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2021
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[2021] ZAGPPHC 240
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Silaule v Bossils Civils and Maintenance (Pty) Ltd and Others (16019/2021) [2021] ZAGPPHC 240 (9 April 2021)
IN
THE
HIGH
COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: 16019/2021
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:YES
DATE:14/04/2021
In
the matter between:
GIDEON
FANECKY
SILAULE
Applicant
v
BOSSILS
CIVILS AND MAINTENANCE (PTY) LTD
First
Respondent
CHRISTIAAN
JOHAN
BOSHOFF
Second Respondent
ANN-MARIE
BOSHOFF
Third Respondent
VAN’S
AUCTIONEERS
PRETORIA
Fourth Respondent
JUDGMENT
MOSOPA. J
1. This urgent application
brought in terms of Rule 6(12) of the Uniform Rules of Court, seeks
to interdict the respondents
from auctioning and selling the moveable
assets situated on Plot 44, as depicted on the website of the fourth
respondent. The auction
is scheduled to take place from 7 April 2021
to 9 April 2021, pending the application to be brought by the
applicant to declare
the conduct of the second and third respondents
oppressive and prejudicial in terms of
section 163
of the
Companies
Act 71 of 2008
.
2. The matter was before
me on 7 April 2021, for argument and I promised to deliver judgment
on 8 April 2021 at 09h30.
I furthermore instructed counsel to inform
the fourth respondent not to proceed with the auction until this
matter is finalized.
URGENCY
3.
I found the matter to be urgent, as I was of the view that if I did
not hear the matter, the applicant would not be
afforded substantial
redress at a hearing in due course, because this matter concerns the
sale of moveable assets which is supposed
to take place during the
course of this week (see Rule 6(12)(b) of the Uniform Rules of Court;
Luna Meubel Vervaardigers(Edms) Bpk v Makin t/a Makin
Furniture Manufacturers
1977 (4) SA 135
(W) at 339E-H).
BACKGROUND
4. The applicant is a
director and a 51% shareholder of the first respondent. The second
and third respondents are also
directors and minority shareholders of
the first respondent.
5. The core business of
the first respondent is rendering grass cutting services. The
applicant was appointed as director
of the first respondent on 18
July 2018, the second respondent was appointed on 27 August 2018 and
the third respondent was appointed
as non-executive director of the
first respondent on 23 August 2018.
6. When the applicant
became aware of the intended auction of 7 to 9 April 2021, he
consulted with his legal representatives
and as a sequel to such a
legal consultation, his legal representatives addressed a letter to
the representatives of the fourth
respondent, in an attempt to stop
the intended auction.
7. The representative of
the fourth respondent informed the applicant’s legal
representatives that unless she
receives instructions from the seller
- who I presume is the second and third respondents - to stop the
auction, she will proceed
with the intended auction. It appears that
the second and third respondents did not instruct the fourth
respondent to suspend the
auction, hence the matter is now before me.
ISSUE
FOR
DETERMINATION
8. The only issue for me
to determine is whether the applicant is legally entitled to
interdict the auction from taking
place.
9. The defense raised by
the second and third respondents is that the moveable assets to be
auctioned do not belong
to the first respondent and as such, the
applicant is not legally entitled to interdict the auction from
proceeding.
10. The second and third
respondents raised a point-in-limine that the applicant’s
annexures were not initialed
and the effect thereof was that they
were not properly before court. The fact that the second and third
respondents dealt with
these annexures in their answering affidavit
and in their contention in court, despite the legal objection raised,
I am inclined
to consider such annexures for the purpose of
determining this application.
11. The applicant
contends that he compared the list of moveable assets of the first
respondent and the moveable
assets depicted in the photographs on the
website of the fourth respondent, which are to be sold in the
auction. It is on this
basis that he states that those are the assets
of the first respondent. I must at this stage pause to mention that
the assets,
as listed on annexure “GFS 11” of the
applicant’s founding affidavit, are not the only moveable
assets up for
auction by the fourth respondent, but forms part of the
assets to be sold on auction.
12. If what
the applicant is alleging is found to be correct, then there can be
no basis for the auction
to proceed, as the applicant, as a director
and a majority shareholder, was not part of the decision made to sell
such moveable
assets of the first respondent. Furthermore, there was
no resolution of the first respondent authorizing the sale of such
moveable
assets. The second respondent contends that these assets
belong to him and not to the first respondent, and the list of assets
was given to the applicant solely for the purposes of raising money
for the applicant to buy shares in the first respondent.
13. The second and
third respondents contend that the list which the applicant relies on
and bases his comparison
on, is an old list which was compiled in
2018. In annexure “CJ 2” to the respondents’
answering affidavit, the
respondents explain how the assets which
appear on the list the applicant relies on were dealt with. From this
it is apparent that
the list the applicant relies on is in fact the
list which comprises of the assets of the first respondent, save for
those assets
which belong to other companies.
14. The question
then arises, whether, based on the above, it can be found that the
list of assets relied upon
by the applicant is exactly the same as
the assets to be sold by the fourth respondent. There is, for
example, a John Deere tractor
on the applicant’s list and a
John Deere tractor on the photograph of assets to be sold, but can
one say with certainty that
it is the same item?
15. In my considered
view, the applicant, after becoming aware of the intended auction and
being responsible for
the operational side of the first respondent’s
business, could have visited the fourth respondent or alternatively,
the place
where these assets are held, to satisfy himself that such
assets indeed belong to the first respondent. He would be able to
identify
these assets, as he worked with them on a daily basis. There
are registration numbers for vehicles and trailers listed on annexure
“GFS 10” which should have been compared with the
moveable assets in possession of the fourth respondent, as these
registration numbers are not visible on annexure “GFS 11”.
There are no serial numbers or registration numbers provided
for the
other assets listed in annexure “GFS 10” and it is
difficult to say that this corresponds to the assets listed.
16. Based on
the above, I see no legal justification for interdicting the auction
to be conducted by the
fourth respondent. The applicant, in my
considered view, failed to make out a proper case to interdict said
auction and the application
must, for that reason, fail.
17. In the consequence, I
make the following order:
1. The applicant’s
application is dismissed, with costs.
MJ
MOSOPA
JUDGE
OF THE HIGH
COURT,
PRETORIA
Appearances:
For the
applicant:
Adv MJ Kleyn
Instructed
by:
Naude Dawson
Attorneys
For
the respondent: Mr M
Klein
Instructed
by:
Matthew
Klein Attorneys
Date
of hearing:
8 April 2021
Date of
judgment:
9 April 2021