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[2015] ZAGPPHC 657
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Booysen and Another v Bryant and Another (11826/2010) [2015] ZAGPPHC 657 (19 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(GAUTENG
DIVISION,
PRETORIA)
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED √
31/07/2015
DATE
SIGNATURE
CASE
NO: 11826/2010
DATE:
19/8/15
IN
THE MATTER BETWEEN
WYNAND
WILLEM
BOOYSEN
1
ST
APPLICANT
WYNAND
WILLEM BOOYSEN N.O.
(In his
capacity as sole trustee of the
Booysen
Family Trust IT
1563/05)
2
ND
APPLICANT
AND
MICHAEL
JOHN BRYANT
RESPONDENT
AND
TAUROCK
RESOURCES (PTY) LTD
INTERVENING PARTY
JUDGMENT
SITHOLE.
AJ
1.
INTRODUCTION
1.1.
This is an opposed
application
for a declaratory
order
and
an
unopposed application
by a
third party for
leave to intervene
and to
oppose the main application.
It
was
heard
by me
on
20
March 201
3
in
the
opposed
motion court.
At
the
close
of
argument
I reserved
judgment
so
as
to
apply
my
mind and
to
consider
all
issues
raised
as
well
as
the
authorities
referred to
by
the
respective
counsel
in their
arguments.
1.2.
There has been
a
somewhat
inordinate
delay on
my part
in putting
my
decision on
the
two
matters
on
paper,
This
has
unavoidably
occurred an
account
of
factors beyond
my
control
because
soon
after hearing
these matters
I was called
upon
and
deployed
to
go
and
preside
over
criminal
cases
in
the
Eastern
Circuit
of Mpumalanga
province,
Palm
Ridge
and
Randburg.
Needless
to
say that
the
Escom
load-shedding
program
also
caused
the
delay
in jotting down my decision
on these
matters.
1.3.
The delay
is
deeply
regretted
by me and
I hereby
record
and
express
my
heart
-f
elt
regret to
the
relevant
legal representatives
and
their clients involved in these matters,
for
this occurrence.
1.4.
All
parties
were
legally
represented
during
the
hearing
of
these
matters. The First and Second
Applicants
were represented
by
Adv Hattingh, duly instructed
by Jeanne de Klerk
Attorney
of Pretoria.
The
Respondent
was represented
by
Adv
Myburgh
on
instruction
of
Attorneys
Vezi
&
De
Beer
Inc of
Pretoria,
and
the
Intervening
Party
was
represented
by
Adv
Van Wyk
on instruction
of Attorneys
Boshoff
Smuts Inc of Pretoria.
2.
FACTUAL BACKGROUN D
2.1.
The
factual
background
of these
two
matters
is elaborately
documented
in
the
founding
papers
as
well
as
in
the
opposing
papers
and
shall
not
be
repeated here.
Suffice
it
to
say
firstly,
that
relevant
details
of
the
background appear
ex facie
the
summaries
of the
arguments
of the parties
which
have
been
composed
and
delineated
by me below.
2.2.
In
the
second instance,
it
has
to
be
mentioned
that
it
is
clear
from
the
case
number of
these
matters
that
they
have
a
long
and
checkered history.
The application
for a declaratory order was initially set down for
hearing on 9 March
2010,
coram
my
learned
brother
Prinsloo
J, who
removed
the
matter from
the
roll
with
costs.
It
was then
again
set down
on
16
March
2010
coram
my
learned
brother
Claassen
J, who
struck
it
from
the
roll
for
lack
of
urgency and ordered
costs
to
include those of two counsel.
2.3.
Subsequently, the matter
was set down on
10 February
2011
coram
my
learned brother
Mavundla
J,
who postponed
it
sine die
and that the Applicants
file
their replying
affidavits
within
fifteen
days from that
date
and the
Respondent's
one be
filed
ten
days
thereafter;
that
Applicants
pay
the
costs
occasioned by
the postponement
jointly
and
severally,
the
one
paying
the
other
to
be
absolved and
such
costs to include of two counsel
employed
in the main
application
and
for the Intervening
Party.
2.4.
