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[2018] ZAGPPHC 355
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Badenhorst v Absa Bank Limited and Others (6263/2018) [2018] ZAGPPHC 355 (8 February 2018)
IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT
OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: 6263/2018
8/2/2018
In the matter between:
ALWYN
PETRUS BADENHORST
Applicant
and
ABSA BANK
LIMITED
First
Responden
t
BELL'S
FIRE
CC
Second Respondent
ROBERT
FREDRICK CLAASE
Third Respondent
JUDGMENT
Baqwa
J
[1]
In
this matter, the applicant, who holds a 40% membership interest in
the second respondent, a close corporation seeks to pursue
his rights
in terms of section 46 of the Close Corporations Act by seeking an
order in which the first respondent is ordered to:
1.
Acknowledge
and accept that the applicant as the only other member of the second
respondent is entitled to have access to all accounts
and associated
information in the name of the second respondent;
2.
Record
the applicant's details as a party entitled to obtain such
information and sign any and all documentation on behalf of the
second respondent insofar as the first respondent is concerned and
that the applicant becomes a co-signatory on behalf of the second
respondent.
[2]
The
applicant also sought an order for the revocation of any previous
power of authority and/or power of a signatory granted to
any
employee of the second respondent. That prayer has however been
abandoned by the applicant.
[3]
The
applicant is one of two members of the second respondent with the
other member being the third respondent with a 60% members
interest
whilst the applicant holds 40% members interest.
[4]
The
first respondent is ABSA bank whilst the second respondent is Bell's
Fire South Africa CC of 5
th
Street Bashewa, Pretoria.
[5]
The
third respondent is Mr Robert F. Claase who is the majority interest
holder. The third respondent is currently incapacitated
and is a
patient in the care of Pretoria East Hospital.
Urgency
[6]
The
matter has been brought before this court by way of an urgent
application due firstly to the sudden illness and incapacity of
the
third respondent. Secondly the applicant sought access to the close
corporation documents and account information currently
held by the
first respondent. The latter indicated by letter that it could not
give such access due to an arrangement by the third
respondent In
terms of which access could only be given to the third respondent and
his wife Mrs Claase and that the fin t respondent
would only give the
applicant access upon receipt of a court order, hence the present
application.
[7]
The
applicant considered that continued lack of access could be
prejudicial to him and the close corporation in that he could not
exercise oversight as the remaining operational member if he
continued to be kept at arm's length from the banking records or
activities of the close corporation.
[8]
The
application has been opposed by the second and third respondents who
submitted
in limine
that
the matter was not urgent. It is trite that if the urgent court route
is not followed the matter could have been dealt with
in about three
months' time in the unopposed roll alternatively in 10 to 12 months'
time in the opposed roll. I considered the
issue of urgency and ruled
that the matter has properly been brought before the urgent court
precisely because it could be viewed
as dereliction of duty should
something untoward happen in the interim when the applicant could be
forced to plead ignorance.
[9]
Until
the third respondent's affliction, it had been agreed between the
applicant and the third respondent that the applicant would
not be a
signatory to the accounts of the second respondent. It was agreed
that the third respondent and Mrs Claase would remain
as the
signatories to the accounts, Mrs Claase being duly authorised by the
majority member of the second respondent. As matters
presently stand,
Mrs Claase, who is not a member of the second respondent is the
remaining signatory. There is therefore presently
no member of the
second respondent who has direct access to the first respondent and
the records it keeps.
Section 46
of the
Close Corporations Act 69 of
1984
provides:
"46
Variable Rules
regarding Internal Relations
The following rules in respect
of internal relations in
a
corporation shall
apply insofar
as
this Act or an
association agreement in respect of the corporation does not provide
otherwise
-
(a)
Every member shall be entitled to
participate in the carrying on of the business of the corporation.
(b)
Subject to the provision of
section 47, members shall have equal rights in regard to the
management of the business of the corporation..."
[10] The
respondents submit that it is not necessary for the applicant to have
direct access to information
held by the first respondent or to
become a co-signatory even in the temporary absence of the third
respondent because the applicant
has access to information and bank
statements currently held at the second respondent's place of
business. They also make reference
to the arrangement referred to
above made between the first and third respondents. It is trite that
as a
member, good governance practice demands that the
applicant perform his fight to fiduciary duties of oversight over the
second respondent.
I considered therefore that he was not on a mere
frolic only in bringing this application.
