R and Others (37430/2017), R v [2018] ZAGPJHC 464 (5 July 2018)

R and Others (37430/2017), R v [2018] ZAGPJHC 464 (5 July 2018)

The court found that the transfer of the applicant's members interest in the close corporation was effected by means of a forged power of attorney, which was not signed by the applicant. The first respondent did not dispute the forgery and failed to provide credible evidence of a valid agreement for the transfer. The purported transfer was therefore declared null and void. The first respondent's opposition was deemed vexatious, justifying a punitive costs order against her.

Citation
[2018] ZAGPJHC 464
Parties
Applicant: R S; Respondent: R L; Respondent: Arie Hendrik Kuhn; Respondent: Dayjur Trading and Investment CC; Respondent: Company and Intellectual Property Commission; Respondent: Brenda Lyn Anderson
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
5 July 2018
Case Number
37430/2017
Procedural Posture
Declaratory Application / Judgment
Outcome
Application granted in part; transfer declared null and void; costs awarded against first respondent.
Judges
Fisher
Legal Topics
Close Corporation Members Interest, Fraudulent Transfer, Declaratory Relief, Power of Attorney, Costs Award
Commercial and Corporate Civil Procedure Close Corporation Members Interest Fraudulent Transfer Declaratory Relief Power of Attorney Costs Award

Case Brief

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Parties

R S

Applicant

R L

Respondent

Arie Hendrik Kuhn

Respondent

Dayjur Trading and Investment CC

Respondent

Company and Intellectual Property Commission

Respondent

Brenda Lyn Anderson

Respondent

Procedural Posture

Declaratory Application / Judgment

Legal Issues

  1. 1 Whether the transfer of the applicant's 50% members interest in the close corporation to the first respondent was valid.
  2. 2 Whether the power of attorney used to effect the transfer was forged and thus invalid.
  3. 3 Whether the applicant is entitled to declaratory relief regarding his members interest.

Ratio Decidendi

The court found that the transfer of the applicant's members interest in the close corporation was effected by means of a forged power of attorney, which was not signed by the applicant. The first respondent did not dispute the forgery and failed to provide credible evidence of a valid agreement for the transfer. The purported transfer was therefore declared null and void. The first respondent's opposition was deemed vexatious, justifying a punitive costs order against her.

Court Disposition

Application granted in part; transfer declared null and void; costs awarded against first respondent.

Orders

  • The change in members interest in the third respondent effected on 13 June 2012 is declared null and void.
  • The first respondent is to pay the costs of the applicant on the scale as between attorney and client.