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[2015] ZAGPPHC 578
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Nortje N.O v LP Artisan Recruitment CC and Others (77412/2014) [2015] ZAGPPHC 578 (28 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 77412/2014
DATE:
28 JULY 2015
In the matter
between:
M.M.E. NORTJE
N.O
........................................................................................................
APPLICANT
And
LP ARTISAN
RECRUITMENT
CC
................................................................
FIRST
RESPONDENT
L.J.
PARKIN
....................................................................................................
SECOND
RESPODENT
REGISTRAR OF
COMPANIES AND
CLOSE
CORPORATIONS
….........................................................................
THIRD
RESPONDENT
JAN ERASMUS
AUDITORS
......................................................................
FOURTH
RESPONDENT
JUDGMENT
HIEMSTRA AJ
[1] The applicant
seeks an order declaring an oral agreement, allegedly concluded
between “the parties” on 25 August
2014 valid, together
ancillary relief. It must be pointed out at the outset that it is
nowhere alleged that the third or fourth
respondent.
dents were parties
to any agreement. The applicant’s case is based on an alleged
agreement between her and first and second
respondents. Furthermore,
it is now common cause that the fourth respondent had nothing to do
with the issues between the parties
and has no interest in the
matter. I assume that the relief is directed at the first and second
respondents only. I must also point
out that there is no longer an
agency by the name of “Regsitrateur van Maatskappy en Beslote
Korporasies” (Reg-istrar
of Companies and Close Corporations),
which is cited as the third respondent. The relevant body is the
Companies and Intellectual
Property Commission (CIPS).
[2] The ancillary
relief sought is to the following effect:
1. That the
applicant be allowed to register a certain Mercedes Benz C200 Kom-
pressor into her own name and to retain it as her
property;
2. Payment of an
amount of R114 609.
Alternatively,
an order in terms of
which she and the second respondent are ordered to reach an agreement
regarding compensation payable to her
for her 20% membership interest
in the first respondent, and failing agreement, the appointment of an
in¬dependent auditor,
appointed by the [Independent Regulatory]
Board of Audi¬tors to determine the value of her membership
interest;
3. An interdict
restraining the third respondent (CIPS) from registering forms CK 2
and CK 2A which the applicant had signed for
the purpose of
terminating her membership interest in the first respondent;
5. Payment of her
weekly salary of R7 229.00 until payment of compensation
re-linquishing her 20% membership interest in the first
respondent;
and
6. Costs in the
event of opposition.
[3] There are many
factual disputes on the papers. I considered referring the matter for
trial, but that would be a waste of time
and money. The version put
up by the ap-plicant is so feeble and replete with contradictions and
inconsistencies that I am able
to reject it without recourse to oral
evidence. I can for the same reasons decide the first and second
respondents’ counter
claim without recourse to oral evidence.
[4] It is common
cause that the applicant was employed by the first respondent as a
payroll administrator and was in due course
promoted to the position
of financial ad-ministrator and manager. She was awarded 20%
membership interest in the first re-spondent.
The second respondent
retained 80% interest in the close corporation. The second respondent
experienced extremely traumatic events
and poor health, causing him
to leave much of the management of the business to the applicant. He
concentrated on marketing of
the business.
[5] The applicant
resigned as a member of the corporation and now claims compen-sation
for the surrender of her 20% interest. She
says that she had orally
agreed with the second respondent on her compensation.
[6] The exact terms
of the alleged oral agreement is not set out by the applicant in her
founding affidavit. That in itself is fatal
to her case. I shall,
however, construct her version form the Notice of Motion, portions of
the founding affidavit, a document
put up by the second respondent in
his answering affidavit and allegations in her reply-ing affidavit.
The alleged oral agreement
is the following:
1. That the
applicant would be paid out the value of her 20% share;
2. The value of 100%
members’ interest is R1 423 045.00;
3. 20% thereof is
R284 609.00;
4. As part payment
the applicant would retain her company car, a Mercedes Benz C200
Kompressor as her property. The value of the
car is R170 000.
5. The balance of
R114 609.00 would be paid in three monthly instalments of R38 203.00
each.
[7] There is no
evidence as to how the amounts have been arrived at. The second
respondent put up a document in his answering affidavit,
marked “D”
wherein the calculations are set out. Annexure “D” is a
document prepared by Ms Elize Blom of
the auditors Nagel, Blom and du
Preez.
