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[2019] ZAGPPHC 80
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Ramphele v Frontline Africa Investments (Pty) Limited and Others (2018/46462) [2019] ZAGPPHC 80 (15 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF INTEREST
TO OTHER JUDGES: NO
(3)
REVISED:
CASE NO
:
2018/46462
DATE:
15
TH
MARCH 2019
In
the matter between:
RAMPHELE,
LILLIAN MABOLELE
MATHAGA
Applicant
and
FRONTLINE AFRICA INVESTMENTS (PTY)
LIMITED
First
Respondent
PRICE
WATERHOUSE COOPERS INCORPORATED
Second Respondent
VENTER,
DD
Third
Respondent
COETZEE
,
GERT HENDRIK JACOBUS, N O
Fourth Respondent
BOTHA
,
J H, N
O
Fifth Respondent
THE
MASTER OF THE HIGH COURT, PRETORIA
Sixth Respondent
JUDGMENT
ADAMS
J:
[1].
This is an opposed application by the applicant for an order which
would have the effect
of compelling the first respondent to transfer
into her name forty shares in the first respondent presently held in
the name of
her deceased husband.
[2].
The application is opposed only by the first respondent. The other
respondents have been
cited in their official capacities because they
have an interest in the relief sought. Of importance is the fact that
the fourth
respondent is the executor in the deceased estate of the
applicant's late husband, Preddy Ramphele, and the fifth respondent
administered
the estate on behalf of the fourth respondent. The
second and the third respondents are the auditors of the first
respondent.
[3].
The applicant is the sole heir in the estate of her late husband, and
by all accounts she,
in the normal course of events , would have been
entitled to take transfer of the forty shares held by her husband in
the first
respondent at the date of his death on the 27
th
of March 2000. This is confirmed by the Supplementary First and Final
Liquidation and Distribution Account, which laid for inspection,
without any objection, during May 2016.
[4]. The
first respondent opposed the application on the basis that at a
meeting on the 2
nd
December 2014 between the applicant,
the fifth respondent and the first respondent's attorneys, the
applicant had agreed to sell
the forty shares in the first respondent
to the first respondent. This is denied by the applicant. Also, so
the first respondent
contends, the applicant is not entitled to take
transfer of the shares in view of the first respondent's Memorandum
of Incorporation,
which provides as follows at clause 5:
'(5) If a member
of the company desires to sell or alienate his shares in the company,
the. following will be
applicable :
(a).
Before
a transferring shareholder makes or accepts an offer to a third
party, he is compelled to offer such a proposal in writing
to the
other shareholders - pro rata to their shareholding in the company
clearly stating the number of shares which are on offer,
the price
and the condition of sale.
(b).
The
other shareholders will then be permitted to, by means of a written
notice within 30 days of date of receipt of the offer, to
take up
these pro rate shares at the price and conditions as stated'.
[5].
The fourth and fifth respondents, so the first respondent contends,
did not comply with
these provisions of the Memorandum of
Incorporation and until they do, the fourth and fifth respondents are
not entitled to transfer
the shares to the applicant. This contention
by the first respondent is not sustainable and can and should be
rejected summarily.
The provisions do not find application in this
matter. The applicant is not a third party who is purchasing the
shares from a shareholder.
She is a shareholder by virtue of the fact
that she is a successor in title to an existing shareholder by
operation of the laws
of succession. I therefore reject this
contention on behalf of the first respondent.
[6].
The main dispute between the parties relates to the conclusion or not
of an agreement by
the estate of the applicant's late husband and /
or the applicant herself to sell the shares to the first respondent
and / or its
other members. Therefore, the question which is central
to this opposed application is whether, if regard is had to the
common
cause facts in the matter, the surrounding circumstances and
the communications between the parties , a contract came into
existence
between parties in terms of which contract the deceased
estate or the applicant herself had sold or agree to sell to the
first
respondent the forty shares in the latter company.
[7].
