Makoala v Makoala (C of A (CIV) 4 of 9) [2009] LSCA 3 (9 April 2009)

Summary Company law – a company is a separate legal person from its shareholders – property vested in a company cannot be regarded as vested in shareholders – shareholders do not have a right to company’s bank accounts and buildings – such right is deferred until winding up and is subject to claim by other creditors – interim interdict to freeze the accounts of a company at the instance of shareholders refused.

SUMMARY LAW OF PROPERTY: Application for a tacid hypothec-The requirements thereof- Civil practice- how evidence which is adduced for the first time in reply should be dealt with- Unjust enrichment- Principles considered and applied

SUMMARY COMPANY LAW: Applicant shareholder claiming his share of declared dividends- the company contending that the applicant is not entitled to participate in the dividends because he surrendered his shares when his employment as an executive director was terminated by the board- Held, there is no evidence that the applicant surrendered his shares and therefore, he is entitled to share in the declared dividends.

SUMMARY CIVIL PRACTICE AND PROCEDURE: Invocation of Rule 8(10)(c) of the High Court Rules 1980 by the respondent in urgent matters- Whether the respondent is barred from filing answering affidavit if he/she chooses to raise the points of law in terms of Rule 8(10) (c)- Held, in the circumstances of the case, the matter should be decided on the basis of the applicant’s founding affidavit as the points of law raised have no merit- Application granted as prayed.

Summary Urgent applications – self created urgency – application for temporary interdict without proper notice – litigation involving termination of fuel supply agreement – applicant being aware of the impugned notice of termination of the agreement three months before institution of urgent application – applicant failing to account for the delay in the founding papers – elements of interdict discussed – failure to satisfy elements of interdict - interim relief refused. Costs on attorney and client scale – Institution of urgent application on one court day notice despite the request for proper notice by the respondent two months before the urgent application was instituted – Applicant’s conduct objectionable – Costs on attorney and client scale ordered. Costs de bonis propriis – grounds discussed – the notice of motion in breach of rule 8(7) and 8(8) of High Court Rules 1980 without justification and despite repeated warnings from the Court of Appeal and the High Court – Court file having countless blank pages, thus making reading experience cumbersome – Legal practitioners negligent in a serious degree by abdicating their responsibility to ensure the file was court ready – legal practitioners conducted themselves in a manner deserving of punitive costs. .