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[2022] ZAECGHC 5
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Hlangane v Bambatha and Others (1098/2021) [2022] ZAECGHC 5 (18 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN
CASE
NO: 1098/2021
DATE
HEARD: 21/10/2021
DATE
DELIVERED: 18/01/2022
In
the matter between
PEARLNOBOMIHLANGANE
APPLICANT
and
VUYOKAZI
RELECIA BAMBATHA
FIRST RESPONDENT
COMPANIES
AND INTELLECTUAL PROPERTY
SECOND RESPONDENT
COMMSSION
PVZ
SECURITY SERVICES NAD CLEANING CC THIRD RESPONDENT
(REG.NO:
2009/216797/23)
JUDGMENT
MABENGEAJ:
[1]
In this application the applicant
applies for an order in the following terms:
1.1
That the first respondent's unlawful and
fraudulent transfer of a 100% interest in the third respondent to
herself be set aside.
1.2
That
the
second respondent be directed to cancel
the first respondent's unlawful and fraudulent transfer of a 100%
interest in the third
respondent to
herself.
1.3
That the second respondent be directed
to transfer to the applicant an 80% interest in the third respondent.
1.4
That the second respondent be directed
to transfer to
the
first respondent a 20% interest in the third
respondent.
[2]
It is common cause that the third
respondent, PVZ Security Services and Cleaning CC came into existence
in 2009 with original members
being Patience Dibakwane, Zacharia
Dibakwane and Vuyokazi Mbambatha. I will not state the member's
interest herein as their interests
are in dispute. It is also common
cause that the applicant was not an original member of the third
respondent. The first respondent
is currently holding the majority
member's interest in the third respondent. The applicant herein
challenges this stating in her
founding affidavit that she is in fact
a member with majority
interest.
[3]
The applicant's case is essentially
premised on the allegation that the first respondent unlawfully and
fraudulently transferred
a
100% interest in the third respondent to herself. This application is
opposed by the first and the third respondent.
[4]
In the affidavit the applicant set out a
number of instances on which she relied for the relief
sought.
[5]
The applicant submitted that the first respondent unlawfully and
fraudulently increased
her interest in the third respondent from a
20% interest to a 60% interest and recorded the applicant as 40%
member's interest
in the third respondent. She later unlawfully and
fraudulently caused herself to reflect a 50% member's interest and
the applicant
as a 50% member's interest. She finally caused herself
to reflect a 100% member's interest in the third respondent.
[6]
The applicant further submitted that the
first respondent unlawfully and fraudulently caused herself to
reflect a 100% member's
interest to the applicant's prejudice.
[7]
The first respondent's answering
affidavit's challenge is that the application is fatally flawed and
defective as the material facts
relied upon by the applicant are in
dispute. The first respondent disputes that the applicant received
her membership interest
properly and lawfully. In her opposing
affidavit, the first respondent stated that the allocation of
member's interest in the third
respondent was improper and unlawful
from the very onset as she was supposed to have been allocated 60%
member's interest but was
fraudulently denied such.
Discussion
[8]
As
indicated by the first respondent in its heads of argument section 37
of the Close Corporation Act
[1]
allows any member of a Close Corporation to voluntarily dispose of
his/her member's interest or a portion thereof to any person
qualifying for membership in terms of section 29 of the Act. Such
disposition must be done in accordance with an association of
agreement, if any, or with the consent of every member of the
Corporation. The applicant does not allege that she
got
her membership in
accordance
with
the
provisions
of the Act as she does not indicate that she obtained her membership
in
terms
of an association agreement or that the first respondent consented to
such.
Section
30
of
the same Act states that membership interest shall
be
transferable in the manner provided by the Act.
[9]
The first respondent disputes that the
applicant acquired her alleged membership interest lawfully and at
this stage is
probably
not a lawful member of the third respondent even though the Close
Corporation registration papers indicate
same.
The
facts
in
this
dispute are
highly
contested and
the
versions of the parties are quite
divergent.
[10]
In
the case correctly referred to by the first respondent, Qwaqwa United
Taxi Association v Mokhasi
[2]
the
court stated as follows:
"On
the basis of the diametrically opposed versions of the parties, it is
inescapable that a
bona fide
dispute of fact exists as to what
precisely was decided by the members of the applicant in the general
meeting during 2006 in the
context of the ownership of the vehicle. I
fail to understand the applicant's election to prove their claim by
way of motion and
not by trial action. There is nothing untenable or
farfetched about either party's version. The probabilities are
equivocal and
therefore, neither party's version warrants mere
rejection on the papers. Decisions of fact cannot be founded on
probabilities
where they are equivocal.....The crucial and only test
is whether a
bona fide
dispute of fact exists between the
parties. That issues of fact would arise ought reasonably to have
been anticipated by the applicant.
The question of ownership of the
vehicle is the only issue between the parties, which raised its ugly
head, apart from the respondent's
suspension. Applicant must have
known before launching proceedings what respondent's stance would be.
In these circumstances, the
appropriate order is one of dismissal of
the application with costs and it is so ordered."
[11]
The applicant submitted that there is no genuine dispute of facts.
However, this cannot be upheld
as it is clear from the submissions of
the first respondent in paragraphs 43 and 44 of her opposing
affidavit that a genuine dispute
of fact exists. There is such a
dispute of fact regarding the ownership and proper transfer of the
member's interest that the matter
cannot be decided on the papers and
as stated in the above mentioned case of Qwaqwa United Taxi
Association the applicant must
have known before launching
proceedings what the first respondent's stance would be.
[12]
In the circumstances the application is dismissed with costs.
MABENGE
ACTING
JUDGE OF THE HIGH COURT
Appearances
Applicant:
Adv LK Siyo, instructed by Mgangatho Attorneys.
Respondent:
Adv MFT Botha, instructed by Jaxa Attorneys.
[1]
Act 69 of 1984
[2]
2012 ZAFSHC 209