[11]
I
have considered the submissions and weighed them against the changed
circumstances regarding the second respondent. The third
respondent
is currently a patient at Pretoria East Hospital and in one of the
letters obtained from a physician attending to him,
Dr Thomas Gray
(letter dated 2018 - 01 - 29) states:
"re:
Mr
R Claase (05
-
03
-
1947)
Mr Claase is currently under
treatment in our ICU unit at Pretoria East Hospital, critically ill
on
a
ventilator.
(He suffered a major stroke in December following prior surgery.)
I hereby confirm that Mr Claase
it is not fit to make any legally binding decisions at present, and
for the foreseeable future.
Yours faithfully
T, Grey (physician)"
[12]
The
contents of this letter have been contested by the respondents'
counsel on the basis that it is not an affidavit and that the
veracity be of has not been tested. She could however not dispute
that Dr Gray is a physician at Pretoria East Hospital. Whilst
floating the said contestation, I have taken judicial cognisance of
the letter in light of the admission contained in paragraph
5.10.1 of
the respondents' opposing affidavit in which it is stated as follows:
"5.10.1 It
is admitted that the third respondent is currently incapable of
managing the affairs
of the second respondent as the third respondent
is critically ill ..."
This admission corroborates the
information obtained from Pretoria East Hospital.
[13]
In
Plascon-Evans
1984
(3) SA 623A
at 634H - 6358 the Appellate Division dealt with disputes
of fact in motion proceedings as follows:
". ..
where in proceedings
on notice of motion disputes of fact have arisen on the affidavits, a
final order, whether it be an interdict
or some other form of relief,
may be granted if those facts averred in the applicant's affidavits
which have been admitted by·
the respondent, together with the
facts alleged by the respondent, justify such an order. The power of
the Court to give such final
relief on the papers before it is,
however, not confined to such a situation. In certain instances the
denial by respondent of
a fact alleged by the applicant may not be
such
as
to raise a real, genuine or bona fide dispute of fact
(see in this regard Room Hire
Co
(Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd1949 (3)
SA 1155
(T) at 1163
5;
Da
Mata v Otto NO
1972 (3)
SA 858
(A) at 8820
-
H). If in
such
a
case the respondent has not availed himself of his
right to apply for the deponents concerned to be called for cross
examination
under Rule
6
(5) (g) of the Uniform Rules of Court
(cf Petersen v Cuthbert
&
Co Ltd
1945 AD 420
at 428; Room
Hire case supra at 1164) and the Court is satisfied as to the
inherent credibility of the applicant's factual averment,
it may
proceed on the basis of the correctness thereof and include this fact
among those upon which it determines whether the applicant
is
entitled to the final relief which he seeks..
."
The contestation, therefore,
regarding the contents of the letter by Dr Gray did not raise a real,
genuine or
bona fide
dispute of fact in the context of this
application.
[14]
I
have considered also that the applicant does not seek to change any
of the arrangements made by the third respondent with the
first
respondent save to allow him the opportunity to exercise his
fiduciary duty vis-a-vis the second respondent. I have considered
that he can do so in conjunction with Mrs Claase as arranged by the
third respondent.
[15]
The
applicant is not only a member of the second respondent but also
holds such members interest conjointly with the third respondent.
I
therefore do not consider it appropriate to grant any costs order
against the respondent.
[16]
I
have also considered that the applicant's right and duties arise
ex
lege
and that he ought to be
assisted to do so.
[17] In
the result, make the following order.
The first respondent is ordered
to:
1.1
Acknowledge
and accept that the applicant, as the only other member of the second
respondent, is entitled to have access to all
accounts and associated
information in the name of the second respondent.
1.2
Record
the applicant's details as a party entitled to obtain such
information and sign as co-signatory with Mrs Caase any and all
documentation on behalf of the second respondent in so far as the
first respondent is concerned and that the applicant becomes
a
co-signatory as aforesaid on behalf of the second respondent.
2.
Each party will pay their own costs.
S.A.M. BAQWA
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Heard
on
:
08 February 2018
Delivered
on:
08 February 2018
For
the Applicant
:
Advocate M. R. Halstead
Instructed
by:
Spies Bester Potgieter
Attorneys
For
the 2
nd
and 3
rd
Respondents
:
Advocate K. Fitzroy
Instructed
by:
Du pre le Roux Attorneys