty, that he breached that duty and
that the doctrine of “
constructive
trust
” applies. Unless they
obtain a court order, they are not the owners of the shares and the
claims.
Development
of the common law
[53]
The applicants’ counsel argued that,
in the event of it being found that the applicants were the owners of
the shares and
the claims at the time of the hearing of this matter,
the common law ought to be developed to permit attachment of the
shares and
the claims.
[54]
Whilst
I am mindful of the cautionary note sounded in
Tsung
[16]
regarding development of
the common law, justice may demand a development of the common law to
allow attachment
ad
fundandam
vel
confirmandam jurisdictionem
in
a situation such as this, regardless of ownership, particularly when
a party will be denied access to our Courts if the attachment
is not
permitted.
[55]
It
may be argued that the way has already been paved in
Italtrafo
SpA v Electricity Supply Commission
1978
(2) SA 705
(W) where it was found
[17]
that
the debtor in that matter was the owner of the property sought to be
attached or “
had
a beneficial interest therein”
,
rendering it capable of attachment
ad
fundandam
jurisdictionem
.
[56]
In
terms of
s 37(9)
of the
Companies Act, 71 of 2008
, Nuberry is entered
as a shareholder in the securities registers of Tyrecore and Falck.
Pursuant to the definition of “
shareholder
”
in
s 1
of the
Companies Act, Nuberry
is therefore a shareholder for
purposes of the
Companies Act, having
certain rights (such as the
right to attend shareholders’ meetings and to vote) to the
exclusion of the applicants. If the
applicants are the owners of the
shares, they do not enjoy the full effect of ownership because
Nuberry is the registered shareholder.
In these circumstances the
applicants can only obtain the rights currently held by Nuberry if
the applicants are successful in
the main application and the
securities registers of Tyrecore and Falck are amended to reflect the
applicants as shareholders.
A judgment in favour of the applicants in
the main application will therefore be effective. This is to be
distinguished from the
situation where it will be “
futile
and of no effect”
[18]
to
attach the property of a third party.
[57]
However, I need not determine whether the
common law should be developed in this respect as I have already
found that Nuberry is
the owner of the shares.
Effectiveness
[58]
On
the authority of a passage from the judgment of Potgieter JA in
Thermo
Radiant
[19]
the respondents further argue that, if the Court ultimately grants
the applicants the relief they seek in the main action, the
assets
attached will be transferred to the applicants and the Court will
then not be in a position to give an effective judgment.
[59]
The position in
casu
is entirely different from the position in
Thermo
Radiant
where the plaintiff sought to
attach the defendant’s claim in reconvention for R3,236 against
the plaintiff. However, on the
plaintiff’s own case, the
defendant did not have a claim against the plaintiff. Consequently,
there was nothing that could
be attached and nothing that could be
used to make a judgment in favour of the plaintiff effective.
[60]
By contrast, in the present case, it is not
in issue that the shares and claims exist. The identity of the owner
is the only issue
and I have already found that Nuberry (the debtor)
is the owner.
[61]
Attachment
of the very assets in respect of which the applicants lay claim is
consistent with the notion that the Court should be
in a position to
give an effective judgment. Assuming that the Court in the main
action finds for the applicants, it will make
an order directing the
respondents to ensure that the shares and claims be transferred to
the applicants and that the share registers
of Tyrecor and Falck are
written up to reflect this. If the respondents fail to give effect to
such an order, the Court will be
in a position to ensure an effective
judgment by
inter
alia
requiring the Sheriff to do whatever is necessary to effect this
transfer and amendment to the share register of Tyrecor and Falck.
Attachment will therefore not be “
merely
empty symbolism”.
[20]
[62]
The rule
nisi
granted by this Court on 31 July 2015 is therefore confirmed with
costs, including the costs of two counsel where two counsel were
employed.
R
F VAN ROOYEN, AJ
[1]
Thermo
Radiant Oven Sales (Pty) Ltd v Nelspruit Bakeries (Pty) Ltd
1969 (2) SA 295
(A) at 307A-310H;
Tsung
v Industrial Development Corporation of SA Ltd
[2006] ZASCA 28
;
2006 (4) SA 177
(SCA) at para
[6]
[2]
Lendalease
Finance (Pty) Ltd v Corporacion De Mercadeo Agricola and Others
1976 (4) SA 464
(A) at 489B-C
[3]
At 310
[4]
Numill
Marketing CC and Another v Sitra Wood Products Pte Ltd and Another
1994
(3) SA 460
(C) at 466G-H
[5]
Phillips
v Fieldstone Africa (Pty) Ltd and Another
2004
(3) SA 465
(SCA), at paras [29]-[32].
[6]
Transvaal
Cold Storage Co Ltd v Palmer
1904
TS 4
at 20;
Phillips
v Fieldstone Africa (Pty) Ltd & Another, supra,
at para [31] (the judgment of Heher JA) and para [11] (the judgment
of Streicher JA).
[7]
Phillips
v Fieldstone Africa (Pty) Ltd & Another, supra,
at
para [11] (the judgment of Streicher JA);
Da
Silva v CH Chemicals (Pty) Ltd
[2009] 1 All SA 216
(SCA) at para [20].
[8]
Ex
parte Strydom NO; In re Central Plumbing Works (Natal) (Pty) Ltd &
3 other cases
1988 (1) SA 616
(D&CLD) at 620F-G. In
Ex
parte Strydom
the Court accordingly held that a provision in a scheme of
arrangement, in terms of which the offeror was “
deemed”
to have acquired the claims of creditors, was one whereby it was
proposed that the proposer “
should
be regarded as having acquired them, regardless of the objective
truth of the matter
”
(see at 621C).
[9]
Kunst
et
al, Henochsberg on the
Companies Act
,
Vol. 1 at 466; Cf
Gundelfinger
v African Textile Manufacturers Ltd and Others
1939 AD 314 at 326.
[10]
Blackman
et
al, Commentary on the
Companies Act
,
Vol. 2 at 8-162.
[11]
Robinson
v Randfontein Estates Gold Mining Co Ltd
1921
AD 168
, at 241. In
Philips
v Fieldstone Africa (Pty) Ltd & Another, supra,
Robinson
v Randfontein Estates Goldmining Co
was referred to with approval – see at paras [30]-[32] of the
judgment.
[12]
Pennington’s
Company
Law
,
8th ed (2006) at 740.
[13]
Selangor
United Rubber Estates Ltd v Cradock (a bankrupt) and Others (No. 3)
[1968]
2 All ER 1073
(Ch.D) at 1098E.
[14]
See
too
JJ
Harrison (Properties) Ltd v Harrison
[2001] EWCA Civ 1467
;
[2002]
1 B.C.L.C. 162
, CA at para [26]
[15]
9
th
ed at 615
[16]
At para [11]
[17]
At para 712H
[18]
Lendalease
Finance
at
489C
[19]
At 310
[20]
Bid
Industrial Holdings (Pty) Ltd v Strang and Another (Minister of
Justice and Constitutional Development, Third Party)
2008
(3) SA 355
(SCA) at para [29]