BUSINESS LAW

CASE LAW

AIRPORT_COLD_STORAGE_(PTY)_LTD_v_EBRAHIM_AND_OTHERS_2008_(2)
_SA_303_(C).pdf
A legal person is regarded as an entity that can acquire rights and duties separate
from its members the court confirmed that one of the most fundamental
consequences of incorporation is that a company is a juristic entity separate from its
shareholders.
Basson v on-Point Engineers (Pty) Ltd.pdf
The applicants were members of the media who sought access to the securities
registers of certain companies in order to establish the shareholding of these
companies because they wanted to know who had benefitted from certain state
tenders which had been awarded to these companies. The court held that if there
was any doubt as to whether the applicants were, in terms of s 26(6), entitled to
inspect the securities registers of the companies, then the court had to adopt an
interpretation of s 26(6) which best promoted the spirit, purport and objects of the Bill
of Rights as set out in s 39(2) of the Constitution. In this case, the court accordingly
granted the applicants access to the securities registers of the companies.

BRAUN_v_BLANN_AND_BOTHA_NNO_AND_ANOTHER_1984_(2)_SA_850_(
A).pdf
Testator conferred power on administrators to exercise discretion re who benefits –
this is valid! Therefore it’s valid to give trustees discretion to appoint income/capital
beneficiaries from a designated list.
NOTE
Despite the fact that a
bequest to a
discretionary inter vivos
trust (with broad trustee
powers) may be open to
attack, any attempt to
empower trustees with
an impermissible general
power of appointment
(unlimited discretionary
powers) would, in any
event, lead to the trust
being declared invalid.

Butters v Mcora 2012 (4) SA 1 SCA.pdf

In Butters v Mncora,28 the court confirmed that, as a partnership enterprise can
extend beyond a commercial undertaking, the contribution of the parties need not be
confined to a profit undertaking.
 CAPE_PACIFIC_LTD_v_LUBNER_CONTROLLING_INVESTMENTS_(PTY)_LT
D_AND_OTHERS_1995_(4)_SA_790_(A).pdf
The Court stated that if a company has been legitimately established and is
legitimately operated, but is misused in a particular instance, @to perpetrate a fraud,
or for a dishonest or improper purpose, there is no reason in principle or logic why its
separate personality cannot be disregarded in relation to the transaction in question

CROOKES,_NO_AND_ANOTHER_v_WATSON_AND_OTHERS_1956_(1)_SA_
277_(A).pdf The question was whether the founder (which was also a trustee) was
entitled to amend the deed with the concurrence of his co-trustee and of the only
beneficiary who had accepted benefits under the deed. The result of such
amendment would have been prejudicial to the conditional rights of other
beneficiaries who had not accepted the benefits stipulated for them in trust and who
had not agreed

CYBERSCENE_LTD_AND_OTHERS_v_i-
KIOSK_INTERNET_AND_INFORMATION_(PTY)_LTD_2000_(3)_SA_806_(C).pdf
The court confirmed that even non-executive directors have a fiduciary relationship

DA_SILVA_AND_OTHERS_v_CH_CHEMICALS_(PTY)_LTD_2008_(6)_SA_620
_(SCA).pdf
i]t is a well-established rule of company law that directors have a fiduciary duty to
exercise their powers in good faith and in the best interests of the company’.

DADOO_LTD_AND_OTHERS_Appellants_v_KRUGERSDORP_MUNICIPAL_C
OUNCIL_Respondents_1920_AD_530.pdf
The property vests in the company and cannot be regarded as vesting in any or all of
the shareholders of the company

DE_JAGER_Appellant_v_OLIFANTS_TIN__B__SYNDICATE_Respondents_1
912_AD_505.pdf
The members of the syndicate ( partnership) owe each other a duty of good faith as
they are each other’s agents.The duty of good faith provides that each partner must
put the interests of the partnership before his own.

FISHERIES_DEVELOPMENT_CORPORATION_OF_SA_LTD_v_JORGENSEN_
AND_ANOTHER;_FISHERIES_DEVELOPMENT_CORPORATION_OF_SA_LTD.p
df
The extent of a director’s duty of skill and care largely depends on the nature of the
company’s business,55 that the law does not require of a director to have special
business acumen,56 and that directors may assume that officials will perform their
duties honestly.
 GATENBY_v_GATENBY_AND_OTHERS_1996_(3)_SA_118_(E).pdf
Section 49 of the Close Corporations Act places a similar onus on a member who
considers that he is being unfairly prejudiced and seeks to invoke its provisions as
does section 252 of the Companies Act.

Gold Fields Limited.pdf (153.706 KB)

Where the offer was aimed at acquiring specific private property, like the Gold Fields
shares, it was not an offer to the public.It is submitted that the inclusion in the
Companies Act, 2008 definition of ‘offer to the public’ of offers made to persons who
are ‘the holders of any particular class of property’ was effected so as to overrule the
Gold Fields decision. It was submitted that the inclusion in the Companies Act, 2008
definition of ‘offer to the public’ of offers made to persons who are ‘the holders of any
particular class of property’ was effected so as to overrule the Gold Fields decision.

J_&_K_TIMBERS_(PTY)_LTD_t_a_TEGS_TIMBERS_v_G_L_&_S_FURNITUR
E_ENTERPRISES_CC_2005_(3)_SA_223_(N).pdf
A member is an agent even though no authority, express or implied, has been
conferred upon him/ her by CC and the CC is bound by the related act, unless the
third party knew, or reasonably ought to have known of the absence of such power.

LAND_AND_AGRICULTURAL_BANK_OF_SOUTH_AFRICA_v_PARKER_AND
_OTHERS_2005_(2)_SA_77_(SCA).pdf
In the absence of contrary provisions in the Trust Deed with regards to authorisation,
Trustees must act together for an act to be binding on the Trust.

LIVANOS_NO_AND_OTHERS_v_OATES_AND_OTHERS_2013_(5)_SA_165_(
GSJ).pdf

Held that section 35 of the Close Corporations Act regulates the disposal by
anexecutor of an interest of a deceased member in a close corporation. Section
35(a)provides that an executor is first to seek a transfer of a deceased member’s
interestto the legatee or heir and that such transfer can only be effected if
the remaining members of the corporation consent to the transfer. Consent of
the remaining member not having been obtained, the executors were entitled to
proceed to sell thedeceased member’s interest in terms of section 35(b) of the Act.
The remainingmember in this case had the opportunity to acquire the member’s
interest when he first received the letter but he failed to do so within the time period
prescribed.Section 35 does not oblige the executor to sell the member’s interest
to the corporation or the remaining members. The intention of the legislature is
clearly that the event of section 35(a) not being applicable, that the executors can
dispose ofthe member’s interest in one of the three manners provided for in section
35(b).
 ONE_STOP_FINANCIAL_SERVICES_(PTY)_LTD_v_NEFFENSAAN_ONTWIK
KELINGS_(PTY)_LTD_AND_ANOTHER_2015_(4)_SA_623_(WCC).pdf

This case thus confirms that someone dealing with an individual director cannot
simply assume that the company will be bound to the contract. As is the case
withthe Turquand rule, the director would have to be one who can be expected
to have the power to act on the company’s behalf
NOTE
TURQUAND RULE
allows third parties to
assume a company's
officers have the
proper authority to
act on behalf of the
company as long as
they act in good faith
and without reason
to suspect otherwise,
even if the
company's internal
procedures were not
followed.

PEZZUTTO_v_DREYER_AND_OTHERS_1992_(3)_SA_379_(A).pdf
The appellant had alleged that a ‘handshake agreement’ of partnership between
himself and three others had come into existence. The court stated that, for a
partnership to come about, there must be an agreement to that effect between the
contracting parties.
On his evidence, which the court found to have been uncontradicted, unchallenged
and plausible, the appellant was held to have proved the essentialia necessary for
the creation of a partnership agreement. The court found that there had been clarity
among the parties in regard to the nature of each party’s contribution, and the fact
that the exact extent of such contribution and the precise role of each party had not
been spelt out had not made the agreement void for vagueness.

Phillips_v_Fieldstone_Africa_(Pty)_Ltd_2004_(3)_SA_465_(SCA);_(2004)_25
_ILJ_1005_(SCA).pdf

The case that concerned the liability of an employee to account to his employer for
secret profits made by the employee out of an opportunity arising in the course of his
employment. The court confirmed the importance and validity of the principles set
out in Robinson v Randfontein Estates Gold Mining Co Ltd,38 namely, that a person
who has a duty to protect the interests of another is not allowed to make a secret
profit at the other’s expense or to allow their interests and duties to conflict.

PONELAT_v_SCHREPFER_2012_(1)_SA_206_(SCA).pdf
the court was called on to determine whether a universal partnership existed
between the parties. In this case, the plaintiff (who had never married the defendant
but who had lived with him over many years) relied on a tacit and/or implied
agreement of universal partnership brought about by the conduct of the parties.
Accordingly, when the parties ceased to live together, she successfully relied on the
existence of such a partnership to claim a share of the assets owned by the
defendant.
The court accepted that a universal partnership, also known as domestic
partnership, can come into existence between spouses and cohabitees where they
agree to pool their resources. The court stated that the ‘… partnership universorum
bonorum is that by which the contracting parties agree to put in common all their
property, both present and future’. The court accepted that a universal or domestic
partnership is similar to a marriage in community of property even though the parties
may not even be married at al

ROBINSON_Appellant_v_RANDFONTEIN_ESTATES_GM_CO_LTD_Respond
ent_1925_AD_173.pdf (186.514 KB)
A director has a duty not to misappropriate corporate opportunities, and a duty not to
compete improperly with the company in the sense of becoming a director of or
holding another office in a rival concern, thereby placing himself in a position in
which his duties or interests conflict.