South Africa Case Law

Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others (773/2022)

Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others (773/2022) [2024] ZASCA 40 (4 April 2024)

Court

Supreme Court of Appeal

Case number

773/2022

Judges

Ponnan, Mabindla-Boqwana, Goosen, Tolmay, Bloem

The Supreme Court of Appeal held that Savannah failed to establish any additional factor or criterion required for special leave to appeal under section 16(1)(b) of the Superior Courts Act. The applicant did not demonstrate reasonable prospects of success, nor did it show any special circumstances warranting the grant of special leave. The sale of Erf 445 and subsequent development into sectional title units rendered the relief sought impossible, as the property had been transferred to third parties and the body corporate. Savannah failed to amend its particulars of claim or join necessary pa…

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• Special Leave To Appeal
• Impossibility Of Performance
• Sectional Titles Act
• Companies Act Section 228
• Transfer Of Property
• Body Corporate Membership

Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others (A285/2020)

Savannah Country Estate Homeowners Association v Zero Plus Trading 194 (Pty) Ltd and Others (A285/2020) [2022] ZAGPPHC 1000 (14 July 2022)

Court

North Gauteng High Court, Pretoria

Case number

A285/2020

Judges

N Janse Van Nieuwenhuizen, AC Basson, D Molefe

The High Court dismissed an appeal because the relief sought was impossible after the property had been converted into a sectional title scheme and transferred to third parties.

• Impossibility Of Performance
• Sectional Title Scheme
• Transfer Of Immovable Property
• Companies Act Section 228
• Memorandum Of Association
• Sale Agreement Nullity

Potgieter and Another v Trade-Off 149 (Pty) Ltd and Others (49397/2012)

Potgieter and Another v Trade-Off 149 (Pty) Ltd and Others (49397/2012) [2014] ZAGPPHC 826 (9 October 2014)

Court

North Gauteng High Court, Pretoria

Case number

49397/2012

Judge

Molefe

High Court dismissed an application to set aside transfer of property, finding the applicants lacked locus standi, the matter had been settled, and section 228 did not assist them.

• Companies Act Section 228
• Transfer Of Immovable Property
• Locus Standi
• Prescription
• Abstract System Of Transfer
• Costs Award

Colliers RMS (Pty) Ltd v Norcotrade 012 CC (4959/2011)

Colliers RMS (Pty) Ltd v Norcotrade 012 CC (4959/2011) [2014] ZAGPPHC 210 (14 March 2014)

Court

North Gauteng High Court, Pretoria

Case number

4959/2011

Judge

Cilliers AJ

The High Court dismissed an exception to a replication in an auction-sale dispute, holding that reliance on section 228 of the Companies Act did not introduce a new cause of action.

• Auction Sale
• Contractual Obligations
• Potestative Condition
• Companies Act Section 228
• Unjust Enrichment
• Auction-sale

Stand 242 Hendrik Potgieter Road Ruimsig Pty) Ltd v Göbel NO and Others (2011 (5) SA 1 (SCA);

Stand 242 Hendrik Potgieter Road Ruimsig Pty) Ltd v Göbel NO and Others (2011 (5) SA 1 (SCA); [2011] 3 All SA 549 (SCA)) [2011] ZASCA 105; 246/10 (1 June 2011)

Court

Supreme Court of Appeal

Case number

246/10

Judges

Brand, Lewis, Maya, Tshiqi, Petse

Section 228 of the Companies Act 61 of 1973, as amended, unambiguously requires that the disposal of the whole or greater part of a company's assets must be authorized or ratified by a special resolution of shareholders. The purpose of this provision is to protect shareholders from unauthorized disposals by directors. The Turquand rule, which allows third parties to assume compliance with internal company procedures, does not apply to section 228, as its application would defeat the statutory protection afforded to shareholders. Similarly, estoppel cannot be invoked to circumvent statutory re…

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• Companies Act Section 228
• Turquand Rule
• Shareholder Protection
• Special Resolution Requirement
• Estoppel
• Director Authority

Representation Investment (Pty) Ltd and Another v New Diamond Corporation (Pty) Ltd and Another (1058/2010)

Representation Investment (Pty) Ltd and Another v New Diamond Corporation (Pty) Ltd and Another (1058/2010) [2010] ZANCHC 62 (12 November 2010)

Court

Northern Cape High Court, Kimberley

Case number

1058/2010

Judge

Lacock R

The court granted an interim interdict and allowed the Fonteintjie Trust to intervene, finding both applicants had a protectable interest in the cession dispute.

• Prospecting Rights
• Interim Interdict
• Locus Standi
• Cession Of Rights
• Mineral And Petroleum Resources Development Act
• Companies Act Section 228

Simcha Properties 6 CC v San Marcus Properties (Pty) Ltd (256/09)

Simcha Properties 6 CC v San Marcus Properties (Pty) Ltd (256/09) [2010] ZASCA 54; [2011] 1 All SA 287 (SCA) (31 March 2010)

Court

Supreme Court of Appeal

Case number

256/09

Judges

Lewis, Mlambo, Hurt, Griesel, Seriti

The court held that the director of the respondent company was properly authorised to conclude the reinstatement agreement by virtue of resolutions passed by the sole shareholder in June and October 2007. These resolutions explicitly empowered the director to dispose of the company's sole asset and to sign all necessary documents to give effect to the transaction. The principle of unanimous assent applied, given that the company had only one shareholder, making formal meetings unnecessary. The reinstatement agreement was not a new transaction but a continuation of the original sale, and the e…

Source excerpt

• Companies Act Section 228
• Director Authorisation
• Unanimous Assent
• Ratification Of Contract
• Special Resolution Requirement

Standard Bank of South Africa Ltd v Hunkydory Investments 188 (Pty) Ltd and Others (15427/08)

Standard Bank of South Africa Ltd v Hunkydory Investments 188 (Pty) Ltd and Others (15427/08) [2009] ZAWCHC 81; 2010 (1) SA 634 (WCC) ; 2010 (4) BCLR 374 (WCC); [2009] 4 All SA 448 (WCC) (1 June 2009)

Court

Western Cape High Court, Cape Town

Case number

15427/08

Judge

Owen Rogers

The court held that the constitutional challenge to the National Credit Act's exclusion of juristic persons was res judicata, having been definitively rejected by the Constitutional Court. The registration of mortgage bonds over the company's main asset did not constitute a disposal under section 228 of the Companies Act, as the section refers to outright transfers of ownership, not hypothecation. The defendant failed to establish a bona fide defence based on non-compliance with section 228, as there was no allegation that the shareholders were unaware of or did not approve the registration o…

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• Summary Judgment
• Mortgage Bond Enforcement
• Companies Act Section 228
• Constitutional Challenge
• Right Of Access To Housing
• Costs Orders

Liquidators of Tradefirm 195 (Pty) Ltd v Kroons Gourmet Chickens (Pty) Ltd (4945/2007)

Liquidators of Tradefirm 195 (Pty) Ltd v Kroons Gourmet Chickens (Pty) Ltd (4945/2007) [2007] ZAGPHC 334 (30 November 2007)

Court

High Courts - Gauteng

Case number

4945/2007

Judge

M J Ramagaga

The court set aside a sham sale of a poultry business, finding it was structured to defeat SARS and that no real price or payment was proved.

• Actio Pauliana
• Insolvency Dispositions
• Preferential Creditor Treatment
• Companies Act Section 228
• Sale Of Business
• Tax Avoidance