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[2015] ZAGPPHC 606
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Makondo v Makondo and Others (35399/2015) [2015] ZAGPPHC 606 (21 August 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
35399/2015
In the
matter between:
RHANDANI
GIZZLA
MAKONDO
APPLICANT
And
MAXANGU
COLLET
MAKONDO
1
ST
RESPONDENT
THOBILE
MELANIA
MFEKA
2
ND
RESPONDENT
MELCO
CONSULTING & PROJECT
CC
3
RD
RESPONDENT
THE
REGISTRAR OF COMPANIES AND
4
TH
REPONDENT
CLOSE
CORPORATIONS
FIRST
RAND BANK LIMITED t/a inter
alia
5
TH
RESPONDENT
FIRST
NATIONAL BANK BUSINESS BANKING
(FORMALLY
FIRST NATIONAL BANK OF
SOUTHERN
AFRICA
JUDGMENT
MSIMEKI J:
INTRODUCTION
[1]
The applicant brought this application seeking an order as follows:
“
1.
Dispensing with the forms and time periods stipulated in the Rules
for the Conduct
of proceedings in the above Honorable Court, and
disposing of this application as an urgent application in accordance
with the
provisions of Rule 6 (12).
2.
Interdicting and prohibiting the first respondent from making any
further transaction
on the business banking account of Melco
Consulting & Projects CC, account number [.....] held with First
National Bank, Carlswald
Branch;
3.
Suspending the aforesaid bank account, on a temporary basis, and
permitting only
transactions necessary for paying the administrative
expenses and payment of salaries;
4.
Ordering the first respondent to provide a full and comprehensive
account of
all of the activities and transactions done on the
aforesaid banking account from 30 April 2015 to date;
5.
Declaring that the removal of the applicant and the second respondent
as members
of Melco Consulting & Projects CC from the Register of
Companies and Close Corporations is unlawful and is set aside;
6.
Ordering that the names of the applicant and the second respondent be
reinstated
to the Register of Companies and Close Corporations within
48 hours of the granting of this order;
7.
Further and/or alternative relief as this court may deem
necessary.”
[2] It
will be noted that the Notice of Motion does not seek an order for
costs. This aspect is dealt with later.
[3] The
matter was on the roll on 26 May 2015, 27 May 2015 and 29 May 2015.
Advocate B.L Manetsa (Mr. Manetsa) and Advocate R.S
Willis (Mr.
Willis) appeared for the applicant and the first respondent
respectively.
[4] This
matter was on the roll simultaneously with matter number 34.
[5] The
parties, in the meantime, after the filing of the replying affidavit,
filed the supplementary affidavit; the supplementary
opposing
affidavit; the second supplementary opposing affidavit and the second
bis supplementary opposing affidavit. Mr. Manetsa
opposed the filing
of the opposing affidavits. The parties addressed the court on
whether these documents were to be allowed. In
the interest of
justice, I allowed and accepted the documents.
BRIEF
FACTS
[6] In
2013, the applicant, the first respondent and the second respondent
started a business and, using a close corporation which
was formed by
the second respondent provided project management and audit
verification services for their biggest client, the Department
of
Human Settlement. The close corporation also did construction work
for the Department. The applicant provided and advanced a
loan to the
close corporation to enable it to start operating. This amount that
the applicant provided and advanced, according
to her, was the sum of
R497 000.00. The first respondent, however, seems to allege that
the amount was R297 000.00. The
difference in the amount, for
the purpose of this application, is of no moment. The amount would be
repaid to the applicant once
the close corporation started generating
income. An amount of R297 000.00 has been repaid. The applicant
contends that she
assumed the roles of a financial and marketing
director while the first respondent became CEO of the close
corporation. The parties
agree that the second respondent was a
sleeping partner who was not involved in the running of the close
corporation. The first
respondent contends that when the close
corporation was set up the understanding was that she would be the
managing member while
the applicant would be responsible for the
administrative and secretarial part of the business. Again, the
difference in their
respective positions, is neither here nor there.
The first respondent further contends that the applicant would be a
salaried employee
of the corporation earning a monthly salary of
R22 500.00 per month. This too, in my view, has no bearing on
the issues to
be determined in this application. It appears to be
common cause that the business started to generate substantial income
in early
2014. The parties then started to have grave disagreements
and feuding between them during the second half of 2014. Money was
the
central problem. It is noteworthy that the membership of the
applicant, the first respondent and the second respondent in the
third
respondent was equal. They each held
membership
interest in the close corporation. This is evidenced by annexure FA
37 to the applicant’s founding affidavit. They
each had access
to the business banking account of the third respondent, account
number [.....], Calswald Branch held with the
fifth respondent. It is
also worth noting that the first respondent is a businesswoman who is
a duly qualified quantity surveyor.
