Rossouw NO and Others v Stofberg and Another (9937/2019) [2019] ZAWCHC 107 (23 August 2019)

Rossouw NO and Others v Stofberg and Another (9937/2019) [2019] ZAWCHC 107 (23 August 2019)

The court found that the applicants failed to prove on the papers that the shareholders and directors passed resolutions under clause 5.7 of the shareholders agreement or that a separate indulgence agreement was concluded and repudiated as alleged. The contemporaneous documents did not support the applicants' version, and the respondent's account could not be rejected as far-fetched. The court declined to refer the matter to oral evidence, noting that the probabilities did not favour the applicants and that the dispute could be resolved by arbitration as provided in the shareholders agreement. The application was dismissed with costs.

Citation
[2019] ZAWCHC 107
Parties
Applicant: Christiaan Le Courdeur Rossouw N.O.; Applicant: Yvonne Rossouw N.O.; Applicant: George Nicolaas Wegner N.O.; Respondent: Johannes Petrus Jordaan Stofberg; Respondent: Stofberg Berries (Pty) Ltd
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 August 2019
Case Number
9937/2019
Procedural Posture
Urgent Application / Final Relief Sought on Motion; Application Dismissed on the Papers
Outcome
Application dismissed with costs.
Judges
Rogers
Legal Topics
Shareholders Agreement, Company Funding, Dilution of Equity, Urgent Interdict, Arbitration Clause
Commercial and Corporate Civil Procedure Shareholders Agreement Company Funding Dilution of Equity Urgent Interdict Arbitration Clause

Case Brief

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Parties

Christiaan Le Courdeur Rossouw N.O.

Applicant

Yvonne Rossouw N.O.

Applicant

George Nicolaas Wegner N.O.

Applicant

Johannes Petrus Jordaan Stofberg

Respondent

Stofberg Berries (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Final Relief Sought on Motion; Application Dismissed on the Papers

Legal Issues

  1. 1 Whether the shareholders and directors passed resolutions in terms of clause 5.7 of the shareholders agreement.
  2. 2 Whether the alleged 'indulgence agreement' was concluded and repudiated.
  3. 3 Whether the dilution of the first respondent's shareholding to zero was validly triggered.

Ratio Decidendi

The court found that the applicants failed to prove on the papers that the shareholders and directors passed resolutions under clause 5.7 of the shareholders agreement or that a separate indulgence agreement was concluded and repudiated as alleged. The contemporaneous documents did not support the applicants' version, and the respondent's account could not be rejected as far-fetched. The court declined to refer the matter to oral evidence, noting that the probabilities did not favour the applicants and that the dispute could be resolved by arbitration as provided in the shareholders agreement. The application was dismissed with costs.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs, including the costs reserved on 26 June 2019.