Sphandile Trading Enterprise (Pty) Ltd and Another v Hwibidu Security Services CC and Others

JurisdictionSouth Africa
JudgeAndré Gautschi AJ
Judgment Date25 February 2014
Citation2014 (3) SA 231 (GJ)
Docket Number15643/2013
Hearing Date30 January 2014
CounselJG Dobie for the applicants. N Mahlangu for the first, second and third respondents.
CourtGauteng Local Division, Johannesburg

André Gautschi AJ:

E [1] The second applicant seeks an order that the fourth respondent (the Companies and Intellectual Property Commission, known by the acronym CIPRO) rectify its records by indicating thereon that the second applicant is a 50% member of the first respondent, and a winding-up of the first respondent.

F [2] The background to this application is briefly the following:

[2.1]

The second and third respondents are, respectively, 70% and 30% members of the first respondent.

[2.2]

They were approached by the second applicant in about April 2012 to discuss a joint venture between the first respondent and the first applicant (the second applicant's company) or some G other form of business structure in order to bid for a security services contract with the Ekurhuleni Municipality.

[2.3]

The second applicant contends that at a meeting between himself and the second and third respondents held on 30 April 2012 it was agreed that he would become a 50% member of the first respondent and be employed as its marketing director; that H the first applicant would make the necessary loan to the first respondent to assist it to set up its business; that the first respondent would rent offices from the first applicant; that the first applicant would be paid a marketing fee of R2 000 000; and that the members of the first respondent would each receive a I salary of R50 000 per month.

[3] Because of the view which I take of this matter, it is not desirable that I analyse the issues in any detail. I have come to the conclusion that certain issues are to be referred for the hearing of oral evidence. I shall accordingly briefly identify those issues and indicate why I do not believe J that they can be resolved on the papers.

André Gautschi AJ

[4] The agreement regarding the members' interest A

[4.1]

The second applicant relies on an unsigned resolution taken at a meeting held on 30 April 2012 between himself and the second and third respondents (annexure 'DN1', page 33).

[4.2]

The resolution is badly drafted and it is difficult to make any real sense of it. It indicates that the second applicant is to become a B 50% member of the first respondent, but in the same breath it adds that 'if he brings more contract we will consider him as the permanent member . . . .' (sic) The applicants do not have a signed version of this draft resolution, although they contend that it was signed.

[4.3]

It is the respondents' case (I exclude the fourth respondent who C has not opposed this matter and who stands apart from the other three respondents) that there was no signed agreement or resolution on 30 April 2012, but that an oral agreement was reached at that meeting to the effect that the second applicant would become a 50% member of the first respondent on D condition that the Ekurhuleni tender was a success and that he brought in more security work in future for the first respondent. The snippet from the draft resolution which I have quoted above tends to lend support to this, although the probabilities do not.

[4.4]

Notwithstanding that the third respondent (the 'managing director' E of the first respondent) referred in a letter dated 12 February 2013 to 'an agreement which was signed on 30 April 2012 at the board meeting', it is the respondents' case in the answering affidavit that the agreement was an oral, conditional agreement.

[4.5]

I am not prepared to find, applying the Plascon-Evans test, [1] that I can reject the respondents' version merely on the papers. Not F only is there no available signed version of the resolution but the wording of the resolution is so obscure that I would not be confident to reject the respondents' version without a referral to oral evidence.

[5] A winding-up on just and equitable basis G

[5.1]

One of the grounds for winding-up advanced by the applicants is that, because the second applicant is a 50% member of the first respondent, and the two camps of members are unable to work together and, indeed, all trust has been lost between them, it is just and equitable that the first respondent should be wound up. H

[5.2]

This ground obviously depends on the success of the second applicant's claim that he is a 50% member of the first respondent. This aspect will therefore have to wait for a finding on the first issue. This aspect can be dealt with on the papers if the second applicant is found to be a 50% member, since in my view I it is inevitable that a winding-up will then follow, subject to the unclean-hands aspect.

André Gautschi AJ

[6] A Unclean hands

[6.1]

The respondents contend that the applicants approach the court with unclean hands, which would ordinarily preclude the applicants from seeking a winding-up of the first respondent on a just and equitable basis.

[6.2]

B The basis for this contention is that, at a stage where the third respondent was withdrawing moneys for personal use from the bank account of the first respondent (in relatively small amounts), the second applicant withdrew R280 000 'to protect the funds' of the first respondent.

[6.3]

Whether this constitutes unclean hands, which would preclude C the applicants from succeeding in a winding-up, is in dispute. The respondents claim that there was no justification for the withdrawal, whereas the second applicant claims that he was protecting the funds of the first respondent. This issue must also be referred for the hearing of oral evidence.

[7] D The marketing fee

[7.1]

The second applicant claims that there was an agreement that the first applicant would be paid a marketing fee of R2 000 000 which would be 'repayable' at the rate of R200 000 per month over a period of 10 months.

[7.2]

E The respondents contend that the amount to be paid for marketing was only R1 000 000; that this was to be paid to an external marketing company called Ubizolwethu Trading; and that it was to be paid as to R200 000 before the tender was awarded and the remainder of R800 000 after the tender had been awarded.

[7.3]

F The documents show that the first amount of R200 000 was paid by the first applicant, one assumes to Ubizolwethu Trading, and regarded by it as part of the loan which it made to the first respondent. A further R600 000 in tranches of R200 000 each was paid out of the first respondent's bank account directly to Ubizolwethu Trading.

[7.4]

G ...

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2 practice notes
  • Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd
    • South Africa
    • Gauteng Local Division, Johannesburg
    • 25 July 2014
    ...Ltd [2005] 4 All SA 584 (W): referred to Sphandile Trading Enterprise (Pty) Ltd and Another v Hwibidu Security Services CC and Others 2014 (3) SA 231 (GJ): referred to Ter Beek v United Resources CC and Another 1997 (3) SA 315 (C): referred to J 2015 (2) SA p552 Wackrill v Sandton Internati......
  • Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd
    • South Africa
    • Invalid date
    ...Ltd [2005] 4 All SA 584 (W): referred to Sphandile Trading Enterprise (Pty) Ltd and Another v Hwibidu Security Services CC and Others 2014 (3) SA 231 (GJ): referred to Ter Beek v United Resources CC and Another 1997 (3) SA 315 (C): referred to J 2015 (2) SA p552 Wackrill v Sandton Internati......
2 cases
  • Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd
    • South Africa
    • Gauteng Local Division, Johannesburg
    • 25 July 2014
    ...Ltd [2005] 4 All SA 584 (W): referred to Sphandile Trading Enterprise (Pty) Ltd and Another v Hwibidu Security Services CC and Others 2014 (3) SA 231 (GJ): referred to Ter Beek v United Resources CC and Another 1997 (3) SA 315 (C): referred to J 2015 (2) SA p552 Wackrill v Sandton Internati......
  • Pilot Freight (Pty) Ltd v Von Landsberg Trading (Pty) Ltd
    • South Africa
    • Invalid date
    ...Ltd [2005] 4 All SA 584 (W): referred to Sphandile Trading Enterprise (Pty) Ltd and Another v Hwibidu Security Services CC and Others 2014 (3) SA 231 (GJ): referred to Ter Beek v United Resources CC and Another 1997 (3) SA 315 (C): referred to J 2015 (2) SA p552 Wackrill v Sandton Internati......

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