Cooper and Another v Mckenzie and Associates (Pty) Ltd and Another (036942/2022) [2023] ZAGPJHC 1214 (24 October 2023)

Cooper and Another v Mckenzie and Associates (Pty) Ltd and Another (036942/2022) [2023] ZAGPJHC 1214 (24 October 2023)

The applicants failed to provide a detailed and satisfactory explanation for the delay in filing the Rule 7 notice. Their affidavits were contradictory and lacked specifics regarding consultations and actions taken. The evidence showed that the applicants were aware of the respondents' attorneys' authority well before the summons was served. The reliance on clause 7.22 of the shareholders' agreement was misplaced, as the agreement was signed by both the first applicant and the second respondent, thereby authorizing the action. Clause 7.22 does not operate to prevent a shareholder or the company from enforcing rights against a breaching shareholder, and unanimous consent cannot be withheld...

Citation
[2023] ZAGPJHC 1214
Parties
Applicant: Carrie Leigh Cooper; Applicant: The Coop (Pty) Ltd; Respondent: Mckenzie and Associates (Pty) Ltd; Respondent: William Glen Milford Mckenzie
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 October 2023
Case Number
036942/2022
Procedural Posture
Condonation Application / Application for Condonation of Late Filing of Rule 7 Notice; Opposed Motion
Outcome
Condonation application dismissed with costs; respondents' unopposed application to set aside Rule 7 notice granted with costs.
Judges
Strijdom
Legal Topics
Condonation, Rule 7 Notice, Shareholders Agreement, Irregular Step, Authority to Institute Proceedings
Civil Procedure Commercial and Corporate Condonation Rule 7 Notice Shareholders Agreement Irregular Step Authority to Institute Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Carrie Leigh Cooper

Applicant

The Coop (Pty) Ltd

Applicant

Mckenzie and Associates (Pty) Ltd

Respondent

William Glen Milford Mckenzie

Respondent

Procedural Posture

Condonation Application / Application for Condonation of Late Filing of Rule 7 Notice; Opposed Motion

Legal Issues

  1. 1 Whether the applicants have shown good cause for condonation of the late filing of the Rule 7 notice.
  2. 2 Whether the applicants have provided a reasonable and bona fide explanation for the delay.
  3. 3 Whether the applicants have prospects of success in disputing the authority of the respondents' attorneys under Rule 7.

Ratio Decidendi

The applicants failed to provide a detailed and satisfactory explanation for the delay in filing the Rule 7 notice. Their affidavits were contradictory and lacked specifics regarding consultations and actions taken. The evidence showed that the applicants were aware of the respondents' attorneys' authority well before the summons was served. The reliance on clause 7.22 of the shareholders' agreement was misplaced, as the agreement was signed by both the first applicant and the second respondent, thereby authorizing the action. Clause 7.22 does not operate to prevent a shareholder or the company from enforcing rights against a breaching shareholder, and unanimous consent cannot be withheld...

Court Disposition

Condonation application dismissed with costs; respondents' unopposed application to set aside Rule 7 notice granted with costs.

Orders

  • The application for condonation is dismissed with costs.
  • The respondents' unopposed application in terms of Rule 30(2)(b) is granted.