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[2015] ZAWCHC 87
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Ustica 1153 CC t/a Cape Region Home Sales v Jordaan and Another (A158/2014) [2015] ZAWCHC 87 (9 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A158/2014
DATE:
09 JUNE 2015
In
the matter between:
USTICA
1153 CC t/a
CAPE
REGION HOME
SALES
.............................................................................................
Appellant
And
AMANDA
JORDAAN
..................................................................................................
First
Respondent
STEPHANUS
JORDAAN
........................................................................................
Second
Respondent
Coram:
Ndita et Boqwana JJ
JUDGMENT
DELIVERED
ON 9 JUNE 2015
BOQWANA,
J
Introduction
[1]
This is an appeal from the Goodwood
Magistrates Court. The appellant and respondents were plaintiff and
first and second defendants
respectively in the court
a
quo
. The plaintiff brought an action
claiming commission in the amount of R78 375.00 which it alleged was
due and owing to it pursuant
to the fulfilment of a mandate to find a
purchaser for a property that the defendants wished to sell. The
magistrate dismissed
the plaintiff’s claim with costs on the
basis that it did not succeed in proving that it was entitled to a
commission. The
reasons given by the magistrate for his finding can
be summed up as follows:
2.1 A party is only
entitled to a commission if it is a holder of a fidelity fund
certificate. In this instance a mandate was concluded
with Cape
Region Home Sales [and not with the plaintiff].
2.2 Parties to a
contract must be clearly identified [in the agreement] in order to
ensure legal protection. The defendants dealt
with Cape Region Home
Sales and nowhere [in the documents] is any mention of USTICA 1153
CC. USTICA 1153 CC is a legal entity and
thus it is important as
required by law that its name be clearly reflected on all
documentation. For that reason, the magistrate
was persuaded by the
defendants’ submission that they never dealt with the
plaintiff.
2.3 Jeffrey Erlie
Gordon (‘Gordon’) should have been cited as the second
plaintiff in the matter as he was personally
involved with the
transaction.
Common cause
facts
[2]
It is common cause that during March
2012, the defendants gave a mandate to Cape Region Home Sales to find
a purchaser for them,
in respect of their home situated at Erf 7738,
also known as 70 Smart Rd, Goodwood (‘the property’).
Following the
acceptance of this mandate, the defendants were
introduced by Cape Region Home Sales to one Mohammed Igshaan Ismail
(‘Ismail’).
On 13 April 2012 an offer to purchase
agreement (‘the agreement’) was concluded between the
defendants and Ismail.
[3]
The agreement contained a clause
pertaining to a commission that would be payable to Cape Region Homes
Sales as a sole and effective
cause of the sale. The relevant clause
15 read as follows:
‘
15.
AGENT AND COMMISSION
15.1.1
(sic)
The Seller and the Purchaser acknowledge that CAPE REGION HOME SALES
was the sole and effective cause of this sale. The Purchaser
warrants
that he/she was not introduced to the Property for the purpose of
this sale by any other agency or agent.
15.2
The Seller must pay the agent’s commission of 5
%
(
five percent
)
of the Purchase Price plus VAT, the total being
R78,
375
to
CAPE
REGION HOME SALES.’
..........
15.4 If this
agreement is cancelled because the Purchaser failed to comply with
his/her obligations or through any fault on the
part of the
Purchaser, the Purchaser will be liable to pay the agent’s
commission. In such event, any commission paid by
the Seller to the
agent shall be recoverable from the Purchaser on demand. If this
agreement is cancelled as a result of a failure
on the part of the
Seller, the Seller must pay the Agent’s commission in terms of
this agreement.
[4]
Gordon signed for the benefits of
this agreement on behalf of Cape Region Home Sales on 12 April 2012.
[5]
The defendants cancelled the
agreement. Ismail would not accept the cancellation and instituted
High Court action. After a while
he decided not to proceed with such
action and accepted the defendant’s repudiation. Nothing turns
on this issue.
[6]
The defendants refused to make
payment of the commission upon demand. This led to the institution of
the proceedings at the Magistrates
Court.
[7]
It is further common cause that
USTICA 1153 CC and Gordon have valid fidelity fund certificates. The
certificate issued on 01 January
2012 to USTICA 1153 CC reflects
USTICA 1153 CC as a close corporation and full names of Dorvon
Properties. The certificate issued
to Gordon on the other hand
reflects the Close Corporation as USTICA 1153 trading as Dorvon
Properties. Gordon is referred to as
principal (member at firm).
