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[2021] ZAKZPHC 29
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Van Zyl v Boat Lodge Investments CC & others (9417/2019P) [2021] ZAKZPHC 29 (31 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number: 9417/2019P
In
the matter between:
WYNAND CORNELIUS VAN
ZYL
APPLICANT
and
BOAT LODGE
INVESTMENTS CC
RESPONDENT
VERDALE VIVIAN DE
VILLIERS
FIRST INTERVENING PARTY
PIERRE JACOBUS
ABRAHAM DE VILLIERS
SECOND INTERVENING PARTY
ORDER
The
following order is granted:
1.
The application for leave to intervene is dismissed.
2.
The respondent is hereby placed into provisional
liquidation in the hands of the Master of the High Court,
Pietermaritzburg, KwaZulu-Natal.
3.
A
rule nisi
is
hereby issued calling upon the respondent and all other interested
persons to appear and show cause, if any, to this court on the
19 day
of July 2021 at 09h30 or so soon thereafter as the matter may be
heard, why the respondent should not finally be wound up.
4.
This order is to be served forthwith on the respondent,
and the intervening parties, and published on or before the 2
nd
day of July 2021 once in the Government Gazette
and once in a daily newspaper published and circulating in KwaZulu
Natal .
5.
The costs of the liquidation application be costs in the
liquidation of the respondent.
6.
The costs of the application to intervene are to be paid
by the first and second intervening parties.
JUDGMENT
HENRIQUES J
Introduction
[1]
The applicant instituted proceedings to place the
respondent into provisional liquidation on the grounds that it is
just and equitable
that the respondent be wound- up, and that a
liquidator be appointed. The basis for the application is that the
applicant alleges
the membership of the respondent is in deadlock
without any prospect of the deadlock being resolved. The first and
second intervening
parties opposed the provisional liquidation order,
and in addition, sought to intervene in these proceedings.
[2]
In addition, the intervening parties also filed a notice
to oppose the application on behalf of the respondent.
The relief
[3]
The relief
which the applicant seeks is premised on s 81 of the Companies Act
[1]
(2008
Companies Act) which finds application by virtue of s 66 of the Close
Corporations Act
[2]
(CC Act), the
applicant alleging that it is just and equitable to wind-up the
respondent as there is a deadlock between the management
of the
respondent, being himself and the first and second intervening
parties.
Issues for
determination
[4]
The applicant submits that the following issues require
de
termination:
(a)
Whether the intervening parties have established a case
for their intervention in the liquidation application, and whether
they have
established a
prima facie
defence
to the liquidation application; and
(b)
Whether the applicant has established, on a balance of
probabilities, that
prima facie,
the
members are in deadlock and their partnership has terminated, and
that it is therefore just and equitable to wind-up the respondent.
[5]
The respondent and intervening parties on the other
hand, submit that the following issues require determination:
(a)
Whether the applicant has complied with the provisions
of rule 6(2) of the Uniform Rules of Court;
(b)
Whether the applicant has complied with s 81(1)(
d
)
of the 2008 Companies Act;
(c)
Whether the applicant has proven on a balance of
probabilities that it is just and equitable for the respondent to be
wound-up;
(d)
Whether the applicant has launched the liquidation
application with âclean handsâ; and
(e)
Whether the intervening parties have a
prima
facie
defence to the winding-up application.
The
applicantâs
locus standi
to institute the application
[6]
From the CK2A form, it is clear that the applicant has a
75% memberâs interest in the respondent, and the first and second
intervening
parties together hold a 25% memberâs interest. It is
common cause that the applicant initially held a 65% memberâs
interest in
the respondent and subsequently acquired a further 10%
memberâs interest from Mr Jan Abraham Van Niekerk. Such interest
has not
been formally registered with the CIPC. In his founding
affidavit, the applicant concedes that of his initial 65% memberâs
interest
in the respondent, 24% of such memberâs interest is held
on behalf of the second intervening party although that too has not
been
registered with the CIPC. However, having regard to the content
of
the founding affidavit, the applicant holds
a majority memberâs interest in the respondent of 51%
and therefore has locus to institute these proceedings.
The factual matrix
[7]
To appreciate the nature of the alleged deadlock, it is
appropriate at this juncture to set out how and why the respondent
was established,
and the nature of the business relationship between
the applicant and the intervening parties.
[8]
It is common cause that the business of the respondent
was that of a property development corporation specifically
created to develop land situated in Sodwana Bay, by
building and selling units in the development named Jesser Point Boat
Lodge (Jesser
Point).
[9]
The respondent obtained the right to develop the
property from Repo Wild 1088 CC (Repo Wild), which entity holds the
lease from the
Ingonyama Trust, the owner of the land on which the
development is situated. The shareholding in Repo Wild is the
following: the
applicant holds a 51% memberâs interest, the first
intervening party a 25% memberâs interest and the second
intervening party
a 24% memberâs interest. Luxury boat lodge units
together with luxury accommodation were constructed. The income of
the development
consisted of rental income and the sale of units in
Jesser Point. Initially, the development was profitable until
approximately mid-2017
when there was a slump in market sales.
Currently the respondent owns units in the development which are
rented out as holiday accommodation.
[10]
The applicant owns and runs the Vaal 1 Stop at Villiers
which is a petrol station. It is common cause that the applicant
advanced
the finance for the development of Jesser Point. The second
intervening party was the builder who constructed the units, attended
to purchasing building materials and oversaw all building operations
on the site. The first intervening party attended to the secretarial
and administrative services of the development.
[11]
Over the years, the parties reached an agreement as to
how the applicant would be repaid
for financing
the development. However, the relationship between the parties has
deteriorated over time to such an extent that they
are no longer able
to jointly run the operations of the respondent.
[12]
The applicant canvassed in great detail the roles which
the first and second intervening parties played in the running of the
respondent.
His role was limited to that of a âfinancierâ. The
affidavit sets out the remuneration due to the first and second
intervening
parties and the functioning of the respondent. Given that
the second intervening party was responsible for the construction of
the
development, certain disputes have arisen between the body
corporate, homeownersâ association and the second respondent, some
relating
to the connection of sewerage services to the development,
and a firewall which was the responsibility of the first and second
intervening
parties.
[13]
There are several smaller disputes between the
respondent and the body corporate, most of which can be traced back
to the second intervening
party as the builder. Because of the
conflict between the homeownersâ association, the managing agent
and the second intervening
party, the fourth phase of the development
was not approved. The focus of the respondent then shifted to rental
given the slump in
the sales market. The first intervening party
moved to Bloemfontein and commenced another business, leaving behind
unresolved contractual
issues and secretarial matters in relation to
the development.
