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[2015] ZAGPPHC 607
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Mfeka v Makondo and Others (35439/2015) [2015] ZAGPPHC 607 (21 August 2015)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 35439/2015
In
the matter between:
THOBILE
MALANIA MFEKA
APPLICANT
And
MAXANGU
COLLET MAKONDO
1
ST
RESPONDENT
RHANDANIE
GIZZLA
MAKONDO
2
ND
RESPONDENT
COMPANIES
AND INTELLECTUAL PROPERTY
3
RD
RESPONDENT
COMMISSION
FIRSTRAND
BANK
LIMITED
4
TH
RESPONDENT
MELCO
COMSULTING AND PROJECTS CC
5
TH
RESPONDENT
JUDGMENT
MSIMEKI
J:
INTRODUCTION
[1]
The applicant who was the second respondent in matter number 52: Case
number 35399/2015, brought this application seeking an
order in the
following terms:
“
1.
The forms and service provided for in the Uniform rules of conduct
are dispensed with
and the application is enrolled and heard as an
urgent application.
2.
The amended founding statement filed on behalf of the fifth
respondent and registered
by the third respondent on the 30
th
of April 2015 is declared to be of no force and effect.
3.
The third respondent is ordered to cancel the registration of the
amended founding
statement that has been declared void by the order
in paragraph [2] above.
4.
The registration of the amended founding statement that preceded the
founding
statement declared void above, and that was registered by
the third respondent on 23 October 2012, is restored.
5.
The third respondent is to amend its records to reflect the applicant
and the
second respondent as members of the fifth respondent each
owning a one-third interest in the fifth respondent.
6.
The fifth respondent may make no payment from the business bank
accounts in any
form or manner unless all the members have consented
thereto in writing.
Alternatively
The
fifth respondent’s founding statement, registered on 23 October
2012, is amended to include a provision that no payment
may be made
from the business bank accounts in any form or manner unless all the
fifth respondent’s members consent thereto
in writing.
Further
alternatively
The
applicant, first and second respondent is (sic) ordered to conclude
an association agreement within 10 days of the granting
of this
order, which agreement must contain a term that no payment may be
made by the fifth respondent from the business bank accounts
unless
all the members have consented thereto in writing.
7.
The fourth respondent is ordered to refuse to execute any instruction
in terms
whereof a payment is made from the fifth respondent’s
business account held under account number [.....] at its Carlswald
branch (hereafter “
the account”
) unless all of the
fifth respondent’s members jointly instructs (sic) it in
writing or through any electronic means to make
a payment from this
account.
8.
The first respondent is ordered to immediately restore to the
applicant access
to the fourth respondent’s Internet banking
facility that allows her to view and transact on the account.
9.
Unless all of the fifth respondent’s members consent thereto in
writing
or through any electronic means provided for by the fourth
respondent’s Internet banking facility, no member may change
the
access details of the Internet banking facility that gives access
to the account.
10.
The first and second and fifth respondent (sic) is (sic) ordered to
produce for the applicant’s
inspection, and to allow the
applicant to make copies of, the following documents within 30 days
of the granting of this order:
a.
The registration documents for the fifth respondent;
b.
The fifth respondent’s full accounting records including the
latest financial
statements certified by the Accounting Officer;
c.
Details of all bank accounts operated in the name of the fifth
respondent and
details of all signatories on the accounts;
d.
Detailed bank statements of each bank account in the name of the
fifth respondent,
since the bank account was opened;
e.
Details of all contracts of employment for all staff;
f.
Full details of salaries or drawings being paid to Rhandani Mokondo
and
Collet Mokondo month by month since the inception of the fifth
responded;
g.
Details and confirmation of the registration of the fifth respondent
with SARS
for VAT, PAYE, UIF, SDL and Income Tax;
h.
Copies of all returns submitted to SARS since the fifth respondent
commenced
trading;
i.
Copies of all loan agreements entered into by the fifth respondent
with
any parties and the necessary resolutions authorizing such
loans. This should include both loans receivable and loans
payable;
j.
Copies of all contracts with subcontractors or consultants;
k.
Copies of all vouchers for payments to consultants since inception
that exceed
R10 000;
l.
