Hart v Pinetown Drive-In Cinema (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 10 November 1971
• Hearing Date: 04 November 1971
• Court: Durban and Coast Local Division

Miller, J.:

The respondent company was incorporated during 1957. Its B authorised share capital is R20 000 made up of 10 000 shares of R2 each. 3 500 shares have been issued. The applicant is the registered holder of 700 shares, Satbel (Edms.) Bpk. (to which I shall refer as the majority shareholder) is the registered holder of 2 799 shares and the remaining one share is held by Ster Nominees (Edms.) Bpk. The respondent's business, which it has carried on since it was incorporated, is the conducting of a drive-in cinema at Pinetown.

C The applicant has applied on notice of motion for an order that the respondent be wound-up. A rule nisi is sought calling upon all interested persons to show cause why a winding-up order should not be made and the Court is asked to order that the rule operate as a D provisional winding-up order against the respondent. It is not contended in the petition that the respondent is insolvent or unable to pay its debts. The ground upon which the relief is sought is that referred to in sec. 111 (g) of the Companies Act, namely, that it is just and equitable that the company should be wound-up. The respondent opposes the E application and in support of its opposition has filed a detailed affidavit to which the applicant has filed a replying affidavit. At the hearing Mr. Coetzee, for the respondent, took in limine the point that the petition and supporting affidavit and documents contained insufficient information to sustain the relief claimed. He contended that for the purposes of deciding this objection the Court would look F only at the petition and supporting documents and not at all at the respondent's affidavit. It was accepted by Mr. Shaw, for the applicant, that the objection fell to be decided on the sufficiency or otherwise of the material contained in the petition and its annexures, the respondent's affidavit having been filed, in effect, as a plea-over in the event that the objection be over-ruled. (Cf. Taylor v Welkom G Theatres (Pty.) Ltd. and Others, 1954 (3) SA 339 (O) at p. 345); Aspek Pipe Co. (Pty.) Ltd. and Another v Mauerberger and Others, 1968 (1) SA 517 (C) at p. 519).

The petition consists of fourteen paragraphs of which the first five are H devoted to the stating of facts concerning the incorporation and shareholding of the company. Para. 8 refers to correspondence, copies of which are attached to the petition, from which it appears that the applicant, who inherited his shareholding as a beneficiary in the estate of the previous holder, experienced considerable difficulty in obtaining registration of the shares in his name. Most of the difficulties which he encountered were raised by the respondent which is, in effect, controlled and managed by the majority shareholder. Paras. 12, 13, and 14 contain formal allegations not material to the point at issue. It

Miller J

is necessary to set out the remaining paragraphs of the petition in full:

'6. By reason of the facts hereinafter set forth, the petitioner submits that it is just and equitable that the respondent should be wound up.

7. The petitioner avers in support of the aforesaid submission that the affairs of the company are being conducted by the majority shareholder without any regard whatsoever for the interests of the petitioner as a A minority shareholder, and in fact are being conducted in such a manner as to prejudice the interests of the petitioner. The petitioner avers that among the reasons for his conduct is desire to force the petitioner to sell his shares at an amount considerably below the true value of the shares.

9. In addition the petitioner refers to the affidavit of Eric Billie Macpherson annexed hereto marked 'S'. The petitioner avers that the accounts annexed to the affidavit of the said Macpherson and the facts B deposed to therein show that the income of the respondent is diverted from the respondent to the majority shareholder by way of an alleged management fee which bears no relationship whatsoever to the service, if any, performed, by the majority shareholder.

10. As the said Macpherson represented the petitioner at the meeting held by virtue of the notice of meeting received...