Masina & Another v Mdluli & Others (588/2018) [2019] SZHC 62 (04 April 2019);

 

 

 

 

 

IN THE HIGH COURT OF THE KINGDOM OF ESWATINI

 

 

JUDGMENT

 

 

HELD AT MBABANE                                           Civil Case No. 588/18

                  

JANUARY MASINA                                                       1^st Applicant

 

ECO – REV DISTRIBUTION (PTY) LTD                        2^st Applicant

 

And

 

 

MUSA MDLULI                                                              1^st Respondent

 

TSANDZILE DLAMINI                                                   2^nd Respondent

 

DUMISA GWEBU                                                           3^rd Respondent

 

FIRST NATIONAL BANK OF SWAZILAND                    4^th Respondent

 

 

Neutral citation:           January Masina & Another v Musa Mdluli & 3 Others (588/18) [2019] SZHC 62 (4^th April, 2019)

 

 

CORAM                                   MASEKO J

FOR APPLICANT           :         MR M NKOMONDZE                        

FOR RESPONDENT      :         MR ND JELE      

 

 

 

DATE OF HEARING      :         22^ND AUGUST 2018        

 

DATE OF RULING         :         4^TH  APRIL 2019

 

PREAMBLE:        Urgent Application – Points in limine – lack of urgency – apparent material disputes of facts- Application dismissed for lack of urgency because the Applicant raises issues on urgency which dates back to June 2010 and foreseeable material disputes of facts.

 

[1]      On the 12^th April 2018 the Applicants launched application proceedings and seeking the following relief from the Notice of Motion.

 

1. Dispensing with the Rules in relation to manner of service of proceedings and time limits in terms of period of Notice and dealing with the matter as one of urgency;
2. Condoning the Applicant’s non-compliance with the said Rules of court;
3. That the rule nisi hereby issue, returnable on a date to be determined by this Honorable Court, calling upon the Respondents to show cause why an order in the following should not be made final:-
   1. That the 1^st respondent be and is herby prohibited and or interdicted from transacting in and or operating the Bank Accounts of 2^nd Applicant held with the 4^th Respondent, without the knowledge, approval authorization and written consent of the 1^st Applicant;
   2. That the 4^th Respondent be and is hereby prohibited and or interdicted from permitting the transaction and or operating of the Bank Accounts of the 2^nd Applicant held with the 4^th Respondent, without the written authorization and written consent of both the 1^st Applicant and 1^st Respondent;
   3. That the 2^nd and 3^rd Respondents be and are hereby declared not to be directors and shareholders of the 2^nd Applicant;
   4. That the 2^nd and 3^rd Respondents be and are hereby prohibited, restrained and or interdicted from partaking in the business operations and or company operations of the 2^nd Applicant, either as directors or shareholders;
   5. That the 4^th Respondent be and is hereby compelled and ordered to furnish the 1^st Applicant with Bank Accounts Statements and any financial transactions, dating from January 2015 to date of this Order, of the 2^nd Applicant’s in respect of the 2^nd Applicant’s bank accounts held with the 4^th Respondent;
   6. That the Respondent be and is hereby compelled and or ordered to render a full account, supported with necessary vouchers, of all financial transactions of the 2^nd Applicant from January 2015 to date of this order;
   7. That the 1^st Respondent be and is hereby compelled and ordered to reimburse and pay back to the 2^nd Applicant, all monies that he will not be able to account for and or which has been disbursed not for the use and benefit of the 2^nd Applicant;
   8. Declaring that any settlement out of court which was reached by the 1^st and 3^rd Respondents, and in respect of High Court Civil Case Number 187/2017 ostensibly binding the 2^nd Applicant, to be of no force or effect and not binding on the 2^nd Applicant: and
   9. That the 1^st and 3^rd Respondents be and are hereby compelled and directed to pay back to the 2^nd applicant any monies paid to the 3^rd respondent pursuant to the settlement out of the Court reached by and between the 1^st and 3^rd Respondents in respect of High Court Civil Case Number 187/2017
4. Pending finalization of this Application, and to operate with immediate interim effect:-
   1. Directing the 1^st respondent to approve in writing and or counter-sign and authorize the payment to the 1^st Applicant, within three (3) days of this Order, the amount of E135,000.00 (One Hundred and thirty Five Thousand Emalangeni) from  the 2^nd Applicant’s bank accounts held with the 4^th Respondent, being in respect of the 1^st Applicant’s outstanding Director’s Salary; and
   2. Failing compliance with order 4.1 above, that the 1^st Applicant be authorized and empowered, by instrument of this Court Order, to unilaterally approach any bank in which the 2^nd Applicant holds a bank account and demand payment from the said 2^nd Applicant’s bank account, of the amount of E135,000.00 (One Hundred and thirty Five Thousand Emalangeni) being in respect of the 1^st Applicant’s outstanding Director’s Salary;
   3. That the 1^st Respondent be and is hereby prohibited and interdicted from transacting in, and or operating the Bank Accounts  of the 2^nd Applicant held with the 4^th Respondent, without the knowledge, approval  and authorization and written consent of the 1^st Applicant; and       
   4. That the 4^th respondent be and is hereby prohibited and or interdicted from permitting the transaction and or operating of the Bank Accounts of the 2^nd Applicant held with the 4^th Respondent, without the written authorization and written consent of both the 1^st Applicant and the 1^st Respondent;
5.  Cost of suit at Attorney and Own Client scale;
6. Further and alternative relief.

 

[2]      The Founding Affidavit of January Masina is hereby attached in support of these application proceedings.

 

[3]      The application was served on the Respondents on the 18^th April 2018.

 

[4]      I must clarify from the onset that when the 2^nd Applicant was incorporated into a company on the 9^th December 2005, Happy Mbhamali and Gcinile Shabangu were the initial directors who eventually resigned on the 7^th January 2006, and in their place the 1^st Applicant and 1^st Respondent respectively were appointed as directors on the 7^th January 2006.  Later the 2^nd and 3^rd Respondents were also appointed as directors of the 2^nd Applicant.

 

[5]      The Respondents filed their Notice of Intention to Oppose the application on the 24^th April 2018, and their Answering Affidavits on the 27^th April 2018.

 

[6]      In his Answering Affidavit the 1^st Respondent raises the following points in limine, namely

1.  

(ii) Non joinder of Registrar of Companies

(iii) Dispute of facts

(iv) Applicant’s Alternative Remedy-Claim for damages

 

[7]      I will deal with the points in limine shortly herein below.

 

[8]      The 1^st Applicant filed his Replying Affidavit on the 18^th May 2018 and then inserted a page 69 in the Book of Pleadings. This page was not there when the Founding Affidavit and Annexures thereto were originally filed on the 12^th April 2018.  This led to the 1^st Respondent to file an Application in terms of Rule 6(28) for the striking out of page 69 from the Book on the basis of fraud.

 

[9]      Owing to the critical nature of the points in limine and their potential of disposing of the matter if upheld, and combined with 1^st Respondent’s Application to strike out page 69 of the Book of Pleadings, I allowed Counsel on both sides to argue these two issues simultaneously and reserved my Ruling on them.

 

[10]    As stated above the 1^st Respondent’s Points in limine have the potential of disposing of this matter if upheld, I will deal with the first point in limine on lack of urgency.

 

LACK OF URGENCY

[11]    Mr D. Jele who appeared for the Respondents submitted that these proceedings lacked urgency and that in fact the urgency was self-created.  He submitted that since June 2010 the 1^st Applicant through his own admission has been aware that his name did not appear under the list of shareholders of the company.

 

[12]    Counsel further submitted that for the past 8 years, the Applicant has been aware of this and did nothing, but has since decided to run to court on an urgent basis and served the Respondents with a voluminous application without giving them sufficient time to properly ventilate the issues and respond to them comprehensively thereto.

 

[13]    Counsel further submitted that the Applicant alleges that since the year 2015, the Respondents have included items in the financial statements which he does not agree with, yet again he (1^st Applicant) remained silent for 2 ½ years and now he chooses to approach the court on urgency because it suits him and in the process caused an inconvenience to the Respondents and to the Court.

[14]    Counsel submitted further that Applicant also state clearly that as at the month of June 2017, he has not been paid his Director’s fees.  Again this was acted upon only after ten (10).

