Pasiya and Others v Lithemba Mining (Pty) Ltd and Others (206/2022; 264/2022) [2023] ZASCA 169; [2024] 1 All SA 626 (SCA); 2024 (4) SA 118 (SCA) (1 December 2023)

Pasiya and Others v Lithemba Mining (Pty) Ltd and Others (206/2022; 264/2022) [2023] ZASCA 169; [2024] 1 All SA 626 (SCA); 2024 (4) SA 118 (SCA) (1 December 2023)

The Supreme Court of Appeal held that the high court correctly applied the two-stage test for declaratory relief. The appellants, as shareholders, had an interest in an existing or contingent right, but the court exercised its discretion against granting relief due to their undue delay in instituting proceedings. The dilution of shareholding and related transactions occurred in 2009–2010, and the appellants only approached the court in 2020, by which time their claims had prescribed. The loan agreement and share capital increase were lawfully authorised and implemented in accordance with the Companies Act 61 of 1973, not the 2008 Act. The resolutions were validly passed with proper...

Citation
[2023] ZASCA 169
Parties
Appellant: Buyiswa Grace Pasiya; Appellant: Thandi Veronica Mohale; Appellant: Koliswa Ntobongwana; Appellant: Keely Canca; Appellant: Primrose Pasiya; Appellant: Yolisa Qangule; Appellant: Sharon Mnqandi; Appellant: Koleka Makhongolo; Appellant: Pumla Mdleleni; Appellant: Ouma Ramatlodi; Appellant: Thembi Zungu; Respondent: Lithemba Mining (Pty) Ltd; Respondent: Yoliswa Balfour; Respondent: Siphokazi Nyamakazi; Respondent: Vuyolwethu Ntombekhaya Ncwaiba; Respondent: Sive Yibanathi Stofile; Respondent: Nkosi Yawo Gugushe; Respondent: Nosinda Tena; Respondent: Zodwa Enid Mahlangu; Respondent: Ntombizakhe Madala; Respondent: Nomfanelo Magwentshu; Respondent: Lithemba Investments (Pty) Ltd; Respondent: Companies and Intellectual Property Commission
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2023
Case Number
206/2022; 264/2022
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division of the High Court, Grahamstown
Outcome
Appeal dismissed with costs, including costs of two counsel where so employed. Cross-appeal dismissed with costs.
Judges
Saldulker, Zondi, Mothle, Matojane, Kathree-Setiloane
Legal Topics
Declaratory Relief, Company Share Capital, Prescription of Claims, Board and Shareholder Resolutions, Directors Duties, Shareholder Dilution
Commercial and Corporate Civil Procedure Declaratory Relief Company Share Capital Prescription of Claims Board and Shareholder Resolutions Directors Duties Shareholder Dilution

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Buyiswa Grace Pasiya

Appellant

Thandi Veronica Mohale

Appellant

Koliswa Ntobongwana

Appellant

Keely Canca

Appellant

Primrose Pasiya

Appellant

Yolisa Qangule

Appellant

Sharon Mnqandi

Appellant

Koleka Makhongolo

Appellant

Pumla Mdleleni

Appellant

Ouma Ramatlodi

Appellant

Thembi Zungu

Appellant

Lithemba Mining (Pty) Ltd

Respondent

Yoliswa Balfour

Respondent

Siphokazi Nyamakazi

Respondent

Vuyolwethu Ntombekhaya Ncwaiba

Respondent

Sive Yibanathi Stofile

Respondent

Nkosi Yawo Gugushe

Respondent

Nosinda Tena

Respondent

Zodwa Enid Mahlangu

Respondent

Ntombizakhe Madala

Respondent

Nomfanelo Magwentshu

Respondent

Lithemba Investments (Pty) Ltd

Respondent

Companies and Intellectual Property Commission

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division of the High Court, Grahamstown

Legal Issues

  1. 1 Whether the high court erred in dismissing the appellants' application for declaratory relief and consequential relief.
  2. 2 Whether the high court misdirected itself by failing to dismiss the application with costs on a punitive scale.
  3. 3 Whether the loan agreement and share capital increase were lawfully authorised and implemented.

Ratio Decidendi

The Supreme Court of Appeal held that the high court correctly applied the two-stage test for declaratory relief. The appellants, as shareholders, had an interest in an existing or contingent right, but the court exercised its discretion against granting relief due to their undue delay in instituting proceedings. The dilution of shareholding and related transactions occurred in 2009–2010, and the appellants only approached the court in 2020, by which time their claims had prescribed. The loan agreement and share capital increase were lawfully authorised and implemented in accordance with the Companies Act 61 of 1973, not the 2008 Act. The resolutions were validly passed with proper...

Court Disposition

Appeal dismissed with costs, including costs of two counsel where so employed. Cross-appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs including the costs of two counsel where so employed.
  • The cross-appeal is dismissed with costs including the costs of two counsel where so employed.