[8] Annexure “D”
reads as follows:
“2 September
2014 Die lede
LP Artisan
Recruitment BK
RE: VERKOOP VAN 20%
AANDEEL - MME NORTJE
Na aanleiding van
ons vergadering op 25 Augustus 2014, bevestig ons die volgende:
Die waarde van ;n
100% ledebelang in die besigheid volgens die waardasie is R1 423
045.00.
‘n 20% aandeel
in die besigheid ten opsigte van MME Nortje is R284 609.00 Volgens
MME Nortje wat ‘n 20% ledebelang het,
word die verkoop as volg
voorgestel:
Oordrag van die
Mercedes Benz - R170 000.
Die balans van R114
609 in 3 gelyke paaiemente van R38 203.00 uitbetaal word.
GETEKEN TE PRETORIA
OP HIERDIE 3DE DAG VAN September 2014.
L.P. (sic) PARKIN
M.M.E. NORTJE
The document was
signed by M.M.E. Nortje (the applicant) but not by L.P. Parkin (the
second respondent).
[9] Annexure “D”
is not part of the applicant’s case. It was put up by the
second re-spondent. Moreover, in its
own terms it is not a recording
of an oral agreement. The alleged value of the business is the
opinion of Ms Blom, or someone in
her office. She is not an expert.
Moreover, the terms alleged by the applicant are ex facie An-nexure
“D” a proposal
made by the applicant. It says “Volgens
MME Nortje wat 'n 20% le- debelang het, word die verkoop as volg
voorgestel: ...”
This entirely contradicts her version that
there had been an oral agreement. In any event, the applicant’s
version as to
where and when the oral agreement had been concluded is
contradictory and con-fusing. In her founding affidavit she said it
had
been concluded during a meeting on 25 August 2014. She said that
the second respondent had however refused to sign the document
presented to him. She probably referred to Annexure “D”.
I find this highly unlikely. If the second respondent had
agreed to
the terms of an oral agree-ment, he would have had no reason to
refuse to sign it. In any event, Annexure “D”
is dated 2
September 2014 and signed by the Applicant on 3 September 2014. In
her replying affidavit, the applicant says the following
in paragraph
15:
“The auditors
Nagel and Blom prepared Annexure “D”. When it was
presented to the second respon¬dent he did
not object to it at
all. He concurred with the context (sic) and stated “Marietjie
verdien die kaf. When we left the meeting
on the 2nd September
everybody was in agreement and the Second Respondent never indicated
that he will not sign Annexure “D”.
The applicant
casually changed the date of the meeting to 2 September without
ex-planation, but apparently failed to realise that
the document
refers to a meeting on 25 August 2014. This paragraph also
contradicts her original version, namely that she and the
second
respondent had agreed on all the terms of the agreement on 25 August
2014, but that the second respondent had on that day
(“op die
voormelde da-tum) refused to sign the document.
OTHER CLAIMS BY
APPLICANT
[10] The next issue
is the applicants claim for the Mercedes Benz to be registered in her
name. This is outrageous. The second respondent
said in his answering
affidavit that the applicant had on 26 August 2014, the day after the
alleged meeting, without his knowledge
contrived to have the car
registered in her name. The applicant did not dispute this. The car
is therefore already in her name.
Only she knows how she had
contrived to have the car transferred without involving the second
respondent.
[11] The applicant
further prays for an interdict against the “Registrar of
Companies and Close Corporations” restraining
it from
registering the CK 2 and CK 2A which she had signed for the purpose
of removing herself as a member of the first respon¬dent
pending
the finalisation of this matter. The applicant does not need such
relief. Membership of the close corporation is not a
precondition for
seeking relief against the first and second respondents.
[12] The applicant
further claims payment of her salary of R7 229.00 per week pend-ing
payment by the second respondent of compensation
for her 20%
membership. She made no case for this claim in either her founding or
replying affidavit. There can in any event be
no conceivable basis
for such a claim. She stopped working for the first respondent on 25
August 2014 and can therefore have no
claim for a salary.
COUNTER CLAIM
[13] The second
respondent alleged in his answering affidavit that in 2011 he had
suggested, and that the applicant had agreed,
to form a close
corporation for the purpose of establishing a new business venture
which would perform engineering, maintenance,
repairs, technical and
consultancy services. They agreed that Ms Blom would assist in
acquiring a shelf close corporation for that
purpose and that he and
the applicant would have 50% membership interests in the new venture.