Copies of any tender documents submitted and awarded;
m.
Copies of sales contracts and all sales invoices for the past 18
months.
11.
The relief sought in prayer [13] below is postponed sine die to allow
the applicant an opportunity
to employ an auditor and/or accountant
and/or any person with the necessary expertise to determine the value
of a one-third interest
in the fifth respondent.
12.
The applicant may supplement this application by filing an affidavit
or affidavits that
deal with the market value of the one-third
members’ interest.
13.
The first and second respondent is (sic) ordered to purchase the
applicant’s one-third
members’ (sic) interest in the
fifth respondent at the determined market value thereof.
14.
The first respondent and fifth respondent is (sic) ordered to pay the
costs of the application
jointly and severally.
15.
Further and/or alternative relief.
[2]
Mr. J J Louw, Mr. R S Willis and Adv B Manetsa represented the
applicant, the first respondent and the second respondent
respectively.
The second respondent did not oppose the application.
BRIEF
FACTS
[3]
On 1 September 2010 the applicant as a sole member registered the
fifth respondent as Khatini Catering with registration number
2010/122880/23. The first and the second respondents joined the
applicant and the name of the fifth respondent was changed from
Khatini Catering to Melco Consulting and Projects CC. The applicant
disposed of her two-thirds interest in Khatini Catering to
the first
and second respondents in equal parts. The first and the second
respondents, resultantly, acquired a one-third member’s
interest in the fifth respondent. Their membership was recorded by
the third respondent on 23 October 2012. While the principal
business
of the fifth respondent, according to CIPC is “general trading
in all aspects” the main business objective
of the fifth
respondent was, and according to the applicant still is, “to
provide civil and construction consulting services
to state
institutions.” The fifth respondent, according to the
applicant, started trading since October 2012 and generated
its first
income during or about January 2013. The applicant was a “sleeping
partner”. The applicant, however, together
with the first and
second respondents, had access to the bank account of the fifth
respondent and could check the fifth respondent’s
bank
statements. And just like the others, she could transact on the bank
account. The applicant contends that she, during November
2014, while
perusing the bank statements, noticed that deposits were made into
the account of the fifth respondent but that SARS
did not appear to
be paid. She alleges that she transferred R599 000.00 into her
own bank account to ensure that SARS was
paid. The first and second
respondents demanded that the money be repaid. She has done so. She
contends that the first and second
respondents failed to furnish her
with details relating to the fifth respondent’s financial
affairs. During the week of 11
to 15 May 2015, after the second
respondent informed her that her access to the account had been
blocked, she discovered that she
too no longer had the access. She
also discovered that her and the second respondents’ names had
been removed from the third
respondent’s register. The search
by her attorney revealed that the first respondent owned 100% of the
members interest in
the fifth respondent since 30 April 2015 and that
the two of them had allegedly resigned as members. Annexure “A”
which
is the CIPC search reveals this. The applicant contends that
she never disposed of her member’s interest in the fifth
respondent
to the first respondent. She denies that she signed an
amended founding statement (a CK 2 form) giving notice that she was
disposing
of her member’s interest. She also denies that she
resigned as a member of the fifth respondent. She instructed no one
to
sign on her behalf. She contends that someone must have fabricated
the amended founding statement and resignation form. This, in
the
main, means that the signatures wherever they appear cannot be hers.
She alleges that the relief that she seeks ought to be
granted
because she seems to have picked up financial irregularities which
are indicative of the fact that something wrong must
be happening to
the money that the fifth respondent receives. There are withdrawals
and transactions which, according to the applicant,
are in
contravention of
Section 52
(1) (a) of the
Close Corporations Act 69
of 1984
as she neither consented nor gave consent to the giving of
any loans to her fellow members. She further contends that the first
respondent seems to be making payments to herself. The first
respondent admits that she transferred money from the fifth
respondents
account to an investment account. The bank statements
before her access to the account was blocked did not show that
unemployment
insurance fund contributions were made or that any
payment was made to SARS. The bank statements, according to her,
reveal dubious
transactions. This, according to her, is to her
detriment. Certain of the amounts that were paid from the bank
account, according
to her, do not seem to be loan repayments. Because
the amounts involved are large, the applicant contends that she
requested the
first and second respondents to allow her to have sight
of the financial records of the fifth respondent. This did not
happen.
