IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE · 2018-01-31 · Attached to each letter directed to...
Transcript of IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE · 2018-01-31 · Attached to each letter directed to...
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IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE
NATAL PROVINCIAL DIVISION
CASE NO: 5378/2006In the matter between:SHAUKAT ALLI MOOSA N.O. AND 24 OTHERS Applicants
andMAHOMED ASLAM OSMAN AKOOAND 16 OTHERS Respondents
JUDGMENT
MSIMANG, J:
This is an application for an order declaring a partnership relationship
subsisting between the parties to have been lawfully dissolved with effect from
28 February 2006 and for an order appointing a liquidator with powers to
effect a final liquidation of the partnership and to make applicable distribution
to the partners according to the extent of their determined interests in the
partnership.
Only the first four respondents (respondents) have signified their intention to
oppose the application. They are, however, not opposed to the granting of
an order declaring the partnership to have been dissolved on 28 February
2006 but are opposed to an order appointing a liquidator. They have, in turn,
filed a counterapplication seeking an order declaring the Osman Family Trust
to have been equal partners with the applicants as at the date of the
dissolution of the partnership on 28 February 2006 and seeking an order
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directing the said Trust to deliver a statement of account of the partnership as
at 28 February 2006, the said statement to be delivered within a period of
one (1) month from the date of the order, such an order to give the applicants
leave to set the matter down for debatement of the account and payment of
such amount as may be owing by the said Trust to the applicants or vice
versa. In the event of any dispute as to whether the first and/or fourth
respondents accounted at a fair value for the assets of the partnership taken
over by the said respondents, an order is sought for the appointment of a
forensic auditing firm known as KPMG to determine a fair value of such
assets and to make such adjustment as may be necessary in the accounts of
the partnership and giving the parties leave to approach the Court to broaden
the powers of the said KPMG pursuant to the delivery of the said statement
and debatement of account. Needless to say, the counterapplication is being
opposed by the applicants who insist on the appointment of a liquidator and
who deny that, as at 28 February 2006, the Trust held a 50% share in the
partnership. What then follows is a brief outline of the events leading up to
the existing dispute between the parties.
It is common cause between the parties that during or about 1986 the Osman
family commenced business as manufacturers of roof sheeting and
processors and suppliers of steel products in which business the family traded
as Rollco. At the time the business was owned by the O S Akoo Family
Trust, the trustees of which were the first respondent’s father, mother and
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brothers. The business was managed by the first respondent, his two
brothers and by his father. It was during 1987 that certain members of the
Moosa and Hassam families (Moosa family) came into the picture and the two
families entered into a verbal partnership agreement in terms of which they
would commence business as processors of steel and manufacturers of
corrugated iron sheeting as equal partners. The arrangement was that the
Moosa and Hassam families would hold their 50% partnership interest in
various Moosa and Hassam Family Trusts and that the Osman Family,
holding the other 50% interest in the partnership, would comprise the first
respondent and various other members of the family and that their interest in
the partnership would be held in the O S Akoo Family Trust. A dispute exists
as to who would be responsible for the management of the business, the
applicants contending that the business would, in terms of the agreement, be
managed by the first respondent in consultation with the first applicant while
first respondent’s version is that the management and the affairs of the
business were always carried on by the Osman family and that they would do
so as they saw fit and in their exclusive discretion without any input from the
Moosa family whose only role were financiers of the business. Annual
statements as well as their profit share would be sent to them. It would
appear that until the year 2002 the profits from the partnership business were,
at all times, shared equally between the Osman Family Trust on the one
hand and the ten Moosa Family Trusts on the other.
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During 2003 (according to the applicants) or during 2002 (according to the
first respondent) the latter convened a meeting at the offices of the
partnership at which the Moosa family was represented by the first applicant
and other family members. At the meeting the first respondent is alleged to
have informed all present that his family members had ceased being partners
in the business and that the said respondent would step into their shoes as a
partner with equal shares as the 50% share held by the Moosa family in the
partnership. The first respondent’s interest in the partnership was therefore
held in the name of the Osman Family Trust, in which he and his wife were
the sole trustees.
