About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 1
|
|
Roberts N.O and Others v Nutri Chef (Pty) Ltd and Another (2705/2023) [2024] ZAFSHC 1 (2 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
2705/2023
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
PHILIP
ROBERTS N.O.
First
Applicant
HEILTJE
MAGDALENA ROBERTS N.O.
Second
Applicant
STANLEY
ROBERTS N.O.
Third
Applicant
[The
first to third applicants cited in their respective capacities
as
trustees for the time being of the
Uzenheim Trust
IT:
001055/2015(B)]
and
NUTRI
CHEF (PTY) LTD
First
Respondent
WILLEM
MICHIEL BOSCH
Second
Respondent
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
14 SEPTEMBER 2023
DELIVERED
ON:
2 JANUARY 2024
This
judgment was delivered in open court and subsequently distributed to
the parties by electronic mail communication.
[1]
The applicants are the trustees for the time being of the Uzenheim
Trust (the Trust). Nutri
Chef (Pty) Ltd (Nutri Chef) is the
first respondent and its sole director, Mr WM Bosch (the second
respondent). References to the
parties will be interchangeably as the
applicant(s), the Trust, the respondent(s) and Nutri Chef.
[2]
The applicant by way of motion proceedings seeks relief from the
respondents in the following
terms:
“
1.
That the respondents be ordered to make available the documents set
out herein to the
Trust, within 14 days of date of this order, by
delivery of true copies thereof to the applicants’ attorney of
record c/o
Mr B.M. Jones, Honey Attorneys, Honey Chambers, Northridge
Mall, Kenneth Kaunda Road, Bloemfontein, Free State Province, namely:
1.1
The first respondent’s Memorandum of
Incorporation, alternatively, articles of association and memorandum
of association from
its incorporation, inclusive of any amendments
that may have been affected to the documentation aforesaid;
1.2
The first respondent’s notices,
reports and minutes in respect of its annual meetings;
1.3
The first respondent’s share register
from its incorporation interest to present;
1.4
The first respondent’s annual
financial statements for the financial years ending February 2019 to
February 2023;
1.5
Minutes and resolutions of the board of
directors of the first respondent for the past 5 years; and
1.6
Trial balances, balance sheets, general
ledgers, cash flow, income and expenditure statements and bank
statements of the first respondent
for the years ending 1 February
2018 to February 2023.”
The applicants also move
for a cost order on a punitive scale against the respondents.
[3]
The Trust relies thereon that it is entitled to the relief as it is a
co-shareholder of the respondent
and by operation of law is entitled
to the documentation. It annexes share certificates, all dated 14
August 2017, which indicate
that the Trust is the registered
proprietor of twenty ordinary no par value fully paid shares in the
respondent. It further extensively
deals with the provisions of the
Companies Act
[1]
in its founding
papers.
[4]
The respondents oppose the relief sought and place reliance thereon
that the Trust sold its 20%
shareholding in Nutri Chef to the second
respondent and one Mr Gutter on 10 July 2018.
[5]
In its replying affidavit the applicants at the time of the replying
affidavit stated that the
singular issue in this matter revolves
around determination of the question whether the applicant is a
shareholder of the first
respondent. In addition thereto,
the applicant in the affidavit states that if the answer to the
aforementioned question
is in the positive, then and in that event,
it follows that the legal relief sought by the application is to be
granted and conversely,
should the answer be in the negative then,
and in that event, the relief sought stands to be dismissed. In
principle I agree.
[6]
The aforementioned approach was also the approach by both counsel who
appeared respectively for
the applicants and respondents. I thank
them for their comprehensive heads of argument and contributions to
assist me in arriving
at a conclusion herein.
[7]
The relief that applicant seeks is final in nature and, as rightly
pointed out by counsel, simply
requires of me to make a final finding
whether the applicant is a shareholder of the first respondent. In
saying so I do not lose
sight of the relief sought in the notice of
motion referred to supra. In motion proceedings where final relief is
sought, the factual
dispute is to be resolved in line with the
principles set out in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[2]
This
principle entails that the facts as stated by the respondent,
together with the admitted facts in the applicant’s founding
affidavit constitute the factual basis for making a determination,
unless the dispute of fact is not real or genuine, or the denials
in
respondent’s version are bold or not creditworthy, or the
respondent’s version is palpably implausible or far-fetched,
or
so clearly untenable that a court is justified in rejecting that
version on the papers. Put differently, in order to determine
whether
the relief is to be granted, I must adjudicate the matter on the
respondent’s version unless I can reject it as far-fetched
or
palpably false.
[8]
Before I deal with the respondent’s version it needs mention
that there was no request or
suggestion that the matter be referred
to oral evidence. I am therefore required to make a finding on the
affidavits.
[9]
The respondents do not deny that the applicant was a co-shareholder
at the time when the share
certificates were issued in August 2017.
