De Sa Miranda v True Ruby Trading 1035 CC and Another (20548/2023) [2024] ZAWCHC 430; [2025] 1 All SA 645 (WCC) (30 December 2024)

De Sa Miranda v True Ruby Trading 1035 CC and Another (20548/2023) [2024] ZAWCHC 430; [2025] 1 All SA 645 (WCC) (30 December 2024)

The court found that the applicant had been excluded from the management and information of True Ruby for an extended period, had not received his share of income, and that the second respondent's assertion that the applicant was no longer entitled to his membership interest was not credible. The evidence, including the Association Agreement, financial statements, and the conduct of the second respondent, supported the applicant's version that trust and confidence between the members had irretrievably broken down. The court held that, in the absence of viable alternative remedies and given the partnership-like nature of the corporation, it was just and equitable to grant a provisional...

Citation
[2024] ZAWCHC 430
Parties
Applicant: Francisco Jose De Sa Miranda; Respondent: True Ruby Trading 1035 CC; Respondent: Jose Andre De Jesus
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
30 December 2024
Case Number
20548/2023
Procedural Posture
Winding Up Application / Provisional Order; Interlocutory Strike Out Application
Outcome
Provisional winding-up order granted; interlocutory strike-out application dismissed except for certain hearsay paragraphs and annexures; late affidavit admitted.
Judges
P Farlam
Legal Topics
Just and Equitable Winding Up, Close Corporation Membership, Association Agreement, Deadlock and Loss of Trust, Strike Out Application, Admission of Late Affidavit
Commercial and Corporate Civil Procedure Just and Equitable Winding Up Close Corporation Membership Association Agreement Deadlock and Loss of Trust Strike Out Application Admission of Late Affidavit

Case Brief

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Parties

Francisco Jose De Sa Miranda

Applicant

True Ruby Trading 1035 CC

Respondent

Jose Andre De Jesus

Respondent

Procedural Posture

Winding Up Application / Provisional Order; Interlocutory Strike Out Application

Legal Issues

  1. 1 Whether it is just and equitable to wind up True Ruby Trading 1035 CC despite its solvency.
  2. 2 Whether the applicant has lost all trust and confidence in the second respondent, justifying winding up.
  3. 3 Whether the second respondent's strike-out application regarding certain affidavit paragraphs and annexures should succeed.

Ratio Decidendi

The court found that the applicant had been excluded from the management and information of True Ruby for an extended period, had not received his share of income, and that the second respondent's assertion that the applicant was no longer entitled to his membership interest was not credible. The evidence, including the Association Agreement, financial statements, and the conduct of the second respondent, supported the applicant's version that trust and confidence between the members had irretrievably broken down. The court held that, in the absence of viable alternative remedies and given the partnership-like nature of the corporation, it was just and equitable to grant a provisional...

Court Disposition

Provisional winding-up order granted; interlocutory strike-out application dismissed except for certain hearsay paragraphs and annexures; late affidavit admitted.

Orders

  • The application to strike out is dismissed, except for paragraphs 10.6 to 10.8 of the replying affidavit and annexures 'RA1A' and 'RA1B', which are struck out.
  • The second respondent is granted leave to file the further affidavit of Mr Pravin Kalidas Vassen, deposed to on 1 August 2024, marked 'PKV1'.