BUTTERWORHTS LAW REPORTS - 2007 VOLUME 4 OCTOBER NO 2
GHERSI AND OTHERS vs TIBER DEVELOPMENTS (PTY) LTD AND OTHERS
[2007] 4 ALL SA 847 SCA
The appellants owned 55% of the shares in a company jointly owned with the
respondents. They sought redress against the second to fourth respondents, the
directors of the company, in terms of section 266 of the Companies Act 61 of 1973.
The purpose of section 266 is, to create a remedy whereby delinquent directors or
officers of a company can be compelled to compensate the company for a wrong
committed by them, whilst seeking to minimize the risk of unmeritorious claims being
brought against the company by disaffected shareholders....
The court has to be satisfied at the first stage that an investigation into the grounds
alleged by the shareholder and the desirability of the institution of the proceedings
proposed, is justified. At the second stage, on the return day, when the court have to
consider whether to discharge the provisional order or to confirm the appointment of the
curator, the section envisages that it will have the advantage of a report by the
provisional curator dealing inter alia with is investigation into the grounds for the
proceedings proposed by the member.
The provisional curator is not confined in the investigation to the remedies suggested by
the shareholder. The provisional curator is, however, confined in the investigation to the
grounds advanced by the shareholder in the application... It is the grounds advanced in
the application which constitute the basis of the finding by the court that a prima facie
case for the appointment of the curator has been made out and therefore the ambit of
the mandate given to the curator by the court is confined to those grounds.
In dealing with the facts, the court in paragraph 7 stated as follows:
“The curator
produced a 129-page report which dealt in detail with his investigation and the views he
had formed, which were fully motivated. He came to the following conclusions:
“The claim advanced in the application were not based on valid grounds.”
2
The provisional curator went on, however, to recommend the institution of proceedings
against the directors for a statement of account of all property developments and
opportunities undertaken by them over the previous 23 years which were not offered to
the company, for debatement of the account and for payment of all profits made by
them.
In making this recommendation, the provisional curator went outside his mandate.”
The court in paragraph 10 inter alia concluded as follows: “All in all, the investigation of
the provisional curator does not provide a sufficient basis for the massive litigation
recommended by him. Of course, the scope of the litigation is not in itself the reason for
refusing confirmation of the rule, but before the company... are put to the inconvenience
and expense of such litigation, the court must be in a position properly to exercise the
powers conferred on it in terms of section 266(4). That of necessity, requires a proper
report from the provisional curator.
The appeal was dismissed.
OLD MUTUAL LIFE ASSURANCE CO SA LTD vs GUMBI [2007] 4 ALL SA 866 SCA
The respondent had been dismissed form employment by the appellant. In challenging
the fairness of the dismissal, the respondent eschewed his statutory remedies under the
Labour Relations Act 66 of 1995, and confined his attack to the issue of his right to a
pre-dismissal hearing under the common law. The substantive fairness of the dismissal
was not placed in issue.
In the present case, the appellant had offered the respondent a chance to defend
himself against the allegations of misconduct which led to his dismissal.
The
respondent did not take the opportunity.
The court in paragraph 21 concluded as follows: “When all these facts are viewed
objectively, it cannot be said that Old Mutual has acted procedurally unfairly in
continuing with the hearing in the employees absence and dismissing him for the
misconduct of which he was found guilty. The employee and his representative are the
only persons to blame for his absence. It follows that the appeal must succeed.
3
ERF 441 ROBERTSVILLE PROPERTY CC AND ANOTHER vs NEW MARKET
DEVELOPMENTS (PTY) LTD [2007] 4 ALL SA 873 W
The applicants apply for a declaration that the agreement of sale concluded between
them and the respondent on 5 November 2004 is valid and binding. Clause 1 of that
agreement describes the merx as follows:
“Sectional title unit 12 Mini units Northlands Deco Park, measuring approximately 750m
and more fully indicated on the draft diagram attached hereto.”
No draft diagram was attached to the deed of sale.
At the stage when the agreement of sale was concluded the building had been erected
and, in fact soon after its conclusion, the applicants occupied the section they had
purchased. It follows that the 750m2 unit reflected in the agreement as the merx could
be identified without recourse to evidence from the parties as to their negotiations and
consensus, thus satisfying the requirements laid down in Clements vs Simson 1971
(3SA) 1 (A) at 7F-G. It is important in this regard to note that the reference to a draft
diagram in the agreement is introduced by the words “and more fully indicated”. These
words are not essential to the description of the property sold; put otherwise: the
property sold could be identified without recourse to the diagram, which was not
attached, and therefore not included in the agreement of sale.
The court found the agreement concluded between the parties as been valid and
binding.
K vs M [2007] 4 ALL SA 883 E
The parties herein had been unmarried lovers who had two children during the
existence of their relationship. When the relationship terminated, the older child, who
was 5 years old, was enrolled at a play school in the town in which the applicant
resided.
Upon termination of the relationship between the parties, the respondent
withdrew the child from the play school in question and enrolled her in another school
that led to the present application.
4
Relying on section 2(1) of the Natural Fathers of Children Born out of Wedlock Act 86
of 1997, the applicant sought an order granting him custody of the older child during
school weeks so that she could return to the play school which she had originally
attended.
