Gollel Investments (Pty) Ltd v 48 Nagington Road (Pty) Ltd (2011/16580) [2011] ZAGPJHC 133 (23 September 2011)

Gollel Investments (Pty) Ltd v 48 Nagington Road (Pty) Ltd (2011/16580) [2011] ZAGPJHC 133 (23 September 2011)

The court held that the applicant's right to bring an application under section 266(2)(b) of the Companies Act 61 of 1973 only arises after the expiry of the one-month period allowed for the company to institute proceedings. The computation of the one-month period excludes the day of service, and the application was launched prematurely, as both issue and service occurred before the period expired. The transitional provisions of the new Companies Act do not alter this position, as the proceedings were pending before the effective date and must be dealt with under the previous Act. Allowing the application before the expiry of the period would be vexatious and contrary to the statutory...

Citation
[2011] ZAGPJHC 133
Parties
Applicant: Gollel Investments (Pty) Ltd; Respondent: 48 Nagington Road (Pty) Ltd
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 September 2011
Case Number
2011/16580
Procedural Posture
Civil Application / First Instance
Outcome
Application dismissed as premature.
Judges
C G Lamont
Legal Topics
Curator Ad Litem Appointment, Companies Act 1973 Section 266, Premature Application, Computation of Time, Transitional Provisions
Commercial and Corporate Curator Ad Litem Appointment Companies Act 1973 Section 266 Premature Application Computation of Time Transitional Provisions

Case Brief

Summary, issues, holding and outcome

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Parties

Gollel Investments (Pty) Ltd

Applicant

48 Nagington Road (Pty) Ltd

Respondent

Procedural Posture

Civil Application / First Instance

Legal Issues

  1. 1 Whether the applicant was entitled to bring an application for the appointment of a provisional curator ad litem before the expiry of the one-month period stipulated in section 266(2)(a) of the Companies Act 61 of 1973.
  2. 2 Whether the computation of the one-month period should exclude the day of service of the notice.
  3. 3 Whether the transitional provisions of the Companies Act 71 of 2008 affect the present proceedings.

Ratio Decidendi

The court held that the applicant's right to bring an application under section 266(2)(b) of the Companies Act 61 of 1973 only arises after the expiry of the one-month period allowed for the company to institute proceedings. The computation of the one-month period excludes the day of service, and the application was launched prematurely, as both issue and service occurred before the period expired. The transitional provisions of the new Companies Act do not alter this position, as the proceedings were pending before the effective date and must be dealt with under the previous Act. Allowing the application before the expiry of the period would be vexatious and contrary to the statutory...

Court Disposition

Application dismissed as premature.

Orders

  • The application is dismissed with costs, including the costs consequent upon the employment of senior and junior counsel.