Schmidt v Weaving (557/06) [2008] ZASCA 123; 2009 (1) SA 170 (SCA) ; [2009] 1 All SA 297 (SCA) (29 September 2008)

Schmidt v Weaving (557/06) [2008] ZASCA 123; 2009 (1) SA 170 (SCA) ; [2009] 1 All SA 297 (SCA) (29 September 2008)

The Supreme Court of Appeal held that the attachment of the appellant's member's interest in Le Cap International CC was invalid because actual notice of the attachment was not given to the close corporation. The court found that notice to the Registrar of Close Corporations was insufficient, as the Registrar does not participate in the transfer of member's interests and cannot prevent such transfer. Section 25 of the Close Corporations Act does not override the requirement for actual notice to the corporation. Without valid attachment, the court lacked jurisdiction over the appellant, a peregrinus. The appeal was upheld, and the special plea to jurisdiction succeeded.

Citation
[2008] ZASCA 123
Parties
Appellant: Dieter Schmidt; Respondent: Birgitta Weaving
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2008
Case Number
556/07
Procedural Posture
Civil Appeal / Appeal From High Court, Cape Town
Outcome
Appeal upheld; special plea to jurisdiction succeeds.
Judges
Scott, Farlam, Jafta, Mlambo, Maya
Legal Topics
Attachment of Member Interest, Jurisdiction Over Peregrinus, Close Corporations Act, Service of Process
Civil Procedure Commercial and Corporate Attachment of Member Interest Jurisdiction Over Peregrinus Close Corporations Act Service of Process

Case Brief

Summary, issues, holding and outcome

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Parties

Dieter Schmidt

Appellant

Birgitta Weaving

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Cape Town

Legal Issues

  1. 1 Whether the attachment of the appellant's member's interest in a close corporation was valid to found or confirm jurisdiction.
  2. 2 Whether notice to the close corporation was required for a valid attachment.
  3. 3 Whether section 25 of the Close Corporations Act 69 of 1984 applies to the attachment process.

Ratio Decidendi

The Supreme Court of Appeal held that the attachment of the appellant's member's interest in Le Cap International CC was invalid because actual notice of the attachment was not given to the close corporation. The court found that notice to the Registrar of Close Corporations was insufficient, as the Registrar does not participate in the transfer of member's interests and cannot prevent such transfer. Section 25 of the Close Corporations Act does not override the requirement for actual notice to the corporation. Without valid attachment, the court lacked jurisdiction over the appellant, a peregrinus. The appeal was upheld, and the special plea to jurisdiction succeeded.

Court Disposition

Appeal upheld; special plea to jurisdiction succeeds.

Orders

  • The appeal succeeds with costs, including those of two counsel where employed.
  • The order of the court a quo is set aside and replaced with: The special plea is upheld with costs, including those occasioned by the employment of two counsel.