Kaimowitz v Delahunt and Others (8728/2016) [2016] ZAWCHC 212; 2017 (3) SA 201 (WCC) (23 November 2016)

Kaimowitz v Delahunt and Others (8728/2016) [2016] ZAWCHC 212; 2017 (3) SA 201 (WCC) (23 November 2016)

The court held that the applicant, as a director, is entitled to attend board meetings and participate in board deliberations and decision-making. However, the right to participate in the day-to-day management of the company's business is not inherent to all directors and may be delegated to specific individuals or committees as provided in the Memorandum of Incorporation. The applicant failed to establish that he was unlawfully prevented from fulfilling his statutory and fiduciary duties as a director. The evidence did not support a finding of oppressive or unfairly prejudicial conduct under section 163 of the Companies Act. The relief sought, which extended to participation in...

Citation
[2016] ZAWCHC 212
Parties
Applicant: Jehudah Leon Kaimowitz; Respondent: Michael John Delahunt; Respondent: Arthur Graham Hammond; Respondent: Fadiel Viljoen; Respondent: Werner Weber; Respondent: UVP Veltopak (Pty) Ltd; Respondent: UVP Holdings (Pty) Ltd; Respondent: Veltopak Coating and Finishing (Pty) Ltd; Respondent: Gerber Goldschmidt Group (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 November 2016
Case Number
8728/2016
Procedural Posture
Urgent Application / Final Relief Sought in Motion Proceedings
Outcome
Application dismissed with costs, including the cost of two counsel.
Judges
Davis
Legal Topics
Director Duties, Oppressive Conduct, Companies Act Section 163, Board Powers, Memorandum of Incorporation, Fiduciary Responsibility
Commercial and Corporate Director Duties Oppressive Conduct Companies Act Section 163 Board Powers Memorandum of Incorporation Fiduciary Responsibility

Case Brief

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Parties

Jehudah Leon Kaimowitz

Applicant

Michael John Delahunt

Respondent

Arthur Graham Hammond

Respondent

Fadiel Viljoen

Respondent

Werner Weber

Respondent

UVP Veltopak (Pty) Ltd

Respondent

UVP Holdings (Pty) Ltd

Respondent

Veltopak Coating and Finishing (Pty) Ltd

Respondent

Gerber Goldschmidt Group (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Relief Sought in Motion Proceedings

Legal Issues

  1. 1 Whether a director is entitled, as of right, to participate in the day-to-day management of a company's business.
  2. 2 Whether the applicant has been unlawfully prevented from fulfilling his obligations as a director under the Companies Act and the Memorandum of Incorporation.
  3. 3 Whether the respondents' conduct amounts to oppressive or unfairly prejudicial treatment under section 163 of the Companies Act.

Ratio Decidendi

The court held that the applicant, as a director, is entitled to attend board meetings and participate in board deliberations and decision-making. However, the right to participate in the day-to-day management of the company's business is not inherent to all directors and may be delegated to specific individuals or committees as provided in the Memorandum of Incorporation. The applicant failed to establish that he was unlawfully prevented from fulfilling his statutory and fiduciary duties as a director. The evidence did not support a finding of oppressive or unfairly prejudicial conduct under section 163 of the Companies Act. The relief sought, which extended to participation in...

Court Disposition

Application dismissed with costs, including the cost of two counsel.

Orders

  • The application is dismissed with costs, including the cost of two counsel.