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[2016] ZAFSHC 36
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TDS Beleggings CC t/a Kopano Nokeng Lodge and Conference Centre v Cronje and Others (6010/2015) [2016] ZAFSHC 36 (25 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case number: 6010/2015
DATE: 25 FEBRUARY 2016
In the matter between:
TDS BELEGGINGS CC T/A KOPANO
NOKENG LODGE AND CONFERENCE
CENTRE
....................................................................................................................................
Applicant
(Registration Number: (1………….)
And
JOHANNES
CRONJE
.................................................................................................
First
Respondent
(Identity Number: 7…………..)
DANIELLE CRONJE Second Respondent
(Identity Number: 7……………)
NEDBANK
LIMITED
................................................................................................
Third
Respondent
Registration Number: 1…………..)
SAMBA CO-OPERATIVE
LIMITED
....................................................................
Fourth
Respondent
(Registration Number: (2………..)
HEARD ON: 11 FEBRUARY 2016
JUDGMENT BY: PHALATSI, AJ
DELIVERED ON: 25 FEBRUARY 2016
[1] On the 18th of December 2015, the
Applicant approached this court on an urgent basis, on the strength
of which application the
following order was granted:
“1. Non-compliance with the
Uniform Rules of the Court relating to forms, service and time
periods are condoned an the matter
is heard as an urgent application;
2. Leave be granted to the applicant to
serve this application on the first and second respondents via
electronic mail, namely henk@paco.co.za
and cronje@dbdgroup.co.za
3. The Honourable Court will grant a
rule nisi which calls upon the first and second respondents to give
reasons, if any, on 28
January 2016 at 09h30 why the following orders
will not be granted:
3.1 To direct and order the third
respondent to freeze and/or block the credit card held in the name of
the applicant with the third
respondent under card number [5…………];
3.2 To direct and order the third
respondent to cancel all access, including all electronic banking
transactions and withdrawals,
by the first and/or second respondents
on cheque account number [1…..….] held in the name of
the applicant with the
third respondent;
3.3 To direct and order the fourth
respondent to freeze and/or block the SAMBA card held in the name of
the applicant under membership
number [8…….];
3.4 To direct and order the first and
second respondents not to make/effect any withdrawals and/or
transactions and/or purchases
on/from the credit card mentioned in
paragraph 3.1 supra, the bank account mentioned in paragraph 3.2
supra and the SAMBA card
mentioned in paragraph 3.3 supra;
3.5 To direct and order the third and
fourth respondents to cancel/block all access by the first and/or
second respondents to the
accounts mentioned in paragraphs 3.1 to 3.3
supra;
3.6 To direct and order the third and
fourth responds to cancel all bank and automatic transmission cards
linked to the accounts
mentioned in paragraphs 3.1 to 3.3 supra;
3.7 To order and direct the third and
fourth respondents to block/cancel all authorizations held by the
first and/or second respondents
to conduct electronic funds
transactions/payments from/on the accounts mentioned in paragraphs
3.1 to 3.3 supra;
3.8 To order and direct the third
respondent to maintain/authorise the current access to the account
mentioned in paragraph 3.2
supra by the applicant and Mrs Wilma
Potgieter;
3.9 To order and direct the third
respondent and the fourth respondent to authorise access to the
accounts mentioned in paragraphs
3.1 to 3.3 supra by Mrs Julia Helen
van Wyk (Identity number: 4………) a forensic
investigator at JGL Forensic
Services, for the sole purpose only to
investigate the past transactions on the said accounts;
3.10 To order and direct the first
and/or second respondents not to sell and or dispose any of their
immovable assets pending finalisation
of this application.
3.11 The first and the second
respondents be ordered to pay the costs of this application.
3.12 The third and/or the fourth
respondents be ordered to pay the costs of this application if
opposed.
4. That the orders in the
aforementioned paragraphs 3.1 to 3.10 serve as an interim interdict
with immediate effect pending finalisation
of the application.”
[2] The founding affidavit is signed by
Jeremia Daniële Edward Cronje who, briefly stated the following:
“That he is a co-member of the
applicant with his son, the first respondent and he holds 60%
member’s interest and his
son holds the remaining 40% interest
in the applicant. The agreement was that the first respondent would
manage the business of
the applicant and the second respondent, being
the wife of the first respondent, would be involved in the marketing
of the applicant.
He could himself not run the business of the
applicant as he was running his own medical practice. He suspected
for some time
that everything is not what it is supposed be at the
applicant, as the latter was doing business, but it does not make any
profit.
He, at various times tried to discuss the affairs of
applicant with the First Respondent but his requests were ignored and
brushed
off. He also tried in vain to obtain financial information
of the applicant from the applicant’s auditors. He ultimately
engaged the services of JGL Forensic Services to do a forensic
investigation into the dealings of the applicant on his behalf,
which
investigation started on 17 December 2015. During the morning of 18
December 2015 he received information that the first
respondent made
an electronic funds transfer in the amount of R25 000.00 from the
Applicant’s cheque account into his (first
respondent’s)
own account. It was upon this information that he brought the
application that led to the order as set out
above, to be granted.
It is common cause that when the said order was granted, both the
first and second respondents were out
of the country, on holiday.
Upon their arrival in the country, the
first and second Respondents anticipated the return date to 14
January 2016. The first respondent
stated that he took the business
over after the death of his mother in 2003. His mother died during a
shooting accident in which
his father was wounded whilst the two of
them were in their bedroom. That since 2008, his father completely
detached himself from
the applicant’s affairs and he was solely
responsible in the running of the affairs of the applicant. He
further stated
that the R25 000.00 which was transferred from the
Applicant’s cheque account into his account was a
re-imbursement or loan
repayment for the amounts which he had
expended into the applicant. All the expenses which his father
claimed to be suspicious
were business expenses.”