On 29 October
2012
before
my
learned
brother
Van
Loggerenberg
J the matter was
postponed
sine
die
and
the
Respondent
was
ordered
to
pay
wasted
costs. On 28 January
2013 the matters
served before my
learned
brother
Barn AJ, and
they
were
removed from
the
roll
and
costs
were
reserved.
The
matters
were
finally heard
by
me on 20
March 2013.
3.
THE LEGAL ISSUE TO BE
DECIDED
BY THE COURT
3.1.
The
legal
issue
for
decision
in
these
matters
is
whether
the
oral
agreement
of
9 May 2006
between the
first
and
second
Applicants
and
the
Respondent
is valid
and enforceable.
4.
THE
FIRST
AND
SECOND
APPLICANTS' ARGUMENT AND
CONTENTIONS
4.1.
The
Applicants
seek
relief
in
relation
to
a
share
transfer
transaction
between the
first
applicant
and
the
Respondent
of
the
acquisition
by
the
first
applicant and second
applicant of
a
50%
share
interest in
a
company
called Maranda Mining Company
(Pty) Ltd.
4.2.
The transaction
was
formalised
in May
2006
on the
basis
of
certain
documents prepared
and
signed by the Respondent. The
facts
of
the
transaction
were
confirmed
in a subsequent
document
of which the
Respondent
was
the author.
4.3.
The
Applicants
complied
with
the
obligations
of the
agreement.
It
is
common
cause
that
the
Respondent failed
to
comply
with
the
terms
of
the
transaction
and
failed to
contribute
to the process
for the transfer
to the Applicants
of
50%
of shares in Maranda
held by
it.
4.4.
The
Respondent
entered
into
a
share
sale transaction
with
Taurock
Resources (Pty)
Ltd
(the
Intervening
Party).
Taurock
acquired
34%
of
the
issued
shares
in
Maranda
from
the
Respondent.
The
34%
share acquired
by
Taurock
could
only have been
from the Respondent's
remaining
50%.
4.5.
In
the
2009
urgent
application
the
relief
claimed
was
for
the
removal
of
First
Applicant as
a
security
services
provider, unilateral decision-making and
for arrear payments
in respect
of vehicles.
4.6.
The Respondent
raised
the issue of non-
and/or
mis-joinders.
The rights
of
the so-called other
parties are
not
affected and
there is
no
relief sought against them. Non- or mis-joinder
would
not have had the effect of
making the application
defective.
4.7.
The Respondent
argues
that the reason
for the transfer
of
shares
in
Maranda
by
the Respondent
to the Applicants
was
merely
in securitatem
debiti
which
is not borne out
by the contents of annexures
"A"
and "B",
which are clear
and unambiguous.
5.
TH
E RESPONDENT'S
ARGUMENT
AND CONTENTIONS
5.1.
As
stated
in paragraph
2.2
supra,
the
matter
was
struck
off the
roll
with
costs, including
the
costs of two
counsel. The
Respondents
subsequently
applied
for a stay of proceedings
pending
the payment
of
the taxed
costs.
5.2.
Besides,
the
Applicant (in
an
application
for
the stay
of
proceedings) must prove
that
the
parties
are
substantially
the
same;
that
the
issues
between
the parties
are
substantially
the
same
or
connected
and
that
the
costs
of
previous proceedings have not
been paid.
5.3.
The
Respondent
contends
that it
is
the same
application between the
same parties
and exactly
on
the same issues. Respondent
then makes the
submission that
it
is
entitled
to
a
stay
of
proceedings
and
that
this
application should
be removed
from the roll
with costs, including
the costs of two counsel.
5.4.
If
the
application
for a stay of the
proceedings
is not
successful
the
application cannot succeed on
the following grounds:
5.4.1.
the company (Maranda
Mining Company
(Pty) Ltd) in respect of which
the
Applicants seek an order is not a party to these proceedings;
5.4.2.
Taurock
Resources
(Pty)
Ltd
(the
Intervening
Party
in
the
application to intervene)
is not a
party
to these proceedings;
5.4.3.
Nedbank
Ltd (ie the bankers of
Maranda
Mining)
is not a
party
to these proceedings;
5.4.4.
Equity Partners CC (who allegedly took transfer of the
shares in question) is not a party to these proceedings;
5.4.5.
Ngapo Resources and Exploration (Pty) Ltd is not a party
to this application;
5.4.6.
Kinderwood
Investments
(Pty)
Ltd is not a party to this application.
All
of the parties mentioned above have a clear interest in the relief
sought as set out in the opposing affidavit.
5.5.
The
Second
Applicant
is
not
entitled
to
be
represented
by
the
First
Applicant because
the
trust
deed
clearly
states
that
the
trust
must
be
represented by a maximum
of two
trustees.
5.6.
The application
is
fatally flawed as neither the relief claimed
nor
the procedure followed comply
with the provisions
of section
115 of the Companies Act.
5.7.
There
are
numerous
disputes
of
fact which
cannot
be
resolved
on
application.
The version
of the Applicants
is
confusing and ambivalent - as the
First Applicant
stated
under
oath
that
the
trust
became
the
shareholder
of
Maranda Mining Company.
5.8.
The Applicants
seek
a declaratory
order declaring the share transfer
transaction between the First and Second Applicants and
the Respondent
to be
valid. An order transferring
the
shares to the First,
alternatively
the Second Applicant will be vague and incapable of
being executed.
5.9.
Applicants have
no
regard for
the
Companies
Act
and
proper procedure as
previous
actions show that they unilaterally
placed the company
"onder 'n
staat van
besleg",
appointing
random
new
directors
and
taking
control
of
the company.
5.10.
Respondent
then
made
the
submission
that
the
application
ought
to
be
dismissed
with
costs
on
an attorney
and
own
client
scale.
Also
that
the
court ought
to
mark
its disapproval
of
litigants
approaching
the
court
with
no sustainable
cause
of
action
where
they
disregard
previous
cost
orders
against
them.
5.11.
In the 2009 application
the Respondent
also sought an order
for costs since the application
was simply
withdrawn
without
a tender
for costs.
6.
INTERVENING PARTY'S
ARGUMENT
AND CONTENTIONS
6.1.
Taurock
Resources
(Pty)
Ltd,
as
the
Intervening
Party,
pointed
out
that
in
the 2009
urgent
application
the
Applicants
sought
relief
against
the
current Respondent
and
the
Intervening
Party
interdicting
them
from
taking
any
decision
(for
which
decision
all
shareholders need
to
be
consulted) without first
consulting with the Second Applicant.
6.2.
The current
application
did not join
Maranda
Mining
or the
Intervening
Party.
The
validity of
the share
transfer
transaction affects
the Intervening Party's position
in
the
governance
of Maranda
Mining
wherein
a
34%
minority shareholding is held.
6.3.
In an application
for
leave to intervene the following test must be applied:
6.3.1.
Whether
the
party
has an interest
in the action. (The
Intervening
Party is
a
minority
shareholder in Maranda. If
an order is made it will influence
the governance
of Maranda and the
Intervening
Party
may
be
prejudicially
affected.)
6.3.2.
Whether the party has
a
prima facie
case. (Applicants
failed to comply with
section
1
1 of the
Mineral
and
Petroleum
Resources
Development (MPRD)
Act
no
28
of
2002;
there
exists
a
foreseeable
factual
dispute;
there
is
non-joinder and
non-compliance with
section
252
of
the
Companies
Act;
the
transfer
of
shares
as
envisaged
by
the
Applicants contravenes
section 38 of the Companies
Act; the
parties
failed to comply
with
section 91A of the Companies
Act
which
makes the
transfer
null and void.)
6.3.3.
Whether
the
application
is
made
seriously
(the
Intervening Party
has grave concerns
regarding
the future of Maranda);
and
6.3.4.
whether the application
is not
frivolous.
6.4.
The
Intervening
Party
opposes
the
application
because
the
written
consent
of
the
Minister
was
not
obtained
for
the
transfer
of
interest
in
accordance
with
section
11(1)
of the
Mineral
and
Petroleum
Resources
Development
Act
no 28
of
2002
. Any
transfer
of
an
interest
in
the
company
is
void
if
it
is
made
in
contravention
of the provisions
of
section
11(1).
