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[2012] ZAGPPHC 151
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Talisman Compressed Air (Pty) Ltd and Others v Dykman and Others (43147/12) [2012] ZAGPPHC 151 (7 August 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
REPUBLIC
OF SOUTH AFRICA)
CASE
No. 43147/12
DATE:07/08/2012
In
the matter between:
TALISMAN
COMPRESSED AIR (PTY)
LTD
.................................................
First
Applicant
ROTSVAS
HOLDINGS (PTY)
LTD
….............................................................
Second
Applicant
ROTSVAS
TRADING (PTY)
LTD
....................................................................
Third
Applicant
LOUIS
HENDRIK ALBERTUS
ERASMUS
....................................................
Fourth Applicant
and
CATHARINA
FREDERIKA
DYKMAN
............................................................
First
Respondent
GERHARD
RENIER
COETZEE
....................................................................
Second
Respondent
ERNO
DYKMAN
..............................................................................................
Third
Respondent
JUDGMENT
Van
der Byl, AJ:-
[1]
The First, Second and Third Applicants are all companies carrying on
business at 160 Lynette Street, Koedoespoort, Pretoria.
[2]
The Fourth Applicant is -
(a)
the only shareholder and Director of the First Applicant;
(b)
the "operational manager" and one of the directors of the
Second and Third Applicants;
(c)
a 49 per cent shareholder of the Second Applicant (and, possibly,
also of the Third Applicant).
[3]
The Second Applicant is the holder of all the issued shares of the
Third Applicant.
[4]
The First Respondent is a 51 per cent shareholder and, therefore, the
majority shareholder of the Second Applicant (and, possibly,
a
director of the Third Applicant).
[5]
The Second Respondent is, as appears from the founding affidavit
deposed to by the Fourth Applicant, cited in his capacity as
"shareholder by proxy". (It is not clear what is meant by
this expression, but seems to be an expression obtained from
a
notice, Annexure A3, record p. 53, to which I will refer below, in
terms of which notice was given to the Fourth Applicant that
it was
resolved to remove him as a director of the Third Applicant and,
possibly, also as director of the Second Applicant).
[6]
The Third Respondent, being the son of the First Respondent, is,
together with the Fourth Applicant, the only other director
of the
Second Applicant.
[7]
The building on the premises at 160 Lynette Street, Koedoespoort,
Pretoria, is shared by the First, Second and Third Applicants.
The
First Applicant is occupying the part marked A in Annexure RD 1
(record p. 99) and the Second and Third Applicants occupying
the
parts marked B in that Annexure. The evidence, furthermore, shows
that the premises are fenced and that entrance can only be
gained
through a single gate which was at all relevant times guarded by a
security company. It is also apparent that entrance to
the building
on the premises can only be obtained through a single door which
gains entrance to the part marked A in the aforesaid
Annexure where,
as already indicated, the First Applicant is conducting its business.
From the part marked A entrance can be gained
to the parts marked B
where the Second and Third Applicants are located for purposes of
their respective businesses.
[8]
The Applicants seek, as a matter of urgency, in addition to a
punitive order of costs, an order in terms of which -
(a)
the Applicants' possession of the premises at 160 Lynette Street,
Koedoespoort, Pretoria, be restored and that the status quo
be
restored (prayer 2);
(b)
the three Respondents are prohibited by way of an interim interdict
from withdrawing "any further unauthorized funds from
the Second
and Third Applicants' account and also an order interdicting the
First Respondents account held with First National
Bank",
pending the finalization of an application to be made to the
Companies Tribunal in terms of section 71(8) of the Companies
Act,
2008 (Act 71 of 2008) (prayer 3);
(c)
the First Respondent is prohibited by way of an interim interdict
from interfering or taking part in the day to day running
of the
Second and Third Applicants or allowing any third party to do so,
pending the finalization of an application to be made
to the
Companies Tribunal in terms of section 71 (8) of the Companies Act,
2008 (Act 71 of 2008) (prayer 4).
