Subject index outline

C2 Compromises
D1 COMPANIES ACT AND CLOSE CORPORATIONS IN GENERAL

Company law – Company directors – Orders of delinquency in terms of section 162(5)(c) of the Companies Act 71 of 2008 – Directors found to have been guilty of gross abuses of their positions, in circumstances where they owed a fiduciary duty to ensure that company complied with terms of an agreement – Orders of delinquency justified. Gihwala and others v Grancy Property Ltd and others [2016] 2 All SA 649 (SCA)

Companies-Deregistration -Mining and minerals – Companies – interpretation and application of s 56(c) of the Mineral and Petroleum Resources Development Act 28 of 2002 and s 73(6A) of the Companies Act 61 of 1973 – deregistration of a company which is the holder of a mineral prospecting right does not result in that company irretrievably losing that right – subsequent restoration of company’s registration having the legal effect of retrospectively reviving the lapsed prospecting right. Palala Resources (Pty) Ltd v Minister of Mineral Resources And Energy and Others (479/15) [2016] ZASCA 80 (30 May 2016)

Company law –  interpretation of s 26(2) of the Companies Act 71 of 2008 – provides an unqualified right of access to a company’s securities register – person’s motive for access not relevant – right of access not subject to the provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA). Nova Property Group Holdings v Cobbett (20815/2014) [2016] ZASCA 63 (12 May 2016)

Company law – Company directors – Orders of delinquency in terms of section 162(5)(c) of the Companies Act 71 of 2008 – Directors found to have been guilty of gross abuses of their positions, in circumstances where they owed a fiduciary duty to ensure that company complied with terms of an agreement – Orders of delinquency justified. Gihwala and others v Grancy Property Limited and others [2016] JOL 35573 (SCA)

Companies-Civil procedure – Default judgment – Section 424(1) – Companies Act 61 of 1973 – Personal liability of members of close corporation – Acting recklessly in conducting affairs of company – Granting of order under section 424(1) of Companies Act 61 of 1973 by default where no evidence has been adduced – Erroneous within meaning of rule 42(1)(a) – Uniform Rules of Court Minnaar v Van Rooyen NO [2015] JOL 33908 (SCA)

Company law – Members of company – Right to vote at general meeting – Member’s right to vote at a general meeting would ordinarily fall within the category of personal membership rights and not corporate rights. Communicare and others v Khan and another [2015] JOL 33681 (SCA)

Company law – Security register of company – Shareholder not reflected in register – Effect on ownership of shares – Owner (or the registered member) can sell certificated shares and cede the rights attached to them, passing the property in them independently of and prior to the registration of the purchaser. Du Plooy NO and others v De Hollandsche Molen Share Block Ltd and another

[2016] 1 All SA 748 (WCC)

Directors-Investment agreement – express and tacit terms – breach – damages – heads of damage – claims not excluded by rule in Foss v Harbottle – declaration of delinquency in terms of section 162(5)(c) of the Companies Act 71 of 2008 – section applies in cases of substantial misconduct by directors – not retrospective in its operation – section a rational response to the problem of delinquency by directors – not unconstitutional – circumstances justifying the making of a declaration of delinquency. Gihwala v Grancy Property Ltd (20760/2014) [2016] ZASCA 35 (24 March 2016)

Close corporations – Restoration of registration after deregistration – Close Corporations Act 69 of 1984, section 26(7) – Effect of – Retrospectively validates legal proceedings instituted during the period of deregistration, and interrupts prescription CA Focus CC v Village Freezer t/a Ashmel Spar [2016] JOL 33583 (SCA)

Companies Act 2008-Derivative action-section 165(5) of the Companies Act, 2008 Mbethe v United Manganese of Kalahari (Pty) Ltd (42213/2014) [2016] ZAGPJHC 8 (11 February 2016)

Directors and officers — Liability for debts of company — Court cannot make prescribed finding of recklessness or intent to defraud without hearing evidence — Grant by default of order under s 424(1) of Companies Act 61 of 1973 not permitted. Minnaar v Van Rooyen NO 2016 (1) SA 117 (SCA)⁵

