B DISTRIBUTORS (PTY) LTD
NATIONAL BANK LIMITED
is an application which has been brought by way of urgency. The
applicant and the 1st respondent are co-shareholders of a company,
which is the 2nd respondent. The applicant has sought relief on
the 1st respondent to prepare an inventory of all the items which
include stock and fittings that he removed inside shop C31 at Swazi
Plaza, Mbabane and restoring them back inside the shop.
the 4th respondent to freeze account No. 57711200726 pending
finalization of this matter
1st respondent to grant applicant access to the shop No. C31 situated
at Swazi Plaza Mbabane
form of the notice of motion was that the prayers b, c and d which I
have referred to here operate with immediate effect calling upon the
respondent to show cause on a date to be fixed by this court why
(b) (c) and (d) should not be confirmed;
respondent should not be ordered to pay the costs of this application
on an Attorney-Client scale.
applicant any further and/or alternative relief.
form of interim relief is something that must be reconsidered again
and I have pointed out time and time again that it is not appropriate
to in fact grant a final order before you have heard the matter. An
interim order is only granted to preserve a situation. This is a
defect in the application but it is not material in the present
instance because of what follows:
application is in fact an application that should be brought by the
2nd respondent. A shareholder has not got an individual action
himself in these circumstances. The relief that is required relates
to the property of the company. If it is impossible for the directors
to get together and to get the company to seek the appropriate relief
this may well be a case where there is an oppression of the minority
calling for the dissolution of the company and the proper application
will be for a liquidation order.
is impossible on these papers to determine where the truth lies.
There is a dispute of facts which should have been anticipated by the
applicant. This is not a case where the matter can be referred to
as an individual shareholder cannot pursue the relative action on
behalf of the company except in exceptional circumstances that do not
apply here. This I drew to the attention of counsel early in the
argument. No argument has been advanced to the contrary and there is
nothing on reconsideration of the matter which leads me to feel that
there is any propriety in the applicant himself taking action on
behalf of the company.
these reasons the application will be dismissed with costs.