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[2018] ZAGPPHC 648
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Electronic Mining Supplies CC v Mabelane N.O and Another (807/2015) [2018] ZAGPPHC 648 (28 February 2018)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
CASE:
807/2015
(1)
REPORTABLE
(2)
OF INTEREST TO OTHER JUDGES
(3)
REVISED.
ELECTRONIC
MINING SUPPLIES CC
Applicant
REGISTRATION
NUMBER: [….]
and
HLIPHI
ANNAH MABELANE
N.O.
1
st
Respondent
IDENTITY
NUMBER: [….]
THE
COMMISSION OF THE COMPANIES AND
2
nd
Respondent
INTELLECTUAL
PROPERTY COMMISSION (CIPC)
THE
DELEGATED OFFICIAL FOR DECEASED ESTATES
3
rd
Respondent
ON
BEHALF OF THE MASTER OF THE HIGH COURT
NELSPRUIT
FOR THE DISTRICT OF THABE CHWEU
HELD
AT MASHISHNG
JUDGMENT
Roelofse
AJ:
[1]
The applicant is a close corporation. The applicant has two members,
Ms
Zodwa Christina Mabelane (who passed away on 15 February 2015
(
"the deceased'')),
and
Ms Anelize Lowis. Ms Lowis alleges that the deceased resigned as a
member of the applicant on 5 January 2015. The deceased passed
away
before the applicant has registered the applicant's amended founding
statement to reflect the deceased’s purported resignation
as
contemplated in section 15 of the Close Corporations Act, Act 69 of
1984
("the Act").
[2]
The close corporation seeks relief in terms of prayers which it has
formulated
as follows:
‘
1.
That the above
Honourable Court make a finding that the deceased lawfully resigned
from the Close Corporation before passing away,·
2.
That the above Honourable Court make
an order in terms of
Section 36(1)(d)
of the
Close Corporations Act
69 of 1984
that the deceased ceases to be a member of the Close
Corporation:
3.
And\or that the Commissioner of
Companies and Intellectual Property be ordered to remove the deceased
as member of the Close Corporation:
4.
And\or in the alternative that the
Executrix, being the First Respondent be compelled to sign
documentation to affect the removal
of the deceased as member of the
Close Corporation,·
5.
That the above Honourable Court make
a ruling in terms of
Section 36(2)(b)
of the
Close Corporations Act
69 of 1984
with regard to the disposition of the shares;
6.
And\or that the member\s of the Close
Corporation can determine disposition of shares in terms of
Section
37
of the
Close Corporations Act 69
of 1984;
7.
That the value of the shares, if any,
be determined,·
8.
That the procedure for establishing
the value of the shares be provided, if applicable,·
9.
And\or that the payment of the value
of the shares, if any be determined with the provisions of
Section 39
of the
Close Corporations Act·
;.
[3]
The first respondent is the executrix of the deceased's estate. The
deceased
was the first respondent's mother. The other respondents did
not participate in the
lis.
[4] The
deceased held 51% membership interest in the applicant. Ms Lowis
holds the remaining membership interest.
[5]
I shall briefly dispose of the relief sought in prayers 1 to 6
because, at the end
of the hearing. the parties· counsel had
no objection to the granting an order with reference to section 35 of
the Act.
I shall do so. Thereby, prayers 7 to 9 of the notice of
motion are addressed. I nevertheless proceed to deal with prayers 1
to
6 of the notice of motion.
[6]
Prayer I is for a declaratory order that the deceased has
..lawfully'' resigned from
the applicant. On J 8 May 2015, the
executrix's attorneys informed the applicant's attorneys that the
deceased's alleged resignation
is denied. A real dispute of fact was
therefore foreshadowed in this letter. Notwithstanding this
knowledge, the applicant approached
the court on motion.
[1]
Real disputes of fact are not resolved on paper.
[2]
In any event, prayer 1 contemplates a declaratory order.
[3]
.
A declaratory order in this regard would have been incompetent as it
would have been academic and would have had no practical
effect as
the deceased has passed away after her alleged resignation and before
her resignation could be effected. The deceased's
membership interest
now falls to be dealt with in terms of section 35 of the Act.