[14]
It is common cause that over time the relationship
between the intervening parties and the applicant has become
antagonistic and aggressive,
and that they cannot cooperate with each
other to resolve the outstanding issues between the respondent, the
body corporate and the
homeownersâ association. At present there is
a loan account with Highway Square CC (the applicantâs financing
entity for the
development), and the respondent has for some months
been unable to meet its monthly expenses from the holiday rental
income. Either
the applicant or Highway Square CC meets the monthly
shortfall.
[15]
The first and second intervening parties do not
contribute financially in any way to the monthly running expenses of
the respondent.
It is not disputed that it is the responsibility of
the first intervening party to attend to company and secretarial
matters, and
the contractual issues of the respondent. As an example,
the applicant indicates that the first intervening party has failed
to attend
to the registration of the sub-leases of each unit in the
share block scheme.
[16]
In addition, the second intervening partyâs partner,
Ms Linda van Niekerk, is employed as a manager of the respondent at
Jesser
Point, and is responsible for dealing with the day-to-day
operations, the collection of rentals, the advertising of the units
of
the respondent on holiday booking sites, the maintenance of the
units and to ensure that the units are regularly serviced. The
applicant
alleges, which is not seriously disputed, that given the
poor relationship between the applicant and the second intervening
party,
Ms van Niekerk is no longer acting in the interests of the
respondent.
[17]
The loan account of Highway Square CC is the amount of
R12 537 543.55 and the interest on the loan account amounts to R7 626
696.29.
In addition, the loan accounts of the first and second
intervening parties are in debit and they owe the respondent R1 570
142.25
and R752 694.81 respectively. The applicant indicates that the
present situation is untenable and that he and Highway Square CC are
prejudiced as it was never the intention for him or Highway Square CC
to take responsibility for letting out the 10 units which the
respondent owns, and attending to the outstanding development issues
and problems with the body corporate and homeownersâ association.
[18]
In addition, despite discussions and roundtable
settlement conferences, the applicant indicates that the
first
and second intervening
parties,
through their attorneys, are sabotaging the business of the
respondent in order to force a settlement from him. The applicant
further submits that the relationship has broken down irretrievably
and that they are in a position of serious deadlock.
[19]
Subsequent to the issuing and service of the application
papers, the respondent gave notice of its intention to oppose the
liquidation
proceedings on 5 February 2020. Subsequently on 20 March
2020, the first and second intervening parties gave notice of
their
intention
to
intervene
in
the
proceedings
and
also
opposed
the
liquidation
application. In the interim, the registrar
had allocated a
date for hearing on the unopposed motion court roll for 26 March
2020.
[20]
The intervening parties delivered an answering
affidavit, which was to also serve as the founding affidavit in their
application to
intervene. The applicant subsequently delivered a
replying affidavit in the main application, and an answering
affidavit opposing
the application to intervene. It is these three
affidavits which the parties require the court to consider for
purposes of determining
the application to intervene and the
liquidation application. In addition, there are various points
in
limine
which the first and second intervening
parties raise, which also need to be decided on by the court.
[21]
In their notice of motion, the first and second
intervening parties seek leave to intervene in the liquidation
application, and an
order staying the liquidation application pending
an application by the second intervening party in the Free State
Division of the
High Court, for a declaratory order against the
applicant transferring his 24.5% memberâs interest in the
respondent into his name.
In addition, an order is sought that the
founding affidavit in the intervention application stand as the
answering affidavit in the
liquidation proceedings, that the
application for liquidation be dismissed with costs, alternatively,
that such application be stayed
pending the outcome of the
application for a declaratory order in the Free State Division of the
High Court as aforementioned.
[22]
Having regard to the content of the answering affidavit,
it is common cause that the applicant had been approached as a
âfinancierâ
for Jesser Point by the first and second intervening
parties, and subsequently obtained a 51% memberâs interest in Repo
Wild. Similarly,
the applicant acquired a 51% memberâs interest in
the respondent. The affidavit deals in detail with the negotiations
that took
place between the applicant and the first and second
intervening parties in relation to the operation and running of Repo
Wild and
Jesser Point.
[23]
There are factual disputes in relation to how the
development would be conducted, as well as the nature of the
functions of the applicant
and the first and second intervening
parties. In my view, these are not relevant to a determination of the
issues
in
this
matter,
and
do
not
warrant
the
court
commenting
any
further.
It
is
instructive to note
that these disputes, to some extent, have contributed to the
breakdown in the business relationship between the
parties.
[24]
It warrants mentioning that it is apparent from the
answering affidavit that the relationship between the parties has
broken down
irretrievably, to the extent that the first and second
intervening parties
approached their current
attorney of record to enter into roundtable discussions to resolve
the amounts in dispute and allegedly owed
to them.
[25]
The content of the annexures referred to in the first
and second intervening partiesâ affidavit reveal that the parties
held roundtable
discussions in terms of which the applicant confirmed
the first intervening partyâs 24.5% memberâs interest in the
respondent.
The parties were endeavouring to place the first and
second intervening parties in a position to pay
out
the applicant
for
his
memberâs interest in the respondent, and the monies due by them in
their respective loan accounts.
[26]
Annexure
âRA4â,
[3]
annexed to
the applicantâs replying affidavit, is correspondence from their
attorneys of record which acknowledged that it was impossible
for the
members to work with each other, and suggested that an urgent
application for a declaratory order be pursued in the event
of the
roundtable discussions failing, and the applicant failing to transfer
the first intervening partyâs memberâs interest.
Additionally, it
was indicated that the first and second intervening parties would
proceed with a liquidation application.
[27]
Most notably âRA4â records the following:
â
.
. . en blyk dit verder dat dit tans ontmoontlik is dat die lede
verder met mekaar behoorlik kan saamwerk op ân basis van âjust
and equitableâ.â
A
reading of the affidavits reveals that the relationship between the
parties had broken down irretrievably, and they are no longer
able to
work together in the interests of the respondent.
Analysis
[28]
At this juncture, it is apposite to deal with certain
points
in limine
raised
in opposition to the application. For purposes of this application
and although I have had regard to all the points
in
limine
raised by the parties, specifically
the applicant in the answering and replying affidavit, in my view
given the conclusion reached,
it is not necessary for this court to
deal with them. In any event, on a practical level these do not serve
to advance the matter
to finality, which in my view is in the
interest of both the applicant, the respondent and the first and
second intervening parties.
No purpose will be served by upholding
all the points
in limine
raised
by the applicant.
