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[2014] ZAGPPHC 374
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A.H v A.H and Another (52044/2013) [2014] ZAGPPHC 374 (16 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
52044/2013
DATE:
16 MAY 2014
In
the matter between:
A.
H.
APPLICANT
(ID:………………………….)
and
A.
H.
1
ST
RESPONDENT
(ID:………………………….)
LOSKOP PLASTIEK PYPE
CC
2
ND
RESPONDENT
(REG
NO: CK96/58831/23)
CORAM:
DE
VRIES
AJ
JUDGMENT
1.
In
this matter the Applicant applies for a final interdict against the
1
st
Respondent, prohibiting her from effecting any payments not
authorised by the Applicant from the account of the 2
nd
Respondent.
2.
The
1
st
Respondent apposes this Application and brings a counter application
in the following terms:
2.1
That
pendente
lite
the
adjudication of the divorce action between the Applicant and the 1
st
Respondent under case number 6511/2012, both the Applicant and the
1
st
Respondent are interdicted and restrained from disposing or dealing,
in any way, with any assets and/or funds of the 2
nd
Respondent, except in the normal day-to-day running of the business,
in the absence of the expressed consent of the other;
2.2
That
Danie Sauer Auditors, with business address at corner of West-and
Cowen Ntuli Streets, Middelburg, Mpumalanga, is requested
and
authorised to conduct a forensic financial audit on the 2
nd
Respondent and to obtain all information and documents required for
the purpose thereof;
2.3
The
Applicant and the 2
nd
Respondent are ordered to provide all information and documents
requested by Danie Sauer Auditors for purposes of the aforementioned
audit;
2.4
That
the costs of the forensic audit be paid by the 2
nd
Respondent;
2.5
That
the Applicant, should the counter application be opposed, be ordered
to pay the 1
st
Respondent’s costs.
FACTUAL
BACKGROUND
3.
The
Applicant and the 1
st
Respondent each hold a 50% interest in the 2
nd
Respondent, a close corporation.
4.
Divorce
proceedings are pending between the Applicant and the 1
st
Respondent.
5.
The
2
nd
Respondent conducts a successful business with an annual turnover of
R 10 000 000.00 per annum (1
st
Respondent avers that the turnover is R 15 000 000.00 per annum).
6.
The
day-to-day running of the 2
nd
Respondent is attended to by the Applicant, the 1
st
Respondent not having been involved with the day-to-day running of
the 2
nd
Respondent since 2007 due to other business commitments.
7.
Both
the Applicant and the 1
st
Respondent have signing authority on the bank account of the 2
nd
Respondent.
THE
DISPUTE:
8.
Applicant
avers that the 1
st
Respondent drew the following amounts from the account of the 2
nd
Respondent:
8.1
On 11 January 2012
R 15 000.00;
8.2
On 13 January 2012
R 6 000.00;
8.3
On 13 January 2012
R 5 000.00;
8.4
On 19 January 2012
R 10 000.00;
8.5
On 12 March 2012
R 5 000.00;
8.6
On 22 March 2012
R 5 000.00;
8.7
On 25 April 2012
R 5 000.00;
8.8
On 11 May 2012
R 5 000.00;
8.9
On 16 May 2012
R 20 621.00;
8.10
On 6 August 2012
R 5 000.00;
8.11
On 6 August 2012
R 3 000.00;
8.12
On 12 September 2012
R 5 000.00;
8.13
On 22 September 2012
R 5 000.00;
8.14
On 29 September 2012
R 5 000.00;
8.15
On 10 October 2012
R 5 000.00;
8.16
On 2 November 2012
R 5 000.00;
8.17
On 12 November 2012
R 5 000.00;
8.18
On 23 November 2012
R 5 000.00;
8.19
On 4 December 2012
R 30 000.00;
8.20
On 13 December 2012
R 5 000.00;
8.21
On 12 February 2013
R 5 000.00;
8.22
On 9 March 2013
R 5 000.00;
8.23
On 30 May 2013
R 5 000.00;
8.24
On 29 June 2013
R 2 000.00.
9.
Apart
from these withdrawals, the Applicant complains that the 1
st
Respondent is frustrating the business activities of the 2
nd
Respondent by refusing to sign the 2
nd
Respondent’s financial statements or the minutes of meetings.
The Applicant further contends that attempts have been made
to settle
their differences without success.
10.
No
mention is made by the Applicant of the Respondent’s loan
account or capital account in respect of the close corporation,
indicating that the withdrawals as enumerated were in fact unlawful.
11.
The
1
st
Respondent in her opposing affidavit indicates that both the
Applicant and the 1
st
Respondent, from time to time, withdrew money as they saw fit for
personal expenses and to maintain the children born of the marriage.
12.
The
1
st
Respondent further alleges that the Applicant disposes and deals with
the assets and funds of the 2
nd
Respondent without her knowledge or consent.
13.
With
regard to the failure to sign financial statements, the Respondent
alleges that she has been denied access to the accounts
and records
of the 2
nd
Respondent, which she has not had the opportunity of inspecting or
verifying.
14.
The
1
st
Respondent further alleges that the Applicant transferred funds from
the account from the 2
nd
Respondent as follows:
14.1
26 June 2013
R 380 000.00;
14.2
13 September 2013
R 100 000.00;
14.3
30 September 2013
R 500 000.00; and annexes bank statements evidencing these debits
against the bank account of the 2
nd
Respondent.
15.
In
response to the allegation that the Applicant has withdrawn large
sums of money from the account of the 2
nd
Respondent, the Applicant in reply alleges that these were simple
transfers to another account of the 2
nd
Respondent without annexing any documentary proof of the veracity of
his statement.
16.
The
1
st
Respondent, in her affidavit, although opposing the Application,
states:
“
I
have no objection to the relief prayed for by the Applicant, being
granted, as long as the same relief is granted to me, as holder
of
the other 50% membership interest in the 2
nd
Respondent.”
JUDGEMENT
17.
In
view of the factual disputes on the papers, the Court would, in the
normal course of events, have dismissed the Application and
counter-application by virtue of the lack of essential averments to
sustain the prayers sought.
18.
Section
49 of the Close Corporation Act however enjoins a Court, in the event
of allegation of conduct which is unfairly prejudicial,
unjust or
inequitable to make such an order as is just and equitable with a
view to settling the dispute, whether for regulating
the future
conduct of the affairs of the corporation or for the purchase of the
interest of any member of the corporation by other
members thereof or
by the corporation.
19.
As
illustration of the deficiencies in the papers, the counter-claim
enjoins the Court to make an order in terms of which a firm
of
chartered accountants is to carry out a forensic audit, without any
indication on the papers that the said firm is prepared
to carry out
such an instruction.
20.
In
order to give effect to what has been set out herein before the Court
makes the following order:
20.1
The
Applicant and the 1
st
Respondent are prohibited from making any withdrawals from the
account of the 2
nd
Respondent, other than in the normal course of business, until
adjudication of the divorce under case number 6511/2012;
20.2
The
accounting officers of the 2
nd
Respondent must authorise all payments, made pursuant to this order,
as being in the normal course of the business of the 2
nd
Respondent;
20.3
The
Applicant grants free access to the 1
st
Respondent to the accounting records of the 2
nd
Respondent for perusal by her personally or any accountant nominated
by her to do such an inspection on her behalf;
20.4
Each
party is ordered to pay their own costs.
________________________________
DE VRIES, AJ
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA
Representation
for the Applicant:
Counsel
Adv: C Rip
Instructed
by
Representation
for respondent:
Counsel
Adv: J J Greef
Instructed
by: