Yiannakis NO and Others v A & A Cycads (Pty) Ltd (14157/04) [2005] ZAGPHC 35 (29 March 2005)

Yiannakis NO and Others v A & A Cycads (Pty) Ltd (14157/04) [2005] ZAGPHC 35 (29 March 2005)

The court held that, despite persuasive arguments and authorities from other divisions suggesting a more flexible approach to the timing of the security certificate, the longstanding practice in the Transvaal Provincial Division requires strict compliance with section 346(3) of the Companies Act. Security must be furnished before the company incurs costs in opposition to the application. As the applicants only provided security after the application was served and opposition commenced, the application was fatally defective. The point in limine was upheld, and no order was made on the application. However, the applicants were granted leave to recommence proceedings on the same papers after...

Citation
[2005] ZAGPHC 35
Parties
Applicant: Dimitrios Paul Nicholas Yiannakis NO; Applicant: Marianthe Constantinos Yiannakis NO; Applicant: Dorotheos Koutsoudis NO; Applicant: Rosram Financial Services (Pty) Ltd; Respondent: A & A Cycads (Pty) Ltd
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
29 March 2005
Case Number
14157/04
Procedural Posture
Urgent Application / Hearing of Liquidation Application; Point in Limine Raised by Respondent
Outcome
Application struck off; applicants granted leave to recommence proceedings on the same papers after re-service; applicants to pay respondent's costs.
Judges
N Ranchod
Legal Topics
Company Liquidation, Security for Costs, Compliance With Companies Act, Point in Limine
Commercial and Corporate Company Liquidation Security for Costs Compliance With Companies Act Point in Limine

Case Brief

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Parties

Dimitrios Paul Nicholas Yiannakis NO

Applicant

Marianthe Constantinos Yiannakis NO

Applicant

Dorotheos Koutsoudis NO

Applicant

Rosram Financial Services (Pty) Ltd

Applicant

A & A Cycads (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Hearing of Liquidation Application; Point in Limine Raised by Respondent

Legal Issues

  1. 1 Whether the applicants complied with section 346(3) of the Companies Act 61 of 1973 regarding the provision of security for costs in a liquidation application.
  2. 2 Whether non-compliance with section 346(3) renders the application fatally defective and liable to be struck off.

Ratio Decidendi

The court held that, despite persuasive arguments and authorities from other divisions suggesting a more flexible approach to the timing of the security certificate, the longstanding practice in the Transvaal Provincial Division requires strict compliance with section 346(3) of the Companies Act. Security must be furnished before the company incurs costs in opposition to the application. As the applicants only provided security after the application was served and opposition commenced, the application was fatally defective. The point in limine was upheld, and no order was made on the application. However, the applicants were granted leave to recommence proceedings on the same papers after...

Court Disposition

Application struck off; applicants granted leave to recommence proceedings on the same papers after re-service; applicants to pay respondent's costs.

Orders

  • No order is made on the application.
  • Applicants are granted leave to commence proceedings on the same papers after they have been re-served.