About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1118
|
|
Mboni Shatsane Joint Venture (Pty) Ltd v Khawuyeza Trading (Pty) Ltd and Others (26650/16) [2016] ZAGPPHC 1118 (11 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
11/11/2016
CASE
NO: 26650/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MBONI
SHATSANE JOINT VENTURE (PTY) LTD
Applicant
and
KHAWUYEZA
TRADING (PTY)
LTD
First Respondent
NEDBANK
LIMITED
Second Respondent
NTSAKO
LINCOLN CHABALALA
Third Respondent
FLOYD
MAHORI
Fourth Respondent
BENNY
MAKASANI
Fifth Respondent
VUSI
GOODMAN
MALUNGANI
Sixth Respondent
JEFFREY
NDLOVU
JUDGMENT
MALI
J
[1]
This application originates from the urgent court where it was struck
from the roll due to lack of urgency. It is an application for a
final interdict to suspend and freeze the bank account of the
respondent held by the second respondent under account number
1101433744. The application is also intended for the preservation
of
funds held by the second respondent in the abovementioned account; as
well as to prevent the first respondent to transact from
the said
banking account.
[2]
The applicant is a Joint Venture ("JV') incorporated as a
company.
The shareholders and/or members are; Shatsane Systems
Solutions Pty Ltd; ("Shatsane"), Mboni Business Enterprise
CC ("Mboni")
and Khawuyeza Trading Pty Ltd ("Khawuyeza").
The three members hold equal shares in the JV at 33.33% for each
member.
One Mr Silver Shalonga ("Mr Shalonga") the deponent
in the applicant's founding affidavit is the representative of
Shatsane
in the JV.
[3]
It is apposite to reiterate that the first respondent, Khawuyeza is
one
of the members and or shareholders of the JV. The second
respondent is Nedbank Limited, a banking institution where the first
respondent's
banking account is held. The third, fourth, fifth, 6th
and 7th respondents are all directors of the first respondent.
[4]
All the respondents, but for the second respondent oppose the
application.
The applicant's basis for the relief sought is that the
third respondent defrauded the applicant of an amount of R2, 723
000.00.
It is alleged that he unlawfully transferred funds from the
applicant's business banking account into his personal account and
later transferred an amount of R2, 500 000.00 part of the
abovementioned amount to the account of the first respondent.
[5]
According to Mr Shalonga the third respondent was employed as the
applicant's
Assistant Foreman to oversee construction of roads in the
North West Province. He was paid a salary of R12, 500.00 per month.
The
third respondent was authorised to access the applicant's banking
account held at First National Bank in order to check payments
made
into the applicant's banking account. He was not authorised to
transact from the applicant's banking account.
[6]
The respondents submitted that the funds were not unlawfully
appropriated
rather they were transferred because of the partnership
mandate arising from the joint venture. The respondents raised two
issues
in regard to their point
in
limine
POINT
IN LIMINE
[7]
The respondents raised the issues of
locus
standi
and lack of
authority to act on behalf of the applicant.
LOCUSI
STANDI
[8]
It is submitted on behalf of the respondents that the deponent to the
founding affidavit, and the deponent to the confirmatory affidavit
lack the requisite
locus
standi.
They are not
competent to act on behalf of the applicant and or even cause the
applicant to be cited as an applicant. In fact they
should have cited
the applicant as a nominal respondent.
[9]
Mr Shalonga states in the founding affidavit:
"I
am
the
Managing Director of the applicant. I
am
authorised to depose
to this affidavit…. I
am
a Director of the
applicant together with Patrick Majiafela Ndlovu ("Ndlovu' who
serves as
a
Financial
Director and together Ndlovu and I form the management of the
applicant).
[10]
The undisputed version of the respondents to the above is that Mr
Shalonga is not a Managing
Director of the applicant, he is a
Contract Manager tasked with managing all contractual obligations of
the applicant. Mr Shalonga
and Mr Ndlovu fraudulently incorporated
the JV and they are masquerading as the only directors of the JV
Company. The said deponents
have not proved any authority to act on
behalf of the applicant by way of resolution by other members of the
JV. To this regard
the argument tendered on behalf of the deponent is
that the Memorandum of Understanding seeking to establish the JV is
not signed
by the parties to the JV.
