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[2023] ZAGPJHC 816
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Dladla and Others v CNG Holdings (Pty) Ltd and Others (37732/2021) [2023] ZAGPJHC 816 (18 July 2023)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO: 37732/2021
In the matter between:
JOHN ZAZI DLADLA
First
Applicant
SESHUPO THABISO
MAGEZA
Second
Applicant
SAKHIKUSASA
CONSTRUCTION AND PROJECTS (PTY) LTD
Third Applicant
And
CNG HOLIDNGS (PTY)
LTD
First
Respondent
XOLILE LENNOX
SIZANI
Second
Respondent
MUSA HLONGWA
Third
Respondent
ALETA JOVNER
Fourth
Respondent
THANDI HILLIE
Fifth
Respondent
STEVEN LEE ROTHMAN
Sixth
Respondent
MARK
OTTO
Seventh
Respondent
SHAHEEN
SAMSODIEN ATTORNEYS
Eighth
Respondent
JUDGMENT IN RESPECT OF
APPLICATION FOR LEAVE
TO APPEAL
MAKUME, J
:
[1] On the 6
th
August 2021 the Applicant launched an application in which they
sought an order calling upon the Respondent to show cause why the
decision of the Board of the first Respondent taken on 16
th
July 2021 should not be reviewed and set aside. That decision
concerned the dismissal of the first and second Applicants
as
Executor Director of the first Respondent.
[2] On the 20
th
June 2022 the Applicants filed an interlocutory application in terms
of Rule 7(1) of the Rules of Court in which they seek an order
that
the Eighth Respondent have not been authorised to represent the first
Respondent.
[3] On the 31
st
January 2023 I dismissed the interlocutory application with costs
which shall include costs of two Counsel wherever employed.
[4] The Applicants now
seek leave to appeal against that interlocutory ruling. It is
opposed by the first to seventh Respondents.
[5] The Applicants main
ground of appeal is that this Court incorrectly interpreted clause
11.1 of the Memorandum of Incorporation
of the Company.
[6] The test applicable
in determining whether or not leave to appeal should or should not be
granted was clearly set out by Bertelsman
J in the matter of
The
Mount Chevaux Trust v Tina Goosen & 18 Others [2014] JDR 2325
(LCC) at paragraph 6
wherein the following was said:
“
It is clear that
the threshold for granting leave to appeal against a judgement of a
High Court has been raised in the new Act.
The former test
whether leave to appeal should be granted was a reasonable prospect
that another Court might come to a different
conclusion, See:
Van
Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343 H
.
[7] I do not intend to
traverse the content of my judgement and the reasons therein save to
say that the purpose behind the interlocutory
application was to find
that the eighth Respondent had no authority to act for the first
Respondent because the decision to appoint
them as attorneys of
record was passed at an improperly constituted board meeting.
[8] I made reference and
relied on the provisions of Section 66 (11) of the Companies Act and
made a finding that even if the Board
was not properly constituted
(which is not admitted) the decision to appoint the eighth Respondent
remains valid.
[9] There are no
reasonable prospects that the appeal would succeed. The
Applicants have failed to set out the proper grounds
on which they
rely on and on which they allege there are reasonable prospects of
success.
[10] In the result I make
the following order:
ORDER
1.
The Application for Leave to Appeal is dismissed.
2.
The Applicant is ordered to pay the Respondent taxed party and party
costs including the costs of two Counsel.
Dated at Johannesburg on
this
day of July 2023
M A
MAKUME
JUDGE OF
THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Appearances:
DATE OF HEARING :
21 JUNE 2023
DATE OF JUDGMENT
: 18 JULY 2023
FOR APPLICANT:
ADV BERLOWITZ
INSTRUCTED BY :
MESSRS AARONS ATTORNEYS
INC.
FOR 1
ST
TO
8
TH
RESPONDENTS:
ADV CARRIM
INSTRUCTED BY:
SHAHEEM SAMSODIEN
ATTORNEYS
4
TH
,5
TH
& 11
TH
RESPONDENTS:
ADV COWLEY
:ON WATCHING BRIEF