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[2016] ZAGPPHC 934
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Ntshangase v Ziyaphenduka Promotions & Entertainment CC (34285/15) [2016] ZAGPPHC 934 (9 November 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 34285/15
DATE:
9 November 2016
PRUDENCE
NOLWAZI
NTSHANGASE Appellant
v
ZIYAPHENDUKA
PROMOTIONS & ENTERTAINMENT CC (REGISTRATION NUMBER:
1999/043990/23) Respondent
JUDGMENT
MABUSE
J:
[1]
This is an application for the provisional winding-up of the
respondent.
[2]
This application is brought on the basis that the Respondent is
insolvent or it is just and equitable that the Respondent be
wound-up. In respect of the second ground it is contended that the
relationship between the Applicant and the former husband has
broken
down. It is important to point out that the Respondent opposes the
application on the basis that the relief that the Applicant
seeks is
incompetent and furthermore that there are alternative remedies
available to the Applicant. It is furthermore contended
by the
Respondent that it would not be just and equitable to liquidate the
Respondent.
[3]
The Applicant in this matter is a female business woman who resides
at 10 […], Mbombela, Mpumalanga. The respondent is
a closed
corporation duly incorporated and registered in terms of the Close
Corporation laws of this country. The physical address
of the
Respondent is 12 […], Mbombela, Mpumalanga. The registered
address of the Respondent is care of** Nkosi & Partners
Business
Accounts. Their physical address is No. 12 NBS Building, Mbombela.
[4]
The respondent has two members. The Applicant herein is one member
while the other member is one Mahlomola Lazarus Kgapane ("Kgapane").
They each hold 50% members interest in the respondent. The said
Kgapane was the Applicant's husband. They divorced on 15 October
2013
in terms of a final decree of divorce granted by this Court on the
said day Kgapane is not part of those proceedings. It is
contended by
the Applicant that she and the said Kgapane had a total breakdown in
communication and decision taking even before
they were finally
divorced. After their divorce the situation became worse and they
have not had any members meetings for at least
twelve months. Due to
this the Respondent is not in a position to make proper decisions and
to carry on with the business and market
it properly as was the case
whilst the marriage endured.
[5]
The off-shoot of this paralyses of the functions of the Respondent is
that Kgapane neglects or refuses to service the loan of
R4 million
that the Respondent obtained in order to establish a guest house and
dwelling in Burgersfort in Limpopo Province.
[6]
In support of the allegation that the Respondent is insolvent, the
Applicant states that the Respondent has the assets which
have been
set out in a document marked Annexure '4' attached to the Applicants
founding affidavit and debts amounting to R7,024,000.00.
It needs to
be pointed out that the value of the assets has not been worked out.
The value of certain items, immovable and movables
are contained in
the Respondent's annual financial statements for the year ending on
28 February 2014. A copy of these financial
statements is attached to
the founding affidavits as Annexure 'D'.
[7]
The application for winding-up of the Respondent is opposed by the
said Respondent which has, for that purpose, delivered an
answering
affidavit deposed to by Kgapane.
[8]
In defence and apart from the merits, the Respondent raised a point
in limine
on the basis of which it sought the dismissal of the
Applicant's application. The Applicant alleged in her papers that
there was
a deadlock between the members of the Respondent and that
the relevant deadlock has resulted in the Respondent being unable to
trade in a profitable and proper business manner.
[9]
It is contended by the Respondent that in such a case the Applicant
should have sought an order in terms of s 49 of the Close
Corporations Act that the other 50% member of the Respondent be
authorised to purchase the Applicant's 50% membership for a fair
value or for a value to be determined by an independent auditor. As a
consequence of the Applicant's failure to follow the provisions
of
the said s 49, there has been a material non-joinder of the other 50%
member of the Respondent.
[10]
In the answering affidavit the Applicant has denied the allegation by
the Respondent that the other 50% member should have
been joined.
There is, in my view, no merit in this denial. It is as clear as
crystal that the other 50% member, Mr. Kgapane, is
not a party this
proceedings and that he should have been joined as a party in this
matter in the light of serious allegations
made against him. It was
imperative that it should have been done in view of the fact that he
was at the centre of the Applicant's
dissatisfaction and the reasons
why the Applicant seeks the liquidation of the Respondent.
[16]
In the answering affidavit of the Respondent, which was deposed to by
Mr. Kgapane as indicated earlier, he made it particularly
clear that
he made that affidavit on behalf of the Respondent and not in his
capacity as a 50% member of the Respondent. Accordingly
this
application is flawed inasmuch as it fails to join the other member
of the Respondent as a party to the proceedings. In view
of the order
I am about to make it is unnecessary to consider the merits of the
application. In the result the point
in limine
raised by the
Respondent against the application is upheld.
In
the result, I make the following order:
The
application is accordingly stayed until the applicant has joined
Mahlomola Lazarus Kgapane in the proceedings.
_____________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the appellant:
Adv. JP van den Berg
Instructed
by:
Messrs Doman Weitz Attorneys
C/o
Fabricius & Engelbrecht
Counsel
for the respondent: Adv.
J Schoeman
Instructed
by: Shapiro
& Haasbroek Inc
Date
Heard: 9
June 2016
Date
of Judgement: 9
November 2016