[7]
Sections 33 to 37 of the Act provides for the acquisition and
disposal of members·
interest in a close corporation. Section
33 provides for the acquisition of a members' interest by a new
member; section 34 provides
for the disposal of an insolvent member's
interest; section 34A provides for the attachment and sale in
execution of a member's
interest; section 35 provides for the manner
in which a deceased member's membership must be dealt with by his/her
executor
[4]
section 36 provides
for the cessation of membership by an order of court;
[5]
and section 37 deals with other disposals of members' interest.
[8]
Section 36 of the Act empowers the court to make an order regarding
the disposal of
members' interest.
[6]
,
Only a member of a corporation has
locus
standi
to
approach court for relief in terms of section 36. Ms. Lowis in not a
party to the proceedings. It is the close corporation that
approaches
the court for relief. I alerted counsel appearing for the applicant,
Mr. Groenewald, to this insurmountable obstacle
for the applicant.
The applicant abandoned the relief sought prayer 2. In the result,
prayer 5, where reliance is also placed on
section 36, must likewise
fail.
[9]
It is not open to the applicant to rely on section 37 of the Act for
no other disposition
of the deceased's membership interest applies.
Therefore, prayer 6 must fail.
[10]
Without establishing the relief in prayers 1, 2. 5 and 6, there is no
basis for the granting
of prayers 3 and 4. These prayers must
therefore also fail. This leaves prayers 6 to 9. As aforesaid, the
relief sought in these
prayers is addressed in the order.
[11]
However, this is not the end of the matter. Judges are duty bound to
uphold the law - they may
not close their eyes to injustice for
injustice must be confronted head on and, decisively dealt with.
I was alarmed because
what emerged from the papers appeared to be a
fronting practice.
[7]
Fronting
is a crime. Rightly so. It is nothing else than a modern-day
exploitation of people based on race and gender through the
shameful
abuse of a well-intended and lawful mechanism that was created with
the noble objective of redressing the ills of our
recent past so
movingly described by the Chief Justice His Lordship Mr Justice
Mogoeng in VIKING PONY AFRICA PUMPS (PTY) LTD t/a
TRICOM AFRICA v
HIDRO-TECH SYSTEMS (PTY) LTD AND ANOTHER
[8]
as follows:
''One
of the most vicious and degrading effects of racial discrimination in
South Africa was the economic exclusion and exploitation
of black
people. Whether the origins of racism are to be found in the
eighteenth and nineteenth century frontier or in the subsequent
development of industrial capitalism, the fact remains that our
history excluded black people from access to productive economic
assets. After 1948, this exclusion from economic power was
accentuazed and institutionalised on explicitly racially
discriminatory
grounds, further relegating most black people to
abject poverty. Driven by the imperative to redress the imbalances of
the past,
the people of South Africa, through their democratic
government, developed, among others, the broad based black
economic empowerment
programme .
Although
Viking
was
decided in the context of public procurement, I do not see why the
principles in
Viking
should
not also apply in other instances where reliance is placed upon
certain levels broad-based black empowerment compliance in
order to
secure business. whether big or small, lucrative or not.
[12]
The Broad-Based Black Economic Empowerment Act 53 of 2003
("the
B EBEE Act")
commenced
on 21 April 2004. The objectives of the B-BBEE Act are to facilitate
broad-based black economic empowerment.
[9]
[13]
On 24 October 2014
[10]
an
amendment to the B-BBEE Act came into force. The B-BBEE Act was
enhanced in order to address fronting. The B-BBEE Act now includes
a
definition of a fronting practice; it established the Broad-Based
Black Economic.: Empowerment Commission which has the power
to
investigate fronting practices; and, it criminalizes fronting.
[14]
In section I of the B-BBEE Act, a fronting practice is defined as
follows:
''fronting
practice ·
means a
transaction. arrangement or other act or conduct that directly or
indirectly undermines or frustrates the achievement of
the objectives
of this Act or the implementation of any of the provisions of this
Act, including but not limited lo practices in
connection with a
B-BBEE initiative-
(a)
in terms of which black persons who
are appointed to an enterprise are discouraged or inhibited from
substantially participating
in the core ac1ivities of that
enterprise:
(b)
in terms of which the economic
benefits received as a result of the broad-based black economic
empowerment status of an enterprise
do not flow to black people in
the ratio specified in the relevant legal documentation;
(c)
involving the conclusion of a legal
relationship with a black person for the purpose of that enterprise
achieving a certain level
of broad-based black economic empowerment
compliance without granting that black person the economic benefits
that would reasonably
be expected to be associated with the status or
position held by that black person: or
(d)
involving the conclusion of an
agreement with another enterprise in order to achieve or enhance
broad-based black economic empowerment
status in circumstances in
which-
(i)
there are significant limitations,
whether implicit or explicit, on the identity of suppliers. service
providers. clients or customers:
(ii)
the maintenance of business
operations is reasonably considered to be improbable, having regard
to the resources available:
(iii)
!he terms and conditions were not
negotiated at arm's length and on a fair and reasonable basis;"
[15]
Section 13B of the B-BBEE Act established the Broad-Based Black
Economic Empowerment Commission.