[9]
On the relief claimed in prayer 2, it is, briefly stated, the
Applicants' case -
(a)
that, consequent upon an agreement and a shareholders' agreement
concluded between the Fourth Applicant and the First Respondent
(who
was the owner of a business known as Project Sensation (Pty) Ltd
which has, according to the Respondents, since been wound
up), a
business relationship existed between them since June 2011;
(b)
that in place of Project Sensation (Pty) Ltd the Second Applicant was
registered and incorporated on 1 October 2011 and that
later the
Third Applicant was also registered and incorporated as the
"operational companf of the Second Applicant;
(c)
that in terms of the shareholders' agreement the First Respondent
was, as I already indicated, the holder of 51 of the Second
Applicant's shares (and possibly also of the Third Applicants'
shares) whilst the Fourth Applicant held 49 of those shares, the
Fourth Applicant would be the operational manager and director of
both the Second and Third Applicants, that the Fourth Applicant
may
not
be removed as "operational manager/director" without a 60
per cent vote of the shareholders, that the First Respondent
will as
director be responsible for sales, marketing and administration for
both the Second and Third Applicants and that the directors
will
receive the same monthly gross remuneration, but in the event that
the cash flow of the Second and Third Applicants would
not be able to
afford to pay their remuneration, the remuneration due to the Fourth
Applicant must be credited against his loan
account;
(c)
that the Fourth Applicant on 25 May 2012 addressed a letter to the
Second Respondent in which it was brought to his attention
that
because of the Second and Third Applicants' tax liabilities monies
will have to be set aside to satisfy any indebtedness to
the Receiver
of Revenue, with the result that no directors' remuneration would be
paid for a couple of months;
(d)
that the First Respondent was not satisfied with the Fourth
Applicant's decision in this regard;
(e)
that when the Fourth Applicant and personnel of the First Applicant
arrived at work on 23 July 2012, they discovered that the
security
company which provided security services at the time (Eagle Eye
Security) was removed and another security company, Boss
Security,
was performing the security services and that they were not allowed
access to the premises through the outer gate to
the premises by six
men of Boss Security;
(f)
that he was at the same time handed an undated letter, Annexure A3,
record p. 53, on the letterhead of the Third Applicant and
signed by
the Second Respondent in his capacity as11 Proxy to shareholder and
alternate Director1' and the First Respondent in
her capacity as
shareholder, informing him that a "Special Shareholders
resolution has been passed1 on 17 July 2011 to the
effect he be
removed as Director in terms of
section 71(1)
of the
Companies Act,
2008
, that his shares, presumably in the Second and Third Applicants,
have been cancelled with retrospective effect and that the First
Respondent will bring an application for the winding up of the Second
and Third Applicants;
(g)
that, in doing so, the right afforded to the Fourth Applicant in
terms of
section 71
(8) of the
Companies Act, 2008
, was infringed
"and to seek relief based on a counter application".
[10]
On the relief claimed in prayers 3 and 4, it is, briefly stated, the
Applicants' case -
(a)
that on 1 June 2012 the First Respondent, contrary to the mechanism
that was in place in relation to "large amounts"
of cash
received at the sales point, took cash in an amount of R11 590 from
the cash sales "floaf;
(b)
that thereafter the Third Respondent obtained a bank card for the
Third Applicant's trading and money market accounts from FNB
and then
opened another FNB account in Potchefstroom, presumably in name of
the First Respondent, and transferred moneys in an
amount of R88 000
from Third
Applicant's
account (which is an amount equal to the First Respondent's salary
for June and July 2012) into this bank account on
four occasions in
June and July 2012 on the instructions of the First Respondent;
(b)
that, following these events, disciplinary proceedings were
instituted against the First and Third Respondents on 12 and 15
June
2012, in which the First Respondent was removed as director and
dismissed as employee;
(c)
that on 25 June 2012 an undertaking was sought from the First and
Third Respondents that no further moneys would be withdrawn
from the
Third (or the Second) Applicant's bank account, but they refused to
give such an undertaking.
[11]
In the opposing affidavit deposed to by the First Respondent and
confirmed by the Second Respondent, the Respondents raised
the
question of urgency, various points in limine and, apart from raising
various allegations of a particularly acrimonious relationship,
and
apparent irreconcilable differences, between the Fourth Applicant and
the Respondents, a brief response on the merits in so
far as they
relate to the relief claimed.
[12]
I deal briefly with these issues.
[13]
Firstly, there is the question of urgency. Although raised in the
opposing affidavit, this issue was not seriously pursued
in argument
at the hearing of this matter. I am, considering the allegations
contained in the founding affidavit, satisfied that
the Applicants
indeed established, in so far as it is their case that they are being
refrained from gaining access to the premises
where they are, with
the assistance of their employees, conducting business, a case to be
considered as a matter of urgency. I
may mention that after having
heard argument in this matter I granted an order by agreement between
the parties in terms of which
the Fourth Applicant, together with the
employees of the First and Third Applicants, their service providers
and clients, and,
so it appears from the agreed wording, the
Respondents, are all, pending this judgment, granted free and full
access to the premises
to fulfil their respective duties and
obligations. Although I fail to understand why the Second Applicant
is left out from this
order, the order seems to have effectively
removed the issue of urgency which more or less accords with terms
tendered in the course
of argument by counsel acting on behalf of the
Respondents.