This allegation, is of course, denied by the applicants. They contend that the
50% partnership interest held by the Osman family had been structured on
the basis that the first respondent and the three remaining family members
each beneficially held a partnership interest of 12.5%. With the first
respondent’s three family members leaving the partnership, the first
respondent sought to acquire 37.5% partnership interest collectively held by
these three family members. The Moosa family took a view, the applicants
further contend, that if the partnership funds were used to acquire the
partnership interests of the resigning partners, then such partnership interests
would be distributed proportionately to the remaining partners, the effect of
which would have been that the Moosa family would collectively have held a
partnership benefit of 80% while the first respondent would hold a partnership
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interest of 20%. The allegations regarding the structuring of the interest of
the first respondent’s family as well as the redistribution of the interests of the
resigning partners are denied by the respondents. This dispute, however,
bears no relevance to the relief sought in the main application and only bears
relevance to the part of the relief sought in the counterapplication.
The partnership between the first respondent and the Moosa family, however,
subsequently started to disintegrate. For purposes of determining the issues
in this application it is not necessary to traverse in any detail the reasons for
such disintegration save, perhaps, to state that the nature of those reasons,
as given by the partners, are such that those reasons must have led to a
complete lack of trust between the first respondent and the Moosa family. It
was, no doubt, for that reason that on 24 February 2006 the first respondent
addressed a letter to each of the Moosa Family Trusts, in their capacities as
partners in the partnership, giving them notice of the dissolution of the
partnership with effect as from 28 February 2006, citing a deadlock and a
complete breakdown in the trust and good faith between himself and the
trustees of the Trusts as a reason for such dissolution. In the letter the first
respondent also informed the Trusts that the auditors had been instructed to
calculate the capital amount as at the end of February 2006 and that he would
pay each partner his/her capital amount by way of a series of cheques, adding
that such payments would “bring an end to the partnership as at 28 February
2006”.
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Attached to each letter directed to each Trust were thirty six (36) postdated
cheques, each in the sum of R50 000.00, which meant that the Moosa family
partnership interest had been valued at R18 million, being 36 x R50 000.00
equals R1.8 million paid to each Trust of the ten Trusts. On 28 February
2006 the first respondent despatched a further letter to each of the Trusts
advising them that the amount tendered under cover of the letter of 24
February 2006 was in no way in full and final settlement, that the amount so
tendered took into account the financial status as at 28 February 2005, that
the current balance sheet was in the process of being prepared and that the
additional amounts due to each Trust would be forwarded under cover of a
separate correspondence.
In any event, though some of the Trusts did accept the first respondent’s offer,
seven Trusts never did. This remained the position despite negotiations in an
attempt to resolve the impasse, all of which proved fruitless.
In the meantime the business of the partnership continued as usual. The first
respondent had formed and caused to be incorporated a company in the
name of Rollco Roofing Systems (Pty) Ltd and became the sole director
thereof. When the partnership was dissolved on 28 February 2006 he
continued to run the partnership business, substituting the name of the
partnership with that of his recently incorporated company, which is the fourth
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respondent in the present proceedings.
It is evident from the case pleaded by the first and fourth respondents that, not
only are they opposed to an order appointing a liquidator but that they also
contend that when the partnership was dissolved on 28 February 2006 all the
affairs of the partnership came to an end. The financial records to which the
applicants are entitled are for the period until, and not beyond, the said date.
The same applies to the share in any of the profits of the business. They
have made it clear that it would be grossly unjust were the applicants to be
entitled to share in any of the profits of the business beyond the admitted date
of the dissolution of the partnership, to wit, 28 February 2006. The position
is fiercely resisted by the applicants who contend that the first respondent’s
conduct in conducting the partnership business for his own benefit and
through the vehicle of the fourth respondent constitutes a clear violation of the
first respondent’s fiduciary duties to his copartners and renders all the profits
made by the fourth respondent partnership property in which each of the
partners (including the applicants) are entitled to participate. The resolution of
these divergent legal opinions held by the parties on the facts will no doubt
have a bearing on the nature of the relief sought by them in the present
proceedings.
