South Africa: South Gauteng High Court, Johannesburg

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[2019] ZAGPJHC 354
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Women in Capital Growth (Pty) Ltd and Another v Scott and Others (11178/2019) [2019] ZAGPJHC 354 (9 August 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: 11178/2019
In the matter between:
WOMEN IN CAPITAL GROWTH (PTY) LTD Applicant
AKHONA TRADE AND INVESTMENTS (PTY) LTD Second Applicant
and
MPHO INNOCENT SCOTT First Respondent
ABDOOLRAWOOF AHMED Second Respondent
AFRICAN LEGEND INVESTMENT (PTY) LTD Third Respondent
In re:
MPHO INNOCENT SCOTT First Applicant
ABDOOLRAWOOF AHMED Second Applicant
AFRICAN LEGEND INVESTMENT (PTY) LTD Third Applicant
And
WOMEN IN CAPITAL GROWTH (PTY) LTD First Respondent
AKHONA TRADE AND INVESTMENTS (PTY) LTD Second Respondent
MASHUDU ELIAS RAMANO Third Respondent
OFF THE SHELF INVESTMENTS Fourth Respondent
FIFTY-SIX (RF) (PTY) LTD
JUDGMENT
DIPPENAAR J:
[1.] The first and second applicants seek leave to appeal the judgment and order in terms of which I granted certain declaratory relief sought by the respondents in the urgent court on 3 April 2019. The respondents oppose the application.
[2.] The first applicant’s contentions are based both on factual and legal grounds. These are premised on the contention that the irrevocable undertakings are in conflict with and contravene section 58(8)(c) of the Companies Act 71 of 2008 (“the Act”) and, in respect of clause 3.1.1.5 of the undertakings, contravene section 71(2)(b) of the Act. The second applicant adopts these contentions and argues further that the proxy provisions are not severable from the undertakings contained in the written undertakings here in issue for purposes of the contravention of section 58(8)(c) of the Act.
[3.] It is argued by the applicants that in terms of section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, the appeal would have a reasonable prospect of success and that another court would find that the irrevocable undertakings indeed contravene the Act in the respects contended for. In the alternative, it is argued that there are compelling reasons why the appeal should be heard, as envisaged by section 17(1)(a)(ii) of the Act.
[4.] The respondents oppose the application on the basis that neither of the thresholds set by section 17(1)(a) of the Act have been met.
[5.] After careful consideration of the arguments advanced by the respective parties, I am persuaded that the threshold criteria of section 17(1)(a) of the Superior Courts Act have been met by the applicants and, that at the very least, there are compelling reasons to grant leave to appeal in the exercise of the discretion afforded.
[6.] It is undisputed that the application is of great importance to the parties, which relate to a large commercial transaction worth billions of rands and involve irrevocable undertakings with an extended duration. The issues relate to the interpretation of certain statutory provisions of the Act and the contractual provisions of the written undertakings provided by the applicants[1], which may have important consequences for the parties. Moreover, there is a dearth of authority on the proper interpretation of these provisions in the context of the present facts. I am persuaded that these constitute compelling reasons to grant the application.
[7.] The parties are in agreement that if leave to appeal is granted, the matter should be referred to the Supreme Court of Appeal, considering the interpretational issues which arise in the application.
I grant the following order:
[1] Leave to appeal is granted to the Supreme Court of Appeal.
[2] The costs of the application are costs in the appeal.
____________________________
EF
DIPPENAAR
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel for the First Applicant : Adv. GY Benson &
Adv. K Pillay
Instructing Attorneys : MVMT INCORPORATED
Counsel for the Second Applicant : Adv. I Veerasamy
Instructing Attorneys : PATHER & PATHER ATTORNEYS
Counsel for the Respondents : Adv: J Dickerson SC &
Adv. JD Mackenzie
Instructing Attorneys : CLIFFE DEKKER HOFMEYR INC
Date of hearing : 08 October 2019
Date of judgment : 09 October 2019
[1] South African Breweries (Pty) Ltd v The Commissioner of the South African Revenue Services (3234/15)[2017] ZAGPPHC 340 para 9 and 10