Pearson v Magrep Investments (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Howard J
• Judgment Date: 16 October 1974
• Court: Durban and Coast Local Division

Howard, J.:

The three respondents are inter-related companies, it being alleged that the second and third respondents are wholly owned subsidiaries of the first respondent. The applicant is a shareholder, director and creditor of the first respondent and a director and creditor of the second respondent.

The applicant has applied on notice of motion for a judicial management order in respect of the first and second respondents, alternatively

Howard J

an order that they be wound up. When he launched the application the applicant also sought an order for the winding-up of the third respondent but that has fallen away because he now concedes that he lacks the necessary locus standi to apply for such an order against the third respondent. A The notice of motion was delivered on 31 July 1974, supported by an affidavit by the applicant. When the matter first came before the Court on 2 August 1974 it was adjourned by consent and the applicant was granted leave to deliver a supplementary affidavit, which he did. Thereafter the respondents delivered opposing affidavits which, together with their annexures, run B to more than 200 pages. There is a lengthy replying affidavit by the applicant, and further affidavits by the respondents dealing with new matter raised in the reply. The application was eventually set down for hearing on 25 September 1974.

At the hearing Mr. Curlewis, for the respondents, took two objections in limine and applied for the striking out of large portions of the applicant's replying affidavit. In the view C that I take of the matter it is only necessary to deal with one of the objections, namely that the founding affidavits do not make out a prima facie case for the relief claimed. It is open to the respondents to apply for the dismissal of the application on this ground notwithstanding that they have delivered affidavits dealing with the merits of the D application. The approach to the decision of this objection is similar to that adopted in deciding an exception to a pleading in that (a) the founding affidavits alone fall to be considered and (b) the averments contained in those affidavits must be accepted as being true (see Taylor v Welkom Theatres (Pty.) Ltd. and Others, 1954 (3) SA 339 (O) at p. 345; Bader and E Another v Weston and Another, 1967 (1) SA 134 (C) at p. 136; Aspek Pipe Co. (Pty.) Ltd. and Another v Mauerberger and Others, 1968 (1) SA 517 (C) at p. 519; Hart v Pinetown Drive-in Cinema (Pty.)...