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[2012] ZANCHC 8
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Beukman v Coetzee and Another (1465/2011) [2012] ZANCHC 8 (30 March 2012)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
1465/2011
Datum verhoor: / Date
heard:
14/02/2012
Datum gelewer: / Date
delivered:
30/03/2012
In
the matter between:
HILTON
BARRY BEUKMAN
.........................................
Applicant
and
DEWALD
COETZEE
..........................................
First
Respondent
FIRST
NATIONAL BANK, PORT NOLLOTH
....
Second
Respondent
Coram:
Lacock,
J
JUDGMENT
LACOCK, J
[1] The applicant, the
holder of the majority interest (51 %) of Bedshelf Investments Number
Thirty One CC (Bedshelf), in his capacity
as a member of Bedshelf,
applied in this Court for the following relief:
“
1. Dispensing with the
forms and service provided for in the Rules of Court and allowing
this matter to be heard as one of urgency
in terms of Rule 6(12);
2. That a rule nisi be issued
calling upon the Respondents to show cause, if any, on a date to be
determined, why an order should
not be granted in the following
terms:
2.1 interdicting and restraining
the First Respondent from operating and/or making withdrawals from
the banking account no. 62065333628
of Bedshelf Investments Number
Thirty One CC trading as Luhlaza (“Bedshelf Investments”)
held at First National Bank,
Port Nolloth;
2.2 directing Second Respondent
to take all necessary steps to ensure that the First Respondent is
prevented from operating and/or
making withdrawals from the banking
account no. 62065333628 of Bedshelf Investments held at its branch;
2.3 directing the First
Respondent forthwith to repay to Bedshelf Investments the amount of
R227 240,86 withdrawn from its abovesaid
banking account;
2.4 interdicting and restraining
the First Respondent from interfering with management and affairs of
Bedshelf Investments and for
that purpose in any way contacting its
employees or suppliers;
2.5 declaring that as
consideration pursuant to the voluntary termination on 21 January
2011 of his membership of Bedshelf Investments,
the First Respondent
is only entitled to receive payment from the close corporation of a
49 % of the nett profit, if any, of the
close corporation as at the
said date of voluntary termination;
2.6 further and/or alternative
relief;
2.7 directing the First
Respondent, and only in the event of the Second Respondent opposing
this application, the Respondents jointly
and severally, to pay the
costs of this application on the attorney client scale.
3. That the provisions of
sub-paragraphs 2.1, 2.2 and 2.4 above shall operate as an interim
interdict with immediate effect pending
the final determination of
these proceedings.
”
On 16 September 2011
and by agreement between the parties, Tlaletsi J made the following
order:
1. “THAT the matter is
postponed to
Friday 14 October 2011 at 10h00
.
2. THAT pending finalization of
the matter the following order is granted:
2.1 The First Respondent is
interdicted from operating and/or making withdrawals from the banking
account no. 62065333628 of Bedshelf
Investments Number Thirty One CC
trading as Luhlaza (“Bedshelf Investments”) held at First
National Bank, Port Nolloth;
2.2 The Applicant is interdicted
from withdrawing any money from the Close Corporation account or to
make any purchases on any of
the Close Corporation accounts, which
are not strictly related to the business of the CC;
2.3 The First Respondent is
interdicted from interfering with the management and affairs of the
Close Corporation and for that purpose
in any way contacting its
employees or suppliers.
3. THAT costs stand over for
later determination.
”
The applicant now moves
for the confirmation of the interim order as well as the balance of
the relief claimed in the Notice of
Motion.
[2] Bedshelf traded as
a parks and gardens maintenance entity at Kleinzee, having as its
principal customer De Beers Consolidated
Mines Ltd. Both the
applicant and the first respondent as the only members of Bedshelf
were for some time involved in the management
and day to day business
activities of Bedshelf. Both parties were employed as employees of
Bedshelf, and were paid a monthly salary.
