Doeseb and Others v Kheibeb and Others (SA 14 of 2004) [2006] NASC 2 (1 February 2006)

Doeseb and Others v Kheibeb and Others (SA 14 of 2004) [2006] NASC 2 (1 February 2006)

The appellants failed to establish on the papers that the first respondent acted without authority, committed fraud or theft, or refused access to records. The facts did not satisfy the requirements of section 36(1) or 49 of the Close Corporations Act. There was insufficient evidence to exercise the court's...

Source-derived case information.

Citation
[2006] NASC 2
Parties
Appellant: A DoeseB; Appellant: G Rheis; Appellant: A Bikeur; Appellant: M Kazenango; Appellant: J Harases; Appellant: E Uiras; Appellant: H Namaseb; First Respondent: Benjamin B Kheibeb; Second Respondent: Old Man Fishing CC; Third Respondent: Blue Ocean Products (Pty) Ltd; Fourth Respondent: Bank Windhoek Ltd; Fifth Respondent: The Registrar of Close Corporations; Sixth Respondent: Estate E Kheibes
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
1 February 2006
Case Number
SA 14 of 2004
Procedural Posture
Civil Appeal / Judgment on Appeal
Outcome
Appeal against punitive costs order upheld; remainder of appeal dismissed with costs.
Legal Topics
Close Corporations, Removal of Member, Ex Parte Applications, Costs Orders
Source Language
english
Company Law Civil Procedure Close Corporations Removal of Member Ex Parte Applications Costs Orders

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Parties

A DoeseB

Appellant

G Rheis

Appellant

A Bikeur

Appellant

M Kazenango

Appellant

J Harases

Appellant

E Uiras

Appellant

H Namaseb

Appellant

Benjamin B Kheibeb

First Respondent

Old Man Fishing CC

Second Respondent

Blue Ocean Products (Pty) Ltd

Third Respondent

Bank Windhoek Ltd

Fourth Respondent

The Registrar of Close Corporations

Fifth Respondent

Estate E Kheibes

Sixth Respondent

Procedural Posture

Civil Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the first respondent should be divested of his membership in the second respondent under section 36 or 49 of the Close Corporations Act
  2. 2 Whether the appellants made material non-disclosures justifying discharge of the rule nisi and punitive costs
  3. 3 Whether the court a quo erred in not granting relief under section 36 or 49

Ratio Decidendi

The appellants failed to establish on the papers that the first respondent acted without authority, committed fraud or theft, or refused access to records. The facts did not satisfy the requirements of section 36(1) or 49 of the Close Corporations Act. There was insufficient evidence to exercise the court's discretion under section 36(2) or to grant relief under section 49. The court a quo erred in finding material non-disclosure justifying punitive costs; the only proper costs order was costs of suit.

Court Disposition

Appeal against punitive costs order upheld; remainder of appeal dismissed with costs.

Orders

  • Costs order by the court a quo set aside and replaced with costs of suit.
  • Remainder of the appeal dismissed with costs.