The Commission has authority
throughout the Republic. The Commission must oversee, supervise and
promote adherence with the Act
in the interest of the public.
[11]
Two of the further functions of the Commission are to receive
complaints relating to broad-based black economic empowerment in
accordance with the provisions of the Act and to, either of its own
initiative or in response to complaints received, investigate
any
matter concerning broad-based black economic empowerment
[12]
.
The Commission is the proper statutory authority to receive
complaints and to investigate matters concerning broad-based black
economic empowerment is the Commission. Fronting disregards the very
purpose of broad- based black economic empowerment. The Commission
has a duty to investigate fronting.
[16]
Sec
tion
130 of the B-BBEE Act criminalizes fronting practices.
[13]
Sub-section (3) provides that a natural person who commits a fronting
practice is liable to a fine or imprisonment of not exceeding
10
years and in the instance of a legal person, to a fine not exceeding
10% of its annual turnover.
[17]
I turn to the facts that gave rise to this court’s concerns.
The applicant mainly assembles
and supplies electrical power boxes.
It is the applicant's case that compliance with B-BBEE requirements
are important to the applicant
because without B-BBEE certification,
the applicant would be unable to retain its vendor numbers. During
September 20_13, and in
order to comply with B-BBEE requirements, Ms
Lowis approached the deceased to become a member of the applicant. At
that stage,
the deceased was employed by Ms Lowis as a domestic
worker. The deceased became a member in the applicant on 22 October
2013. The
first respondent alleges that her mother was employed as a
cleaner or domestic helper.
[18]
Ms Lowis alleges that, during January 2015, the deceased approached
her because she wanted to
resign from her employment and as a member
of the applicant due to ill health. In support of this allegation, Ms
Lowis relics upon
the purported minutes of a meeting of the members
of the applicant, allegedly attended by both members and a letter of
resignation
that was allegedly signed by the deceased.
[19]
The minutes of the meeting. in relevant part, reads as follows:
"Attendance
- All members were present:
CZ
Mapelane
A
Lowis
The
meeting took place to discuss the resignation of member
C.
Z. Mapelane (id nr […]) where
she decided out of her free will to resign from the Company,
referring her notice letter she
supplied to the Company.
The
changes were approved by all members.
Resignation
would be effective 1 February 2015.
Minutes
signed at Lydenburg on this 5
th
day of January 2015''.
The
minutes appears to be signed by the deceased as
"Resigning
Member"
and A Lowis
"active member".
[20]
The letter of resignation, not directed only to Ms Lowis, but to Mr
Lowis, reads as follows:
“
Dear
Mr and Mrs Lowis
I
would like to inform that I am resigning from my position, effective
01 February 2015.
Thank
you for the opportunities that you have provided for me. I have
enjoyed working for EMS and appreciate the support you provided
me
during my time with the company.
If
I can be of any help during this transition please for me know.
Sincerely,”
The
letter of resignation appears to have been signed by the deceased on
5 January 2015. The minutes of the meeting and the letter
of
resignation is completely silent over the fate of the deceased’s
membership interest.
[21]
Ms Lowis alleges that she had a long and amicable relationship with
the deceased. Ms Lowis alleges
that the deceased had not requested
any payment of dividends or share value when she resigned. Ms Lowis
also alleges that the deceased
was well aware of the fact that there
was no dividend declared as " ...
E.M.S. did not show a
profit, in the alternative a marginal profit
... ". Ms Lowis
continues to allege that if there had been any dispute over dividends
or share payments same would have been
aired by the deceased as she
was well aware of her rights. Even if this is so, one would have
expected th.at, whatever the current
value of the deceased's
membership interest, or whatever the deceased ' s knowledge of her
rights when she resigned, the membership
interest should have been
dealt with in terms of the applicant's articles of association. The
applicant's articles and the provisions
therein have not been
traversed at all. It was not before court. The alleged minutes of the
members' meeting is also silent on
this issue.
[22]
Ms. Lowis did not effect the changes brought about by the purported
resignation of the deceased
on the records of the applicant because,
so Ms Lowis alleges, the applicant was unable to contact the deceased
despite several
and prolonged attempts. J have serious doubts over
the truthfulness of this allegation. The first respondent alleges
that an employee
of the applicant, who she describes as "Doppies"
transported the deceased to and from her workplace. A person by the
name of "Doppies'' is listed on the applicant's letterhead as a
contact person.
[14]
There is
therefore credence in the first respondent’s allegation in this
regard. This being so. it is highly improbable that
Ms Lewis could
not contact the deceased so that the changes could be effected. Why
not simply visit the deceased at her home in
order to sign the
necessary documents after she had resigned if it was so important to
the applicant?
[23]
On 9 May 2015, the applicant received a letter from N & A Ngomane
and Associates Attorneys
who acts for the first respondent. This was
allegedly the first notification Ms Lowis received or the deceased’s
death. Ms
Lowis responded by forwarding the deceased's resignation
letter to the first respondent's attorneys.
[24]
The first respondent's attorneys' response was that the first
respondent disputed that the deceased
resigned and that, if the
deceased indeed resigned, her share of the dividends and/or equity
had to be paid out to the deceaseds
estate.
[25]
After some correspondence between the applicant's attorneys and the
first respondent's attorneys.
the first respondent's attorneys made
the first respondent's stance clear the first respondent was not
going to sign any documents
for the transfer of the deceased's
membership interest.
[26]
Faced with the first respondent's final stance on the matter, the
applicant approached
the court for the relief referred to above.
[27]
The matter was called before me on 312 January 2018. During Mr.
Groenewald's address, J
raised the provisions of the 8-BBEE Act,
specifically enquiring as to the purpose for which the deceased was
appointed the manner
in which the applicant and Ms. Lowis dealt with
the deceased alleged resignation; and the applicant's response to the
executrix's
attorneys' queries as these were some of the issues which
concerned me. Simply put, I was concerned because, save for some
vague
statements, it did not appear from the papers at all what (if
any) economic benefits flowed to the deceased by virtue of the
majority
membership interests she held so that the applicant could
achieve a certain level of broad-based black economic empowerment
compliance.
[28]
I postponed the matter to 20 February 2018. I made the following
order:
"2.
The applicant and Ms Anneliz Lewi
[sic]
(ID No. […])
is called upon to show cause why the conduct of the applicant and/or
any person related to the applicant within
the contemplation of the
Companies Act 71 of 2008
should not be referred to the Broad-Based
Black Economic Empowerment commission for investigation in terms of
Section 13()) of
the BBB-EE of Act 53 of 2003.
3.
The parties are directed to file and
deliver written submissions and such further evidence they do need on
or before 16h00 on 12
February 2018.
4.
Costs are reserved··.
[29]
The matter came before me on 20 February 2018. Ms Lowis filed and
delivered a supplementary affidavit
on behalf of the applicant in
terms of paragraph 3 of the order. The first respondent filed no
further evidence.
[30]
The reason for the deceased's involvement in the applicant is
confirmed in Ms Lowis's supplementary
affidavit as follows:
“
it
is so that the deceased's involvement in the applicant
[sic
, the deceased]
was
prompted by the so-called B-BBEE requirements of the applicants'
vendors. but to say /hat the applicant should be branded as
an entity
that acted contrary to the Broad Based Black Economic
Empowerment Act
53 of 2003
is a bridge to far."
[15]
[31]
I interpose to say that the deceased's
"involvement'
must
surely have benefitted the applicant because, after the granting of
the majority membership interests in the applicant to the
deceased,
the applicant's sales increased from R 87 861.00 in the 2014
financial year to R 7 069 553.00 in the following year.
A gross loss
of R 155 996.00 increased to a gross profit of R 2 256 499.00.
[16]
Notwithstanding these dramatic changes, the applicant's attorneys
threatened the first respondent on 27 October 2015 that, should
Ms
Lowis call up her loan account in the applicant in her favour, the
deceased estate would be liable to contribute R 857 378.85.
