Nompozolo v Phytomed Close Corporation and Others (1142/2015) [2015] ZAECPEHC 48 (26 August 2015)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

CASE NO: 1142/2015

Date heard: 26 August 2015

Date delivered: 26 August 2015

NOT REPORTABLE

In the matter between

BRIAN NOMPOZOLO

Applicant

And

PHYTOMED CLOSE CORPORATION

First Respondent

ANELE PAKADE

Second Respondent

ESTATE LATE MAVIS TOYI

Third Respondent

PHILA PAMELA SIPAMLA

Fourth Respondent

JUDGMENT

GOOSEN, J.

[1] This is an application for leave to appeal against an order dismissing the applicant’s application with costs. The applicant had sought access to certain financial records of the first respondent. In paragraph [14] of the judgment the basis for dismissing the application is summarised as follows:

In my view, the fact that the applicant was a member of the first respondent does not assist the applicant in this application. The notice of motion seeks relief against the second, third and fourth respondents only. The documentary information sought is that of the first respondent. The applicant does not seek any order against the first respondent. The letter of demand in which the documents were first sought was addressed to the first respondent. No request for information was made at any stage to the second, third or fourth respondents. To the extent that the application can be said to fall within the ambit of PAIA it must fail at the first hurdle set up by section 50 of PAIA, namely that the procedural requirements of requesting the information from the second, third and fourth respondents prior to launching this application were plainly not met. It must also fail at the level of what is requested, namely information held by the first respondent. There is no allegation that the second, third and fourth

respondents are in possession of the documents sought by the applicant.

[2] In seeking leave to appeal the applicant advances three essential grounds, namely (a) that this court erred in failing to have regard to the fact that the second, third and fourth respondents are members of the first respondent and therefore represent the first respondent; (b) that the court erred in not finding that the first respondent could not “physically be ordered” to make the documents available; and (c) that the court erred in failing to find that the second, third and fourth respondents ‘were properly required to act on behalf of the first respondent”.

[3] There is no merit in these contentions. There is certainly no basis upon which it might be suggested that another court might reasonably come to a different conclusion on appeal. The second, third and fourth respondents were not cited in their representative capacities. The first respondent is a separate legal entity capable of being sued and of suing in its own name. That is the effect of incorporation as a close corporation. The notion that it cannot be ordered by a court to act in a certain

manner or to take certain steps to produce information requested is wrong in law.

[4] It was not for the trial court to fashion orders on behalf of a litigant. The notice of motion was drafted in clear terms. It sought substantive relief only against the second, third and fourth respondents. This was coupled with a punitive costs order (again sought only against the second, third and fourth respondents).

[5] There was no basis to find that the relief was effectively sought against the first respondent. The dismissal of the application was, as the paragraph clearly indicates, based on the applicant‘s failure to make out any case for the granting of the relief against the second, third and fourth respondents. In this regard there is no prospect that another court will come to a different conclusion.

[6] The further grounds for leave to appeal concern this court’s failure to condone the failure to seek relief against the first respondent and that the court erred in failing to treat the first respondent as a partnership entitling the applicant to an order that the members account to him.

[7] Insofar as the failure to “condone” the fact that no relief was sought against the first respondent nothing more need be said than what is set out above. Regarding the “partnership” issue it need only be said that the applicant approached the court for an order compelling production of certain documents, he did not seek an order that the members “account” to him. The applicant’s cause of action was one founded on his right of access to certain information, whether as a member of the first respondent or not. He failed to make out a case for such relief, and there is, in my view, no prospect that another court will come to a different conclusion.

[8] The application for leave to appeal must therefore fail.

[9] I make the following order:

The application for leave to appeal is dismissed with costs.

________________________

G. GOOSEN

JUDGE OF THE HIGH COURT

Appearances:

For the Applicant

Adv. Pitt

Instructed by Mqanto & Associates Attorneys

For the Respondents

M. Nobotana

Instructed by Lulama Prince Attorneys