Directors-s 424 of the Companies Act, 61 of 1973- reckless and/or fraudulent conduct in respect of a company’s business Noordman N.O. and Another v Bruin (3635/2013) [2016] ZAFSHC 9 (29 January 2016)

E SECURITIES IN GENERAL

Security-Lease — Huur gaat voor koop rule — When applicable — Inapplicability of rule to 'collateral rights' unconnected with lease — Exclusivity clause in lease agreement integral part of that lease and not collateral right. Masstores (Pty) Ltd v Pick 'N Pay Retailers (Pty) Ltd and another 2016 (2) SA 586 (SCA) 

Security-Mortgage bond — Nature — Not only applying to immovable property — Special notarial bond constituting mortgage bond — Security by Means of Movable Property Act 57 of 1993, s 4; Insolvency Act 24 of 1936, s 2. Land and Agricultural Development Bank of South Africa t/a The Land Bank v Factaprops 1052 CC and another 2016 (2) SA 477 (GP)
Security-Notarial bond — Special notarial bond — Nature — Constituting mortgage bond — Security by Means of Movable Property Act 57 of 1993, s 4; Insolvency Act 24 of 1936, s 2. Land and Agricultural Development Bank of South Africa t/a The Land Bank v Factaprops 1052 CC and another 2016 (2) SA 477 (GP)
Security-Notarial bond — Special notarial bond Extinctive prescription — Period of prescription — Debt secured by special notarial bond — Special notarial bond constituting mortgage bond to which 30-year prescription period applying — Prescription Act 68 of 1969, s 11(a)(i). Land and Agricultural Development Bank of South Africa t/a The Land Bank v Factaprops 1052 CC and another 2016 (2) SA 477 (GP)
Security-Usufructuary - person in charge-consent of usufructuary essential- Land — Unlawful occupation — Eviction — Statutory eviction — Unlawful occupier — Whether holder of bare ownership in context of usufruct could be unlawful occupier — Prevention of Illegal Eviction from and Unlawful Occupation of Land Act October and another NO v Hendricks and another 2016 (2) SA 600 (WCC)

Mortgage bond — Validity — May secure debt arising from enrichment claim. Panamo Properties 103 (Pty) Limited v Land and Agricultural Development Bank of South Africa 2016 (1) SA 202 (SCA)⁶

CASE NAMES

2001 Management Services (Pty) Limited and Another v Anappa (88079/14) [2016] ZAGPPHC 353 (20 May 2016)

ABSA Bank Limited v Hammerle Group (Pty) Ltd [2016] JOL 33570 (SCA)

ABSA Bank Limited v Naude NO and others [2015] JOL 33323 (SCA)

Absa Bank Ltd v Van Zyl NO and Another (35976/2015) [2016] ZAGPPHC 247 (22 April 2016)

Avantech Ltd v Fryer and Another (70750/14) [2016] ZAGPPHC 49 (5 February 2016)

Burco Civils CC v Stolz and Another (26201/15) [2016] ZAGPPHC 350 (19 May 2016)

Button NO and others v Akbur and others [2016] JOL 34153 (KZD)

CA Focus CC v Village Freezer t/a Ashmel Spar [2016] JOL 33583 (SCA)

Casey and another v FirstRand Bank Ltd [2016] JOL 33584 (SCA)

Cilliers and others v Steenkamp and others [2016] JOL 34781 (WCC)

City of Tshwane Metropolitan Municipality v Mitchell [2016] 2 All SA 1 (SCA)

City of Tshwane Metropolitan Municipality v PJ Mitchell (38/2015) [2016] ZASCA 1 (29 January 2016)

Communicare and others v Khan and another [2015] JOL 33681 (SCA)

Constantia Insurance Company Limited v Master of the High Court, Johannesburg and Others (23968/2015) [2016] ZAGPJHC 121 (13 May 2016)

