Briers and Another v Dr J Bruwer and Assoc. NO. 78 Inc. and Others (19726/2023) [2024] ZAWCHC 145 (30 May 2024)

Briers and Another v Dr J Bruwer and Assoc. NO. 78 Inc. and Others (19726/2023) [2024] ZAWCHC 145 (30 May 2024)

The court held that the first applicant had locus standi to seek relief under section 163 of the Companies Act at the time the main application was launched, as he was still a shareholder. The subsequent sale and transfer of his shares occurred by operation of the consultancy agreement's deeming provision, which is itself the subject of challenge in the main application. The respondents were aware of the alleged oppressive conduct and the pending application when they effected the transfer. The court found no prejudice or injustice to the respondents that would justify refusal of the amendment, noting that any delay could be addressed by a costs order. The second applicant, however, had...

Citation
[2024] ZAWCHC 145
Parties
Applicant: Dr Pieter Francois Melchior Briers; Applicant: Dr Pranav Ramkilawan; Respondent: Dr J Bruwer and Assoc. No. 78 Inc.; Respondent: Dr Andre Jacobus Maree; Respondent: Dr Elske Marguerite Ferreira; Respondent: Dr Jasper Michael Smit; Respondent: Dr Marsha Hermanus; Respondent: Dr Sharmistha Heeralal; Respondent: Dr Reinette van der Westhuizen; Respondent: Dr Sean Daniel; Respondent: Dr Yolanda Vink; Respondent: Companies and Intellectual Property Commission
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 May 2024
Case Number
19726/2023
Procedural Posture
Leave to Amend / Application for Leave to Amend Notice of Motion Prior to Hearing of Main Application (part B)
Outcome
First applicant granted leave to amend Part B of the notice of motion; second applicant's application for leave to amend dismissed; costs awarded against both applicants on scale B.
Judges
J Cloete
Legal Topics
Oppressive Conduct, Locus Standi, Companies Act Section 163, Amendment of Pleadings, Forced Share Sale
Commercial and Corporate Civil Procedure Oppressive Conduct Locus Standi Companies Act Section 163 Amendment of Pleadings Forced Share Sale

Case Brief

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Parties

Dr Pieter Francois Melchior Briers

Applicant

Dr Pranav Ramkilawan

Applicant

Dr J Bruwer and Assoc. No. 78 Inc.

Respondent

Dr Andre Jacobus Maree

Respondent

Dr Elske Marguerite Ferreira

Respondent

Dr Jasper Michael Smit

Respondent

Dr Marsha Hermanus

Respondent

Dr Sharmistha Heeralal

Respondent

Dr Reinette van der Westhuizen

Respondent

Dr Sean Daniel

Respondent

Dr Yolanda Vink

Respondent

Companies and Intellectual Property Commission

Respondent

Procedural Posture

Leave to Amend / Application for Leave to Amend Notice of Motion Prior to Hearing of Main Application (part B)

Legal Issues

  1. 1 Whether the applicants have locus standi to seek relief under section 163 of the Companies Act after termination and transfer of their shares.
  2. 2 Whether the first applicant may amend the notice of motion to seek setting aside of the termination and forced sale of shares.
  3. 3 Whether the second applicant retains standing to pursue relief under section 163.

Ratio Decidendi

The court held that the first applicant had locus standi to seek relief under section 163 of the Companies Act at the time the main application was launched, as he was still a shareholder. The subsequent sale and transfer of his shares occurred by operation of the consultancy agreement's deeming provision, which is itself the subject of challenge in the main application. The respondents were aware of the alleged oppressive conduct and the pending application when they effected the transfer. The court found no prejudice or injustice to the respondents that would justify refusal of the amendment, noting that any delay could be addressed by a costs order. The second applicant, however, had...

Court Disposition

First applicant granted leave to amend Part B of the notice of motion; second applicant's application for leave to amend dismissed; costs awarded against both applicants on scale B.

Orders

  • The first applicant is granted leave to amend Part B of the notice of motion as per the notice handed up at the conclusion of argument, with any reference to the second applicant to be deleted.
  • The second applicant's application for leave to amend is dismissed.