Elmos Services BV v Microsystems on Silicon (Pty) Ltd and Others (71201/2018) [2020] ZAGPPHC 37 (21 January 2020)

Elmos Services BV v Microsystems on Silicon (Pty) Ltd and Others (71201/2018) [2020] ZAGPPHC 37 (21 January 2020)

The court found that the ongoing German litigation concerning damages for premature termination of a co-operation agreement had not yet run its course, and that granting a final winding-up order at this stage would be premature. The applicant had fully cooperated with the section 165 process initiated by the minority shareholders, and there was no evidence of oppressive conduct justifying relief under section 163. The counter-application for compulsory sale of shares was not supported by the facts or law. The court exercised its discretion under section 81 of the Companies Act to discharge the provisional winding-up order and dismiss the counter-application, allowing the German...

Citation
[2020] ZAGPPHC 37
Parties
Applicant: Elmos Services BV; Respondent: Microsystems on Silicon (Pty) Ltd; Respondent: Helgard Ross; Respondent: Arthur Wilhelm Suntken N.O; Respondent: Wolfgang Manfred Suntken N.O; Respondent: Jutta Ingrid Schmidt N.O
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 January 2020
Case Number
71201/2018
Procedural Posture
Winding Up Application / Final Hearing After Provisional Winding Up Order and Counter Application
Outcome
Provisional winding-up order discharged; counter-application dismissed; no order as to costs.
Judges
H.J Fabricius
Legal Topics
Winding Up of Solvent Company, Shareholder Oppression, Section 165 Process, Section 163 Relief, Deadlock in Corporate Governance
Commercial and Corporate Civil Procedure Winding Up of Solvent Company Shareholder Oppression Section 165 Process Section 163 Relief Deadlock in Corporate Governance

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Parties

Elmos Services BV

Applicant

Microsystems on Silicon (Pty) Ltd

Respondent

Helgard Ross

Respondent

Arthur Wilhelm Suntken N.O

Respondent

Wolfgang Manfred Suntken N.O

Respondent

Jutta Ingrid Schmidt N.O

Respondent

Procedural Posture

Winding Up Application / Final Hearing After Provisional Winding Up Order and Counter Application

Legal Issues

  1. 1 Whether a final winding-up order should be granted against the respondent company.
  2. 2 Whether the counter-application for compulsory sale of shares under section 163 of the Companies Act should be granted.
  3. 3 Whether the applicant's conduct constituted oppressive conduct under section 163.

Ratio Decidendi

The court found that the ongoing German litigation concerning damages for premature termination of a co-operation agreement had not yet run its course, and that granting a final winding-up order at this stage would be premature. The applicant had fully cooperated with the section 165 process initiated by the minority shareholders, and there was no evidence of oppressive conduct justifying relief under section 163. The counter-application for compulsory sale of shares was not supported by the facts or law. The court exercised its discretion under section 81 of the Companies Act to discharge the provisional winding-up order and dismiss the counter-application, allowing the German...

Court Disposition

Provisional winding-up order discharged; counter-application dismissed; no order as to costs.

Orders

  • The provisional winding-up order is discharged.
  • The counter-application is dismissed.