DIRECTOR’S DISCLOSURE OF FINANCIAL INTERESTS
Atlas Park Holdings v Tailifts SA [2022] 28817-2020 (GJ-Com)
Altas Park brings an application in terms of s 75(8) of the Companies Act 71 of 2008 to declare valid the terms of a lease agreement purportedly concluded between it as lessor and Tailifts as lessee. The application is brought because Mr Van Breda held directorships in Altas and Tailifts at the time the lease agreements were allegedly signed.
Spilg J discusses the purpose of section 75 and the mischief it was intended to address and the requirements of good corporate governance; and that if Mr Van Breda had a personal financial interest in the transaction, then the agreements could only be binding on Tailifts if the court, in exercising its discretion, so declares in terms of s 75(8). The court extensively discusses this section and related provisions. At para [56] the court does not agree with Henochsberg’s view that s 75 must be informed by and perhaps limited to the breaches of fiduciary duty enumerated in s 76 with the common law filling in the gaps. The court discusses whether s 75(3) imposes a fiduciary duty not to misappropriate a corporate opportunity; whether the acquisition of the property by the Tailifts was a corporate opportunity; and the defence of corporate incapacity.
The application was dismissed with costs.
SUMMARY JUDGMENT AND SUPPLEMENTARY AFFIDAVIT
City Square Trading v Gunzenhauser Attorneys [2022] 27365-2021 (GJ)
Plaintiff issued summons for just over R500,000 based on outstanding rental under two lease agreements. The plaintiff sought summary judgment based on the defendants’ plea, but the defendants’ affidavit resisting summary judgment raised defences which had not been pleaded. The plaintiffs did not object to the defendants amending their plea to bring it into line with the affidavit. The plaintiff filed a supplementary affidavit to deal with the new plea. The defendants argued that Rules 32(2) and (4) prohibit the filing of a supplementary affidavit and that a fresh application for summary judgment must be brought, relying on the case of Belrex v Barday.
Fisher J discusses sub-rules 32(2) and (4); the case of Belrex; Rule 28(8); and the reasoning of the Rules Board for the amendments to Rule 32. The court finds that Rule 32(4) does not deprive the plaintiff of its rights under Rule 28(8) to make consequential adjustments to its affidavit filed in terms of Rule 32(2) after an amendment of the plea. Rule 32(4) is a prohibition against the introduction of factual matter which is of the nature of a reply or rejoinder to the defendant’s case.
The defendants’ application in terms of Rule 30 to set aside the further affidavit is dismissed.
CANCELLATION OF VEHICLE SALE – LATE REGISTRATION PAPERS
Nnese Medicals v DE RM Motors [2022] ZAGPJHC 84
Nnese Medicals bought a Ford Ranger from DE RM Motors for R266,000 and took possession. There were delays in supplying the registration documents so that Nnese could get transfer into its name. It then emerged that its papers had been cloned. Motors then also said that there were delays due to the Department of Transport being restricted by the covid regulations. Nnese approached the court seeking cancellation of the agreement, return of the purchase price and payment for repairs and improvements to the vehicle.
Ngcongo AJ discusses whether Nnese could cancel because Motors was in breach by failing within a reasonable to provide the documentation to enable transfer of the Ford Ranger; the reliance on the Springfield Omnibus case; methods of cancellation of a contract; what amounts to a material breach; Motor’s contentions around temporary impossibility of performance; the instances when impossibility cannot succeed; and restitution and whether Nnese should be compensated for the improvements and servicing of the vehicle. See para [53] on the contention that Nnese should pay rent for the time that the vehicle had been in its possession. The court found that a case had not been made out for this.
The agreement is found to have been cancelled and Motors is ordered to refund the purchase price and pay for the repairs and service. Nnese is ordered to return the vehicle.
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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