Living Hands (Pty) Ltd NO and Another v Ditz and Others (42728/2012) [2012] ZAGPJHC 218; 2013 (2) SA 368 (GSJ) (11 September 2012)

Living Hands (Pty) Ltd NO and Another v Ditz and Others (42728/2012) [2012] ZAGPJHC 218; 2013 (2) SA 368 (GSJ) (11 September 2012)

The court held that Investec, as a shareholder, did not owe a fiduciary duty or duty of care to Matco or its trust beneficiaries in the circumstances pleaded. The duties alleged were too general and would create indeterminate liability for shareholders, which is not supported by South African or comparative law. The facts pleaded did not establish a special relationship or sufficient nexus to justify extending Aquilian liability. The alternative claim based on condictio furtiva also failed, as there was no glaring possibility of theft at the relevant time. In contrast, Old Mutual owed contractual and statutory duties to the trust and its beneficiaries, and the particulars of claim...

Citation
[2012] ZAGPJHC 218
Parties
Plaintiff: Living Hands (Pty) Limited N.O; Plaintiff: Wilhemina Jacoba Lubbe-Preller N.O; Defendant: Peter Ditz; Defendant: Jeofrey Llewelyn Gover; Defendant: Ivanka Atcheson; Defendant: Donovan Guthrie; Defendant: Hardy Mileham; Defendant: Johnty Gibbs; Defendant: Danisa Baloyi; Defendant: Steinway Trustees (Pty) Limited N.O; Defendant: Hardy Mileham N.O; Defendant: Ivanka Atcheson N.O; Defendant: Pacific Star Trading (Pty) Limited; Defendant: Jeofrey Llewelyn Gover N.O; Defendant: Investec Bank Limited; Defendant: Joseph Arthur Walter Brown; Defendant: Andrew Herbert Tucker; Defendant: Hjalmar Mulder; Defendant: Philippus Johannes Malan; Defendant: Johannes de Jongh; Defendant: Old Mutual Unit Trust Managers Limited; Defendant: Fidentia Holdings Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
11 September 2012
Case Number
42728/2012
Procedural Posture
Civil Application / Exception and Application to Strike Out
Outcome
Investec's exception upheld; Old Mutual's exception and application to strike out dismissed.
Judges
Makgoka
Legal Topics
Shareholder Liability, Fiduciary Duty, Pure Economic Loss, Exception Procedure, Prescription, Contractual and Statutory Duties
Commercial and Corporate Civil Procedure Shareholder Liability Fiduciary Duty Pure Economic Loss Exception Procedure Prescription Contractual and Statutory Duties

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 46 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Living Hands (Pty) Limited N.O

Plaintiff

Wilhemina Jacoba Lubbe-Preller N.O

Plaintiff

Peter Ditz

Defendant

Jeofrey Llewelyn Gover

Defendant

Ivanka Atcheson

Defendant

Donovan Guthrie

Defendant

Hardy Mileham

Defendant

Johnty Gibbs

Defendant

Danisa Baloyi

Defendant

Steinway Trustees (Pty) Limited N.O

Defendant

Hardy Mileham N.O

Defendant

Ivanka Atcheson N.O

Defendant

Pacific Star Trading (Pty) Limited

Defendant

Jeofrey Llewelyn Gover N.O

Defendant

Investec Bank Limited

Defendant

Joseph Arthur Walter Brown

Defendant

Andrew Herbert Tucker

Defendant

Hjalmar Mulder

Defendant

Philippus Johannes Malan

Defendant

Johannes de Jongh

Defendant

Old Mutual Unit Trust Managers Limited

Defendant

Fidentia Holdings Limited

Defendant

Procedural Posture

Civil Application / Exception and Application to Strike Out

Legal Issues

  1. 1 Whether a shareholder owes a fiduciary duty or duty of care to the company or its trust beneficiaries in the circumstances pleaded.
  2. 2 Whether the facts pleaded justify an extension of Aquilian liability to shareholders for pure economic loss.
  3. 3 Whether Old Mutual owed and breached a legal and/or statutory duty to prevent dissipation of trust funds.

Ratio Decidendi

The court held that Investec, as a shareholder, did not owe a fiduciary duty or duty of care to Matco or its trust beneficiaries in the circumstances pleaded. The duties alleged were too general and would create indeterminate liability for shareholders, which is not supported by South African or comparative law. The facts pleaded did not establish a special relationship or sufficient nexus to justify extending Aquilian liability. The alternative claim based on condictio furtiva also failed, as there was no glaring possibility of theft at the relevant time. In contrast, Old Mutual owed contractual and statutory duties to the trust and its beneficiaries, and the particulars of claim...

Court Disposition

Investec's exception upheld; Old Mutual's exception and application to strike out dismissed.

Orders

  • The exception of the thirteenth defendant (Investec) is upheld with costs, including costs for three counsel, to be paid by the plaintiffs jointly and severally.
  • The plaintiffs are granted leave to amend their particulars of claim within 30 days of this order.