Simmonds NO v Essafrau and Others; In Re: Brankin v Essafrau and Others (934/2017) [2018] ZASCA 113 (14 September 2018)

Simmonds NO v Essafrau and Others; In Re: Brankin v Essafrau and Others (934/2017) [2018] ZASCA 113 (14 September 2018)

The appeal was dismissed because the appellant failed to establish, on the affidavits, that the deceased lawfully acquired ownership of the shares in Burchells Bush Lodge Shareblock Limited. The founding affidavit contained contradictory statements regarding the manner of acquisition, and the respondents' answering affidavit compounded the confusion with inconsistent admissions and denials. The central legal issue of ownership could not be resolved on the papers, as the facts were not common cause and the probabilities could not be considered in motion proceedings. The requirements for final relief in motion proceedings were not met, and the application was correctly dismissed by the...

Citation
[2018] ZASCA 113
Parties
Appellant: Ewan Ronald Simmonds N O; Respondent: Granville Essafrau; Respondent: Kosta Babich; Respondent: Gillian Lee; Respondent: Robert Capper; Respondent: Burchells Bush Lodge Shareblock Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
14 September 2018
Case Number
934/2017
Procedural Posture
Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Ponnan, Tshiqi, Swain, Mothle, Nicholls
Legal Topics
Vindication of Shares, Ownership of Shares, Motion Proceedings, Contradictory Affidavit Evidence, Pledge of Shares
Commercial and Corporate Civil Procedure Vindication of Shares Ownership of Shares Motion Proceedings Contradictory Affidavit Evidence Pledge of Shares

Case Brief

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Parties

Ewan Ronald Simmonds N O

Appellant

Granville Essafrau

Respondent

Kosta Babich

Respondent

Gillian Lee

Respondent

Robert Capper

Respondent

Burchells Bush Lodge Shareblock Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Local Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether the deceased acquired lawful ownership of the shares in Burchells Bush Lodge Shareblock Limited before their purported transfer to the respondents.
  2. 2 Whether the transfer of shares to the respondents contravened Article 9 of the articles of association and was therefore void.
  3. 3 Whether the facts necessary to establish ownership of the shares are common cause and can be resolved on affidavit evidence.

Ratio Decidendi

The appeal was dismissed because the appellant failed to establish, on the affidavits, that the deceased lawfully acquired ownership of the shares in Burchells Bush Lodge Shareblock Limited. The founding affidavit contained contradictory statements regarding the manner of acquisition, and the respondents' answering affidavit compounded the confusion with inconsistent admissions and denials. The central legal issue of ownership could not be resolved on the papers, as the facts were not common cause and the probabilities could not be considered in motion proceedings. The requirements for final relief in motion proceedings were not met, and the application was correctly dismissed by the...

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • Ewan Ronald Simmonds N O is substituted as the appellant for John Owen Brankin in these proceedings.
  • The name of the appellant wherever it occurs in the appeal under case number 9334/2017 is amended to read Ewan Ronald Simmonds N O.