Profits of Bedshelf were
shared annually in proportion to the parties’ membership
interests.
[3] At the beginning of
2011 the first respondent relocated to Mussina in the Limpopo
Province. Prior to his relocation the parties
agreed that the
applicant would purchase the first respondent’s membership
interest in Bedshelf, but were unable to agree
on a price in regard
thereto. Although the applicant alleges that the first respondent
voluntarily terminated his membership of
Bedshelf during January
2011, this averment, as conceded by Adv Potgieter SC on behalf of the
applicant, is clearly untenable.
It must therefore be accepted that
the first respondent is still a member of Bedshelf.
[4] Since he left
Kleinzee the first respondent admittedly withdrew a total amount of
R227,240.86 from the bank account of Bedshelf
held at the Port
Nolloth branch of the second respondent over a period of
approximately 8 months. Most of the money withdrawn by
the first
respondent represented his monthly salary allegedly due by Bedshelf.
The withdrawal of these funds spurred this application
brought by the
applicant against the respondents. It is further alleged that the
first respondent unlawfully interfered with the
work force of
Bedshelf and attempted to discredit the corporation in its
relationship with one of its principal suppliers.
[5] Before dealing with
the merits of the application, it is necessary to consider a couple
of points
in limine
taken by Adv van Niekerk SC. In the first
instance, it was submitted that the applicant had no
locus standi
to bring the application under section 50 of Act 69 of 1984.
5.1 The applicant
relied on the provisions of section 50(1)(b) of the Close
Corporations Act, no. 69 of 1984 (the Act), reading
“
50(1)
Where a member or a former
member of a corporation is liable to the corporation –
…
(b) on account of –
the breach of a duty arising
from his or her fiduciary relationship to the corporation in terms
of section 42; or
negligence in terms of section
43,
Any other member of the
corporation may institute proceedings in respect of any such
liability on behalf of the corporation against
such member or former
member after notifying all other members of the corporation of his or
her intention to do so.
”
5.2 Mr van Niekerk,
relying on the judgment in
De Franca v Exhaust Pro CC
,
1997
(3) SA 878
(SECLD), submitted that the provisions of section 50(1) of
the Act are limited to claims by a member of the corporation for the
payment of damages by another member, and therefore do not cater for
the relief sought in the present matter. To my mind, there
is no
substance in this argument.
5.3 The facts in
De
Franca (supra)
differ materially from the facts in this matter.
In De Franca one of the two members of a close corporation applied
for the liquidation
of the corporation alleging that it would be just
and equitable to liquidate the corporation by reason of the complete
breakdown
of the relationship between the two members (father and
son). De Franca opposed the relief sought “on behalf of the
corporation”,
relying on section 50 of the Act for his
locus
standi
to oppose. Nepgen J came to the conclusion that De
Franca’s reliance on section 50 was ill-founded given the
circumstances
of the matter. The learned judge’s reasoning in
this regard reads as follows:-
“
It is indeed so that s 50
of the Act relates to the situations where a close corporation’s
own rights are at issue, but this
has nothing to do with proceedings
such as the present. It is quite clear that what is provided for in s
50 of the Act is that
a member of a close corporation may institute
proceedings on behalf of the close corporation in respect of another
member’s
or a former member’s liability to the close
corporation where such liability arises on account of a breach of the
duty flowing
from the fiduciary relationship that exists or existed.
Without going into any great detail in this regard, there can be
little
doubt that the comment in Cilliers and others Close
Corporations Service para 4.21 that the remedy provided by s 50 of
the Act
to enable proceedings to be instituted on behalf of a close
corporation against fellow members was devised in order to provide
for a simple and effective means to protect the interests of the
close corporation, thus avoiding ‘the uncertainty inherent
in
the common law derivative action and the time-consuming and risky
procedure envisaged by s 266 of the Companies Act’.
