Shaban and Others v Culemborg Banking Corporation Ltd and Another

• Jurisdiction: South Africa
• Judge: Dowling J
• Judgment Date: 06 March 1962
• Citation: 1962 (2) SA 450 (W)
• Hearing Date: 23 February 1962
• Court: Witwatersrand Local Division

Dowling, J.:

This is an application for a declaration of rights founded E upon an agreement between the three applicants and the first respondent company, which is embodied in a letter dated 31st August, 1961; certain Lentin, the second respondent, having made the agreement on behalf of the first respondent. The applicants are given certain rights in para. 2 (f) and (g) of the agreement. The first respondent company agrees in these paragraphs:

'(f)

To elect two nominees of ours (i.e. of the applicants) to the board F of directors at the forthcoming annual general meeting of the Company.

(g)

To co-opt two more nominees to the board as and when we wish.'

('we' being the applicants).

In prayer (a) the applicants ask for an order:

'Declaring that the first respondent is obliged to deposit the proceeds of the sale of Government and municipal stocks amounting to the sum of G R158,595 with the Chase Manhattan Bank of South Africa Limited, Cape Town or Johannesburg branch, for a fixed period of 24 months, subject to the remaining conditions of the agreement between the parties;'

and in prayer (b):

'That the petitioners are entitled to have elected two nominees of the petitioners to the board of directors of first respondent at the forthcoming annual general meeting of the Company and are entitled to have co-opted two nominees to the board of directors as and when required by your petitioners.'

H Although the agreement purports to confer just those rights which are mentioned in the prayers, the applicants have come to Court to vindicate those rights because it is alleged on behalf of the first respondent that the applicants had waived the rights referred to in prayer (b).

Mr. Oshry, for the respondents, claims that this was a matter which was not a proper one for a claim for a declaration of rights without consequential relief.

Sec. 102 of the General Law Amendment Act, 46 of 1935, provides:

Dowling J

'Any provincial or local division of the Supreme Court may, in its discretion, at the instance of any interested person enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.

This section has been repealed but it has been re-enacted in identical A form in a later statute. [*] The words 'notwithstanding that such person cannot claim any relief consequential upon such determination' appears to...