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South Africa decisions
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Lindsey and Others v Conteh (774/2022) [2024] ZASCA 13; 2024 (3) SA 68 (SCA) (6 February 2024)
The Supreme Court of Appeal held that Californian orders for delivery of shares were not a money judgment or liquid document, so provisional sentence failed.
JS Van De Merwe Boedery CC v Weshoek Beleggings (Pty) Ltd and Others (29142/2018) [2023] ZAGPPHC 636 (27 July 2023)
The court found that neither the two court orders relied upon by the respondents nor the purported appointment of Ms Brenda Weakley as director of Weshoek Beleggings (Pty) Ltd conferred authority to institute action against the applicant. The orders did not empower Adv Van den Berg to act as director or to institute proceedings on behalf of Weshoek Beleggings (Pty) Ltd. The process for appointing Ms Brenda as director was fatally flawed and unlawful, as the sole director was non compos mentis and the necessary formalities for appointment were not followed. The respondents' responses to the Ru…
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Nebavest 1 (Pty) Ltd t/a Minster Consulting v Central Plaza Investments 202 (Pty) Ltd and Others (4212/2017) [2023] ZAWCHC 69; [2023] 2 All SA 795 (WCC) (12 April 2023)
The court found that the applicant failed to satisfy the good faith requirement under s 165(5)(b)(i) of the Companies Act. The applicant's allegations were superficial, vague, and unsupported by credible evidence. The applicant did not confront or address material evidence from prior related proceedings, and its delay in bringing the application was unexplained. The court held that the claims for breach of fiduciary duty against the directors were time-barred under s 77(7) of the Companies Act, which creates an absolute time bar. The applicant's reliance on an alleged oral agreement was impro…
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Caxton and CTP Publishers and Printers Limited v Novus Holdings Limited (219/2021) [2022] ZASCA 24; [2022] 2 All SA 299 (SCA) (9 March 2022)
The Supreme Court of Appeal held that documents referenced in Novus’s affidavit had to be produced under rule 35(12), including the section 165(4) report, subject to confidentiality limits.
Qayisa NO and Others v Alticon Group (Pty) Ltd and Others (28143/17) [2019] ZAGPJHC 467 (20 December 2019)
The court found that Daggafontein failed to pay the initial R10 million deposit by the stipulated date, which constituted a breach of the sale of land agreement. STI's notice of breach, although demanding more than was due, clearly identified the actual breach and informed Daggafontein of what was required to remedy it. The demand for R40 million was premature but did not invalidate the notice regarding the R10 million. Daggafontein remained in default and did not pay the required amount within seven days of the notice. The contractual conditions for cancellation were therefore fulfilled, and…
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Ross and Others v Microsystems On Silicon (Pty) Limited and Others (32265/2018) [2018] ZAGPPHC 862 (17 December 2018)
The court protected minority shareholders from majority conduct aimed at obstructing a section 165 process and related German litigation involving MOS.
New Heights Developers (Pty) Ltd v Bogatsu (2013/24397) [2017] ZAGPJHC 353 (23 November 2017)
The High Court held that section 165 of the Companies Act can require related litigation steps to protect a company’s interests. The demand was upheld and the application dismissed.
New Heights Developers (Pty) Ltd v Bogatsu (2013/24397) [2017] ZAGPJHC 256 (15 September 2017)
The High Court held that a section 165 demand was valid, finding the respondent had standing and that the demand related to protecting New Heights’ legal interests.
Lewis Group Limited v Woollam and Others (17199/2016) [2017] ZAWCHC 15 (1 March 2017)
A person who has made a demand under section 165(2) of the Companies Act may withdraw that demand at any time, as there is no statutory prohibition or practical reason to prevent withdrawal. The withdrawal renders any pending application to set aside the demand under section 165(3) moot, except as to costs. The court will not determine the merits of the withdrawn demand or issue a declaratory order, as the controversy is no longer live and such relief would be advisory. Costs orders must reflect the stage at which the withdrawal occurred and the conduct of the parties, with the applicant enti…
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Lewis Group Limited v Woollam and Others (9900/2016) [2016] ZAWCHC 130; [2017] 1 All SA 192 (WCC); 2017 (2) SA 547 (WCC) (11 October 2016)
The court held that Woollam, as a shareholder, has direct standing under s 162 of the Companies Act to seek a declaration of delinquency against directors and therefore cannot ordinarily proceed derivatively under s 165 for the same relief. The rationale for derivative actions is to provide redress where the proper plaintiff (the company) fails to act, which is not applicable when the shareholder can litigate personally. The court found that none of Woollam's grounds of complaint made out a prima facie case of serious misconduct, dishonesty, or gross negligence as required by s 162(5)(c). The…
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