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[2013] ZANCHC 12
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Snyman NO v Limani and Others (1790/2012) [2013] ZANCHC 12 (7 June 2013)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case No: 1790/2012
Heard: 19/04/2013
Delivered: 07/06/2013
In
the matter between:
LIHANNA ISABELLA SNYMAN N.O
...............................
First
Applicant
JOHANNES
HENDRICK SNYMAN
..............................
Second
Applicant
v
MINA LIMANI
..........................................................
First
Respondent
REGISTRAR
OF CLOSE CORPORATIONS
...............
Second
Respondent
MASTER
OF THE HIGH COURT
.................................
Third
Respondent
JUDGMENT
MAMOSEBO AJ
INTRODUCTION
[1] The first applicant, Lihanna
Isabella Snyman, is the executrix of the estate of the late Hendrik
Tjaart Snyman (Snyman Snr),
appointed as such on 02 July 2012 under
letters of executorship 1589/2012. The second applicant is Johannes
Hendrik Snyman (Snyman
Jnr), a major business man and the son of
Snyman Snr. The first respondent is Mrs Mina Limani, executrix of the
estate of the late
Mr Limani, appointed as such on 02 February 2010
under letters of executorship 299/2010. She was married to the late
Mr Limani.
The second respondent is the Registrar of Close
Corporations, DTI Campus, Block F, Entfutfukweni, 77 Meintjies
Street, Sunnyside,
Pretoria. The third respondent is the Master of
the High Court, Northern Cape, Sol Plaatjie Street, Kimberley. Legal
argument was
only presented on behalf of Mrs Limani, of all the
respondents.
[2] In terms of the notice of motion
the Snymans are asking the court to grant them an order in these
terms:
2.1.
In terms of s35(a) of Act 69 of 1984 Mrs Limani be ordered to attend
to the signature of the CK2 document in respect of Postmasburg
Steenwerke CC (Steenwerke CC) (CK1995/005728/23) and thereby
transferring the 5% interest of the late Mr Limani in Steenwerke CC
to Snyman Jnr. Failing which the sheriff of this Court be authorized
to sign the transfer documents on Mrs Limani’s behalf.
2.2.
Alternatively,
that
it be declared that in terms of s 36(1) (d) of Act 69 of 1984, the
late Mr Limani has ceased to be a member of Postmasburg
Steenwerke
CC.
2.3.
That the costs be borne by Mrs Limani.
The background
[3] Snyman Snr established
Steenwerke CC, a brick making business, in 1995. He was initially the
sole member with a 100% member’s
interest. Mr Limani became the
second member of the corporation on 12 April 2005 with a 5% member’s
interest while Snyman
Snr retained 95% of the member interest. Mrs
Snyman sums up how Mr Limani acquired the 5% member interest as
follows:
“
During 2005, as a gesture
of goodwill and in an attempt to become compliant with transformation
policies, the deceased [Snyman Snr]
transferred 5% of the membership
interest in the CC to Limani. The Court is again referred to Annexure
C hereto. Limani, however,
was still employed as a general worker and
received a salary from the CC.”
Annexure ‘C’ is the
Certificate issued by the Registrar of Companies and Close
Corporations.
[4] Mr Limani passed away on 18
January 2010. Mrs Limani was then appointed executrix in his estate.
Snyman Snr passed away on 26
May 2012. Mrs Snyman, his widow, was
appointed executrix in his estate. At the time of Snyman Snr’s
death, Mr Limani still
owned the 5% member interest.
