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[2017] ZAGPPHC 72
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New African Alliance Investments (Pty) Ltd v Maharaj (81348/2014) [2017] ZAGPPHC 72 (21 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
21/2/2017
Case
number: 81348/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Date
of hearing: 21 February 2017
In
the matter between:
NEW
AFRICAN ALLIANCE INVESTMENTS (PTY) LTD
Applicant
and
SHAILENDRA
RAMESH MAHARAJ
Respondent
JUDGMENT
IN APPLICATION FOR LEAVE TO APPEAL
BRENNER
AJ
1.
This is an application for leave to appeal against the whole of my
judgment delivered on 16 November 2016, and is brought by
the above
applicant. The applicant served a notice of application for leave to
appeal on 7 December 2016 ("the notice").
2.
Having duly considered .the various grounds adumbrated in the
applicant's notice, I respectfully disagree. Altogether eleven
grounds are advanced to support the applicant's contention that I
erred in granting a final winding up order. I will traverse same
in
succinct terms.
3.
The events culminating in the preservation application were germane
to the liquidation application and I accordingly found myself
constrained to consider same. No prejudice was suffered by the
applicant since it had the opportunity to address these allegations,
and it did so. There was no application to strike out. In arriving at
my finding, the evidence to which I attached the greatest
weight was
either objectively proven or was admitted fact. There was no material
or genuine dispute of fact regarding the deadlock
and the ensuing
litany of litigation between the parties which, to the date of my
judgment, had endured since circa October 2008.
The prognosis was
clear that pending litigation on disputes contributing to the
deadlock would potentially continue and indefinitely
so absent a
liquidation order.
4.
The respondent denied that Narsi and Reuben had treated him fairly.
He averred that their conduct vis a vis certain transactions
was
irregular and unlawful. He provided enough substantiation to warrant
an investigation into same by an independent arbiter,
in the form of
a duly appointed liquidator. It is the liquidator's powers of
investigation and enquiry which will assist in establishing
the
sustainability of the disputes between the shareholders and the
nature and extent of their loan claims against the company.
Such
powers are a core duty of a liquidator, who is obliged at law to act
independently and impartially.
5.
It was not an established fact that the respondent was a minority
shareholder. He held the belief that he owned 50% of the shares.
6.
I was cognisant of the fact that there was no evidence of any events
of significance between November 2014 and October 2016.
I was
entitled to infer from the enrolment of the application for argument
that the deadlock between the respondent and Reuben
and Narsi
continued to prevail, and remained irresoluble. There was no evidence
to the contrary. The simplest and most constructive
expedient was to
liquidate the applicant. The collection of assets and payment of
legitimately proved claims and the distribution
of monies to the
beneficiaries entitled thereto will probably occur far sooner than if
the ongoing litigation were to be permitted
to run its course. The
liquidator may also elect to persist with litigation which carries
prospects of success in his view.
7.
I refer further to the reasoning which is fully advanced in my
comprehensive judgment handed down on 16 November 2016. In the
premises, I am of the view that the applicant does not enjoy a
reasonable prospect of success on appeal, and that there is no other
compelling reason why an appeal against my judgment should be heard.
In my view, leave to appeal should accordingly be refused,
with costs
following the result.
8.
The following order is granted:
a.
the applicant's application for leave to appeal against the judgment
delivered on 16 November 2016 is dismissed;
b.
costs of this application are costs in the winding up of the
applicant.
_________________
T
BRENNER
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
21
February 2017
Appearances
Counsel
for the Applicant: Adv
Singh assisted by Adv Singh
Instructed
by: Attorneys
Naidoo Maharaj Inc
Counsel
for the Respondent: Adv
JH Sullivan
Instructed
by: AttorneysGarlicke
and Bousfield