1.2
5cm; margin-bottom: 0cm; line-height: 150%">
6.5.
Another ground for
opposition
by
the
Intervening
Party
is
that
the
issues
in dispute need to be referred
to
oral evidence
since credibility
findings
will
have to be made by the court and these can
only be done on trial.
6.6.
Furthermore,
the
test
for
the
joinder of
a
party
is,
if
such
a
party
has
a
legal interest. in any order the court might
make, or if such order cannot
be
sustained or
carried
in
effect
without
prejudicing
that
party.
The
party
should
be
given an opportunity to be heard.
6.7.
The applicants
failed
to join
the
Director-General
of Mining
Affairs
who
has
a legal
interest
in
the
subject-matter
of
the
litigation.
The
Applicants failed
to join
Maranda
Mining
which
has
a legal
interest
in the
order
sought
and
whose rights
will
be
infringed
by
seeking
signing
rights
on
Maranda's
bank
accounts and making
changes to the
shareholding
in
Maranda.
The
Applicants
failed
to join
Equity Partners CC (ie
the close corporation
to which the
Applicants purport
to have sold their shares).
6.8.
Besides,
the
transgression of
section
28
of
the
Companies
Act
by
the
Applicants
renders the transfer
of
the shares void.
There
is
sufficient cause not to enter the names
of the
Applicants
into the register
of
members.
The Intervening
Party
concludes
its argument
by
stating that
the
application
of
the Applicants
ought
to
be
dismissed
with
costs,
including
the
costs
of two
counsel,
especially
if
the
court
has
regard
to
the
Intervening
Party's
argument
above.
7.
THE COURT'S FINDINGS
AND
CONCLUSION
7.1.
Having
carefully
read the application papers of this matter
and
having
patiently heard
argument
by
the
respective
counsel
for
the
parties,
and
having
applied my
mind
to
such
arguments
and
contentions,
the
court,
having
regard
to
the legal issue it has to decide, makes the following
findings, that:
7.1.1.
It is
common cause
that
annexure "A"
to
the
founding papers is
a resolution for
the
transfer
of
ordinary
shares
by
the
sole
director
and
shareholder
of Maranda
Mining
Company
(Pty) Ltd
dated
8 May
2006 and duly signed by the
Respondent, Michael John Bryant.
7.1.2.
It
is
also
common cause that annexure
"B"
of
the said papers is
a
Memorandum
of Agreement
(MOA)
by
and between
the
Booysen Family
Trust and the
Respondent
dated 9 May 2006 and duly signed by
the Respondent
and the First Applicant.
7.1.3.
It
is
so
that
notwithstanding the
words
couched in
the
said
MOA
as well
as alleged
frequent requests of the First
Applicant, the Respondent just
never
took
any steps for the
formalisation
of the
share transfer
and
the
appointment
of the
First
Applicant
as
director
of
Maranda
Mining Company (Pty)
Ltd.
This
reluctance to
formalise
on
the
part
of
the Respondent
turned
the
First
Applicant
into
a nominal
director
of Maranda,
as regarded by the
Respondent. Apart
from this fact, it subsequently
transpired that the formalities
for
First
Applicant's appointment
were never concluded with
a CYPRO registration.
7.1.4.
What is
more,
the
First Applicant, by his
own admission, provided
financial
support
to
Maranda
far
in
excess
of
the
initially
agreed
loan
facility
of
R500 000,00,
which action
is
not
one
of
the
terms
of
the
agreement.
This
implies
that
both
signatories
to
annexure "B"
never complied
with
the
terms of the
so-called
agreement
as contained
in
the
said annexure.
7.1.5.
Over
and
above
that,
the
wording
of
some
of
the
terms
of
the
MOA
is
vague. For
example,
the
first
term
in
annexure
"B"
reads
inter
alia
as
follows
"The
loan
will
be
repayable
as
agreed
by
the
parties and
dependent on
available funds
in MMC." (My underlining
for
emphasis.)
And
the
fifth term
of
the
said annexure
reads
as follows:
"Dividend
payments
will
be
agreed
between
the
parties."
I
find these terms to be imprecise
and lacking in
specificity.
In simple language, they are vague.
Little wonder none of the parties fulfilled his
obligations arising from the agreement.
7.1.6.
Furthermore, on the face of it annexure
"B"
has some discrepancy
as to
who
the purchaser
is and either the First Applicant
or his Family
Trust
(a
name
which
was
inserted
later) is the purchaser.
At
the time
when
annexure "B"
was
signed
the
purchaser
was
Mr Booysen, the First Applicant
himself
and not the Family
Trust.
Such discrepancy.
in
the context of the law of contract, I find to be unjustifiable.
7.1.7.
It
was contended
on
behalf
of the Respondent
that
in so far as the loan
he
wanted
from
the
First
Applicant
is
concerned,
Respondent.
as
the
author of
annexures "A"
and
"B",
was misunderstood
by
the First Applicant,
because
he
told
the
latter
that
he
wants
a
loan
and
if he
is
unable
to
repay it
he
would give
the First
Applicant the shares
in Maranda
in
securitatem debiti.
Such
misunderstanding is,
however, not
borne
out
by
the
contents
of
annexures
"A" and
"B".
Also,
the
words
in
securitatem
debiti
do
not appear on annexure
"B".
7.1.8.
The Respondent
has also contended
that in so far as the Applicants
seek a
declaratory
order declaring the shares transfer
transaction
to be
valid,
such order
transferring
the
shares
to the
Applicants
will
be
vague
and incapable
of execution.
I
find that this vagueness
finds
its
origin
from annexure "B"
as
stated
in
subparagraph
7.1.5
supra.
It
follows
that applicants'
contention
that
the
contents
of
annexures
"A"
and
"B"
are clear and unambiguous
does not
hold any water and is unconvincing.
7.1.9.
It is
a
matter
of
record
that
the
2009
urgent
application
of
the Applicants
was simply withdrawn without a
tender
for
costs. The Applicants
now
seek
a declaratory
order without
having
paid
the
costs of the
2009
urgent
application.
I
find
that
it
is
definitely
unjust
that
a
litigant
should bring
a party
into court, cause him to incur costs, refuse to pay
them
and
still
be
allowed
to
continue
the
litigation
ad
infinitum
(see
Win
&
Son
v
Levin
1916
WLD
36
at
38).
It
is
clear from
the
checkered history of
this
matter
that
the
action
of
the
Appellants
in seeking relief
in
relation
to a share
transfer transaction
borders
on vexatiousness,
more
so
that it is
prima facie
vexatious
to bring
a matter for
decision
by
the
court
without
paying
the
costs
previously
awarded
by the court (see
Meyer
v
Meyer
1945 TPD
118).
7.1.10.
In the light of
the aforementioned
findings, coupled with the compelling
argument
of the Respondent,
in particular
on his crisp contention
about
a stay
of proceedings,
as
well
as the
argument
by
the Intervening
Party
on
Applicant's
non-compliance
with
the
imperative
provisions
of
the
Mineral
and
Petroleum
Resources
Development
Act
no
28
of
2002
,
I
am
constrained
to
answer
the
issue
which is
to
be
decided
by
the
court
negatively. Stated
otherwise,
I
conclude
that
the oral
agreement of
9
May
2006
between
the
applicants
and
the
Respondent
was invalid and unenforceable
for reason
of utter vagueness.
In
the result, I make the following order:
The
Applicant's
application
for
a declaratory
order
and
the
unopposed application
by
a
third
party
for
leave
to
intervene
and
to
oppose
the main
application
are
hereby
refused and
dismissed
with costs
on
an attorney and
client scale.
_________________________
M N S
SITHOLE
ACTING
JUDGE OF THE GAUTENG DIVISION,
Heard
on:
18 March 2013
For the
Applicant:
Adv HATTINGH
Instructed
by:
JEANNE DE KLERK ATTORNEYS
For the
Respondents:
Adv MYBURGH
Instructed
by:
VEZI & DE BEER INC
For the
Intervening Party:
Adv VAN WYK
Instructed
by:
BOSHOFF SMUTS INC
Date of
Judgment:
04 August 2015