Court name
High Court
Case name
Sociedade Angolana De Comercia Internacional Limitade (SACILDA) v J A Group Holdings (Pty) Ltd
Media neutral citation
[1994] NAHC 1
















A
254/93









SOCIEDADE
ANGOLANA DE COMERCIA INTERNACIONAL LIMITADE (SACILDA)
vs
J A GROUP HOLDINGS (PTY) LTD







O'LINN,
J



COMPANY
LAW








1994/02/08






  1. Twenty
    one (21) days notice not required for "special business"
    resolutions at general meetings, but only fourteen (14) days.



  2. The
    chairman had a casting vote at general meetings where voting on
    resolutions relating to special business is by show of hands.



  3. Sale
    or intended sale of assets by directorate cannot be said to be "
    not
    in the ordinary course of business
    "
    merely because the sale or intended sale takes place when a petition
    for winding up on the ground of "dead lock between the
    directors" is pending before the Court or because the directors
    sell or contemplate to sell certain assets, but these assets are
    not
    the whole or substantially the whole of the undertaking or the whole
    or the greater part of the assets of the company.



  4. A
    resolution at a general meeting for the sale of such assets by the
    directorate is not required and is superfluous.




CASE
NO. A254/93





IN
THE HIGH COURT OF NAMIBIA











In
the matter between
SOCIEDADE
ANGOLANA DE COMERCIA


INTERNACIONAL
LIMITADE (SACILDA)
APPLICANT



versus


J
A GROUP HOLDINGS (PTY) LTD
RESPONDENT








CORAM:
O'LINN, J.











Heard
on: 1993/12/13,15 Delivered on: 1994/02/08






JUDGMENT


O'LINN,
J.

:
On 15th December 1993 this Court dismissed an application by the
applicant brought on the basis of urgency for the following relief:











"1.
That this application be treated as urgent in terms of the provisions
of Rule 6(12)(b).







2.
That a
rule
nisi

be issued calling upon the Respondent to show cause on or about 7
March 1994 why an order in the following terms should not be made
final:







2.1
That a declaratory order be issued in terms of which it is declared
that the general meeting of shareholders of the Respondent held on 13
December 1993 and any resolution purported to be taken thereat,
be declared null and void;




  1. That
    the Respondent be interdicted from disposing of any of the assets of
    the Respondent otherwise than in the ordinary course of business,
    pending finalisation of the application for liquidation of the
    Respondent on 7 March 1994;



  2. That
    the Respondent be ordered to pay the costs of this application.








  1. That
    prayers 2.1 and 2.2 shall act as
    interim
    relief
    pending the return date of this application.



  2. That
    such further and/or alternative as the Court may deem fit, be
    granted to the Applicant."




At
the hearing Mr Mouton appeared for the applicant and Mr Coleman for
the respondent.






Reasons
were not given for the Court' s order on 15th December or since.






The
applicant filed a request for reasons on the 4th January 1994.






The
request for reasons appears to be out of time. I have nevertheless
decided to condone the late filing of the request and decided to
provide brief reasons for my decision on the 15th December 1993.



Mr
Mouton and Mr Coleman argued the matter thoroughly and I am indebted
to them for their valuable assistance.






I
will now deal shortly with the grounds relied on by applicant.











1.1 "21
days notice were required and this was
not complied with
."






Only
14 days notice was required because the meeting was a general meeting
for "special business" provided for in article 34 of the
memorandum of articles of respondent company and not for a "special
resolution".








The
applicant was not even entitled to any notice because it had not
supplied the respondent company with an address within the Republic
of South Africa (or Namibia) for the giving of notice as provided for
by article 99 of the memorandum of articles.











1.2 "The
notice did not contain sufficient
particularity to enable the
applicant to
decide how to respond.
"






The
applicant however did attend through its proxy Adv. Ellis as well as
its attorney Jacobs.









Precisely
what transpired at the meeting is not clear from the papers and the
affidavit of attorney Jacobs on behalf of applicant was contradicted
by that of respondent.









I
am not persuaded that the applicant did not, alternatively could not,
obtain all the required information at the meeting.









The
voting on the resolution proposed by the majority shareholder, Mr
Augusto, who also acted as chairman, was by the holding up of hands.






Even
though there was an equality of votes, the chairman had a casting
vote and in that manner there was a majority of 2-1 in favour of the
proposed resolution.











1.3
"
The
sale and/or intended sale of assets was not in the ordinary course of
business because an application for winding up

on the ground of
deadlock
was pending and because the company was unable to pay its debts
."






An
application for winding up on the ground of "deadlock in the
management" set down for 7th March 1994, is not
per
se
a
bar to the sale of assets of the company.






There
was no evidence, certainly no
prima
facie

proof produced by applicant, that the respondent company was unable
to pay its debts.






The
directors were also not contemplating selling the
whole
or substantially the whole

of the
undertaking
of the company or the whole or the greater part of the assets of the
company and thus did not and do not intend to act in contravention of
section 228 of the Companies Act.









The
directors have wide powers in terms of article 60 and 61 of the
memorandum of articles which authorize them to sell assets such as
those proposed in the resolution, without calling any general meeting
to pass a resolution authorizing them.









The
resolution passed at the general meeting was therefore superfluous.








1.4
"
Applicant
and/or creditors will be severely



prejudiced
if the alleged disposal of assets are allowed.
"






No
proof was produced that this would be the case.











1.5
"
The
hearing is extremely urgent
."






No
urgency was proved in the circumstances already set out supra.




FOR
THE APPLICANT
MR
C
J
MOUTON



FOR
THE DEFENDANT


MR
G COLEMAN