[29]
Some of the
points
in
limine
raised
warrant consideration as they impact directly on the issues for
determination in the liquidation application. The first relates
to
the alleged non-service of the application papers at the respondentâs
registered office. The procedural requirements for the
liquidation
application were complied with in respect of service on SARS, the
Master and the employees of the respondent. The Master
filed a report
indicating that there were no queries. Service of the application
papers on the respondent occurred on 23 December
2019, at the
registered office of the respondent, and were served on the financial
manager, Ms De Villiers. This was in terms of
the registered office
details reflected on the CK2A form. Such service of the papers was
acknowledged by Ms De Villiers by way of
her signature and dating of
the document.
[4]
[30]
In addition,
service of the application papers was effected at Jesser Point
itself, the principal place of business of the respondent
on 30
January 2020, and was brought to the attention of Ms Linda Van
Niekerk, the manager of the development albeit that she refused
to
accept service of the papers. Employees were notified as a set of the
application papers was placed on the notice board and also
explained
to the employees.
[5]
[31]
Although the first and second intervening parties have
indicated that the applicant
has
failed
to
serve
the
application
papers
on
the
respondentâs
registered
office
,
in compliance with the Companies Act,
this submission is without merit having regard to the signature of
receipt thereof by Ms De
Villiers. Although the body of the return of
service indicates that the application papers were served on 23
October 2019 at the
registered office on Ms Natasha De Villiers, the
financial manager of the respondent, this cannot be correct and must
be an error
on the part of the sheriff. It does not correspond with
the page annexed to the return of service which shows that Ms De
Villiers
signed for the application papers at the registered office
on 23 December 2019 at 12h30.
[32]
In my view, this is an obvious typographical error in
the return of service and there is thus no merit in the submission
that the
application papers were not served at the respondentâs
registered office. In any event the Companies Act requires service of
the
application papers at the registered office, alternatively the
principle place of business of the respondent, and the application
pap
ers have been served
at both addresses.
The
application of rule 6(2)
[33]
The second point
in limine
which
the first and second intervening parties raise, relates to the
non-service of the application papers on them and the non-compliance
with rule 6(2). It is common cause that the applicant did not serve
the application papers on the first and second intervening parties.
Rule 6(2) reads as follows:
â
When
relief is claimed against any person, or where it is necessary or
proper to give any person notice of such application, the notice
of
motion must be addressed to both the registrar and such person,
otherwise it must be addressed to the registrar only.â
I
could find no judgment, nor was I referred to one by Mr Moodley
during the course of his submissions in relation to this point
in
limine,
which states that a member
of a close corporation is an interested party, and hence the
application is to be served on such member.
[34]
In
Pilot
Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd
[6]
it
was held that the application merely needs to be served at the
principal place of business or registered office:
â
.
. . in initiating an application for the winding-up of a company,
inevitably the company would be a respondent in such application,
and
the sheriff would have served on the company at its principal place
of business or registered office in accordance with the provisions
of
rule 4(1)
(a)
(iv)
of the Uniform Rules of Court read with rule 6(2) of the said rules.â
[35]
Furthermore,
section 346(4A)
(a)
of
the Companies Act
[7]
(1973
Companies Act) sets out the categories of parties who are required to
be furnished with a copy of the liquidation application.
Section
346(4A)
(a)
(iv)
merely requires the company to be furnished with a copy of the
application. In
Pilot
Freight
the
court set out the possible reason for the requirement of section
346(4A)
(a)
as
follows:
â
However,
it is possible that the legislature realised that often an
application for the winding- up of a company is served by the
sheriff
at a registered office which has long since been abandoned by the
auditor of the company, and the application does not come
to the
attention of the company. In such circumstances it appears that the
court may be entitled to direct that the application be
furnished to
the company at its principal place of business (not necessarily via
service by the sheriff) in addition to the service
by the sheriff on
the registered office. In such circumstances it is conceivable that
the court has in the court file a return of
service of the
application by the sheriff and in addition an affidavit in terms of s
346(4A)
(b)
by
the person who also furnished the application to the company, in
addition to service by the sheriff on the registered office.â
[8]
[36]
In the
commentary,
Erasmus:
Superior Court Practice
,
[9]
D E Van
Loggerenberg notes that it is appropriate to give notice of an
application to a person â. . . even if no relief is claimed
against
such person, if the relief claimed is of such a nature that the
rights or interests of the person may be affected by any
order the
court may make pursuant to the applicationâ. There is no specific
provision in the Companies Act or in rule 6(2) which
requires service
of the application papers on individual members of a close
corporation. However, the applicant recognises that the
intervening
parties are members and consequently, the applicant, at the very
least, ought to have served the application papers on
the first and
second intervening parties. However, the failure to do so is not
fatal to the liquidation application, and any prejudice
has been
ameliorated by the application to intervene, this is as it is not a
statutory requirement.
The application to
intervene
[37]
The applicant is quite correct that the provisions of
rule 6(14) make the provisions of rule 12 applicable to applications.
Rule 12
provides that
â
Any
person entitled to join as a plaintiff or liable to be joined as a
defendant in any action may, on notice to all parties, at any
stage
of the proceedings apply for leave to intervene as a plaintiff or a
defendant. The court may upon such application make such
order,
including any order as to costs, and give such directions as to the
further procedure in the action as to it may seem meet.â
[38]
In essence, a
party seeking leave to intervene must firstly prove that â[h]e or
she has a direct and substantial interest in the
subject-matter of
the litigation which could be prejudiced by the judgment of the
courtâ. A direct and substantial interest being
defined to mean âa
legal interest in the subject-matter of the action which could be
prejudicially affected by the judgment of
the courtâ. A mere
financial interest being an indirect interest, is insufficient for
intervening. Such application for intervention
must be made seriously
and not frivolously and secondly the intervening applicant must show
that it has a defence to the relief sought
in the main
application.
[10]
[39]
Mr Kairinos SC, who appeared for the applicant,
submitted that the intervention application was being opposed, not on
the basis of
the first leg of the test for intervention namely,
whether the first and second intervening parties had a direct and
substantial
interest, but relied on the second leg of the test for
intervention, namely that they did not disclose a defence to the
winding-up
application.
[40]
He submitted that the applicant was prepared to accept
for purposes of the intervention and the liquidation applications
that the
first and second intervening parties had an interest by
virtue of them being members. However, given that the first and
second intervening
parties had not disclosed a defence to the
liquidation application, the court ought not to grant the
intervention application, and
ought to mulct the first and second
intervening parties with the costs of such intervention application.
