Winterboer v CX Developers CC and Others (28/7/2015) [2015] ZAGPPHC 545 (28 July 2015)
- Citation
- [2015] ZAGPPHC 545
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Wright
- Case number
- 2015/11797
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Wright
- Case number
- 2015/11797
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant had demonstrated beyond doubt that the members of the first respondent close corporation were in deadlock, unable to agree or meet, with serious and unresolvable allegations between them. The situation prejudiced creditors and amounted to a partnership in collapse. The court held that the applicant was not the cause of the impasse and that the deadlock justified winding up the close corporation on the just and equitable ground.
Court disposition
The first respondent close corporation is ordered to be wound up.
Orders
- The first respondent close corporation is wound up.
02
Material facts
Parties
Stefan Winterboer
Applicant Counsel: Adv M CoetseeCX3 Developers CC
Respondent Counsel: Adv H Van ZylAstrid Laura Neeb
Respondent Counsel: Adv H Van ZylCarel Albert Eduard Neeb
Respondent Counsel: Adv H Van ZylStandard Bank of South Africa Limited
Respondent03
Procedural history
Posture
Winding Up Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the first respondent close corporation should be wound up due to deadlock among its members.
- 02
Whether the applicant is responsible for the impasse within the close corporation.
- 03
Whether the state of affairs prejudices creditors of the close corporation.
Party arguments
- Applicant
- The applicant contended that he was defrauded by the second and third respondents, who tricked him into relinquishing his signing powers over the first respondent's bank account with the intention of misappropriating funds for their own benefit and to the detriment of creditors. He argued that the members are in deadlock, unable to agree or meet, and that the partnership has collapsed, resulting in prejudice to creditors.
- Respondent
- The second and third respondents denied the allegations of fraud and maintained that they were in agreement with each other. They opposed the winding up, suggesting that the applicant was the cause of the impasse. The fourth respondent, Standard Bank, did not oppose any relief sought.
05
Court’s reasoning
Legal principles
- 01
Sader v Warda Butchery 2008 JDR 0387 (N) at paragraph 11
A close corporation may be wound up on the just and equitable ground where there is deadlock among members, mistrust, tension, and inability to resolve serious allegations, resulting in prejudice to creditors.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant had demonstrated beyond doubt that the members of the first respondent close corporation were in deadlock, unable to agree or meet, with serious and unresolvable allegations between them. The situation prejudiced creditors and amounted to a partnership in collapse. The court held that the applicant was not the cause of the impasse and that the deadlock justified winding up the close corporation on the just and equitable ground.
Obiter and limits
- It is immaterial that the second and third respondents are in agreement with each other; what matters is the existence of two opposing sides who cannot get along to the extent indicated.
- The restoration of the applicant's signing powers by an agreed court order did not resolve the underlying deadlock among members.
Court disposition
The first respondent close corporation is ordered to be wound up.
- The first respondent close corporation is wound up.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION,
PRETORIA
CASE NO: 2015/11797
In the matter between:
STEFAN
WINTERBOER
APPLICANT
and
CX3 DEVELOPERS CC
1ST RESPONDENT
ASTRID LAURA
NEEB
2ND RESPONDENT
CAREL ALBERT EDUARD
NEEB
3RD RESPONDENT
STANDARD BANK OF SOUTH AFRICA
LIMITED
4TH RESPONDENT
J U D G M E N T
WRIGHT J
1. The applicant is a businessman. He is a one third interest holder in the 1st respondent close corporation. The second and third respondents are the other interest holders. The fourth respondent bank does not oppose any relief sought. The applicant says that he was defrauded by the second and third respondents, they having tricked him into relinquishing his signing powers over the 1st respondent’s bank account with the intention of using the 1st respondent’s funds for their own benefit and to the prejudice of creditors of the 1st respondent. His signing powers were restored at some point by an agreed court order. The second and third respondents deny the
allegations of fraud. It is not necessary for me to find fraud. What is before me is only the question of whether or not the 1st respondent should be wound up. It cannot be said that the applicant is the cause of the impasse.
2. The applicant has shown beyond any doubt that the members of the first respondent are in deadlock. They agree on almost nothing, they have not been able to meet, the allegations and counter-allegations are very serious and are unresolvable between them. The first respondent has creditors who are prejudiced or may be prejudiced by this state of affairs. The first respondent is in substance a partnership in collapse. There is mistrust, tension and deadlock. Compare Sader v Warda Butchery 2008 JDR 0387 (N) at paragraph 11. It matters not that the second and third respondents are in agreement with each other. What matters is that there are two opposing sides who can’t get along to the extent indicated above.
3.
ORDER
The first respondent close corporation is wound up.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
On behalf of the Applicant:
Adv M Coetsee
Instructed by:
ML Schoeman Attorneys
012 562 9900
On behalf of the Respondent: Adv H Van Zyl
Instructed by: De Bryun & De Kock Inc
086 133 2335
Date of Hearing:
28 July 2015
Date of Judgment:
28 July 2015
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