About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 186
|
|
Cuninghame and Another v First Ready Development 249 (9988/2006) [2008] ZAWCHC 186 (25 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(
CAPE
OF GOOD HOPE PROVINCIAL DIVISIONS
DATE
: 25
APRIL 2008
CASE
NUMBER
: 9988/2006
In
the matter between:
CUNINGHAME
AND ANOTHER
Applicants
and
FIRST
READY DEVELOPMENT 249
Respondent
JUDGMENT
(Application
for Leave to Appeal)
ROSE-INNES,
AJ
:
The
applicants seek leave to appeal against the dismissal of an
application for the winding-up of the respondent. Leave is sought
to
appeal to the Supreme Court of Appeal. The parties are agreed that
if leave to appeal is granted it should lie to that court.
The
applicants brought an application for the winding-up of the
respondent on the grounds that it was just and equitable to do
so.
They relied in support of that application on various contentions.
These included the allegation that the substratum of the
company had
disappeared, the contention that its business was being conducted
unlawfully and a complaint that the affairs
of the company were
being mismanaged by those who were effectively in control of it.
I
concluded that the substratum has not disappeared and that the
company is still capable of pursuing its objects. The contention
that its business has been conducted unlawfully involves an
interpretation of section 21(2)(a) of the Companies Act 61 of 1973
and an application of those provisions to the facts as they appear
from the affidavits. I came to the view that the company had
not
acted unlawfully. As far as the alleged mismanagement of the
company's affairs is concerned I held that either the facts
did not
justify such a conclusion or that there were material disputes of
fact which could not be resolved on the affidavits.
The
applicants assail each of these finding on the grounds set out in
the application for leave to appeal. The matter raises factual
and
legal issues. After considering the grounds upon which leave is
sought and the argument addressed to me this morning, I am
of the
view that the applicants have, at least in relation to certain of
the grounds of appeal, reasonable prospects of success
on appeal.
In
argument this morning,
Mr
Pincus
,
for the respondent resisted the application for leave to appeal.
Whife contending that there was no prospect that an appeal
court
would interfere with the judgment he submitted that I did err in one
respect, which would be relevant to a determination
by the court
hearing the appeal. This relates to the approach that was taken in
regard to the legal argument advanced that the
company was acting
contrary to provisions of section 21 (2)(a) of the Companies Act.
As
appears from the judgment, while this point had not been expressly
taken on the affidavits, I concluded that the applicants
should be
permitted to rely on it as the facts on which it is based are dealt
with in the affidavits. Mr Pincus submitted that
the course that I
adopted was prejudiciai to the respondent, because it deprived it of
the opportunity of putting further facts
before the court. I took
the view, applying the recognised principles which are to be found
in
Academy
of Learning (Pty) Ltd v Hancock and others
2001 (1) SA 941
(C) at 955J - 956B
to
which I was referred, that such an approach was a permissible one in
the circumstances.
I
should perhaps add that the legal argument in relation to the
alleged unlawfulness was fully canvassed in the course of written
and oral argument at the hearing of the application. At no stage did
either of the parties seek an opportunity, in the light
of that
argument, to place additional facts before me.
As
I am satisfied that leave to appeaE should be granted, the question
arises as to which court the appeal should lie in terms
of section
20(2)(a) of the Supreme Court Act 59 of 1959. In terms thereof the
appeal should be heard by a full bench of this
court unless I am
satisfied that the questions of law and of fact and the other
considerations involved in the appeal are of
such a nature that the
appeal requires the attention of the appellate division.
The
parties are agreed that the appeal should be heard by the Supreme
Court of Appeal. As the matter involves not only questions
of fact,
but also questions of law, I take the view that It would be the
appropriate court to hear the appeal. There are questions
of
interpretation relating to section 21(2)(a) of the Companies Act
which to some extent are
res
nova.
The
matter is also of considerable importance, not only to the parties,
but to others who have interest in the Harbours Edge Hotel
and the
operation of the rental scheme.
In
my view, it would in the circumstances, be appropriate for the
appeal to be heard by the Supreme Court of Appeal.
I
therefore make the following order:
THE
APPLICANTS ARE GRANTED LEAVE TO APPEAL TO THE SUPREME COURT OF
APPEAL
.
The costs of the application for leave to appeal are to be costs in
the appeal.
ROSE-INNES,
AJ