Culverwell N.O and Others v Bidvest Properties (Pty) Ltd and Others (82188A/2014) [2015] ZAGPPHC 989 (4 September 2015)

Culverwell N.O and Others v Bidvest Properties (Pty) Ltd and Others (82188A/2014) [2015] ZAGPPHC 989 (4 September 2015)

The court held that the applicable law at the time of the transaction was section 228 of the Companies Act, 61 of 1973, not sections 112 and 115 of the Companies Act, 71 of 2008, as the latter was not in force when the sale agreement was concluded. It was common cause that the property was not the whole or greater part of Eldacc's assets at the relevant time, so no special resolution was required. The court further found that the validity and enforceability of the sale agreement had already been finally determined by the Supreme Court of Appeal and by Masipa J, making the matter res judicata. The application was viewed as a further attempt to frustrate and delay the transfer, and was...

Citation
[2015] ZAGPPHC 989
Parties
Applicant: Dustin Montague Culverwell N.O; Applicant: Bernice Elizabeth Culverwell N.O; Applicant: Jan Hendrik Wentzel N.O; Applicant: Peppy Sousa N.O; Applicant: Allan Montague Culverwell N.O; Applicant: Dustin Montague Culverwell; Applicant: Eldacc (Pty) Ltd; Respondent: Bidvest Properties (Pty) Ltd; Respondent: Mercantile Bank Limited; Respondent: Ehurhuleni Metropolitan Municipality; Respondent: Registrar of Deeds; Respondent: The Sheriff, Germiston
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 September 2015
Case Number
82188A/2014
Procedural Posture
Urgent Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsel (one senior).
Judges
JJ Strijdom
Legal Topics
Company Asset Disposal, Special Resolution Requirement, Res Judicata, Enforcement of Judgments, Transfer of Property
Land and Property Commercial and Corporate Company Asset Disposal Special Resolution Requirement Res Judicata Enforcement of Judgments Transfer of Property

Case Brief

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Parties

Dustin Montague Culverwell N.O

Applicant

Bernice Elizabeth Culverwell N.O

Applicant

Jan Hendrik Wentzel N.O

Applicant

Peppy Sousa N.O

Applicant

Allan Montague Culverwell N.O

Applicant

Dustin Montague Culverwell

Applicant

Eldacc (Pty) Ltd

Applicant

Bidvest Properties (Pty) Ltd

Respondent

Mercantile Bank Limited

Respondent

Ehurhuleni Metropolitan Municipality

Respondent

Registrar of Deeds

Respondent

The Sheriff, Germiston

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the transfer of Erf 134, Elandshaven, Ext 4, may lawfully proceed in light of alleged non-compliance with sections 112 and 115 of the Companies Act, 71 of 2008.
  2. 2 Whether the absence of a special resolution by Eldacc (Pty) Ltd shareholders renders the Supreme Court of Appeal judgment unenforceable.
  3. 3 Whether the issue of validity and enforceability of the sale agreement is res judicata.

Ratio Decidendi

The court held that the applicable law at the time of the transaction was section 228 of the Companies Act, 61 of 1973, not sections 112 and 115 of the Companies Act, 71 of 2008, as the latter was not in force when the sale agreement was concluded. It was common cause that the property was not the whole or greater part of Eldacc's assets at the relevant time, so no special resolution was required. The court further found that the validity and enforceability of the sale agreement had already been finally determined by the Supreme Court of Appeal and by Masipa J, making the matter res judicata. The application was viewed as a further attempt to frustrate and delay the transfer, and was...

Court Disposition

Application dismissed with costs, including costs of two counsel (one senior).

Orders

  • The application is dismissed with costs.
  • Applicants are ordered to pay the costs of this application, including reserved costs on the attorney and client scale.