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[2015] ZAGPPHC 1045
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Medupi N.O. v JNC Vehicle Testing CC (40521/2010) [2015] ZAGPPHC 1045 (19 August 2015)
/SG
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:19/8/1
CASE
NO: 4052112010
In
the matter between:
NTSWAKI
ELIZABETH MEDUPI
N.O.
APPLICANT
And
JNC
VEHICLE TESTING
CC
RESPONDENT
JUDGMENT
SITHOLE,
J
1.
INTRODUCTION
1.1
This is an opposed application which
was heard by me on 18 March
2013 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 which had
been referred to by counsel during their
respective arguments.
1.2
There has been an inordinate delay on my part in jotting down my
decision since then. This has occurred on account of factors
beyond my control because soon after hearing this matter I have had
to preside over the criminal Court of the Eastern Circuit in
Mpumalanga for the rest of the year. Subsequently, I was deployed to
the criminal Court at Palm Ridge and at Randburg. Needless
to say
that Eskom load-shedding exacerbated the delay.
1.3
The delay is deeply regretted by me and I hereby record and express
my sorrow to the legal representatives and their clients
for this
occurrence.
1.4
Both parties were legally represented during the hearing of this
matter. The Applicant was represented by Advocate DZ Kela of
Johannesburg duly briefed by Moleke Matsepe Attorneys also of
Johannesburg and the Respondent by Advocate AC Janse van Rensburg
of
Pretoria briefed by Jasper van der Westhuizen and Bodenstein Inc of
Pretoria.
2.
FACTUAL
BACKGROUND
2.1
It is common cause that the Applicant is Ntswaki Elizabeth Medupi NO,
an adult female residing at 417 Block B, Mabopane, Pretoiria
and
that the Respondent is JNC Vehicle
Testing Station CC, a close corporation
Incorporated in terms of the Close Corporation Act with its
registered office address at 31 Leopard Street, Theresa Park,
Pretoria.
The Applicant's husband, Goli Gilbert Medupi, was a
member of the close corporation until his death on 28 January 2008.
2.2
On 13 July 2010 the Applicant in her capacity as an executrix of her
late husband's estate, brought an application to
this Court for
an order in the following terms:
2.2.1
That the Respondent be ordered to
provide her with the following:
(a)
Bank statements from 28 January 2008 until
to date within
thirty days of the granting of the order;
(b)
A list of assets of the Respondent
to the
Applicant within one month of the granting of the order.
2.2.2
The Respondent to pay costs in the event of opposition.
2.3
Subsequently, the Respondent filed a notice of intention to oppose on
12 November 2010, that is, four months after the application
was
brought.
2.4
The application by Applicant was apparently set down for hearing on
18 April 2011 at 10:00.
2.5
On 25 February 2013 the Respondent brought an application to this
Court for an order that the late filing of the Respondent's
opposing
affidavit (dated 14 April 2011 ) be granted on the same day of the
hearing of the main application on 18 April 201 1 at
10:00.
Respondent's opposing affidavit was therefore not filed within ( 15)
fifteen days as required by the relevant rule.
2.6
It has to be mentioned that the above given dates do not tally with
those mentioned by Respondent's attorney of record annexed
to the
Respondent's notice of motion of 25 February 2013. For example, the
said attorney alleges that Applicant filed and served
her notice of
motion upon Mr RM More, a member of the Respondent on or about 2
November 2010. It is not clear why an application
filed on 13 July
2010 could only be served on the Respondent's member on or about 2
November 2010, i.e. four months after the application
was brought. In
any event, a copy of the relevant service return filed of record is
dated 2 November 2010. Furthermore, the Applicant's
replying
affidavit was filed on 11 April 2012 and served on Respondent's
attorneys on 14 March 2012, that is, one year and one
month after the
opposing papers were filed. This has occurred without any explanation
or condonation application whatsoever by
the Applicant.
2.7
Subsequently on or about 26 July 2012, the Respondent filed a
supplementary answering affidavit, which formed part of the answering
affidavit already before Court, for reason of the fact that new facts
were raised by the Applicant in her replying affidavit, namely,
that
"the deceased's estate has to be dealt with in accordance with
the provisions of
section 35
of the
Close Corporations Act, 69 of
1984
". See paragraph 5 of Applicant's replying affidavit.)