They however aver that the sale agreement in respect of the Trust’s
Nutri Chef shares,
coincided with a transfer agreement in terms of
which the Trust expressly or impliedly ceded its rights and
beneficial ownership
of its shareholding to the second respondent and
Mr Gutter. The sale and transfer of the Trust’s Nutri Chef
shares, so respondents
aver, was part of a composite agreement aimed
at dissolving a longstanding business alliance with Mr Roberts which
was complexly
interwoven through private companies, trusts and
commercial ventures. The respondents refer to some of the entities
(referred to
as “main protagonists” by them) and mentions
a mining enterprise (4Arrows Mining & Engineering (Pty) Ltd),
4Arrows
Crushing (Pty)Ltd (for crushing and screening raw material),
a holding company Moongate 194 (Pty) Ltd, Jovibright (Pty) Ltd
(the owner of a Cessna airplane), Plantco (Pty) Ltd (currently in
liquidation), Diesoline (Pty) Ltd (a company which supplies diesel
for the plant equipment), the Joncore Trust (owner of certain trucks)
and the first respondent (which primarily focuses on the
acquisition,
sale and leasing of earthmoving equipment).
[9.1] The
respondents aver that a separation agreement was concluded on 10 July
2018 as the business relationship between
the parties became
strained. A systematic extrication was proposed in respect of Mr
Roberts and his involvement in the aforementioned
entities. The terms
of the agreement were summarized by the respondents as follow:
“
18.1
We will acquire Mr Roberts’ shares in Plantco and Diesoline,
and the Trust’s shareholding in
Moongate and Nutri Chef for the
nominal value of R1 for each set of shares. The contingent and future
rights of beneficial ownership
in these shares will transfer to us
immediately.
18.2
We will acquire the Trust’s shares in Jovibrite for a sum of R
1 233 210.00. The contingent and
future rights of beneficial
ownership in these shares will transfer to us immediately.
18.3
We will repay Mr Robert’s and Joncor’s loan accounts in
the aggregate sum of R 4 337 662.00
(the loan accounts).
18.4
Mr Roberts will resign as a director of Moongate, Plantco and
Jovibrite;
18.5
Nutri Chef will purchase the International truck from Joncor for R 1
200 000.00 and the Mercedes truck
for R 350 000.00;
18.6
The aggerate(
sic
) of the amounts payable under the separation
agreement to Mr Roberts, the Trust and Joncor, which was R 7 461
261.00, would be
paid in monthly instalments of R 350 000.00. per
month.”.
[9.2] It is
averred by the respondent that thereafter Mr Roberts resigned as a
director of Plantco, Moongate and Jovibrite.
The aggregate sum of R 7
641 261.00 was paid in monthly installments. The International and
Mercedes trucks were delivered by Joncor
to Nutri Chef, and the
shares in Moongate, Nutrichef, Diesoline, Plantco and Jovibrite were
transferred to Mesrs Bosch and Gutter.
[9.3]
Respondents aver that in as far as the written agreement relied upon
by applicant does not reflect this position,
it should be rectified
and adjudicated upon in its rectified form.
[10]
The applicant in its replying affidavit disputes that such an
agreement was or could have been reached on
10 July 2018 as the
meeting was only scheduled for 11 July 2018. Applicants dispute that
the shares in Nutri Chef have ever been
sold or transferred and
annexes some correspondence to lend credibility to its version.
Applicant denies that the agreement should
be rectified.
[11]
I am of the view that the dispute of facts that has developed on the
papers cannot be resolved by me simply
on the papers. I can most
definitely not reject the respondent’s version as palpably
false. The applicants do not seriously
dispute the respondents’
version that there had been a longstanding business relationship
between the various role players
which became strained and which
resulted in a process of a systematic extrication of Mr Roberts. It
is not seriously in dispute
that R 7 461 261.00 was paid in monthly
installments over the period 31 August 2018 to 26 March 2020, that Mr
Roberts resigned
as director of the entities mentioned and that the
shareholding was transferred to the second respondent and Mr Gutter.
It is only
the shareholding in Nutri Chef that remains a bone of
contention. The respondents mention that in the five years following
the
separation agreement, the Trust never asserted or sought to
exercise any of the rights accorded to shareholders, nor did it seek
to participate in or vote at meetings. The Trust did not assert a
right to receive any declared dividends and conducted itself
on the
basis that it was no longer a shareholder in Nutri Chef. In reply the
applicants merely stated that in the last two years
preceding the
application it has attempted to assert the applicant Trust’s
rights flowing from its shareholding, but to no
avail.
[12]
As stated, I hold the considered view that I cannot resolve the
dispute on the papers alone. The version
of the respondents is not in
the circumstances so far-fetched and/or untenable that I can reject
it outright. I make no final finding
as to the parties’ rights
as I am for the reasons stated, unable to do so. In as far as I am
not in a position where I am
convinced that the orders can be granted
as prayed for, the application is to be dismissed. There is no reason
to deviate from
the usual rule that the unsuccessful party be ordered
to pay the costs.
[13]
I therefore make the following order:
The
application is dismissed with costs.
C.
REINDERS, J
On
behalf of the applicants:
Adv S
Tsangarakis
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondents:
Adv
WA van Aswegen
Instructed
by:
Peyper
Attorneys
BLOEMFONTEIN
[1]
71
of 2008.
[2]
1984 (3) SA 263
(A) at 634e-635c.