The effect of a dissolution of a partnership is the termination of the authority of
a partner to bind the partnership and his copartners. All new transactions
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concluded by a partner, not related to the liquidation of the partnership and
not consequential to transactions which occurred during the existence of the
partnership, do not bind his expartners but are for his own account alone. 1
In his Treatise on the Contract of Partnership Pothier puts the position as
follows :
“155 The effect of the dissolution of partnership is, that thenceforth and for the future, all contracts, which each of the former partners may enter into, will be on his own account only, unless they were necessary consequences of the affairs of the partnership.” 2
De Wet en Yeats confirm this legal position and pronounced themselves as
follows :
“Ontbinding van ‘n vennootskap het nie alleen gevolge ten opsigte van die onderlinge verhouding tussen die vennote nie, maar ook ten opsigte van hulle verhouding met derdes. Wat die verhouding tussen die vennote betref, is die belangrikste gevolg dat hulle onderlinge volmag wegval. Na ontbinding kan die een nie meer die ander deur sy regshandelinge bind nie, behalwe vir sover die handeling nodig is vir die voltooiing van ‘n vennootskapstransaksie of vir die likwidasie van die vennootskap …..” 3
There are a number of exceptions to this general rule one of which was set
out as follows in Ellery v Imhof : 4
“One partner, on a dissolution, is not entitled to take possession of the partnership assets and trade with them, and if he does he is liable to account”.
In casu the first and fourth respondents have admitted that, after the
1 Lawsa, Second Edition, Vol 19 paragraph 313; 2 A Treatse on the Contract of Partnership by Pothier – translated from the French by Owen Davies Tudor;
3 Kontraktereg en Handelsreg 4th ed. At 412 – 413;4 1904 TH 170 at 175; see also Bamford’s The Law of Partnership and Voluntary Association in
South Africa 3rd ed. at 91 and the cases referred to therein; Hariharan v Baijhath 1990(2) SA 765 (N) at 767 L – D;
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dissolution of the partnership, its premises, assets and equipment continued
to be utilised by them to conduct the partnership business through the guise
of the fourth respondent. It must accordingly follow that, on the authority
referred to above, they should account to the applicants for the profits made
by the fourth respondent during the conduct of the partnership business after
the date of the dissolution thereof. I understood Mr. Hodes, who with Mr.
Farlam appeared for the respondents, to make an offer to this effect during
argument.
In resisting the appointment of a liquidator and preferring the relief sought in
the counterapplication the respondents relied heavily on the then Appellate
Division decision in Robson v Theron. 5 Mr. Hodes submitted that the
Appellate Division in that decision made it clear that, upon dissolution of a
partnership, the Court is not obliged to appoint a liquidator to realise the
partnership assets where the parties have not agreed on the manner in which
the partnership is to be liquidated and wound up. Implicit in the decision, the
argument continues, is that a party is not entitled to the appointment of a
liquidator. Instead, the Court has a wide equitable discretion in respect of the
mode of dissolution of partnership assets, having regard, inter alia, to the
particular circumstances, what is most to the advantage of the parties and
what they prefer. Mr. Hodes referred to the following statement made by
Comrie J in van Onselen N.O. v Kgengwenyane : 6
5 1978(1) SA 841 (A);6 1997(2) SA 423 (B) at 429 FH;
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“It seems to me that Robson v Theron (supra) introduced or reintroduced a greater measure of flexibility into our law in relation to the practicalities of partnership dissolution than was hitherto generally recognised. Not that the Courts or receivers and liquidators were given carte blanche to do as they liked. But a greater latitude was allowed, a wider equitable discretion, to achieve a result which was both fair to the parties and sensible in the circumstances of a given case. A priori rules such as that save in exceptional cases, the common property must be sold by public auction to the highest bidder, and may not be made over to one of the partners at valuation, can in my opinion no longer be regarded as good law. They should be treated as being no more than useful guides in appropriate cases”.
Urging the Court to exercise its discretion in favour of the course of action
preferred by the four respondents Mr. Hodes contended that there is no
ongoing partnership business to manage, the partnership no longer has any
assets, the only previous asset it had being the Rollco business which has
since been transferred to the fourth respondent, there is no suggestion that
the partnership owed (or owes) any debts to third parties and therefore no
need exists for the appointment of a liquidator to pay outstanding debts, let
alone to collect any assets to pay debts owed by the partnership to outsiders.
