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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

COMPANIES TRIBUNAL

REPUBLIC OF SOUTH AFRICA

                                                                                                CASE NO: CT007JUL2018

In the matter between:

SANDRA HARPER DUNCAN                                                                           APPLICANT

(Identity number: [...])

And

SUSAN NOLUTHANDO DUNCAN                                                               RESPONDENT

(Identity number: [...])

 

IN RE:            UNGULULE EXPORTERS PROPRIETARY LIMITED

                              (Registration number: 2012/097777/07)

Decision handed down on 01 AUGUST 2018

DECISION

INTRODUCTION

[1] This is an application in terms of section 71 (8) (b)[1] and Regulation 142 (1)[2] of the Companies Act No. 71 of 2008 (‘’the Act’’).

[2] The Applicant applies for an order that the Respondent be removed as a director of Ungulule Exporters Proprietary Limited, a private company incorporated in terms of the Act with registration number 2012/097777/07, having its registered address at No. 56 Daphne Road, Maroela, Gauteng Province.

THE APPLICATION

[3] This is an application for the removal of the Respondent as director. The Applicant seeks the removal of Respondent, alleging that the Respondent has been neglectful or derelict in the performance of her duties as a director.

.

BACKGROUND

[4] On or about 19 February 2008, the Applicant (Sandra Harper Duncan) and the Respondent (Susan Noluthando Duncan) were equally registered as members of a close corporation Ungulule Exporters CC (‘’the Close Corporation’’) with registration number 1999/019870/23. 

[5] The Close Corporation was on 06 June 2012 converted into a private company Ungulule Exporters Proprietary Limited with registration number 2012/097777/07 and the Applicant and Responded accordingly were recorded as the two (2) directors of Ungulule Exporters Proprietary Limited.

[6] The applicant seeks the following relief(s):

‘’Removal of respondent as only director of company and appointment of applicant as temporary director’’[3]

‘’Request permission not comply with methods of delivery prescribed since it is impossible to do so.’’ [4]

EVALUATION

[7] In support of its application the Applicant submitted 2 (two) affidavits. The first affidavit dated 29 June 2018 is titled ‘’Affidavit Statement’’ and the second affidavit dated 02 July 2018 is titled ‘’Affidavit’’.

[8] The Applicant avers that ‘the Respondent has neglected or been derelict in the performance of the functions of director since moving her residence to the UK in July 2013 and she has not attended the company affairs at all; and she has further made unauthorised withdrawals from the company bank account’.

[9] Further, the Applicant avers that:

[9.1]           the Respondent left the Republic of South Africa and all attempts to contact the Respondent have failed.

[9.2]           the Respondent has not attended to the management of the company and its affairs.

[9.3]           the Respondent has caused not caused annual financial statements to be prepared and has not seen to the submission of annual returns.

[9.4]           The Respondent has not paid any VAT for several years and the bond had not been paid for the same length of time.

[9.5]           The Respondent has removed the Applicant as director of the company without the knowledge or consent of the Applicant.

FINDING

[10] The Applicant brought an application in terms of section 71 (8) (b) and Regulation 142 (1) of the Act.

[11] The Applicant did not produce evidence in support of its allegation that:

[11.1]            the Respondent left the Republic of South Africa and all attempts to contact the Respondent have failed.

[11.2]         the Respondent has not attended to the management of the company and its affairs.

[11.3]         the Respondent has caused not caused annual financial statements to be prepared and has not seen to the submission of annual returns.

[11.4]         The Respondent has not paid any VAT for several years and the bond had not been paid for the same length of time.

[11.5]         The Respondent has removed the Applicant as director of the company without the knowledge or consent of the Applicant.

[12] In my view the application is not sufficient in that the relief sought by the Applicant is not supported by facts and evidence.

[13] The Applicant, in my view, failed to make out a case. Therefore the application cannot succeed due to insufficient information.

[14] However, against the aforementioned finding, I am of the recommendation that the Applicant should consider re-applying on the basis that the application did not include satisfactory evidence and/or information. This should not be understood to be legal advice on the matter or even to purport to bind other members of this Tribunal who may be seized with any future application(s) by the Applicant.

ORDER

In the result the following order is made:

a)            The Application is dismissed.

______________________________

MMOLEDI MALOKANE

(MEMBER OF COMPANIES TRIBUNAL OF SOUTH AFRICA)

01 AUGUST 2018

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