No
indication appears in the relevant financial statements of the loan
and there is no indication that the members approved the
alleged loan
from Ms Lowis to the applicant.
[32]
In paragraphs 4.2 to 4.5 of her affidavit, Lowis sets out as follows:
"4.2
The applicant shared resources with the deceased and gave her the
opportunity to develop her skills.
The applicant strived to better
the deceased in many aspects of her life. Throughout, the applicant
noticed that the deceased’s
economic situation bettered
drastically and she was afforded economic stability which in turn
resulted in a marked increase in
her living quality.
4.3
Through the applicant the deceased was given an opportunity
to
prosper.
4.4
The deceased was content and
satisfied whilst being a member of the applicant. She was afforded
opportunities which she would not
have otherwise had. She was
nurtured and developed, she was not exploited in any manner
whatsoever.
4.5
She was given an opportunity to be part of economic transformation
and to take part in the
economy. Undoubtedly the opposing respondent
[the executrix]
also
benefitted from the better life the deceased lived.
"
[33]
Ms Lowis seeks to support the a1legations aforesaid by alleging that
the deceased was
·”very
involved, had unfettered access to the applicant and was part and
parcel of the management of the appficant
[17]
:
the
deceased received "members remuneration" in 2014/2015
to the tune of R 124 000.00
[18]
the deceased was responsible for marketing and tending to the
applicant's clients, a
··marketing
strategist...... with other administration responsibilities such as
filing etc"
[19]
and
the deceased was bought a stand and she was given building materials.
[34]
In respect of the deceased alleged involvement in the applicant, no
proof is given at all. As
a matter of fact, the deceased's name and
contact details are not even recorded upon the applicant's letterhead
upon which the
purported resolution accepting the deceased's
resignation is purportedly recorded. Ms Lowis attaches to her
affidavit the deceased's
pay slips for the moths of March 2014 to
January 2015 which, on the face of it. were issued by the applicant.
Thereupon it is recorded
that the deceased received a salary and some
other payment of R 5000.00 per month. What this payment is for was
not disclosed.
What the pay slips further disclose is that the
deceased was granted loans from time to time which she was required
to repay in
instalments. A Deeds Search is attached by Lowis to the
affidavit in order to sustain that the deceased was bought a
property.
[20]
The Deeds Search
reveals that the property was a RDP property and already transferred
to the deceased in 2001, long before her
relationship with Lowis
started. Moreover, the purchase price was nil Rand. No proof was
furnished of any other immovable property
and of the building
materials that were allegedly bought for the deceased. No proof is
furnished of the alleged transfer of skills
to the deceased. The
allegations in paragraphs 4.2 to 4.5 of the affidavit are simply
unsupported.
[35]
Having regard to the evidence presented, I find that the acts and/or
conduct of the applicant,
alternatively Ms. Lowis may have directly
and/or indirectly undermined and/or frustrated the objects of the
8-BBEE Act in that
the deceased was a black woman who was appointed
by the applicant and who may have been discouraged and/or that the
deceased may
have been inhibited from substantially participating in
the core activities of the applicant; and/or in that the economic
benefits
received by the applicant as a result of its broad-based
black economic empowerment status may not have flowed to the deceased
in the ratio expected by virtue of the deceased membership interest
in the applicant; and/or that the deceased was in a legal
relationship
with the applicant and/or Ms Lowis, for the purpose of
the applicant achieving a certain level of broad-based black economic
empowerment
compliance. In my view. the Commission should investigate
the applicant's and Ms Lowis's conduct with a view of determining
whether
or not their conduct falls within the definition of
·'fronting·· as defined in section 1 of the
8-BBEE Act
and then to take such steps the Commission deems meet.
[36]
Whatever the ultimate outcome of the fronting issue will be. the
dispute over the transfer of
the deceased's membership interest has
delayed for too long. Had the parties properly considered the law and
had they not made
unreasonable demands, this matter may have been put
to rest much sooner. Mr Groenewald confirmed at the hearing of the
matter that
Ms Lowis would not consent to a transfer of the
deceased’s membership interest in terms of section 35(b) of the
Act. There
is therefore no purpose to wait for the 28 days prescribed
in section 35(b) to elapse before the deceased membership interest is
sold to either the applicant. Ms Lowis or any other person. Through
the order this court makes, this court intends to bring the
parties
to a swift resolution of the deceased's membership issue. Both
parties' conduct lead to this application, however ill conceived.