Both parties enjoy sound relationships with their children and are both describe as being
loving, kind and responsible parents. Probably as a result of this, the children are
described by the family advocate as being happy and contented. Although the applicant
resides in a three bedroom house in East London and the respondent lives in a three
bedroom flat in King Williams Town, both homes are suitable for the upbringing of the
minor children and, from an accommodation point of view, neither one has a significant
advantage over the other. It therefore appears that each party is a caring and loving
parent who will be able to adequately care for and accommodate the children if awarded
custody.
The court having considered the circumstances and the evidence concluded as follows:
“Consequently, I have concluded that the children’s education at Playways is not the
overriding consideration in the determination of what is in their best interest. Having
regard to their tender years and the other factors that I have mentioned, I have
concluded that their best interests would be served by them remaining with the
respondent in the home they have shared with her since their birth. The applicant has
therefore failed to persuade me that he should be granted custody for guardianship of
the two children”.
The application was dismissed.
KAMBULE vs MASTER OF HIGH COURT AND OTHERS [2007] 4 ALL SA 898 ECD
The applicant lodged an objection to the final liquidation and distribution account of the
massed joint estate of the third respondent’s deceased husband and the third
respondent. The applicant alleged that she and the deceased had been married to
each other by customary law whilst he was married to the third respondent. She lodged
a claim against the estate in terms of section 2 of the Maintenance of Surviving
Spouses Act 27 of 1990, but that claim was refuted by the executor.
5
The key question in the case was whether the applicant and the deceased were parties
to a valid customary law marriage.
They also agreed that the court first had to decide whether or not the failure by applicant
and the deceased to register their alleged customary marriage resulted in the invalidity
thereof, and secondly, in the event of this issue being determined in favour of applicant,
whether applicant was to be considered a “survivor” in terms of the provisions of the
Maintenance of Surviving Spouses Act.
The court concluded that the none registration of the applicant’s customary marriage
was not significant as the marriage had been validated by the recognition of Customary
Marriage Act 120 of 1998.
The court consequently referred the matter for hearing of viva voce evidence on the
issue as to whether or not applicant was a customary law wife of Burton from 1985 until
his death in 2002 and for adjudication upon the remaining issues between the parties.
S vs NTLANTSI [2007] 4 ALL SA 941 C
The accused had been convicted on charges of rape and abduction. Once the accused
was convicted, the magistrate, being of the view that the offence of which the accused
was convicted, was an offence referred to in Part 1 of Schedule 2 to the Criminal Law
Amendment Act 105 of 1997, stopped the proceedings and referred the matter to the
present court for consideration of an approriate sentence.
In terms of section 52(3)(b) of the Act, before deciding on sentence the Court had to
ensure that the proceedings in the trial were in accordance with justice.
The court found that the bail proceedings were tainted with irregularity. The prosecutor
then introduced evidence of the improper bail proceedings in the course of crossexamination of the accused.
The magistrate fail to afford the accused the protection
contemplated in the proviso to section 60(11)(B)(c) of the Criminal Procedure Act 51 of
1977.
6
Thus, evidence obtained in violation of the accused’s aforementioned rights must be
excluded if the admission of such evidence will render the accused’ trial unfair or will
bring the administration of justice into disrepute. Applying the above principles, the
court found the relevant evidence to be inadmissible.
The court having considered the totality of the evidence concluded as follows: “In my
view, apart from the evidence which has been excluded from the record of the
proceedings in the regional court, there is overwhelming evidence to sustain the guilty
verdict.
I am accordingly satisfied that the proceedings in the regional court were held in
accordance with justice. In the result the conviction of the accused on both the court of
rape and of abduction is confirmed.
VAN RENSBURG AND ANOTHER vs NELSON MANDELA METROPOLITAN
MUNICIPALITY [2007] 4 ALL SA 950 SE
This matter concerns a dispute between private neighbours about buildings on urban
property. The dispute also has a public character because of the local authority’s failure
to act in accordance with the provisions of the restrictive title conditions relating to the
property. The applicants (representing a trust, “the Hoby Trust”) seek an order for the
demolition of the offending buildings on the property owned by the second to sixth
respondents (“the Shan Trust”).
The orders presently sought by by the applicants are not actively opposed by the
municipality,despite its earlier opposition...
The only aspect upon which counsel for the Hoby Trust seriously focused attention on
during argument was whether the court had a discretion to grant the demolition order
and, if so, whether the court should exercise the discretion against granting demolition.
There is authority in this division that in a case such as the present, which involves not
an encroachment upon the ground of another, but an encroachment on the rights of
another in respect of use of adjoining property, the court has a discretion to grant
damages in place of demolition and removal of the offending buildings and structures.
7
The court in paragraph 11 said the following: “I must now consider whether a damages
claim will meet the exigencies of the case, rather than a demoliiton order. The papers
show that there has been an appreciable diminution of value of the Hobie Trust property
as a result of the unlawful activities of the Shan Trust. Presumably damages in that
regard can be quantified and claimed relatively easily. But the continued enjoyment of
the privacy of those living as neighbours to erf 105 will be destroyed by failing to order
demolition of the offending structures and buildings on that erf.
The application was granted.