[5] This application is brought by
the applicants based on s35 (a) and (b) and in the alternative, s36
(1) (d). These sections provide:
35(a)
Disposal of
interest of deceased member –
“
Subject to any
other arrangement in an association agreement, an executor of the
estate of a member of a corporation who is deceased
shall, in the
performance of his or her duties-
Cause the deceased member’s
interest in the corporation to be transferred to a person who
qualifies for membership of a
corporation in terms of section 29 and
is entitled thereto as legatee or heir or under a redistribution
agreement, if the remaining
member or members of the corporation (if
any) consent to the transfer of the member’s interest to such
person; or
If any consent referred to in
paragraph (a) is not given within 28 days after it was requested by
the executor, sell the deceased
member’s interest-
To the corporation, if there is
any other member or members than the deceased member;
To any other remaining member or
members of the corporation in proportion to the interests of those
members in the corporation
or as they may otherwise agree upon; or
To any other person who
qualifies for membership of a corporation in terms of section 29 in
which case the provisions of subsection
(2) of section 34 shall
mutatis mutandis apply in respect of any such sale.
36
Cessation of
membership by order of court –
(1) On application by a member of
a corporation a court may on any of the following grounds order that
any member shall cease to
be a member of the corporation:
(a) subject to the provisions of
the association agreement (if any), that the member is permanently
incapable, because of unsound
mind or any other reason, of performing
his or her part in the carrying out of the business of the
corporation;
(b) that the member has been
guilty of such conduct as taking into account the nature of the
corporation’s business, is likely
to have a prejudicial effect
on the carrying on of the business;
(c) that the member so conducts
his or her in matters relating to the corporation’s business
that it is not reasonably practicable
for the other member or members
to carry on the business of the corporation with him or her; or
(d) that circumstances have
arisen which render it just and equitable that such member should
cease to be a member of the corporation:
Provided that such application to
a court on any ground mentioned in paragraph (a) or (d) may also be
made by a member in respect
of whom the order shall apply.”
(2) A court granting an order in
terms of subsection (1) may make such further orders as it deems fit
in regard to-
(a) the acquisition of the
member’s interest concerned by the corporation or by members
other than the member concerned; or
(b) the amounts (if any) to be
paid in respect of the member’s interest concerned or the
claims against the corporation of
that member, the manner and times
of such payments and the persons to whom they shall be made; or
(c) any other matter regarding
the cessation of membership which the court deems fit.”
[6] Counsel for the Snymans, Ms
Stanton, initially argued this matter with reference to the said
provisions in the Act in conjunction
with the sale agreement.
However, after argument was presented by Counsel for Mrs Limani, Ms
Stanton in reply abandoned the argument
pertaining to the agreement
and confined herself to sections 35 and 36 of the Act. She contends
that this application is not about
the existence of an association
agreement or whether the unsigned sale agreement is an original or
not but it is based on what
the effect of provisions of sections 35
and 36 of the Act entail.
[7] This argument by Ms Stanton
clearly misses the point because the very same sections permit the
creation of an association agreement.
If they are read with s44 (2)
of the Act then it defies the rules of interpretation to argue in
complete disregard of an essential
document of a corporation like an
association agreement.
[8] It was further argued by Ms
Stanton, in somewhat contradictory fashion, that Snyman Snr and Mr
Limani entered into a written
association agreement which was signed
by both; and that notwithstanding a diligent search the signed
original or a copy thereof
could not be traced. An unsigned copy of
this alleged sale agreement has been attached as Annexure ‘E’
to the Snymans’
papers. Mr Moller, who had presumably drafted
this agreement and has made a confirmatory affidavit, confirms that
Snyman Snr has
complied with his side of the agreement by making a
Momentum Policy payment of R126 500,00 to Mrs Limani. This
payment aspect
is vehemently disputed by Mrs Limani. She says that
the policy matured while Mr Limani was still alive and was paid out
during
his (Mr Lumani’s) lifetime.
[9] Mr Limani’s 5% member
interest has allegedly been valued by an accountant and an
independent valuator commissioned by
the Snymans’ at R73 174,
70 on 29 September 2011. Clause 5.2 of the purported purchase and
sale agreement (“koop
en verkoopooreenkoms”) marked
Annexure ‘E’, said to have been entered into between
Snyman Snr and Mr Limani,
reads as follows:
“
Die waarde van ʼn lid
se belang en vordering kan van tyd tot tyd wissel en die lede moet
binne ʼn tydperk van nie meer as
12 maande na datum van
ondertekening van hierdie kontrak, en ook elke jaar daarna, dit wil
sê, binne ʼn tydperk van 12
maande gereken vanaf ʼn
vorige datum, ʼn waardasie van die lede se belange en vorderings
doen of laat doen en die geldwaardes
aldus vasgestel, in die bylae
aanteken of laat aanteken en die lede moet ʼn sodanige
aantekening, as ook die datum van die
aantekening, bekragtig deur dit
te onderteken.”
Mrs Limani claims not to be aware of
the existence of this purported sale agreement. Nevertheless, from
this disputed sale agreement,
it is clear that the valuation should
have been carried out by an auditor on an annual basis (clauses 5.6
and 5.7 thereof).
[10] Based on this valuation, and in
lieu of the payment of this R73 174, 70 the applicants maintain
that Mrs Limani (as executrix)
and Snyman Snr have agreed that Snyman
Snr will pay her two instalments of R78 585, 30 each towards an
ABSA financial Vehicle
and Asset and R23 308, 00 to settle the
outstanding loan on Mr Limani’s immovable property. According
to Snymans Mrs
Limani had allegedly agreed to sign the transfer
documents in respect of the 5% member interest upon receipt of the
payment of
the said amounts. However, it was claimed, Mrs Limani
reneged on the deal.
[11] One of the arguments by the
Snymans is that the association agreement provides for a sale
agreement in the event of the termination
of a member’s
membership through death. It was argued that logically therefore a
deceased member’s interest in the
CC has to be sold to the
remaining member. They further contend that in terms of this sale
agreement Snyman Snr had, upon the passing
away of Mr Limani, become
entitled to purchase the interest from Mr Limani. The purchase price
would be stipulated in the sale
agreement.
[12] The current position is that
both members have died. Their widows are both executrixes of their
respective estates. How can
it be argued that Snyman Snr remains a
member but Mr Limani not, and if he remains a member he must give up
his interest. This
argument is not based on any supporting
documentation and is inexplicable.
[13] Snyman Snr left a Last Will and
Testament dated 20 March 2012. It is this will that appoints Mrs
Snyman executrix in his estate
but if she declines Snyman Jnr was to
be the executor. Snyman Snr left his 95% member interest to Heine
Trust under Registration
No. IT 91/2003. It records that in the event
that the Trust declines the inheritance Snyman Jnr was to become the
beneficiary of
the 95% interest. The testator made a stipulation in
the will that a payment of R400 000.00 had to be made to the
ANẺ-MARIE
TRUST Registration No. IT89/2003 within 9 months of
his death. In the event that this condition is not met the bequest
will expire
and the assets will form part of the general residue in
his estate.
[14] Section 29 of the Act deals
with the requirements for membership of a CC. Section 29(1) thereof
provides that subject to subsection
(1A) or (2) (b) and (c), only
natural persons may be members of a corporation and no juristic
person or trustee of a trust
inter vivos
in that capacity
shall directly or indirectly (whether through the instrumentality of
a nominee or otherwise) hold a member’s
interest in a
corporation. Subsection (3)(e) stipulates that:
“
The provisions of
paragraphs (c) and (d) shall not affect the power of such
representative, as from the date of his or her assuming
office, and
whether or not any such amended founding statement has been lodged,
to represent the member concerned in all matters
in which he or she
himself or herself as a member could have acted,
until
the interest of that member in the corporation has in accordance with
the provisions of this Act been transferred to any other
qualified
person.”
(My
emphasis).
[15] What falls for determination is
whether in terms of sections 35 and/or 36 of the
Close Corporations
Act, 69 of 1984
, Mrs Limani could be ordered to sign the CK2
documents to transfer the 5% member interest to the Snymans.