2.8
I may also point out
en passant
that this matter was
initially set down for hearing on 19 November 2012 and subsequently
removed by the Applicant on 16 November
2012. It was then set down
for a new date of hearing on 4 February 2013 only to be removed from
the roll of that date on 30 January
2013. The Applicant then set it
down for hearing on 4 February 2013 only to remove it from the roll
of that date on 30 January
2013. The Applicant then set it down
for hearing on 25 February 2013 only to remove it from the roll of
that date on 20 February
2013. Suffice it to say that the matter was
ultimately set down for hearing on 13 March 2013.
2.9
In the light of the checkered
history of this
matter
smce 13 July 2010, there have been recriminations between the
parties, more particularly in that the Respondent
bitterly complained
about not having received notices of set down for 4 February 2013 and
18 February 2013 and suddenly being confronted
with a notice of
removal from the roll. Also that when the matter was set down for
hearing in November 2012, the Respondent experienced
problems with
the Applicant's non-compliance with the rules set down in the
practice directive of the former Deputy Judge President
VAN DER
MERWE. That no papers can be filed by parties after a notice of set
down.
2.10
The Applicant, on the other hand, firstly complained about an alleged
insurance policy on the life of her late husband, which
was not paid
by Momentum Insurance Company upon his death because he was
allegedly not honest when he applied for it. Consequently,
even if
the said policy was taken, the Applicant does not have any
shareholding to it. Counsel for the Applicant argued that Applicant
simply wants Respondent to provide her with the records of the
company so as to see the state of the company because at this
stage she is not claiming any shares.
2.1
1 The second complaint by the Applicant concerns an alleged
buy-and-sell agreement attached to Respondent's papers as annexure
"RMM5" which is devoid of any signatures of those who
entered into it. Counsel for the Applicant argued that in the
absence of the necessary signatures, even if it is initiated, the
alleged agreement never came into existence for want of signatures.
2.12
The third complai nt of the Applicant was about two answering
affidavits filed by the Respondent. Counsel for the Applicant
argued that the first answering affidavit was deposed to very late.
As
a result it was accompanied by a condonation application which is not
opposed by Applicant. After a replying affidavit had been
filed the
Respondent filed a supplementary affidavit without having
obtained the leave of the Court as required by the Rules
of Court.
Besides, he argued, the issues canvassed in the said supplementary
affidavit are already canvassed in the answering affidavit.
He
argued that there are therefore no new issues raised.
3.
THE
ISSUES
TO BE DECIDED BY THE
COURT
3.1
The Court has to decide whether, at law and on the facts of this
matter, the Applicant is entitled to the relief she has claimed
in
her Notice of Motion. Stated otherwise, the Court has to decide
whether the Appl icant has made out a case for the granting
of the
relief she claims, regard being had to the points
in limine
raised
by the Respondent.
3.2
The first point
in limine
is that the Applicant's
application and the nature of the relief sought is premature in that
the Applicant, as executrix of the
deceased' s estate, has not stated
in her founding affidavit that she (a)
established
the current
existence of a membership interest
whatsoever and
(b) the percentage of
any membership interest.
3.3
It is contended that the Applicant should first have applied for an
order to restore the membership of her husband, the
late Goli
Gilbert Medupe, moreso that in paragraph 6.3 of her Founding
Affidavit, the Applicant states: "I will be bringing
a separate
application against the individual members of the Respondent to
restore the
status quo
insofar as the deceased members
interest is concerned."
3.4
The second point
in
limine
is that on account
of an agreement between the members of the Respondent, the
claim against the latter has prescribed
and is of academic
interest only. The said agreement was the outcome of a meeting held
by the Board of Directors on 9 November
2004, when it was decided
that the members of the close corporation should each take out a life
insurance policy in order to protect
the Respondent from financial
distress and to preserve the business interests of the Respondent. A
copy of the written minutes
of the said meeting is attached to the
Respondent's papers as annexure "RMMB".
3.5
Furthermore, upon the death of the Applicant's husband, his Momentum
policy was repudiated by the insurer and the claim against
Momentum
had already prescribed by the time
the Appl icant's attorneys of
record forwarded a repudiation
letter (annexure "RMME") to the Respondent's attorneys. The
Respondent further contends
that to his knowledge the Applicant has
not instituted legal action against Momentum to stop prescriptions
besides the Applicant
was already appointed as the executrix of her
husband's deceased estate on 28 April 2008 and any claims which
she allegedly
had against the Respondent with regards to the
membership interest have now become prescribed.
3.6
The third point
in limine,
which is raised by the Respondent
is an alternative to prescription,
supra
,
is
that the Applicant did not comply with the prescribed formalities of
the provision of section 35 of the Close Corporation Act
69 of 1984.
The said provisions have to do with the disposal of the interest of a
deceased member of a close corporation. It is
contended by the
Respondent that the Applicant must first convince the Court that she
has complied with her duties as an executrix
of her husband's
deceased estate in terms of section 35 of the said Act in respect of
the alleged membership interest before
she can approach
the Court for the relief she is
seeking in her application.
3.7
The Applicant, on the other hand, is of the view that the
Respondent's points
zn
limine
are without
merit because the purpose of her application IS merely to obtain
information in respect of the Respondent to enable
her as executrix
of the deceased' s estate to fulfil her duties. She maintains that
the deceased' s estate still has an interest
in the Respondent which
has a certain commercial value to form part of the deceased's estate
and to be dealt with in accordance
with the provisions of
section 35
of the
Close Corporations Act 69 of 1984
. That despite
the deceased's death, his interest in the Respondent still
exists with herself as executrix as
a member of the Respondent
nomine
officii,
and that the present financial situation of the
Respondent IS therefore relevant as the interest continues to exist
as to date.
4.
THE
COURT'S
FINDINGS
AND
CONCLUSION
4.1
Having carefully read the application papers of this matter and
having patiently heard argument by the respective counsel for
the
parties, the Court, taking into consideration
the points
in
limine
raised by
the Respondent against the Applicant's application makes the
following findings, that:
4.1
.1 Since 2008 the Applicant has been in possession of the repudiation
letter dated 1 August 2008 which was delivered to
her previous
attorney of record and is attached to Respondent's papers as annexure
"RMME", and did not deem it necessary
to use it in her
application. By so doing she did not take the Court into her
confidence. The significance of this repudiation
letter lies in the
context of the relief she claims for a "list of assets of the
Respondent to her within one month
of the granting of the
order", as she said.
4.2
The Applicant was appointed by the Master as executrix of her late
husband's estate on 23 April 2008 and yet she only lodged
her
application for the relief claimed on 13 July 2010 without taking any
precautionary measures against the possible prescription
of her
claim. As demonstrated in the Respondent's second point
in limine,
Applicant's claim against the Respondent has prescribed on
account of the agreement referred to therein.
4.3
In her Founding Affidavit the Applicant makes no mention of the fact
that as executrix of her late husband estate, she
has already
established the current existence of a membership interest and what
percent such interest is. It is incumbent on her
to restore
the alleged membership interest first before she can approach
the Court for the relief she is claiming.
It follows that her
application is, if anything, indeed premature.
4.4
The Applicant's non-compliance with the prescribed provisions of
section 35 of the Close Corporation Act 69 of 1984, as far
as the
membership interest is concerned, is another weak link of her
application. It is not good enough to allege that such interest
has
commercial value and it forms part of the deceased's estate. She must
state it in her founding affidavit that she has complied
with her
statutory duties in terms of section 35 of Act 69 of 1984 before she
can approach the Court for the relief claimed in
her notice of
motion.
4.5
In the light of the above findings, Applicant cannot be granted the
relief she seeks since her application is trumped by the
points
in
limine
raised by the Respondent. It follows that the
said points are hereby sustained and Applicant's application falls to
be dismissed
because Applicant has not made out case to be granted
the relief she is asking for.
In
the result, I make the following order:
THE
APPLICANT'S APPLICATION IS HEREBY DISMISSED WITH COSTS.
Dated
at
PRETORIA
on
26 JUNE
2015
___________________________
MNS
SITHOLE
ACTING
JUDGE OF THE,
HIGH
COURT, PRETORIA