Communicare and Another v Hardie (A107/12) [2012] ZAWCHC 187 (12 November 2012)

Communicare and Another v Hardie (A107/12) [2012] ZAWCHC 187 (12 November 2012)

The court found that the respondent was re-elected as a director for a three-year term at the 2008 AGM, in line with the other directors, and that the 2008 draft minutes were corrected at the 2009 AGM to reflect this. The respondent's intention to resign did not constitute a formal resignation, as no written notice was given in accordance with the articles. The articles did not prescribe a fixed term for directors, only that one third retire by rotation, and any restriction on term would require an amendment to the articles. The unanimous correction of the minutes at the 2009 AGM confirmed the respondent's appointment for three years. The appeal was dismissed, and the appellants were...

Citation
[2012] ZAWCHC 187
Parties
Appellant: Communicare; Appellant: Communicare Construction; Respondent: Allan Theodore Hardie
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 November 2012
Case Number
A107/12
Procedural Posture
Civil Appeal / Full Bench Appeal From the Western Cape High Court
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Hlophe, Traverso, Samela
Legal Topics
Companies Act 1973, Director Re Election, Articles of Association, Agm Minutes Correction, Contractual Nature of Articles
Commercial and Corporate Civil Procedure Companies Act 1973 Director Re Election Articles of Association Agm Minutes Correction Contractual Nature of Articles

Case Brief

Summary, issues, holding and outcome

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Parties

Communicare

Appellant

Communicare Construction

Appellant

Allan Theodore Hardie

Respondent

Procedural Posture

Civil Appeal / Full Bench Appeal From the Western Cape High Court

Legal Issues

  1. 1 Whether the respondent was validly re-elected as a director for a three-year term or only for one year at the 2008 AGM.
  2. 2 Whether the correction of the AGM minutes at the 2009 meeting altered the respondent's term of office.
  3. 3 Whether the respondent's intention to resign amounted to an effective resignation under the articles of association.

Ratio Decidendi

The court found that the respondent was re-elected as a director for a three-year term at the 2008 AGM, in line with the other directors, and that the 2008 draft minutes were corrected at the 2009 AGM to reflect this. The respondent's intention to resign did not constitute a formal resignation, as no written notice was given in accordance with the articles. The articles did not prescribe a fixed term for directors, only that one third retire by rotation, and any restriction on term would require an amendment to the articles. The unanimous correction of the minutes at the 2009 AGM confirmed the respondent's appointment for three years. The appeal was dismissed, and the appellants were...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed.
  • The appellants are ordered to pay the respondent's costs, such costs to include the costs of two counsel.