Alternatively, whether
it can be ordered that Mr Limani shall cease
or had ceased to be a member of Steenwerke CC.
THE ISSUES
[16] Mr Da Silva, for Mrs Limani,
addressed me on several points
in limine.
First, whether the
Snymans have
locus standi
to bring this application; Second,
that the application is brought prematurely; Third, the existence of
disputes of fact; and Fourth,
the non-joinder of the corporation. The
above exposition (paras 1-15) will expedite dealing with these
preliminary points in light
of the facts set out and the context
given.
Locus Standi
[17] Mrs Snyman’s founding and
replying affidavits are silent with regards to whether she now owns
this 95% member interest.
All that she states is that she is the
executrix. In para 5.19 of her founding affidavit she says: “
In
terms of clause 5.3 of the deceased’s last will and testament,
attached hereto as Annexure M, the second applicant [Snyman
Jnr]
inherited the deceased’s interest in the CC.”
This
statement is couched in the past tense, meaning that the inheritance
has already happened. If this statement is correct, it
means that Mrs
Snyman does not have control over the 95% member interest, beyond her
powers as an executrix. It is on this basis
that her
locus standi
has been challenged by Mrs Limani.
[18] Clause 5.3 of Snyman Snr’s
Last Will and Testament states:
“
My ledebelang in
POSTMASBURG STEENWERKE BK Reg nr CK 95/005728/23 en enige uitstaande
lenings of ander bedrae geld wat gemelde beslote
korporasie aan my
verskuldig mag wees aan die trustees, in hul verteenwoordigende
hoedanigheid, van die HEINE TRUST Reg nr. IT
91/2003. Die trustees
moet hierdie bemaking gebruik en aanwend tot voordeel van die
begunstigdes van die trust, onderworpe aan
die bepalings van die
gemelde trustakte. Indien die trust nie meer by my afsterwe bestaan
nie, of indien die trustees nie die bemaking
kan of wil aanvaar nie
bemaak ek die bate aan my seun JOHANNES HENDRIK SNYMAN. Hierdie
bemaking is onderhewig aan die voorwaarde
dat HEINE TRUST ʼn
kontantbedrag van R400 000 (Vier Honderd Duisend Rand) as
bemaaksom aan die trustees, in hul verteenwoordigene
hoedanigheid,
van die ANẺ-MARIE TRUST Reg nr IT 89/2003 sal betaal binne 9
(Nege) maande na my afsterwe. Indien daar nie
aan die voorwaarde
voldoen word nie, sal die bemaking verval en die bates deel van die
restant van my boedel vorm.”
[19] On the papers it is evident
that the trustees rejected the bequest of the 95% member interest; as
it is said, they did not
adiate. Snyman Snr died on 26 May 2012.
Calculating 9 months from that period means that the suspensive
condition for the payment
of R400 000 to the ANẺ-MARIE
TRUST expired unfulfilled in February 2013. There is no proof in the
papers before me nor
was it argued that this payment has been made.
It is accordingly safe to infer that the 95% member interest is
located in the general
residue of the estate of Snyman Snr.
[20] Mrs Snyman avoids explaining in
her founding statement who holds the 95% member interest. There is
also nothing to substantiate
Mrs Snyman’s claim that Mr
Limani’
s 5%
member interest forms part of Snyman Snr’s
estate. Logically Mrs Snyman could not acquire the member interest
either. It
must be borne in mind that Snyman Snr died about two years
after Mr. Limani’s death.
[21] Apart from the fact that he is
a potential beneficiary under his father’s will Snyman Jnr has
not shown any other basis
upon which he could claim to have a
substantiated interest in this application. In her founding affidavit
(para 5.19) Mrs Snyman
claims that her son (Snyman Jnr) has inherited
the 95% member interest from his father, Snyman Snr. Snyman Jnr in
his confirmatory
affidavit merely confirms the content and
correctness of Mrs Snyman’s founding affidavit insofar as it
relates to him. I
have already explained why, in my view, the 95%
member interest of Snyman Snr now resides in the residue of Snyman
Snr’s
estate.
[22] As a widow in her late
husband’s estate and having been instituted executrix therein,
together with the fact that she
is a potential beneficiary under the
will (now that it seems that the testator’s bequest is shown to
have fallen into the
general residue of his estate). I am satisfied
that Mrs Snyman (the first applicant) has
locus standi
to
bring this application. Snyman Jnr also has
locus standi
on
the basis that his father’s will provides that:
“
Indien die trust nie meer
by my afsterwe bestaan nie, of indien die trustees nie die bemaking
kan of wil aanvaar nie bemaak ek die
bate aan my seun Johannes
Hendrick Snyman”.
As a son Snyman Jnr would also be
entitled to a child’s share under our Common Law of Succession
as the 95% member interest
seems to be located in the general residue
of the estate.
Application premature
[23] The contention by Mrs Limani is
that this application has been prematurely brought to court. The
question asked is what have
the applicants done prior to bringing
this matter to court? There is no correspondence filed in their
papers that show that any
communication between them and Mrs Limani
addressing this issue took place. It is also undisputed that at no
stage was Mrs Limani
furnished with a copy of the purported sale
agreement, Annexure ‘E’ to the Snymans’ papers. She
was not even
informed of its existence. In a letter dated 06
September 2010 her attorneys Louw and Da Silva Attorneys, addressed
to Snyman Snr,
this request:
“
Afskrifte van enige en
alle ooreenkomste (indien enige) wat aangegaan is tussen die lede van
die BK oor die bedryf van die BK se
sake.”
Despite this request Mrs Limani was
not provided with any documents. Her counsel argues that she does not
have the financial means
to litigate and, therefore, had this matter
been canvassed with her prior to approaching court it may probably
have been settled
out of court.
[24] Ms Stanton’s argument in
her submission that the application is not brought prematurely
submitted that Mrs Limani was
granted valuation certificates and has
not disputed their veracity. It is clear from the content of the
letter from Louw and Da
Silva dated 15 November 2010 that Mrs Limani
reserved the right to dispute the valuation because in that same
letter the attorneys
requested the financial statements of the
corporation for the past three years which were not furnished.
[25] When a point is raised as an
objection to court proceedings that the application or the court
action has been brought prematurely
it is meant that the
applicant/plaintiff should have complied with certain statutory
prescripts or common law principles or rules
and regulations or
contractual obligations or certain processes or procedures prior to
seeking a remedy in court. For example in
Bengwenyama Minerals v
Genorah Resources
2011(4) SA 113 (CC) the Court set aside a
decision granting prospecting rights to
Genorah Resources
despite their failures to observe four steps in relation to the
consultation process required by s16(4) of the Mineral and Petroleum
Act, 24 of 2008 (at 140D-H: paras 67 and 68). On premature
applications and failure to observe internal remedies, see further
Ramakatsa v Magashule
2013 (2) BCLR 202
(CC) at 210B-211H
(paras 25-30).
[26] The Snymans’ case was
really that they required Mrs Limani to sign the CK2 documents to
transfer the late Mr Limani’s
5% interest to the Snymans and
that she refused to do so. It is undisputed that Mrs Limani persisted
in her refusal to sign to
date hereof. If it was not so this
application would have been avoided because she shall have signed.
The Snymans were entitled
to approach this Court to have their
dispute resolved (s34 of the Constitution of the Republic of South
Africa, 108 of 1996).
The premature point
in
limine
must therefore fail.
Joinder as a party
[27] It is contended on behalf of
Mrs Limani that the close corporation, Postmasburg Steenwerke CC,
should have been joined as a
party because it also has an interest in
the matter. Mr Da Silva argued that when a member’s interest is
sold, in terms of
s35 (b) of the Act, it shall first be offered for
sale to the corporation, if any member or members other than the
deceased member
remains. The non-joinder of the corporation is
therefore prejudicial to the corporation. In her submission in this
regard, Ms Stanton
argued that the provisions in sections 29, 35 and
36 do not require a close corporation to be joined.
[28]
S 29
(1) of the
Close
Corporations Act, 69 of 1984
states:
“
Subject to subsection (1A)
or (2) (b) and (c), only natural persons may be members of a
corporation and no juristic person or trustee
of a trust inter vivos
in that capacity shall directly or indirectly (whether through the
instrumentality of a nominee or otherwise)
hold a member’s
interest in a corporation.”
Mrs Limani is the executrix of Mr
Limani’s estate which incorporates the 5% member interest.
S
29(3)(c)
states that:
“
A trustee of an insolvent
estate, administrator,
executor
,
or curator, or other legal representative, referred to in subsection
(2)(c), in respect of any member of a corporation, who is
not obliged
or
who does not
intend to transfer the interest of the member
in the corporation in
accordance with the provisions of this Act within 28 days of his or
her assuming office to any other person,
shall within that period, or
any extended period allowed by the Registrar on application by him or
her, request the existing member
or members of the corporation to
lodge with the Registrar in accordance with section 15(1) an amended
founding statement designating
him or her, nomine officii, as
representative of the member of the corporation in question.”
S 29(3)(e) reads:
“
The provisions of
paragraphs (c) and (d) shall not affect the power of such
representative, as from the date of his or her assuming
office, and
whether or not any such amended founding statement has been lodged,
to represent the member concerned in all matters
in which he or she
himself or herself as a member could have acted,
until
the interest of that member in the corporation has in accordance with
the provisions of this Act been transferred to any other
qualified
person.”
(My
emphasis).
[29] The head note in
Boerboonfontein v La Grange NO
2011 (1) SA 58
(WCC) at 59H-60A
summarizes the effect of section 29(3)(e) as follows:
“
The effect of s29(3)(e) is
that such representative, from the date of his or her appointment as
trustee of an insolvent estate,
administrator, executor, or other
trustee, whatever the case might be, has the competence to represent
the member concerned in
all matters in which he could have acted as a
member. This entails that the executor (as in the present case) is
entitled to act
in connection with the affairs of the corporation, as
if he is a registered member of the corporation, notwithstanding the
fact
that an amended founding statement was not registered. A feature
of this representative power is that the executor is entitled to
receive notice of any meeting of members. He is also entitled to
attend any such meeting and to exercise the voting rights attached
to
the deceased’s member’s interest. The executor is
therefore an ‘other person entitled to attend a meeting
of
members’ as intended in s48 (1) of the Act.
[30] Mrs Snyman, like Mrs Limani, is
an executrix, appointed to deal with the estate of her late husband.
There is no justification,
at least on the submitted papers before me
and in the argument presented, why she should not enjoy the
protection of the provisions
of s29(3)(e) and be regarded as a person
who is qualified and competent to represent Mr Limani in his 5%
interest.
[31] Ms Stanton argued that the
statement that the “executor shall dispose of interests”
in s35 of the Act is referring
to a situation that Mrs Limani finds
herself in of having an obligation to dispose of Limani’s
interest. Her submission in
this regard pertaining to the provision
of s35 is incorrect. This section simply says in the absence of any
other arrangement contained
in the association agreement an executor
of an estate of a member who is deceased shall, in performing his or
her duties, have
an option either to transfer such member interest to
any qualified person through consent or, where consent is lacking,
sell the
member interests to either the corporation or any other
remaining member or members or any person who qualifies. It does not
,
in my understanding, compel Mrs Limani to give up what rightfully
belongs to the estate that she has been appointed executrix for;
unless if, which is now a point in dispute, the association agreement
was produced which could have contained a directive as to
what should
be done.
[32] It will be noted that my
discussion on the non-joinder issue further fortifies my finding that
in particular Mrs Snyman as
executrix had
locus standi
to
launch these proceedings. Having regard to all the matters dealt with
above and the principles enunciated in
Amalgamated Engineering
Union v Minister of Labour
1949 (3) SA 637
A at 649.
I
am satisfied that there has not been any non-joinder. In addition
even if Postmasburg Steenwerke CC could have been joined I am
satisfied that such joinder could not have taken the matter any
further as all issues were properly ventilated. There can therefore
be no prejudice to the CC.
The non-joinder point taken is
also dismissed.
[33] In her founding affidavit Mrs
Snyman states that Snyman Snr has instructed Mr Martin Moller to
draft a sale agreement, the
controversial unsigned version, which is
incorporated into the association agreement. No reference was ever
made to any signed
agreement in any correspondence between the
parties or their lawyers over the years. Mrs Limani accordingly
strenuously disputes
the existence of a written sale agreement
authorizing the transfer of Mr Limani’s 5% interest in the
Steenwerke CC to Snyman
Snr or a successor in title.
THE DISPUTES OF FACT
[34] There are clearly material
disputes of fact not soluble on the papers, in particular pertaining
to the existence or non-existence
of a written association agreement.
If the Snymans persist in their claim that Annexure “E”
is genuine or a true copy
of or replica of the said Annexure “E”
then this stalemate can only be resolved through oral evidence or
cross-examination
in a trial in due course. There is also a material
dispute concerning who the Momentum Policy belonged to or who the
proceeds were
paid to, when and why this was done. The valuation
certificate concerning how much Mr Limani’s 5% member interest
is worth
constitute a further material dispute of fact.
[35] None of the parties has invoked
the provisions of Rule 6(5)(g) to request that anyone who deposed to
an affidavit be subjected
to examination or cross-examination or that
the matter be referred to trial with appropriate directions as to
pleadings or definition
of issues. In the circumstances a final order
can only be granted if the facts stated by Mrs Limani (as a
respondent) together
with the facts alleged by the Snymans (the
applicants) that are admitted by Mrs Lumani justify such an order. If
I am satisfied
as to the inherent credibility of the Snymans’
(the applicants’) factual averments, I may proceed on the basis
of the
correctness thereof and include this fact among those upon
which a Court determines whether the applicants (Snymans) are
entitled
to the final relief sought. See
Plascon-Evans Paints Ltd
v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E–
635C; National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at 289C-291C.
The first respondent’s (Mrs
Limani’s) point
in limine
on the material
dispute of fact is sustained.
[36] First applicant must show that
Annexure ‘E’ is final and binding. What is before Court
now regarding Annexure ‘E’
is mainly hearsay or at best
uncontested circumstantial evidence? I do not have any record or
evidence under oath by any witness
stating how the search for the
signed agreement was conducted. Sec 44(2) of the Act states:
“
A corporation shall keep
any association agreement at the registered office of the corporation
where any member may inspect it and
may make extracts there from or
copies thereof.”
It remains inexplicable why to date,
the first respondent has not been furnished with signed copies of
this association agreement.
[37] In the premises on a holistic
view of this application I am satisfied that no proper case has been
made by the applicants (the
Snymans) for the relief sought and must
be dismissed with costs.
[38] The following order is made:
ORDER:
The application by the
applicants, Lihanna Isabella Snyman NO and her son Johannes Hendrick
Snyman, that the first respondent, Mina
Limani, be ordered to sign
certain documents pertaining to the transfer of her late husband’s
5% member interest to Posmasburg
Steenwerke CC, and ancillary relief
sought, is dismissed with costs.
____________________________
M
C MAMOSEBO
ACTING
JUDGE
Northern
Cape High Court, Kimberley
On
behalf of the Applicant: Adv. A Stanton
Instructed by: Duncan &
Rothman Attorneys
On
behalf of the Respondent: Mr A Da Silva
Instructed by: Elliot
Maris Wilmans & Hay Attorneys