Furthermore, the first respondent has grown and managed the business and
been responsible for its success to the benefit of the applicants. No
suggestion has been made that the applicants are desirous of managing the
Rollco business or to participate in any way therein or that it would be
appropriate for them to do so. Indeed, all the indications are that they
neither want it nor need it. There can accordingly be no objection to the
business continuing to be operated by the fourth respondent subject to the
applicants being properly compensated. The only reason why the applicants
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could conceivably want the business to be sold to someone other than the
fourth respondent would either be to prejudice the first respondent financially
and emotionally by depriving the fourth respondent of a business which the
first respondent and his family have built it up for over twenty years or to
undermine the Rollco business so as to allow their competing business to
prosper. Neither of these are reasons which should carry any weight at all
with the Court in the exercise of its discretion, the argument concluded.
In the Robson case (supra) veterinary surgeons had been involved in a
partnership in a professional practice. Upon dissolution of the partnership the
partners had agreed on the interest of the retiring partner in the partnership.
However, the continuing partner de facto retained the goodwill of the
partnership for his own use and benefit and the partners could not agree on
the value of the goodwill at the date of dissolution of the partnership. That
was the only issue outstanding after the dissolution of the partnership. It was
in that context that the Court did not opt for the appointment of a liquidator
holding that :
“The practical and equitable solution in the circumstances, according to the substantive principles of law governing the action pro socio or the utilis actio communi dividundo, is for the Court to place arbitrio judicis a valuation on the goodwill with due regard to the particular circumstances concerning its value at the date of dissolution of the partnership and to order Dr. Robson to pay Dr. Theron onehalf thereof.” 7
In the van Onselen case (supra), another case upon which the respondents
7 Robson case (supra) at 858 FG;
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rely for the proposition that a liquidator should not be appointed in the present
case, upon divorce the parties had agreed that a liquidator be appointed
whose duty would be to attend to the sale of a house belonging to the joint
estate which, according to the agreement, would be sold and disposed of by
public auction or private treaty and could be purchased by either of the parties
if no buyer was available to take over the house to the advantage of both
parties.
The agreement had been made an order of court and the applicant had been
appointed receiver and liquidator in terms thereof. He had obtained a
valuation of the house and invited the parties to place offers for the purchase
thereof. The respondent (being the erstwhile husband) had been unco
operative as he had been under a suspicion that the house should be valued
at an amount higher than the amount of valuation. Mrs. K (the erstwhile
wife), however, had shown an interest and, when no other offers had been
forthcoming, the applicant had concluded an agreement of sale with her. The
respondent had, however, notwithstanding demand, refused to vacate the
house causing the applicant to launch eviction proceedings against him.
Referring to the requirement that liquidators must sell the assets of the joint
estate to the highest bidder Comrie J quoted authority and concluded that it is
not mandatory that partnership property should be sold by public auction. It
was in this context that Comrie J made remarks to which I have been referred
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by Mr. Hodes.
The facts in the present case are therefore clearly distinguishable from the
facts in the two cases relied upon by the respondents in this matter.
Besides, the reasons given by Mr. Hodes for urging this Court to exercise its
discretion in favour of the course of action preferred by the respondents
appeared to be based on a supposition that, in liquidating the affairs of the
partnership, all that needs to be done is to place a value on the assets of the
partnership as at 28 November 2006. The argument does not seem to have
(and cannot have) taken into account the decision which has since been
made by this court, to wit, that the first and fourth respondents should also
account to the applicants for the profits made by the fourth respondent during
the conduct of partnership business under the name of the fourth respondent.