Issues in
dispute
[8]
The plaintiff (i.e. USTICA 1153 CC
t/a Cape Region Home Sales) alleges that it was the effective cause
of the sale and as a result
had performed its obligations in terms of
the mandate given, and this entitled it to a commission in the amount
of R78, 375
as stipulated in the agreement.
[9]
The
plaintiff alleges further that it is an estate agent which at all
relevant times acted through its member, Gordon. Both it and
Gordon
held fidelity fund certificates and had fidelity insurance at all
relevant times in terms of section 26 of the Estate Agency
Affairs
Act.
[1]
[10]
The defendants, however, deny that
the cited plaintiff had
locus standi.
They deny having mandated or concluded
any contract with the plaintiff. Whilst admitting that Gordon had a
fidelity fund certificate,
they deny that he acted for the plaintiff
but rather on behalf of Cape Region Home Sales. According to them,
the plaintiff was
not entitled to any benefit in terms of an
agreement to which it was neither a party nor a beneficiary.
[11]
Furthermore, on all documentation
including the agreement as well as Cape Region Home Sales’
website no mention is made of
USTICA 1153 CC. The plaintiff is thus
unknown to them.
[12]
The
defendants further challenged the plaintiff to prove that it had
complied with the provisions of section 22 of the Close Corporations
Act
[2]
and section 26 of the
Estate Agency Affairs Act.
[13]
They further called upon the
plaintiff to prove that each and every member of the plaintiff who
was authorised and took part in
management was in possession of the
fidelity fund certificate. On this issue the defendants allege that
the sale agreement was
facilitated, concluded and signed by one
Samantha Day (‘Day’) who was an administrative employee
seemingly in the employ
of Cape Region Home Sales and who was not in
possession of the necessary fidelity fund certificate, whilst
performing an act which
falls within the definition of an estate
agent as envisaged in the Estate Agency Affairs Act.
[14]
They allege further that they were
not told about certain latent defects in the property and were as a
result forced to conclude
an agreement with the buyer to their own
disadvantage (this is however not an issue relevant for the
determination).
Discussion
[15]
The defendants are of the view that
the plaintiff has not been able to show that it has the necessary
locus standi
as
it was not the party they gave the mandate to. The agreement was,
according to the defendants, concluded with Cape Region Home
Sales.
What seems to be the defendants’ concern as submitted by their
counsel, Mr Basson is that there is no documentary
evidence proving
that Cape Region Home Sales was indeed USTICA 1153 CC.
[16]
Mr Basson submitted that Cape Region
Home Sales in fact held itself out to be a firm, or a one man show or
a partnership and not
a close corporation (‘CC’) as
required by law. Accordingly, the plaintiff should have asked the
Court to rectify the
fidelity fund certificate by substituting Dorvon
Properties with Cape Region Home Sales and in fact their actions
amounted to a
criminal offence as contemplated by the provisions of
the Estate Agency Affairs Act and the Close Corporations Act. In that
regard,
the defendants did not need to show that they were
prejudiced.
[17]
Mr Basson argued further that
members of the public would be exposed if anything were to happen
that required payment of the fidelity
fund. In that regard the Estate
Agency Affairs Board could reject any claim on the basis that they do
not know who Cape Region
Home Sales is.
[18]
He therefore contended that because
the plaintiff had not been able to show the link between Cape Region
Home Sales and USTICA 1153
CC (which is a holder of a fidelity fund
certificate), Cape Region Home Sales must be held to be in breach of
section 26 of the
Estate Agency Affairs Act and therefore not
entitled to commission as stipulated in section 34A of the same Act.
The relevant provisions
of that Act provide as follows:
‘
26
Prohibition of rendering of services as estate agent in certain
circumstances. –
No person shall
perform any act as an estate agent unless a valid fidelity fund
certificate has been issued to him or her and to
every person
employed by him or her as an estate agent and, if such person is –
(a)
a company, to every director of that
company; or
(b)
a close corporation, to every member
referred to in paragraph (b) of the definition of “estate
agent” of that corporation’
‘
34
A. Estate agent not entitled to remuneration in certain
circumstances.
– (1)
No
estate agent shall be entitled to any remuneration or other payment
in respect of or arising from the performance of any act
referred to
in subparagraph (i), (ii), (iii) or (iv) of paragraph (a) of the
definition of “estate agent”, unless
at the time of
the performance of the act a valid fidelity fund certificate has been
issued –
(a)
to such estate agent
;
and
(b)
if such estate is a company, to every
director of such company of, if such estate agent is a close
corporation, to every member
referred to in paragraph (b) of the
definition of “estate agent” of such corporation.
(2)
No person referred to in paragraph (c) (ii) of the definition of
“estate agent”, and no estate agent who employs
such
person, shall be entitled to any remuneration or other payment in
respect of or arising from the performance by such person
of any act
referred to in that paragraph, unless at the time of the performance
of the act a valid fund certificate has been issued
to such person.’
(Own emphasis)
[19]
In
Ronstan
Investments (Pty) Ltd and Another v Littlewood
[3]
,
the Court confirmed that a person who contravenes section 26 of the
Estate Agency Affairs Act is not entitled to remuneration
for the
performance of the act and also commits a criminal offence in terms
of section 34 of that Act. The Supreme Court of Appeal
considered the
purpose of the introduction of section 34A in the decision of
Taljaard
v TL Botha Properties
[4]
.
It held as follows at paragraph 209 C-E:
‘
Section
34A does not in terms invalidate the contract of mandate of an estate
agent who acts in conflict with s 26. Bearing in mind
that the
section was introduced in response to the judgment in
Noragent
– which had held that a
contravention of s 26 of the Act did not invalidate the contract of
mandate – it is inconceivable
that the section would not have
provided expressly for invalidity if that had been the intention with
which the section was introduced.
I think it is clear – as the
court below found –
that the
validity of a contract of mandate is unaffected by an act of the
estate agent in breach of s 26. In those circumstances
the payment
that was made in this case was made pursuant to a valid contract and
is not recoverable by the
condictio
.
.....
..It
was not enacted for the benefit of clients who have incurred a
contractual obligation to pay remuneration to an estate agent
who has
performed his or her mandate – I have already held that the
contract giving rise to the obligation remains valid
notwithstanding
the breach of s 26 – but rather to penalize estate agents who
have breached the section.
An estate agent who claims remuneration
in conflict with s 34A might expose himself or herself to criminal
sanction, and will be
prevented from enforcing his or her claim,
but I do not think it follows by necessary implication that a client
who has settled his or her contractual obligation is accorded
a right
of action for its return. (Own emphasis)
[20]
As
Eksteen J put it in the decision of
Warren
Jack Property Brokers CC t/a Warren Jack Property Group and Another v
Venter
[5]
,
‘
...
the
mischief which section 34A seeks to address is not to protect members
of the public against unregistered estate agents, on the
contrary
such members of the public enjoy no protection as their contract
giving rise to their obligation to pay commission is
valid and where
a member of a public, unaware of the estate agent’s default,
has paid that commission he is bound by that
contract. He cannot
claim his money (see Taljaard supra). The purpose of the section is
to “penalise the estate agents”
who have breached section
26.’
[21]
The legal requirements imposed by
section 26 that any person performing the acts of an estate agent
must have a valid fidelity fund
certificate and the consequences
flowing from non-compliance with that section are not in dispute in
the present matter, so is
the validity of the agreement. The issue
before this Court rests on whether Cape Region Home Sales and USTICA
1153 CC were one
and the same.
[22]
Gordon gave evidence during the
trial that USTICA 1153 CC is a shelf company, he never used that name
and people knew the trading
name Cape Region Home Sales. According to
him, Cape Region Home Sale was USTICA 1153 CC’s trading name.
It did not exist
as a separate legal entity. When he had dealings
with the defendants he introduced himself as ‘Jeff Gordon’
from Cape
Region Home Sales. He admitted that the sale agreement was
at all relevant times facilitated under the name and style of Cape
Region
Home Sales. He also confirmed that on all documents and the
website there was no mention of the name USTICA 1153 CC. He however
mentioned that in most cases in the real estate business, the estate
agents introduced themselves with their trading names and
their
operations are conducted as such successfully so.
[23]
Gordon testified further that he is
a member of USTICA 1153 CC and in this matter he acted in his
capacity as an agent. When he
started as an estate agent in 2004 in
Kimberly he used Dorvon Properties as a trading name. That changed
when he came to Cape Town
when he used the name Cape Region Home
Sales. He has since applied to the Estate Agency Affairs Board to
have the trading name
changed. He has written letters and emails to
have the trading name changed but the Estate Agency Affairs Board has
not done so.
The Estate Agency Affairs Board however is aware of Cape
Region Home Sales because they have to send financial documents there
under that name. Gordon was cross-examined extensively by Mr Basson.
He maintained that he did not need a fidelity fund certificate
for
Cape Region Home Sales as he had one for USTICA 1153 CC.
[24]
I find Gordon’s testimony to
be convincing. It is so that he made several admissions as indicated
by Mr Basson. The admissions
he made, however, did not affect the
credibility of his evidence, in my view. In fact, he appeared to be a
frank witness. I did
not get a sense that he deliberately withheld or
hid the fact that Cape Region Home Sales was only a trading name with
USTICA 1153
CC as the legal entity behind it. Gathering from Mr
Basson’s argument, the nub of the issue, it seems, is a lack of
a document
confirming the link between USTICA 1153 CC and Cape Region
Home Sales.
[25]
I am not persuaded that Gordon’s
testimony linking Cape Region Home Sales as the trading name of
USTICA 1153 CC should be
rejected only on the basis that it is not
supported by any documentary evidence. Gordon testified under oath
and there was no evidence
led by the defendants to disprove his
testimony.
[26]
He explained why Dorvon Properties
still appeared on the fidelity fund certificates as a trading company
and I find his explanation
to be plausible. Whilst documentary
evidence would have helped to strengthen the plaintiff’s case,
lack thereof does not
mean the plaintiff has been unable to prove its
case.
[27]
There are other facts which support
Gordon’ testimony, in my view, which are that: he was involved
and signed the offer of
purchase on behalf of Cape Region Home Sales
during its dealings with the defendants and he was the member of
USTICA 1153 CC as
reflected in the fidelity fund certificate.
Furthermore, both he and USTICA 1153 CC had the valid fidelity fund
certificates. In
my view, the link between Cape Region Home Sales and
USTICA 1153 CC has been established.
[28]
In
support of the plaintiff’s case Mr Nel, who appeared for the
plaintiff, referred to the judgment of
Hillview
Properties (Pty) Ltd v Strijdom and Another
[6]
where
a company prematurely and bona fide used a name that it intended to
adopt. In that case a resolution for a change of name
from Roybent
(Pty) Ltd to Finlandia had been adopted and a new name had been
reserved. A lease agreement was concluded between
the appellant,
Hillview and Finlandia, which was not registered at that time. The
Court held that the matter before it was not
that of an error
in
persona
.
‘It was not a case of entering into a contract with A in the
erroneous belief that it is B.
There
was only one person involved, namely Roybent (Pty.) Ltd., and this
person contracted under a name not yet his own
.
The
applicant intended to deal with the persons who signed as lessees and
the only error, which was an error common to the parties,
was
irrelevant because if the true name had been given the contract would
also have been concluded.
’
[29]
The court went on to say at 304:
‘“
Wherever
the consideration of the person with whom I contract is an ingredient
of the contract which I intend to make, an error
respecting the
person destroys my consent and consequently annuls the agreement.
(Portion omitted.) On the contrary, when the consideration
of the
person with whom I suppose myself to contract, forms no ingredient in
the contract, and I should equally have made the contract
with any
other person, the contract would be valid.”
A
fortiori
,
so I believe, will the contract be valid if the error affects not
even the identity of the person but only the name he used in
circumstances which exclude fraud
.’
(Own emphasis)
[30]
The Court referred to American
jurisprudence and cited various American cases as authority relevant
to the issues before it. It
made reference to the case of
Brotherhood
State Bank v Chapman
(1927) 56 A.L.R. 447
where the Federal Supreme Court said:
“‘
The
general rule of law seems to be that a corporation may contract and
do business in an assumed name, as well as can an individual,
and be
bound thereby in its corporate capacity.’
[31]
The Court came to the conclusion
that a contract in which a company prematurely and bona fide uses a
name which it intends to adopt
is, in the absence of fraud a valid
contract.
[32]
Mr Basson argued that the present
matter is distinguishable because there is error
in
persona
unlike in the
Hillview
matter. The issue is not the validity of the contract. The defendants
accept that the contract is valid but it is valid between
them and
Cape Region Home Sales (a different party). According to Mr Basson,
the defendants pleaded that a wrong party was suing
them and they
challenged the plaintiff to prove that it was a party that they
contracted with. In this case the validity of the
agreement is not
challenged unlike in
Hillview
.
The issue in
Hillview
was
whether contracting in the wrong name invalidated the agreement.
Furthermore, he argued, the registration number of the company
was in
that case the same, and the entity could easily be identifiable and
it could not be disputed that Roybent and Finlandia
were the same
entity.
[33]
In my view, if it is accepted that
the plaintiff and Cape Region Home Sales are one and the same there
is no error
in persona
.
Although the issues in
Hillview
were slightly different, that decision becomes relevant on the
question of whether the plaintiff is entitled to enforce the
rights
flowing from a contract in which its registered name does not appear.
In this regard, quoting from p.
142 of the
Brotherhood State Bank
case where reference is made to
Wm.
Gilligan Co. v. Casey, (1910)
,
the Court in
Hillview
goes
on to state that:
“
a
corporation may assume or may be known by, different names, and
contract accordingly, and a contract so entered into will be valid
and binding if unaffected by fraud, the validity, so far as third
parties are concerned, not depending on whether it is as well
known
by that name as by its true name, but whether the name is used in
good faith by the party adopting it as description personae.”
There are several
well known in this country, notably two large insurance concerns,
which widely use a nickname...’
[34]
If
one adopts the reasoning of the Court in
Hillview,
if
fraud is not involved and the name was used bona fide, then the
contract is valid and binding between the third party and the
entity
in its true name. In the present matter there was no evidence to
suggest that the name Cape Region Home Sales was used in
bad faith or
with the intention to defraud. There is also no indication that
it would have mattered to the defendants if
they were told that the
true name and thus the identity of the party they were contracting
with was USTICA 1153 CC.
[7]
Gordon testified that he was an agent acting for USTICA 1153 CC.
[35]
As
regards to the issue of the defendants not being made aware that they
were dealing with a close corporation, section 23 of the
Close
Corporations Act read with the section 32 of the Companies Act
[8]
require that persons who have dealings with a close corporation be
afforded details of the corporation’s identity and that
of its
members.
[9]
A person who fails
to comply with section 23 commits a criminal offence. An offence is
committed irrespective of whether the third
party knows about the
true facts of the corporation.
[10]
Section 22(1) of the Close Corporation Act states that
:
‘
(1)
The abbreviation CC, in capital letters, or its equivalent in any
other official language, shall be subjoined to the name used
by a
corporation.’
[36]
I
am in agreement with Mr Basson that sections 22 and 23 of the Close
Corporations Act and sections 26 and 34A of the Estate Agency
Affairs
Act are there to protect the public. Non-compliance with these
provisions may in some instances result in criminal offences.
There
may also be personal liability imposed on members in terms of section
63 (a) of the Close Corporations Act, in some instances.
[11]
Contravention of the Close Corporation provisions, however, does not
in my view, affect the validity of a transaction between contracting
parties. It also does not disentitle a party to a benefit flowing
from an act performed in terms of a valid contract as is the
case,
for instance, in section 34A of the Estate Agency Affairs Act. I also
did not get an impression from Mr Basson that those
provisions had
that effect. Infringement of those provisions, if any, would
therefore not affect the plaintiff’s claim.
[37]
It would be recalled that earlier on
in this judgment I indicated that one of the issues raised by the
defendants was that Day held
herself out as an estate agent by
performing duties which fell within the ambit of the acts of an
estate agent as defined in the
Estate Agency Affairs Act, whilst not
being in possession of the necessary fidelity fund certificate. Both
Gordon and Day testified
that she was not an estate agent but an
office administrator employed by the plaintiff. She testified that
she knew the defendants
personally and they preferred to talk to her.
She sometimes filled in information in agreements to save time and
assisted the agents.
She is reflected on the email correspondence as
office administrator.
[38]
The Estate Agency Affairs Act
contains a long definition of what an Estate Agent is. An Estate
Agent is defined, inter alia, as:
a)
‘
...any person who
for
the acquisition of gain on his own account
or in partnership, in any manner
holds
himself out as a person
who, or
directly or indirectly advertises
that he,
on the instructions of or on
behalf of any other person
–
(i)
Sells or purchases or publicly exhibits for
sale immovable property or any business undertaking or negotiates in
connection therewith
or canvasses or undertakes or offers to canvas
a seller or purchaser therefor, or
(ii)
Lets or hires or publicly exhibits for hire
immovable property or any business undertaking or negotiates in
connection therewith
or canvasses of undertakes or offers to canvass
a lessee or lessor therefor, or
(iii)
Collects or receives any moneys payable on
account of a lease of immovable property or any business undertaking;
or
(iv)
Renders any such other service as the
Minister on the recommendation of the board may specify from time to
time by notice in the
Gazette;
...’
[39]
In
the matter of
Rogut
v Rogut
[12]
the
Court held that in determining whether the person is an estate agent,
for the purposes of the Estate Agency Affairs Act, the
key words in
the definition of an estate agent in section 1 of the Act are “holds
out” or “advertises”.
The ‘holding out’
or ‘advertising’ must precede the instructions or
mandate. Without such holding out or
advertising there cannot be an
estate agent as defined. The expression ‘holds himself out’
in section 1, according
to the Court in
Rogut
means
‘represents’.
[13]
[40]
Day was apparently listed as an
agent on the website of Cape Region Home Sales. Gordon explained this
by saying that their website
did not have a separate page for office
administrator. According to him, Day has never been an estate agent
and has never claimed
to be one. Her business card and email
reflected that. He testified that even though under Day’s name
there is reference
to agent, if one clicked under her name there will
be no listings because she did not do listings. Her telephone numbers
were listed
because she was the office administrator. He conceded
that they made a mistake by not creating a separate column for her.
[41]
Having considered all the relevant
evidence, I am satisfied that Day merely attended to administrative
duties on behalf of the plaintiff
and did not act as an estate
agent in the manner described in paragraphs (a)(i) to (a)(iv) of the
definition in the Estate
Agency Affairs Act. She accordingly was not
required to have a fidelity fund certificate.
[42]
Lastly, the suggestion by the
magistrate that Gordon should have been cited as the second plaintiff
as he was involved with the
transaction is misdirected as he acted as
an agent. The commission was therefore not due to him.
[43]
For the reasons set out above the
magistrate erred, in my view, by coming to the conclusion that the
plaintiff had failed to prove
its claim. His decision should
therefore be set aside.
[44]
In the result, I propose an order in
the following terms:
1.
The appeal is upheld with costs.
2.
The magistrate’s decision is set
aside and replaced with the following order:
2.1
The first and second defendants are ordered
to pay to the plaintiff jointly and severally, the one to pay and the
other to be absolved:
2.1.1 An
amount of R78 375.00;
2.1.2 Interest
thereon at the rate of 15.5% per annum
a tempore morae
from date of summons to date of payment;
2.1.3
Costs of suit.
N
P BOQWANA
Judge
of the High Court
I
agree, and it is so ordered
T
C NDITA
Judge
of the High Court
APPEARANCES
FOR
THE APPELLANT: Adv. J. A. B. Nel
Instructed
by: Bailey Haynes Inc., Cape Town
FOR
THE RESPONDENTS: Adv. M Basson
Instructed
by: Johan Victor Attorneys, Cape Town
[1]
Act
No. 112 of 1976
[2]
Act
No. 69 of 1984
[3]
2001
(3) SA 555
(SCA) at para 27
[4]
2008
(6) 207 (SCA)
[5]
(CA
156/2011) [2012] ZAECGHC 59 (27 July 2012) at para 20
[6]
1978
(1) 302 (TPD)
[7]
See
Sechold Financial Services (Pty) Ltd v Gazankulu Development
Corporation Ltd
[1997] ZASCA 18
;
1997 (3) SA 391
(SCA) at 403E/F and 404 A –B/C
and 404E
[8]
Act
No. 71 of 2008
[9]
See
Henochberg
on the Close Corporations Act, [Issue 26], Com-52, Vol 3. In terms
of section 23 of the Close Corporations Act ‘Section
32 of the
Companies Act[9], read with the changes required by the context,
applies to a corporation, but a reference in that
section to a
company must be regarded as a reference to a corporation for the
purposes of this Act’
[10]
See
Henochberg
on the Close Corporations Act, [Issue 26], Com-52, Vol 3
[11]
In
this regard see Henochberg on the Close Corporations Act, [Issue
26], Com-50, Vol 3
[12]
1982(3)
928 AD at 937H to 938C
[13]
See
Rogut v Rogut
supra
at
935E