Court name
High Court of eSwatini

Nellie v K.K.Investments (Pty) Ltd () [2000] SZHC 97 (20 November 2000);

Law report citations
Media neutral citation
[2000] SZHC 97
Coram
Sapire, CJ









SWAZILAND
HIGH COURT


Ndlovu
Sphiwe Nellie (born Dlamini)


Plaintiff


K.K.
Investments (Pty) Ltd


Defendant


Civ.
Trial No. 2850/2000


Coram
Sapire, CJ


For
Plaintiff Mr. S. Simelane


For
Defendant Mr. P. Flynn


JUDGMENT


(20/11/2000)


This
is an application made for the winding up of the respondent.


The
respondent company is a company carrying on a family business and the
petitioner and one Ndlovu her husband are the principal parties
interested in it. There are other shareholders. They seem to play no
part in the present application.


The
applicant and her husband are now at arms length and the marriage
between them is about to be the subject matter of a contested
matrimonial action. The ultimate end of this will probably be that
the parties will be divorced. But this is not necessarily so.


Section
114(1) of the act provides that an application to the court for the
winding up of a company shall be by petition presented subject to the
provisions of this section by the company, or by any creditor or
creditors including any contingent or prospective creditors,
contributory or contributories, or by all or any of those persons
together or separately, provided that the contributory shall not be
entitled to present a petition for the winding up a company unless
the number is reduced in a


2


case
of a private company to below two. The point about this is that it
must be shown first of all that the applicant is a contributory. The
act does not envisage a shareholder being entitled to present the
petition. This right is that of a creditor or prospective creditor or
the company itself or a contributory and in order to show that there
is a contributory the applicant would have to show that there is an
unpaid amount of a share capital owing in respect of the shares held
by her so that on liquidation there could be a call to be made on her
to make payment on that part of the share capital. Nothing is said in
the petition about any unpaid potion of the share capital and by
reason of that alone the applicant must fail, as she is not shown to
be a creditor.


The
second problem facing the applicant is that she claims to be married
in community of property. This is her allegation and in support of
this a copy of the marriage certificate between herself and Mr.
Ndlovu has been placed before the court. It appears that no contract
of any nature was entered into by the parties before the marriage.
Section 24 of the Marriage Act says that the consequences flowing
from marriages in terms of this Act shall be in accordance with
common law as varied from time to time by any law, unless both
parties to the marriage are Africans. Both parties in this case by
definition are Africans, in which case subject to the terms of
Section 25 the right of power of the husband and the proprietary
rights of disposal shall be governed by Swazi Law and custom.


Section
25 provides for the variation of the consequences of the marriage
provided that both parties of the marriage are Africans the
consequences flowing from the marriage are to be governed by the law
and custom applicable to them unless prior to the finalisation of the
marriage parties agree that the consequences flowing from the
marriage are to be governed by Common law and if the parties agree
that the consequences flowing from the marriage are to be governed by
common law the marriage officer shall endorse on the original
marriage register the fact of the agreement the production of the
marriage certificate, original marriage register or duplicate
marriage register so endorsed shall be prima facae evidence of that
fact unless the contrary is proved. This means that in the present
circumstances these parties are, in the absence of any proof of
endorsement, presumed to be married according to Swazi Law and
Custom.


3


That
in itself raises another question because the question of Swazi Law
and Custom on these points is not a matter of law but a matter of
fact and has to be proved by evidence in each case. In the absence of
such evidence the court will assume that the provisions of Swazi law
in relation to this are the same as the common law which means that
the parties were married in community of property and without the
exclusion of the marital of power. This being so the applicant prima
facae has no locus standi. This militates against the granting of a
provisional order in this matter


I
turn to the question of whether even if a case had been made out in
terms of the act for liquidation on the grounds that it was just and
equitable whether the court's discretion should be exercised in
favour of a provisional liquidation. If some "oppression"
is being practiced by the company on its minority shareholder it
still has to be shown that such oppression, if any, is to thee
prejudice of the joint estate, or to the estate of the parties.


In
this case it cannot be said that it is just an equitable that a
healthy and viable company should be placed on liquidation pending
the outcome of a divorce action because at the end of the day there
would be a division of the parties assets in accordance with the law
applicable to the marriage. If a healthy and viable company is put
into liquidation all that will happen is that both parties will be
prejudiced. If the company continues to operate it will be to the
benefit of both parties. It must be borne in mind that the applicant
is still the director of the company and certainly no alienation of
any assets could take place without a resolution of the directors and
any meeting of the directors in which such a resolution was proposed
would have to be advised to the applicant and she would be able to
have her say. Her interests are in this way well protected.


All
in all it is not possible for an order to be made as sought by the
applicant and the petition is dismissed with costs.


SAPIRE,
CJ