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[2015] ZALCJHB 280
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Motor Industry Bargaining Council v Khan and Another (J388/14) [2015] ZALCJHB 280 (2 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: J388/14
MOTOR INDUSTRY
BARGAINING COUNCIL
Applicant
and
NIHAL KHAN
First Respondent
SAWINTRA DEVI KHAN
Second
Respondent
Heard:
01 September 2015
Delivered:
02 September 2015
Summary:
Application to declare members of a deregistered close corporation
personally liable for
its debts; Application launched in terms of the
now defunct s 26(5) of the Close Corporations Act, Close corporation
deregistered
prior to the repeal of s 26(5); Application competent
and granted with costs.
JUDGMENT
VOYI AJ.
[1]
The
Applicant is the Motor Industry Bargaining Council, a bargaining
council registered in terms of s 29(15) of the Labour Relations
Act,
[1]
and
whose registered scope is the Motor Industry. It seeks an Order
holding members of the now deregistered close corporation, being
Nihals Autofit and Parts Centre CC, personally liable for the debts
of the said close corporation as well as for proper compliance
with
arbitration awards issued by its Dispute Resolution Council.
[2]
The
cause of action is founded on the provisions of s 26(5) of the Close
Corporations Act,
[2]
which
have since been repealed. The said s 26(5) read thus:
“
If a
corporation is deregistered while having outstanding liabilities, the
persons who are members of such corporation at the time
of
deregistration shall be jointly and severally liable for such
liabilities.”
[3]
The
aforesaid s 26(5) was repealed by s 224(2) of the Companies Act.
[3]
It
effect, the whole of s 26 of the CC Act is now substituted by a new s
26,
[4]
which
reads thus:
“
Sections
81(1)(f), 81(3), 82(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.’’
[4]
The
Companies Act of 2008
came into operation on 1 May 2011.
[5]
On
this date, the substitution of s 26 of the CC Act, as more fully
described above, took effect.
[5]
As
matters stand, there is no longer a provision which brings to bear
personal liability of any member of a close corporation purely
on the
basis of its deregistration. The question that was into mind when
this matter came before this Court for hearing was how
the repeal of
s 26(5), in particular, affects the relief sought by the Applicant in
the present application.
[6]
In
this matter, the close corporation was deregistered on 24 February
2011. This occurred while the now defunct provisions of s
26(5) of
the CC Act were still operative. As indicated above, that section
became no more after 1 May 2011.
[7]
I
am, accordingly, satisfied that the foundation of the present
application is in no way affected by the removal of s 26(5) of the
CC
Act from out statute books.
[6]
under
s 12(2)(c) of the Interpretation Act,
[7]
it is
stipulated that where a law repeals any other law, then unless the
contrary intention appears, “…
the
repeal shall not affect any right, privilege, obligation or
liability
acquired, accrued or
incurred
under any law so repealed
…”.
[8]
The
question of prescription also does not arise in this matter as the
application was launched, and served
[8]
,
prior to the expiry of a period of three (3) years after the close
corporation in question was deregistered. In any event, it
is not
within my province to, out of my own motion, take any notice of
prescription.
[9]
That
much is clear from the provisions of section 17(1) of the
Prescription Act.
[9]
In
the circumstances, I come to the conclusion that a case has been made
out for the relief sought by the Applicant in the present
application
and that it is competent to grant the relief sought. On the strength
of the affidavit of service handed up at the hearing
of the matter, I
am satisfied that the application was served on the Respondents.
Order
[10]
I,
accordingly, grant the Orders sought in prayers 1 and 2 of the notice
of motion dated 18 February 2015, to wit:
10.1
The
First and Second Respondents are declared to be personally liable,
jointly and severally the one paying the other to be absolved,
as
members of the deregistered close corporation, being Nihals Autofit
and Parts Centre CC, for the debts of the said close corporation
as
well as the proper compliance with the arbitration awards issued by
the Dispute Resolution Council of the Applicant under case
numbers
MINT11094, MINT18586, MINT18398 and MINT20625.
10.2
The
First and Second Respondents are ordered to pay the costs of the
application on an attorney and client scale, jointly and severally
the one paying the other to be absolved.
_________________
VOYI AJ.
Acting
Judge of the Labour Court of South Africa
Appearances:
On
behalf of the Applicant:
Mr C Lingenfelder
of Lingenfelder &
Baloyi Attorneys
On
behalf of the Respondents:
No appearance
[1]
Act 66 of 1995
(“the LRA”).
[2]
Act 69 of 1984
(“the CC Act”).
[3]
Act 71 of 2008
(“the
Companies Act of 2008
”)
[4]
See:
s 224(2)
of
the
Companies Act of 2008
, which states that “...[t]he laws
referred to in Schedule 3 are hereby amended in the manner set out
in that Schedule.”
[5]
See: Proc. No.
R32, Gazette No. 34239, dated 26 April 2011.
[6]
See:
Sage
Wise 24 CC v Vulcania Reinforcing Company (Pty) Limited
2012 JDR 1113 (ECP) at para 10;
Zurcher's Electrical
and Electronics CC v Kennedy
2012 JDR 0062 (ECP).
[7]
Act 33 of 1957
(“the Interpretation Act”).
[8]
In terms of s 15(1) of the
Prescription Act No. 68 of 1969 (“the
Prescription Act&rdquo
;);
it is the
service
of a process whereby the creditor claims payment of a debt that
interrupts the running of prescription.
[9]
Minister of Justice and
Constitutional Development v Mathobela and others
[2007]
ZANWHC 5
(25 January 2007) at para 11.