Mfeka v Makondo and Others (35439/2015) [2015] ZAGPPHC 607 (21 August 2015)

Mfeka v Makondo and Others (35439/2015) [2015] ZAGPPHC 607 (21 August 2015)

The court found that the applicant and second respondent did not resign as members of the fifth respondent and did not sign any documents authorizing their removal from the membership register. The first respondent failed to produce the alleged documents and her version was rejected as untenable and unsupported. The applicant established a clear right to relief under section 49 of the Close Corporations Act, having suffered prejudicial and inequitable conduct. The court held that the amended founding statement registered on 30 April 2015 was void and ordered restoration of the applicant's membership and related protections, including access to company records and banking facilities.

Citation
[2015] ZAGPPHC 607
Parties
Applicant: Thobile Malania Mfeka; Respondent: Maxangu Collet Makondo; Respondent: Rhandanie Gizzla Makondo; Respondent: Companies and Intellectual Property Commission; Respondent: Firstrand Bank Limited; Respondent: Melco Consulting and Projects CC
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
21 August 2015
Case Number
35439/2015
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted in substantial part; amended founding statement declared void; applicant's membership restored; costs awarded against first respondent.
Judges
M W Msimeki
Legal Topics
Close Corporations Act, Members Interest Dispute, Founding Statement Amendment, Urgent Interdict, Corporate Governance
Commercial and Corporate Civil Procedure Close Corporations Act Members Interest Dispute Founding Statement Amendment Urgent Interdict Corporate Governance

Case Brief

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Parties

Thobile Malania Mfeka

Applicant

Maxangu Collet Makondo

Respondent

Rhandanie Gizzla Makondo

Respondent

Companies and Intellectual Property Commission

Respondent

Firstrand Bank Limited

Respondent

Melco Consulting and Projects CC

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the applicant and second respondent resigned as members of the fifth respondent and signed documents enabling removal from the membership register.
  2. 2 Whether the amended founding statement registered on 30 April 2015 is valid and effective.
  3. 3 Whether the applicant is entitled to restoration of her membership and related relief under section 49 of the Close Corporations Act.

Ratio Decidendi

The court found that the applicant and second respondent did not resign as members of the fifth respondent and did not sign any documents authorizing their removal from the membership register. The first respondent failed to produce the alleged documents and her version was rejected as untenable and unsupported. The applicant established a clear right to relief under section 49 of the Close Corporations Act, having suffered prejudicial and inequitable conduct. The court held that the amended founding statement registered on 30 April 2015 was void and ordered restoration of the applicant's membership and related protections, including access to company records and banking facilities.

Court Disposition

Application granted in substantial part; amended founding statement declared void; applicant's membership restored; costs awarded against first respondent.

Orders

  • The amended founding statement registered on 30 April 2015 is declared void.
  • The Companies and Intellectual Property Commission is ordered to cancel the registration of the void amended founding statement.