Spencer and Others v Memani and Another (675/2012) [2013] ZASCA 146 (1 October 2013)

Spencer and Others v Memani and Another (675/2012) [2013] ZASCA 146 (1 October 2013)

The majority held that the requirements for lis alibi pendens were satisfied, as the earlier action and the application involved the same parties, cause of action, and subject matter regarding Memani's directorship. The defence could be raised before close of pleadings, and it was immaterial that the party raising the defence was the plaintiff in the other proceedings. The pending action should proceed to finality, and the application should be stayed to avoid piecemeal adjudication and unnecessary proliferation of litigation. The order of the court a quo was set aside, and the proceedings were stayed pending the determination of the earlier action. The dissenting judgment argued that the...

Citation
[2013] ZASCA 146
Parties
Appellant: George Talbot Spencer; Appellant: David Thurston Owen Koller; Appellant: Robert Hugh Fryer; Appellant: Paul Staveley Howard; Appellant: Timothy John Anthony Scott; Appellant: Deon Roestorff; Appellant: Gerber Goldschmidt Group SA (Pty) Ltd; Appellant: Emcon Africa (Pty) Ltd; Respondent: Xolisa Kennedy Memani; Respondent: Trustees for the time being of the Masakhane Trust, IT No. 6410/100
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 October 2013
Case Number
675/2012
Procedural Posture
Civil Appeal / Appeal From Kwa Zulu Natal High Court, Durban
Outcome
Appeal upheld; order of the court a quo set aside; proceedings stayed pending determination of the earlier action.
Judges
Lewis, Ponnan, Pillay, Willis, Meyer
Legal Topics
Lis Alibi Pendens, Shareholders Agreement, Director Removal, Declaratory Relief, Broad Based Black Economic Empowerment, Access to Company Information
Commercial and Corporate Civil Procedure Lis Alibi Pendens Shareholders Agreement Director Removal Declaratory Relief Broad Based Black Economic Empowerment Access to Company Information

Case Brief

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Parties

George Talbot Spencer

Appellant

David Thurston Owen Koller

Appellant

Robert Hugh Fryer

Appellant

Paul Staveley Howard

Appellant

Timothy John Anthony Scott

Appellant

Deon Roestorff

Appellant

Gerber Goldschmidt Group SA (Pty) Ltd

Appellant

Emcon Africa (Pty) Ltd

Appellant

Xolisa Kennedy Memani

Respondent

Trustees for the time being of the Masakhane Trust, IT No. 6410/100

Respondent

Procedural Posture

Civil Appeal / Appeal From Kwa Zulu Natal High Court, Durban

Legal Issues

  1. 1 Whether the defence of lis alibi pendens was available to the appellants in light of pending proceedings involving the same dispute.
  2. 2 Whether Memani was lawfully removed as a director of Emcom Africa (Pty) Ltd.
  3. 3 Whether the shareholders' agreement entitled Memani to be a director and to access company information.

Ratio Decidendi

The majority held that the requirements for lis alibi pendens were satisfied, as the earlier action and the application involved the same parties, cause of action, and subject matter regarding Memani's directorship. The defence could be raised before close of pleadings, and it was immaterial that the party raising the defence was the plaintiff in the other proceedings. The pending action should proceed to finality, and the application should be stayed to avoid piecemeal adjudication and unnecessary proliferation of litigation. The order of the court a quo was set aside, and the proceedings were stayed pending the determination of the earlier action. The dissenting judgment argued that the...

Court Disposition

Appeal upheld; order of the court a quo set aside; proceedings stayed pending determination of the earlier action.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court a quo is set aside.