& R AGENCIES (PTY) LTD
Case No. 2582/2002
Petitioner Mr. P. Flynn
Respondent Mr. M.V.
R.F. Feldmann presented this petition for liquidation. He seeks the
liquidation of the company on the grounds that it is just and
equitable that the company should be wound up.
114 of the Companies Act (quoted hereunder) provides that all or any
creditor or creditors, contributory or contributories may together or
separately present application to the court for the winding up of a
(1) An application to the Court for the winding-up of a company shall
be by petition, presented (subject to the provisions of this section)
by the company, or by any creditor or creditors (including any
contingent or prospective creditor or creditors), contributory or
contributories, or by all or any of those parties, together or
contributory shall not be entitled to present a petition for
winding-up a company, unless -
number of members is reduced in the case of a private company, below
two, or in the case of any other company, below seven; or
shares in respect of which he is a contributory, or some of them
either were originally allotted to him or have been held by him, and
registered in his name for at least six months during the eighteen
months before the commencement of the winding-up, or have developed
upon him through the death of a former holder; and
petition for winding-up a company on the ground of default in lodging
the statutory report or in holding the statutory meeting shall not be
presented by any person except a shareholder, and not before the
expiration of fourteen days after the last day on which the meeting
ought to have been held; and
Court shall not give a hearing to a petition for winding-up a company
by a contingent or prospective creditor until such security for costs
has been given as the Court thinks reasonable and until a prima facie
case for winding-up has been established to the satisfaction of the
a company is being wound up voluntarily or subject to supervision, a
petition may be presented by the Master, or by any other person
authorised in that behalf under the other provisions of this section,
but the Court shall not make a winding-up order on the petition
unless it is satisfied that the voluntary winding-up subject to
supervision cannot be continued with due regard to the interests of
the creditors or contributories.
of "contributory ".
The term "contributory" shall mean every person liable to
contribute to the assets of a company in the event of its being wound
up, and in all proceedings for determining and in all proceedings
prior to the final determination of the persons who are to be deemed
contributories, shall include any person alleged to be a
raised the point during the argument that the petitioner was not one
of those persons
categories of persons who has locus standi to bring this application.
He is not a
or a contributory, and is not one of those who may bring the
applicant argued at some length that although his name does not
appear in the
register and had no share certificate showing himself to be a
of the company he was nevertheless, by reason of some contract,
entitled to a
in the company. That is not sufficient.
the applicant would have to enforce his rights to be registered as a
member of the
before he could bring this application and until that is done, and
allege he was a contributory as defined he does not have any locus
the present application.
to the Companies Act will show that a member is a person who is
as such and nobody can be a contributory unless he is a member.
Companies Act is only seven years short of its century. Company law
during that period. The countries whose companies' acts formed the
local legislation have long since and on a number of occasions
amended or replaced their legislation to accommodate developments.
Corresponding sections in such legislation have afforded locus standi
to a wider range of applicants for liquidation. The meaning of "just
and equitable" to denote a deadlock, or oppression of minority
interests situation in the present context has received
interpretation which is inapplicable to the local act as it remains
framed. Unless a member or shareholder is a contributory he has no
of the petitioner's lack of locus standi no consideration need be
given to the merits of the matter. The petition is therefore
dismissed with costs. The fees of counsel will be certified in terms
of Rule 68.