[41]
In his heads
of argument, Mr Kairinos, referred to the definition of a memberâs
interest in the CC Act. Section 1 defines a member
as being âa
person qualified for membership of a corporation in terms of section
29 and designated as a member in a founding statement
of the
corporation. . .â. In addition,
Henochsberg
on the Close Corporations Act
[11]
also
indicates that the registration of an amending founding statement is
required before a person can be considered a member. Mr
Kairinos
makes the submission that the second intervening party cannot be
considered to be a member of the respondent, and thus had
not
established an interest or
locus
standi
in
order to justify intervention in the liquidation proceedings.
[42]
In my view, this submission cannot be correct. The
applicant, in his founding affidavit, has acknowledged that he holds
the second
intervening partyâs membership interest. His interest is
clearly acknowledged and recognised in the correspondence which has
been
exchanged by the parties, and which has been referred to in his
founding affidavit which he has deposed to under oath.
[43]
For purposes of the application, I must therefore
recognise that the second intervening party is a
de
facto
member of the close corporation, and
thus has an interest and
locus standi
to
oppose the liquidation application and to intervene in these
proceedings. The position of the first intervening party is a lot
clearer as his interest has been registered in the founding statement
of the respondent and consequently he qualifies to intervene
in the
proceedings.
[44]
The applicant concedes that the first intervening party
is a registered member of the respondent, and that the other
intervening party
is a de facto although not a registered member of
the respondent. Undoubtedly both the first and second intervening
parties will
be affected by any order that the court makes,
specifically in relation to the liquidation of the respondent.
Consequently, in respect
of the first leg of the test to intervene
they must succeed.
[45]
Mr Kairinos, submitted that in respect of the second leg
of the intervention application, the intervening parties must fail.
Considering
their opposition to
the liquidation
application, the first and second intervening parties had
demonstrated that a complete deadlock existed in the management
of
the respondent and consequently there was no defence to the
liquidation of the respondent. In addition, the respondent could not
oppose the liquidation application but rather the first and second
intervening parties had done so.
[46]
Although the first and second intervening partiesâ
attorneys had filed a notice to oppose by the respondent, it is clear
that he
could not do so in light of the fact that the majority of
members of the respondent had not authorised the respondentâs
opposition
to the liquidation proceedings.
[47]
Mr Moodley, who appeared for the first and second
intervening parties conceded, correctly in my view, that there was a
deadlock in
the management of the respondent. It is evident from a
reading of the affidavits and annexures that when the relationship
between
the parties had soured, both the applicant and the first and
second intervening parties had instructed attorneys of record.
Several
settlement discussions were held with a view of resolving the
matter in its entirety. The parties were unable to resolve their
differences,
to the extent that the first and second intervening
partiesâ attorneys threatened to institute liquidation proceedings
as early
on as July 2019.
[48]
The thrust of the complaint by the second intervening
party related to the fact that he wanted his memberâs interest in
the respondent
transferred to him. The applicant, although
recognising his memberâs interest, did not provide written
confirmation thereof at
the request of the second intervening partyâs
attorney of record, Mr Chris Liebenberg. I agree with the submission
of Mr Kairinos
that the requirement of registering the second
intervening partyâs memberâs interest is not a defence to the
liquidation proceedings,
and his memberâs interest in the
respondent will be
protected should the
liquidation application be successful.
[49]
In addition, the liquidation proceedings do not need to
be stayed for an application to be made for a declaratory order. The
applicant
has recognised their respective membersâ interests, and a
liquidator can deal with this. In addition, the second
intervening
party
has
known
for
some
time
that
his
interest
has
not
been formally registered. He has not provided any
explanation as to why he did not bring such declaratory application
earlier.
[50]
In relation to whether or not the second leg of the test
for intervention has been met, it is necessary to consider the
liquidation
application and the submissions made by the parties and
whether a defence has been disclosed.
The liquidation
application
[51]
The parties are
ad
idem
that
the provisions of t
he
2008 Companies Act make provision for the 1973 Companies Act to apply
to the winding-up of a close corporation.
[12]
In terms of s
344
(h)
of
the 1973 Companies Act, a close corporation may be wound-up if it
appears to the court that it is just and equitable to do
so.
[52]
In relation
to the onus of proof in an application for provisional liquidation,
the
locus
classicus
is
the matter of
Kalil
v Decotex (Pty) Ltd and another
[13]
in which the
Appellate Division held as follows:
â
Where
on the affidavits there is a
prima facie
case (ie a balance of
probabilities) in favour of the applicant, then, in my view, a
provisional order of winding-up should normally
be granted and, save
in exceptional circumstances, the Court should not accede to an
application by the respondent that the matter
be referred to the
hearing of
viva voce
evidence. This does no lasting injustice
to the respondent for he will on the return day generally be given
the opportunity, in a
proper case and where he asks for an order to
that effect, to present oral evidence on disputed issues. As it was
put in the
Wackrill
case
supra
at 285H - 286A:
â
Ordinarily
the consequences of a final winding-up order are drastic indeed, and
it could not have been intended that proof of all
the allegations
necessary for such an order should be anything less than that
required generally in civil cases, that is proof on
a clear balance
of probabilities, with the admission of
viva voce
evidence,
where that may be necessary, to resolve material disputes on the
affidavits. That also appears to be the standard of proof
required
for a final sequestration order in terms of
s 12
of the
Insolvency
Act 24 of 1936
, according to which the Court must be "satisfied"
that the petitioning creditor has established the elements of his
case.â
Where,
on the other hand, the affidavits in an opposed application for a
provisional order of winding-up do not reveal a balance of
probabilities in favour of the applicant, then clearly
no
prima facie
case is
established and a provisional order cannot at that stage be granted.â
[53]
Although the first and second intervening parties
indicate that the applicant has not proven on a balance of
probabilities that it
is just and equitable for the respondent to be
wound-up, I am of the view, on the facts of the matter, that it has
discharged such
onus on a balance of probabilities. In addition, I
disagree with the submission of the first and second intervening
partiesâ counsel
that the applicant has not come to court with
clean hands.
[54]
The winding-up of solvent companies is dealt with in ss
79 to 81 of the 2008 Companies Act. As already indicated, the
application
is premised on the provisions of s 81 of the 2008
Companies Act, which relevant portion reads as follows:
â
81.
Winding-up of solvent companies by court order
.â (1) A court
may order a solvent company to be wound up ifâ
.
. .
(
d
)
the company, one or more directors or one or more shareholders have
applied to the court for an order to wind up the company on
the
grounds thatâ
(i)
the directors are deadlocked in the management of
the company, and
the shareholders are unable to break the deadlock, andâ
(
aa
)
irreparable injury to the company is resulting, or may result, from
the deadlock; or
(
bb
)
the companyâs business cannot be conducted to the advantage of
shareholders generally, as a result of the deadlock;
(ii)
the shareholders are deadlocked in voting power, and have failed
for
a period that includes at least two consecutive annual general
meeting dates, to elect successors to directors whose terms have
expired; or
(iii)
it is otherwise just and equitable for the company to be wound up.