The applicant and the first
respondent are sisters. The grave differences and the feuding between
the parties resulted in this
application which is opposed by the
first respondent. In the main, the applicant contends that the first
respondent unlawfully
removed her and the second respondent as
members of the third respondent from the Register of Companies and
Close Corporations
and barred them from accessing the third
respondent’s account with the fifth respondent.
[7] The
court, on 26 May 2015, ruled that this matter together with matter
number 34 were urgent. This resulted in the postponement
of the two
matters and the exchange of the documents that I referred to in
paragraph 5 above.
THE
ISSUE TO BE RESOLVED
[8] This
is whether the applicant has made up a case to be entitled to the
relief that she seeks.
[9] The
applicant contends that she, indeed, is entitled to the relief while
the first respondent contends otherwise.
[10] It
will be remembered that these are motion proceedings. Resolution of
factual disputes in motion proceedings is governed by
well known
rules and principles. These principles and rules have been dealt with
in various cases some of which I shall refer to.
It has been said
that where it is clear that disputes will arise in motion proceedings
a party will be well advised to proceed
by way of an action and not
motion proceedings.
(See Room Hire Co (Pty) Ltd v Jeppe Street
Mansions (below) at 1166 and 1168.)
[11] In
Room Hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 155
(T) at 1163,
the court stated that a dispute of fact may arise
“
(a)
when the respondent denies all the material allegations made by the
various deponents, on the applicant’s behalf, and
produces or
will produce, positive evidence by deponents or witnesses to the
contrary. He may have witnesses who are not presently
available or
who, though adverse to making an affidavit, would give evidence
viva
voce
if subpoenaed”
whether the respondent is
bona
fide
or not depends on the
available evidence. The evidence may be such that the respondent’s
“contentions are insufficient,
to render resort to a trial
action compulsory.”
(See
Room Hire case at 1164)
.
[12]
In
Wightman t/a J W Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
(3) SA 371
at 375 paragraphs [12] and [13]
Heher JA said:
“
[12]
Recognising that the truth almost always lies beyond mere linguistic
determination the courts have said that an applicant who
seeks final
relief on motion, must in the event of conflict,
accept
the version set up by his opponent unless the latter’s
allegations are in the opinion of the court, not
such as to raise a real
genuine or
bona fide
dispute of fact or are so far-fetched or clearly untenable that the
court is justified in rejecting them merely
on the papers:
Plascon-Evans Paints (Pty)
Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635C
.(my emphasis)
[13] A
real genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise
the dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the averment. Where
the facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true
or accurate but instead
of doing so, rests his case on a bare or ambiguous denial the court
will generally have difficulty in finding
that the test is satisfied.
I say ‘generally’ because factual averments seldom stand
apart from a broader matrix of
circumstances all of which needs to be
borne in mind when arriving at a decision. A litigant may not
necessarily recognize or understand
the nuances of a bare or general
denial as against a real attempt to grapple with all relevant factual
allegations made by the
other party. But when he signs the answering
affidavit, he commits himself to its contents inadequate as they may
be, and will
only in exceptional circumstances be permitted to
disavow them. There is thus a serious duty imposed upon a legal
adviser who settles
an affidavit to ascertain and engage with facts
which his client disputes and to reflect such disputes fully and
accurately in
the answering affidavit. If that does not happen it
should come as no surprise that the court takes a robust view of the
matter.”
[14]
In
Stellenbosch Farmers’ Winery v Stellenvale Winery (Pty) Ltd
1957 (4) SA
234
(C) at 235 E-G,
Corbbett JA said
:
“…
where there is a dispute as to the
facts a final interdict should be granted in notice of motion
proceedings
if the facts as
stated by the respondents together with the admitted facts in the
applicant’s affidavits justify such an
order
….
Where it is clear that
facts, though not formally admitted, cannot
be denied they must be
regarded as admitted
”.
(my emphasis)
This is
the general rule that has been followed over the years which has been
very helpful where disputes of fact arose necessitating
their
resolution.
[15] The
first respondent contends that she lawfully took transfer of the
applicant’s membership and that she never unlawfully
‘misappropriated’ same as alleged by the applicant or at
all. The first respondent contends that a real and genuine
dispute of
fact has arisen in respect of this aspect while the applicant
contends that the first respondent’s version, in
this regard,
is far-fetched and deserves to be rejected having regard to the
objective facts.
[16]
Erasmus: Superior Court Practice at B1- 48D and the authorities
therein cited holds the view that, the court in every case
“must
examine an alleged dispute of fact and see whether in truth there is
a real dispute of fact which cannot be satisfactorily
determined without the aid of oral evidence”. This is done to
obviate a respondent’s intention to “raise fictitious
issues of fact” and thereby delay the hearing of the matter to
the prejudice of the applicant.
(See Plascon- Evans Paints case
(supra) at 634I; Peterson v Cuthbert & Co Ltd
1945 AD 420
at 429
and Wightman t/a JW Constructions v Headfour case (supra) at 375E).
At B1-49, Erasmus (supra), it has been stated that vague and
insubstantial allegations are not adequate to raise the kind of
disputes
of fact that should be referred for oral evidence. Where a
respondent intends to raise a serious matter, “the matter must
be based on fact not
rumour, innuendo
or inference
based only on speculation”. A bare denial of the applicant’s
allegations in his or her affidavits does
not generally suffice to
generate a genuine or real dispute of fact. Courts have to take ‘a
robust, common-sense approach’
to disputes on motion and not
avoid or hesitate to decide issues on affidavit merely because it may
be difficult to do so
. (See Sofiantini v Mould
1956 (4) SA 150
(E)
at 154G-H; Truth Verification Testing Centre v PSE Truth Detection CC
1998 (2) SA 689
(W) at 698H-I; Tecmed (Pty) Ltd v Hunter
[2008] ZAGPHC 41
;
2008 (6) SA
210
(W) at 217I-218B and Rosen v Ekon
2001 (1) SA 199
(W) at 215B-D.)
Where the court is satisfied that there is no real and
genuine dispute on the facts in question, or where a party’s
allegations
are so far-fetched or so clearly untenable or so palpably
implausible as to warrant their rejection merely on the papers or
where
viva voce
evidence would not disturb the balance of
improbabilities appearing from the affidavits, decisions of fact can
properly be founded
on a consideration of the probabilities. This
rule can be employed where disputes of fact have arisen and where an
applicant seeks
to obtain final relief on the basis of the undisputed
facts together with the facts contained in the respondent’s
affidavits
(See Plascon-Evans case (supra) at 634H-635C; Tamarillo
(Pty) Ltd v B N Aitken (Pty) Ltd
1982 (1) SA 398
(A) at 430H-431A;
Rail Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA
359
(CC) at 392 C-G and Yunnan Engineering CC v Charter
2006 (5) SA
571
(T) at 580E-J.)
COMMON
CAUSE FACTS
[17]
These are that:
1.
The applicant, the first and second respondents held an equal
membership interest
of in the third respondent
2.
The applicant provided capital to start the business of the third
respondent.
3.
The business started to generate substantial income in early 2014.
4.
Grave disagreements and feuding between the members surfaced because
of the substantial
income that was generated
5.
Members, because of the access that they had to the business account
with the
fifth respondent, started withdrawing money from the
account.
6.
Names of the applicant and the second respondent were removed from
the register
of the close corporations held by the fourth respondent.
7.
Their membership of the third respondent, as a result, ceased.
8.
They, as a result, also could not access the account.
9.
There was an attempt, by the first respondent, to stop the membership
of the
applicant and the second respondent which was blocked by the
applicant. (The first respondent does not deal with the assertion.)
10.
The first respondent redirects the funds of the third respondent to
an investment account
to which only she has access.
11.
The second respondent was an
inactive member of the third respondent.
12.
The R297 000.00 which is allegedly part of the amount that was
advanced by the applicant
to the third respondent to start the
business of the third respondent has been paid back to the applicant.
13.
The third respondent was formed in order to provide project
management, audit verification
and construction consulting services
to the Department of Human Settlement.
14.
The first respondent remains as the sole member of the third
respondent after the details
of the third respondent have been
successfully amended by the removal of the applicant’s and the
second respondent’s
names as members of the third respondent.
The first respondent now, has 100% interest in the third respondent.
15.
No written proof that the applicant resigned her membership in the
third respondent and
thereby ceasing to be its member has been
produced by the first respondent.