[3] Section 42 of the close
corporations Act, 69 of 1984 states as follows:
“42. Fiduciary position of
members. –
(1) Each member of a corporation shall
stand in a fiduciary relationship to the corporation.
(2) Without prejudice to the generality
of the expression
“fiduciary relationship”,
the provisions of subsection (1) imply that a member –
(a) shall in relation to the
corporation act honestly and in good faith, and in particular –
(i) Shall exercise such powers as he
may have to manage or represent the corporation in the interest and
for the benefit of the
corporation; and
(ii) Shall not act without or exceed
the powers aforesaid; and
(b) Shall avoid any material conflict
between his own interests and those of the corporation, and in
particular-
(i) Shall not derive any personal
economic benefit to which he is not entitled by reason of his
membership of or service to the
corporation, from the corporation or
from any other person in circumstances where that benefit is obtained
in conflict with the
interests of the corporation;
(ii) Shall notify every other member,
at the earliest opportunity practicable in the circumstances, of the
nature and extent of
any direct or indirect material interest which
he may have in any contract of the corporation; and
(iii) Shall not compete in any way with
the corporation in its business activities.
(3) (a) A member of a corporation whose
act or omission has
breached any duty arising from his
fiduciary relationship shall be liable to the corporation for –
(i) any loss suffered as a result
thereof by the corporation; or
(ii) any economic benefit derived by
the member by reason thereof.
(b) Where a member fails to comply with
the provisions of subparagraph (ii) of paragraph (b) of subsection
(2) and it becomes known
to the corporation that the member has an
interest referred to in that subparagraph in any contract of the
corporation, the contract
in question shall, at the option of the
corporation, be voidable: Provided that where the corporation
chooses not to be bound
a Court may on application by any interest
person, if the Court is of the opinion that in the circumstances it
is fair to order
that such contract shall nevertheless be binding on
the parties, give an order to that effect, and may make any further
order in
respect thereof which it may deem fit.
(4) Except as regards his duty referred
to in subsection (2) (a) (i), any particular conduct of a member
shall not constitute a
breach of a duty arising from his fiduciary
relationship to the corporation, if such conduct was preceded or
followed by the written
approval of all the members where such
members were or are cognisant of all the material facts.”
This section is the basis upon which a
member of a close corporation can be excluded or prevented from
running the affairs of a
close corporation.
[4] I take liberty to quote in full
what the first respondent states in his opposing affidavit, which
paragraph has a direct bearing
on the said section:
“The Honourable Court will find
no evidence in Applicant’s papers that:
49.1 We breached the fiduciary duties
that we owed the Applicant;
49.2 We failed to carry on the business
of the Applicant to the degree of care and skill that may have been
reasonably expected
of us;
49.3 We committed unfairly prejudicial
conduct;
49.4 We misappropriated or were in the
process of misappropriating Applicant’s funds.”
In its response to the said paragraph
the applicant states as follows:
“25.1 The contents thereof are
denied in as far as it does not correspond with the facts stated in
the founding affidavit.
25.2 It is respectfully submitted that
a proper case has been made out for the relief sought.”
[5] I cannot agree with the first
respondent more. The allegations made by the applicant against the
first and second respondents
are suspicions that are without any
factual basis. The allegations are further speculative in nature in
that the applicant avers
that the forensic investigation, after it
has been concluded, will determine whether the suspicious are true or
not. The applicant
states the following in its replying affidavit:
“54.1 The main reason why JGL
Forensic Services was instructed to conduct a forensic investigation
was to investigate the
financial position of the Applicant and
furthermore to establish if any unlawful activity has occurred since
the Respondents took
over control of the Applicant.”
[6] It is clear that, based on the said
shortcomings, it would not be possible for any court to grant a final
interdict against
the respondents. Mr Lubbe, on behalf of the
applicant, submitted that the rule nisi must be extended pending the
finalization
of the forensic investigation. Mr. Van Aswegen, on
behalf of the first and second respondents, submitted, correctly in
my view,
that such an order would not be competent because the said
investigation is not a judicial process. More importantly, however,
is his submission that the outcome of the investigation may not be
acceptable to the first and second respondents, which may lead
to
further disputes. I therefore hold that in the circumstances, such
an order would not be competent. Whilst it is understandable
that
Dr. Cronje was not in a position to approach the court with concrete
evidence to divest the first respondent of his powers
to run the
applicant, because of his non-involvement in the affairs of the
applicant for so long, I cannot on the facts before
me find that the
applicant has made out a case for the granting of a final interdict
against the first and second respondents.
6.1 In the premises, I order that the
rule nisi must be discharged, and the application for a final
interdict is dismissed.
6.2 The next question to be dealt with
is the one of costs. It is clear that the costs in this matter
should follow the result.
It will, however, not be just and
equitable that the respondents’ costs be paid by the applicant.
This will simply mean
that the first respondent, as a co-member of
applicant, is also liable to pay the costs of the respondents. In
the premises, I
order that the costs of the respondents be paid by
Jeremia Daniële Edward Cronje personally.
N.W. PHALATSI, AJ
On behalf of applicant: Adv. J Lubbe
SC with Adv. JJ Buys
Instructed by: Willie J Botha Inc.
Bloemfontein
On behalf of 1st & 2nd
respondent: Adv. W.A. Van Aswegen
Instructed by: Lovius Block
Attorneys
Bloemfontein