(See
generally in this regard Cilliers and others Corporate Law 2
nd
ed at 292 para 19.7, 295
para 19.13-303 para 19.28.) Clear indications of what was intended by
s 50 of the Act are to be found in
ss (2) and (3) thereof, where
there is specific reference to ‘institution of such
proceedings’; ‘a withdrawal
of the proceedings’; a
‘settlement of the claim’; and to ‘the defendant in
question’. The statutory
authority with which a member is
vested where the provisions of s 50 of the Act are applicable is not
unlimited authority. It is
authority provided for the specific
purpose of instituting the proceedings contemplated by s 50 of the
Act. In my judgment the
provisions of s 50 of the Act cannot, by any
stretch of imagination, be interpreted in such a way that they vest a
member of a
close corporation with authority to oppose an application
for its liquidation merely because another member, who is applying
for
its liquidation, has acted contrary to the duty arising from his
fiduciary relationship and has thereby caused the close corporation
to suffer a loss which in turn has resulted in him being liable to
the close corporation therefor
.”
(at 890 F to 891C).
In my humble view this
reasoning cannot be faulted. Nepgen J apparently deliberately so, did
not attempt to deliniate the applicability
of section 50 of the Act,
but merely concluded that the section was not devised as a tool for a
member of a corporation to oppose
the liquidation of a corporation on
its behalf. I support the view of the learned judge that the remedy
provided by section 50
of the Act “was devised in order to
provide for a simple and effective means to protect the interests of
the close corporation.”
Meskin, “Henochsberg on the
Close
Corporations Act&rdquo
;, comments as follows on the provisions of
section 50(1)(b) of the Act:
“
The liability envisaged by
para (i) of this subsection is the liability envisaged by s 42(3)(a),
ie for any loss suffered by the
corporation as a result of the
relevant breach of fiduciary duty or for the economic benefit derived
by the delinquent by reason
of such breach, and the claim,
accordingly, would generally be a claim for damages equivalent to the
amount of such loss or for
an account in respect of such benefit and
payment of the value thereof. However, it is not clear whether, by
the use of the words
“is liable” in sub-s (1), the
intention is that the claim instituted as a result of a breach
envisaged in para (i)
is to be restricted to a monetary claim for the
loss, or economic benefit envisaged by s 42(3)(a), or whether it
extends to other
rights of action which may arise from the relevant
breach, eg a claim for an interdict against a member who unlawfully
competes
with the corporation as envisaged in s 42(2)(b)(iii) (which
is a claim which would be available to the corporation in such
circumstances).
It is submitted that the intention of the Legislature
in enacting s 50 is to enable a member of the corporation to protect
its
interests in the event of a breach by another member of his
fiduciary duty to the corporation (
De
Franca v Exhaust Pro CC
1997 (3) SA 878 (SE);
Cuyler v Shiers
;
Cuyler v C & S
Marketing
1999
(3) SA 118 (W)); and that accordingly the liability envisaged by s
50(1) should not be limited to that for “loss”
or
“economic benefit” referred to in s 42(3)(a) but extends
to other claims (eg for an interdict or other relief).
”
5.4 The relief applied
for by the applicant on behalf of Bedshelf is to prevent the first
respondent from withdrawing money or operating
unlawfully on the bank
account of the corporation, to restrain the first respondent from
interfering in the management and affairs
of Bedshelf, and for
repayment of the funds allegedly unlawfully withdrawn from the bank
account of the corporation. To my mind
this conduct of the first
respondent, if proved, would be tantamount to a breach of his
fiduciary duties towards Bedshelf as contemplated
in section 42 of
the Act.
To interfere with the
employees of the corporation and its suppliers to the detriment of
the corporation, to my mind, amounts to
a breach of the fiduciary
relationship between a member and the corporation: more particularly
if that interference is done in
bad faith, as alleged by the
applicant (see section 42(1) and (2) of the Act).
