Potgieter and Another v Trade-Off 149 (Pty) Ltd and Others (49397/2012) [2014] ZAGPPHC 826 (9 October 2014)

Potgieter and Another v Trade-Off 149 (Pty) Ltd and Others (49397/2012) [2014] ZAGPPHC 826 (9 October 2014)

The court found that the applicants were no longer shareholders of the First Respondent at the time of the sale and transfer of the property, having failed to fulfil conditions for their shareholding and being divested by cession. Consequently, they lacked locus standi to challenge the transaction. The application was also found to have been settled by agreement, precluding further proceedings. The court held that the transfer of ownership was valid under the abstract system of transfer, and that section 228 of the Companies Act did not apply as the applicants' consent was not required. The claim was not dismissed on prescription grounds, as the relief sought was not a 'debt' under the...

Citation
[2014] ZAGPPHC 826
Parties
Applicant: Carl Jacobus Potgieter; Applicant: Robert Pierre Sole; Respondent: Trade-Off 149 (Pty) Ltd; Respondent: E’ Mhluzi (Pty) Ltd; Respondent: Engelbrecht Khumalo Van Der Berg Inc Attorneys; Respondent: The Registrar of Deeds; Respondent: Steven Tshwete Local Municipality; Respondent: Schepper, Maine Simon; Respondent: Kunene, Mnkonkoni Sydney
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 October 2014
Case Number
49397/2012
Procedural Posture
Civil Application / Final Determination of Opposed Application
Outcome
Application dismissed with costs on a party and party scale.
Judges
Molefe
Legal Topics
Companies Act Section 228, Transfer of Immovable Property, Locus Standi, Prescription, Abstract System of Transfer, Costs Award
Commercial and Corporate Land and Property Civil Procedure Companies Act Section 228 Transfer of Immovable Property Locus Standi Prescription Abstract System of Transfer +1 more

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Parties

Carl Jacobus Potgieter

Applicant

Robert Pierre Sole

Applicant

Trade-Off 149 (Pty) Ltd

Respondent

E’ Mhluzi (Pty) Ltd

Respondent

Engelbrecht Khumalo Van Der Berg Inc Attorneys

Respondent

The Registrar of Deeds

Respondent

Steven Tshwete Local Municipality

Respondent

Schepper, Maine Simon

Respondent

Kunene, Mnkonkoni Sydney

Respondent

Procedural Posture

Civil Application / Final Determination of Opposed Application

Legal Issues

  1. 1 Whether the applicants have locus standi as shareholders to challenge the transfer of the property.
  2. 2 Whether the sale and transfer of the property contravened section 228 of the Companies Act, 61 of 1973.
  3. 3 Whether the application was settled and precluded from proceeding.

Ratio Decidendi

The court found that the applicants were no longer shareholders of the First Respondent at the time of the sale and transfer of the property, having failed to fulfil conditions for their shareholding and being divested by cession. Consequently, they lacked locus standi to challenge the transaction. The application was also found to have been settled by agreement, precluding further proceedings. The court held that the transfer of ownership was valid under the abstract system of transfer, and that section 228 of the Companies Act did not apply as the applicants' consent was not required. The claim was not dismissed on prescription grounds, as the relief sought was not a 'debt' under the...

Court Disposition

Application dismissed with costs on a party and party scale.

Orders

  • The application is dismissed.
  • Applicants are ordered to pay costs on a party and party scale.