Lodestone Investments 2 (Pty) Ltd v Daniel Zenegu Moses t/a Mini Boutique (656/2011) [2011] ZANCHC 22 (30 September 2011)

Lodestone Investments 2 (Pty) Ltd v Daniel Zenegu Moses t/a Mini Boutique (656/2011) [2011] ZANCHC 22 (30 September 2011)

The court found that the applicant was aware, prior to instituting proceedings, that the occupier of the premises was Mini Boutique, with the registered business being SELAM BOUTIQUE CC. Despite this knowledge, the applicant proceeded against Moses personally rather than the close corporation. The law is clear that a close corporation is a separate legal entity, and the applicant's failure to cite SELAM BOUTIQUE CC as the respondent rendered the application fatally defective. The respondent's point in limine was upheld, and the application was dismissed with costs, including reserved costs.

Citation
[2011] ZANCHC 22
Parties
Applicant: Lodestone Investments 2 (Pty) Ltd; Respondent: Daniel Zenegu Moses t/a Mini Boutique
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
30 September 2011
Case Number
656/2011
Procedural Posture
Urgent Application / Opposed Motion; Point in Limine Decided
Outcome
Application dismissed with costs, including reserved costs.
Judges
Hughes-Madondo
Legal Topics
Eviction Proceedings, Wrong Party Cited, Close Corporation Legal Persona
Civil Procedure Land and Property Eviction Proceedings Wrong Party Cited Close Corporation Legal Persona

Case Brief

Summary, issues, holding and outcome

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Parties

Lodestone Investments 2 (Pty) Ltd

Applicant

Daniel Zenegu Moses t/a Mini Boutique

Respondent

Procedural Posture

Urgent Application / Opposed Motion; Point in Limine Decided

Legal Issues

  1. 1 Whether the applicant cited the correct party in the eviction proceedings.
  2. 2 Whether the respondent, Daniel Zenegu Moses t/a Mini Boutique, is the lawful occupier of the premises or if SELAM BOUTIQUE CC should have been cited.
  3. 3 Whether the application should be dismissed due to citation of the wrong party.

Ratio Decidendi

The court found that the applicant was aware, prior to instituting proceedings, that the occupier of the premises was Mini Boutique, with the registered business being SELAM BOUTIQUE CC. Despite this knowledge, the applicant proceeded against Moses personally rather than the close corporation. The law is clear that a close corporation is a separate legal entity, and the applicant's failure to cite SELAM BOUTIQUE CC as the respondent rendered the application fatally defective. The respondent's point in limine was upheld, and the application was dismissed with costs, including reserved costs.

Court Disposition

Application dismissed with costs, including reserved costs.

Orders

  • The application is dismissed with costs inclusive of the costs reserved on 29 April 2011.