Van Niekerk v Dorper Genetics Bk and Others (1058/2014) [2014] ZAFSHC 115 (7 August 2014)

Van Niekerk v Dorper Genetics Bk and Others (1058/2014) [2014] ZAFSHC 115 (7 August 2014)

The court found that the applicant remains a member of the close corporation as his resignation has not taken legal effect. The relationship between the members has irretrievably broken down, making it impossible to continue the business for which the corporation was formed. The allegations of financial irregularities and lack of cooperation among members justify the winding-up on just and equitable grounds. The application to strike out the third respondent's affidavit was dismissed as it was not improper for a respondent to support the applicant, and the affidavit did not confirm hearsay evidence. The respondents failed to propose any viable alternative remedy or demonstrate that the...

Citation
[2014] ZAFSHC 115
Parties
Applicant: Leon Lawrence Van Niekerk; Respondent: Dorper Genetics BK; Respondent: Johannes Difelo Ramothello; Respondent: Frans Cornelis Du Toit
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 August 2014
Case Number
1058/2014
Procedural Posture
Urgent Application / Provisional Liquidation Application; Interlocutory Application to Strike Out
Outcome
Provisional liquidation of the first respondent close corporation granted; application to strike out dismissed with costs.
Judges
G.J.M. Wright
Legal Topics
Winding Up of Close Corporation, Just and Equitable Liquidation, Locus Standi, Provisional Liquidation, Strike Out Application
Commercial and Corporate Civil Procedure Winding Up of Close Corporation Just and Equitable Liquidation Locus Standi Provisional Liquidation Strike Out Application

Case Brief

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Parties

Leon Lawrence Van Niekerk

Applicant

Dorper Genetics BK

Respondent

Johannes Difelo Ramothello

Respondent

Frans Cornelis Du Toit

Respondent

Procedural Posture

Urgent Application / Provisional Liquidation Application; Interlocutory Application to Strike Out

Legal Issues

  1. 1 Whether the applicant has locus standi to bring the winding-up application.
  2. 2 Whether it is just and equitable to wind up the first respondent close corporation.
  3. 3 Whether the affidavit of the third respondent should be struck out as inadmissible evidence.

Ratio Decidendi

The court found that the applicant remains a member of the close corporation as his resignation has not taken legal effect. The relationship between the members has irretrievably broken down, making it impossible to continue the business for which the corporation was formed. The allegations of financial irregularities and lack of cooperation among members justify the winding-up on just and equitable grounds. The application to strike out the third respondent's affidavit was dismissed as it was not improper for a respondent to support the applicant, and the affidavit did not confirm hearsay evidence. The respondents failed to propose any viable alternative remedy or demonstrate that the...

Court Disposition

Provisional liquidation of the first respondent close corporation granted; application to strike out dismissed with costs.

Orders

  • The Second Respondent's application to strike out is dismissed.
  • The Second Respondent is to pay all costs pertaining to the application to strike out.