IN THE HIGH COURT OF SOUTH AFRICA 

In the matter between:

and

JUDGMENT 
(Application for Leave to Appeal)

The applicants seek leave to appeal against the dismissal of an application for the winding-up of the respondent. Leave is sought to appeal to the Supreme Court of Appeal. The parties are agreed that if leave to appeal is granted it should lie to that court.

The applicants brought an application for the winding-up of the respondent on the grounds that it was just and equitable to do so. They relied in support of that application on various contentions. These included the allegation that the substratum of the company had disappeared,  the contention  that  its business was being conducted unlawfully and a complaint that the affairs of the company were being mismanaged by those who were effectively in control of it.

I concluded that the substratum has not disappeared and that the company is still capable of pursuing its objects. The contention that its business has been conducted unlawfully involves an interpretation of section 21(2)(a) of the Companies Act 61 of 1973 and an application of those provisions to the facts as they appear from the affidavits. I came to the view that the company had not acted unlawfully. As far as the alleged mismanagement of the company's affairs is concerned I held that either the facts did not justify such a conclusion or that there were material disputes of fact which could not be resolved on the affidavits.

The applicants assail each of these finding on the grounds set out in the application for leave to appeal. The matter raises factual and legal issues. After considering the grounds upon which leave is sought and the argument addressed to me this morning, I am of the view that the applicants have, at least in relation to certain of the grounds of appeal, reasonable prospects of success on appeal.

I should perhaps add that the legal argument in relation to the alleged unlawfulness was fully canvassed in the course of written and oral argument at the hearing of the application. At no stage did either of the parties seek an opportunity, in the light of that argument, to place additional facts before me.

As I am satisfied that leave to appeaE should be granted, the question arises as to which court the appeal should lie in terms of section 20(2)(a) of the Supreme Court Act 59 of 1959. In terms thereof the appeal should be heard by a full bench of this court unless I am satisfied that the questions of law and of fact and the other considerations involved in the appeal are of such a nature that the appeal requires the attention of the appellate division.

In my view, it would in the circumstances, be appropriate for the appeal to be heard by the Supreme Court of Appeal.

I therefore make the following order: