IN THE HIGH COURT OF LESOTHO In the
Application of :
ABISAIA SELLO 1st Applicant
MAKHABA ... 2nd Applicant
SETENANE MAPHELEBA 1st Respondent
THABANG MOSHE ........................ 2nd Respondent
MASUPHA KATISO ............... 3rd Respondent
REGISTRAR OF COMPANIES 4th Respondent
PUBLIC MOTOR COMPANY (Pty)Ltd..5th Respondent
J U D G M E N T
Delivered by the Hon. Mr. Justice B.K. Molai on the
6th day of April, 1987.
On 2nd December, 1985 the Applicants herein filed with
the Registrar of the High Court, an application (on " notice of
in which they moved the court for an order against the 1st,
2nd, 3rd and 4th Respondents. The order was framed in the following
"1. Declaring 1st and 2nd Applicants as properly
constituted directors of the Company Lesotho Public Motor Transport
Declaring the 1st, 2nd and 3rd Respondentsare not
properly constituted directors ofthe Lesotho Public Motor
Transport Company(Proprietory) Limited.
Directing the 1st, 2nd and 3rd Respondents topay
the costs of this application.
Granting the 1st and 2nd applicants further and/or
alternative relief that the HonourableCourt may deem fit."
On 26th August, 1986 the applicants filed with the
Registrar of the court a notice of application for joinder of the
Motor Company (Pty) Ltd on the ground
2/ that the
- 2 -
that the company had an interest in the outcome of the
proceedings. Although it was opposed, the application for joinder was
August, 1986 granted by my brother Kheola, A.C.J. and the
Lesotho Public Motor Company (Pty) Ltd accordingly joined as the 5th
The 1st, 2nd and 3rd Respondents have intimated their
intention to oppose the present application. The 4th and the 5th
have, however, not filed any notice of intention to
oppose it and it can savely be assumed that they are prepared to
abide by whatever
decision the court will arrive at.
The parties duly filed their affidavit's, the gist of
which is that on 10th August, 1978 an Association by the lame of the
Bus and Taxi Owners Association" was registered
with the Registrar of Companies. It was subsequently resolved by
the Association that a proprietory company be formed to
acquire property and conduct business on behalf of and for the
On 12th July, 1979 a private company named "Lesotho
Public Motor Company (Pty) Ltd was duly floated and registered in
with the provisions of the companies Act No. 25 of 1967.
The 1st and 2nd Applicants and the 1st Respondent were the
and the first directors of the company.
In 1980 the shareholders of the company adopted a
resolution in terms of which the 2nd Respondent and one S.R.
Makoloane were appointed
additional shareholders and directors of the
company. It was then realised that the memorandum and articles of
Association of the
company did not make it clear that in recommending
its formation the intention of the Association was that the company
property and conduct business on behalf of, and for the
benefit of the Association. It became necessary, therefore, to
On 19th August, 1981 the shareholders convened a special
meeting at which it was accordingly resolved, inter alia,
3/that the ....
- 3 -
that the memorandum and Articles of Association be
amended to reflect the true position of the intention of the
Association A copy
of the minutes of the proceedings at that meeting
was attached as annexure "B1". Thereafter the
1st Respondent, through the offices of Messrs E.G. Cooper and Sons,
lodged with the Registrar of Companies,
a statutory Form I of the
Special Resolutions adopted at the meeting of 19th August, 1981.
However, under para. (2) of the Statutory
Form I (an-nexure ("B2")
1st Respondent added that the 3rd Respondent had been appointed an
additional director of the company.
1st Applicant contended that the appointment of 3rd
Respondent as the additional director of the company was neither
resolved at the meeting of 19th August, 1981. The
inclusion of 3rd Respondent's name in the statutory Form I as
of the company was, for that reason, improper and
of no legal force. The contention was disputed by the 1st, 2nd and
according to whom the 3rd Respon-dent was duly
appointed as additional director of the com-pany.
On 7th December, 1982, 1st Applicant served the
shareholders of the 5th Respondent with notices calling for a meeting
on 8th January,
1983 to adopt a resolution that 1st and 2nd
Respondents be removed as directors of the com-pany. The 1st and 2nd
S.R. Makoloane ignored the notices and did not attend
the meeting of the 8th January, 1983. Only the 1st and 2nd applicants
In terms of the provisions of Clause 51 of the Articles of
Association, two shareholders were sufficient to constitute a quorum.
The 1st and 2nd applicants accordingly held the meeting and adop-ted
a resolution removing the 1st and 2nd Respondents as direc-tors
The 1st and 2nd Respondents averred that they were
entitled to ignore the 1st applicant's notices calling for the
of 8th January, 1983 for the simple reason that the
said notices were undated, hence irregular and of no legal force.