In
my view, both parties should bear the costs. Through this order I
also intend to send a strong message to persons that are acting
(or
intend to act) with disregard or who are abusing (or intend to abuse)
the provisions of the B-BBEE Act, that same may be visited
with
consequences.
I
make the following order:
1. ELECTRONIC
MINING SUPPLIES CC, REGISTRATION NUMBER: 2008 /13922 0/23
("the
corporation''), shall be valued by an independent Chartered
Accountant
as
at
the date of this order ("the valuation").
2. The
applicant and first respondent shall each nominate one Chartered
Accountant for purposes of the valuation within 5 (FIVE) days of the
date of this order.
3. The
parties shall provide to each other the details of the Chartered
Accountant
nominated by them.
4. Within
5 (FIVE) days after the nomination by each party of its Chartered
Accountant, the parties shall agree on the Chartered Accountant to be
appointed to determine the valuation.
5. In
the event the parties do not agree on the Chartered Accountant for
the valuation, either or both of the parties may approach court on
the same papers, amplified to the extent it is necessary, for
the
court to appoint the Chartered Accountant for the valuation.
6. The
applicant shall pay the nominated Chartered Accountant his/her
fees
for the preparation of the valuation.
7. Within
30 (THIRTY) days after completion the valuation, the applicant,
alternatively, Ms. Annelize Lowis shall purchase Ms Zodwa Christina
Mabelane (“the deceased”)s membership in the corporation,
failing which, the first respondent shall transfer the deceased
membership to the deceased’s lawful heir/ heirs, alternatively
sell the deceased' s membership to any person entitled to membership
in terms of
section 29
of the
Close Corporations Act. Act
69 of 1984.
8. The
applicant's attorneys of record are directed to serve a copy of
this
order upon the Broad-Based Black Economic Empowerment Commission and
the second respondent forthwith.
9. Each
p arty shall pay their own costs.
JH
Roelofose
Acting
Judge of the High Court
APPEARANCES
FOR
THE APPLICANT:
MR GROENEWALD
INSTRUCTEDBY
VAN DER
WESTHUIZEN
ATTORNEY,
VERENEGING
AND PIETER NEL
ATTORNEYS,
MBOMBELA
FOR
THE FIRST RESPONDENT: MRLUBISI
INSTRUCTED
BY JACOBS ATTORNEYS
FOR
THE SECOND AND
NO APEARANCE
THIRD
RESPONDENTS
DATE
OF HEARING:
31 January 2018 and 20 February 2018
DATE
OF JUDGMENT:
28 February
2018
[1]
The application was issued on 15
June 2017.
[2]
Room Hire Co. ( Pty.) Ltd. v
.Jeppe Street Mansion (Pty.) Ltd.,
1949 (3) SA 1155
(T)
at
p. 1162 where Murray AJP said as follows:
“
It
is certainly not
proper that an applicant should commence proceedings by motion with
knowledge of the probability of a protracted
enquiry into disputed
facts, not capable of easy ascertainment , hut in the hope of
inducing the Court to apply
Rule 9.
To what is essentially the
subject of a trial action ''
[3]
' In
Rumdel
Cape v SA National Road,· Agency (234/2015)
[2016] ZASCA 23
(18 March 2016),
at
para. 15, Leach JA set out as follows:
"The
mere fact that parties are locked in dispute on a point of law or
fact does not necessarily entitle either of them to
an order
declaring which standpoint is correct. Generally speaking, a court
does not act in an advisory capacity by pronouncing
upon
hypothetical, abstract or academic issues. Instead, in order to
entertain an application for declaratory relief. a court
must be
persuaded that the applicant has an interest m an existing, future
and contingent right or obligation that will be determined
by the
declarator and that its order will be binding upon other interested
parties. If it is so satisfied, the court then exercises
a
discretion whether to grant or refuse the order sought. In doing so
the court may decline to deaf with the matter where there
is no
actual dispute, where the question raised is, in truth.
hypothetical, abstract or academic, or where the declarator sought
have no practical effect
.”
[4]
4
Section 35
provides as
follows:
“
Disposal
of interest of deceased member.
