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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: CT003JUL2018

In the matter between:

JAMES LOTTER                                                                                               APPLICANT

(Identity number: […])

And

HANS JACOB WESSELS                                                                            RESPONDENT

(Identity number: […])

IN RE: ALPHA AUTO ELECTRICAL PROPRIETARY LIMITED

(Registration number: 2015/284428/07)

Decision handed down on 31 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 Alpha Auto Electrical Proprietary Limited, a private company incorporated in terms of the Act with registration number 2015/284428/07, having its registered address at No. 2 Hobson Street, Kuruman, Northern Cape Province.

THE APPLICATION

[3] This is an application for the removal of the Respondent as director. The Applicant seeks the removal of the Respondent, alleging that the relationship between him and the Responded is irreconcilable and that the Respondent has started his own company which competes with Alpha Auto Electrical Proprietary Limited.

BACKGROUND

[4] The Applicant and the Respondent are directors in Alpha Auto Electrical Proprietary Limited (‘’the company’’) with registration number 2015/284428/07. 

[5] The company was, on 12 August 2018, registered as a private company and the Applicant and the Responded accordingly were recorded as the two (2) directors of the company on 12 August 2018.

[6] The Applicant seeks the following relief:

‘’ REMOVE MR HJ WESSELS AS DIRECTOR FROM THIS COMPANY.’’ [3]

EVALUATION

[7] In support of its application the Applicant avers that the Respondent (he):

[7.1] is the registered director of the company.

[7.2] has on 02 March 2018 sent, by email, to the Respondent a notice to inform him of a meeting to be held on 19 March 2018 to discuss and approve the removal of the (him) Respondent as director of the company.

[7.3] has not responded to any correspondence, however proof of delivery and confirmation of emails was received by (him) the Respondent.

[8] Further, the Applicant avers that:

[8.1] the meeting to remove the Respondent as director of the company was held on 19 March 2018 with himself and one Susanna Cornelia van der Heever in attendance and that Susanna Cornelia van der Heever acted as the chairperson of the meeting.

[8.2] the meeting resolved to remove the Respondent as director of the company.

[9] Furthermore, the Applicant avers that he cannot get hold of the Respondent and obtain a copy of the Respondent’s (his) identity document.

[10] The process for the removal of a director requires reasonableness and sufficiency in the allegations made by a director, and affords the impugned director the right to be heard before a determination is made. [4]

 

FINDING

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

[12] It appears from the affidavit dated 03 August 2018 deposed by the Applicant that the Applicant’s concern is that the Respondent started his own company that is in direct competition with the company.

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

[13.1] delivery of notice of shareholders meeting was sent to the Respondent by electronic mail in compliance with Regulation 7 (2) (b) of the Companies Regulations, 2011.

[13.2] the Respondent has started his own company that is in direct competition with the company.

[14] In my view the application is not sufficient in that the relief sought by the Applicant is not supported by facts or evidence and the Applicant’s supporting affidavit is not detailed, as such not helpful.

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

[16] 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)

31 AUGUST 2018

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