Cowan v Hathorn NO and others [2016] JOL 33589 (SCA)

Diener NO v Minister of Justice (30123/2015) [2016] GP

Du Plooy NO and others v De Hollandsche Molen Share Block Ltd and another
[2016] 1 All SA 748 (WCC)

Engen Petroleum Limited v Plastic Brown Containers (Pty) Ltd (11693/2014) [2016] ZAKZDHC 20 (10 May 2016)

Eravin Construction CC v Bekker NO (20736/2014) [2016] ZASCA 30 (23 March 2016)

Ex Parte Concato and similar cases 2016 (3) SA 549 (WCC) ALSO: [2016] 2 All SA 519 (WCC)

Ex parte Harris (Fairhaven Country Estate (Pty) Ltd as intervening party)
[2016] 1 All SA 764 (WCC)

Ex parte: Connoway and Four Others (5873/2016, 6168/2016, 6167/2016, 6166/2016, 6002/2016) [2016] ZAWCHC 62 (24 May 2016)

Gap Merchant Recycling CC v Goal Reach Trading 55 CC 2016 (1) SA 261 (WCC) 
Gihwala and others v Grancy Property Limited and others [2016] JOL 35573 (SCA)

Gihwala and others v Grancy Property Ltd and others [2016] 2 All SA 649 (SCA)

Gihwala v Grancy Property Ltd (20760/2014) [2016] ZASCA 35 (24 March 2016)
Golden Dividend 339 (Pty) Ltd and Another v Absa Bank Limited (569/2015) [2016] ZASCA 78 (30 May 2016)

Griessel and another v Lizemore and others [2016] JOL 34038 (GJ)

Griffiths v Janse Van Rensburg and another NNO 2016 (3) SA 389 (SCA)

Griffiths v Janse van Rensburg NO and another [2016] 1 All SA 643 (SCA)

Harris v Fairhaven Country Estate (Pty) Limited (9357/2015) [2016] ZAWCHC 4 (26 January 2016)

Hlumisa Investment Holdings (RF) Limited and another v Van der Merwe NO and others [2016] JOL 34326 (GP)

Investec Bank Limited v Le Roux (575/2014) [2016] ZAGPJHC 11 (11 February 2016)

Kingdom Films and others v Kaplan NO and another [2016] JOL 36001 (GJ)

Knipe and Another v Noordman N.O. and Others (A230/2014) [2016] ZAFSHC 86 (2 June 2016)

Knoop NO and others v Birkenstock Properties (Pty) Ltd and others
[2015] JOL 33788 (FB)

Lagoon Beach Hotel (Pty) Ltd v Lehane NO a.o. 2016 (3) SA 143 (SCA) 

Lagoon Beach Hotel (Pty) Ltd v Lehane NO and others [2016] 1 All SA 660 (SCA)

Land and Agricultural Development Bank of South Africa t/a The Land Bank v Factaprops 1052 CC and another 2016 (2) SA 477 (GP)

Liu v Roering NO and Another (25713/2016) [2016] ZAGPPHC 205 (15 April 2016)

Loots v Nongoma Medical Centre CC and Another (5639/2016) [2016] ZAWCHC 76 (24 June 2016)

Masilo N.O and Others v Betterbridge (Pty) Limited (37/2015) [2016] ZASCA 73 (25 May 2016)

Masstores (Pty) Ltd v Pick 'N Pay Retailers (Pty) Ltd and another 2016 (2) SA 586 (SCA) 

Mayo NO v De Montlehu  2016 (1) SA 36 (SCA) ⁷

Mbethe v United Manganese of Kalahari (Pty) Ltd (42213/2014) [2016] ZAGPJHC 8 (11 February 2016)

Minnaar v Van Rooyen NO [2015] JOL 33908 (SCA)

Minnaar v Van Rooyen NO 2016 (1) SA 117 (SCA)⁸

Naidoo and others v Kalianjee NO and others 2016 (2) SA 451 (SCA)

Nation Unlished Trading CC t/a Engennering Drawing And Design v Bulk Petroleum Supplies (Pty) Ltd (4859/2016) [2016] ZAWCHC 70 (10 June 2016)

Newton Global Trading (Pty) Limited (Under Business Rescue) v Da Corte
[2015] JOL 34899 (SCA)

Ngwato v Van der Merwe NO (2014/28470) [2016] GJ (6 May 2016)

Noordman N.O. and Another v Bruin (3635/2013) [2016] ZAFSHC 9 (29 January 2016)

Nova Property Group Holdings v Cobbett (20815/2014) [2016] ZASCA 63 (12 May 2016)

October and another NO v Hendricks and another 2016 (2) SA 600 (WCC)

Oelofsen NO and Another; In re: Oelofsen NO and Another v Bamboo Rock 1215 CC and Others (8949/16) [2016] ZAGPPHC 245 (21 April 2016)

Osborne v Cockin and Others; Osborne v Cockin N.O. and Others (5618/2015, 6053/2015) [2016] ZAECGHC 19 (12 April 2016)

Palala Resources (Pty) Ltd v Minister of Mineral Resources And Energy and Others (479/15) [2016] ZASCA 80 (30 May 2016)

Panamo Properties 103 (Pty) Limited v Land and Agricultural Development Bank of South Africa 2016 (1) SA 202 (SCA)⁹

Pinfold and others v Edge to Edge Global Investments Limited [2016] JOL 35152 (KZD)

Pouroullis v Market Pro Investments 106 (Pty) Ltd (South African Bank of Athens Ltd and Absa Bank Ltd (20370/2015) [2016] ZAGPJHC 12 (12 February 2016)

Reddy v ABSA Bank Limited and others [2015] JOL 33305 (SCA)

Roering NO and Another v Mahlangu and Others (581/2015) [2016] ZASCA 79 (30 May 2016)

Safari Thatching Lowveld CC v Misty Mountain Trading 2 (Pty) Ltd 2016 (3) SA 209 (GP) 

Schickerling NO and Another v Chickenland (Pty) Ltd t/a Nando's (22712/2016) [2016] ZAGPPHC 208 (15 April 2016)

Shanmugam v Peter N.O and Others (11638/2015) [2016] ZAKZDHC 16 (20 April 2016)

Shanmugam v Peter NO and others [2016] JOL 36072 (KZD)

Southern Value Consortium v Tresso Trading 102 (Pty) Limited (Klopper NO and another as intervening business rescue practitioners)

[2015] JOL 34787 (WCC)

Stalcor (Pty) Ltd v Kritzinger NO and Others (1841/2012) [2016] ZAFSHC 6 (21 January 2016)

Standard Bank of South Africa Limited A-Tteam Trading CC 2016 (1) SA 503 (KZP)
Standard Bank of South Africa Limited v Gas 2 Liquids (Pty) Limited (45543/2012) [2016] GJ (10 March 2016)

Stander v Van den Berg (60296/2013) [2016] ZAGPPHC 7 (21 January 2016)

Swart v Heine (192/15) [2016] ZASCA 16 (14 March 2016)

Swart v Starbuck and Others (20785/2014) [2016] ZASCA 83 (30 May 2016)

Tshwane City v Uniqon Wonings (Pty) Ltd 2016 (2) SA 247 (SCA)

Van Der Merwe and Others v Zonnekus Mansion (Pty) Ltd and Others (4653/2015B) [2016] ZAWCHC 11 (18 February 2016)

Van Zyl N.O and Others v Master of the High Court of South Africa, Western Cape Division, Cape Town and Another (7892/2015) [2016] ZAWCHC 51 (11 May 2016)

Voltex (Pty) Limited trading as Voltex Bramley v Mnguni
[2016] JOL 35898 (GJ)

Werksmans Incorporated v Praxley Corporate Solutions (Pty) Limited
[2016] JOL 34039 (GJ)

Zwarts v Janse van Rensburg NO and others [2015] JOL 33678 (SCA)

CASES

Reddy v ABSA Bank Limited and others [2015] JOL 33305 (SCA)

Winding up of close corporation during period of de-registration – Winding up of close corporation automatically retrospectively validated upon reinstatement – Section 82(4) – Companies Act 71 of 2008

In August 2011, the first respondent launched an application for the provisional winding up of a close corporation (Missouri). A final winding up order was made on 27 August 2012. The second and third respondents were appointed as the liquidators of Missouri and they commenced with the winding up of its affairs in terms of the Companies Act 71 of 2008 (“the act”). At that stage, the liquidators and the appellant, who was the sole member of Missouri, discovered that Missouri had been deregistered in terms of section 82(3)(a) of the Companies Act 71 of 2008 on 29 July 2011. The appellant consequently launched an application in the high court, for an order declaring that the winding up of Missouri was void and of no force and effect on the ground that when the provisional and final winding up orders and the appointment of the second and third respondents as liquidators were made, Missouri had been de-registered.

The first respondent opposed the application and filed a counter-application for a declarator that the winding up of Missouri was valid in all respects and of full force and effect. The counter-application was in based only on the contention that the reinstatement of Missouri operated retrospectively.

The high court dismissed the application of the appellant and granted the declarator sought by the first respondent.

On appeal, the critical question was whether the reinstatement of Missouri retrospectively validated the corporate activities thereof during the period of its de-registration.

Held that the question was decisively settled in Newlands Surgical Clinic (Pty) Limited v Peninsula Eye Clinic (Pty) Limited [2015] JOL 33001 (SCA), where the court stated that section 82(4) of the act has automatic retrospective effect, not only in revesting the company with its property but also in validating its corporate activities during the period of its de-registration. Upon its reinstatement the winding up of Missouri had therefore been automatically validated retrospectively in all relevant respects.

The appeal was thus dismissed.

Zwarts v Janse van Rensburg NO and others [2015] JOL 33678 (SCA)

Dispositions- Liquidation of pyramid scheme – Consolidation of corporate entities

The respondents (as liquidators) instituted action against the appellant, claiming an order in terms of section 29 of the Insolvency Act 24 of 1936, setting aside payments allegedly made to him by a pyramid scheme as an alleged undue preference.

The only issue which the present Court had to adress in this judgment was that of the identity of the person or entity with whom the appellant had contracted and by whom he was paid the dividends on his investment.

Held that the court below was correct to find that in contracting with the agents representing the scheme, the appellant was contracting with the corporate entities operating its business as from time to time. The debtor that made the disposition was in the circumstances deemed to be the consolidated estate into which each of those entities had been subsumed and the creditor entitled to claim repayment was likewise the consolidated estate in the hands of its liquidators.

The appeal was accordingly dismissed.

Swart v Heine (192/15) [2016] ZASCA 16 (14 March 2016)


Interrogatios-Company law ─ application for rescission of an order enabling enquiry into the affairs of a company in voluntary liquidation in terms of s 417 of the Companies Act 61 of 1973 ─ ex parte application made to enable enquiry met the requirements of s 388 of the Act ─ appeal dismissed with costs.

This appeal turns on whether an ex parte application that served before Ledwaba DJP in chambers in the Gauteng Division of the High Court met the requirements of s 388(1) and (2) of the Companies Act 61 of 1973 (the Act), 1 and whether a proper case had been made for the order sought in terms of the section. Ledwaba DJP, who heard the matter in camera, granted an order for leave to convene an enquiry in terms of s 417 and 418 of the Act in respect of a company under voluntary liquidation. The appellant, a former director of the company, when he discovered that the order had been made, applied for rescission of the judgment on the basis that the order was erroneously sought or granted because there was no reference to the provisions of s 388 of the Act in the notice of motion and founding affidavit. Pretorius J, who heard the application for rescission, held that although the section was not specifically mentioned in the notice of motion and founding affidavit, the relief sought before Ledwaba DJP was contemplated in terms of s 388. She accordingly dismissed the appellant’s application for rescission. This appeal is against that judgment with the leave of that court. [2] The order sought before Ledwaba DJP was that: (a) the matter be heard in camera; (b) leave be granted to the applicants to hold an enquiry into the affairs of the company BSA Group Holdings (Pty) Ltd (in liquidation) (the company); and (c) Mr 1 I shall set out the section in full below. 3 Charles Stewart be appointed to conduct the enquiry under ss 417 and 418 of the Act of 1973 read with s 9 of Schedule 5 of the Companies Act 71 of 2008. [3] A brief background to the matter is as follows. The company, previously registered as Biz Africa 111 (Pty) Ltd, was voluntarily wound-up by special resolution of its directors when it was unable to pay its debts. The appellant is a director of the company together, with Mr Mellet and Mr Stevenson. [4] The first respondent (Charlene Heine), the second respondent (Justin Mark Heine) and the third respondent (Deksny Trading (Pty) Ltd) are creditors of the company. They were also applicants in the ex parte application which the appellant is challenging. Ms Heine is owed the amount of R45 785 in respect of outstanding salaries. Acting on behalf of the company, the appellant signed a settlement agreement acknowledging the company’s indebtedness to Ms Heine. When the company failed to honour the undertaking, Ms Heine issued summons and obtained judgment against the company. Mr Heine, is owed the sum of R652 643 by the company in respect of which Mr Stevenson signed a settlement agreement on behalf of the company undertaking to pay him. That amount is still outstanding and summons was issued against the company. Deksny Trading is owed $190 042 in respect of a loan it advanced to the company. [5] The respondents’ locus standi as creditors of the company is not disputed.

The gravamen of the appellant’s complaint relates to whether or not the ex parte application that served before Ledwaba DJP met the requirements of s 388(1) and (2) of the Act. An answer to this question is dispositive of the appeal. It is thus not necessary to deal with all the points raised by the appellant’s counsel in his heads of argument as during the hearing in this court, the issues on appeal were narrowed to: (a) whether the ex parte application was defective for lack of specific reference to s 388(1) and (2), in the notice of motion and founding affidavit; and (b) if not whether a proper case was made for the relief sought in the papers.

Section 388 of the Act provides: ‘Court may determine questions in voluntary winding-up (1) Where a company is being wound up voluntarily, the liquidator or any member or creditor or contributory of the company may apply to the Court to determine any question arising in the winding-up or to exercise any of the powers which the Court might exercise if the company were being wound up by the Court. (2) The Court may, if satisfied that the determination of any such question or the exercise of any such power will be just and beneficial, accede wholly or partly to the application on such terms and conditions as it may determine, or make such other order on the application as it thinks fit.’

From the wording of s 388, it is clear that the respondents could bring such an application and that the court could determine any such question arising in the winding-up or to exercise any of the powers which the court might exercise where a company is wound-up by the court. In my view nothing precluded them from approaching the court in terms of this section. In fact, the circumstances of this case clearly warranted an urgent intervention in terms of ss 417 and 418 of the Act. The appellant’s submission that the purpose of the enquiry is to extort, frustrate or squeeze payments from him is ill-conceived.

There is a further disconcerting aspect to this appeal. The issues in this appeal are simple and straightforward and do not involve complicated or complex issues of law. This is a case where leave to appeal should not have been granted at all. Why the court a quo thought this appeal deserves the attention of this court is not explained. This court has repeatedly bemoaned the fact that unworthy appeals are referred to it, with the result that more deserving and meritorious appeals are either delayed or lose their places in the roll. (See Shoprite Checkers Pty Ltd v Bumper 2003 (5) SA 534 (SCA); S v Monyane & others 2008 (1) SACR 543 (SCA).) Leave to appeal should not be granted where there is no reasonable prospect of success on appeal, or no compelling reason why an appeal should be heard ─ s 17(1)(a) of the Superior Courts Act 10 of 2013. [14] Accordingly, the appeal is dismissed with costs including the costs of two counsel.