.
.
[55]
One of the considerations in determining whether it is
just and equitable for
the respondent to be
wound-up is whether a deadlock exists. I now turn to consider this
aspect.
What
is meant by a âdeadlockâ
[56]
It is trite that a deadlock is a ground for liquidation
on the basis that it is just and equitable for the entity to be
wound-up.
In
Henochsberg on the Companies Act
61 of 1973
in the commentary to s 344
(h)
,
the following is mentioned:
â
Unlike
the other paragraphs of the section, this paragraph âpostulates not
facts but only a broad conclusion of law, justice and
equity, as a
ground for winding-upâ . . . . The Courtâs reaching of the
conclusion that winding-up would be just and equitable
involves the
exercise, not of a discretion, but of judgment on the facts found by
the Court to be relevant; once, however, such conclusion
is reached,
the making of the order for the winding-up does involve the exercise
of a discretion . . .â
[14]
[57]
Furthermore the following is stated with regard to the
concept of a deadlock as constituting a ground for liquidation
envisaged in
s 344
(h)
of
the 1973 Companies Act: â
In the case of a "domestic"
company, ie a company with a small membership (it could be a public
company but would usually
be a private one), winding-up is just and
equitable where the "deadlock" principle, derived from
In
re Yenidje Tobacco Co Ltd
[1916] 2 Ch 426
(CA), can be applied;
this is "founded on the analogy of partnership and is strictly
confined to those small domestic companies
in which, because of some
arrangement, express, tacit or implied, there exists between the
members in regard to the company's affairs
a particular personal
relationship of confidence and trust similar to that existing between
partners in regard to the partnership
business. Usually that
relationship is such that it requires the members to act reasonably
and honestly towards one another and with
friendly cooperation in
running the company's affairs. If by conduct which is either wrongful
or not as contemplated by the arrangement,
one or more of the members
destroys that relationship, the other member or members are entitled
to claim that it is just and equitable
that the company should be
wound up, in the same way as, if they were partners, they could claim
dissolution of the partnership"
.
. . The destruction of the relationship may result in literal
deadlock, ie where the factions hold equal voting power in general
meeting, in which event winding-up must ordinarily inevitably ensue .
. . but it is not necessary to establish literal deadlock:
it
suffices to show that as a result of the particular conduct, there is
no longer a reasonable possibility of running the company
(through
the majority vote) consistently with the basic arrangement between
the members . . . (eg constant quarrelling between the
only two
shareholders with voting rights as such, who are also the only two
directors, leading to a situation where they are not
on speaking
terms. .
.).â
[15]
[58]
Further on in
Henochsberg
,
what is referred to as the factual basis for a deadlock, the authors
refer to a situation
â
.
. .
where a company
was formed for a specific purpose, but internal disputes, mutual
disillusionment and distrust and the consequent breakdown
of the
relationship between the shareholders have paralysed the company. .
.â
.
[16]
[59]
Thunder
Cats Investments 92 (Pty) Ltd and another v Nkonjane Economic
Prospecting & Investment (Pty) Ltd and others
[17]
also
concerned the application for the winding-up of a solvent company in
terms of s 81 of the 2008 Companies Act, on the grounds
that the
directors and/or shareholders were in a deadlock, and as an alternate
ground for the winding-up, that it was just and equitable
to do so.
The court also considered what was required for a deadlock. The court
considered the words âjust and equitableâ as
they appear in the
1973 Companies Act as well as the 2008 Companies Act.
[18]
The question
which had arisen in the Supreme Court of Appeal was whether a wide or
narrow definition ought to apply to the meaning
of âjust and
equitableâ as envisaged in s 81(1)(
d
)(i),
(ii) and (iii).
[60]
In considering the submissions and the interpretation to
be placed on the provisions of s 81(1)(
d
)(i)
and (ii), when compared with (iii), the Supreme Court of Appeal held
the following:
â
The
examples of âdeadlockâ given in s 81(1)
(d)
(i)
and (ii), that is, where either the board or the shareholders are
deadlocked are examples only, and, it seems to me, are not exhaustive
and do not limit s 81(1)
(d)
(iii).
The use of the word âotherwiseâ in the subsection does not limit
what is meant by âjust and equitableâ. On the contrary,
it
extends the grounds of winding-up to include other cases of deadlock.
It is conceivable that it may be just and equitable to liquidate
even
if the shareholders have been unable to elect successors to directors
for less than the
stipulated period that includes two
consecutive annual general meeting dates, as s 81(1)
(d)
(ii)
requires.â
[19]
[61]
The court held further, having regard to the words âjust
and equitableâ, that: â
Section 344
(h)
of the 1973
Act provides that a company may be wound up by the court when it is
'just and equitable' to do so. A winding-up on this
basis 'postulates
not facts but only a broad conclusion of law, justice and equity, as
a ground for winding-up'. The subsection is
not confined to cases
which were analogous to the grounds mentioned in other parts of the
section. Nor can any general rule be laid
down as to the nature of
the circumstances that had to be considered to ascertain whether a
case came within the phrase. There is
no fixed category of
circumstances which may provide a basis for a winding-up on the just
and equitable ground. In
Sweet v Finbain
it was said:
â
The ground is to be widely
construed; it confers a wide judicial discretion, and it is not to be
interpreted so as to exclude matters
which are not
ejusdem generis
with the other grounds specified in s 344. The fact that the
Courts have evolved certain principles as guides in particular cases,
or examples of situations where the discretion to grant a winding-up
order will be exercised, does not require or entitle the Court
to cut
down the generality of the words "just and equitable".â
Section
344
(h)
gave
the court a wide discretion in the exercise of which certain other
sections of the Act had to be taken into account.â
[20]
(Footnotes omitted.)
[62]
With regard to the word deadlock, the court held the
following:
â
The
word âdeadlockâ is not always given the same meaning. The
reference to deadlock in the previous paragraph and also in s
81(1)
(d)
(i) and (ii) was described as a case of âcomplete
deadlockâ, but there is no particular advantage in the introduction
of this
term. The âdeadlock principleâ, on the other hand, is â
â
founded on the analogy of
partnership and is strictly confined to those small domestic
companies in which, because of some arrangement,
express, tacit or
implied, there exists between the members in regard to the company's
affairs a particular personal relationship
of confidence and trust
similar to that existing between partners in regard to the
partnership businessâ.
