Mncwango N.O v Ngcobo and Others (11908/2017) [2019] ZAKZDHC 4 (1 April 2019)

Mncwango N.O v Ngcobo and Others (11908/2017) [2019] ZAKZDHC 4 (1 April 2019)

The court found that the existence of an agreement entitling the first and/or second respondents to retain the Hilux and Polo vehicles could not be resolved on the affidavits alone due to material disputes of fact. Accordingly, this issue was referred for oral evidence. The applicant, as executrix, was entitled to be registered as a member of the second respondent in her representative capacity and to exercise all attendant rights, including access to financial records, joint venture contracts, and banking services. The claim for payment of vehicle arrears was dismissed as unsuitable for determination in motion proceedings. Costs were apportioned, with the first and second respondents...

Citation
[2019] ZAKZDHC 4
Parties
Applicant: Halalisiwe Bagcinile Mncwango N.O.; Respondent: Zaba Lincoln Ngcobo; Respondent: Mami’s Construction CC; Respondent: First National Bank Ltd; Respondent: Commissioner of Companies and Intellectual Property Commission; Respondent: The Master of the High Court, Durban; Respondent: Tiny Phumeza Nontulo
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
1 April 2019
Case Number
11908/2017
Procedural Posture
Civil Application / Order Following Opposed Motion and Referral to Oral Evidence
Outcome
Partially granted; referral to oral evidence on the agreement regarding vehicles; ancillary relief granted; claim for vehicle arrears dismissed; costs apportioned.
Judges
Koen
Legal Topics
Administration of Estates Act, Close Corporations Act, Members Interest Transfer, Motion Proceedings, Oral Evidence Referral
Civil Procedure Commercial and Corporate Administration of Estates Act Close Corporations Act Members Interest Transfer Motion Proceedings Oral Evidence Referral

Case Brief

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Parties

Halalisiwe Bagcinile Mncwango N.O.

Applicant

Zaba Lincoln Ngcobo

Respondent

Mami’s Construction CC

Respondent

First National Bank Ltd

Respondent

Commissioner of Companies and Intellectual Property Commission

Respondent

The Master of the High Court, Durban

Respondent

Tiny Phumeza Nontulo

Respondent

Procedural Posture

Civil Application / Order Following Opposed Motion and Referral to Oral Evidence

Legal Issues

  1. 1 Whether an agreement existed entitling the first and/or second respondents to retain possession and use of the Hilux and Polo vehicles as a trade-off for vehicles given to the deceased.
  2. 2 Whether the applicant, as executrix, is entitled to the deceased’s 50% member’s interest in the second respondent and related corporate records.
  3. 3 Whether the applicant is entitled to ancillary relief including access to financial records, joint venture contracts, and inContact banking services.

Ratio Decidendi

The court found that the existence of an agreement entitling the first and/or second respondents to retain the Hilux and Polo vehicles could not be resolved on the affidavits alone due to material disputes of fact. Accordingly, this issue was referred for oral evidence. The applicant, as executrix, was entitled to be registered as a member of the second respondent in her representative capacity and to exercise all attendant rights, including access to financial records, joint venture contracts, and banking services. The claim for payment of vehicle arrears was dismissed as unsuitable for determination in motion proceedings. Costs were apportioned, with the first and second respondents...

Court Disposition

Partially granted; referral to oral evidence on the agreement regarding vehicles; ancillary relief granted; claim for vehicle arrears dismissed; costs apportioned.

Orders

  • The issue of whether an agreement existed entitling the first and/or second respondents to retain the Hilux and Polo vehicles is referred for oral evidence.
  • Evidence shall be led by witnesses who have deposed to affidavits and any further witnesses whose summaries are delivered 15 days prior, unless subpoenaed.