 

 [15]   Counsel submitted that the 1^st Applicant seems to suggest that by the time the matter is heard in court, the assets of the 2^nd Respondent – their company will have been dissipitated and the company will bankrupt, whereas this has been the state of affairs for over a decade and the company has never at any point in time been declared insolvent and or bankrupt.

 

[16]    In support of the point on lack of urgency, Mr Jele referred to the case of Frederick Mapanzene v Standard Bank Swaziland Limited in re Standard Bank Swaziland Limited v Kapson Investments (Pty)Ltd and 3 Others High Court Case No. 415/2016 where Mamba J in dealing with the issue of urgency stated the following.

“However, having said all the above in favour of the Applicant, I do not believe that a litigant is entitled to wait as the Applicant has done before taking up his complainant with the Court.  A litigant is not expected to wait for ages and then take up his matter with the court at the eleventh hour.  This is exactly what the Applicant has done in this case.  Whilst I accept that the Courts must her all matters brought before it, the urgency procedure must not be abused in undeserving cases.  Bringing matters on an urgent basis where such urgency is unwarranted not only causes prejudice to the other party but to roll of the Court and the administration of justice in general.  Where the court has to put aside, or on hold its normal business for the day in order to attend to matters brought on a certificate of urgency, the grounds for such urgency must be clearly and adequately explained and justified.  A litigant, who waits inordinately and only goes to court on the last minute does so at his own peril.  This is what the Applicant has done in this case.”  

 

NON JOINDER OF REGISTRATION OF COMPANIES

[17]    On the point in limine of non - joinder of the Registrar of Companies, Mr Jele submitted that the Registrar of Companies is a Government Department whose sole responsibility is to regulate the conduct of Companies within the Kingdom of Eswatini.  Therefore the fact that the issue of this dispute emanates from the shareholding of a company, it is mandatory that the Registrar of Companies as Regulator thereof ought to have been included in these proceedings.  The failure on the part of the Applicants to do so, Counsel argued, is fatal to these proceedings hence they ought to be dismissed.

 

          PRESENCE OF MATERIAL DISPUTES OF FACT

[18]    Mr Jele also addressed the point in limine of material dispute of facts.  He argued tht as of June 2010, the 1^st Applicant has been fully aware that there is a heated dispute in relation to the shareholding of the company.  He argued further that the 1^st Applicant has in that couple of years questioned and queried the shareholding of the company and in fact aggrieved about the involvement of the 2^nd and 3^rd Respondents respectively.

 

 [19]   Mr Jele submitted that in the prevailing atmosphere it was therefore wrong for the 1^st Applicant to institute these proceedings, instead the best proceedings in these circumstances would have been action proceedings where all these material disputes of facts surrounding the shareholding in the company could be appropriately addressed.

 

[20]    In support of the point of the presence of material disputes of fact, Mr Jele referred to the Supreme Court decision of Mbhekwa Mthethwa N.O. v Winile Dube & 4 Others Case No. 79/2012 where the Learned Justices stated as follows;

“It is trite law that motion proceedings should not be instituted where there is a bona fide dispute on a material fact.  Motion proceedings are less costly and more expeditious than action proceedings; however, they are not appropriate in deciding real and substantial disputes of fact which properly fall for the decision by action proceedings.  Motion proceedings are competent where there is no genuine dispute of fact.  A material dispute of fact arises where the Respondent denies material allegations made by deponents on the Applicant’s behalf and produces positive evidence to the contrary”

 

          PRESENCE OF ALTERNATIVE REMEDY

[21]    As regards the point in limine that the Applicant has an alternative remedy, Mr Jele submitted that if the version of the Applicant is tested and found to be true and the veracity of the facts as pleaded also turn out to be both true and correct then the Applicants would have a valid claim for damages which are easy to quantify and thus the requirements for the grant of an interdict are not therefore fully established hence these proceedings stand to be dismissed.

  

[22]    As regards the Notice of Rule 6 (28) to strike out page 69 of the Book of Pleadings and Annexure JR 1, Mr Jele submitted that the initial papers filed in court after having been served on the Respondents did not have page 69 which now shows the Applicant as having 50 shares in the 2^nd Applicant.

 

[23]    Counsel for Respondents submitted that the said page 69 was inserted into the Book of Pleadings fraudulently with the intention of making Applicants case in the Book.  He argued that page 69 is not properly signed yet it is in the middle of pages 68 and 70 which are properly signed by the person who presented them for filing before the Registrar of Companies.

 

[24]    Counsel submitted that this was clear case of fraud which ought to be frowned upon by this court and thus this page 69 has to be struck out from the proceedings.  He submitted further that a party falls and stands by his Founding Papers and cannot be allowed to insert pages on the filed documents in order to mislead the court.

 

[25]    Counsel submitted that Annexure JR 1 is a new matter introduced in the Replying Affidavit when it should have been in the founding Affidavit to give the Respondents an opportunity to deal with it.

 

[26]    At paragraph 8 of his Affidavit in support of the Application to Strike Out page 69 from the Book, the 1^st Respondent states as follows;

“I have also cross checked with the information that is contained in the records of the Registrar of Companies if the first Applicant is registered as a shareholder in his records stored in his computer records and found that he is not.  The court can also call upon the Registrar of Companies to come to Court to shed light on that.”

 

[27]    In answer to this paragraph 8 herein referred to above, the 1^st Applicant responded as follows in his paragraph which is headed as follows

                   10.   AD PARAGRAPH 8 TO 9 THEREOF

10.3   It is too late now to call the Registrar of Companies as his Staff who are friends with the Applicant may have now modified the Shareholding in their computer records.

[28]    Mr M. Nkomondze who appeared for the Applicants submitted that the filing of the page 69 in the Book was not based on fraudulent intentions but as a result of human error as the application is very bulky.  He conceded that in the Urgent Application initially filed the page which now appears as page 69 was erroneously omitted.

 

[29]    As regards the points in limine Mr Nkomondze submitted that the matter was urgent, because as things currently stands, the funds of the 2^nd Applicant are in the full control of the 1^st Respondent who is using them as he pleases.

 

[30]    Counsel submitted that the unauthorized withdrawal and or transacting on the 2^nd Applicant’s account amounted to embezzling 2^nd Applicant’s funds, as he has been sidelined and this was therefore an urgency on its own justifying the hearing of this matter on urgency.

 

[31]    Counsel submitted further that the Respondents continue to pay each other monies which are an unauthorized settlement that binds the company.  Furthermore, the 1^st Respondent has unlawfully appropriated to himself all the signing powers, a fact that gives him advantage and full control over the Company’s funds which he uses at his will and for personal benefit, and thus this matter is therefore urgent.

 

[32]    As regards the point of non –joinder of the Registrar of Companies, Counsel submitted that, the non – joinder of a necessary party to proceedings does not render the lis fatal.  Counsel referred to Herbstein & Van Winsen (5^th Edition) at page 215 where the learned Authors stated as follows

“In fact when such person is a necessary party … the Court will not deal with the issue without a joinder being effected… As an alternative to joinder, the court may order that judicial notice of the proceedings be served on the party…”

 

[33]    Counsel maintained that there were no material disputes to warrant a dismissal of the application and that Applicants had no alternative relief hence the enrolment of these proceedings on urgency.

 

ANALYSIS OF THE LEGAL ISSUES

[34]    I am of the considered view that in motion proceedings, the Applicant (s) must set out his case fully and comprehensively in the founding affidavit because it is the case which the Respondent(s) must answer.  It is undiserable for an Applicant to raise new issues in his replying affidavit because the Respondent, who only has a single opportunity to answer Applicant’s affidavit, does not have another opportunity to deal with those new allegations.  The Applicant is not allowed to make or supplement his case in a replying affidavit, such conduct result in an unnecessary application to strike out all paragraphs in the replying affidavit which contains new allegations and it is usually difficult for Applicants to resist the grant of applications brought in terms of Rule 6 (28) of the.  Rules of Court.  Where there are exceptional circumstances, an applicant would rather seek the leave of court to file a supplementary affidavit wherein the Respondent can answer thereto.

 

[35]    In the case of Ngwane Mills (Pty) Ltd v Swaziland Competition Commission and 4 Others Case No 2589/11 Maphalala PJ (As he then was) stated the following at pages 16-17 paragraph 38

          “That the general rule in motion proceedings is that all necessary allegations must appear the Founding Affidavit and that the Applicant will not (save in exceptional circumstances) supplement his case in a reply.  An Applicant must generally speaking stand or fall by its Founding Affidavit and the facts alleged therein and cannot introduce for the first time in his Replying Affidavit facts or circumstances upon which he seeks to find a new cause of action.   I must also mention for the record that this very point was mentioned by Counsel for the 3^rd to 5^th Respondents at paragraph 6 of his Heads of Arguments citing the case of Swissborough Diamond Mines (Pty) and Others v Government of the Republic of South Africa 1999 (2) SA 279 per  Toffee J at 323 f Seg as follows

“It is trite law that in motion proceedings the affidavits serve not only to place evidence before the court but also to define the issues between the parties.  In so doing, the issues between the parties are identified.   This is not only for the benefit of the court but also and primarily, for the parties.  The parties must know the case that must be met and in respect of which they must adduce evidence in the affidavits.

The facts set out in the founding affidavit (and equally in the answering and replying affidavits) must be set out simply, clearly and in chronological sequence and without argumentative matter”.

 

[36]    At paragraph 39 on page 18 His Lordship stated as follows;

“The argument further proceeds that moreover, the case cannot be implemented in reply.  In Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635 H – 636B Diemont JA pertinently stated the following;

“When, as in this case, the proceedings are launched by way of Notice of Motion, it is to the Founding Affidavit which a Judge will look to determine what the complaint is.  As was pointed by Krause J in Pountas’ Trustee v Lahanas 1924 WLD 67 at 68 and has been said in many other cases;

“… An applicant must stand or fall by his petition and the facts alleges therein and that, although sometimes it is permissible to supplement the allegations contained in the petition, still the main foundation of the application is the allegation of facts stated therein, because those are the facts which the respondent is called upon to either to affirm or deny”

Since it is clear that the applicant stands or falls by his petition and the facts therein alleged,

‘It is not permissible to make out new grounds of the application in the replying affidavit’

 

[37]    In casu, I have no doubt in my mind that the manner in which page 69 of the Book was introduced is improper and irregular and was used by the Applicants to gain an unfair advantage of supplementing and building their case in their  replying papers when procedurally they are not entitled to do so.  Therefore page 69 of the Book qualifies to be struck out.

 

[38]    Concerning the point on urgency, it is undisputable that the 1^st Applicant became aware that he was no longer a director of the 2^nd Applicant in June 2010.  At paragraph 19-20 (pages 12-13 of the Book) of the Founding Affidavit 1^st Applicant himself states as follows

“(19) On the 12^th May 2010, we filed an Annual Company Return with the Registrar of Companies when we sought for renewal of our company licence.  I annex hereto the said Return and mark it Annex “JJ5”.  It is clear ex facie “JJ5” that as at 12^th May 2010 the only shareholders in the Company were myself and the 2^nd Respondent each holding 50% shares in the company

“(20)  Sometime in June 2010 just when the project was about to start, I went to the Registrar of Companies to check on updates in all companies I was involved in.  I was shocked when perusing the file of 1^st Applicant to learn that there had been filed a new Form J and C, the Directors and Shareholders of 1^st Applicant had been stated to be the 1^st and 2^nd respondent only.  I had been unlawfully taken out as shareholders and director.”

 

[39]    At paragraph 22 page 13 of the Book 1^st Applicant states as follows

“(20)  On the 10^th June 2010, the 1^st to 3^rd Respondents caused to be filed a Form J, with the Registrar of Companies.  In this form J, I was omitted as director of the Company.  I annex hereto the said Form J, and mark it Annex “JJ7”.  I must mention that I never resigned as Director of the Company.”

 

[40]    I must clarify that the 1^st Applicant in paragraph 20 page 13 of Book refers to the company as 1^st Applicant whereas the Company is the 2^nd Applicant.  I am pointing this out inorder not to confuse the reader of this judgement.  It is errors like these that demonstrate lack of proof-reading by counsel of processes to be filed before court and it is advisable that Counsel must at all times proof read such processes to avoid misunderstanding of these processes.

 

[41]    I must point out also that paragraphs 19-20 of the 1^st Applicant’s Founding makes it crystal clear that as at June 2010 he became aware that he was no longer a director and shareholder of the 2^nd Applicant and further that this was before the project was started. Why did he not act at that time?