The
âsuperimposition of equitable considerationsâ in such a case may
justify the dissolution of such a company under the just
and
equitable provision.â
[21]
(Footnotes omitted.)
[63]
Among the
issues which the first and second intervening parties raise, is the
failure by the applicant to come to court with clean
hands. This was
also considered in
Thunder
Cats
,
as the appellant had contended that the respondents were to blame for
the breakdown of the partiesâ relationship, and were thus
precluded
from seeking the liquidation of the
company. The
court held that âlack of clean hands was not
an
absolute
barâ.
[22]
After quoting
from
Ruut
v Head
[23]
the court
held
that:
â
A
court should thus assess the respective contributions to the
breakdown to determine whether it is just and equitable to liquidate.
But a party's fault should not necessarily deter a court from
winding-up â
â
so that the paralysis . . .
may be eliminated, a competent functionary (in the person of a
liquidator) may be placed in control of
[the company] and that
functionary may address the question of where the best interests of
[the company] lie . . .â.â
[64]
Turning now
to the aspect of the deadlock in this matter, I was referred to the
decision in
Kanakia
v Ritzshelf 1004 CC t/a Passage to India and another.
[24]
This matter
dealt with an application for the winding-up of a close corporation
on the basis that a deadlock existed between the members,
and that it
was just and equitable for the close corporation to be wound-up. The
court considered the provisions of the then s 68
of the CC Act, and
the provisions of s 344
(h)
of
the 1973 Companies Act. It came to the conclusion that the phrase
just and equitable involved âa conclusion of law for the
winding-up,
namely justice and equityâ.
[25]
[65]
In addition,
it opined that the views which have been expressed with regard to
companies are applicable to close corporations.
[26]
In
considering whether or not it
was just and
equitable to wind-up the company in circumstances where a deadlock
was alleged, the court had regard to various decisions
like
Moosa,
NO v Mavjee Bhawan (Pty) Ltd
[27]
and
Rand
Air (Pty) Ltd v Ray Bester Investments (Pty) Ltd.
[28]
The court
identified five broad categories of circumstances in
Rand
Air,
one
of which was
â
the
disappearance of the company's substratum - where the company was
formed for a particular purpose for instance and that purpose
can no
longer be achieved at all. . .â
The
court went on to hold that the circumstances identified were not a
complete or final list and that it was open to the courts to
identify
other circumstances or devise other categories which justified a
company being wound-up on just and equitable grounds.
[29]
[66]
Jali J in
Kanakia,
had
to decide whether the existence of a deadlock
warranted the
winding-up of the company and the dismissal of the
counter-application. He relied on the decision of Leon J in
Emphy
and another v Pacer Properties (Pty) Ltd,
[30]
where Leon J
stated the following:
â
I
am satisfied that the mere existence of a deadlock does not
per se
entitle an applicant to a winding up order under the just and
equitable provision. What requires to be emphasised is that the Court
is concerned with what is just and equitable and not with whether
there is a deadlock or not. The existence of a deadlock is one
example of what might be regarded in a proper case as just and
equitable but a Court must always have regard to all the
circumstances
of the case
.â
[67]
Jali J was of
the view that this was the correct approach, and to adopt an approach
which merely accepted that the existence of a
deadlock would justify
a winding-up, would lead to unjust and unfair results, and would be
an abdication of the courtâs responsibility
to decide whether or
not to wind-up a close corporation.
[31]
[68]
Following on
this, in
Apco
Africa (Pty) Ltd and another v Apco Worldwide Inc
[32]
the Supreme
Court of Appeal had cause to consider s 344
(h)
of
the 1973 Companies Act, and what was meant by just and equitable
within the meaning of that section. The issue which the court
had to
decide was whether that which was envisaged in s 344
(h)
and
the just and equitable provision, was limited to cases where the
substratum of the company had disappeared or where there had
been a
complete deadlock.
[69]
The court
found that it was well settled that the sub-section postulated â. .
. a broad conclusion of law, justice and equity as
a ground for
winding-upâ.
[33]
The court per
Ponnan J, went further and held as follows:
â
It
is well settled that the subsection giving power to the court to wind
up a company on the just and equitable ground is not confined
to
cases in which there are grounds analogous to those mentioned in
other parts of the section. . . Nor, on the other hand, can any
general rule be laid down as to the nature of the circumstances that
have to be borne in mind in considering whether a case comes
within
the phrase . . . It must also be recognised that there is no
necessary limit to the generality of the words 'just and equitable'.
Section 344
(h)
affords
a court a wide judicial discretion in the exercise whereof, however,
certain other sections of the Act must be taken account.
. .â
[34]
[70]
The court
concluded that a study of the cases had demonstrated that the just
and equitable provision was not to be limited to cases
where the
substratum of the company has disappeared or where there has been a
complete deadlock.
[35]
[71]
With regard to the exercise of a courtâs discretion in
winding-up applications, the court also held that:
â
There
are two distinct principles that guide a court in exercising its
discretion to wind up a domestic company which is in the nature
of a
partnership. The first, enunciated in
Loch
v John Blackwood Ltd
[1924]
AC 783
(PC) at 788, is that it may be just and equitable for a
company to be wound up where there is a justifiable lack of
confidence in
the conduct and management of the company's affairs
grounded on conduct of the directors, not in regard to their private
life or
affairs, but in regard to the company's business. That lack
of confidence is not justifiable if it springs merely from
dissatisfaction
at being outvoted on the business affairs or on what
is called the domestic policy of the company, but is justifiable if
in addition
there is a lack of probity in the director's conduct of
those affairs. The second, usually called the deadlock principle, is
derived
from the
Yenidje
Tobacco Company
case.
It is founded on the analogy of partnership and is strictly confined
to those small domestic companies in which, because of
some
arrangement, express, tacit or implied, there exists between the
members in regard to the company's affairs a particular personal
relationship of confidence and trust similar to that existing between
partners in regard to the partnership business. If by conduct
which
is either wrongful or not as contemplated by the arrangement, one or
more of the members destroys that relationship, the other
member or
members are entitled to claim that it is just and equitable that the
company should be wound up.â
[36]
(References omitted.)
