Mokoena NO and Others v Bopa-Lesedi Development (Pty) Ltd (6202/2010) [2011] ZAFSHC 73 (5 May 2011)

Mokoena NO and Others v Bopa-Lesedi Development (Pty) Ltd (6202/2010) [2011] ZAFSHC 73 (5 May 2011)

The court found that the respondent company is of the type where a personal relationship of trust and confidence among shareholders was intended, and that this relationship has irretrievably broken down. The breakdown was most likely caused by the third applicant's instruction for a BEE audit, which was critical for the company's business. However, there is a material dispute as to whether the third applicant acted wrongfully in giving this instruction. The probabilities on the papers are evenly balanced and cannot be resolved without oral evidence. Therefore, the matter is referred for the hearing of oral evidence to determine whether the third applicant's conduct was wrongful, which...

Citation
[2011] ZAFSHC 73
Parties
Applicant: Nolili Patricia Lindiwe Mokoena N.O.; Applicant: Ngangelizwe Jack Sizane N.O.; Applicant: Nolili Patricia Lindiwe Mokoena; Respondent: Bopa-Lesedi Development (Pty) Ltd
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
5 May 2011
Case Number
6202/2010
Procedural Posture
Urgent Application / Application for Provisional Liquidation; Referral for Oral Evidence
Outcome
The matter is referred for the hearing of oral evidence on whether the third applicant acted wrongfully in instructing the BEE audit. Costs are reserved pending the outcome of the oral evidence.
Judges
C.H.G. van der Merwe
Legal Topics
Just and Equitable Winding Up, Deadlock Principle, Minority Shareholder Rights, Oral Evidence Referral, Discovery Under Rule 35
Commercial and Corporate Civil Procedure Just and Equitable Winding Up Deadlock Principle Minority Shareholder Rights Oral Evidence Referral Discovery Under Rule 35

Case Brief

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Parties

Nolili Patricia Lindiwe Mokoena N.O.

Applicant

Ngangelizwe Jack Sizane N.O.

Applicant

Nolili Patricia Lindiwe Mokoena

Applicant

Bopa-Lesedi Development (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application for Provisional Liquidation; Referral for Oral Evidence

Legal Issues

  1. 1 Whether it is just and equitable to provisionally liquidate the respondent company under section 344(h) of the Companies Act.
  2. 2 Whether the breakdown of trust and confidence among shareholders justifies winding up under the deadlock principle.
  3. 3 Whether the third applicant acted wrongfully in instructing a BEE audit, causing the breakdown.

Ratio Decidendi

The court found that the respondent company is of the type where a personal relationship of trust and confidence among shareholders was intended, and that this relationship has irretrievably broken down. The breakdown was most likely caused by the third applicant's instruction for a BEE audit, which was critical for the company's business. However, there is a material dispute as to whether the third applicant acted wrongfully in giving this instruction. The probabilities on the papers are evenly balanced and cannot be resolved without oral evidence. Therefore, the matter is referred for the hearing of oral evidence to determine whether the third applicant's conduct was wrongful, which...

Court Disposition

The matter is referred for the hearing of oral evidence on whether the third applicant acted wrongfully in instructing the BEE audit. Costs are reserved pending the outcome of the oral evidence.

Orders

  • The matter is referred for the hearing of oral evidence at a time to be arranged with the registrar on whether the third applicant acted wrongfully in instructing Emex trust to conduct a BEE audit of the Bopa-Lesedi Group and the respondent.
  • Evidence may be adduced by any witnesses whom the parties elect to call, subject to specified conditions.