If money is withdrawn
from the bank account of the corporation unlawfully, such withdrawal
clearly amounts to an act of dishonesty
and is not done in good
faith.
5.5 For purposes of
deciding the issue of
locus standi
, I have accepted the
averments of the applicant contained in the founding affidavit.
Whether those averments had been properly
proved, will be dealt with
hereunder.
5.6 I do agree with Mr
van Niekerk that the relief claimed in paragraph 2.5 of the Notice of
Motion falls outside the ambit of section
50 of the Act. I did not
understand Mr Potgieter to contest this submission.
5.7 For these reasons
the first point in limine is dismissed.
[6] Secondly Mr van
Niekerk submitted that, since Bedshelf was deregistered at the time
the application was launched, the applicant
lacked
locus standi
since, so argued Mr van Niekerk, a member cannot act on behalf of a
non-entity.
6.1 It is common cause
between the parties that Bedshelf was deregistered at the time of the
launching of the application. It was
“in deregistration”
from 14 November 2009 until 11 October 2011, at which latter date it
was reregistered.
6.2 Section 26 of the
Act presently reads,
“
Sections 81(1)(f), 81(3)
to (4) and 83 of the Companies Act, each read with the changes
required by the context, apply with respect
to the deregistration of
a corporation, but a reference in any of those provisions to a
company must be regarded as a reference
to a corporation for the
purposes of this Act.
”
This section
effectively became operative at the commencement date of the 2008
Companies Act i.e. 1 May 2011. Prior to its amendment,
section 26(7)
of the Act read as follows:-
“
The Registrar shall give
notice of the restoration of the registration of a corporation and
the date thereof in the prescribed manner
and as from such date the
corporation shall continue to exist and be deemed to have continued
in existence as from the date of
deregistration as if it were not
deregistered.
”
It appears to me that,
by reason of the transitional arrangements contained in
section
224(3)
of the
Companies Act of 2008
, read with paragraph 3(1) of
Schedule 5 to that Act, reading,
“
Any matter pending before
the Registrar under the previous Act, or a provision of the Close
Corporation Act, Act No. 69 of 1984),
amended by this Act, before the
effective date and not fully addressed at that time, must be
concluded by the Registrar in terms
of such Act, despite its repeal
or amendment.
and since the
reregistration of Bedshelf was still pending at 1 May 2011, the
provisions of section 26(7) (as it read prior to the
amendment) are
applicable to the issue under consideration.
6.3 Mr van Niekerk
contended that during the period when Bedshelf was deregistered, it
was not possible for the applicant to act
on its behalf, simply
because there was no legal entity on whose behalf the applicant could
act. In support hereof reliance was
placed on the following
dictum
in
Walker Engineering CC v First Garment Rental
,
2011 (5) SA
14
at 16A, viz
“
The effect of
deregistration is that its existence as a legal person ceases.
”
In this matter the
defendant moved for absolution from the instance of the plaintiff’s
(a de-registered close corporation)
action by reason of the plaintiff
having failed to appear at the trial. The consequences of section
26(7) of the Act was not considered.
However, in its deliberations
the learned judge had this to say in regard to section 26(7):
“
The effect of
re-registration is that the corporation would from the date of
restoration of its registration continue to exist and
‘be
deemed to have continued in existence as from the date of
deregistration as if it were not deregistered’. The potential
restoration of the registration of the corporation entails that the
action might be resumed at any time in the future and the defendant
would have to continue to provide for that eventuality. The effect of
s 15 of the Prescription Act is that the running of prescription
against the corporation was interrupted when it served summons
claiming payment of the alleged debt on the defendant. If the
registration
of the corporation were to be restored at any time in
the future the plaintiff could, by reason of the deeming effect of
s
26(7)
of the
Close Corporations Act and
notwithstanding the
intervening passage of time, resume the prosecution of the action.
”
(at 16D to F).
Mr van Niekerk further
relied on
Miller & Others v Nafcoc Investment Holding Co Ltd &
Others
,
2010 (6) SA 390
(SCA). This case concerned
inter alia
the validity of a decision by the Commissioner of Companies and the
Master to authorize an enquiry into the affairs of a company
in
liquidation in terms of sections 417 and 418 of the 1973
Companies
Act. The
said decision was taken before the company was
de-registered. The Court, per Cloete JA, reasoned thus why a decision
to permit
the continuation of the enquiry subsequently to the
re-registration of the company, was not invalid:
“
But Serveco was restored
to the register on 10 August 2008, before the application for final
relief came before the court a quo
on 13 November of the same year. I
do not propose analyzing what effect in law the restoration of the
company to the register had
on the notices served on the individual
applicants. That would be an academic exercise as new notices will
have to be served on
them if they are to be required to attend the
enquiry. It was accordingly unnecessary for the court a quo to set
the notices aside
as it did in para 1 (c) of its order; and, once
Serveco had been restored to the register, there was no basis for the
order setting
aside the decision of the commissioner (of the Master)
to continue or permit the continuation of the enquiry. I reject the
submission
on behalf of the applicants that the authority of the
joint liquidators, the Master and the commissioner – all of
which was
conferred before the deregistration – did not survive
the deregistration, for the simple reason that all such authority was
conferred before Serveco was deregistered, and there was no warrant
for holding that events that occurred before the event are
in any way
affected by it
.”
The right relied upon
by the applicant is a statutory one that had been available to all
members since the inception of Bedshelf,
and was therefore, by
analogy, “conferred” upon the applicant before the
deregistration of Bedshelf. It follows therefore
that this right
survived the deregistration of Bedshelf, which was reregistered prior
to the hearing of the application.
6.4 The Supreme Court
of Appeal has endorsed the following dictum in
Mouton v Boland
Bank Ltd
,
2001 (3) SA 877
(SCA) as apposite to close corporations
under section 26(7) of the Act,
“’
The effect of
restoration to the register is that the company is deemed not to have
been deregistered at all. This entails that
all parties who have by
deregistration of the company or thereafter acquired rights to assets
which the company had upon deregistration
will lose those rights as
the assets will revert to the company. This includes assets which
have become bona vacantia and as such
accrued to the State. Likewise
debtors and creditors of the company at the time of deregistration
may upon restoration find their
obligations or rights resuscitated.
”
(at 880 J to 881 B).
6.5 In view of the
aforesaid and the plain wording of section 26(7) of the Act, Mr van
Niekerk’s argument cannot be sustained.
6.6 There is a further
reason why I deem the argument unsustainable. Although Bedshelf had
been temporarily deregistered, it nevertheless
continued to trade. It
merely lost its corporate personality temporarily, but continued to
exist
de facto
. It was during the time of its deregistration
that the first respondent withdrew money from its bank account. Under
these circumstances
I fail to appreciate an attack on the
locus
standi
of the applicant to protect the interests of Bedshelf. The
applicant and the first respondent were the only persons who could
protect
the interests of Bedshelf, and the applicant undoubtedly had
the
locus standi
to do that in his personal capacity.
[7] That brings me to
the merits of the application and the relief sought.
[8] For the relief
sought in paragraphs 2.1 and 2.2 of the Notice of Motion, the
applicant relies on the following averments:
Since his departure
from Kleinzee, the first respondent no longer rendered any services
to Bedshelf, has terminated his employment
as an employee of
Bedshelf, and is therefore not entitled to a salary any more. It is
further alleged that in terms of a written
resolution and instruction
given to the second respondent, Bedshelf resolved that the applicant
was the only member authorized
to operate on its bank account to the
exclusion of the first respondent. Despite the aforesaid, the first
respondent nevertheless,
since his departure from Kleinzee, withdrew
a monthly salary, legal fees as well as an amount equal to a
withdrawal made by the
applicant from Bedshelf’s bank account.
8.1 The first
respondent admitted having withdrawn the aforesaid funds. He
justifies his actions as follows:
8.1.1 As a member of
the corporation and in terms of section 46 of the Act, he is entitled
to participate in the carrying on of
the business of the corporation.
8.1.2 Prior to his
departure from Kleinzee it was agreed between himself and the
applicant as members of Bedshelf that the corporation
would continue
to pay his salary until the purchase price for his member’s
interest had been paid by the applicant. This
agreement had not been
finalized, and he is therefore entitled to payment of his salary.
8.1.3 Since he is still
a member of the corporation, he is entitled to be paid a pro rata
payment of any payments made to the applicant
by the corporation qua
member.
8.1.4 The resolution
and mandate given to the bank in terms whereof only the applicant is
authorized to operate on the bank account
of Bedshelf regulates the
relationship between the corporation and the second respondent, but
does not regulate the internal relationship
between the corporation
and its members. His authority to operate on this account is derived
from the provisions of section 46
of the Act.
[9] To my mind the
first respondent’s reliance on section 46 of the Act, is
ill-founded. The words “carrying on of the
business of the
corporation” undoubtedly refer to the business of the
corporation in the ordinary course and in the
bona fide
interest of the corporation. These provisions are clearly not
designed to protect a member against improper or unlawful conduct
in
the management of the affairs of a corporation. These provisions, by
necessary implication, are subject to the provisions of,
for example,
section 36(1)(b) and (c), and section 49(1) of the Act. I can think
of no reason why these provisions would not be
subject to the
provisions of section 50 of the Act as well. Any contrary
interpretation would render the provisions of section
50 of the Act a
brutum fulmen
.
[10] The first
respondent’s reliance on an agreement as referred to in
paragraph 8.1.2 above, appears to be questionable.
It is correct, as
pointed out by Mr van Niekerk, that the draft written agreement for
the purchase of the first respondent’s
interest in Bedshelf by
the applicant in paragraph 1 thereof makes provision for the payment
of the first respondent’s salary
until the purchase price had
been paid.
10.1 However, it is
common cause that this “agreement” had not been concluded
between the parties yet.
10.2 Even if it can be
accepted that the parties and the corporation orally agreed to the
payment of his salary to the first respondent,
it appears from the
contents of paragraph 13 of the draft that the parties envisaged that
the terms of the agreement would be executed
within a period of three
months, failing which the contract would lapse. It is therefore
improbable that the parties agreed to
the payment of the first
respondent’s salary for an indefinite period.
[11] For his argument
that he is entitled to the same benefits as the applicant
qua
member of Bedshelf, the first respondent merely relies on his
de
jure
membership of the corporation. In the absence of any
agreement to this effect, and given the period the first respondent
absented
himself from the management and the carrying on of the
business of the corporation, it is unlikely and improbable that such
benefits
accrued lawfully to the first respondent.
[12] I must confess
that I find it difficult to comprehend Mr van Niekerk’s
argument alluded to in paragraph 8.1.4 above.
If one takes into
account that the interest the applicant wishes to protect in this
application are those of Bedshelf, and that
the said resolution and
mandate was given to the second respondent by Bedshelf for purposes
of regulating its banking facilities,
I find it difficult to
appreciate the argument that the aforesaid arrangement between the
corporation and the second respondent
precludes the applicant, on
behalf of the corporation, to act against the first respondent. The
first respondent had not been authorized
to operate on the bank
account of Bedshelf. The first respondent’s conduct is
therefore unlawful and in breach of its fiduciary
relationship with
the corporation. Therefore the applicant is entitled to approach this
Court under section 50 of the Act. As explained
hereinbefore, it is
of no avail to the first respondent to rely on the provisions of
section 46 of the Act as justification for
his aforesaid conduct.
[13] To my mind the
probabilities favour the applicant that the first respondent’s
interference in the work force of the corporation
and its suppliers
were unwarranted, not in the interests of Bedshelf, and was not done
in good faith. The applicant was accordingly
entitled to approach
this Court for the relief sought in regard hereto.
[14] The remaining
issue that needs to be addressed, is whether the corporation is
entitled to the relief set out in paragraph 2.3
of the Notice of
Motion, i.e. for repayment of the funds withdrawn to date from the
account of Bedshelf by the first respondent.
14.1 Although I have
come to the conclusion that it is improbable that Bedshelf agreed to
pay the first respondent’s salary
for an indefinite period, and
that the withdrawal of the funds by the first respondent was at
variance with the corporation’s
resolution and mandate to the
second respondent, I cannot ignore the first respondent’s
averment that the parties agreed
that the first respondent’s
salary would be paid by the corporation despite his relocation to
Mussina.
14.2 That there is a
ring of truth to this averment, is strengthened by the fact that the
applicant waited until September 2011
before action was taken against
the first respondent. I find it hard to believe that the applicant
did not notice these withdrawals
on the bank statements of the
corporation which was done during June, July and August 2011.
14.3 The first
respondent is still a member of the corporation with a 49 % interest.
As such, it is difficult if not impossible,
to determine whether the
first respondent would not in any event be entitled to some benefit
derived from profits or otherwise.
14.4 These issues had
not been fully canvassed in these proceedings, and it appears that a
number of factual disputes exist in regard
thereto.
14.5 For these reasons
I am not persuaded that the corporation is entitled to an order for
repayment of the funds withdrawn by the
first respondent. To my mind
it will be fair and reasonable that these issues be ventilated by way
of action procedure. Different
considerations may come into play when
the issues of liability are canvassed and determined.
[15] By reason of the
aforesaid am I satisfied that the applicant has established a clear
right to the relief sought in paragraphs
2.1 and 2.4 of the Notice of
Motion. No case had been made out for the relief granted in paragraph
2.2 of the rule
nisi
, and I was not requested to confirm that
portion of the rule.
[16] To my mind, Mr van
Niekerk is correct in submitting that the relief claimed against the
second respondent in paragraph 2.2
of the Notice of Motion falls
outside the ambit of section 50 of the Act. The second respondent is
neither a member nor a former
member of the corporation. The relief
hereto concerns the relationship between the corporation and the
second respondent, and an
alleged breach of a mandate given to the
second respondent by the corporation. The applicant has no
locus
standi
to claim such relief on behalf of the corporation.
[17] Mr van Niekerk did
not advance any argument on the further requirements for the granting
of a final interdict. I am satisfied
that the applicant had no other
satisfactory remedy but to launch this application. The applicant
clearly demonstrated that the
conduct of the first respondent was
prejudicial to the corporation, and that the corporation suffered
some loss as a result of
the first respondent’s unlawful
conduct. The first respondent, by reason of his insistence on the
entitlement of
inter alia
his salary, is sufficient proof of a
well-grounded apprehension that, should the interdict not be granted,
further losses in future
may be suffered by the corporation.
[18] Mr Potgieter
conceded that the applicant is not entitled to the relief sought in
paragraph 2.5 of the Notice of Motion and
same requires no further
consideration.
[19] No argument had
been advanced why the costs of the application should not follow on
the result.
WHEREFORE THE
FOLLOWING ORDER IS MADE:
1. PARAGRAPHS 2.1
AND 2.3 OF THE RULE NISI IS HEREBY CONFIRMED WITH COSTS.
2. SAVE AS PROVIDED
FOR HEREIN, THE RULE NISI IS DISCHARGED.
_________________
HJ LACOCK
JUDGE
For
the Applicant:
Adv. Potgieter SC oio Towell & Groenewaldt
Attorneys
For
the 1
st
Respondent:
Adv. Van Niekerk SC oio Jooste Attorneys