F.H v Y.A.H and Others (5514/2011, 8486/2015) [2019] ZAKZDHC 31 (18 December 2019)

F.H v Y.A.H and Others (5514/2011, 8486/2015) [2019] ZAKZDHC 31 (18 December 2019)

The court found that none of the bases pleaded by the plaintiff for entitlement to the dividend from the sale of Ajmeri Arcade were supported by the evidence. The oral undertaking and written 'nomination' document did not establish beneficial ownership or cession of shares to the plaintiff. The evidence showed that any agreement to transfer Ajmerwala shares was superseded by a subsequent agreement to transfer shares in Famous View Properties CC, which the plaintiff accepted in lieu of Ajmerwala shares. The plaintiff's attempt to amend her claim at the close of trial was refused because the new issues had not been properly canvassed in evidence and, on the available facts, the claim would...

Citation
[2019] ZAKZDHC 31
Parties
Plaintiff: F[….] H[….]; Defendant: Y[….] A[….] H[….]; Defendant: Neil McHardy N.O.; Defendant: Andries Geyser N.O.; Defendant: Famous View Properties CC; Defendant: Shamira Bano Ahmed; Defendant: Aboobaker Abul Habib; Defendant: Farida Suliman
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
18 December 2019
Case Number
5514/2011, 8486/2015
Procedural Posture
Civil Trial / Judgment After Trial and Application to Amend Pleadings
Outcome
Plaintiff's application to amend her particulars of claim is dismissed with costs. Plaintiff's claim is dismissed with costs. Plaintiff is ordered to pay the first defendant's costs in the consolidated action (8486/2015). Costs orders include costs of two counsel where employed.
Judges
Olsen
Legal Topics
Share Transfer, Beneficial Ownership, Cession of Shares, Amendment of Pleadings, Costs Order
Commercial and Corporate Civil Procedure Share Transfer Beneficial Ownership Cession of Shares Amendment of Pleadings Costs Order

Case Brief

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Parties

F[….] H[….]

Plaintiff

Y[….] A[….] H[….]

Defendant

Neil McHardy N.O.

Defendant

Andries Geyser N.O.

Defendant

Famous View Properties CC

Defendant

Shamira Bano Ahmed

Defendant

Aboobaker Abul Habib

Defendant

Farida Suliman

Defendant

Procedural Posture

Civil Trial / Judgment After Trial and Application to Amend Pleadings

Legal Issues

  1. 1 Whether the plaintiff acquired beneficial ownership of the first defendant's shares in Ajmerwala (Pty) Limited by cession in 1997.
  2. 2 Whether the plaintiff was entitled to amend her particulars of claim at the close of trial to introduce a new basis for her claim.
  3. 3 Whether the evidence supported any of the pleaded or amended claims for entitlement to the dividend from the sale of Ajmeri Arcade.

Ratio Decidendi

The court found that none of the bases pleaded by the plaintiff for entitlement to the dividend from the sale of Ajmeri Arcade were supported by the evidence. The oral undertaking and written 'nomination' document did not establish beneficial ownership or cession of shares to the plaintiff. The evidence showed that any agreement to transfer Ajmerwala shares was superseded by a subsequent agreement to transfer shares in Famous View Properties CC, which the plaintiff accepted in lieu of Ajmerwala shares. The plaintiff's attempt to amend her claim at the close of trial was refused because the new issues had not been properly canvassed in evidence and, on the available facts, the claim would...

Court Disposition

Plaintiff's application to amend her particulars of claim is dismissed with costs. Plaintiff's claim is dismissed with costs. Plaintiff is ordered to pay the first defendant's costs in the consolidated action (8486/2015). Costs orders include costs of two counsel where employed.

Orders

  • The plaintiff’s application to amend her particulars of claim from the Bar is dismissed with costs, including costs incurred in preparation and delivery of written argument on the amendment.
  • The plaintiff’s claim is dismissed with costs.