Rapp and Maister Holdings Ltd v Ruflex Holdings (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Bekker J and Galgutt J
• Judgment Date: 13 June 1972
• Court: Transvaal Provincial Division
• Hearing Date: 12 June 1972
• Citation: 1972 (3) SA 835 (T)

Galgut, J.:

This is an appeal from the decision of the magistrate, Johannesburg, in which he upheld an exception to plaintiff's summons; the appellant was the plaintiff in the court a quo. It had sued the respondent, who was the defendant in that court, for R489,27. I will A refer to the parties as plaintiff and defendant.

In its particulars of claim plaintiff sets out that it purchased and acquired the entire shareholding and loan accounts in a company Hilsam Properties (Pty.) Ltd. It further alleged that it had paid the full purchase price. It was a term of the agreement that in certain B circumstances the vendors would be obliged to make certain refunds to plaintiff. These conditions had come to pass and the vendors had thus become liable to plaintiff in a total sum of R43 775. One of the vendors was Deimos Investments (Pty.) Ltd. (hereinafter referred to as 'Deimos'). The proportionate amount which Deimos would have had to refund to plaintiff was R7 339.

C Prior to the determination of the amounts owing by the vendors to plaintiff, Deimos (in 1969) was wound up voluntarily by its members in terms of the Companies Act, 46 of 1926. It must be assumed (nothing to the contrary is suggested in the particulars of claim) that all the D provisions of the Companies Act relating to the voluntary winding-up of a company were complied with. I say this because the particulars of claim allege -

(a)

that after the final liquidation and distribution account had been confirmed, the Master gave notice thereof to the Registrar of Companies who registered the notice as provided in sec. 174 (1), and

(b)

E that after the expiry of three months from such registration, the company was 'deemed to be dissolved' as provided by sec. 174 (1) of the Companies Act.

The defendant had been a shareholder in Deimos. Pursuant to and in terms F of the said final liquidation and distribution account in Deimos, the defendant received certain shares and R960,47 in cash.

Deimos was liquidated and dissolved as set out above without payment to plaintiff of the said sum of R7 339. It is alleged that had Deimos paid the latter sum to the plaintiff, then the amount awarded to defendant and actually received by it in terms of the liquidation account would G have been less by R489,27. It is then claimed that defendant is liable to pay this latter amount to plaintiff.

The defendant took exception to the summons as amplified by the particulars of claim on the ground that no cause of action was disclosed, in that defendant as a shareholder of Deimos could not be held liable for its debts.

H Plaintiff sought to meet the exception by alleging that it could claim from defendant under a condictio indebiti in that defendant had been enriched at plaintiff's expense. The magistrate rejected the plaintiff's...