Pursuant thereto Belaflo CC was acquired
and the first respondent
paid for the corporation and the registration of his and the
applicant’s names as 50% members. It
turned out that the
applicant, without his knowledge, had herself registered as 100%
member. On 5 September 2014, a few days after
the resignation of the
applicant, the second respondent stumbled upon a Belaflo file which
the applicant had kept in her office.
He discovered that a payment
had been made to Belaflo CC on 23 August 2011 in respect of a client
recruited by the first respondent,
in the course of the first
respon-dent’s core business, for a corporation in Liberia (The
Liberia Transaction). This alle-gation
is confirmed in an affidavit
by Ms Maggy Modise, a recruitment consultant employed by the first
respondent. Ms Modise had done
the recruitment and received her
commission in respect thereof. Yet the first respondent’s
remuneration for the service was
paid to Belaflo.
[14] The second
respondent also discovered several payments to Belaflo that he
se-riously questioned. It turned out that the applicant
had engaged
in micro lending in the name of Belaflo. Belaflo would advance loans
to employees of the first respon-dent from the
capital generated
through the Liberia transaction. Repayment of the loans plus interest
would be deducted from the wages of the
second respondent’s
employees and then transferred to the account of Belaflo.
[15] The second
respondent also discovered several questionable payments to Na¬gel
& Blom and to the applicant’s attorney,
M.L. Schoeman. The
first respondent had
not been invoiced by
M.L. Schoeman for the amounts. The applicant denied this in
her replying
affidavit and mentions litigation which M.L. Schoeman had handled on
behalf of the first
respondent.
[16] The first and
second respondents lodged a counter claim for the following relief:
1. That the Mercedes
Benz C200 Kompressor be returned to the First Respon¬dent
forthwith and that the First and Second Respondents
be authorised to
re¬tain possession of the said motor vehicle for safekeeping
pending the registra¬tion of the motor vehicle
in the name of the
First Respondent;
2. That the
Applicant be ordered to take any steps necessary to assist the First
Respondent in having the Mercedes Benz motor vehicle
reregistered in
the name of the First Respondent;
3. That the
Applicant provide full disclosure of all financial information
pertaining to the First Respondent, Belaflo CC and the
Applicant
personally;
4. That the
Applicant be ordered to pay the costs of this application and the
counter application on a scale as between attorney
and own client.
[17] I have no
hesitation in granting prayers 1 and 2 of the counter-claim. The
appli-cant has not denied that the she had transferred
the motor
vehicle in her own name. For reasons that only she will understand,
she claimed transfer of the vehicle in her own name.
[18] I am also
prepared to grant prayer 3 above. The second respondent has
estab-lished that the applicant may have embezzled money
from the
first respondent. The first and second respondents do not seek
payment at this stage of any sum of money that may appear
to be due
and owning in respect of the applicants’ manage¬ment of the
accounts of the first respondent and/or Belaflo
CC. The applicant has
proved herself to be deceitful and her denials and explanations carry
no weight.
[19] The applicant’s
claims are misconceived. Her affidavits are contradictory and
confusing and disclose untruthfulness.
Her behaviour in claiming
registration of a ve-hicle in her own name, which she had already
fraudulently have registered in her
name is despicable. In these
circumstances a punitive cost order is warranted.
In the result I make
the following order:
1. The applicant’s
application is dismissed;
2. The applicant is
ordered to return to the first respondent the Mercedes Benz C200
Kompressor forthwith;
3. The first and
second respondents are authorised to retain possession of the said
motor vehicle for safekeeping pending the registration
of the mo¬tor
vehicle in the name of the first respondent;
4. The applicant is
ordered to take any necessary steps to assist the first re¬spondent
in having the said motor vehicle reregistered
in the name of the
first respondent;
5. The applicant is
ordered to pay the costs of the first and second respon¬dents on
the scale as between an attorney and client.
J HIEMSTRA
ACTING JUDGE OF
THE HIGH COURT
Date heard: 3
June 2015
Date of judgment:
2 July 2015
Counsel for the
applicant: Adv. M. Coetzee
Attorney for the
applicant: ML Schoeman Attorneys Inc.
300Zambezi Ave
Sinoville
Pretoria
Tel.: 012 562
9900 Ref.: ML0084
Counsel for the
first and second respondents: Adv. Sophia Maritz Attorney for the
first and second respondents: Diemont Inc
Centaur House 38
Ingersol Steet Lynnwood Glen Pretoria
Ref.: A Diemont
DD2206