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IN THE HIGH COURT OF SOUTH AFRICA

 

(GAUTENG DIVISION, PRETORIA)

(1)       REPORTABLE: YES/NO

(2)       OF INTEREST TO OTHERS JUDGES: YES/NO

(3)       REVISED

 

CASE NO: 6569/2019

 

 

In the matter between:

LAKHANYA LOGISTICS CC                                                                          First Applicant

(with Registration No. 2006/089071/23)                                                                    

NOLITHA RADEBE                                                                                          Second Applicant

VABAZA BANDILE                                                                                           Third Applicant

MAHLUBANDILE ITUMELENG RADEBE                                                 Fourth Applicant

 

And

THAMSANQA ZUKO BOOI                                                                           First Respondent

COMPANIES AND INTELLECTUAL

PROPERTY COMMISSION                                                                            Second Respondent

 

JUDGMENT

FABRICIUS J

[1]               In this application the applicant seeks an order that First Respondent’s membership of First Applicant be terminated.

 

[2]               First Applicant also tenders repayment of First Respondent’s contribution plus 2% interest for a certain period. It is not clear how this mentioned percentage is arrived at.

The original notice of motion is dated 29 January 2018.

 

[3]               An Answering affidavit was filed on 11 July 2019 although the affidavit is dated 7 May 2019. There is no explanation for the delay, but there appears to have been no objection.

 

[4]               This affidavit is mainly to the effect that Applicants did not bring themselves within the parameters of the provisions of s36 (1) of the Close Corporation Act 69 of 1984, in that none of the required allegations were even dealt with in the founding affidavit, or if they were, this was only done on a vague or perfunctory basis. I agree with this contention. First Respondent also added that to the knowledge of Applicants he had been in full-time employment elsewhere, and that he was never involved in the day-to-day running of the business. He was however available for important meetings as he held an interest of 20% in the business. Apart from a financial contribution he contributed by way of his knowledge and expertise of transport matters. He gave details of how applicants had abused funds of the business, over which he had no control. He denied any allegations in the context of s36(1) of the Act especially for the reason that he had contributed time, money and skill to the business.

 

[5]               A lengthy Replying Affidavit was filed on 12 August 2019. It dealt with some of the allegations made by First Respondent but also introduced additional new allegations, which is not permissible in reply, and which prejudice the Respondent.

 

[6]               First Respondent had also raised the question of Second Applicant’s locus standi herein, who merely confirmed in reply that there was no written resolution authorising her to institute these proceedings but that the authority was derived merely from the fact that she was a member of the corporation. The third and fourth applicants have however also filed confirmatory and supporting affidavits.

 

[7]              Matters were made worse by way of 2 other steps taken by applicants:

 

7.1            An amended notice of motion was simply filed on 13 July 2020, long after proceedings had closed as I have indicated. The relief sought is now substantially different. No leave to amend was sought;

 

7.2            A Supplementary Founding Affidavit was filed on 25 August 2020. It is however dated 4 August 2020. The ordinary rule is that 3 sets of affidavits are allowed though a Court may in its discretion permit the filing of further affidavits. Again, no leave was even sought. It also introduced new evidence by way of Financial Statements for the years of 2018-2020 which First Respondent could obviously not deal with. There is also no affidavit by the author of such.

 

[8]               The purported amended Notice of Motion and the Supplementary Founding Affidavit are therefore not allowed. The Founding Affidavit does not make out a proper substantiated case in terms of s36(1) of the Act, and the new material evidence in reply cannot remedy this defect.

 

[9]              On 28 August 2020 (the opposed hearings commenced on 31 August 2020). First Respondent filed an Application for postponement. No heads of argument had been filed by him. The main reason seems to have been a lack of communication between him and his attorney, although it is clear that they were aware of the date of the hearing and were even reminded to  file heads of argument. There is no merit in this application at all.

 

[10]             As a result of the above the following order is made:

10.1         The application by First Respondent for a postponement is dismissed with costs;

 

10.2         Applicant’s application is dismissed with costs.

 

 

 

H FABRICIUS

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

 

 

 

 

 

 

 

 

DATE OF HEARING: NO ORAL HEARING

DATE OF JUDGMENT: 4 September 2020

 

FOR THE APPLICANTS: MR M MNGQINGO

INSTRUCTED BY: MNGQINGO ATTORNEYS INC.

 

FOR THE 1^ST RESPONDENT: MR THABO FEKE

INSTRUCTED BY: FEKE MYEKO ATTORNEYS

 

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