-
Subject to any other
arrangement in an association agreement, an1 executor of the estate
of a member of a corporation who is deceased
shall, in the
performance of his or her duties-
(a)
Cause the deceased member's interest in 1he corporation to
be transferred to a person who qualifies., for membership of a
corporation
in terms of
section 29
and is entitled thereto as
legatee or heir or under a redistribution agreement, if the
remaining member or members of the corporation
(if an;') consent to
the transfer of the member's interest to such person; or
(b)
If any consent referred to in paragraph (a) is not given
within 28 days after it was requested by the executor. sell the
deceased
member’s interest- to the corporation, if there is
any other member or members than the deceased member''.
[6]
"36.
Cessation of membership by order of Court.-
(1)
On application by any member of a corporation a Court may on any of
the .following grounds order that any member shall cease
to be a
member of the corporation:
(a)
Subject to the provisions of the association agreement (if any),
that the member
is permanently incapable, because of unsound mind or
any other reason. of performing his or her part in the carrying on
of the
business of the corporation;
(b)
that the member has been guilty of such conduct as taking into
account the nature
of the corporation's business, is likely to have
a prejudicial effect on the carrying on of the business:
(c)
that the member so conducts his or her in matters relating
to the corporation's business that it is not reasonably practicable
for the other member or members to carry on the business of the
corporation with him or her; or
(d)
that circumstances have arisen which render it just and
equitable that such member should cease to be a member of the
corporation:
Provided
that such application to a Court on any ground mentioned in
paragraph (a) or (d) may also be made by a member in respect
of whom
the order shall apply.
(2)
A Court granting an order in terms of subsection (1) may make such
further orders as it deems fit in regard to
(a)
the acquisition of the member’s interest concerned by the
corporation or by
members other than the member concerned; or
(b)
the amounts (if any) to be paid in respect of the member's interest
concerned or
the claims against the corporation of that member. the
manner and times of such payments and the persons to whom they shall
be
made; or
(c)
any other matter regarding the cessation of membership which the
Court deems fit.''
[7]
Also known as ''window
dressing"· or "tokenism''. Bolton
The
Law of Government Procurement in South Africa
(LexisNexis
Butterworths, Durban 2007) at 293-4 describes fronting as ''the
practice of black people being signed up as fictitious
shareholders
in essentially 'white' companies.''
[8]
CCT 34/10)
[2011] ZACC 5
;
2011
(6) BCLR 646
(CC) ( 10 March 2011) at paragraphs 1 and 2.
[9]
"2.
Objectives of Act.
The
objectives of this Act are to facilitate broad-based black economic
empowerment by--
(a)
promoting economic transformation in order to enable meaningful
participation of black people in the economy:
(b)
achieving a substantial change in the racial composition of
ownership and management structures and in the skilled
occupations
of ex fating and new enterprise.,·;
(c)
increasing: the extent to which communities, workers, cooperatives
and other collective enterprises own and manage
existing and new
enterprises and increasing their access to economic activities,
infrastructure and skills training:
(d)
increasing the extent to which black women own and manage existing
and new enterprises. and increasing their access
to economic
activities. infrastructure and skills training:
(a)
promoting investment programmes that lead to broad-based and
meaningful participation in the economy by black people in order to
achieve sustainable development and general prosperity;
(b)
empowering rural and local communities by enabling access to
economic activities, land. infrastructure, ownership and skills;
(g)
promoting access to .finance for black start-ups, small,
medium and micro enterprises, co-operatives and black entrepreneurs,
including those in the informal business sector; and
(h)
increasing effective economic participation and black
owned and managed enterprises, including small. medium and micro
enterprises
and co-operatives and enhancing their access to
financial and non-financial support...
[10]
ROAD-BASEDBLACK ECONOMIC
EMPOWERMENT AMENDMENT ACT NO. 46 OF 2013
[11]
Section 13F(1)(a).
[12]
Section 13F(1)(c) and (d).
[13]
Sub-section 1(d).
[14]
Upon the minutes.
[15]
Para. 4.6 of the affidavit.
[16]
Income Statement for the period
1 March 2014 to 28 February 2015.
[17]
Para. 5.5 of the affidavit.
[18]
Para. 6.2.1 of the affidavit.
[19]
Para.
7.9 of the affidavit.
[20]
Annexure
"SA6''