[14]
Secondly, the Respondents contend, byway of a point in limine, that
the Fourth Applicant is not entitled to bring this application
on
behalf of the Second and Third Applicants because, particularly,
there is no indication that a proper resolution has been taken
by the
Second and Third Applicants for the relief sought. It is trite that
the directors of a company, as in the case of the Second
and Third
Applicants, must authorise the institution of legal proceedings by,
and in the name of, the company (Henochsberg on the
Companies Act 71
of2008
, p. 249). It is clear from the papers that the Fourth
Applicant was not authorized by the directors to institute these
proceedings
on behalf of the Second and Third Applicants. It must
therefore follow that those Applicants have no locus standi in these
proceedings.
This does, however, not mean that the Fourth Applicant
is not entitled to bring any application in his capacity as director
and
shareholder in relation to any actions by any other person or
entity affecting his rights as such a director or shareholder. As
is
apparent from what I have already indicated in relation to the
Applicants' case, the Fourth Applicant, as the deponent to the
founding affidavit, is clearly aggrieved by the fact that he and the
First Applicant's employees are allegedly deprived of their
right of
access to the premises to perform their functions in respect of the
First, Second and Third Applicants.
[15]
Thirdly, the Respondents contend, likewise by way of a point in
limine, that the Fourth Applicant should have cited the Second
and
Third Applicants as respondents as they might have, for their
continued existence, opposed the relief claimed in prayers 3
and 4.
The relief claimed in prayers 3 and 4 is, as I have already
indicated, aimed at preventing money being transferred from
the
Second or Third Applicant's banking account to any banking account
other than the banking account of the Second or Third Applicant.
I
accept that, in so far as the allegations made in this regard may be
duly proved, the Fourth Applicant has, as a director and
shareholder,
the right to bring an application preventing the Second or Third
Applicant from suffering damages. This contention
was, as I
understood the submissions raised in the course of the hearing of
this application, not seriously pursued. I am in any
event
unpersuaded that this issue has been well-founded.
[16]
Fourthly, the Respondents contend, also by way of a point in limine,
that it is not clear why the Second Respondent was cited
as a
respondent as the Fourth Applicant allegedly failed to show any
participation by the Second Respondent in the actions complained
of.
It would appear, if regard is had, amongst other considerations, to
the resolution passed on 17 July 2012 in terms of which
the Fourth
Applicant is removed as a director of the Third Applicant (and
possibly also as director of the Second Applicant) which
in turn
seems to be the reason why, according to the Applicant, the Fourth
Applicant and the employees of the First Applicant have
been denied
access to the premises, that the resolution was co-signed by the
Second Respondent. I accordingly fail to see how the
Applicants can
be faulted for having cited the Second Respondent as a respondent in
these proceedings.
[17]
Fifthly, the Respondents contend, again by way of a point in limine,
that the Fourth Applicant failed to indicate when he intends
to
launch an application in terms of
section 71
(8) of the
Companies
Act, 2008
, which is the basis on which the interim orders sought in
prayers 3 and 4 are to remain in tact.
A
scrutiny of
section 71(8)
, read with subsections (3), (4), (5) and
(6) of that section, as they are relevant for present purposes, shows
in my opinion that
a shareholder or director of a company who
alleges, inter alia, that another director of that company has
neglected, or been derelict
in the performance of, the functions of
director, may, after having complied mutatis mutandis with the
provisions of subsections
(3), (4) and (5) relating to notice and the
audi alteram partem rule, to the Companies Tribunal for the
determination on such directors
neglect and derelict, subject to the
right of any party, as provided in subsection (6), to review the
determination by a court
of law.
Upon
a proper interpretation of these provisions, it accordingly seems to
be correct, as contended on behalf of the Applicants,
that the First
Respondent, being a director and shareholder of the First Applicant
who seems to be of the view that the Fourth
Applicant has neglected,
or been derelict in the performance of, his functions of director,
may apply to the Companies Tribunal,
for the removal of the Fourth
Applicant as the director. I also fail to see how the Fourth
Applicant can approach the Companies
Tribunal in so far as prayers 3
and 4 do not seem to be based on allegations of neglect or derelict
of the functions of any of
the Respondents in their capacities as
directors.
