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[2014] ZAGPPHC 320
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Stroebel and Another v Mooiriver Mall (Pty) Ltd (68585/2013) [2014] ZAGPPHC 320 (3 June 2014)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
68585/2013
DATE: 3 JUNE 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In
the matter between:
ALIDA
MAGDALENA
STROEBEL
......................................................................
FIRST
APPLICANT
MARLO
STROEBEL
..........................................................................................
SECOND
APPLICANT
and
MOOIRIVER
MALL (PTY)
LTD
...................................................................................
RESPONDENT
JUDGMENT - LEAVE
TO APPEAL
KUBUSHU
[1] The applicants
in this matter seek leave to appeal against the whole judgment
I delivered on 18 February 2014 in terms
of which summary
judgment under case number 68585/2013 was granted against them.
[2] The applicants
also seek an order that leave be granted to a full bench of the High
Court of the Gauteng Division, Pretoria
and further that the costs of
this application be costs in the appeal.
[3] The appeal
emanates from an opposed summary judgment application wherein
I granted summary judgment in favour of the respondent
and
refused the applicants leave to defend the matter. The
Respondent was claiming summary judgment for payment of a
debt
against the members of Redwood Falls Trading 127 CC trading as
Juicy Lucy CC (the CC). According to the respondent the
CC was
finally deregistered on 15 July 2011. The debt due arose from a
rental agreement between the respondent and the
CC and the
respondent is holding the applicants liable for the debt on the
ground that they were the members of the CC
at the time the CC
was so deregistered. On the contrary the applicants were
opposing the application on the basis that there
was an appeal
pending against the judgment granted against the CC in the
magistrates' court and that the CC was not deregistered
but
under liquidation.
[4] In their
application for leave to appeal, the applicants raised the following
factual and legal grounds:
4.1 The failure by
the court below to consider, alternatively to properly consider
the fact that the applicants contended that
the basis for
the respondent's claim represents the alleged contract between
the respondent and the CC. The validity
of this alleged
agreement is in dispute and in the absence of a binding
agreement no liability can be attributed to the
applicants.
4.2 The failure by
the court below to consider, alternatively to properly consider
the fact that the status of the CC needs
to be determined as of fact.
The CC cannot be deregistered under circumstances where the CC is in
liquidation. The liability
of the applicants remains in question
under circumstances where the CC is in liquidation and not in a
state of deregistration.
4.3 The failure by
the court below not to consider, alternatively properly consider the
fact that the applicants do not need to
prove the defences raised
but only that the defences are indeed bona fide and that the defences
will represent defences
to the claim of the respondent, if proven
at the trial.
[5] The reasons for
my judgment were specifically based on the last ground raised by
the applicants even though it also incorporated
the two other
grounds. I concluded in my judgment that I was not satisfied
that the applicants have not fully disclosed
the nature of the
grounds of their defence on the basis that there was no evidence
before me that the appeal on which they
relied for their defence
will be prosecuted. The striking of the appeal from the roll has
the effect of discontinuing
the appeal and as such the judgment
against the CC is not suspended.
[6] I concluded also
that there was no evidence that the CC was under liquidation
as suggested by the applicants on the basis
that no evidence was
tendered by the applicants to that effect nor was there any sort
of confirmation from the liquidator
that indeed the CC was under
liquidation or that the applicants have approached the
liquidator to handle the appeal.
[7] The contention
by the applicants' counsel, is that the status of the CC
requires determination before it could be concluded
that the
applicants are liable for the liabilities of the CC. Counsel's
argument is that the applicants were not expected at
this stage
of the proceedings to prove their defence, they merely had to state a
case which will represent defences to the
claim of the respondent if
proven at the trial and as such the applicants should be given
an opportunity to ventilate their
defence and to prove their
defence at trial.
[8]
To the contrary the respondent's counsel contended in argument that
the status of the CC will not assist the applicants
because even
upon restoration of the CC the members remain liable. He
referred me to the judgment in
Commissioner South
African Revenue Service v Mendes
2001
(4) SA 934
at 937E as authority that the liability of members of
a CC remains intact despite restoration. The court in that case
concluded that although in terms of s 26 (7) of the Close Corporation
Act(the Act) the effect of restoration of registration
of a CC is
that the CC is deemed to have continued existence as from the
date of deregistration as if it were never deregistered,
however, that does not mean that the member's liability
previously attracted is extinguished. This being so, according to
that court, because the legislation does not provide either
expressly or by implication for the extinction of the member's
liability once having arisen by operation of s 26 (5) of the
Act.
[9] My view is that
the status of the CC, whether the CC was registered or liquidated,
is pertinent to the determination of
whether the applicants are
liable for the debts of the CC or not. Having concluded that the
applicants are liable for
the debts of the respondent on the
basis of deregistration and/or reregistration it is my opinion
that there are prospects
of success that another court may come
to the conclusion that the CC was under liquidation.
[10] Accordingly I
make the following order:
10.1 Leave to appeal
to the full bench of the High Court Gauteng Division, Pretoria
is granted.
10.2 The costs of
this application are to be costs in the appeal.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
Appearances:
HEARD
ON THE : 29 MAY 2014
DATE
OF JUDGMENT : 3 JUNE 2014
PLAINTIFFS'
COUNSEL : ADV D H WINJBEEK
PLAINTIFFS'
ATTORNEY : BEN GROOT ATTORNEYS INC
DEFENDANTS'
COUNSEL : ADV L K VAN DER MERWE
DEFENDANTS'
ATTORNEY : CAWOOD ATTORENYS