 

[42]    There is no explanation forthcoming why he never approached the courts then to enforce his rights and challenge the Respondents in Court soon after discovering those facts.  It is unacceptable that he waited in excess of 8 years without doing anything about this crucial issue and then elect to approach this court on urgency after such a lengthy period of time.

 

[43]    It is cases like these which are frowned upon by the courts and justifiably so because these type of cases are a complete disregard of the rules of Court and result in extreme abuse of the court process.

[44]    It is cases like these which are an inconvenience to the Court’s function, and also an inconvenience and costly to the Respondents who are called upon to answer at short notice to allegations contained in an urgent application, which allegations turn out to be dating back to 8 years ago and further which allegations are riddled with disputes of facts.  This is a gross abuse of the Court process and a stumbling block to the proper administration of justice.

 

[45]    I have no doubt in my mind that these proceedings in casu ought to have been instituted through action proceedings.  This I say, because of the apparent material disputes of facts requiring the need to lead oral evidence in a trial situation.  Further because of the lack of urgency, since it is unheard of to allege urgency in April 2018 in a situation which the 1^st Applicant became aware of in June 2010.  I am at pains to understand what was going in the mind of Counsel who drafted these papers.

 

[46]    Even the prayers as contained in the Notice of Motion, are so vague and are not the sort of prayers that can be enforced through motion proceedings because they do not establish a cause of action and are infact argumentative; for example prayer 3.7 of the Notice of Motion at page 4 of the book reads as follows

“3.7   That the 1^st Respondent be and hereby compelled and or ordered to reimburse and pay back to the 2^nd Applicant, all monies that he will not be able to account for and or which has been disbursed not for the use and benefit of the 2^nd Applicant”

 

[47]    This prayer does not disclose a cause of action, and without being pre-emptive, this prayer cannot stand the test in action proceedings and thus it is worse in motion proceedings.  It is trite law that he who alleges must prove, however the way this prayer and many others in casu are crafted, it appears that the 1^st Respondent is called upon do some calculations himself and reimburse the 2^nd Applicant “monies that he will not be able to account for and or which he has disbursed not for the use and benefit of the 2^nd Applicant.”

 

[48]    The question becomes, how is the 1^st Respondent expected to make a case for the Applicants when he is being sued, and when it is the Applicants who are supposed to set out facts in their Founding Affidavit which are in chronological sequence and without any argumentative matter

See: Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 at 781

[49]    In casu there is no case made to support Prayer 3.7 except to allege that the Respondents were enriching themselves at the expense of the 2^nd Applicant.  This is unfair on the Respondents who are lawfully the investors, shareholders and directors of 2^nd Applicant.

 

[50]    In casu there are so many disputes of facts which are combined with the lack of urgency as demonstrated in the 1^st Applicant’s Affidavit.  As pointed out above, it defeats logic why the 1^st Applicant would in April 2018 raise an issue of director’s fees which he alleges the 1^st Respondent stopped payment in his favour in June 2017.  Where is the urgency here?

 

[51]    Further, 1^st Applicant raises an issue as regards payment of E80 000.00(Eighty Thousand Emalangeni) which was made to Rexy’s Investments on the 4^th July 2017 and a payment of E100 000.00 (One Hundred Thousand Emalangeni) to Dumisa Gwebu on 21^st June 2017.

 

[52]    These issues are vigorously defended by the Respondents and thus raises material disputes of facts just like the issue of the shareholding which the 1^st Respondent challenges by simply demanding Share Certificates which were not filed by the 1^st Applicant in his papers.  Clearly these issues do not qualify to be dealt with on urgency as they can not be classified to have occurred with the range of urgency justifying them to be heard on urgency by this Court.

 

[53]    Further, these issues are vigorously defended by the 1^st Respondent and also explained in detail, for example, at pages 275 to 278 of the Book, this is how the 1^st Respondent responds to the issue of removal of 1^st Applicant from being a director of the 2^nd Applicant and subsequently stopping payment of the director’s fees;

“(16) On the issue of the applicant being a director the applicant is not being candid with the court.  I admit that the applicant was a director when we incorporated the company.  We played different roles but I was the one who secured the contact with the Swaziland Government.  I secured the place of business where I paid rent for 5 years whilst the company was not trading alone.  I bought all the equipment of the company alone.”

“(17)  In the year 2010, the applicant was blacklisted by the First National Bank of Swaziland and as a result no financial institution wanted to deal with us if he appeared as a director.  As Shareholders with the second and third respondents we decided not to include the applicant as part of the directors.  This was communicated to the applicant by myself and he accepted it.  The applicant further accepted that he was not a shareholder but a director.  That was in 2010, we agreed that he will get payment from director’s fee only”

“(18)  For years, the applicant has conducted himself as a director of the Company and not a Shareholder.  The applicant received director’s fees every month until he was removed on the 14^th of June 2017 as it will appear hereunder”

“(19)  The applicant has for years refused, as a director, to sign the financial statements of the Company yet the Company’s Act (the Act) makes it mandatory.  I spoke to the applicant on a number of occasions that what he was doing was wrong and we will end up removing him as a director in terms of the Act.  The Applicant did not listen.  The result was certain.

“(20)  The applicant has been called on a number of director’s meetings and he has not attended any of them.”

“(21)  The applicant was on the 7^th June 2017 invited for a director’s meeting which was set to proceed on the 14^th June 2017.  A copy of the invite is attached marked “MM1”.  The agenda was stated amongst other things that it was for his removal as a director for refusing to sign company financials and creating a debt in our suppliers in Johannesburg under the name of the company for his Company JJ signs.  The invite was delivered to the applicant’s offices on the same date by third respondent who left it with the receptionist.  I refer to the Confirmatory affidavit of the third respondent.”

“(22)  As usual, on the 14^th June 2017 the Applicant did not come for the meeting and it proceeded in his absence.”

“(23)  The resolution taken by the directors was that that applicant should be removed as a director of the company with effect from that day for taking loans in the company and not paying it back, refusing to sign financial statements, for buying stock on credit from the company using his other company then J.J. signs and not paying for same and for buying stock in Johannesburg for his company J.J Signs using the name of the Company.

“(24)  The resolution was hand delivered to the applicant by the third respondent in Manzini on the 15^th of June 2017.  I refer to the Confirmatory Affidavit.”

“(25)  As a result of the removal as a director from office, for which the applicant is fully aware, the applicant cannot claim any director’s fees.  This is so because with effect from the 14^th June 2017 the applicant ceased to be a director of the company.”

 

[54]    I have gone through the tough exercise of reproducing verbatim these paragraphs in the 1^st Respondent’s affidavit to demonstrate firstly, that the issues raised dates back from 2010 to 2017 and thus do not qualify to be dealt with through urgent motion proceedings and, secondly, these paragraphs disclose serious and material disputes of facts which again cannot be dealt with through motion proceedings.

 

[55]    There is no way by which this court can deal with events that occurred eight and 2 ½ years respectively on urgency.

 

[56]    Equally there is no court that can deal with a matter which has so much apparent and material disputes of facts in application proceedings, such as this matter in casu.  The explanations advanced by the 1^st Respondent in the quoted paragraphs supra can only be best described as opening a can of worms in the proceedings as it were, and such cannot be dealt with in motion proceedings.

 

[57]    It is trite law that a litigant who take the risk of launching urgent proceedings which are not urgent by nature runs that risk of having those proceedings dismissed with a sanction of costs of suit.

 

[58]    Similarly a litigant who launches motion proceedings in the face of apparent material disputes of facts runs the risk of having those proceedings dismissed with costs.

 

[59]    Such is the position in casu as the court is faced with motion proceedings instituted through a Certificate of Urgency yet the events thereof dates back to 2010 and there are foresecable material disputes of facts as regards shareholding and directorship in the 2^nd Applicant.  These proceedings in casu qualify to be dealt with through action proceedings.

 

[60]    I will not deal with the other points in limine as raised by the Respondents because the two points of lack of urgency and the presence of material disputes of facts dispose of this matter. Further the application in terms of Rule 6 (28) stands to succeed as well.

 

[61]    In the foregoing and owing to the consideration of the evidence above, I hereby grant the following order.

1. The Application to strike out page 69 of the Book of Pleadings is hereby granted
2. The point in limine on urgency is upheld
3. The point in limine on presence of material disputes of facts is hereby upheld
4. The urgent application dated the 12^th April 2018 under Case No. 588/2018 is hereby dismissed with cost on the ordinary scale

 

So ordered.

 

NKOSINATHI MASEKO

JUDGE