I
may add that, in so far as the issue concerns the cancellation of the
Fourth Applicant's shares, I have been unable to find (and
have not
been referred to) any authority in terms which a member's shares may
be cancelled as has purportedly been done by means
of the resolution
passed by the First and Second Respondents on 17 July 2012.
[18]
Sixthly, the Respondents contend, in another point in limine, that
prayer 3 is too vaguely framed and can, therefore, not be
granted.
This is an issue to be considered in the event of me holding that the
Applicants are entitled to the relief claimed in
prayers 3 and 4.
[19]
This brings me to the Respondents' contentions on the merits.
[20]
In relation to the relief claimed in prayer 2, it is the Respondents'
case -
(a)
that the business of the First and Third Applicants are not in any
way impeded by any actions of the Respondents and that there
is no
embargo on the business of the Second Applicant and that the First
and Third Applicants are fully operative whilst the Second
Applicant
is a holding company and not an operational entity;
(b)
that the Fourth Applicant was, however, obviously consequent upon the
decision to remove him as director of the Second (or Third)
Applicant, denied access to the premises of the Second and Third
Applicants.
[21]
I am unpersuaded for at least two reasons that any of the
Respondents' contentions constitute a proper defence to the
allegations
made by the Applicants.
[22]
In the first place the Respondents' opposition which is little more
than a bare denial is contradicted by clear, substantive
and
conclusive evidence that, not only the Fourth Applicant, but also the
employees of the First, Second and Third Applicants,
were effectively
denied through a new security company appointed, access to the
premises.
[23]
In the second place it would appear that, in so far as it is
contended that the Fourth Applicant is denied access because of
the
resolution to remove him from office as a director of the Second
Applicant and, perhaps, also as director of the Third Applicant,
the
Respondents clearly resorted to self-help.
It
is trite that in a spoliation application an applicant must comply
with two requirements, namely, firstly, peaceful and undisturbed
possession and, secondly, wrongful deprivation of such possession
(LAWSA, volume 11, para 342 at p. 304). Wrongful or unlawful
deprivation refers to the dispossession without the applicant's
consent or without due legal process (Harms, Amler's Precedents
of
Pleadings, seventh edition, p. 358)
It
is equally trite that the merits of an applicant's possession and the
respondent's rights to dispossess are, subject to at least
one
exception (which is not applicable here), not justiciable in a
mandament van spolie application (Harms, supra, 358).
In
so far as the Respondents rely on a right to dispossess in terms of
the controversial resolution to remove the Fourth Applicant
from
office as a director, the Respondents' justification is not
justiciable as a justification forthem denying the Fourth Applicant
(and the relevant employees) access to the premises.
I
am accordingly satisfied that the First and Fourth Applicants are, in
so far as they were together with their employees denied
access to
the premises to perform their functions relating to the business of
the First, Second and Third Applicants, entitled
to the relief
claimed in prayer 2.
[24]
This brings me to the relief claimed in prayers 3 and 4.
[25]
As I have already indicated, the Applicants' case in support of the
relief claimed in these two prayers is based on two contentions
-
(a)
firstly, that on 1 June 2012 the First Respondent, contrary to the
mechanism that was in place in relation to "large amounts"
of cash received at the sales point, took cash in an amount of R11
590 from the cash sales ufloat and that thereafter the Third
Respondent obtained a bank card for the Third Applicant's trading and
money market accounts from FNB and then opened another FNB
account in
Potchefstroom and transferred moneys in an amount of R88 000 (which
is an amount equal to the First Respondent's salary
for June and July
2012) into this bank account on four occasions in June and July 2012
on the instructions of the First Respondent
(record pp. 24 and 25,
para 10.2 to 10.5); and
(b)
secondly, that, as set out in the Applicants' replying affidavit,
referring to a notice, Annexure B2, record p. 255, customers
of the
Third Applicant received notices "pointing out that the bank
accounts have changed and any moneys owing to the 3rd
Applicant must
now be paid to another, different bank account1 (record p. 245, para
2.7).
[26]
The allegations made in the Applicants' replying affidavit constitute
no proof or at least constitutes insufficient proof that
any of the
Respondents has effected a situation that moneys owing to the Third
Applicant be paid into the banking account of any
of the Respondents.
As a matter of fact Annexure B2 purports to be a notice from Stone
Sensation (Pty) Ltd (which seems to have
wound up) informing some
unknown persons of the change of its banking details. This allegation
does not constitute proof that any
of the Respondents are withdrawing
"any further unauthorized funds" (whatever it may mean)
from the Second and Third
Applicants' account. It is also not clear
what is meant by the order claimed of "interdicting the First
Respondent's account.
