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[2012] ZAGPPHC 311
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Hassam NO and Others v Moosa and Others (33657/2010) [2012] ZAGPPHC 311 (30 November 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
Case
No: 33657/2010
Date
heard: 19/11/2012
Date
of judgment: 30/11/2012
In
the matter between:
SIKANDER
AMOD HASSAM
NO
.......................................................................
1
st
Plaintiff
MUNEERA
HASSAM
NO
…...............................................................................
2nd
Plaintiff
MAHOMED
RAFIK OSMAN SIDDIE AKOO
NO
..............................................
3rd
Plaintiff
ABDOOL
KADER MOOSA
NO
...........................................................................
4th
Plaintiff
FAYYAZ
MOOSA
NO
.............................................................................................
5th
Plaintiff
ASIF
MOOSA
NO
..................................................................................................
6th
Plaintiff
And
SHAUKAT
ALLI
MOOSA
...................................................................................
1st
Defendant
OSMAN
ABDUL LATIFF
DADA
.......................................................................
2nd
Defendant
RANAVA
INVESTMENTS (PTY)
LTD
.............................................................
3rd
Defendant
JUDGMENT
PHATUDI
J:
[1]
The plaintiffs instituted this action in their capacities as trustees
of Sikander Amod Hassam Family Trust IT5929/1982 PMB (Sikander
Trust)
and Abdool Kader Moosa Family Trust IT5933/1982 PMG (Moosa Family
Trust).
1
[2]
At the commencement of trial, the plaintiffs’ counsel
2
submits in his opening address that the first, second and third
plaintiffs, being the trustees of Sikander Trust and the first
defendant have settled their disputes. This resulted in the first,
second and third plaintiffs withdrawing their claim in this
action.
He further places on record that he represents the fourth, fifth,
sixth and seventh plaintiffs, who are trustees of Moosa
Family Trust
and who are pursuing their claim in this action.
[3]
The first defendant’s counsel
3
applies that the special plea on jurisdiction be heard and determined
first. He only holds instruction thereto. He applies that
the issue
be separated in terms of Rule 33(4) of the Uniform Rules of this
court. I ordered separation of the jurisdiction issue
from the main
application as envisaged in terms of Rule 33(4). I further ordered
that the main application stands to be postponed
sine die should the
special plea be dismissed.
[4]
I expressed my concern in the manner in which these proceedings are
conducted. It appears to me that the parlies did not hold
a proper
pre-trial conference. The plaintiffs’ counsel kept on asking
the defendants questions that ought to have been dealt
with at the
pre trial conference. I even challenged the parties to address me
thereto. The plaintiffs’ counsel informs me
that the defence
team present before court is not the ones with whom they held the
pre-trial.
[5]
Mahomed Rafik Osman Sidd Akoo (Mr Akoo), the third plaintiff, who
withdrew the action against the defendant, testifies that
the third
defendant’s auditors are SAB & T whose offices are in
Polokwane. He testifies that the first defendant is a
nominee
shareholder of both Sikander Trust and Moosa Family Trust.
[6]
Abdool Kader Moosa (Mr Moosa) testifies that he is the fourth
plaintiff. The fifth, sixth and seventh plaintiffs are his sons.
He
states that the Moosa Family Trust is register in Pietermaritzburg.
He concedes under cross-examination that the prayer sought
by the
plaintiff does not deal with the transfer of the immovable property
owned by the third defendant. He further concedes that
the 1st
defendant lives and resides in Pietermaritzburg.
[7]
The first defendants counsel submits that this court has no
jurisdiction to hear this action because the first defendant resides
in Pietermaritzburg. He further submits that the share agreement was
concluded by the parties in Pietermaritzburg. He submits that
the
third defendant has been added to the proceedings only as an
interested party. No real relief is sought against the third
defendant safe to record the true state of affairs in its share
register should the outcome of this case favour the plaintiffs.
[8]
He further submits that the claim as sought can be granted by the Kwa
Zulu Natal High Court. The order can be enforced on the
third
respondent irrespectively of its jurisdictional location. He states
that the transfer of shares be equated with transfer
of movables. He
states that a share certificate has a sitis of where it is found. He
states further that the first defendant, as
the nominee shareholder,
is regarded as the holder of shares and an agent for the Moosa Family
Trust. He submits that the first
defendant resides in
Pietermaritzburg and holds shares in Pietermaritzburg. He lastly
submits that the plaintiff failed to proof
the location of the shares
and thus failed to prove jurisdiction. None of the witnesses who
testified led evidence on the location
of the shares. This court
cannot assume on the location of the shares.
[9]
In rebuttal, plaintiff counsel concedes to a number of submissions
made on behalf of the defendant but for section 115 of the
Companies
Act, Act 61 of 1973, which provides that the ‘court may rectify
the share register of the company if the name of
any person is,
without sufficient cause, entered in or omitted from the register of
members of a company.
[10]
He submits that notwithstanding non production of the share register,
it is assumed that it exist and must be presumed to be
in Polokwane,
probably in possession of the auditors SAB & T.
[11]
He further submits that this court has jurisdiction and refers me to
Els v Weideman and Others
2011 (2) SA 126
SCA where he submits the
court held that ‘the court a quo's finding that it lacked
jurisdiction was wrong’
[12]
In my evaluation of the evidence tendered and submissions made, I
first considered Els case, where the South Gauteng High Court
(SGHC)
granted Els an interdict prohibiting Huisgenoot and You magazines
(edited by Ms Weideman) from publishing an article identifying
Els (a
singer and well-known personality in South African entertaining
world) as a sex abuser. Els instituted contempt of court
proceedings
in Western Cape High Court (WCC). The application in WCC was
dismissed on the ground that the WCC lacked jurisdiction
to entertain
an application in relation to the alleged contempt. The SCA held that
the court a qou’s finding that it lacked
jurisdiction in
respect of the contempt issue was wrong.
[13]
In this case, the applicants do not seek enforcement of any court
order. The applicants seek ‘[a] declaratory order that
the
Abdool Kader Moosa Family Trust IT5933/82 PMB is the owner of one
share of the issued share capital and 10% of the loan account
registered in the name of the first defendant and the third
defendant. That the first defendant be directed to transfer one share
and 10% of the loan account which is registered in his name in the
third defendant into the name of Abdool Kader Moosa Family Trust.
The
third defendant is directed to record the true state of affairs in
terms of paragraph 4 and 5 above’.
4
It is clear that the principle set out in Els case is not applicable
in this case.
[14]
It is common cause that the provisions of section 19(1) (a) of the
Supreme Court Act, Act 59 of 1959 do not favour the plaintiffs.
Section 19(1)(b), provides that ‘[a] provincial or local
division shall also have jurisdiction over any person residing or
being outside its area of jurisdiction who is joined as a party to
any cause in relation to which such provincial or local division
has
jurisdiction of any other provincial or local division...’
[15]
Plaintiff’s counsel relies on Mossgas (PTY) Ltd v Eskom and
Another
1995 (3) SA 156
(W) in his submission that section 19(1) (b)
extends the jurisdiction of the court in regard to persons outside
the ordinary jurisdiction.
He further submits that once the High
Court has jurisdiction in an action or proceeding, the sub section
can be invoked to join
in that cause a defendant not resident within
the area of jurisdiction of that court.
[16]
Contrary thereto, the defendant’s counsel submits that it could
never have been in the contemplation of the legislator
to empower a
court to have jurisdiction in terms of section 19(1 )(b) over a main
defendant who is not resident within its jurisdiction
by virtue of
the consequential joinder of parties against whom no real relief is
sought.
[17]
I am persuaded to accept that in this case, the main party (first
defendant) against whom the substantial portion of the relief
is
sought, is not residing within the jurisdiction of this court. This
court, in my view, cannot find jurisdiction by virtue of
the third
defendant against whom no relief is sought. All that is sought
against the third defendant is to record the true state
of affairs’
as the court with jurisdiction may order. There is no evidence led of
the location of the shares. I am reluctant
to presume that the shares
are in possession of the auditors in Polokwane. I am further
reluctant to assume that the share register
exist. This brings me to
the conclusion that the special plea stands to be upheld.
[18]
It is trite that costs follow the event. The first defendant succeeds
with his special plea and is entitled to his costs. There
are no
submissions in relation to costs of two counsel.
I,
in the result, make the following order:
1.
The special plea is upheld.
2.
This matter is struck off the roll for lack of jurisdiction with
costs.
A.M.L.
PHATUDI
JUDGE
OF THE HIGH COURT
On
behalf of the plaintiffs: Abbas Latib & Company
C/O
Asger Gani Attorneys Suite 805, 8th Floor Byron Place
Cnr
Schubart & Skinner Streets Pretoria
Adv.
N.Z. Cassim SC Adv. D Ramdhani
On
Behalf of the Defendants: Lockhat & Associates
C/O
Macrobbert Inc
Macrobbert
Building
Cnr
Charles & Duncan Streets
Brooklyn
Pretoria
Adv.
A Politis Ms Moodley
1
Page
8 and 9 Pleadings bundle - Particulars of claim Adv NZ
2
Cassim
SC assisted by Adv D Ramdhani. Adv A Politis. duly
3
Adv A Politis.
duly assisted by Ms Moodley.
4
Particulars
of Claim page 15 - prayers 4, 5 and 6.