Her request for a meeting of members to have the issues
discussed and resolved also fell on deaf ears. She alleges that her
attorney’s
formal request for documents which could allay her
concerns remains unanswered. The applicant contends that the conduct
that she
complains of together with what she perceives to be
financial irregularities constitute unfair, prejudicial, unjust
and/or inequitable
conduct to her. The application therefore seems to
be based on
Section 49
(1) of the
Close Corporations Act 69 of 1984
.
[4]
The first respondent contends that the applicant and the second
respondent, in her absence, and when she was away in Umtata
running a
project which the fifth respondent had got, acted in concert against
her and planned their assault on her. This, because
she contends that
they brought their applications against her at almost the same time
and gave her very limited time within which
to attend to the matters.
Her version is that, as a qualified surveyor, she worked for
different companies before deciding to set
up her own project
management and audit verification services business. She took the
second respondent on board so that, as she
puts it, she (the second
respondent) would use her administerial strengths to administer the
office and business affairs. The second
respondent introduced her to
the applicant who was a member of a dormant Close Corporation. The
applicant tendered the Close Corporation
which they decided to use
“as a vehicle in which to mount an all women business”.
The applicant, according to her,
alleged that she was in a position
to procure business which could be in line with what the first
respondent was doing. She confirms
that the dormant close corporation
was revived. Its name was changed to Melco Consulting and Projects CC
which is the fifth respondent.
She further confirms that the three of
them had equal member interest in the fifth respondent and that the
applicant was “a
sleeping partner”. Her version is
further that she would be employed as the managing member of the
fifth respondent while
the second respondent would be responsible for
the administrative and secretarial part of the business which would
include managing
the bank account. The first respondent would manage
the project and attend to site work. The applicant, according to her,
would
only participate in business profits as a member and would also
procure business for the fifth respondent. The second respondent,
according to her version, would receive a salary of R22 500.00
per month as a salaried employee. The first respondent would
draw an
aggregate salary of R100 000.00 per month as soon as the
business was in a position to afford that.
[5]
The first respondent confirms that all three members had access to
the fifth respondent’s bank account. She further confirms
that
the business which was run from her home picked up and the fifth
respondent’s income started flowing in in early 2014.
The first
respondent contends that the Umtata Project generated substantial
income for the fifth respondent and that she is “the
sole
professional resource that generates the actual income” for the
fifth respondent.
[6]
The first respondent explains that she drew no salary at all for
approximately the first 20 months. She then explains when she
made
her drawings giving the amounts that she drew some of which are
substantial amounts. She, however, does not say that the applicant
was involved when the amounts were so withdrawn. She also does not
tell the court that the second respondent approved the withdrawals.
She only tells the court that the second respondent was aware of the
withdrawals that she made. Because the three members had access
to
the fifth respondent’s bank account with the fourth respondent
they all started withdrawing money from the account and
various
reasons were offered for such withdrawals or transfers. This appears
to have resulted in the disagreements and the feuding
between the
members that I referred to above.
[7]
The first respondent contends that she had contact with the applicant
and the second respondent who agreed to move out of the
fifth
respondent leaving her with 100% member’s interest. She further
contends that the two, applicant and the second respondent,
signed
documents which enabled her to achieve this. The first respondent has
been challenged to produce these documents but has
failed to do so
notwithstanding her undertaking “to attempt to obtain from the
Commission copies of the registration documentation
which Mfeka and
Rhandani signed”. This, because she “did not retain a
copy of same”. The first respondent undertook
to place the
documentation before the court in the event that she obtained the
copies from the Commission before or during argument.
This appears in
paragraphs 4.39 of her opposing affidavit, paragraphs 5 and 6 of her
supplementary opposing affidavit and paragraph
3 of her second
supplementary opposing affidavit.
[8]
Paragraph 6 of the supplementary opposing affidavit relates to the
affidavit of Mr. Naidoo of her attorney’s office. Mr.
