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

• Jurisdiction: South Africa
• Citation: 2014 (3) SA 231 (GJ)

Sphandile Trading Enterprise (Pty) Ltd and Another v Hwibidu Security Services CC and Others
2014 (3) SA 231 (GJ)

2014 (3) SA p231

Citation	2014 (3) SA 231 (GJ)
Case No	15643/2013
Court	Gauteng Local Division, Johannesburg
Judge	André Gautschi AJ
Heard	January 30, 2014
Judgment	February 25, 2014
Counsel	JG Dobie for the applicants.; N Mahlangu for the first, second and third respondents.

Flynote : Sleutelwoorde B

Company — Winding-up — Application — Furnishing of copy to South African Revenue Service — Furnishing must be done reasonable time before hearing — Affidavit describing how application furnished must be filed C before or during hearing — Companies Act 61 of 1973, ss 346(4A)(a)(iii) and 346(4A)(b).

Headnote : Kopnota

Sections 346(4A)(a)(iii) and 346(4A)(b) of the Companies Act 61 of 1973 provide as follows:

'346 Application for winding-up of company D

. . .

(4A)(a) When an application is presented to the court in terms of this section, the applicant must furnish a copy of the application —

. . .

(iii)

to the South African Revenue Service [SARS]; . . . . E

. . .

(b) The applicant must, before or during the hearing, file an affidavit by the person who furnished a copy of the application which sets out the manner in which paragraph (a) was complied with.'

Both ss 346(4A)(a)(iii) and 346(4A)(b) are peremptory. With regard to s 346(4A)(a)(iii), the applicant must furnish the copy to SARS a reasonable period of time before the hearing of the application. As regards F s 346(4A)(b), the applicant must file the affidavit before or during the hearing. (Paragraphs [13] – [14] and [18] at 236B/C – 237A and 238F.)

Cases Considered

Annotations

Case law G

Allpay Consolidated Investments Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency, and Others2014 (1) SA 604 (CC): dictum in para [30] applied

Chiliza v Govender and Another2013 (4) SA 600 (KZD): followed

Corporate Money Managers (Pty) Ltd and Others v Panamo Properties 49 (Pty) Ltd H 2013 (1) SA 522 (GNP): not followed

Court v Standard Bank of SA Ltd; Court v Bester NO and Others1995 (3) SA 123 (A): applied

Gungudoo v Hannover Reinsurance Group Africa (Pty) Ltd and Another2012 (6) SA 537 (SCA): referred to

Hannover Reinsurance Group Africa (Pty) Ltd and Another v Gungudoo and Another I 2012 (1) SA 125 (GSJ): dictum in para [14] followed

Hendricks NO and Others v Cape Kingdom (Pty) Ltd2010 (5) SA 274 (WCC): dictum in para [31] followed

Melcost Investments (Pty) Ltd v Kruger1968 (2) SA 69 (O): referred to

Moodliar NO and Others v Hendricks NO and Others2011 (2) SA 199 (WCC): dicta in paras [29] – [30] not followed J

2014 (3) SA p232

Natal Joint Municipal Pension Fund v Endumeni Municipality2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [26] applied A

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A): applied

Roberts v The Taylor of Buckingham CC (WLD case No 21864/2008, 28 November 2008): followed B

Standard Bank of SA Ltd v Sewpersadh and Another2005 (4) SA 148 (C): followed

Weenen Transitional Local Council v Van Dyk2002 (4) SA 653 (SCA) ([2002] 2 All SA 482; [1990] ZASCA 108): referred to.

Statutes Considered

Statutes C

The Companies Act 61 of 1973, ss 346(4A)(a)(iii) and 346(4A)(b): see Juta's Statutes of South Africa 2012/13 vol 2 at 1-204.

Case Information

JG Dobie for the applicants.

N Mahlangu for the first, second and third respondents.

D An application to rectify CIPRO's records, and to wind up a close corporation. The order is in para [21].

Judgment

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.

2014 (3) SA p233

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...