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[2016] ZAGPJHC 253
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Carstens v Millennium Clutch Manufacturing (Pty) Ltd (29777/2015) [2016] ZAGPJHC 253 (12 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
29777/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHERS
In
the matter between:
CARSTENS,
CHRISTOFF
Applicant
and
MILLENNIUM
CLUTCH MANUFACTURING (PTY) LTD
(Reg
No:
1998/019341/07)
Respondent
JUDGMENT
Van
der Linde, J
[1]
This is an application for the winding up
of a private company by an ex-director but still shareholder, who
seeks to have his loan
account repaid.
In
limine
the respondent disputes
jurisdiction, on the basis that both its main place of business and
its registered address are in the jurisdiction
of the Western Cape
Division of the High Court. Although these are concepts dating from
the previous Companies Act 61 of 1973,
they are necessarily preserved
for applications such as the present, submits Mr Manca, SC for the
respondent, by dint of paragraph
9(1) of schedule 5 of the
Companies
Act 71 of 2008
.
[2]
Mr Manca relies amongst others on the
judgment of Gamble, J in Van der Merwe v Duraline (Pty) Ltd
(7344/2013)
[2013] ZAWCHC 213
, in which the learned judge came to
this conclusion, declining to follow Binns-Ward, J in Sibakhulu
Construction v Wedgewood Village
Golf Country Estate (Pty) Ltd,
2013
(1) SA 191
(WCC) on the basis that he was clearly wrong.
[3]
With respect, I agree with Gamble, J. His
reasoning in [15] to [30] is thorough, pervasive, and persuasive.
Particularly, the saving
of chapter 14 of the old Act must be
understood to include all other sections outside of chapter 14 that
are necessarily incorporated
into the sections within chapter 14. The
legislature intended, it is suggested, that the process of the
winding-up of companies
would continue unchanged was it was under the
previous statutory regime. However, for the reason mentioned in the
next but one
paragraph, this consideration is really of academic
value only in this case.
[4]
Mr van der Merwe for the applicant was
content to submit that s.12 of the old Act was repealed, and so the
notions of registered
office and main place of business too
disappeared. He submitted that the concept of an “office”
or “principal
office” under s.23(3)(b) of the 2008 Act
now supplants the dual office regime of old, also for purposes of
chapter 14 of
the old Act.
[5]
Even if this submission were correct, it
seems irrelevant, for this reason. If the new Act were to be applied,
the respondent will
have lost, in a juridical sense, its main place
of business. But it would not have lost its registered office, since
that is something
it must have. On the applicant’s argument,
what was before the registered office will remain its registered
office, which
is and has always been in the jurisdiction of the
Western Cape High Court. In other words, if the applicant is correct
the only
basis for which it contends this court has jurisdiction,
namely that its main place of business is within the jurisdiction of
this
court, will evaporate.
[6]
In the alternative, Mr Van der Merwe
submitted that the respondent’s financial statements described
its “
business address”
as being within the jurisdiction of this court, and that that was
sufficient to establish that the respondent’s main place
of
business was here.
[7]
However, the respondent’s answering
affidavit convincingly proves that the main place of business was in
the Western Cape,
amongst other things because that was where the
members’ and directors’ meetings were held; where the
bank accounts
were administered; where the resolutions were taken;
and where the computer file server was located.
[8]
Those allegations were not capable of being
swept away in the replying affidavit, and the conclusion must be that
the main place
of business, as the registered address, is within the
jurisdiction of the Western Cape High Court, and that this court
therefore
has no jurisdiction to entertain the present application.
The point taken by the respondent must therefore be upheld.
[9]
Mr van der Merwe applied, conditional upon
the result just reached, for an order under
s.27(1)(a)
of the
Superior Courts Act 10 of 2013
, removing the winding-up
application to the High Court, Western Cape Division. The power there
granted is to order such a removal,
“…
if
it appears … that such proceedings … should have been
instituted in another division.”
[10]
In Road Accident Fund v Rampukar; Road Accident Fund v Gumede,
2008
(2) SA 534
(SCA) Brand, JA considered s.3(1)(a) of the Interim
Rationalisation of Jurisdiction of High Courts Act 41 of 2001. This
legislation
is comparable with
s.27
of the
Superior Courts Act. His
lordship specifically considered the submission that before a court
could order such a removal, the matter must be subject to the
court’s
jurisdiction to start off with.
[11]The
learned judge rejected that argument, holding that the two types of
prerequisites for the exercise of the court’s
power were
deliberately juxtaposed: convenience
(s.27(1)(b))
presupposes the
prior existence of jurisdiction, but normativeness
(s.27(1)(a))
just
the opposite. His lordship thus held, in a word, that even a matter
mistakenly launched within the jurisdiction of a court
which has no
jurisdiction, may validly be removed to another court which does have
the jurisdiction.
[12]
These considerations apply, with respect, equally here. It is true,
as Mr Manca submitted, that the applicant as past director
knew the
true state of affairs, and that the mistake is thus his; but of
course the mistake may have been of his legal advisors.
[13]
The principal factor that sways me to grant a removal is this. The
application has been prepared, and the matter is ripe for
hearing;
now to have it start up afresh seems a complete waste of past effort
and resources. If anyone is to pay a price for the
mistake, that can
be achieved by an appropriate costs order.
[14]
Coming then to costs, the blame for the day’s hearing in this
court without the advantage of the case being progressed
forward,
must be laid at the door of the applicant. He should pay those costs.
The other costs must follow the fortunes or otherwise
of the merits
of the winding up application.
[15]
In the result I make the following order:
(a)
This application is hereby removed, under
s.27(1)(a) of the Superior Courts Act 10 of 2003, to the High Court,
Western Cape Division.
(b)
The applicant is directed to pay the costs
of today on an opposed scale.
(c)
The remainder of the costs of the
application are costs in the cause.
WHG van der Linde
Judge, High Court
Johannesburg
For
the applicant: Adv. C. van der Merwe
Instructed
by: MC Kruger Attorneys
5
th
Floor, Mentone Centre
1
Park Road, Richmond
Johannesburg
Tel:
011 482 6235
Ref:
M C Kruger/mck/C048
For
the first respondent: Adv. B.J. Manca, SC
Instructed
by: Edward Nathan Sonnenbergs Inc.
1
North Wharf Square
Loop
Street, Foreshore
Cape
Town
Tel:
021 410 2500
Ref:
A Cowlin/ K Abrahams)
Date
argued: 8 September, 2016
Date
of judgment: 12 September, 2016