[72]
The court further held the following:
â
Actual
deadlock is not an essential to the dissolution of a partnership. All
that is necessary is to satisfy a court that it is impossible
for the
partners to place that confidence in each other which each has a
right to expect and that such impossibility has not been
caused by
the person seeking to take advantage of it.â
[37]
[73]
The applicant has, in his founding affidavit, dealt with
a number of instances on which he relies for the submission that a
deadlock
exists. Interestingly enough, the first and second
intervening parties do not significantly challenge these instances
but instead
confirm them. If one has regard to the application papers
as a whole, the following is apparent. The first respondent was
formed
for a specific purpose. Given the fact that the fourth phase
of the development has not been approved by the homeownersâ
association,
the purpose for which the respondent was established is
no longer relevant and cannot be achieved. The applicant and the
first intervening
party are members of the respondent, and the second
intervening party is a
de facto
member,
although his memberâs interest has not been formally
registered.
[74]
The applicant and the first and second intervening
parties had specific roles in relation to the operation and
administration of the
respondent. It is common cause that the
applicant and his business was the financier, the first intervening
party was responsible
for the administration and secretarial work and
the day-to-day operations of the respondent, and the second
intervening party was
the contractor responsible for building the
units.
[75]
I agree with the submission of Mr Kairinos that such
relationship was akin to a partnership and that the respondent was
merely the
vehicle for such partnership. It is clear that the members
are not on a friendly note with each other and there is no co-
operation
between them. The relationship between the applicant and
the intervening parties has irretrievably broken down, and there
appears
to be considerable
acrimony between them.
The parties do not trust each other and they are no longer conducting
themselves in the spirit of the arrangement
concluded at the
inception of the respondent. The breakdown in the relationship has
effectively caused âa paralysis of the operations
of the
respondentâ. The parties have attempted settlement discussions
which resulted in an impasse which necessitated this application.
[76]
Despite the
denial of a deadlock, it is evident from the answering affidavit that
the first and second intervening parties did not
dispute that there
is a complete breakdown of the relationship, and it appears that
given the allegations they make, the parties
no longer trust each
other and are no longer willing to co-operate with each other. This
is confirmed by the correspondence put up
by their attorney of record
that the parties cannot âwork with each other on the basis of just
and equitableâ, and that in the
event of the applicant not acceding
to their request, the only viable alternative would be to liquidate
the respondent.
[38]
[77]
If one considers the principles set out in
Kanakia
and by Ponnan J in
Apco,
it is clear that the members cannot work with
each other and are deadlocked. The operations of the respondent have
effectively ceased.
There is no prospect that the respondent will
continue with its building operations and the development of the land
as they are at
an impasse, and the second intervening party has left
the
premises.
[78]
What then falls to be determined is whether or not the
first and second intervening parties have established a defence to
the liquidation
application. Having regard to the contents of their
answering affidavit, and the concession by Mr Moodley that they are
unable to
work with each other, in my view, they have not. Although
they attempt to raise factual disputes, these are in my view not
genuine
disputes of fact warranting this court referring the matter
for the hearing of oral evidence, nor justifying this court refusing
a winding-up order. The complaints raised by them can properly be
dealt with by any liquidator appointed to wind-up the respondent.
[79]
In any event, I agree with the submission of Mr Kairinos
that the applicant has in his replying affidavit demonstrated that
these
are not real and genuine
factual disputes,
and there is no merit to much of what is contained therein. Moreover,
if one applies the principles in
Kanakia
and
Apco,
in my view, it
is just and equitable for the respondent to be wound-up.
[80]
Having found that the first and second intervening
parties do not have a defence to the liquidation proceedings, it must
follow that
they do not satisfy the second leg of the test for
intervention.
[81]
That then brings me to the last issue raised in
opposition to the liquidation application by the first and second
intervening parties,
namely the reliance by the applicant on the
provisions of s 81(1)(
d)
of
the 2008 Companies Act as the basis for the winding-up of the
respondent as this section applies to solvent companies. One must
note that the winding-up application was premised on the basis of it
being just and equitable to wind-up the respondent, due to the
existence of a deadlock between the members of the respondent. Having
regard to the request for financial statements and loan accounts,
it
was submitted that the respondent may be both factually and
commercially insolvent, as at present it is not deriving rental
income
from the units it owns, and its day-to-day running expenses
are being paid for by the
applicant.
[82]
Boschpoort
Ondernemings (Pty) Ltd v ABSA Bank Ltd
[39]
concerned an
issue which has vexed a number of high courts around the country with
the commencement of the 2008 Companies Act, namely
which section
applies where an application is made for the liquidation of the
company that is commercially insolvent even though
its assets may
exceed its liabilities. The issue as to what was meant by an
insolvent company in terms of 2008 Companies Act was
an issue for the
court to decide. It is common cause that in terms of the this Act, s
80 deals with the voluntary winding-up of a
solvent company, and
similarly so too does s 81. What is evident is that the provisions of
ss 79 to 81 of the 2008 Companies Act
apply to the liquidations of
solvent companies.
[40]
[83]
The Supreme Court of Appeal in
Boschpoort
also found that s 79(3) of the 2008 Companies
Act provides that if during liquidation proceedings of a solvent
company it is apparent
it is insolvent, then the transitional
provisions referred to in item 9 of schedule 5 of the 2008 Companies
Act apply, namely the
winding-up of the insolvent company may take
place under the 1973 Companies Act.
Boschpoort
reinforced that our law has recognised two
forms of insolvency, namely factual insolvency (where a companyâs
liabilities have exceeded
its assets) and commercial insolvency which
describes a position where a company is in such a state of
illiquidity that it is unable
to pay its debts even though its assets
may exceed its liabilities. The court in
Boschpoort
held as follows
â
.
. . in order for a solvent company to be wound up in terms of either
s 80 or 81 of the new Act, it must be commercially solvent.
If it is
commercially insolvent it may be wound up in accordance with ch 14 of
the old Act, as is provided for in subitem 9(1) of
sch 5 of the new
Act.â
[41]
[84]
Thunder
Cats Investments 92 (Pty) Ltd and another v Nkonjane Economic
Prospecting & Investment (Pty) Ltd and others
[42]
on appeal
concerned the question of the scope of s 81(1)(
d
)(iii)
and whether the scope of the words just and equitable in that section
is as wide as it had been under s 344
(h)
of
the 1973 Companies Act given the number of conflicting high court
judgments on the issue. The court considered
the
applicability of the provisions of the 1973 Companies Act in relation
to the winding-up and liquidation of solvent and insolvent
companies,
and was of the view
â
.
. . that in the event of a conflict between a provision of the
previous Act that continues to apply and a provision of part G of
ch
2 of the new Act with respect to a solvent company, the provisions of
the new Act with respect to a solvent company prevailâ.
[43]
[85]
In my view, as Mr Kairinos correctly pointed out, at the
time of the institution of the application, the respondent was not
factually
or commercially insolvent but the applicant had indicated
that due to the souring of the relationship, he was no longer
prepared
to
continue
to
fund
the
operation
of
the
respondent.
