Grapentin and Another v Sue McGuinness Communications CC and Others (2018/15776) [2021] ZAGPJHC 569; [2022] 1 All SA 228 (GJ) (19 October 2021)

Grapentin and Another v Sue McGuinness Communications CC and Others (2018/15776) [2021] ZAGPJHC 569; [2022] 1 All SA 228 (GJ) (19 October 2021)

The court found that the Master of the High Court, when issuing a certificate under section 70(4) of the Close Corporations Act, exercises administrative power subject to the requirements of procedural fairness under PAJA. The applicants were not given notice of the proposed administrative action, nor an opportunity to make representations, and were not informed of their rights to review or request reasons. The enquiry under sections 414 and 415 of the Companies Act is a fact-finding process and does not itself justify the conversion of its outcome into a civil judgment without further procedural safeguards. The applicants exhausted the internal remedy by applying to the Magistrates Court...

Citation
[2021] ZAGPJHC 569
Parties
Applicant: Harald Otto Fritz Grapentin; Applicant: Susan Mary McGuinness; Respondent: Sue McGuinness Communications CC (In Liquidation); Respondent: Gail Liyn Warricker N.O.; Respondent: Ignatius Clement Mikateko Shirilele N.O.; Respondent: Scatterlings of Africa (Pty) Limited; Respondent: The Master of the High Court; Respondent: Minister of Justice and Constitutional Development; Respondent: Minister of Trade and Industry
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
19 October 2021
Case Number
2018/15776
Procedural Posture
Review Application / Opposed Motion Court; Judgment on Review
Outcome
Application for review granted; certificate and judgment set aside.
Judges
J.L. Khan
Legal Topics
Promotion of Administrative Justice Act, Procedural Fairness, Close Corporations Act, Liquidation Enquiry, Internal Remedy Exhaustion, Conversion of Certificate to Judgment
Administrative Law Civil Procedure Commercial and Corporate Promotion of Administrative Justice Act Procedural Fairness Close Corporations Act Liquidation Enquiry Internal Remedy Exhaustion +1 more

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Parties

Harald Otto Fritz Grapentin

Applicant

Susan Mary McGuinness

Applicant

Sue McGuinness Communications CC (In Liquidation)

Respondent

Gail Liyn Warricker N.O.

Respondent

Ignatius Clement Mikateko Shirilele N.O.

Respondent

Scatterlings of Africa (Pty) Limited

Respondent

The Master of the High Court

Respondent

Minister of Justice and Constitutional Development

Respondent

Minister of Trade and Industry

Respondent

Procedural Posture

Review Application / Opposed Motion Court; Judgment on Review

Legal Issues

  1. 1 Whether the Master of the High Court's issuance of a certificate under section 70(4) of the Close Corporations Act complied with the procedural fairness requirements of PAJA.
  2. 2 Whether the applicants exhausted internal remedies before approaching the High Court for review.
  3. 3 Whether the conversion of the certificate into a civil judgment was lawful and valid under the relevant statutory framework.

Ratio Decidendi

The court found that the Master of the High Court, when issuing a certificate under section 70(4) of the Close Corporations Act, exercises administrative power subject to the requirements of procedural fairness under PAJA. The applicants were not given notice of the proposed administrative action, nor an opportunity to make representations, and were not informed of their rights to review or request reasons. The enquiry under sections 414 and 415 of the Companies Act is a fact-finding process and does not itself justify the conversion of its outcome into a civil judgment without further procedural safeguards. The applicants exhausted the internal remedy by applying to the Magistrates Court...

Court Disposition

Application for review granted; certificate and judgment set aside.

Orders

  • The certificate issued against the applicants by the Master of the High Court on 13 April 2016 in terms of section 70(4) of the Close Corporations Act, 1984 in the estate of Sue McGuinness Communications CC (in liquidation) is declared invalid and set aside.
  • The judgment granted in the Magistrates Court for the District of Johannesburg under case number 13144/2016 is set aside.