In so far it may have been the allegation that
the account of the First Respondent and the account of Stone
Sensation (Pty) Ltd
are the same account, no such proof has been
rendered.
[26]
In relation to the first of the grounds on which the Applicants rely
in support of the one or the other or both of prayers
3 and 4, it
would appear to be the contention that amounts of R11 800 and R88 000
were merely, respectively, taken and transferred
by or on behalf of
the First Respondent. According to the First Respondent these amounts
were so taken and transferred as her director's
remuneration to which
she is entitled. Apart from a letter by the Fourth Applicant that no
remuneration will be paid to directors
for a few months is no proof
that the First Respondent is entitled to her remuneration. As I have
already indicated there is ample
evidence in the papers that there
are irreconcilable differences between the Fourth Applicant and the
Respondents. In so far as
it is the Fourth Applicant's case that the
First Respondent is not entitled to her remuneration in the terms of
the shareholders'
agreement, it may be a matter to be referred to
arbitration as provided in that agreement.
I
am unpersuaded that the payment of the First Respondent's
remuneration constitutes "unauthorized funds" and that the
evidence according justify an order in terms of prayer 3.
[27]
The Applicants, furthermore, failed to show that any of the
Respondents are unlawfully interfering in the day to day affairs
of
the Second and Third Applicants. The evidence adduced on behalf of
the Applicants does not show in what respects the
Respondents
are interfering in those affairs. As a matter of fact the First
Respondent is not only a majority shareholder in the
Second and Third
Applicants, but is also a director of those two companies and is in
my view, in so far as she is in terms of the
shareholders' agreement
responsible for sales, marketing and administration of the companies,
entitled to involve herself in the
affairs of the companies. I do not
think that the Applicants are entitled to the relief in so far as
they rely on the disciplinary
proceedings in which she was discharged
as director and employee. The validity of these proceedings are
highly dubious since there
is no basis, bearing in mind the
provisions of
section 71(8)
of the
Companies Act, 2008
, to which I
have already referred to and the fact that she was never employed as
an employee of any of the companies.
[28]
The Applicants' claims in terms of prayers 3 and 4 can accordingly
not succeed.
[29]
This brings me to the question of costs.
As
I have already indicated, there is a particularly acrimonious
relationship, and irreconcilable difference, between at least the
Fourth Applicant and the First Respondent, the details of which I
need not to deal with in any particularity. What is, however,
clear
from the papers, is that what had given rise to the institution of
this application is to be found in controversial and,
perhaps,
unlawful actions on both side. On the one hand there is the
resolution by at least the First and Second Respondents that
the
Fourth Applicant be removed as director of the Third Applicant (and
possibly also of the Second Applicant) and that his shares
be
cancelled. This seems to have been the reason why the Fourth
Applicant was denied access to the premises. On the
other
hand there is the like controversial and, perhaps, unlawful actions
by the Fourth Applicant to institute disciplinary proceedings
against
the First Respondent in terms of which she was discharged as
"employee" and director of the Second and Third
Applicants.
This in turn seems to have given rise to the resolution in terms of
which the Fourth Applicant was removed as director.
It
is, therefore, clear to me that both parties approached this Court
with dirty hands and, together with the mixed successes each
party
achieved in this matter, and that they should accordingly in my view
not be entitled to the costs they occurred in bringing
and opposing
this application.
[30]
For the reasons set out in this judgment the following orders are
made:-
1.
THAT the Respondents be ordered to forthwith restore free and
undisturbed access to, and possession ante omnia of, the premises
at
160 Lynette Street, Koedoespoort, Pretoria, to the Fourth Applicant
and all employees of the First, Second and Third Applicants.
2.THAT
the Applicants claims set out in prayers 3 and 4 of the Notice of
Motion be dismissed.
3.
THAT no order be made as to costs.
P
C VAN DE BYL
ACTING
JUDGE OF THE HIGH COURT
ON
BEHALF OF APPLICANTS: ADV G T KYRIAZIS
On
the instructions of:S ROUX INC
Monument
Office Park cnr Elephant & Syeenbok Street Monument Park
PRETORIA
Ref:
LSBotha/HB2116/12
Tel:
012 460 0666
ON
BEHALF OF RESPONDENTS: ADV. T P Kruger
On
the instructions of: WIESE & WIESE ATTORNEYS
311
Eastwood Street Arcadia
PRETORIA
Ref:
Hein Wiese COE6/0001/HW
Tel:
012 343 1268
DATE
OF HEARING:26 July 2012
JUDGMENT
DELIVERED:7 August 2012