At
the
time
of
the
institution of the application, the respondent was commercially
solvent and consequently the applicantâs re
liance
on the section cannot be faulted.
Costs
[86]
In relation to the liquidation application, the question
of the costs does not really arise as costs will be the costs in the
liquidation
of the respondent. The intervention application however,
is a different issue. Mr Kairinos submitted that although the first
and
second intervening parties were entitled to intervene as members
of the respondent, the respondent could not oppose the liquidation
application, and they could not do so on the respondentâs behalf.
They did not succeed in establishing a defence to the liquidation
application and hence, this court ought to grant a costs order in
favour of the applicant, including the costs of senior counsel
occasioned by the intervention application.
[87]
I agree with his
submission that as
the first and second intervening parties were unsuccessful in
satisfying the second leg of the test for intervention,
they ought to
pay the costs occasioned by the dismissal of such application.
However, I am of the view that the matter was not so
complex as to
justify the employment of senior
counsel.
[88]
The delivery of this judgment has been delayed. This is
largely due to the fact that I do not have a permanent registrar
assigned
to assist me. This fact has been brought to the attention of
the Judge President and the Office of the Chief Justice. In addition
the covid-19 pandemic and the rotation of staff had also contributed
to the dela
y.
Order
[89]
In the
result the following order will issue:
89.1.
The application for leave to intervene is dismissed.
89.2.
The respondent is placed into provisional liquidation in
the hands of the Master of the High Court, Pietermaritzburg,
KwaZulu-Natal.
89.3.
A
rule nisi
is
hereby issued calling upon the respondent and all other interested
persons to appear and show cause, if any, to this court on the
19
th
day of July 2021 at 09h30 or so soon thereafter
as the matter may be heard, why the respondent should not finally be
wound up.
89.4.
This order is to be served forthwith on the respondent
and the intervening parties, and published on or before the 2
nd
day of July 2021 once in the Government Gazette
and once in a daily newspaper published and circulating in KwaZulu
Natal.
89.5.
The costs of the liquidation application be costs in the
liquidation of the respondent.
89.6.
The costs of the application to intervene are to be paid
by the first and second intervening parties.
HENRIQUES J
Case
Information
Date
of Set Down
: 19
August 2020
Date
of Judgment
:
31 May 2021
Appearances
Counsel
for the Applicant
: Mr G Kairinos SC
Village
Chambers
SANDTON
:
Email:
kairinos@law.co.za
Instructed
by
Applicantâs
Attorneys
: Jurgens Bekker Attorneys
: Email:
Jurgens@jurgensbekker.co.za
Ref: J.S Bekker/H977/B6247
Tel No: 011-622 5472
c/o Venns Attorneys
Email:
Andreac@venns.co.za
Ref: A. Coopasamy/87198335/J54a
Counsel
for the Intervening Parties :
Mr D Moodley
Email:
deshainemoodley@gmail.com
Instructed
by
: Chris Liebenberg Attorneys
Ref: C J Liebenberg/B17314
c/o Anand Pillay Incorporated
37 Henrietta Street
Email:
anandpillay@telkomsa.net
Tel No: 033 345 1452/3
This
judgment was handed down electronically by circulation to the
partiesâ representatives by email and released to SAFLII. The
date
and time for hand down is deemed to be 09h30 on 31 May 2021.
[1]
Companies Act 71 of 2008
.
[2]
Close Corporations Act 69 of 1984
.
[3]
Page 296-297 of the application papers, volume 3.
[4]
Page 80-82 of the application papers, volume 1.
[5]
Service affidavit of Lesego Sabelo Makofane, pages 74-79 of the
application papers, volume 1.
[6]
Pilot
Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd
2015
(2) SA 550
(GJ) para 35.
[7]
Companies
Act 61 of 1973.
[8]
Pilot Freight supra
para 35.
[9]
D E Van Loggerenberg
Erasmus:
Superior Court Practice
(Revision
Service 15, 2020) at D1-59.
[10]
Levay and another v
Van Den Heever and others NNO
2018
(4) SA 473
(GSJ) paras 6-7.
[11]
P M Meskin
et al
Henochsberg on the
Close Corporations Act
(Service
Issue 33, August 2019) at 7-8.
[12]
Section 66 of the CC Act, and item 9 of schedule 5 of the 2008
Companies Act.
[13]
Kalil v Decotex (Pty)
Ltd and another
1988
(1) SA 943
(A) at 979B-F.
[14]
B Galgut
et al
(eds)
Henochsberg on the
Companies Act 61 of 1973
(Service
Issue 33, June 2011) at 701.
[15]
Ibid at 704(1)-705.
[16]
Ibid at 705.
[17]
Thunder Cats
Investments 92 (Pty) Ltd and another v Nkonjane Economic Prospecting
& Investment (Pty) Ltd and others
2014
(5) SA 1 (SCA).
[18]
Ibid para
12.
[19]
Ibid para 14.
[20]
Ibid para 15.
[21]
Ibid para 17.
[22]
Ibid para 27.
[23]
Ruut v
Head
(1996)
20 ACSR 160
at 162.
[24]
Kanakia v
Ritzshelf 1004 CC t/a Passage to India another
2003
(2) SA 39 (D).
[25]
Ibid at 45A.
[26]
Ibid at 45D.
[27]
Moosa, NO v Mavjee
Bhawan (Pty) Ltd and another
1967
(3) SA 131 (T).
[28]
Rand Air
(Pty) Ltd v Ray Bester Investments (Pty) Ltd
1985
(2) SA 345 (W).
[29]
Kanakia supra
at
45J.
[30]
Emphy and
Another v Pacer Properties (Pty) Ltd
1979
(3) SA 363
(D) at 369A.
[31]
Kanakia supra
at
46E-G.
[32]
Apco
Africa (Pty) Ltd and another v Apco Worldwide Inc
[2008]
ZASCA 64; 2008 (5) SA 615 (SCA).
[33]
Ibid para 16.
[34]
Ibid.
[35]
Ibid para
18.
[36]
Ibid para 19.
[37]
Ibid para 21.
[38]
Annexure
âRA4â pages 243-244 of the application papers.
[39]
Boschpoort
Ondernemings (Pty) Ltd v ABSA Bank Ltd
2014
(2) SA 518 (SCA)
[40]
Ibid para 13.
[41]
Ibid para 22.
[42]
Thunder
Cats Investments 92 (Pty) Ltd and Another v Nkonjane Economic
Prospecting & Investment (Pty) Ltd and Others
2014
(5) SA 1 (SCA).
[43]
Ibid para 3.