I am of the view that for the answer to this central question one
needs look no further
than the version on paper of the first
respondent, which, in its answering affidavit, although it claims
that an agreement for
the sale of the shares was concluded at the
meeting on the 2
nd
of December 2014, states that a letter
was addressed to the executor on the 9
th
of March 2015
confirming that the applicant confirmed at the said meeting that she
'would like to sell her shareholding in Frontline
as opposed to
remaining as a shareholder'. An offer was then made by the first
respondent to buy the shares for the purchase price
of R11 460. The
point is this: if an agreement was concluded for the sale of the
shares during December 2014, why then is it necessary
for the first
respondent to make an offer to buy during March 2015. It is also
instructive to note that in correspondence from
the attorneys for the
first respondent shortly after the 2
nd
of December 2014,
no mention is made of any agreement having been reached at the
meeting on the said date.
[8].
Even more telling is the fact that on the 101h of April 2015 the
first respondent's attorneys
wrote to the executors advising them as
follows: 'Kindly note that we are still awaiting your written
confirmation on whether your
client accepts or client's offer of R11
400 in respect of the 40 shares'.
[9].
Wessels JA in
South African Railways
&
Harbours v
National Bank of South Africa Ltd,
1924 AD 704
at 715 - 16 said
this:
'Although the minds of the parties
come together, courts of law can only judge from external facts
whether this has or has not occurred.
In practice, therefore, it
is the manifestation of their
wills and not the unexpressed will which is of importance...
... . the law does not concern
itself with the working of the minds of the parties to a contract but
with the external manifestations
of their minds ..... if by their
acts their minds seem to have met, the law will, where fraud is not
alleged, look to their acts
and assume their minds did meet and that
they contracted in accordance with what the parties purport to accept
as a record of their
agreement.'
[10]. This
pronouncement by the AD is a helpful guide in resolving conflicts of
evidence on the existence
or the terms of a contract. As was stated
by the author of Christies: The Law of Contract in South Africa, 6
th
Ed, by RH Christie:
'... in order to decide whether a
contract exists one looks first for the true agreement of two or more
parties and because such
agreement can only be revealed by external
manifestations one's approach must of necessity be generally
objective'.
[11]. I
find myself in agreement with this enunciation of the applicable
legal principles. The point is
this: notwithstanding the assertion to
the contrary on behalf of the first respondent, the objective facts
seem to support the
claim by the applicant that no agreement for the
purchase and sale of the shares was concluded between the deceased
estate and
the applicant.
[12].
Applying these principles
in casu,
I therefore find myself in
agreement with the submissions on behalf of the applicant that the
balance of probabilities favours the
case of the applicant. The
applicable legal principles support the conclusion that no contract
was concluded as averred by the
first respondent.
[13]. The
applicant is therefore entitled to the relief claimed in its notice
of motion, and her application
should be granted.
Costs
(5)
The general rule in matters of costs is
that the successful party should be given his costs, and this rule
should not be departed
from except where there are good grounds for
doing so, such as misconduct on the part of the successful party or
other exceptional
circumstances. See:
Myers
v Abramson,
1951(3) SA438 (C) at
455.
(6)
I can think of no reason why I should
deviate from this general rule.
(7)
I therefore intend awarding cost against
the first respondent in favour of the applicant.
Order
Accordingly,
I make the following order:-
1.
The
first respondent shall transfer into the name of the applicant the
forty shares in it presently held in the name of her late
husband,
Preddy Ramphele, and the first respondent shall do all things
necessary and sign all documents necessary to ensure that
the
aforementioned shares are in fact transferred into the name of the
applicant.
2.
The
first respondent or its duly authorised representative shall issue
the share certificate relating to the forty aforementioned
shares in
favour of the applicant.
3.
The
first respondent or its duly authorised representative shall amend
and ensure that its share register is amended to reflect
that the
applicant is the owner of the forty shares.
4.
The
first respondent shall pay the applicant's cost of this opposed
application.
LR ADAMS
Judge of the High Court
Gauteng Division, Pretoria
HEARD
ON:
12
th
March 2019
JUDGMENT
DATE:
15
th
March 2019
FOR
THE APPLICANT:
Adv J De Swardt
INSTRUCTED
BY:
Kotze & Roux Attorneys
FOR
THE FIRST RESPONDENT:
Adv N L Dyirakumunda
INSTRUCTED
BY:
Ramushu Mashile Twala Inc