Those profits are as a result of trading by the fourth respondent for a period of
approximately one year. The trading operations of the business appear to be
massive. It is not disputed that the turnover as at 28 February 2005 was in
excess of R420 million and that, as at that date, the partnership had made a
nett profit of approximately R13 million. In rejecting a submission that a
liquidator be appointed Milne J motivated as follows in Schoeman v Rokeby
Farming Co. (Pty) Ltd : 8
“In this case, however, there does not seem to be any practical purpose in doing so. In fact, all that has happened is that the plaintiff has carried on certain farming activities on the farm which he sold to the defendant and it seems that he has had sole control of the partnership. There are no
8 1972(4) SA 201 (N) at 206;
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difficulties with regard to capital contributions and it is simply a question of determining the expenses that have been incurred in the farming operations, the income received in respect of those farming operations and the payments, if any, made by the parties. The farming activities do not appear to have been particularly complex nor to have extended over a long period. In fact the partnership has been of a very restricted nature. In these circumstances, it appears to me to be unnecessary to go through the formality of having a liquidator appointed ………….”
Clearly, the partnership activities in casu are much more extensive and have
been transacted over a period of approximately five years. Besides, the
element which is absent in the cases upon which the respondents rely is the
element of lack of trust. It is important for the process of liquidation and
distribution of the assets of the partnership to be free from the perception of
impropriety and partiality.
As much as I agree with the submissions made by Mr. Hodes based on the
decision in the Robson case (supra), namely, that, upon dissolution of a
partnership, the Court is not obliged to appoint a liquidator to realise the
partnership assets, that no party is entitled to such an appointment and that
the Court has a wide equitable discretion on the issue, having considered all
the facts and circumstances of the present case, I have been driven to the
conclusion that it would be proper and equitable for me to exercise my
discretion in favour of the relief sought by the applicants in this matter, and to
reject the course of action suggested by the respondents in their counter
application.
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Regarding the declaration sought in paragraph (b) of the counterapplication it
is clear to me that there is such a dispute of fact between the parties on the
issues relating to the same that it will not be possible to resolve the issue on
the papers. I have accordingly concluded that issues relating to the matter
be referred for the hearing of oral evidence and, in the exercise of my
discretion, I have decided that the costs of the counterapplication be
reserved for determination by the Court hearing that oral evidence.
The order I therefore make is as follows :
1. I grant an order in terms of paragraphs 1 to 11 of the Notice of
Motion save that paragraph 2 thereof is substituted with the
following paragraph :
“The liquidator to be appointed in terms of this order shall be a chartered accountant agreed upon by the parties within five (5) days of this order or, failing that, one nominated by the Chairman for the time being of the South African Institute of Chartered Accountants”.
2. The costs of the application must be borne by the first,
second, third and fourth respondents, jointly and severally, the
one paying the others to be absolved. Such costs to include
the costs occasioned by the employment of two counsel.
3. In terms of Rule 6(5)(g) the issues in the counterapplication
set out in Annexure “A” of this order are referred for the
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hearing of oral evidence on a date to be arranged with the
Registrar.
4. The costs of the counterapplication are reserved for
determination by the Court hearing that oral evidence.
For the Applicant: Adv. N Singh SC with Adv. H S Gani (instructed by
Cajee Setsubi Chetty Inc)
For 14 Respondents: Adv. Hodes SC with Adv. Farlam (instructed by
Abbas, Latib and Co.)
Matter argued: 22 August 2007
Judgment delivered: 15 October 2007
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ANNEXURE “A”1.
1.1 The terms of the partnership agreement concluded between the
ten trusts represented by the applicants on the one hand, and the
Mahomed Aslam Osman Family trust on the other hand, which
agreement was concluded after the termination of the partnership
relationship between the ten trusts represented by the applicants
on the one hand, and the O S Akoo Family Trust on the other
hand.
1.2 The percentage of each partner’s interest held by each of the ten trusts represented by the applicants on the one hand, and the Mahomed Aslam Osman Family Trust on the other hand, in the said partnership.
2.Any party intending to call a witness who has not deposed to an affidavit shall be obliged to furnish to the other party a written and signed summary of the evidence to be given in chief by such witness, not less than 10 days before the date appointed for the hearing of the oral evidence.
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3.
Leave is hereby granted to the parties to subpoena any person to
appear at the hearing when oral evidence is led, who is able to give
evidence upon the issues referred to in paragraph 1 hereof, whether
such person has consented to furnish a statement or not.
4.The provisions of Rules 35, 36 and 37 shall apply to the hearing of such oral evidence.
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