They (1st and
2nd Respondents) further
4/ averred that
- 4 -
averred that they in turn issued and served notices
properly dated 14th December, 1982 calling for a meeting on 6th
to adopt, inter alia, a resolution for
the dismissal of the two applicants as directors of the company. The
applicants did not attend the meeting which
in their absence on 6th January 1983 when a resolution to
dismiss them forthwith as directors of the company was adopted-vide
"G ",minutes of the shareholders' meeting held on
6th January, 1983 at the office of the company.
I must say I have carefully read through annexure "B
", the minutes of the proceedings of the meeting of 19th August,
Nowhere is the question of the appointment of the 3rd
Respondent as the additional director of the company mentioned. It
seems toj me, therefore, that the applicants' contention
that the appointment of 3rd Respondent as the additional director of
the company was
neither discus-sed nor resolved at the meeting of
19th August, 1981 was well taken. The inclusion of the 3rd
Respondent's name under
para (2) of the statutory Form.I as one of
the additional directors of the company was clearly an attempt to
make him a director
of the company through the back door. That in my
view, should not be allowed.
S. 99(1) of the Companies Act No. 25 of 1957 under
the provisions of which the parties issued notices calling for
meetings to unseat each other reads as follows:-
"99(1) On the requisition of members of a company
holding at the date of the deposit of the requisition not. less than
* of such of the paid up capital of the company as at
the date of the deposit carries the right of voting at general
the company, or in the case of a company not having a
share- capital, members of the company representing not less than
of the total voting rights of all the members having at
the said date a right to vote at, general meetings of the company,
of the company, notwithstanding anything in its
articles, shall within twenty-one days of the deposit of the
requisition issue a' notice to members convening an
extraordinary general meeting
of the company for a date not less than
fourteen nor more than twenty-eight days from the date of
5/ the notice; .......
Provided that if a special resolution is to be submitted
the period of the notice shall not be less than twenty-one days."
I have underlined the word "shall" in the
above cited section of the companies Act, supra, to indicate
my view that it was mantatory for the 1st applicant's notice
calling-for the meeting of 19th August, 1981 to be clearly
hold the contrary would make it impossible to establish whether or
not the 8th January, 1983 was a date not less than fourteen
than twenty-eight days from the date of the notice. Assuming the
correctness of this view, it must be accepted that the
Applicant's failure to give a date to the notices was a serious
irregularity rendering the said notices void and of do legal
The 1st and 2nd Respondents and S.R. Makoloane could not, therefore,
be legally bound by such notices.
As it was convened without a proper notice, the meeting
of 8th January, 1983 was not properly convened. The resolution to
1st and 2nd Respondents, taken at such a meeting was for
obvious reasons null and void.
It would appear from annexure "G", the minutes
of the meeting of 6th January, 1983 that the meeting was attended by
1st, 2nd and 3rd Respondents together with five (5) other people
including S.R. Makoloane. The resolution to remove the applicants
directors of the company was therefore, discussed and adopted not
only by 1st and 2nd Respondents and S.R. Makoloane but by the
Respondent and the other 4 people.
It has already been pointed out, in the course of this
judgment, that the 3rd Respondent was never lawfully appointed a
the 5th Respondent. Similarly there. is no indication
that shareholders of the 5th Respondent ever appointed the other 4
as the directors. Although the 1st Respondent's notice to
convene the meeting of 6th
6/ January, 1983
January, 1983 apparently complied with the provisions
of the Companies Act, supra, it would appear
that some people who were not directors of the 5th Respondent did not
only attend the purported meeting but actually took part in the
discussions and the taking of the resolution to remove the applicants
as directors of the company. This was an irregularity rendering the
resolution null and void, for in my opinion, only
members and not non-members of the company are empowered to remove
directors - see S. 146 of the Companies Act, supra,
In the premises, I come to the conclusion that the 3rd
Respondent was never lawfully appointed and is not a director of the
The 4th Respondent is accor-dingly ordered to amend
his register to reflect this position. The attempts by the two
factions of the
directors to unseat each other as directors of the
5th Respondent were fruitless exercises. Wherefore not only the
the 1st and 2nd Respondents and, indeed, S.R.
Makeloane are still the lawful directors of the company.
As regards the costs, I take into account the fact that
either party has partly succeeded and partly failed in this matter.
I make no order as to costs.
6th April, 1987.
For Applicant : Mr. Matsau For Respondent : Mr.
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