[11]
It is further submitted that the applicant should have acted in terms
of
section 163
of the
Companies Act, 71 of 2008
.
Section 163
of the
Companies Act deals
with unfair or oppressive conduct of any
shareholder or director. According to the applicant the respondents'
argument is misplaced
because they are not shareholders in the JV.
[12]
The deponents to the applicant's affidavit do not dispute the
existence of the JV.
They even acted on it. For example on 1 April
2015 Mr Shalonga addressed a letter of acceptance, marked as NCL 2.1
at page 86 of
the paginated papers to the client of the JV.
[13]
The following extract is significant:
"Pursuant
to your appointment letter dated 10 March 2015 we
as
Mboni
Business
Enterpirse JV Shatsane
System Solutions/
Mboni
Shatsane Joint Venture
hereby
accept the appointment for the above project. All expected compliance
documents shall be supplied to you in due course....
(my emphasis).
The above
acknowledgment by Mr Shalonga is more than enough conduct confirming
the first respondent's equity in the JV.
[14]
It therefore follows that the applicant should have instituted the
proceedings in
terms of
section 163
in the event that the applicant
is not satisfied with the conduct of the first respondent, a 33%
shareholder in the JV.
[15]
It was further submitted on behalf of the applicants that their
argument is based
on the authority of Ganes and another v Telecom
Namibia Ltd
2004 (3) SA 615
(SCA) at 624 G-1. It is stated only the
institution of the proceedings that need to be authorised and that
the authorisation to
depose the affidavit is irrelevant.
[16]
In Tattersal and Another v Nedcor Bank Ltd,
[1995] ZASCA 30
;
1995 (3) SA 222
(A),
wherein the authority of a bank manager to launch proceedings on
behalf of the bank was challenged The court held (at 228
G-H)
"A
copy of the resolution of
a
company authorising
the bringing of an application need not always be annexed. Nor does
s
242 (4) of the
Companies Act 61 of 1973 (to the effect that
a
minute of
a
meeting of directors
which purports to be signed by the chairman of that meeting is
evidence of the proceedings at that meeting)
provide the exclusive
method of proving
a
company's resolution.
(Pool quip Industries (Pfy) Ltd v Griffin and another
1978 (4) SA 353
(W). There may be sufficient aliunde evidence of authority Mall
( Cape ) ( Pty) Ltd Merino Ko-operasie Bpk
1957 (2) SA 347
( C) at
352 A)."
[17]
In Corplo 358 Close Corporation
v Michael Henry Charters unreported EC 844/2011 at paragraph 7 it is
stated "…
while
this case may differ on the facts it seems to me that the principle
to be extracted from this passage applies. The respondent's
denial of
authority may be somewhat more than bare, in the sense that it points
to clear deficiencies in LC 1. However, there is
no positive averment
that Mr Wicks actually lacks authority, or that he was not in fact
authorised to bring the application. While
the respondent was
entitled to raise the point it appears have been raised "tactically
... ".
[18]
On the facts of the present matter the respondent's complaint is not
a bare complaint,
there are positive averments to the deponents' lack
of authority. The respondents' complaint involves pertinent issues
regarding
the formation of the JV. As I have found above that some of
the respondents are shareholders to the JV, the respondents'
complaint
is not a bare complaint. Secondly in the event that it is
incorrect to conclude that the respondents are shareholders in the
applicant,
on the facts there is no sufficient evidence
aliunde
of authority on the
part of the deponent.
[19]
Having regard to the above, I find that the applicant lacks the
locus
standi
to bring this
application. In the result the respondents'
point
in limine
is upheld.
[20]
In the result I order as follows:
20.1 The application is
dismissed with cost.
___________________
N.P. MALI
JUDGE OF THE HIGH COURT
Counsel
for the Applicant:
Adv R. Baloyi
Instructed
by:
MPHOKE P.K. MAGANE ATTORNEYS
Counsel
for the1st 2nd 3rd 4th 5th & 7
th
Respondents:
Adv P. W. Makhambeni
Instructed
by:
NKOME INCORPORATED
MATTER
HEARD ON:
28 July 2016
DATE
OF JUDGMENT:
11 November 2016