Madise v Maswikeng Transport CC and Others (22250/2018) [2018] ZAGPPHC 435 (18 May 2018)

Madise v Maswikeng Transport CC and Others (22250/2018) [2018] ZAGPPHC 435 (18 May 2018)

The court found that the applicant failed to discharge the onus required under Section 36 of the Close Corporations Act for the cessation of the second respondent's membership. The allegations regarding unauthorised payments were contested and subject to a proper accounting process, which the applicant herself acknowledged. The court held that it would be impermissible to shift the onus to the second respondent based on Section 51, especially since the applicant did not raise this issue in her founding affidavit. The deadlock between the parties was acknowledged, but the applicant did not make out a sufficient case for the relief sought. The court also noted that the order granted in...

Citation
[2018] ZAGPPHC 435
Parties
Applicant: Rachel Sebesho Madise; Respondent: Maswikeng Transport CC; Respondent: Mathatho Samuel Phalafala; Respondent: ABSA Bank Limited; Respondent: The Companies and Intellectual Property Commission
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 May 2018
Case Number
22250/2018
Procedural Posture
Urgent Application / Application for Cession of Member's Interest and Related Relief Under Section 36 of the Close Corporations Act
Outcome
Application dismissed; each party to bear its own costs.
Judges
N Kollapen
Legal Topics
Close Corporations Act Section 36, Deadlock Between Members, Cessation of Membership, Unauthorised Payments, Onus of Proof, Urgent Application Procedure
Commercial and Corporate Civil Procedure Close Corporations Act Section 36 Deadlock Between Members Cessation of Membership Unauthorised Payments Onus of Proof Urgent Application Procedure

Case Brief

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Parties

Rachel Sebesho Madise

Applicant

Maswikeng Transport CC

Respondent

Mathatho Samuel Phalafala

Respondent

ABSA Bank Limited

Respondent

The Companies and Intellectual Property Commission

Respondent

Procedural Posture

Urgent Application / Application for Cession of Member's Interest and Related Relief Under Section 36 of the Close Corporations Act

Legal Issues

  1. 1 Whether the applicant has established grounds under Section 36 of the Close Corporations Act for the cessation of the second respondent's membership.
  2. 2 Whether the payments made by the second respondent from the corporation's account justify his removal as a member.
  3. 3 Whether the application is urgent and constitutes an abuse of process.

Ratio Decidendi

The court found that the applicant failed to discharge the onus required under Section 36 of the Close Corporations Act for the cessation of the second respondent's membership. The allegations regarding unauthorised payments were contested and subject to a proper accounting process, which the applicant herself acknowledged. The court held that it would be impermissible to shift the onus to the second respondent based on Section 51, especially since the applicant did not raise this issue in her founding affidavit. The deadlock between the parties was acknowledged, but the applicant did not make out a sufficient case for the relief sought. The court also noted that the order granted in...

Court Disposition

Application dismissed; each party to bear its own costs.

Orders

  • The application is dismissed.
  • Each party is to bear its own costs.