Westerhuis v Whittaker and Others (4145/2017) [2018] ZAWCHC 76 (26 April 2018)

Westerhuis v Whittaker and Others (4145/2017) [2018] ZAWCHC 76 (26 April 2018)

The court found that the applicant failed to establish that the Whittaker respondents took unauthorised remuneration or ran personal expenses through the company in a manner that was unlawful or prejudicial. The evidence showed that the company operated as a family enterprise with relaxed formalities, and remuneration paid to the executive director was known and condoned by the majority shareholders. There was no proof of gross misconduct, gross negligence, fraud, or abuse of trust. The applicant did not make out a case for a declaration of delinquency or probation under sections 162 and 163 of the Companies Act, nor for any relief based on oppressive or unfairly prejudicial conduct. The...

Citation
[2018] ZAWCHC 76
Parties
Applicant: Andrea Westerhuis; Respondent: Kathleen Whittaker; Respondent: Simone Whittaker; Respondent: William Street Property Investments (Pty) Ltd; Respondent: The Companies and Intellectual Property Commission
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
26 April 2018
Case Number
4145/2017
Procedural Posture
Civil Application / Judgment
Outcome
Application dismissed with costs.
Judges
Kusevitsky
Legal Topics
Delinquent Directors, Minority Shareholder Protection, Director Remuneration, Fiduciary Duties, Oppressive Conduct, Companies Act 2008
Commercial and Corporate Delinquent Directors Minority Shareholder Protection Director Remuneration Fiduciary Duties Oppressive Conduct Companies Act 2008

Case Brief

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Parties

Andrea Westerhuis

Applicant

Kathleen Whittaker

Respondent

Simone Whittaker

Respondent

William Street Property Investments (Pty) Ltd

Respondent

The Companies and Intellectual Property Commission

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether the Whittaker respondents, as directors, took unauthorised remuneration from the company.
  2. 2 Whether the Whittaker respondents ran personal expenses through the company without authorisation.
  3. 3 Whether the conduct of the Whittaker respondents amounts to delinquency or warrants probation under the Companies Act.

Ratio Decidendi

The court found that the applicant failed to establish that the Whittaker respondents took unauthorised remuneration or ran personal expenses through the company in a manner that was unlawful or prejudicial. The evidence showed that the company operated as a family enterprise with relaxed formalities, and remuneration paid to the executive director was known and condoned by the majority shareholders. There was no proof of gross misconduct, gross negligence, fraud, or abuse of trust. The applicant did not make out a case for a declaration of delinquency or probation under sections 162 and 163 of the Companies Act, nor for any relief based on oppressive or unfairly prejudicial conduct. The...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.