REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number : 2024- 015687
In the matter between:
In the matter between:
KENNETH KEVIN CRITCHFIELD APPLICANT
And
ORANGE PALLET (PTY) LTD 1
ST RESPONDENT
CYRIL WHITBREAD ATKINSON 2ND RESPONDENT
JOHN RICHARD GIBB 3RD RESPONDENT
THE COMPANIES AND INTELLECTUAL 4TH RESPONDENT
PROPERTY COMMISSION
___________________________________________________________________
JUDGMENT
Johann Gautschi AJ
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _________________________
DATE SIGNATURE
[1] In this application the Applicant seeks orders to set aside the transfer and
registration of shares in the Third Respondent on the basis that those shares had
been registered in the name of the Applicant and that the Second and Third
Respondents had fraudulently caused those shares to be transferred and
registered the names of the Second and Third Respondent s.
[2] The relief sought by the Applicant to achieve the aforegoing includes orders
setting aside a resolution dated 25 August 2009 signed by the Second and Third
Respondents as directors of the First Respondent as well as orders declaring
and directing the setting aside of the two CM 42 securities transfer forms which
were lodged to effect registration of the shares respectively into the names of the
Second and Third Respondents .
[3] The application is opposed by the First Second and Third Respondents
(hereinafter also referred to as the Respondents).
[4] At first blush it is indeed startling that the Applicant chose to institute these motion
Court proceedings despite anticipating that the Second and Third Respondents
would raise disputes of fact in response to the Applicant’s allegations of
fraudulent conduct on their part.
[5] The Applicant submits that it was justified proceed by way of notice of motion on the basis that when applying a “ robust common sense approach”, the
Respondents’ version falls to be rejected on the papers because Respondents’
it is so “ far-fetched, wholly fanciful and untenable” that it does not constitute real,
genuine and bona fide dispute.
[6] During oral argument I expressed my prima facie reservations to counsel for the
Applicant as to whether it would be appropriate to grant the relief sought having regard to the issues raised by the Respondents. That resulted in counsel for the
Applicant submitting that on the facts of the present case it would be appropriate
to refer this matter to trial and reserve the costs of this application to be
determined by the trial court.
[7] Having carefully considered the heads of argument and oral submissions of the
parties , I am persuaded that on the facts of the present case and on the
authorities referred to by counsel for the Applicant,1 this is indeed a matter which
should be referred to trial and to preserve the costs of this application for
determination by the trial court. I shall briefly explain my reasoning in coming to
this conclusion.
[8] The following facts are not in dispute.
[9] In November 2006 the Applicant was appointed as a director of the First
Respondent and was allocated 138 shares in the First Respondent which were
registered in his name as also reflected in a share certificate dated 27 November
2006.
[10] By letter dated 25 August 2009 the Applicant formally and in writing resigned as
a director of the First Respondent .
[11] There exists no document recording the Applicant having relinquished his shares
in the First Respondent.
[12] There is a resolution of the First Respondent dated 27 November 2010 signed
by the Applicant and the Second and Third Respondents recording that “ We, the
undersigned, being members representing the total issued share capital of the
company hereby consent to the appointment of O ctagon as auditors of the
company – –“.
[13] Contrary to that document which recognises the Applicant as a shareholder of
the First Respondent as at 27 November 2010, the Respondents ’ case is that on
25 August 2009 the Applicant had already relinquished his shares in favour of
the Second and Third Respondents. The Respondent's heads of argument
submit that because it was so “ orally agreed and understood” on 25 August 2009,
the Second and Third Respondent “immediately became the beneficial owners of the shares“ . This must be read with the following s tatement in the
Respondents’ attorney’s letter dated 24 January 2024: “Your client walked away
1 Pressma Services (Pty) Ltd v Schuttler and another 1990 (2) SA 411 (C) ; Van Aswegen And
Another v Drotskie nd another 1964 (2) SA 391 (O)
from the company when he resigned and the shares were transferred pursuant
to the agreement between the parties. This is furthermore borne out by the fact
that your client had no contact with or involvement with the business affairs of
the company until 23 August 2023 (approximately 14 years after your client
severed ties with the company) when your client’s asset manager Mr Dean West
enquired as to the status of your client’s alleged shareholding.” .
[14] Also contrary to the aforementioned 27 November 10 resolution, there is a document headed “Resolution passed by the directors of the company at
Johannesburg on the 25
th day of August 2009” signed by the Second and Third
Respondents which states: “ Resolved that the following share transfers be and
are hereby approved and confirmed – – 3 Shares registered in the name of
Kenneth Kevin Critchfield turn into the name of John Richard Gibb” and “ 135
Shares registered in the name of Kenneth Kevin Critchfield to and into the name
of Cyril Whitbread Atkinson”.
[15] Finally, the two CM 42 forms (securities transfer form) relating to the aforementioned 25 August 2009 transfer of the Applicant’s shares to the Second
and Third respondents are undated do not contain the signature of the Applicant.
[16] In my view the aforementioned undisputed facts justified the Applicant’s decision to proceed by way of motion proceedings in anticipation that the Respondents
would not be able to raise a genuine and bona fide dispute of fact.
[17] However, despite that, having regard to the contents of the affidavits filed by the
parties, I am of the view this is not a matter in which it would be appropriate to
grant the relief sought by dismissing the Respondents’ version on paper. In
arriving at this conclusion I specifically refrain from making any comments on the
probability or otherwise of the Respondents’ version as this should be left to the
trial court.
ORDER:
[1] This matter is ordered to be referred to trial, with the notice of motion to stand as
a simple summons.
[2] The Applicant is directed to file a declaration within 20 days after the date of this
judgment.
[3] The costs of this application are to stand over for determination by the Trial Court.
___________________________
Johann Gautschi AJ
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicants: ADV S P PINCUS SC
Instructed by: ADRIAAN ENGELBRECHT ATTORNEYS
(011 678 6994)
For the First ,Second, and Third Respondent s: ADV H B MARAIS SC
Instructed by: HOWARDS WOLF ATTORNEYS
(011 268 8400)