About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2018
>>
[2018] ZAFSHC 29
|
|
Sedikelo and Another v Belega Women's Investments (Pty) Ltd and Others (2282/2017) [2018] ZAFSHC 29 (15 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 2282/2017
In
the matter between:
TUMELO
GAELEBALE FAITH SEDIKELO
1
st
Applicant
PALESA
MAMOKHOAETSI MOAHLOLI
2
nd
Applicant
and
BELEGA
WOMEN’S INVESTMENTS (PTY) LTD
1
st
Respondent
SUN
INTERNATIONAL (SOUTH AFRICA) LTD
2
nd
Respondent
MANGAUNG
SUN (PTY) LTD
3
rd
Respondent
FREE
STATE GAMBLING AND RACING BOARD
4
th
Respondent
ETAPELE
INVESTMENTS (PTY) LTD
5
th
Respondent
HEARD
ON:
1
MARCH 2018
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
15
MARCH 2018
[I]
INTRODUCTION
[1]
This is an application wherein the Applicants seek the following
relief in the Notice of Motion:
(a)
That
Applicants be declared to be valid shareholders of the First
Respondent.
(b)
That
First Respondent pays the costs of the application.
[2]
The application is opposed by the First Respondent, while the
remainder of the Respondents did not file any opposing affidavits,
nor did they appear at the hearing of the application.
[II]
ISSUES:
[3]
In the Answering Affidavit filed by the First Respondent, reference
is made
inter
alia
to
an Order made by this court on18 September 2014 under case number
5093/2013. The portion of that Order which is relevant
to the
present application, reads as follows
(
per
Naidoo, J):
2.
It is
declared that
:
2.3 The
individuals whose names appear in annexure “2” appended
to the Notice of Motion are the lawful
owners, in the percentage
expressed therein, of the shares of Belega Women’s Investments
(Pty) Ltd and the following individuals
are appointed directors in
Belega Women’s Investments (Pty) Ltd, namely Ms Laura Grobbler,
Ms Noluthando Khomo and Ms Busi
Ntsele.
[4]
In the present proceedings it was common cause between the parties
that the company referred to in the Order of Naidoo,J was
the First
Respondent herein, and that the names of the two Applicants were not
included in the annexure referred to in the Order.
[5]
Mr Gilliland, appearing for the First Respondent, submitted that the
order now sought cannot be granted without an order rescinding
the
order of Naidoo,J. Mr Hefer, appearing with Ms Khooe for the
Applicants, submitted that nothing stood in the way of the
order
sought, since an application for rescission of the order of Naidoo,J
will follow as of necessity at a later stage.
[III]
DETERMINATION
:
[6]
Leaving aside the merits of the application for the moment, it is
apposite to determine, first of all, whether an order in terms
of the
relief sought would be in the interest of justice in circumstances
where the court has already determined the shareholding
of the
company in question in an earlier order. I am inclined to think
not, for the following reasons:
(a)
An
order in terms of the Notice of Motion would directly infringe upon
the rights of the existing shareholders without them having
had the
opportunity of expressing their views in this regard.
(b)
The
existing shareholders have not been joined or cited as respondents in
the proceedings although the order sought would have a
prejudicial
effect on the respective percentages of their shareholding.
(c)
There is no
guarantee that a future application for rescission of the order of
Naidoo,J would be successful. If not, the existing
shareholders
will be faced with the untenable situation of two conflicting court
orders pertaining to their individual shareholding.
(d)
There
is no explanation why the Applicants have not moved for a rescission
first before they have approached the court for the Order
now
sought. They have elected to put the cart before the horse, and
they have persisted with this approach despite the fact
that they
have known at least since the filing of the First Respondent’s
Answering affidavit some few months ago that the
First Respondent
would rely heavily on this point in its defence.
[7]
In the premises, it is not necessary to consider the question whether
the application has any merits or not on the facts as
presented in
the respective affidavits. An order in terms of the Notice of
Motion would not serve the interests of justice,
irrespective of
whether the Applicants have shown an entitlement to the shareholding
or not.
[8]
I therefore make the following order:
1.
The
Application is dismissed with costs.
_______________
P. J LOUBSER, J
On
behalf of Applicants:
Adv.
J.J.F Hefer
Adv.
N.J Khooe
Instructed
by
:
Webbers Attorneys
Bloemfontein
On
behalf of Respondents:
Adv.
J.G Gilliland
Instructed
by
:
Phatsoane Henney Inc
Bloemfontein
/db