Naidoo,
in his confirmatory affidavit, discloses that the Commission was
unable to provide him with the necessary and required
documents
because “the file for Melco Consulting has first to be
retrieved from the commission’s storage facility in
Midrand”.
This is hearsay evidence as same is not supported by an affidavit by
a member of the Commission. The documents,
notwithstanding the
applicant’s and the second respondent’s averments that
they did not resign as members of the fifth
respondent and that they
signed no documents which would have enabled the third respondent to
remove their names from the records
relating to the fifth respondent,
have to date, not been produced and furnished.
[9]
The issue to be resolved is whether the applicant and the second
respondent, indeed, intended to resign as members of the fifth
respondent and whether they, indeed, signed the documents which
enabled the third respondent to remove their names from the list
of
members of the fifth respondent and leaving the first respondent as
the sole member.
[10]
The applicant and the second respondent denied that they resigned.
They further deny that they signed any document or authorized
any
person to sign the documents on their behalf.
[11]
It is strange that the first respondent could submit the documents to
the third respondent without retaining copies thereof.
It is further
strange that it would be difficult to retrieve the documents when the
amendments were recently made. The failure
by the first respondent to
obtain an affidavit from someone from the Commission’s office
is inexplicable. This then strengthens
the applicant’s version
that she neither resigned nor signed documents which enabled the
third respondent to remove the names
of the applicant and the second
respondent from the list of names of the members of the fifth
respondent.
[12]
It was argued on behalf of the first respondent that a dispute of
fact had arisen which could not be resolved on the papers.
The
argument, on behalf of the applicant, is that no serious or genuine
dispute of fact has arisen. The first respondent, it was
further
argued, merely produced a version which is far-fetched and untenable
warranting its rejection merely on the papers. There
seems to be
merit in the submission.
[13]
Courts, in a number of cases, have from time to time said that where
a court is satisfied that there is no real and genuine
dispute on the
fact 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 probabilities appearing from the affidavits,
decisions of fact can properly be founded
on a consideration of the
probabilities. It has also been said that where a respondent intends
to raise as serious matter such
matter must be based on fact not
rumour, innuendo or inference based only on speculation.
(See
Plascon-Evans Paints (Pty) Ltd v Van Reibeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-635C and Peterson v Cuthbert Co Ltd
1945 AD
420
at 429; Wightman t/a JW Construction v Headfour (Pty) Ltd and
Another 2008 (3) SA 371 (SCA) at 375 paragraphs [12] and [13] and
Erasmus: Superior Court Practice at B1-48D and B1-49.)
[14]
It has also been said that 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 the 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 869
(W) at 698H-I
and Rosen v Ekon
2001 (1) SA 199
(W) at 215B-D).
[15]
Having regard to the facts of the case and applying the principles
and rules referred to in the cases referred to above, it
becomes
clear that the first respondent’s version that the applicant
and the second respondent resigned as members of the
fifth respondent
and that they, accordingly, signed the documents which enabled the
third respondent to remove their names from
the list of names of the
members of the fifth respondent cannot be regarded as a version which
raises a genuine and a serious dispute
of fact. If that were so, the
documents that have been called for, would by now, have been produced
and furnished.
[16]
I have allowed the supplementary and the second supplementary
opposing affidavits in the interest of justice. As shown above,
the
affidavits do not advance the first respondent’s case and they
further do not change the fact that the dispute of fact
which is said
to have been raised can simply be rejected on the papers.
[17]
The applicant, by virtue of her membership in the fifth respondent,
and based on
section 49
of the
Close Corporations Act 69 of 1984
, has
established a clear right which entitles her to bring this
application. Money has been transferred in circumstances which
are
questionable and dubious. The applicant, in my view, has demonstrated
that there is injury that has actually been committed
and that is
reasonably apprehended. It must also be borne in mind that the
applicant contends that she has to date received nothing
from the
fifth respondent. There appears to be no similar adequate alternative
remedy available to the applicant than the remedy
which in certain
respects is covered by the order that the applicant seeks. The
conduct of the first respondent, it appears to
me, has been
prejudicial, unjust, inequitable to the applicant who needs
protection by way of an order.
[18]
The application, which I have already found to be urgent, should, in
certain respects, in my view, succeed as evidenced by
the order
below.
COSTS
[19]
It will not, in my view, be just and equitable to order the fifth
respondent to pay the costs of this application which the
first
respondent alone should bear.
[20]
The following order, in the result, is made:
1.
The amended founding statement filed on behalf of the fifth
respondent and registered
by the third respondent on 30 April 2015 is
declared to be of no force and effect.
2.
The third respondent is
ordered to cancel the registration of the amended founding
statement
that has been declared void by the order in paragraph [1] above.
3.
The registration of the amended founding statement that preceded the
founding
statement declared void, and that was registered by the
third respondent on 23 October 2012, is restored.
4.
The third respondent is ordered to amend its records to reflect the
applicant
as a member of the fifth respondent owning a one-third
interest in the fifth respondent.
5.
The fifth respondent may make no payment from the business bank
accounts of the
fifth respondent in any form or manner unless all the
members have consented thereto in writing.
6.
The fourth respondent is ordered to refuse to execute any instruction
in terms
whereof payment is made from the fifth respondent’s
business bank account held under account number [.....] at its
Carlswald
branch (hereafter “
the account”
) unless
all of the fifth respondent’s members jointly instruct it in
writing or through any electronic means to make payment
from this
account.
7.
The first respondent is ordered to immediately restore to the
applicant access
to the fourth respondent’s Internet banking
facility that allows her to view and transact on the account.
8.
Unless all of the fifth respondent’s members consent thereto in
writing
or through any electronic means provided for by the fourth
respondent’s Internet banking facility, no member may change
the
access details of the Internet banking facility that gives access
to the account.
9.
The first, second and the fifth respondents are ordered to produce
for the applicant’s
inspection, and to allow the applicant to
make copies of, the following documents within 30 days of the
granting of this order:
a.
The registration documents for the fifth respondent;
b.
The fifth respondent’s full accounting records including the
latest financial
statements certified by the Accounting Officer;
c.
Details of all bank accounts operated in the name of the fifth
respondent and
details of all signatories on the accounts;
d.
Detailed bank statements of each bank account in the name of the
fifth respondent,
since the bank account was opened;
e.
Details of all contracts of employment for all staff;
f.
Full details of salaries or drawings being paid to Rhandani Makondo
and
Collet Makondo month by month since the inception of the fifth
respondent;
g.
Details and confirmation of the registration of the fifth respondent
with SARS
for VAT, PAYE, UIF, SDL and Income Tax;
h.
Copies of all returns submitted to SARS since the fifth respondent
commenced
trading;
i.
Copies of all loan agreements entered into by the fifth respondent
with
any parties and the necessary resolutions authorizing such
loans. This should include both loans receivable and loans
payable;
j.
Copies of all contracts with subcontractors or consultants;
k.
Copies of all vouchers for payments to consultants since inception
that exceed
R10 000;
l.
Copies of any tender documents submitted and awarded;
m.
Copies of sales contracts and all sales invoices for the past 18
months.
10.
The remaining members of the fifth respondent and/or the fifth
respondent, once the third
respondent has amended its records to
reflect the applicant as a member of the fifth respondent owning
one-third interest in the
fifth respondent, are ordered to purchase
the applicant’s one third member’s interest in the fifth
respondent at the
determined market value thereof.
11.
Before paragraph 10 (above) takes effect, the applicant must be
allowed to employ an auditor
and/or accountant and/or any person with
the necessary expertise to determine the value of a one third
interest in the fifth respondent.
12.
The applicant may supplement this application by filing an affidavit
or affidavits that
deal with the market value of the one-third
member’s interest.
13.
The first respondent is ordered to pay the costs of the application.
______________
M.W
MSIMEKI
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
COUNSEL
FOR THE APPLICANT:
ADVOCATE J J LOUW
INSTRUCTED
BY:
BAGRAIM SACHS INC
COUNSEL
FOR THE 1
ST
RESPONDENT:
ADV
WILLIS
INSTRUCTED
BY:
MUTHRAY
&
ASS
INC
COUNSEL
FOR THE 2
ND
RESPONDENT
ADV
B
MANETSA
DATE
OF
HEARING:
27/05/2015
DATE
OF JUDGMENT: