Aitchison and Another v Dench and Another
| Judge | Hiemstra J |
| Judgment Date | 31 January 1964 |
| Citation | 1964 (2) SA 515 (T) |
| Hearing Date | 28 January 1964 |
| Court | Transvaal Provincial Division |
Hiemstra, J.:
This dispute arises from an election of directors for a public company. The company is the second respondent. The two applicants B contend that they have been validly elected as directors and ask for a declaratory order in those terms.
A notice was sent out for an ordinary general meeting of the company. One of the points on the agenda was 'to elect directors'. The articles C provide that there is to be a minimum of three directors and a maximum of seven. The general meeting is empowered to determine the exact number. The company had prior to the election been operating with five directors, but there had never been a formal resolution fixing a specific number of directors. In terms of the articles three of the five directors were obliged to retire, leaving two in office. The three who D had retired offered themselves for re-election, and in addition the two applicants in this matter (Mr. Aitchison and Mr. Schwartz) and one Heanon were nominated. There were accordingly six candidates.
The first question is how many vacancies there were. The general meeting E had never formally decided how many directors they would appoint, but this can be done impliedly by merely electing a particular number within the limits laid down by the articles. This has been held to be the position in Mills v Durban Roodepoort Mining Syndicate Ltd. and Others, 1925 W.L.D. 108 at p. 114.
The issue then is who were in fact elected. The procedure is laid down F by sec. 69 bis of the Companies Act, 46 of 1926, introduced by sec. 43 of Act 46 of 1952. It reads as follows:
69 bis. (1) At a general meeting of a company a motion for the appointment of two or more persons as directors of the company by a single resolution shall not be made, unless a resolution that it shall be so made has first been agreed to by the meeting without any vote being given against it.
(2) Where motions for the appointment by separate resolutions of more than the number of directors to be elected, have been made and not G withdrawn, all the resolutions shall be voted upon separately, and thereafter the result of the voting shall be determined in accordance with the number of votes cast in favour of each resolution.
(3) A resolution moved in contravention of this section shall be void, whether or not its being so moved was objected to at the time: Provided that -
this sub-section shall not be taken as excluding the operation of sec. 69; and
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S v Seremane and Others
...to No. 9 on p. 206 was intended as a reference to No. 8. There is no other evidence that this appellant ever attended any meeting 1964 (2) SA p515 De Kock of the P.A.C., nor is there evidence that he took part in the activities of the P.A.C. There is the evidence of Mahlonzi that No. 9 was ......
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S v Seremane and Others
...to No. 9 on p. 206 was intended as a reference to No. 8. There is no other evidence that this appellant ever attended any meeting 1964 (2) SA p515 De Kock of the P.A.C., nor is there evidence that he took part in the activities of the P.A.C. There is the evidence of Mahlonzi that No. 9 was ......