IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CIV. NO.46/93
In the matter between:
LOBETHA DAISY MKHOMBE Petitioner
TIT FOR TAT BUS SERVICE (PTY) LTD Respondent
C 0 R A M : DUNN J.
FOR THE PETITIONER : MR FINE FOR THE RESPONDENT : MR FLYNN
18 February 1994
I have before me a petition for an order provisionally winding up the respondent company.
The petitioner sets out that the respondent was registered and incorporated on the 17th February 1976 with an authorised capital of E400.00 divided into 400 shares of E1.00 each. She states that she took up 10 of the shares and that 10 shares were held by her brother Thamsanqa Wellington Mkhombe. The petitioner and Thamsanqa became directors of the respondent from the date of its incorporation.
A serious dispute of fact regarding the petitioner's directorship and shareholding has arisen in the affidavits before me. The petitioner was informed prior to the launching of this petition that according to the respondent's records her directorship and shareholding had been transferred to Winston Mthunzi Mkhombe on the 25th June 1985. The papers before me contain documents which, it is stated on behalf of the respondent, reflect the transfer by the petitioner...
the petitioner of her shares to Winston. The petitioner denies such a transfer and disputes the signature appearing on the share transfer document. The role of the respondents's auditor and secretary before and after the alleged transfer of the petitioner's shares to Winston is at the centre of the dispute. The dispute touches on the question of the petitioner's locus standi to bring the present petition and must be resolved before the petition is decided on the merits. I cannot, and counsel for the parties agreed at the brief hearing before me, resolve this dispute on the papers before me. The question of referring a dispute of fact arising in liquidation proceedings was referred to by Leon J. in EMPHY & ANOTHER v. PACER PROPERTIES (PTY) LTD 1979 (3)SA 363 at 369 F-G where the learned judge stated –
"In an application for liquidation it would frequently be quite inappropriate for a court to refer the matter for the hearing of oral evidence: considerations such as urgency would often militate against such a direction. But the possibility of doing so in a proper case was recognised by Ramsbottom J. in McLEOD v. GESADE HOLDINGS (PTY) LTD 1958 (3) SA 672 (W) at 678-9 and in such a case there seems to be no reason in principle or in logic why a court should not make such an order."
I order, accordingly, that the petition be adjourned to a date to be arranged with the Registrar for oral evidence to be led to decide whether or not the petitioner ceased to be a director and shareholder of the respondent company on the 25th June 1985.
I was addressed on the question of to-day's costs.
Mr Flynn argued that such costs should be borne by the petitioner. The basis for the submission is that the petitioner was fully aware prior to the launching of the petition that there was a dispute as to her directorship and shareholding and hence her locus standi. Mr Fine argued on the other hand that the petitioner was not furnished, prior to the petition, with all the documentation which is now before me and which is relied upon as proof of cessation of her directorship and shareholding. I do not propose going into these submissions at this stage. There is in my view a considerable amount of evidence which will have to be dealt with at the adjourned hearing which may have a direct bearing on the correspondence which passed between the parties prior to the launching of this petition and which would consequently be relevant to the question of to-day's costs. It would in the circumstances be proper to order that to-day's costs be costs in the adjourned hearing. That is the order I make.