Wessels N.O and Others v Estate Late Esias Johannes Janse Van Rensburg N.O and Others (48555/2011) [2023] ZAGPPHC 2040 (29 December 2023)

Wessels N.O and Others v Estate Late Esias Johannes Janse Van Rensburg N.O and Others (48555/2011) [2023] ZAGPPHC 2040 (29 December 2023)

The court held that section 354(2) of the Companies Act 61 of 1973 requires the wishes of all members to be considered when exercising discretion to stay or set aside winding-up. The applicants failed to join all shareholders and members of Boschpoort, specifically the Mabalingwe Trust and the Willem Wessels Trust. The resolutions provided did not sufficiently mandate the application on behalf of all shareholders, and there was no evidence that all members had knowledge of or consented to the relief sought. The absence of joinder is contrary to the statutory requirements and precludes the court from properly exercising its discretion. The point in limine of non-joinder was upheld, and the...

Citation
[2023] ZAGPPHC 2040
Parties
Applicant: Johannes Stephanus Wessels N.O; Applicant: Vera Maria Wessels N.O; Applicant: Johannes Stephanus Wessels; Respondent: Estate Late Esias Johannes Janse Van Rensburg N.O; Respondent: Farouk Sharief N.O; Respondent: The Master of the High Court; Respondent: ABSA Bank Limited; Respondent: Rand Merchant Bank; Respondent: Mandla Professor Madlala N.O; Respondent: The Companies and Intellectual Property Commission; Respondent: Mabalingwe Shareblock
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 December 2023
Case Number
48555/2011
Procedural Posture
Civil Application / Application for Setting Aside Winding Up Order; Point in Limine (non Joinder) Decided
Outcome
Application struck from the roll with costs due to non-joinder of necessary parties.
Judges
L.A. Retief
Legal Topics
Non Joinder, Winding Up, Companies Act 1973 Section 354, Shareholder Interest
Civil Procedure Commercial and Corporate Non Joinder Winding Up Companies Act 1973 Section 354 Shareholder Interest

Case Brief

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Parties

Johannes Stephanus Wessels N.O

Applicant

Vera Maria Wessels N.O

Applicant

Johannes Stephanus Wessels

Applicant

Estate Late Esias Johannes Janse Van Rensburg N.O

Respondent

Farouk Sharief N.O

Respondent

The Master of the High Court

Respondent

ABSA Bank Limited

Respondent

Rand Merchant Bank

Respondent

Mandla Professor Madlala N.O

Respondent

The Companies and Intellectual Property Commission

Respondent

Mabalingwe Shareblock

Respondent

Procedural Posture

Civil Application / Application for Setting Aside Winding Up Order; Point in Limine (non Joinder) Decided

Legal Issues

  1. 1 Whether all shareholders and members of Boschpoort must be joined in proceedings seeking section 354 relief.
  2. 2 Whether the application can proceed in the absence of joinder of all shareholders and members.
  3. 3 Whether the resolutions provided by applicants sufficiently mandate the application on behalf of all shareholders.

Ratio Decidendi

The court held that section 354(2) of the Companies Act 61 of 1973 requires the wishes of all members to be considered when exercising discretion to stay or set aside winding-up. The applicants failed to join all shareholders and members of Boschpoort, specifically the Mabalingwe Trust and the Willem Wessels Trust. The resolutions provided did not sufficiently mandate the application on behalf of all shareholders, and there was no evidence that all members had knowledge of or consented to the relief sought. The absence of joinder is contrary to the statutory requirements and precludes the court from properly exercising its discretion. The point in limine of non-joinder was upheld, and the...

Court Disposition

Application struck from the roll with costs due to non-joinder of necessary parties.

Orders

  • The Second and Eighth Respondents are granted condonation for the late filing of their answering affidavits.
  • The application is struck from the roll with costs, including costs associated with the Second and Eighth Respondents' condonation application.