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2011
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[2011] ZAFSHC 137
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Firstrand Bank Ltd v Western Breeze Trading 213 (Pty) Ltd (5095/10) [2011] ZAFSHC 137 (30 August 2011)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Case No. 5095/10
In the matter between:-
FIRSTRAND BANK LTD
…...........................................................................
Applicant
and
WESTERN BREEZE TRADING 213 (PTY)
LTD
…..................................
Respondent
______________________________________________________________
HEARD ON:
04 AUGUST 2011
______________________________________________________________
DELIVERED ON:
30 AUGUST
2011
______________________________________________________________
MOLEMELA, J
[1] This is an application for the
winding-up of the Respondent company on the basis that it is unable
to pay its debts. The respondent
denies that it is indebted to the
applicant and avers that applicant failed to comply with the
provisions of section 226 of the
Companies Act 61 of 1973 (“the
Companies Act”).
[2] The applicant relies on the
indebtedness of HCL Familie Trust and a suretyship signed in its
favour in terms whereof the respondent
bound itself as surety and
co-principal debtor for the indebtedness of HCL Familie Trust. It is
common cause that the suretyship
was signed by one H C Lamprecht,
who, according to the applicant, was both the sole director and the
sole shareholder of the respondent
company. As its authority for the
averment that Lamprecht was the sole shareholder the applicant relies
on a certificate to that
effect, purportedly made by the auditors of
the respondent company, viz CAP Chartered accountants. The respondent
contends that
Lamprecht was not authorised to sign the suretyship as
contemplated in section 226 of the Companies Act 61 of 1973 (“the
Companies Act”), as he was not the shareholder of the
respondent. According to the respondent, the only shareholder of the
respondent has always been a trust known as the Vorprecht Besigheids
Trust, of which Lamprecht and one Vorster were the trustees.
[3] It was argued on behalf of the
applicant that a trust is not a body corporate as envisaged in
section 226 of the Companies Act
and thus does not fall in any of the
categories against which a prohibition arises in terms of section
226(1) of the Companies
Act, the effect of which is that the
provisions of section 226(1) of the Companies Act are not applicable.
It was further argued
that insofar as the afore-said section does not
apply
ex lege
, then the respondent’s defence of
non-compliance with that section must fail. The applicant further
argued that even if section
226 of the Companies Act was applicable,
it had in any event been complied with as Lamprecht had, in his
capacity as the sole shareholder
of the respondent, signed a written
consent of shareholders in terms of section 226 of the Companies Act
under the heading “Name
of Shareholder (all shareholders to
sign”). Below his signature was a certificate made by the
respondent’s auditors,
viz CAP Chartered Accountants, in terms
of which they certified that “according to the company’s
register the above
is a full list of all the members of the company.”
[4] Much of the respondent’s
denial of the validity of the consent signed by Lamprecht is based on
an argument that CAP Chartered
Accountants were not or could not have
been the auditors of the company at the time and that Lamprecht was
not the respondent’s
shareholder. In its replying affidavit the
appellant makes reference to a search that was made at the Companies
Registration Office
and attached letters from the Companies
Registration Office properly certified by them, confirming that CAP
Chartered Accountants
were registered from the 9
th
of
April 2009 until the 5
th
of July 2010, thus being the
auditors at the time that the consent in terms of section 226 was
certified. At the hearing of the
application, the respondent’s
counsel argued that the certificate purporting to have been made by
CAP Chartered Accountants
did not bear a signature and instead a
stamp was affixed without furnishing the details of the person that
affixed it.
[5] The agreement on which the
applicant relies made repeated reference to the granting of consent
as contemplated in section 226
of the Companies Act. The applicant
purportedly secured compliance therewith by virtue of the consent
signed by Lamprecht. I am
of the view that a proper determination of
this application warrants the determination of the membership of the
respondent company
as at the time of the signature of the agreement.
Was Mr H C Lamprecht the sole shareholder of the respondent when he
signed the
suretyship in favour of the applicant? There is, in my
view, a genuine dispute of fact on this aspect. Unfortunately the
company
secretary is very vague on it, as he does not even disclose
the date at which the Vorprecht Besigheid Trust allegedly became the
shareholder.
[6] Furthermore, it is indeed so that
not a single document reflecting the respondent’s membership
fact was placed before
the court. In this regard, both Vorster and
Vermaak (the company secretary) did not aver that a share certificate
in favour of
the Vorprecht Besigheidstrust was ever signed. No
properly signed share certificate was produced. It is also noteworthy
that there
is no explanation put forward by the company secretary or
by Vorster as to what happened to the company documents, including
the
register. The share certificate which was annexed to the papers
as annexure “PAV2” is unsigned and reflects that it
is
share certificate no 3 and no averments are made regarding share
certificate 1 and 2. Nothing was placed before Court indicating
that
the director in fact authorised the transfer of the shares and no
resolution which is normally prepared was provided. The
one item that
could be of much assistance in this regard would be the share
register or a copy of a properly signed certificate.
None of the
parties furnished me with such documents. The one person who can
possibly shed more light on this aspect is none other
than H C
Lamprecht, who unfortunately did not depose to any affidavit in this
application.
[7] In my view, this dispute of fact
is not soluble on the papers as they stand and can only be resolved
by oral evidence. Mr. Pretorius
argued that the matter ought to be
dismissed and not be referred for oral evidence, as the dispute was
foreseeable given the correspondence
that was exchanged between the
parties prior to the launching of the application. I agree with Mr.
Leathern SC’s argument
that the respondent failed to properly
articulate the dispute in the correspondence it directed to the
applicant. In my view, the
dispute of fact was thus not foreseeable
under the circumstances. Given the view I hold of this matter, it is
not necessary to
make any pronouncement on the other submissions that
have been made.
[8] I, therefore, make the following
order:-
1. The application is referred for the
hearing of oral evidence at a time to be arranged with the Registrar,
on the question whether
H C Lamprecht was the sole shareholder of the
respondent company during April 2009.
The evidence shall be that of any
witnesses whom the parties or either of them may elect to call,
subject, however, to what is
provided in para 3 hereof.
Save in the case of the deponents to
the affidavits filed or record, neither party shall be entitled to
call any witness unless:
it has served on the other party at
least 14 days before the day appointed for the hearing (in the case
of a witness to be called
by the respondent) and at least 10 days
before such date (in the case of a witness to be called by the
applicant), a statement
wherein the evidence to be given in chief
by such person or the document he is required to produce is set
out; or
the Court, at the hearing, permits
such person to be called despite the fact that no such statement
has been so served in respect
of his evidence.
Either party may subpoena any person
to give evidence or to produce any document at the hearing, whether
such person has consented
to furnish a statement or not.
The fact that a party has served a
statement in terms of para 3 hereof, or has subpoena a witness,
shall not oblige such party
to call the witness concerned.
Within 21 days of the making of this
order, each of the parties shall make discovery, on oath, of all
documents relating to the
issue referred to in para 1 thereof, which
are or have at any time been in the possession or under the control
of such party.
The provisions of Rule of Court 37
shall apply.
The incidence of the costs incurred
up to now shall be determined after the hearing of oral evidence.
_________________
M.B. MOLEMELA, J
On behalf of the applicant: Adv. D.M.
Leathern SC
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On behalf of the respondent: Adv. B.
Pretorius
Instructed by:
Christo Dippenaar Attorneys
BLOEMFONTEIN
/sp