Gaffoor NO and Another v Vangates Investments (Pty) Ltd and Others (23819/2009) [2011] ZAWCHC 9 (17 February 2011)

Gaffoor NO and Another v Vangates Investments (Pty) Ltd and Others (23819/2009) [2011] ZAWCHC 9 (17 February 2011)

The Court found that, although the transfer of the deceased's shares was invalid, the applicants failed to pursue rectification with reasonable diligence. The administration of the estate was marked by prolonged inactivity and lack of engagement with the company, resulting in a delay of over five years before any effective steps were taken. During this period, the company and its members proceeded with the development, incurred liabilities, and ultimately realised a profit. The Court held that, in the exercise of its equitable discretion under section 115 of the Companies Act, the delay was undue and the circumstances did not justify granting the relief sought. The application was...

Citation
[2011] ZAWCHC 9
Parties
Applicant: Mohammed Azeem Gaffoor N.O.; Applicant: Ayesha-Bl Parker N.O.; Respondent: Vangates Investments (Pty) Ltd; Respondent: Abdul Aziz Banderker; Respondent: Goolam Mustapha Brey; Respondent: Mohammed Allie Dhansay; Respondent: Abdullah Eshack Gangraker; Respondent: Abdul Wahab Barday N.O.; Respondent: Mohamed Yousif Mohamed; Respondent: Nishaad Murudker; Respondent: Liakatali Sonday; Respondent: Mahmood Khatib N.O.; Respondent: Uthman Brey N.O.; Respondent: Mohamed Allie Dhansay N.O.; Respondent: Amina Dhansay N.O.; Respondent: Azgari Begum Hoosain N.O.; Respondent: Abdullah Eshack Gangraker N.O.; Respondent: Fatima Gangraker N.O.; Respondent: Rauf Khan N.O.; Respondent: Haseena Begum Khan N.O.; Respondent: Akbar Allie Log Day N.O.; Respondent: Mohamed Yousif Mohamed N.O.; Respondent: Zohra Mohamed N.O.; Respondent: Moosa Mohamed N.O.; Respondent: Nazeem Mohamed N.O.; Respondent: Ebrahim Allie Enos Murudker N.O.; Respondent: Goolam Mustapha Brey N.O.; Respondent: Vangate Property (Pty) Ltd; Respondent: One Vision Investments 52 (Pty) Ltd; Respondent: Mahmood Khatib
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
17 February 2011
Case Number
23819/2009
Procedural Posture
Rectification Application / Final Judgment
Outcome
Application dismissed with costs, including costs of two counsel.
Judges
Koen
Legal Topics
Rectification of Share Register, Companies Act Section 115, Prescription Act Application, Delay and Equitable Discretion
Commercial and Corporate Civil Procedure Rectification of Share Register Companies Act Section 115 Prescription Act Application Delay and Equitable Discretion

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Parties

Mohammed Azeem Gaffoor N.O.

Applicant

Ayesha-Bl Parker N.O.

Applicant

Vangates Investments (Pty) Ltd

Respondent

Abdul Aziz Banderker

Respondent

Goolam Mustapha Brey

Respondent

Mohammed Allie Dhansay

Respondent

Abdullah Eshack Gangraker

Respondent

Abdul Wahab Barday N.O.

Respondent

Mohamed Yousif Mohamed

Respondent

Nishaad Murudker

Respondent

Liakatali Sonday

Respondent

Mahmood Khatib N.O.

Respondent

Uthman Brey N.O.

Respondent

Mohamed Allie Dhansay N.O.

Respondent

Amina Dhansay N.O.

Respondent

Azgari Begum Hoosain N.O.

Respondent

Abdullah Eshack Gangraker N.O.

Respondent

Fatima Gangraker N.O.

Respondent

Rauf Khan N.O.

Respondent

Haseena Begum Khan N.O.

Respondent

Akbar Allie Log Day N.O.

Respondent

Mohamed Yousif Mohamed N.O.

Respondent

Zohra Mohamed N.O.

Respondent

Moosa Mohamed N.O.

Respondent

Nazeem Mohamed N.O.

Respondent

Ebrahim Allie Enos Murudker N.O.

Respondent

Goolam Mustapha Brey N.O.

Respondent

Vangate Property (Pty) Ltd

Respondent

One Vision Investments 52 (Pty) Ltd

Respondent

Mahmood Khatib

Respondent

Procedural Posture

Rectification Application / Final Judgment

Legal Issues

  1. 1 Whether the applicants are entitled to rectification of the share register of the first respondent under section 115 of the Companies Act.
  2. 2 Whether the applicants' claim for rectification has prescribed under the Prescription Act, 68 of 1969.
  3. 3 Whether the delay in bringing the application justifies refusal of relief under the Court's equitable discretion.

Ratio Decidendi

The Court found that, although the transfer of the deceased's shares was invalid, the applicants failed to pursue rectification with reasonable diligence. The administration of the estate was marked by prolonged inactivity and lack of engagement with the company, resulting in a delay of over five years before any effective steps were taken. During this period, the company and its members proceeded with the development, incurred liabilities, and ultimately realised a profit. The Court held that, in the exercise of its equitable discretion under section 115 of the Companies Act, the delay was undue and the circumstances did not justify granting the relief sought. The application was...

Court Disposition

Application dismissed with costs, including costs of two counsel.

Orders

  • The application is dismissed with costs, such costs to include the costs of two counsel.