Makanda and Others v Mosotho and Others (4153/2016) [2018] ZAFSHC 7 (9 February 2018)

Makanda and Others v Mosotho and Others (4153/2016) [2018] ZAFSHC 7 (9 February 2018)

The court found that the first point in limine, regarding the suitability of motion proceedings, was without merit. There was no bona fide dispute of fact that could not be resolved on the affidavits. The second point in limine, concerning non-joinder of shareholders, was upheld. Shareholders have a direct and substantial interest in the outcome, as they appoint directors and are affected by declarations of delinquency. In the absence of a securities register, applicants are permitted to join all interested parties as previously listed in related litigation. Costs were apportioned, with each party bearing their own costs.

Citation
[2018] ZAFSHC 7
Parties
Applicant: Makalimeng Berlina Makanda; Applicant: Pitso Fairbridge Mogoregi; Applicant: Mpati Grace Erica Kalane; Applicant: Mosoeunyane Shadrack Ramathe; Respondent: Lehlohonolo Mosotho; Respondent: Mariripe Olehile Phillip Molema; Respondent: Elias Pule Matjoa; Respondent: Dannyboy Polimpote Pitse; Respondent: AfrnnaIHealth (Pty) Ltd; Respondent: Companies and Intellectual Property Commission
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
9 February 2018
Case Number
4153/2016
Procedural Posture
Urgent Application / Points in Limine Adjudicated
Outcome
First point in limine dismissed; second point in limine upheld; applicants ordered to join shareholders or listed interested parties; leave granted to approach court for finalisation; each party to bear own costs.
Judges
P Molitsoane
Legal Topics
Director Delinquency, Recklessness, Joinder of Parties, Motion Vs Action Proceedings
Commercial and Corporate Civil Procedure Director Delinquency Recklessness Joinder of Parties Motion Vs Action Proceedings

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Parties

Makalimeng Berlina Makanda

Applicant

Pitso Fairbridge Mogoregi

Applicant

Mpati Grace Erica Kalane

Applicant

Mosoeunyane Shadrack Ramathe

Applicant

Lehlohonolo Mosotho

Respondent

Mariripe Olehile Phillip Molema

Respondent

Elias Pule Matjoa

Respondent

Dannyboy Polimpote Pitse

Respondent

AfrnnaIHealth (Pty) Ltd

Respondent

Companies and Intellectual Property Commission

Respondent

Procedural Posture

Urgent Application / Points in Limine Adjudicated

Legal Issues

  1. 1 Whether the relief sought can be obtained by way of application proceedings as opposed to action proceedings.
  2. 2 Whether there is a material defect of non-joinder of the rest of the shareholders.

Ratio Decidendi

The court found that the first point in limine, regarding the suitability of motion proceedings, was without merit. There was no bona fide dispute of fact that could not be resolved on the affidavits. The second point in limine, concerning non-joinder of shareholders, was upheld. Shareholders have a direct and substantial interest in the outcome, as they appoint directors and are affected by declarations of delinquency. In the absence of a securities register, applicants are permitted to join all interested parties as previously listed in related litigation. Costs were apportioned, with each party bearing their own costs.

Court Disposition

First point in limine dismissed; second point in limine upheld; applicants ordered to join shareholders or listed interested parties; leave granted to approach court for finalisation; each party to bear own costs.

Orders

  • The first point in limine on the question of a dispute of fact is dismissed.
  • The second point in limine on the question of non-joinder is upheld, subject to joining shareholders as listed in the securities register of the fifth respondent.