16.
The second respondent has not opposed the application.
[18] As
alluded to above, the issue for determination is whether the
applicant, on her own version, has been unjustly dispossessed
of her
membership in the third respondent or whether she, on the first
respondent’s version, resigned her membership in the
third
respondent against the first respondent’s undertaking to pay
her the value of her membership and thereby lawfully becoming
the
rightful 100% member’-interest holder in the third respondent.
[19] The
applicant contends that the first respondent introduced her version
merely to raise a dispute of fact which, according
to her, does not
exist and is far-fetched.
[20] The
first respondent alleges that she discussed about the third
respondent with the second respondent and thereafter with the
applicant. The agreement reached was that they both would cease being
members of the third respondent and the first respondent
would pay
them the values of their member’s-interest and become the
rightful 100% member’s-interest holder in the third
respondent.
The applicant alleges that she stopped the first respondent’s
first attempt to unlawfully remove her as a member
of the third
respondent. The aspect, as alluded to above, is not dealt with by the
first respondent.
[21] The
applicant further contends that she never stopped being a member of
the third respondent. She specifically denies that
any agreement to
the effect that she ceased to be a member of the third respondent was
ever reached with the first respondent.
It was argued, on her behalf,
that she otherwise would not have stopped the first respondent from
removing her name from the list
of members of the third respondent
with the fourth respondent when the first attempt to do so was made
by the first respondent.
I have already indicated that the first
respondent does not deal with this aspect. The submission, in my
view, seems to have merit.
[22] The
applicant denies that she signed any document or form which would
enable the first respondent to become the rightful 100%
member’s-interest holder in the third respondent. Effectively,
this means that the applicant denies that the signature on
the
document is hers. She challenged the first respondent, in paragraph
26 of her founding affidavit, to provide the documentation
that the
first respondent submitted to the fourth respondent in order to have
the amendment to the membership effected. That, according
to the
applicant, would enable her to verify if, indeed, she signed the
document(s).
[23] The
first respondent in paragraph 4.39 of her answering affidavit states:
‘I shall attempt to obtain copies of these
documents signed by
RHANDANI and MFEKA (The applicant and the second respondent) and hand
same up to court at the hearing’.
This did not happen.
[24] In
paragraph 5 of her supplementary opposing affidavit, the first
respondent confirms that she, indeed, in paragraph 4.39 of
her
opposing affidavit stated that she would attempt to obtain copies of
the resignation documentation which the applicant and
the second
respondent signed. It immediately becomes clear that the first
respondent, for the first time, says that she would obtain
the
documentation from the fourth respondent. She adds that she did not
retain a copy of same. This indeed is strange. The first
respondent
further alleges that she could not get the documentation from the
fourth respondent because the third respondent’s
file first had
to be retrieved from the commission’s storage facility in
Midrand. Why the documents could not be easily retrieved
is not
readily understandable as the amendment to the documentation
pertaining to the third respondent had recently been effected.
Nevertheless, the documents, at that stage, could still not be
produced.
[25] The
first respondent in paragraph 5 of her second supplementary opposing
affidavit refers to her accountant’s letters
marked “B”
and “C”. The most relevant is annexure “C”
which relates to the third respondent’s
financial statements
and VAT which had to be finalized. The document further states that
the applicant wanted to resign from the
respondent but first wanted
to know the third respondent’s financial position. ‘Wasted’
is used instead of ‘wanted’
which, one presumes, ought to
have been ‘wanted’. This document, unfortunately, is not
an affidavit and does not help
the first respondent. It merely
contains hearsay as it was correctly argued on behalf of the
applicant.
[26] The
first respondent in her second supplementary opposing affidavit ,
especially in paragraph 8 thereof, seeks to justify the
non-production of the relevant documentation that she was challenged
to produce by the applicant. Therein she states that Mr. Naidoo,
a
candidate attorney in the employ of the first respondent’s
attorneys of record, could not be assisted by Mr. Mogashoa of
the
CIPC call centre who advised him that it would take 2 to 3 months to
obtain copies of the documents from the third respondent’s
file. Mr. Naidoo, according to her, also could not obtain ‘soft
copies if such are in fact available’. Again, it will
be noted
that Mogashoa’s affidavit does not exist. This does not assist
the first respondent. In any event, the documents,
to date, have not
been produced.
