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[2009] ZAGPPHC 361
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Nel v Ferret Mining & Environmental Services (Pty) Ltd, In Re: Ferret Mining & Environmental Services (Pty) Ltd v Boer and Others (6118/2009) [2009] ZAGPPHC 361 (8 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH DIVISION)
NOT
REPORTABLE
DATE:
8 DECEMBER 2009
CASE NO. 6118/2009
In the matter between
JANNIE ABRAHAM
NEL Applicant
and
FERRET MINING &
ENVIRONMENTAL SERVICES (PTY) LTD. Respondent
in re:
FERRET MINING &
ENVIRONMENTAL SERVICES (PTY)
LTD Applicant
and
RUDOLF HANS
BOER First
Respondent
JOHANNES ABRAHAM
NEL Second
respondent
COAL OF AFRIKA
LTD. Third
Respondent
GVM METALS
LTD. Fourth
Respondent
CORAM EBF.RSOHN AJ
DATE HEARD 7/12/2009
DATE JUDGMENT HANDED
DOWN 8/12/2009
JUDGMENT
EBF.RSOHN AJ.
[1]
In this interlocutor) matter the parties will be referred to as Nel
and Ferret respectively. In the main application Ferret
applied for
the following relief:
"I.
Declaring that the written agreement dated 30 Julv 2007 entered into
between one Boer and Nel ("the Nel agreement")
is of no
force or effect.
2.
Declaring that the transfer of the 26%
shareholding (26) shares held by the applicant in the third
respondent ("the Ferrety
Mining Shares") to the third
respondent pursuant to the Nel agreementy was of no force or effect.
3.
Declaring that the subsequent transfer
of the Ferret Mining shares from the third respondent to the fourth
respondent was of no
force or effect.
4.
Directing the respondents to take such
steps as are necessary:
4.1
to restore ownership of the Ferret
Mining shares to the applicant:
4.2
to rectify the register of members of
the third respondent so as to reflect the applicant as the
sharehoilder of the Ferret Mining
shares."
[2]
The fifth prayer is for costs and the sixth is for further and/or
alternative relief.
[3]
I he deed of sale entered into by and between Boer and Nel is to be
found on pages 71-74 of the founding papers in the main
application.
[4]
The preamble to the deed of sale reads as follows:
"Dr.
Rudy II. Boer in this agreement has an agreement with Ferret Mining &
Environmental Services (Pty) Ltd. to buy and
sell the 26% shares that
Ferret holds in Coal of Africa Ltd. Dr. Jannie A. Nel the buyer in
this agreement, have done a transaction
with the David Trust, a
contracting party in the original agreement between Ferret and the
David Trust. Both parties confirm that
they are duly authorised to
enter into this agreement.”
[5]
The agreement was signed by Boer us follows: "For: KL'DY H. BOER
& FERRET MINING & ENV IRONMENTAL SERVICES (PTY)
LTD.".
[6]
The founding affidavit of the main application was deposed to by one
J.C. Ngoma, a director of Ferret. Boer did not make a verifying
affidavit and although he gave notice that he was opposing the main
application he also didn't file an answering affidavit.
[7]
Coal of Africa Ltd. and GVM Metals Ltd.. the other two respondents,
also filed notices of opposition but have also not filed
answering
papers.
[8]
Nel then caused to be served a notice in terms of Court Rule 35( 12)
and (14) on Ferret in terms whereof Ferret was to produce
for
inspection numerous documents. Nel also served a notice in terms of
Court rules 35(1)(6)(8) and (10) on Ferret to make discovers
under
oath of certain stated documents.
[9]
Nel, thereafter, caused to be served a notice in terms of Rule 30A on
Ferret notifying it that Ferret has failed to comply with
a request
made in terms of Rule 35( 12) and (14)on 12 February 2009.
[10]
On the 20th April 2009 Deneys Reits. Ferret's attorneys, wrote a
letter to Nel's attorneys stating that Ferret does not have
a
register of minutes of directors' meetings and of the resolutions
passed and that there is no register of minutes of shareholders'
meetings and that there have been no shareholders' meetings and that
there was no written resolution authorising the acquisition
by Nel of
a 20% shareholding in Coal of Africa Limited. Besides making copies
of certain documents available Ferret declined to
make available "the
requested documents for inspection."
[11]
It is clear that the issue in the main application revolves around
Boer's authority or lack of authority to sign the deed of
sale and to
sell the shares to Nel.
[12]
As stated Boer has not come on record with an explanation and Ferret
seems to rely on the absence of an empowering resolution,
either by
the directors and/or the shareholders, which, so went Ferret's
argument Boer needed in order to be able to sell the shares.
[13]
It must be noted that when Boer signed the deed of sale he did not
rely on a resolution but he caused it to be specifically
endorsed in
the preamble that he has an "agreement" with Ferret to buy
and sell the 26% shares that Ferret holds in Coal
of Africa Ltd..
[14]
It is Nel's case in the interlocutory application that Ferret is
making it awkward for him to file an answering affidavit in
the main
application because of Ferret's refusal to make its documents
available for inspection and to make proper discovery.
[15]
Rule 35( 13) reads as follows:
"The
provisions of this rule relating to discovery shall mutatis mutandis
apply, in so far as the court may direct, to applications."
[16]
Harms : Civil Procedure in the Superior Courts on p. B-253 states
certain guidelines for a court to take into consideration
when it has
to decide whether "exceptional circumstances" exist, or
not. so that the court could gram or refuse an application
to make
the provisions of rule 35 applicable.
[17]
I have considered the said guidelines and have concluded that
exceptional circumstances do exist which warrants the granting
of
relief to Nel so as to protect his interests and to prevent Ferret
from hiding behind a corporate veil.
[18]
It is clear that costs must follow the event.
[19]
I accordingly make the following order:
1.
In terms of Court Rule 35( 13) it is
ordered that all the provisions of Court Rule 35 are applicable to
the main application in
matter 6118/2009.
2.
T
he period in which the applicant (Nel)
may file an answering affidavit in the main application is extended
to a period of 15 days
after there has been proper compliance b\
Ferret with any and/or all the notices served by Nel. in the past or
the future, upon
it in terms of Rule 35 .
3.
The respondent (Ferret Mining and Environmental Services (Ply) Ltd.)
is lo pay
the costs of this application which costs will include the
costs of two counsel.
P.Z.
EBERSOHN
ACTING
JUDGE OF THF. HIGH COURT
Applicant's
counsel
Adv. P. F.llis SC
Adv.
A.B Rossou
Applicant's
attorneys Jaco
Rous Attorneys
Ref.
Mr. Roos/I)ehhie/H2215
Respondent's
counsel Adv.
C.D.A. Loston SC
Adv.
T. Motau
Respondent's
attorneys Deneys
Reitz Attorneys
c/o
Edelstein Bosnian Attorneys
Ref.
N. van den Hccver/BD00I263