IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE CIV. NO.46/93
In
the matter between:
LOBETHA
DAISY MKHOMBE Petitioner
And
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
RULING
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...
2
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.
3
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.
B.
DUNN
JUDGE
