Emira Property Fund Ltd v Mbana (7451/2021) [2022] ZAGPJHC 377 (27 May 2022)

Emira Property Fund Ltd v Mbana (7451/2021) [2022] ZAGPJHC 377 (27 May 2022)

The application for a declarator fails because the respondent was not joined in the original proceedings in which the default judgment was granted against the company. The audi alteram partem principle, enshrined in the Constitution, requires that a party with a direct and substantial interest be afforded an opportunity to participate. The attempt to transpose the company’s liability onto the respondent by way of declarator is misconceived and cannot cure the non-joinder. The declarator sought merely duplicates the statutory provision and is superfluous. The counter-application for damages for defamation is not competent in motion proceedings, as conceded by the respondent and confirmed...

Citation
[2022] ZAGPJHC 377
Parties
Applicant: Emira Property Fund Ltd; Respondent: Pumzo Mbana
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 May 2022
Case Number
7451/2021
Procedural Posture
Declaratory Application / Final Judgment
Outcome
Both the main application and the counter-application are dismissed. Costs are awarded to the respondent, excluding costs relating to the counter-application.
Judges
FHD Van Oosten
Legal Topics
Personal Liability Company, Default Judgment, Non Joinder, Declaratory Relief
Commercial and Corporate Civil Procedure Personal Liability Company Default Judgment Non Joinder Declaratory Relief

Case Brief

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Parties

Emira Property Fund Ltd

Applicant

Pumzo Mbana

Respondent

Procedural Posture

Declaratory Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent, as director of a personal liability company, can be declared jointly and severally liable for a judgment debt granted against the company when not joined in the original proceedings.
  2. 2 Whether a declarator can be issued merely reiterating statutory liability under section 19(3) of the Companies Act.
  3. 3 Whether the counter-application for damages for defamation is competent in motion proceedings.

Ratio Decidendi

The application for a declarator fails because the respondent was not joined in the original proceedings in which the default judgment was granted against the company. The audi alteram partem principle, enshrined in the Constitution, requires that a party with a direct and substantial interest be afforded an opportunity to participate. The attempt to transpose the company’s liability onto the respondent by way of declarator is misconceived and cannot cure the non-joinder. The declarator sought merely duplicates the statutory provision and is superfluous. The counter-application for damages for defamation is not competent in motion proceedings, as conceded by the respondent and confirmed...

Court Disposition

Both the main application and the counter-application are dismissed. Costs are awarded to the respondent, excluding costs relating to the counter-application.

Orders

  • The main application is dismissed.
  • The counter-application is dismissed.