Cawood NO and Others v Delport and Others (57094/2016) [2016] ZAGPPHC 706 (16 August 2016)

Cawood NO and Others v Delport and Others (57094/2016) [2016] ZAGPPHC 706 (16 August 2016)

The court found that the applicants, as business rescue practitioners, had established all three requisites for a final interdict. The first respondent's conduct in running the affairs of the company without authorisation was in direct violation of the Companies Act. The alleged settlement negotiations did not exist at the time of the ex parte application, and the ex parte order was properly granted. Urgency was justified by the nature of business rescue proceedings. The claim of material non-joinder was dismissed, as no other parties had a direct and substantial interest in the relief sought. The applicants were not entitled to monetary relief at this stage, but the removal of the first...

Citation
[2016] ZAGPPHC 706
Parties
Applicant: Werner Cawood N.O.; Applicant: Matheus Johannes Schelchter N.O.; Applicant: EkurhuleniFM (NPC) t/a East Rand Stereo; Respondent: Willem Joseph Delport; Respondent: ABSA Bank; Respondent: First National Bank; Respondent: Companies and Intellectual Property Commission
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 August 2016
Case Number
57094/2016
Procedural Posture
Urgent Application / Return Date of Rule Nisi; Final Order on Interim Relief
Outcome
Application granted in part; first respondent removed as director and ordered to pay costs.
Judges
Janse Van Nieuwenhuizen
Legal Topics
Business Rescue, Director Removal, Final Interdict, Urgent Application, Non Joinder, Fiduciary Duties
Commercial and Corporate Civil Procedure Business Rescue Director Removal Final Interdict Urgent Application Non Joinder Fiduciary Duties

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Parties

Werner Cawood N.O.

Applicant

Matheus Johannes Schelchter N.O.

Applicant

EkurhuleniFM (NPC) t/a East Rand Stereo

Applicant

Willem Joseph Delport

Respondent

ABSA Bank

Respondent

First National Bank

Respondent

Companies and Intellectual Property Commission

Respondent

Procedural Posture

Urgent Application / Return Date of Rule Nisi; Final Order on Interim Relief

Legal Issues

  1. 1 Whether the ex parte order was appropriate and all material facts were disclosed.
  2. 2 Whether the matter was sufficiently urgent to justify urgent court proceedings.
  3. 3 Whether there was a material non-joinder of affected parties.

Ratio Decidendi

The court found that the applicants, as business rescue practitioners, had established all three requisites for a final interdict. The first respondent's conduct in running the affairs of the company without authorisation was in direct violation of the Companies Act. The alleged settlement negotiations did not exist at the time of the ex parte application, and the ex parte order was properly granted. Urgency was justified by the nature of business rescue proceedings. The claim of material non-joinder was dismissed, as no other parties had a direct and substantial interest in the relief sought. The applicants were not entitled to monetary relief at this stage, but the removal of the first...

Court Disposition

Application granted in part; first respondent removed as director and ordered to pay costs.

Orders

  • The first respondent is removed as a director of the third applicant and the fourth respondent is ordered to amend the third applicant's records accordingly.
  • The first respondent is ordered to pay the cost and expenses of the first and second applicants associated with this application at the rate for a small enterprise as prescribed in Regulation 128 to the Companies Act, including attorney and client costs.