Court name
High Court
Case name
Kaese v Schacht and Another
Media neutral citation
[2009] NAHC 84





S v BONIFATIUS KONSTANTINOS






CASE
NO. (P) A 311/07






IN THE HIGH COURT
OF NAMIBIA







In the matter between:







WALTER HORST
KAESE

APPLICANT







and






KLAUS
DIETER SCHACHT

1
ST
RESPONDENT


GAMIKAUB
(PTY) LTD 2
ND
RESPONDENT









CORAM: MANYARARA,
A.J.



Heard on: 01 December 2008



Delivered on: 02 February 2009








RULING







MANYARARA,
A.J.:
[1] This
is a ruling on an interlocutory application made by the applicant in
this matter. The applicant is represented by Mr. Vaatz and the
respondents by Mr. Corbett.




[2] The applicant is a
shareholder in the second respondent (the company), of which the
first respondent is the sole director. In the main application, the
applicant seeks an order terminating the first respondent’s
directorship of the







company and ordering that an
annual general meeting of shareholders of the company be held at the
registered offices of the company under the chairmanship of the
auditor of the company at which a new director, excluding the first
respondent, would be elected by the shareholders present at such
meeting.







[3] The applicant has filed an
interlocutory application in the following terms;



"At
the hearing of this matter the Applicant will make application to the
Honourable Court requesting the Court to make an order in terms of
Rule 6(5)(g) namely to
refer
to
oral
evidence
the
one important issue in dispute in these proceedings, namely whether
or not the Second Respondent has sold all its cattle and livestock
as alleged by the Applicant or only 80 head of cattle as alleged by
the First Respondent. It is submitted that this factual dispute goes
to the root of this application and at the same time it is
relatively easy to place before the Court the oral evidence enabling
the Court to resolve this factual dispute."







[4] The notice is founded on an
allegation made in the affidavit founding the main application as
follows:



"In
May 2006 I heard rumours that the First Respondent was about to sell
all the cattle of the Second Respondent. Such a sale would fall
fairly and squarely within the provisions of
Section
228
requiring
a resolution by all shareholders to support the sale of the whole of
the undertaking of the farming operation by selling all cattle. I
accordingly caused a letter to be addressed to the attorneys of the
First Respondent dated 29
th
of May, a copy of which I annex hereto marked
Annexure
"C"
.
A similar letter was addressed on the 20
th
of June to the manager of the Second Respondent, Mrs Carola Eichler.
In response to that I received a letter from the attorneys of the
First Respondent, a copy of which I annex hereto marked
Annexure
"D"

alleging that only 60 to 80 head of cattle would be sold."







[5] Annexure
"C"
is a
letter addressed to the second respondent’s attorney by Mr
Vaatz in the following terms:



"My
client has now been informed that your client, Mr Schacht, intends
selling all cattle and other animals on the farm. If he does so, it
would impair the ability of the company to continue operating as a
farming enterprise and thereby would take steps that are clearly in
conflict with the main object of the company.






My instructions are to
write to you and get
a
written confirmation

from you that your client will not sell the cattle or any other
domestic animals from the farm and will do nothing that prejudices
the operation of the farm as a cattle farming enterprise. Any act in
conflict with this proposal, my client will not hesitate to obtain
an immediate interdict against any transaction that prejudices the
business basis of the company."







[6] The first respondent’s
attorneys replied thereto as follows:



"We
confirm further that our clients have instructed us that a decision
has been made to sell 60 to 80 head of cattle by way of auction
conducted by Agra on Friday, 23 June 2006. These cattle represent
only a part of the herd, which stands at 240 head of cattle. The
reasons for the sale are, inter alia, firstly, that the company
needs to generate cash to finance its ongoing operations, such as the
payment of salaries and other running costs, which funds will be
realized through the aforesaid sale; and secondly, since September
2005 approximately 80 head of cattle belonging to the company have
been stolen, necessitating the company to reduce the head in order
to have better control over it and to minimize future potential
losses."







[7] It will be seen that the
number of cattle which the first respondent intended to sell
represented only a part of the herd.
Ex
abundante cautela

the first respondent’s attorneys gave the reasons for the sale
and explained that the decision fell entirely within the first
respondent’s discretion as the managing director of the
company.







[8] The following principle is
enunciated in
Ter
Beek v United Resources CC & Another

1997 (3) SA 315, 336 C-E as follows:



"Although
it is undesirable to endeavour to resolve disputes of fact on
affidavit without the hearing of evidence and seeing and hearing
witnesses before coming to a conclusion (see Plascon-Evans Paints
Ltd v Van Riebeek Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634 E) it
is equally undesirable to accept disputes of fact at their face
value, because if that were done an applicant could be frustrated by
the raising of fictitious issues of fact by a respondent (see
Petersen v Cuthbert & Co. 1945 AD 420 at 428). Accordingly a
Court should in every case critically examine the alleged issues of
fact in order to determine whether in truth there is a dispute of
fact that cannot be satisfactorily determined without the aid of
oral evidence (see Petersen v Cuthbert & Co Ltd (supra at 428);
G v Superintendent, Groote Schuur Hospital, and Others 1993 (2) SA
255 (C) at 266 C-E)".







[9] Mr. Corbett submitted
that the application for a referral to oral evidence should be
dismissed because the referral is sought on grounds of "rumours",
in respect of which the applicant requested a confirmation in
writing, which he received, that the first respondent “will not
sell (all) the cattle…”of the second respondent.







[10] In my view, the
correspondence puts the matter squarely within the
Ter
Beek
principle for
refusing the referral to evidence requested by the applicant and that
puts the matter at an end. In the premises, I need not deal with the
other grounds raised by Mr. Corbett for dismissing the application.







[11] The application is
dismissed with costs.















__________________



MANYARARA, AJ
























ON BEHALF OF THE APPLICANT
Mr Vaatz



Instructed by:
Andreas Vaatz & Partners







ON BEHALF OF THE RESPONDENTS
Adv. Corbett



Instructed by:
Chris Brandt Attorneys