[27] It
is strange that the first respondent, in the midst of such serious
problems, did not keep copies of the necessary and required
documents. One wonders if the first respondent’s version is
probable and convincing. It was argued, on behalf of the applicant,
that the first respondent merely created disputes of fact which do
not exist and are untenable. In view of what I say above, the
submission and argument have merits.
[28] What
is clear is that the two biological sisters and the second respondent
formed the third respondent. The third respondent
started generating
good income. This was followed by disputes, disagreements and feuds
between them.
[29] The
three of them had equal interest in the third respondent and the
second respondent was their sleeping partner. The second
respondent
does not oppose this application. What is said by the first
respondent about the second respondent in light of what
I have said
above becomes questionable. The required documents, to date, have
still not been produced. The fact that the applicant’s
and the
second respondent’s names have been removed as members of the
third respondent, in the absence of the necessary and
required
documents, remains a mystery. The version of the first respondent
regarding the agreement in terms of which the applicant
and the
second respondent ceased to be members of the third respondent
further complicates the matter for the first respondent
in the
absence of the required and necessary documents. This, in my view,
further strengthens the submission, on behalf of the
applicant, that
the version of the first respondent seems to be contrived.
[30] It
was argued, on behalf of the first respondent, that the applicant has
shown no clear right to be entitled to the order she
seeks. A proper
conspectus of the facts of the case reveals that:
1.
The three parties formed the third respondent as alluded to above.
2.
Their interests in the third respondent were equal.
3.
The names of the applicant and the second respondent have now been
removed from
the list of the members of the third respondent as
evidenced by the fourth respondent’s records.
4.
The lawful removal of the names is disputed by the applicant.
5.
To date, it has not been proved that the removal was done lawfully.
6.
The members before the removal of their names, had access to the
account of the
third respondent. The applicant, before the removal of
her name; fully participated in the business of the third respondent.
7.
The members had problems which included financial problems but that
has no bearing
in the determination of the issue before the court.
8.
The first respondent has not properly dealt with the issue of the
removal of
the names.
9.
The first respondent has not sufficiently demonstrated that her
version has substance
and has raised real and genuine disputes of
fact which cannot be resolved on the affidavits.
10.
The applicant has a right to bring the application.
11.
Money has been transferred in circumstances which are questionable.
The applicant therefore
has demonstrated the injury that actually has
been committed and that is reasonably apprehended.
12.
There is no similar adequate alternative remedy than the remedy
covered by the order that
the applicant seeks.
13.
The applicant has, in my view, made out a case to be entitled to the
order that she seeks.
14.
Applying the rules and principles referred to in the cases referred
to above, to the facts
of the case, the application in certain
respects should succeed.
COSTS
[31]
On behalf of the applicant, an application under “further
and/or alternative relief as
this court may deem necessary”,
was brought to enable the applicant to claim costs of the
application. The application was
initially opposed but such
opposition was seemingly later abandoned. The application, in my
view, and in certain respects, ought
to be granted.
[32]
The following order, in the result, is made:
1.
Subject to 2 and 6 below, the first respondent is interdicted and
prohibited
from making any further transactions on the business
banking account of Melco Consulting & Projects CC, account number
[…………]
held with First National Bank,
Carlswald Branch.
2.
The third respondent may make no payment from the business bank
account in any
form or manner unless all the members have consented
thereto in writing.
3.
The first respondent is ordered to provide a full and comprehensive
account of
all of the activities and transactions done on the
aforesaid banking account from 30 April 2015 to date.
4.
It is declared that the removal of the applicant as a member of Melco
Consulting
& Projects CC from the register of companies and close
corporations is unlawful and set aside.
5.
The fourth respondent is ordered to reinstate the name of the
applicant to the
Register of Companies and close corporations within
48 hours of the service of this order on the fourth respondent.
6.
The fifth respondent is ordered to refuse to execute any instruction
in terms
whereof payment is made from the third respondents’
business account referred to in 1 above unless all three members of
the
third respondent jointly instruct it in writing or through any
electronic means to make payment from the account.
7.
The first respondent is ordered to pay the costs of this application.
______________
M.W
MSIMEKI
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
COUNSEL
FOR THE APPLICANT:
ADVOCATE B MANETSA
INSTRUCTED
BY:
KOIKANYANG INC
COUNSEL
FOR THE 1
ST
RESPONDENT:
ADV
WILLIS
INSTRUCTED
BY:
MUTHRAY
&
ASS
INC
DATE
OF
HEARING:
27/05/2015
DATE
OF JUDGMENT: