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South Africa decisions
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Grindrod v Torode and Others (A803/2014) [2016] ZAGPPHC 586 (20 May 2016)
The High Court held that the restructured loan did not contravene section 38 of the Companies Act and upheld the Bank’s claim; the cross-appeal failed.
Mashike and Ross NNO and Another v Senwesbel Ltd (253/2012) [2013] ZASCA 35; [2013] 3 All SA 20 (SCA) (28 March 2013)
The SCA held that, even assuming unlawful financial assistance, the share sale and finance arrangements were severable. The appeal failed for non-joinder and lack of basis to refer evidence.
New Republic Bank Ltd v Rossiter (7332/2009) [2010] ZAKZDHC 77 (13 December 2010)
The court found that the clauses in the agreement were not sufficiently clear to resolve the dispute regarding the existence of a cession without reference to evidence of surrounding circumstances. Therefore, the first, second, and third complaints of the excipient regarding vagueness and embarrassment in the defendant's plea and counterclaim were dismissed. However, the court held that the allegations relating to the contravention of section 38(1) of the Companies Act were vague and embarrassing, as the defendant failed to specify the basis for the alleged contravention. Accordingly, the fou…
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New Republic Bank Ltd v Rossiter (7332/2009) [2010] ZAKZDHC 75 (13 December 2010)
High Court exception ruling on whether a pleading about cession and alleged section 38 contravention was vague and embarrassing.
Nebdank v Minnaar en Ander (9512/2010) [2010] ZAWCHC 427 (25 June 2010)
The High Court granted summary judgment to Nedbank, rejecting defences based on alleged unlawful financial assistance and lis pendens.
Kernsig 17 (Edms) Bpk v ABSA Bank (A578/08) [2010] ZAWCHC 9 (8 February 2010)
The court found that the term loan agreement of 8 December 2005 was an integral and inseparable part of a scheme designed to enable the Barnards to fulfil their obligation under the share purchase agreement, thereby constituting prohibited financial assistance under section 38(1) of the Companies Act. The respondent was fully aware of the purpose for which the loan proceeds would be used, distinguishing this case from Saambou Nasionale Bouvereniging v Ligatex, where the lender was unaware of the intended illegality. As the underlying transaction was void, the covering bonds registered over th…
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Peters and Others NNO v Schoeman and Others (288/98) [2000] ZASCA 63; 2001 (1) SA 872 (SCA) ; [2001] 1 All SA 155 (A) (10 November 2000)
The Supreme Court of Appeal held that the deed of sale did not breach section 38 of the Companies Act and ordered the respondents to comply.
Randgold & Exploration Company Limited and Another v Fraser Alexander Limited and Others (21801/94) [1994] ZAGPHC 1 (17 August 1994)
Urgent interdict application dismissed where shareholders challenged a proposed scheme and meeting, but the court found the urgency self-created and no affected transaction shown.
Gray and Others v Thesing Vastgoed BV and Others (267/85/av) [1986] ZASCA 129; [1987] 1 All SA 409 (A) (21 November 1986)
The Appellate Division held that the share-sale and lease arrangement did not amount to prohibited financial assistance by the company under section 38(1).
Schoemaker v Lochner and Another (158/84) [1984] ZASCA 124 (1 November 1984)
The Appellate Division held that a blank in a share-sale contract did not void the agreement and rejected a section 38(1) Companies Act illegality defence.
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