Da Cruz v Manzella and Others (29232/2016) [2017] ZAGPJHC 385 (12 November 2017)

Da Cruz v Manzella and Others (29232/2016) [2017] ZAGPJHC 385 (12 November 2017)

The applicant failed to establish any clear or prima facie right to exercise management or access rights in the third respondent, as he was not a registered member under the Close Corporations Act. The law only recognises registered members for the exercise of such rights, and the applicant's reliance on a sham or nominee arrangement does not confer legal standing. The relief sought was not interim in nature, as it would not be reconsidered by another court and could not be undone if the applicant failed in his action. The application was accordingly dismissed.

Citation
[2017] ZAGPJHC 385
Parties
Applicant: Manuel Jorge Maia Da Cruz; Respondent: Francesco Manzella; Respondent: Patricia Marlene Manzella; Respondent: Solbel Properties CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 November 2017
Case Number
29232/2016
Procedural Posture
Urgent Application / Application for Interim Relief Pending Action
Outcome
Application dismissed with costs.
Judges
DP de Villiers
Legal Topics
Close Corporations Act, Nominee Membership, Interim Interdict, Management Rights, Duty to Account
Commercial and Corporate Civil Procedure Close Corporations Act Nominee Membership Interim Interdict Management Rights Duty to Account

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Parties

Manuel Jorge Maia Da Cruz

Applicant

Francesco Manzella

Respondent

Patricia Marlene Manzella

Respondent

Solbel Properties CC

Respondent

Procedural Posture

Urgent Application / Application for Interim Relief Pending Action

Legal Issues

  1. 1 Whether the applicant is entitled to interim management rights in the third respondent pending the outcome of an action for transfer of a 50% membership interest.
  2. 2 Whether a non-registered member may exercise rights of management and access to records in a close corporation.
  3. 3 Whether the applicant has established a prima facie or clear right to the relief sought.

Ratio Decidendi

The applicant failed to establish any clear or prima facie right to exercise management or access rights in the third respondent, as he was not a registered member under the Close Corporations Act. The law only recognises registered members for the exercise of such rights, and the applicant's reliance on a sham or nominee arrangement does not confer legal standing. The relief sought was not interim in nature, as it would not be reconsidered by another court and could not be undone if the applicant failed in his action. The application was accordingly dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.